Shevlin Smith v. McLaughlin

Present: Lemons, C.J, Goodwyn, Millette, McClanahan, and
Powell, JJ., and Russell and Lacy, S.JJ.

SHEVLIN SMITH
OPINION BY
v. Record No. 140500 JUSTICE LEROY F. MILLETTE, JR.
February 26, 2015
BRUCE W. McLAUGHLIN

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Michael F. Devine, Judge

In this appeal we consider, among other issues,

(1) whether an attorney breaches the duty to a client by

failing to correctly anticipate a judicial ruling on an

unsettled legal issue, (2) whether collectibility is relevant

to a legal malpractice claim when the alleged injury is the

loss of an otherwise viable claim, and (3) whether non-

pecuniary damages are recoverable in a legal malpractice claim.

I. Facts And Proceedings

This appeal arises from a legal malpractice claim.

Typically, a legal malpractice claim involves a case within the

case, because the legal malpractice plaintiff must establish

how the attorney's negligence in the underlying litigation

proximately caused the legal malpractice plaintiff's damages.

This appeal presents an additional level to this typical

format, as the underlying litigation in which the alleged

malpractice occurred was itself a legal malpractice claim.

This legal malpractice claim therefore implicates a case (the
initial criminal matter) within a case (the criminal

malpractice matter) within the case (the legal malpractice

matter that is now before us).

A. The Criminal Matter

In 1998, Bruce McLaughlin was charged on multiple counts

of felony sexual abuse. McLaughlin hired William J. Schewe of

the firm Graham & Schewe, and Harvey J. Volzer of the firm

Shaughnessy, Volzer & Gagner, P.C. to represent him in this

criminal matter. At the conclusion of trial, the jury found

McLaughlin guilty and convicted him of nine counts of sexual

abuse of three of his children, and McLaughlin was sentenced to

serve 13 years in prison.

McLaughlin's direct appeal was denied. A few hours after

learning of this denial, McLaughlin was brought to the Loudoun

County General District Court on an unrelated matter. At that

time McLaughlin attempted to escape from custody by running

from the courthouse, but was quickly apprehended. McLaughlin

pled guilty to the class six felony of simple escape and was

sentenced to five years in prison with two and one half years

suspended.

Pursuant to habeas proceedings, McLaughlin's convictions

for the felony sexual abuse charges were vacated and he was

granted a new trial. A second trial on the felony sexual abuse

charges was held in 2002, and at the conclusion of trial the

2
jury found McLaughlin not guilty on all charges. McLaughlin

had been incarcerated for over four years, from September 1998

until his release in December 2002.

B. The Criminal Malpractice Matter

McLaughlin sought to bring a legal malpractice claim

against his criminal defense attorneys Schewe, Volzer, and

their respective law firms (the "criminal malpractice claim").

McLaughlin hired the firm Shevlin Smith to pursue that criminal

malpractice claim, with Brian Shevlin as lead counsel. The

criminal malpractice claim alleged that McLaughlin's criminal

defense attorneys negligently failed to obtain the taped

interviews of the alleged victims and compare those tapes with

the inaccurate written transcripts used during McLaughlin's

first criminal trial.

Volzer and the firm Shaughnessy, Volzer & Gagner, P.C. had

$2,000,000 in insurance coverage for any liability arising from

the criminal malpractice claim. The malpractice insurer for

Schewe and the firm Graham & Schewe had obtained a judicial

ruling that it was not required to provide coverage for the

criminal malpractice claim. Nevertheless, the insurer provided

$50,000 to Schewe and the firm Graham & Schewe to handle the

criminal malpractice matter or settle the case.

As McLaughlin needed money and wanted to accept the

settlement offer, Shevlin Smith negotiated a settlement and

3
release with Schewe and the firm Graham & Schewe in order to

settle McLaughlin's criminal malpractice claim against them

(the "Release Agreement"). This Release Agreement was executed

in 2005, and specifically settled McLaughlin's criminal

malpractice claim against Schewe, John T. Graham, and the firm

Graham & Schewe for $50,000. The Release Agreement expressly

did not discharge McLaughlin's criminal malpractice claim

against Volzer and the firm Shaughnessy, Volzer & Gagner, P.C.,

and was entered into pursuant to Code § 8.01-35.1.

Approximately four months after Shevlin Smith executed the

Release Agreement, this Court issued its opinion in Cox v.

Geary, 271 Va. 141, 624 S.E.2d 16 (2006). Based on one of the

holdings in that case, Volzer and the firm Shaughnessy, Volzer

& Gagner, P.C. filed a plea in bar to McLaughlin's criminal

malpractice claim. Volzer and the firm argued that

McLaughlin's criminal malpractice claim against them must be

dismissed because, under the rationale of Cox, the settlement

and release of some co-defendants to the legal malpractice

claim by way of the Release Agreement was a release of all co-

defendants. The trial court agreed, sustained Volzer's and the

firm's plea in bar, and dismissed McLaughlin's complaint

against those parties. This Court, by unpublished order,

affirmed the circuit court's judgment.

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C. The Legal Malpractice Matter

Unable to pursue his criminal malpractice claim,

McLaughlin filed a legal malpractice suit against Shevlin

Smith. McLaughlin's complaint alleged 13 discrete failures of

Shevlin Smith's legal representation in the criminal

malpractice matter, each constituting a different theory of how

Shevlin Smith breached its duty to McLaughlin. These theories

can be grouped into two categories. First, that Shevlin Smith

breached its duty to McLaughlin by failing to foresee how this

Court's holding in Cox would impact the Release Agreement.

Second, that Shevlin Smith breached its duty to McLaughlin by

failing to take various actions with respect to Graham, Schewe,

and the firm Graham & Schewe, and failing to fully advise

McLaughlin about the alternative of refusing the settlement and

continuing to proceed against Graham, Schewe, and the firm

Graham & Schewe.

McLaughlin's case eventually went to trial. At trial, a

legal malpractice plaintiff is required to prove how the

defendant attorney committed malpractice in the underlying

proceeding. Whitley v. Chamouris, 265 Va. 9, 11, 574 S.E.2d

251, 252-53 (2003). Additionally, if the alleged negligence

occurred in a criminal proceeding, the legal malpractice

plaintiff must prove post-conviction relief and innocence

entitling him to release. Taylor v. Davis, 265 Va. 187, 191,

5
576 S.E.2d 445, 447 (2003); Adkins v. Dixon, 253 Va. 275, 281-

82, 482 S.E.2d 797, 801-02 (1997). Pursuant to these

principles, after hearing testimony and considering the

evidence, the jury found Shevlin Smith liable to McLaughlin and

awarded judgment in the amount of $5.75 million. Shevlin Smith

timely filed a petition for appeal with this Court. We granted

Shevlin Smith's eight assignments of error and McLaughlin's

seven assignments of cross-error.

II. Discussion

A. Whether The Circuit Court Erred In Failing To Sustain
Shevlin Smith's Second Plea In Bar

Assignment of error 8 reads:

The circuit court erred in [failing to sustain Shevlin
Smith]'s second plea in bar, and by rejecting Shevlin
Smith's position that an attorney does not commit
malpractice, as a matter of law, by failing to
anticipate a change or shift in the law or by
exercising judgment on an unsettled point.

