Edwin C. Brown, Jr., rather than that stated by plaintiff's expert, John G. Gill, Jr.
Mr. Brown testified that at the time Ms. Smith retained Ms. Haden to represent her there was no requirement in the Code of Professional Responsibility or the Disciplinary Rules then in effect in the District of Columbia that a retainer agreement be in writing; Mr. Gill agreed with that statement. Gill Tr. at 38. Where Mr. Brown and Mr. Gill parted company was with respect to the clarity of the written retainer agreement that was in fact entered into in this case. Mr. Gill found Exhibit No. 1 confusing (Gill Tr. at 9, 12-13 ), while Mr. Brown found nothing in the exhibit that was confusing or ambiguous, concluding that it clearly did not obligate Ms. Haden to undertake a civil claim against Mr. Odom. In Mr. Brown's opinion, the language "Civil action not necessary," that had been typed in, meant that no civil suit was involved in view of the nature of the representation undertaken, which was to file a claim with the Alaska Victim's Compensation Board.
The Court finds that a written retainer agreement was not necessary but that the agreement that was signed did not obligate Ms. Haden to represent Ms. Smith in bringing a civil suit against Mr. Odom in Alaska. While the lining out of the words "Civil action not necessary" may have been a mistake resulting in some confusion in Ms. Smith's mind, the form was otherwise clear that Ms. Haden's representation of Ms. Smith was limited to representing her before the Alaska Victim's Compensation Board.
With respect to the question whether the referral to Ashley Dickerson had to be in writing, Mr. Gill testified that he thought it was the better practice and a violation of the applicable standard of care not to put a referral of a matter to another attorney in writing. Gill Tr. at 13-14, 38-39. Mr. Brown, on the other hand, testified that it was sufficient, and within the applicable standard of care, when making a referral to simply furnish the client with the name of the lawyer to whom one was referring the client and the phone number of that lawyer, if available. He said it was customary to suggest three names of lawyers but that it was not essential to do so. He testified that in his opinion Ms. Haden did not violate the applicable standard of care by orally explaining that Ms. Smith might have a civil action in Alaska, orally advising her of the applicable statute of limitations, and making the referral to Ms. Dickerson orally rather than in writing. Further, it was Mr. Brown's opinion that, once having provided Ms. Smith with the name of an Alaska attorney, Ms. Haden had no continuing obligation to ask Ms. Smith whether she had in fact retained that or any other Alaska attorney and no obligation to otherwise follow up after making a referral.
Mr. Brown based his opinion not only on his own experience but also on conversations he had with lawyers at the Legal Aid Society, with staff lawyers at the Ethics Committee of the District of Columbia Bar, with staff at the Bar's Lawyer Referral and Information Service, and with prominent and experienced private practitioners. While not independently evidence of the standard of care for a client referral, this testimony supports the conclusion that Mr. Brown's opinion is worthy of belief. The Court finds that Mr. Brown's opinion as to the applicable standard of care for a referral is the correct one and that as a matter of fact and legal ethics there is no violation of the applicable standard of care when a lawyer refers a client to another lawyer orally rather than in writing.
Because the Court finds that Ms. Haden's agreement to represent Ms. Smith was limited in scope, that she obtained the maximum compensation available under the Alaska Victim's Compensation Act, that she did not undertake to file a civil suit against Mr. Odom on behalf of Ms. Smith and that her referral of Ms. Smith to Ms. Dickerson was done in a proper fashion, the Court finds that Ms. Haden did not violate the applicable standard of care and did not commit legal malpractice by failing to file a civil action against Mr. Odom in Alaska. The Court therefore need not consider the nature and extent of the physical and mental injuries suffered by plaintiff as a result of the shooting incident, whether she would have obtained a judgment against Mr. Odom in Alaska if suit had been timely filed, or whether Mr. Odom's assets, including his homeowners' insurance policy, would have been available to satisfy any such judgment.
C. Conclusions Of Law
1. In a legal malpractice case in the District of Columbia the plaintiff bears the burden of presenting evidence establishing that the parties entered into an attorney-client relationship, what the applicable standard of care is, that the standard of care has been violated by the defendant-lawyer, and that there was a causal relationship, or proximate cause, between the violation and the harm complained of -- in this case, the loss of a judgment in some sum against Mr. Odom. See Battle v. Thornton, Civ. No. 92-752, slip op. at 1284-85 (D.C. Aug. 11, 1994), citing O'Neil v. Bergan, 452 A.2d 337, 341 (D.C. 1982); Morrison v. MacNamara, 407 A.2d 555, 560 (D.C. 1979). To show that the negligence was the proximate cause of the injury, plaintiff must show that she had a good cause of action against the party she wished to sue; otherwise, the plaintiff "loses nothing by the conduct of his attorney even though the latter was guilty of gross negligence." Niosi v. Aiello, 69 A.2d 57, 60 (D.C. 1949).
2. Ms. Smith had a cause of action against Mr. Odom in the courts of Alaska for his negligent infliction of emotional distress on her as a result of his actions on or about May 1, 1987.
