What does attorney malpractice have to do with "Dancing With The Stars?"

Let's talk emotional distress.

And legal malpractice, a topic that causes many lawyers a significant amount of emotional distress.

Can a client sue a lawyer for malpractice that causes emotional distress?

Wait, that's a stupid question; of course the client can sue for that.  "Anyone can sue anybody for anything anytime," a great legal scholar* (*me) once said.

That scholar** (**still me) went on to add that "...the question is whether you will win."

So let's rephrase:  can a client sue a lawyer for malpractice causing emotional distress... and win?

The answer is: yes.

But, you ought to be careful to avoid using the phrase "emotional distress."  That's a loaded term that gets courts up in a bundle about it, because the idea of emotional distress has long been distrusted by the law -- so distrusted that when a lawyer's breach of duty causes emotional harm, courts have sometimes been reluctant to allow a litigant to recover for that emotional harm.

Sometimes.  But that's changing.

Before getting to the case, think about this:  Malpractice is a tort, and a tort is a breach of duty.

Negligence, like malpractice, is also a tort.

If I negligently harm you, as a... driver... you can sue me for all the harm I caused.  Let's say I hit you with my car, break your leg, and you therefore cannot pursue your dreams of going on Dancing With The Stars.  The emotional harm you suffer is compensable: things like "loss of consortium" and the general struggles you deal with could be awarded by a jury, and not many people would argue with you that you could get that.

Now, if I negligently harm you, as a... lawyer... many lawyers (of course!) say "No, you can't go after emotional harm!"  Even if my harm is that because I lost your case, you can't go on Dancing With The Stars, etc., most lawyers and some courts find a way to say "well, that's different."

Different, how?

Different, not at all, say the courts who understand the law, like the Fourth District Court of Appeal, in California, which, in Tara Motors v. Superior Court, 276 Cal. Rptr. 603 (1991), considered whether an attorney who committed malpractice could be sued for economic and emotional harm.

And said yes.

(OH: SPOILER ALERT!)

Anyway, what happened was a woman's husband died shortly after she had a heart attack, leaving her (she alleged) particularly dependent on the advice of her lawyer in how to run the car dealership she now owned by inheritance -- and the woman, who also alleged that the lawyer knew she wouldn't want to get into a dispute with her kids -- had to fire her daughter, and did so.

The daughter then sued for wrongful termination and (presumably) won, because the woman then sued her lawyer for malpractice, alleging the lawyer had given her bad advice on how to legally fire her daughter.

The entirety of this appeal was whether the woman could get not just economic damages, but also emotional distress, for the harm suffered by her stress from being sued by her own daughter.

The Court of Appeals in California looked at the history of such claims, and in particular the suspicion with which courts had long viewed emotional distress damages, and said "Sure, why not?":

   Where, as here, an attorney has allegedly caused emotional distress, ⁶ we believe the existence of substantial economic loss, as well as the already circumscribed liability of attorneys, provides adequate safeguards against false claims and uninsurable risks. In particular, we note that in general attorneys may only be held liable to their clients. (See, e.g., Goodman v. Kennedy (1976) 18 Cal.3d 335, 342-345, 134 Cal.Rptr. 375, 556 P.2d 737; Weaver v. Superior Court (1979) 95 Cal.App.3d 166, 178-183, 156 Cal.Rptr. 745.) This limitation, although not without social cost, benefits the attorney by allowing him to limit the scope of his undertaking and accordingly his risk. The limitation assures the attorney will diligently represent his client's interests without undue concern about his own liability to third parties who might be injured by his negligence. (See Goodman v. Kennedy, supra, 18 Cal.3d at p. 344, 134 Cal.Rptr. 375, 556 P.2d 737.) Plainly, unlike other tortfeasors, attorneys already enjoy ample protection from the risks of unlimited liability. Where, in addition a plaintiff has alleged substantial economic losses, we believe a claim which is within the limitations required by Gruenberg and La Chusa has been stated.

 The concern, as noted, was that emotional distress harms are hard to disprove: it's easy to see when a plaintiff had a broken leg, and we can all understand that whatever your mental state of mind, a broken leg hurts and limits you.

Emotions are squishier subjects: maybe you are really upset by not getting to talk to your sister anymore, but I might not be so bent out of shape.  So courts have for decades (if not longer) struggled to limit fraudulent claims by imposing requirements: the activity had to be intentional, or it had to affect a substantial right, or it had to be against someone closely related to you, or the like.

But Tara Motors is part of a line of cases that recognizes that mental stress -- as I call it -- can be a valid claim in a variety of tort contexts, and imposes limits on fraudulent claims by requiring that there be substantial other damages: the "substantial economic loss" referred to is a proxy for the broken leg in a personal injury case: if a broken leg lets a jury conclude you are also sad about not getting to dance with Kirstie Alley, then a "substantial economic loss" lets a jury conclude you are also sad about the damage to your relationship with your daughter.

Wisconsin has already adopted the "substantial other injury" test to allow mental stress damages in tort contexts, including bad faith insurance claims, Anderson v. Continental Insurance Co., 85 Wis. 2d 675, 271 N.W.2d 368 (1978), and Estate of Plautz v. Time Ins. Co., 189 Wis. 2d 136, 159, 525 N.W.2d 342 (Ct. App. 1994); and in Bauer v. Murphy, 191 Wis. 2d 517, and has allowed recovery of mental health expenses even absent proof of substantial other injury, because the mental health costs themselves were provable, eliminating the concern over fraudulent claims. 

The prospect of opening the door to letting clients sue for emotional damages caused by an attorney losing their case is no doubt causing substantial injury to the emotional stability of many a bad lawyer out there.