1. Standard Of Review

We apply a de novo standard of review when "[t]here are no

disputed facts relevant to the plea in bar and it presents a

pure question of law." David White Crane Serv. v. Howell, 282

Va. 323, 327, 714 S.E.2d 572, 575 (2011).

2. The Circuit Court's Refusal To Sustain The Plea In Bar Was
In Error

Shevlin Smith's second plea in bar argued that McLaughlin

was barred from recovering on his legal malpractice claim

6
because, as a matter of law, Shevlin Smith "did not breach the

prevailing standard of care and [its] actions are protected by

the judgmental immunity doctrine." McLaughlin countered that

the issue of Shevlin Smith's alleged breach was not one of law,

but one of fact, and therefore to be determined by a fact

finder. The circuit court denied Shevlin Smith's plea in bar

on two bases. Neither basis justified the court's action.

a. A Plea In Bar Can Be Sustained Even If It Only Presents A
Partial Bar To The Plaintiff's Recovery

The circuit court first reasoned that it could not sustain

the plea in bar because, even if Shevlin Smith was not

negligent by failing to correctly anticipate a judicial ruling

on an unsettled legal issue, such a conclusion would not

resolve all issues in the case because McLaughlin had alleged

additional theories of breach. This was error.

"A plea in bar asserts a single issue [of fact], which, if

proved, creates a bar to a plaintiff's recovery." Hawthorne v.

VanMarter, 279 Va. 566, 577, 692 S.E.2d 226, 233 (2010).

Usually, as a plea in bar "reduce[s] litigation to a distinct

issue of fact," the issue of fact asserted by the plea in bar

is dispositive as to the entire suit. Schmidt v. Household

Fin. Corp., II, 276 Va. 108, 116, 661 S.E.2d 834, 838 (2008)

(internal quotation marks, alterations, and citation omitted);

see also, e.g., Ferguson v. Stokes, 287 Va. 446, 450-52, 756

7
S.E.2d 455, 457-58 (2014) (statute of limitations); Weichert

Co. of Virginia v. First Commercial Bank, 246 Va. 108, 109, 431

S.E.2d 308, 308 (1993) (standing).

Although pleas in bar typically present a complete bar to

the plaintiff's recovery, we have recognized that a plea in bar

"constitutes [either] a complete defense to the [complaint], or

to that part of the [complaint] to which it is pleaded."

Campbell v. Johnson, 203 Va. 43, 47, 122 S.E.2d 907, 910 (1961)

(emphasis added) (internal quotation marks and citation

omitted). That is, a plea in bar can be sustained even if it

presents a bar to recovery to only some, but not all, of the

plaintiff's claims. Cf. Reynolds v. Cook, 83 Va. 817, 825, 3

S.E. 710, 715 (1887) (recognizing that a statute permitted a

plea in bar to an ejectment action "in whole or in part").

Shevlin Smith's plea in bar presented an issue of fact

that constituted a potential bar to some, but not all, of

McLaughlin's theories of how Shevlin Smith committed

malpractice – specifically, the theory that the inadvertent

release of Volzer and the firm Shaughnessy, Volzer & Gagner,

P.C. was negligent. Accordingly, the circuit court had the

ability to rule that, to the extent the issue of fact prevented

McLaughlin from pursuing certain theories of Shevlin Smith's

breach, the plea in bar presented a partial bar to McLaughlin's

recovery.

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 b. Acting In An Unsettled Area Of The Law

The second reason cited by the circuit court in denying

Shevlin Smith's second plea in bar was that it could not rule

as a matter of law on the issue, because whether Shevlin Smith

breached its duty to McLaughlin was a question of fact to be

decided by a jury. This, too, was error.

"A cause of action for legal malpractice requires the

existence of an attorney-client relationship which gave rise to

a duty, breach of that duty by the defendant attorney, and that

the damages claimed by the plaintiff client must have been

proximately caused by the defendant attorney's breach."

Shipman v. Kruck, 267 Va. 495, 501, 593 S.E.2d 319, 322 (2004)

(internal quotation marks and citation omitted). To establish

an attorney's breach of duty, "a client must show that the

attorney failed to exercise a reasonable degree of care, skill,

and dispatch in rendering the services for which the attorney

was employed." Ripper v. Bain, 253 Va. 197, 202-03, 482 S.E.2d

832, 835-36 (1997). This generally is a question of fact "to

be decided by a fact finder, after considering testimony of

expert witnesses," but must be "reserved for determination by a

court and cannot be the subject of expert testimony" if the

issue of a breach is a matter of law. Heyward & Lee Constr.

Co. v. Sands, Anderson, Marks & Miller, 249 Va. 54, 57, 453

S.E.2d 270, 272 (1995).

9
 We have previously held that, as a matter of law, an

attorney does not breach his duty to a client when that

attorney follows "well-established law" that is reversed by an

appellate court subsequent to the attorney's action. Id. at

59-60, 453 S.E.2d at 273. This appeal requires us to decide

the related issue of whether Shevlin Smith breached its duty to

McLaughlin by failing to correctly anticipate a judicial ruling

on an unsettled legal issue. 1 Shevlin Smith cites decisions of

courts in other jurisdictions that, when faced with this issue,

have applied what is sometimes termed the "judgmental immunity

rule." 2 See Sun Valley Potatoes, Inc. v. Rosholt, Robertson &

Tucker, Chtd., 981 P.2d 236, 239-40 & n.1 (Idaho 1999)

(collecting cases); Nelson v. Quarles & Brady, LLP, 997 N.E.2d

872, 882-83 & n.3 (Ill. App. Ct. 2013) (collecting cases). The

judgmental immunity concept purports to establish a clear

principle, that is, as a matter of law an attorney cannot be

liable "when [the attorney's] opinions are based on speculation

into an unsettled area of the law." Roberts v. Chimileski, 820

A.2d 995, 998 (Vt. 2003).

1
In his complaint, McLaughlin did not precisely frame his
theory of breach in this manner. But it is clear that several
of the alleged failures in Shevlin Smith's legal representation
amount to the claim that Shevlin Smith's breach was a failure
to foresee our decision in Cox as it applied to Code § 8.01-
35.1 and legal malpractice claims.
2
This principle is also referred to as an "attorney
judgment rule." See, e.g., Lifestar Response of Ala., Inc. v.
Admiral Ins. Co., 17 So.3d 200, 211 (Ala. 2009).

10
 Whether the principle actually operates to provide a

blanket rule of immunity has been questioned by some courts.

See Sun Valley Potatoes, 981 P.2d at 240. Other courts have

been more critical, inquiring whether the judgmental immunity

concept establishes a new substantive rule, and thereby

"sanction[s] some conduct that would otherwise be negligent,"

or instead simply restates the standard of care and is thus

"nothing more than a tautology." Harris Teeter, Inc. v. Moore

& Van Allen, PLLC, 701 S.E.2d 742, 756 (S.C. 2010) (Hearn, J.,

concurring in part and dissenting in part).

We decline to adopt a per se judgmental immunity doctrine

because it would not provide the clarity or utility it

promises. Nonetheless, the concerns animating such a rule are

present in the circumstances of this case. See Davis v.

