Louisiana Legislature adopts provision that affects a plaintiff's ability to recover in a legal malpractice action

 As reported in Louisiana Legal Ethics, last year, the Louisiana Legislature enacted La. Rev. Stat. 9:5605.2, which provides that "[i]n any action for damages by a client against an attorney, the client’s recovery against the attorney shall be limited to the amount of damages which the attorney shows by a preponderance of the evidence would have been the maximum amount of damages that the client could have collected in the client’s underlying action in which he was represented by the attorney."

The statute is unusual in that it switches the burden of proof to the defendant to prove the amount of the recoverable damages.  This should not be the case.  The burden should remain on the plaintiff.

The statute is a response to the Louisiana Supreme Court’s 2020 decision in Ewing v. Westport Insurance Corporation, 315 So. 3d 175 (La. 2020) in which the court held that “proof of collectibility of an underlying judgment is not an element necessary for a plaintiff to establish a claim for legal malpractice, nor can collectibility be asserted by an attorney as an affirmative defense in a legal malpractice action.”