Collectibility An Affirmative Defense In Legal Malpractice Claim

The Washington State Supreme Court has addressed two questions of first impression in the jurisdiction in legal malpractice cases.

First, the court held that the uncollectibility of the judgment in the underlying action is an affirmative defense that the defendant attorney must plead and prove. The court rejected the view that collectibility was an element of the tort for which the former client has the burden of proof.

Second, the court found that emotional distress damages were not available under the facts of the case.

The underlyng case was a slip-and-fall. The attorney had filed suit shortly before the statute of limitations ran but named the wrong defendant.

Subsequent efforts to revive the case failed. (Mke Frisch)