Damrell, 174 Cal. Rptr. 257, 260-61 (Cal. Ct. App. 1981)

("[T]he failure [of an attorney] to anticipate correctly the

resolution of an unsettled legal principle does not constitute

culpable conduct[ because] the exercise of sound professional

judgment rests upon considerations of legal perception and not

prescience."). Allowing an attorney to be liable in

malpractice for simply failing to correctly predict the outcome

of an unsettled legal issue unduly burdens the practice of law,

which does a disservice to the profession, and hampers the

development of the law, which does a disservice to the public.

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 Other courts, even when declining to adopt a "rule" of

judgmental immunity, have recognized under traditional standard

of care principles that an attorney's reasonable but imperfect

judgment regarding an unsettled legal issue does not give rise

to liability. See, e.g., McIntire v. Lee, 816 A.2d 993, 1000

(N.H. 2003); Clark Cnty. Fire Dist. No. 5 v. Bullivant Houser

Bailey PC, 324 P.3d 743, 750-51 (Wash. Ct. App. 2014); see also

McMann v. Richardson, 397 U.S. 759, 771 (1970) ("[U]ncertainty

is inherent in predicting court decisions."). We, too,

recognize such a principle and hold that, if an attorney

exercises a "reasonable degree of care, skill, and dispatch"

while acting in an unsettled area of the law, which is to be

evaluated in the context of "the state of the law at the time"

of the alleged negligence, then the attorney does not breach

the duty owed to the client. Ripper, 253 Va. at 202-03, 482

S.E.2d at 835-36; Heyward & Lee, 249 Va. at 57, 453 S.E.2d at

272. And while this determination is ordinarily a question of

fact for a jury, it becomes an issue of law when "reasonable

minds could not differ" on the issue. Poliquin v. Daniels, 254

Va. 51, 57, 486 S.E.2d 530, 534 (1997); see also Heyward & Lee,

249 Va. at 57, 453 S.E.2d at 272.

Under these principles, as a matter of law, Shevlin Smith

did not breach its duty by failing to correctly anticipate a

judicial ruling on an unsettled legal issue. Before Shevlin

12
Smith executed the Release Agreement, the common law held that

"where there is one indivisible injury, for which settlement

has been consummated, unconditional release of [a co-defendant]

allegedly liable for the injury bars recovery against [other

co-defendants] also allegedly liable, regardless of the theory

upon which liability is predicated." Cauthorn v. British

Leyland, U.K., Ltd., 233 Va. 202, 207, 355 S.E.2d 306, 309

(1987). At the time the Release Agreement was executed in

2005, the General Assembly had modified this common law rule in

Code § 8.01-35.1 with respect to "tort-feasors," so that

settlement with and release of one co-tortfeasor did not

release other co-tortfeasors. 3 See former Code § 8.01-35.1

(2000 Repl. Vol.); Hayman v. Patio Products, Inc., 226 Va. 482,

485-88, 311 S.E.2d 752, 755-56 (1984).

Shevlin Smith executed the Release Agreement, believing

that it had released some but not all of the co-defendants to

McLaughlin's criminal malpractice claim by operation of Code

§ 8.01-35.1, under the theory that legal malpractice defendants

are "tort-feasors" as that term was used in Code § 8.01-35.1.

Approximately four months following entry of the Release

Agreement, however, this Court issued its opinion in Cox v.

Geary, 271 Va. 141, 624 S.E.2d 16 (2006). We held that Code

3
The General Assembly amended Code § 8.01-35.1 in 2007.
2007 Acts ch. 443. Code § 8.01-35.1 now applies to "persons
liable for the same injury to a person or property."

13
§ 8.01-35.1 did not apply to legal malpractice claims because

"although legal malpractice [claims] sound in tort, it is the

contract that gives rise to the duty," and thus a legal

malpractice defendant is not a tortfeasor as "[t]he cause of

action . . . is one for breach of contract." Id. at 152-53,

624 S.E.2d at 22-23 (internal quotation marks omitted).

At the time that the Release Agreement was executed, no

appellate court had addressed the issue of whether Code § 8.01-

35.1 governed legal malpractice claims. Thus, Shevlin Smith

was acting in an unsettled area of the law. But at that time

two lines of jurisprudence provided Shevlin Smith the necessary

basis to have executed the Release Agreement in accordance with

the "reasonable degree of care, skill, and dispatch" required

of an attorney operating in an unsettled area of the law.

Ripper, 253 Va. at 202-03, 482 S.E.2d at 835-36.

First, this Court had repeatedly stated that a legal

malpractice claim had strong tort law connotations, so that a

legal malpractice claim appeared to be a type of hybrid claim

straddling the line between tort and contract. See, e.g.,

MacLellan v. Throckmorton, 235 Va. 341, 343, 367 S.E.2d 720,

721 (1988); Oleyar v. Kerr, 217 Va. 88, 90, 225 S.E.2d 398, 400

(1976). Although a legal malpractice claim is predicated upon

breach of the duty created by the attorney-client contract,

Oleyar, 217 Va. at 90, 225 S.E.2d at 399-400, this Court had

14
favorably referenced a client's ability to bring a legal

malpractice claim as either a tort or contract claim. See,

e.g., MacLellan, 235 Va. at 343, 367 S.E.2d at 721; Goodstein

v. Weinberg, 219 Va. 105, 110, 245 S.E.2d 140, 143 (1978). And

this Court had described the substantive law applicable to

legal malpractice claims in tort terminology, thus suggesting

that a legal malpractice defendant was a type of tortfeasor.

See, e.g., Lyle, Siegel, Croshaw & Beale, P.C. v. Tidewater

Capital Corp., 249 Va. 426, 432, 457 S.E.2d 28, 32 (1995);

Campbell v. Bettius, 244 Va. 347, 352, 421 S.E.2d 433, 436

(1992); Spence v. Norfolk & W. R.R. Co., 92 Va. 102, 113, 22

S.E. 815, 817 (1895) (quoting Boorman v. Brown, (1842) 114 Eng.

Rep. 603 (Exch.) 608; 3 Q.B. 511, 525-26, later proceeding sub

nom. Brown v. Boorman, (1844) 8 Eng. Rep. 1003 (H.L.) 1007; 11

Cl. & Fin. 1, 11-12).

Second, this Court had previously read Code § 8.01-35.1

broadly in conformity with the statute's purpose to

"facilitate[] prompt settlement, payment, and discharge of

paying [tortfeasors] without releasing those non-paying joint

[tortfeasors] who prefer to have their liability determined in

litigation, with its attendant delays." Hayman, 226 Va. at

487, 311 S.E.2d at 756; see also, e.g., Tazewell Oil Co. v.

United Virginia Bank/Crestar Bank, 243 Va. 94, 106, 413 S.E.2d

611, 617 (1992). Additionally, we held that "the application

15
of Code § 8.01-35.1 is not limited to 'joint tort-feasors,' as

that term is narrowly defined." Thurston Metals & Supply Co.

v. Taylor, 230 Va. 475, 483, 339 S.E.2d 538, 543 (1986).

Combining these lines of jurisprudence existing at the

time Shevlin Smith executed the Release Agreement, Shevlin

Smith acted with the "reasonable degree of care, skill, and

dispatch" required of an attorney operating in an unsettled

area of the law, Ripper, 253 Va. at 202-03, 482 S.E.2d at 835-

36, even though this Court subsequently held that such a

release was not governed by the then-applicable version of Code

§ 8.01-35.1. Cox, 271 Va. at 152-53, 624 S.E.2d at 22-23.

