New York high court eases proof burden in legal malpractice claims.

The New York Court of Appeals has made it easier for plaintiffs to prove legal malpractice: A client suing a former lawyer no longer must prove that a judgment could have been collected in an allegedly botched claim. The decision by the state's highest court reverses both a lower court ruling and long-standing precedent regarding attorney malpractice cases. (Lindenman v. Kreitzer, 775 N.Y.S.2d 4 (2004).)

Anthony Davis, a lawyer in New York who specializes in legal malpractice cases, said the decision "shifts the burden" to the defendants.

In the past, plaintiffs had to show that the malpractice caused an "injury," usually the loss of a potential judgment, Davis said. Without that loss, attorney defendants could argue that there was no injury. The question was, Davis said, "Can there be malpractice if the plaintiff couldn't actually collect? It is very hard to prove a negative. It was quite a big burden."

The case began in 1989, when Bruce Lindenman was hit on the forehead by a waiter's metal tray at the Westwind Yacht Club in Freeport, New York. He hired David Kreitzer, of Kreitzer & Vogelman in New York City, to represent him in a personal injury lawsuit against the club. The lawsuit was dismissed in 1992 because Kreitzer failed to comply with a discovery order seeking a bill of particulars, despite a pending order of preclusion directing him to provide one within a specific time frame.

He moved for reargument, but his motion was dismissed. Kreitzer, however, kept telling his client that the case was going forward, until Lindenman discovered the deception in 1997 and hired another firm to sue Kreitzer.

During a bench trial, the defense argued that Lindenman had not proven a prima facie case because he provided no evidence that a judgment in his lawsuit against the yacht club could have been collected. The plaintiff then moved to reopen the case in order to submit such proof, but the motion was denied.

On appeal, the NewYork high court noted that plaintiffs in legal malpractice claims have to prove "a case within a case": first, that if their case had been properly handled they would have won; and second, that whatever judgment they obtained would be collectible. The requirement of proof of a collectible judgment came largely from an earlier case, Larson v. Crucet. (481 N.Y.S.2d 368 (1984).)

But Judge Betty Weinberg Ellerin, writing for a unanimous court, said the reasoning behind Larson--and more specifically, the reasoning behind the cases that supported Larson--was faulty.

"In both causes, the deficiency of the malpractice action was not the plaintiff's failure to prove that the underlying judgment was collectible but rather that the plaintiff failed to prove the underlying cause of action itself, including the amount of damages flowing therefrom," she wrote.

"It is only after the plaintiff has proved the case within the case, including the value of the lost judgment, that the issue of collectibility may arise.... [T]he finding that the plaintiff was wronged by the defendant in the underlying action and wronged by the attorney who represented him in that action is itself a vindication of the legitimacy of the plaintiff's underlying claim and has value regardless of whether it is wholly collectible."

The case was remanded to the trial court. Kreitzer was suspended from the practice of law in 1997 and disbarred in 2001, partly because of his misrepresentations to Lindenman. The firm Kreitzer & Vogelman was sold and is now Pariser & Vogelman.

Davis noted that although the ruling is limited--it will apply only to cases in which the judgment involves a debtor with no assets--"it is a substantial change in the law, in cases where there is an issue of collectibility of judgment. That doesn't happen all that often, but for this particular type of malpractice claim, life has gotten a little easier for plaintiffs."