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Topical look: emotional distress in legal malpractice lawsuit

Below is a fact pattern involving a litigant’s legal malpractice lawsuit filed in a state other than California. We pass along the key details involving the matter because we believe them to be materially and broadly relevant to any malpractice blog.

Any California resident who has ever felt acute frustration and flat-out angst after being adversely affected by substandard work delivered by an attorney retained to work on a legal matter will likely commiserate immediately with a plaintiff in Connecticut. She filed a legal malpractice complaint against a lawyer she had hired to represent her in a personal injury lawsuit.

Here’s why she was disgruntled, according to relevant court papers. Her attorney allegedly failed to answer discovery requests and didn’t’ even respond to a motion to compel. Owing to such failures, the court ultimately ruled against the plaintiff and she had to withdraw her litigation.

Unsurprisingly, she sued the nonperforming lawyer on multiple counts, including a count of negligent infliction of emotional distress.

The defense sought to strike that count, but the court refused, with that judicial action prompting a flurry of remarks from interested commentators.

One malpractice defense attorney says that the inclusion of a separate emotional distress claim in a malpractice action “is troubling because it gives disgruntled clients another type of claim against an attorney, and increases exposure for attorneys.”

A proponent of the ruling counters that, regardless of whether an emotional distress claim comprises a separate count in a lawsuit, it is still generally considered within the context of the litigation, anyway.

“Why shouldn’t a person be compensated for that kind of loss?” queries that commentator.

Indeed, an argument that a claim of emotional distress should potentially give rise to a remedy for a plaintiff in a given case would seem to command strong merit, whether it is presented as a formal count or not.

As one of the plaintiff’s lawyers noted following the court’s ruling, “If someone has a legitimate claim, they should be allowed to bring it.”

That just makes sense, with any argument to the contrary sounding very much like an effort to shield a wrongdoing attorney from legal liability and damages recoverable by a client who was harmed by negligent conduct.