Reasonable minds could not differ on this point. As a matter

of law, Shevlin Smith did not breach its duty to McLaughlin by

failing to correctly anticipate our holding in Cox.

3. Resolution Of This Issue And Disposition Of This Appeal

We reverse the circuit court's judgment in denying Shevlin

Smith's second plea in bar. That plea in bar should have been

sustained, thereby establishing the partial bar to McLaughlin's

recovery that Shevlin Smith was not liable in malpractice by

having failed to correctly anticipate how our decision in Cox

would affect the executed Release Agreement.

Even if the circuit court had not committed this error,

however, the entire case would not have been dismissed.

McLaughlin pled additional theories regarding how Shevlin Smith

16
breached its duty, unrelated to the failure to correctly

anticipate our holding in Cox. Shevlin Smith did not challenge

these other theories in a demurrer or plea in bar, and thus

McLaughlin could properly proceed to trial on them.

Specifically, the complaint alleged the following conduct

as additional breaches of Shevlin Smith's duty:

e. incorrectly pleading that [the firm Graham & Smith]
was a partnership law firm, when in fact it was a
trade name for a law firm owned solely by John Graham.
The Shevlin Defendants failed to advise [McLaughlin]
that because Schewe was actually an employee of
Graham, that Graham was personally vicariously liable
for damages to [McLaughlin] arising from breaches of
care in the malpractice case;

. . . .

g. failing to research and identify substantial
personal assets and funds of John Graham available for
collection in addition to his equity in real estate
located in Fairfax County, Virginia, including the law
office condominium . . . and other business interests
in Virginia Beach, as well as other interests in real
estate and business assets located in Virginia prior
to advising [McLaughlin] to execute the Settlement
Agreement and Joint Tortfeasor Release;

h. failing to inform [McLaughlin] that the
substantial, personally-owned assets of John Graham
would be attachable as a result of any potential
judgment against Schewe, Graham[, and the firm Graham
& Schewe], or that the Graham assets would be
available to a universal settlement;

i. failing to fully advise and inform [McLaughlin]
that the available resources from Graham and [the firm
Graham & Schewe] would include the future incomes to
be generated by Schewe and Graham individually, as
well as the accounts receivable of [the firm Graham &
Schewe];

17
 j. failing to advise [McLaughlin] that their
allegiance to John Graham and their personal
friendships with Graham provided a basis for excluding
him from the [legal malpractice] complaint and
precluded their exercise of independent judgment on
behalf of [McLaughlin] thereby constituting a conflict
of interest, which was not fully appreciated,
explained nor disclosed to [McLaughlin], to the degree
that they could not independently and zealously
represent [McLaughlin] and achieve his goal of
maximizing his recovery for his damages and losses
which greatly exceeded the amount of settlement[.]

In accordance with these pleadings, after the close of

evidence the circuit court held that McLaughlin was permitted

to argue to the jury that Shevlin Smith's failure to advise

McLaughlin about Graham was a basis to find that Shevlin Smith

breached its duty to McLaughlin. As this holding has not been

assigned error, it is the law of the case. Maine v. Adams, 277

Va. 230, 242, 672 S.E.2d 862, 868-69 (2009). 4 Thus, even if

Shevlin Smith's plea in bar had been sustained, McLaughlin's

case would have been submitted to the jury on a viable theory

of breach not relating to Shevlin Smith's failure to correctly

anticipate a judicial ruling.

Nevertheless, the jury was incorrectly permitted to find

Shevlin Smith negligent on the evidence introduced at trial

4
McLaughlin also pled that Shevlin Smith breached its duty
by "failing to sue John Graham individually, as the sole owner
of [the firm Graham & Schewe]." The circuit court held that
McLaughlin was prohibited from arguing to the jury that this
constituted a breach of Shevlin Smith's duty to McLaughlin. As
this holding has not been assigned as error, it too is the law
of the case. Maine, 277 Va. at 242, 672 S.E.2d at 868-69.

18
supporting the theory that Shevlin Smith breached its duty by

failing to correctly anticipate our holding in Cox, and it is

impossible to know upon which theory of breach the jury awarded

judgment in favor of McLaughlin. We therefore reverse the

circuit court's order affirming the jury's award finding

Shevlin Smith liable to McLaughlin, and vacate that award. See

Exxon Mobil Corp. v. Minton, 285 Va. 115, 132-33, 737 S.E.2d

16, 28 (2013).

As this leaves McLaughlin's viable theories of Shevlin

Smith's breach subject to retrial on remand, we will address

additional issues presented to us on appeal that "probably will

arise upon remand." Velocity Express Mid-Atlantic, Inc. v.

Hugen, 266 Va. 188, 203, 585 S.E.2d 557, 566 (2003).

B. Damages Recoverable In A Legal Malpractice Claim: The
Collectibility Of A Claim Lost Because Of Malpractice

Assignment of error 3 reads:

The circuit court erred in permitting [McLaughlin] to
recover more in this action than he could have
collected from [Schewe, Volzer, and their respective
law firms] in the absence of Shevlin Smith's alleged
malpractice.

A. The court erred in ruling that Virginia does not
recognize "collect[i]bility" as an element of legal
malpractice cases.

B. The court erred in refusing to order a new trial or
remittitur because [McLaughlin] did not carry his
evidentiary burden of showing he could have collected
the $5.75 million verdict amount from [Schewe, Volzer,
and their respective law firms] but for the alleged
malpractice of Shevlin Smith.

19
 Assignment of error 4 reads:

The circuit court erred in failing to provide jury
instructions that explained "collect[i]bility" and/or
that proximate cause for damages in this trial
required a showing that McLaughlin could have
prevailed against and recovered damages from [Schewe,
Volzer, and their respective law firms] but for
Shevlin Smith's alleged malpractice.

A. The court erred in giving Instruction 8-2A which is
unclear and fails to prevent [McLaughlin] from
recovering more in this action than he could have
collected from [Schewe, Volzer, and their respective
law firms] in the absence of Shevlin Smith's alleged
malpractice.

B. The court further erred in refusing Instructions C-
1, C-2 and C-3.

1. Standard Of Review

Whether a factual issue constitutes a prima facie element

of a claim, or is an affirmative defense, is a question of law

reviewed de novo. See New Dimensions, Inc. v. Tarquini, 286

Va. 28, 33, 743 S.E.2d 267, 269 (2013); Seyfarth, Shaw,

Fairweather & Geraldson v. Lake Fairfax Seven Ltd. P'ship, 253

Va. 93, 96, 480 S.E.2d 471, 473 (1997) (undertaking a de novo

analysis to establish an element of an attorney's prima facie

case "to recover legal fees from a present or former client").

2. Collectibility Is Relevant To Legal Malpractice Claims

In considering Shevlin Smith's motion for remittitur and

for a new trial, the circuit court held that "collectibility"

is not probative of the correct measure of a legal malpractice

plaintiff's damages. This was error.

20
 "There is no single measure of damages in a legal

malpractice case, and, generally, the appropriate measure must

be determined by the facts and circumstances of each case."

