Plaintiffs retained defendants David Kreitzer and Kreitzer & Vogelman to pursue an action for personal injuries. The suit was dismissed in 1992, after defendants failed to comply with a discovery order. However, Kreitzer continued until sometime in 1997 to represent to plaintiffs that the action was proceeding. Plaintiffs then brought an action for legal malpractice.

After plaintiffs rested their case at trial, defendants immediately moved for a dismissal on the ground that plaintiffs had not presented any evidence that a judgment in the underlying personal injury action could have been collected. The trial court denied plaintiffs’ motion to reopen the trial for the purpose of submitting proof on the issue of collectibility and granted defendant’s motion to dismiss.



The Supreme Court reversed, holding that the issue of collectibility is not an element of the plaintiffs' claim and the issue should be treated as a matter constituting an avoidance or mitigation of the consequences of the attorney’s malpractice, and the erring attorney should bear the inherent risks and uncertainties of proving it.