3. Under Alaska law, the statute of limitations on the cause of action which Linda Smith had against Javis Odom required suit to be filed within two years after the cause of action accrued. Because no such suit was filed within the applicable period, it now is time-barred.
4. The only claim that was handled by Mabel Haden for Linda Smith regarding the Alaska incident on May 1, 1987 was a claim for compensation from the Alaska Victim's Compensation Board. On or about July 26, 1988, Ms. Smith was awarded the maximum award of $ 40,000 available under the Alaska Victim's Compensation Act.
5. Plaintiff failed to prove by a preponderance of the evidence that the defendant breached the duty owed to her under the attorney-client relationship evidenced by Plaintiff's and Defendant's Exhibit No. 1. That document limited the scope of the representation to a claim for compensation from the Alaska Victim's Compensation Board.
6. Plaintiff's testimony was insufficient to demonstrate by a preponderance of the evidence a breach of the duty of care in view of the more compelling and credible testimony of other witnesses, the limited scope of that representation evidenced by Plaintiff's and Defendant's Exhibit No. 1, and the fact that plaintiff was awarded the maximum award under the Alaska Victim's Compensation Act.
7. Plaintiff also failed to prove by a preponderance of the evidence that the scope of the attorney-client relationship between Mabel Haden and Linda Smith extended to filing a civil lawsuit against Javis Odom in the State of Alaska. There is no credible testimony and no documents to support plaintiff's contention that Ms. Haden agreed to file such a lawsuit.
8. Requisite care by an attorney is that care which a reasonably prudent attorney would have exercised under the same or similar circumstances. Morrison v. MacNamara, 407 A.2d 555, 560 (1979).
9. "When faced with conflicting expert testimony, the trial court may credit one expert over the other or even disregard both in rendering its judgment." Rock Creek Plaza Woodner Limited Partnership v. District of Columbia, 466 A.2d 857, 859 (D.C. 1983). The Court credits the testimony of Defendant's legal expert Edwin Brown that a reasonably prudent attorney exercising the applicable standard of care under the same or similar circumstances would not necessarily have put a client referral to another attorney in writing. Ms. Haden's conduct was reasonable and in compliance with the applicable standard of care when she orally referred Ms. Smith to Ashley Dickerson.
10. Defendant had no duty to pursue a civil claim against Mr. Odom on Ms. Smith's behalf or to monitor whether a civil action had been instituted. Ms. Haden's explanation regarding the statute of limitations and the need to seek professional legal help in the State of Alaska was sufficiently clear, and no writing was required to refer Ms. Smith to Ms. Dickerson. There was no breach of the standard of care by the defendant in this case.
11. The statute of limitations ran on Ms. Smith's claim against Mr. Odom as a result of Ms. Smith's failure to contact Ashley Dickerson or some other Alaska attorney to pursue the claim on her behalf.
12. Collectibility is not a specific element of a legal malpractice claim in the District of Columbia. Placing the burden on a plaintiff to prove collectibility would be unfairly burdensome, particularly when a legal malpractice suit is often brought years after the underlying events and when the delay by the plaintiff in bringing such a suit is because of the defendant-lawyer's failure to act in a timely manner in the first place. The fairer approach is to wait until after malpractice has been proven and then to impose on the negligent attorney the burden of going forward with evidence to show that the damages imposed could not in fact have been recovered from the wrongdoer in the original case. Jenkins v. St. Paul Fire & Marine Ins. Co., 422 So. 2d 1109, 1110 (La. 1982); cf. Winter v. Brown, 365 A.2d 381, 385 (D.C. 1976). Uncollectibility of a judgment is "a matter constituting an avoidance or mitigation of the consequences of one's negligent act," rather than as a matter of required proof for the one asserting the negligence. Jourdain v. Dineen, 527 A.2d 1304, 1306 (Me. 1987). Uncollectibility is an affirmative defense that must be pleaded and proved by the defendant. Jourdain v. Dineen, 527 A.2d at 1306; see Hoppe v. Ranzini, 158 N.J. Super. 158, 385 A.2d 913, 920 (N.J. Super. Ct. App. Div. 1978).
On the basis of the foregoing Findings of Fact and Conclusions of Law, the Court enters judgment in favor of the defendant and dismisses all claims against the defendant.
An accompanying Order consistent with this Opinion, Findings Of Fact And Conclusions Of Law has been filed this same day entering judgment for defendant.
PAUL L. FRIEDMAN
United States District Judge
This case was tried to the Court without a jury on October 17, 18, 26 and 27, 1994. For the reasons stated in the Opinion, Findings of Fact and Conclusions of Law filed on the same day as this Order, it is this 23rd day of December, 1994, hereby
ORDERED that Defendant's motion to dismiss is DENIED under Rule 52(c), Fed. R. Civ. P.; it is
FURTHER ORDERED that Defendant's motion to strike expert testimony is DENIED; it is
FURTHER ORDERED that judgment is entered for Defendant after trial; and it is
FURTHER ORDERED that this case is dismissed from the docket of the Court.
PAUL L. FRIEDMAN
United States District Judge