Lyle, 249 Va. at 435, 457 S.E.2d at 33. Collectibility is

implicated when the injury claimed by the legal malpractice

plaintiff is the loss of an otherwise viable claim. That is,

collectibility limits the measure of the legal malpractice

plaintiff's damages to how much the legal malpractice plaintiff

could have actually recovered from the defendant in the

underlying litigation absent the attorney's negligence, not

simply to the face value of the lost claim. McLaughlin

contends that collectibility is irrelevant to legal malpractice

claims. We disagree.

"[For] a legal malpractice [claim], the fact of negligence

alone is insufficient to support a recovery of damages. The

client must prove that the attorney's negligence proximately

caused the damages claimed." Campbell, 244 Va. at 352, 421

S.E.2d at 436. Moreover, "[a]n attorney is liable only for

actual injury to his client and damages will be calculated on

the basis of the value of what is lost by the client." Duvall,

Blackburn, Hale & Downey v. Siddiqui, 243 Va. 494, 497, 416

S.E.2d 448, 450 (1992).

Consequently, collectibility is relevant because a legal

malpractice plaintiff's damages for a lost claim can only be

21
measured by the amount that could have actually been collected

from the defendant in the underlying action in the absence of

the attorney's negligence. Entry of judgment against the

defendant in the underlying claim does not guarantee collection

of the entire award. Instead, successfully prosecuting a claim

to judgment is only half of the marathon that is redressing an

injury in our judicial system. Once armed with a judgment, a

plaintiff then has 20 years to collect that award under Code

§ 8.01-251(A), 5 which can be frustrated by a number of factors.

And if the legal malpractice plaintiff would have been unable

to collect the full value of his judgment awarded in the

underlying litigation for any reason other than the attorney's

negligence, then the difference between the hypothetical

judgment award and the diminished value of what could have been

collected is not an injury proximately caused by the attorney's

negligence. Such a loss is not recoverable in a legal

malpractice claim. See Staples v. Staples, 85 Va. 76, 85, 7

S.E. 199, 203 (1888).

Although we hold that collectibility is relevant to legal

malpractice claims, it is not an element of a legal malpractice

plaintiff's prima facie case. We have held that a legal

malpractice plaintiff bears the "evidentiary burden" to prove

5
The 20 years to issue an execution or bring an action on
a judgment may be extended for successive 20 year periods if
appropriate steps are taken. Code § 8.01-251(B).

22
the value of his lost claim, that he would have prevailed at

trial on that claim, and the amount he would have been awarded

by the fact finder on that claim. Campbell, 244 Va. at 352-53,

421 S.E.2d at 436-37; see Williams v. Joynes, 278 Va. 57, 62,

677 S.E.2d 261, 264 (2009). But we do not place the burden on

a legal malpractice plaintiff to also prove the value of the

underlying judgment that he would have been able to collect

absent the attorney's negligence.

In reaching this conclusion, we recognize a split among

the states. Some courts "conclude that the burden is more

properly placed on the [legal malpractice] plaintiff to prove

the amount she would have actually collected from the original

[defendant] as an element of her malpractice claim," as this

position "is more consistent with a plaintiff's burden of proof

in negligence actions generally." Klump v. Duffus, 71 F.3d

1368, 1374 (7th Cir. 1995) (applying Illinois state law). In

addition to Illinois, courts in California, Florida, Georgia,

Iowa, Massachusetts, Nebraska, New York, North Carolina, Ohio,

South Dakota, and Texas have adopted this position. See

DiPalma v. Seldman, 33 Cal. Rptr.2d 219, 223 (Cal. Ct. App.

1994); Fernandes v. Barrs, 641 So. 2d 1371, 1376 (Fla. Dist.

Ct. App. 1994); McDow v. Dixon, 226 S.E.2d 145, 147-48 (Ga. Ct.

App. 1976); Whiteaker v. State, 382 N.W.2d 112, 115 (Iowa

1986); Jernigan v. Giard, 500 N.E.2d 806, 807 (Mass. 1986); Eno

23
v. Watkins, 429 N.W.2d 371, 372-73 (Neb. 1988); McKenna v.

Forsyth & Forsyth, 720 N.Y.S.2d 654, 657-58 (N.Y. App. Div.

2001); Rorrer v. Cooke, 329 S.E.2d 355, 369 (N.C. 1985);

Paterek v. Petersen & Ibold, 890 N.E.2d 316, 321 (Ohio 2008);

Haberer v. Rice, 511 N.W.2d 279, 285 (S.D. 1994); Akin, Gump,

Strauss, Hauer & Feld, L.L.P. v. National Dev. & Research

Corp., 299 S.W.3d 106, 112 (Tex. 2009).

Today, however, we join the "growing trend" to place the

burden of pleading and disproving collectibility on the

negligent attorney as an affirmative defense. Schmidt v.

Coogan, 335 P.3d 424, 426 (Wash. 2014). It is unfair to

presume that a silent record means that a judgment is

uncollectible, particularly when, as in Virginia, the law

allows for judgments to be collected over a long period of

time. Id. at 428-29. Moreover, the negligent attorney is in a

better position to bear the burden of proving uncollectibility.

Id. And, finally, it is more equitable to have the attorney

disprove the collectibility of a judgment, as collectibility

becomes relevant only after a legal malpractice plaintiff

proves a prima facie case establishing malpractice. Id. In

addition to Washington, we join the company of courts in

Alaska, the District of Columbia, Indiana, Maine, Michigan, New

Hampshire, New Jersey, Oregon, and Pennsylvania, all of which

have endorsed this position. Power Constructors v. Taylor &

24
Hintze, 960 P.2d 20, 31 (Alaska 1998); Smith v. Haden, 868 F.

Supp. 1, 2 (D.D.C. 1994); Clary v. Lite Machs. Corp., 850

N.E.2d 423, 440 (Ind. Ct. App. 2006); Jourdain v. Dineen, 527

A.2d 1304, 1306 (Me. 1987); Teodorescu v. Bushnell, Gage,

Reizen & Byington, 506 N.W.2d 275, 278 (Mich. Ct. App. 1993);

Carbone v. Tierney, 864 A.2d 308, 319 (N.H. 2004); Hoppe v.

Ranzini, 385 A.2d 913, 920 (N.J. Super. Ct. App. Div. 1978);

Ridenour v. Lewis, 854 P.2d 1005, 1006 (Or. Ct. App. 1993);

Kituskie v. Corbman, 714 A.2d 1027, 1032 (Pa. 1998).

C. Damages Recoverable In A Legal Malpractice Claim: Non-
Pecuniary, Non-Economic Damages Such As Pain And Suffering

Assignment of cross-error 3 reads:

The [circuit] court erred as a matter of law when it
determined that non-economic damages were unavailable
to McLaughlin.

Assignment of cross-error 4 reads:

The [circuit] court erred as a matter of law in ruling
that pain and suffering is not available in a contract
action.

Assignment of cross-error 6 reads:

The [circuit] court erred as a matter of law in ruling
that wrongful incarceration damages are not available
in a legal malpractice [claim].

1. Standard Of Review

The types of injuries for which damages are recoverable in

a legal malpractice claim is a question of law reviewed de

novo. See Sanford v. Ware, 191 Va. 43, 47-51, 60 S.E.2d 10,

25
12-14 (1950) (providing a de novo analysis of whether non-

pecuniary damages were recoverable in a particular tort claim).

2. Non-Pecuniary Damages Are Not Recoverable In Legal
Malpractice Claims

The circuit court held that McLaughlin could not recover

damages in the form of pain and suffering, and left unresolved

whether McLaughlin could recover damages in the form of

wrongful incarceration. This was not error.

"Every attorney" is liable for "any damage sustained by

the client" because of the attorney's negligence. Code § 54.1-

3906 (emphasis added). "The word 'any,' like other

unrestrictive modifiers[,] is generally considered to apply

without limitation" unless the context indicates otherwise.

Sussex Cmty. Servs. Ass'n v. Virginia Soc'y for Mentally

Retarded Children, Inc., 251 Va. 240, 243, 467 S.E.2d 468, 469

(1996). In this case, the context in which the General

Assembly directs damages to be awarded – a legal malpractice

claim - requires a restricted understanding of the term "any"

so that it does not apply without limitation.

Specifically, the duty that an attorney must "exercise a

reasonable degree of care, skill, and dispatch in rendering the

services for which the attorney was employed," Ripper, 253 Va.

at 202-03, 482 S.E.2d at 836, does not arise in tort, but is an

"[i]mplicit" duty arising from the attorney-client "contractual

26
relationship" so as to be a "contractually implied." Cox, 271

Va. at 152, 624 S.E.2d at 22 (internal quotation marks

omitted). Thus, the "any damage" to be recovered by operation

of Code § 54.1-3906 in the event of an attorney's breach of his

contractually implied duties is necessarily any contract

damage, because the legal malpractice cause of action "is one

for breach of contract." Id. For example, although the

attorney's contractually implied duties "employ tort concepts,"

the contractual nature of the cause of action defines the

recoverable damages so that "punitive damages may not be

awarded" in a legal malpractice claim "in the absence of an

independent, willful tort giving rise to such damages."

O'Connell v. Bean, 263 Va. 176, 180-81, 556 S.E.2d 741, 743

(2002).

The question of what damages are recoverable in a legal

malpractice claim is therefore governed by our law pertaining

to what damages are recoverable in a breach of contract claim.

A breach of contract claim seeks to "compensate [the plaintiff]

for losses suffered as a result of a breach of duties assumed

only by agreement." Sensenbrenner v. Rust, Orling & Neale,

Architects, Inc., 236 Va. 419, 425, 374 S.E.2d 55, 58 (1988).

Damages in a breach of contract claim, unlike those recoverable

in a tort claim, "are subject to the overriding principle of

compensation" so that contract damages "are limited to those

27
losses which are reasonably foreseeable when the contract is

made." Kamlar Corp. v. Haley, 224 Va. 699, 706, 299 S.E.2d

514, 517 (1983). Regardless of the foreseeability of non-

pecuniary injury incident to a breach of contract, however,

"[a]s a general rule, damages for breach of contracts are

limited to the pecuniary loss sustained." Sunrise Continuing

Care, LLC v. Wright, 277 Va. 148, 156, 671 S.E.2d 132, 136

(2009) (emphasis added) (internal quotation marks and citation

omitted).

That is, regardless of how foreseeable non-pecuniary loss

flowing from a contractual breach may be, such non-pecuniary

injury is not recoverable in a breach of contract claim. See

Joseph M. Perillo, 11-59 Corbin on Contracts § 59.1 (Joseph M.

Perillo ed., rev. ed. 2014) (recognizing that, although some

courts make this holding based on the remoteness of non-

pecuniary damages, "it seems apparent that most courts have

forged 'a rule of policy defining the limits of business

risk.'"). To this end, we have previously held that the non-

pecuniary damages of "humiliation or injury to feelings are not

recoverable in an action for breach of contract." Isle of

Wight Cnty. v. Nogiec, 281 Va. 140, 148, 704 S.E.2d 83, 86

(2011) (internal quotation marks and citation omitted). The

"rule," then, is clear: "tort damages" - including non-

pecuniary damages such as mental anguish, emotional distress,

28
and humiliation - "are not recoverable for breach of contract."

Id. at 149, 704 S.E.2d at 87; see also Sea-Land Service, Inc.

v. O'Neal, 224 Va. 343, 353-54, 297 S.E.2d 647, 653 (1982). As

this principle holds true for all non-pecuniary, non-economic

injury caused by the attorney's malpractice, such loss is not

recoverable as damages in a legal malpractice claim. A legal

malpractice plaintiff may recover only pecuniary damages

proximately caused by an attorney's breach of the contractually

implied duties. 6

McLaughlin fails to convince us otherwise. While the

"general rule" against recovering non-pecuniary damages in

6
Today we join New York in categorically barring the
recovery of non-pecuniary damages in a legal malpractice claim.
See Dombrowski v. Bulson, 971 N.E.2d 338, 340-41 (N.Y. 2012).
Having already barred such damages when the legal malpractice
occurred in a civil case, the Court of Appeals of New York
relied solely on policy considerations to prohibit the recovery
of non-pecuniary damages when the legal malpractice occurred in
a criminal matter:
Allowing this type of recovery would have, at best,
negative and, at worst, devastating consequences for
the criminal justice system. Most significantly, such
a ruling could have a chilling effect on the
willingness of the already strapped defense bar to
represent indigent accused. Further, it would put
attorneys in the position of having an incentive not
to participate in post-conviction efforts to overturn
wrongful convictions.
Id. We also note that many states do allow non-pecuniary
damages to be recovered in a legal malpractice claim, at least
in some circumstances, but there is wide disagreement over the
particular circumstances and justifications allowing for such a
recovery. See Miranda v. Said, 836 N.W.2d 8, 25-27 & n.12
(Iowa 2013) (collecting cases); Vincent v. DeVries, 72 A.3d
886, 893-95 & n.3 (Vt. 2013) (collecting cases).

29
breach of contract claims does have an exception, it relates

only to whether punitive damages are available. See Wright v.

Everett, 197 Va. 608, 615, 90 S.E.2d 855, 860 (1956) (quoting

15 Am. Jur. Damages § 273, at 708-09 (1938)).

Moreover, the distinction between direct and consequential

damages does not relate to whether the loss to be recovered is

pecuniary or non-pecuniary, as McLaughlin argues, but instead

to how naturally occurring (direct) or not-ordinarily-

predictable but still contemplated (consequential) the claimed

pecuniary damage actually is. See Roanoke Hosp. Assoc. v.

Doyle & Russell, Inc., 215 Va. 796, 801-02, 214 S.E.2d 155, 160

(1975). McLaughlin's argument appears to overlap with the

Restatement's directive that "[r]ecovery for emotional

disturbance will be excluded unless the breach also caused

bodily harm or the contract or the breach is of such a kind

that serious emotional disturbance was a particularly likely

result." Restatement (Second) of Contracts § 353 (1981)

(emphasis added). But we have never adopted this principle for

breach of contract claims generally, and decline to do so today

to create an exception for legal malpractice claims

specifically.

Finally, McLaughlin notes that we have previously

recognized that "wrongful incarceration" is the "injury

suffered" from "legal malpractice arising out of the defense of

30
a criminal charge." Cox, 271 Va. at 149, 624 S.E.2d at 20.

This remains a true statement of law and fact. We do not deny

that wrongful incarceration, and its accompanying pecuniary and

non-pecuniary injuries, are types of losses actually sustained

by some legal malpractice plaintiffs. But what Cox did not

address, and what we decide today, is whether non-pecuniary

damages are recoverable in a legal malpractice claim. They are

not. However, such non-pecuniary injuries are still

compensable and may be recovered from the Commonwealth itself,

upon an act of legislative grace, if the General Assembly

passes an Act for the relief of the wrongfully incarcerated

individual. E.g., id. at 145-46, 624 S.E.2d at 18. 7

D. Calculating McLaughlin's Pecuniary Damages

Assignment of cross-error 7 reads:

The [circuit] court erred in excluding from the damage
calculation the time McLaughlin was incarcerated for
an escape attempt.

1. Standard Of Review

Determining whether particular injuries suffered by a

legal malpractice plaintiff are recoverable in a legal

7
Code § 8.01-195.11 establishes for what injuries the
General Assembly may compensate certain wrongfully incarcerated
individuals, but does not list non-pecuniary damages. However,
the General Assembly notes that this provision only "provide[s]
directions and guidelines for the compensation of persons who
have been wrongfully incarcerated." Code § 8.01-195.10. It
remains the General Assembly's prerogative to decide whether to
compensate a wrongfully incarcerated individual for non-
pecuniary loss.

31
malpractice claim is a question of law reviewed de novo. Crump

v. Ficklin, 1 Patton & Heath 201, 205, 1855 Va. LEXIS 80, at

*7-8 (Special Ct. App. 1855) (providing a de novo analysis of

the "proper measure of damages" that may be awarded for a

particular claim).

2. McLaughlin Was Properly Denied The Ability To Recover
Injuries Caused By His Criminal Escape Conviction

The circuit court ordered that McLaughlin could not

recover any lost income while he was incarcerated for his

criminal escape conviction. McLaughlin assigns error to this

limitation on his recoverable damages on two bases. Neither

reason requires us to find that the circuit court erred.

First, McLaughlin argues that the Virginia State Bar did

not explicitly set forth in any documentation that his bar

license revocation was connected to the attempted escape. It

is unclear how this argument is relevant to the circuit court's

ruling. Regardless of why McLaughlin lost his bar license,

McLaughlin was still incarcerated for the criminal escape

conviction and was thus unable to make any income during that

time period, from legal services or otherwise. In any event,

the Virginia State Bar issued a show cause order to McLaughlin

based upon his escape conviction, and McLaughlin voluntarily

surrendered his license before the State Bar could take further

action. This record was sufficient to warrant the circuit

32
court's holding that McLaughlin's criminal escape conviction

caused the surrender of his law license.

Second, McLaughlin argues that he would not have attempted

escape, and therefore would not have been convicted for

criminal escape or had his law license revoked, but for his

wrongful incarceration resulting from his attorneys'

malpractice in the criminal matter. But the injuries which

arose because of McLaughlin's criminal escape conviction, which

itself occurred after his attorneys' legal malpractice, are not

attributable to his attorneys' legal malpractice. As the

circuit court correctly observed:

You simply can't blame the criminal lawyers for the
decision made by Mr. McLaughlin to [run] out of the
courthouse when he had no right to do so. That was
his – an act of his own free will which was not – it's
completely separate . . . from the acts of malpractice
committed by [McLaughlin's] criminal lawyers and he
has to take the consequences for that.

Phrased differently, McLaughlin's criminal escape

conviction was an "intervening act" that broke "the chain of

causal connection between [the attorneys'] original act of

negligence and subsequent injury." Noakes v. Commonwealth, 280

Va. 338, 348, 699 S.E.2d 284, 290 (2010) (internal quotation

marks omitted). McLaughlin's criminal escape conviction was

neither "reasonably foreseeable" at the time of the legal

malpractice, nor was it "put into operation by the [attorneys']

negligent acts." Id. at 348-49, 699 S.E.2d at 290 (internal

33
quotation marks and citation omitted). McLaughlin's criminal

escape conviction was therefore a "superseding cause" which

"constitute[d] a new effective cause and operate[d]

independently of any other act, making it and it only the

proximate cause of the injury" of lost wages for the time

McLaughlin spent incarcerated for that conviction. Kellermann

v. McDonough, 278 Va. 478, 494, 684 S.E.2d 786, 794 (2009)

(internal quotation marks and citation omitted).

E. McLaughlin's Opening Statement And Closing Argument

Assignment of error 2 reads:

The circuit court erred in allowing [McLaughlin] to
ask for millions more in damages than his ad damnum
[clause] during both opening statement and closing
argument; permitting the excessive request was also
error where the massive sum requested was not grounded
in the pleadings or evidence and violated Va. Code
§ 8.01-379.1

1. Standard Of Review

The "determinations regarding the propriety of argument by

trial counsel are matters left to the sound discretion of the

circuit court." Wakole v. Barber, 283 Va. 488, 492, 722 S.E.2d

238, 240 (2012) (internal quotation marks and citation

omitted). "We will not reverse a circuit court's ruling unless

such ruling was an abuse of discretion and the rights of the

complaining litigant have been prejudiced." Id.

34
2. Awards Exceeding The Ad Damnum Clause May Not Be Requested

As pled in his legal malpractice complaint, McLaughlin's

ad damnum clause alleged $6 million in damages. Despite this

figure as pled and the circuit court's denial of McLaughlin's

request to amend that ad damnum clause, McLaughlin's counsel

requested approximately $10 million in damages from the jury in

both his opening statement and closing argument. However, the

circuit court overruled Shevlin Smith's objections to

McLaughlin's $10 million request. This was error.

The General Assembly permits "any party in any civil

action [to] inform the jury of the amount of damages sought by

the plaintiff in the opening statement or closing argument, or

both." Code § 8.01-379.1. Pursuant to this authority, a

plaintiff has the power to request from the fact finder either

"one lump sum [or] a specific amount for each element of

damages sought as long as there is evidence in the record to

support each element of damages claimed and the total requested

is no more than the ad damnum." Wakole, 283 Va. at 494, 722

S.E.2d at 241 (emphasis added).

Accordingly, a plaintiff may not request from the jury, in

either opening statement or closing argument, an amount of

damages that exceeds the amount of the plaintiff's ad damnum.

Allowing such an improper statement as to the award's value may

mislead the fact finder by skewing upwards, at the outset of

35
the trial and immediately before the award is to be determined,

the legally permissible range of an award. Such a tactic

contravenes the attorney's obligation to "be just to opposing

litigants" in his arguments. Atlantic Coast Realty Co. v.

Robertson, 135 Va. 247, 263, 116 S.E. 476, 581 (1923) ("[An

attorney] has no right . . . to urge a decision which is

favorable to his client by arousing sympathy, exciting

prejudice, or upon any ground which is illegal."). The circuit

court committed a clear error of judgment in holding otherwise.

III. Conclusion

We reverse the circuit court's denial of Shevlin Smith's

second plea in bar, reverse the circuit court's order affirming

the jury award, vacate the jury award, and remand this case to

the circuit court for further proceedings consistent with this

opinion. 8

Reversed, vacated, and remanded.

8
We do not address the remaining assignments of error and
cross-error. At least one issue they implicate will not likely
arise upon remand, that is, whether it was error to allow the
jury to review judicial opinions in determining Shevlin Smith's
breach. Other issues that may arise upon remand may be
informed by different pre-trial considerations or facts
introduced at trial that are not before us. These issues
include whether amendment of McLaughlin's ad damnum clause
should be allowed, the propriety of McLaughlin's expert
testifying as to damages, and whether Shevlin Smith's motion
for remittitur and new trial should have been granted. We
express no opinion on these issues.

36
JUSTICE McCLANAHAN, concurring in part and dissenting in part.

I concur in the Court's opinion in all respects except for

its holding that a legal malpractice plaintiff alleging the

loss of a viable claim is not required to prove the

collectibility of any judgment he would have obtained on the

underlying lost claim. In placing the burden on the attorney

defendant to prove the uncollectibility of any judgment a

plaintiff would have obtained in the underlying litigation, the

majority has relieved the legal malpractice plaintiff of the

burden of proving the actual injury proximately caused by the

defendant's malpractice.

As the majority acknowledges, "[a]n attorney is liable

only for the actual injury to his client and damages will be

calculated on the basis of the value of what is lost by the

client." Duvall, Blackburn, Hale & Downey v. Siddiqui, 243 Va.

494, 497, 416 S.E.2d 448, 450 (1992) (emphasis added). We have

long held that it is the plaintiff's burden to prove the actual

injury sustained as a result of the attorney's malpractice,

including the collectibility of a lost claim. Staples v.

Staples, 85 Va. 76, 85, 7 S.E. 199, 203 (1888) ("[T]he extent

of the damages sustained by the complainant must be

affirmatively shown"). Thus, "when a debt is alleged to have

been lost by the attorney's negligence, it must be shown that
it was a subsisting debt, and that the debtor was solvent."

Id.; see also Hendrix v. Daugherty, 249 Va. 540, 544-47, 457

S.E.2d 71, 74-76 (1995) (plaintiffs must prove damages measured

by what they could have recovered in the underlying action);

Campbell v. Bettius, 244 Va. 347, 352, 421 S.E.2d 433, 436

(1992) (plaintiffs' "evidentiary burden [in legal malpractice

action] was to show what they would have recovered" if their

attorney had not committed malpractice). 1

Because a plaintiff is required under Virginia law to

prove the actual injury caused by an attorney's malpractice,

the collectibility of any judgment that a plaintiff would have

obtained in litigation of a lost claim necessarily defines the

measure of the plaintiff's damages. Proof that the plaintiff

would have obtained a specific judgment in the underlying lost

claim only establishes the loss caused by the underlying

1
The "essence" of the solvency requirement "is that the
malpractice plaintiff show that he could have recovered a
judgment in an amount which was collectible." McDow v. Dixon,
226 S.E.2d 145, 147 (Ga. Ct. App. 1976). Virginia's rule
placing the burden of collectibility upon the plaintiff is so
well-established that it has been cited as support by other
courts that have likewise placed the burden of collectibility
upon the plaintiff. See id. (citing, among other authorities,
Staples v. Staples, 85 Va. 76, 7 S.E. 199 (1888), for the
general rule placing the burden of collectibility on
plaintiff); Beeck v. Aquaslide 'N' Dive Corp., 350 N.W.2d 149,
160 (Iowa 1984) (same; collecting cases, and calling this “the
rule that is applied generally”); Jernigan v. Giard, 500 N.E.2d
806, 807 (Mass. 1986) (same); Taylor Oil Co. v. Weisensee, 334
N.W.2d 27, 29-30 nn.2-3 (S.D. 1983) (same).

38
defendant; it does not establish the loss caused by the

attorney who represented the plaintiff in the underlying

litigation. For example, proof of the amount of the judgment

that McLaughlin would have obtained against his criminal

defense attorneys only establishes the loss to McLaughlin

resulting from the malpractice committed by his criminal

defense attorneys. This loss is distinct from the loss

sustained by McLaughlin resulting from the alleged malpractice

of Shevlin Smith. In order to prove the actual injury caused

by Shevlin Smith's alleged malpractice, McLaughlin would have

to prove the amount of the judgment that would have been

collectible from his criminal defense attorneys. Under the

rule announced by the Court today, however, a legal malpractice

plaintiff seeking damages for a lost claim is no longer

required to prove the actual injury caused by an attorney's

malpractice.

Other states that similarly require a legal malpractice

plaintiff to prove actual injury resulting from the attorney's

malpractice have imposed upon the plaintiff the burden of

proving the collectibility of a lost claim. "'As the general

measure is the loss "actually sustained," when the loss arises

from negligently prosecuting a prior case the client has the

burden of proving not only the amount of the judgment he would

have obtained but for the negligence, but also what he would

39
have collected.'" Eno v. Watkins, 429 N.W.2d 371, 372 (Neb.

1988) (quoting Pickens, Barnes & Abernathy v. Heasley, 328

N.W.2d 524, 526 (Iowa 1983)). This is so because

"collectibility is logically and inextricably linked to the

legal-malpractice plaintiff's damages, for which the plaintiff

bears the burden of proof. In proving what was lost, the

plaintiff must show what would have been gained." Paterek v.

Petersen & Ibold, 890 N.E.2d 316, 321 (Ohio 2008). Therefore,

a legal malpractice plaintiff "must prove that the attorney she

is suing has indeed injured her through neglecting to properly

handle a lawsuit that would have generated recompense. And her

injury is measured by what she actually would have collected."

Id. at 321-22. 2

2
See also Klump v. Duffus, 71 F.3d 1368, 1374 (7th Cir.
1995) (the "burden is more properly placed on the plaintiff to
prove the amount she would have actually collected from the
original tortfeasor as an element of her malpractice claim");
Garretson v. Miller, 121 Cal. Rptr.2d 317, 323 (Cal. Dist. Ct.
App. 2002) (legal malpractice plaintiff must prove that she
would have obtained favorable judgment and "that the underlying
judgment could have been collected"); Fernandes v. Barrs, 641
So.2d 1371, 1376 (Fla. Dist. Ct. App. 1994) (legal malpractice
plaintiff must "prove the collectibility of the judgment which
would have been obtained in the underlying action but for the
attorney's negligence, in order to establish the amount of
damages proximately caused by the negligence"); George v.
Caton, 600 P.2d 822, 830 (N.M. Ct. App. 1979) (legal
malpractice plaintiff has burden of proving the "degree of
collectibility of such judgment," which constitutes the "value
of the lost claim"); Rorrer v. Cooke, 329 S.E.2d 355, 361 (N.C.
1985) (in order to prove "that but for the attorney's
negligence plaintiff would not have suffered the loss," the
legal malpractice plaintiff must prove that "[t]he judgment

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 Accordingly, I dissent from that part of the Court's

opinion placing upon the legal malpractice defendant the burden

of proving the uncollectibility of any judgment the plaintiff

would have obtained on a lost claim. This Court should not

abandon the long-standing rule in Virginia that the plaintiff

bears the burden of proving the amount of actual injury caused

by the attorney's malpractice.

would have been collectible"); Haberer v. Rice, 511 N.W.2d 279,
285 (S.D. 1994) (legal malpractice plaintiff must prove he
"would not have only prevailed in the underlying claim but that
a judgment in the [plaintiff's] favor would have been
collectible"); Akin, Gump, Strauss, Hauer & Feld, L.L.P. v.
National Dev. and Research Corp., 299 S.W.3d 106, 112 (Tex.
2009) (legal malpractice plaintiff must prove amount of damages
that would have been collectible).

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