WA Supreme Court - No Emotional Distress for Legal Mal Claims in this Case; Collectibility an Affirmative Defense (and practice tips)
Coogan blew a Statute of Limitation, filing against the wrong defendant just days before his Client’s statute of limitations ran. Naturally, Schmidt did not think this was awesome, and brought a suit for legal malpractice.
This brings us to practice tip number 1: Do not delay in filing your claims. Stuff happens, and you want to give yourself enough time to correct it if something goes wrong. My general rule is to plan for filing no later than 2 years after the claim arose. Obviously, sometimes the client comes to you late. However, most of the times I see these cases, it is the result of attorney lolligagging.
So in the suit, Schmidt could not find support as to whether or not emotional distress damages are available in the context of a legal malpractice claim. She sought to amend her complaint, and the trial court would not allow it. The Supreme Court affirmed, but said that it simply would not allow it in this case. This seems to suggest that emotional distress damages are not available to generalized malpractice clients, absent something more:
Having examined Washington law and explored the rule in other jurisdictions, we hold that emotional distress damages are available for attorney negligence when emotional distress is foreseeable due to the particularly egregious (or intentional) conduct of an attorney or the sensitive or personal nature of the representation. Here, the facts do not warrant damages for emotional distress. Schmidt experienced a pecuniary loss when Coogan negligently failed to perfect her personal injury lawsuit, and this lawsuit compensates her for that loss. Additionally, the subject matter of the litigation was not particularly sensitive: she did not lose her freedom and Coogan's actions were not egregious. Therefore, we affirm the trial court's rulings concerning the availability of general and emotional distress damages.
Finally, the Court looked to whether a Plaintiff needs to prove that the judgment was collectible. Rightly, they put it on the defendant attorney as an affirmative defense. However, and this is the interesting part, the Court noted that whether the judgment is collectible may be a breach of fiduciary duty to the client, who should have been told prior to the case going to trial, after all, the client is ultimately on the hook for expenses.
This brings us to practice tip number 2: If in a legal malpractice claim and the defendant raises the issue of lack of collectibility, the complaint should be amended to include both breach of fiduciary duty and negligent infliction of emotional distress. You should have been told about the non-collectibility, and to put you through additional cost and expense, as well as the hell of trial, is now on the lawyer. You weren’t given the information to make an informed choice.
Interestingly, the Court breakdown here has three justices (Charlie Wiggins, Chuck Johnson, and Sue Owens). So what did the concurrence say?
Well, Fairhurst would take this as a justiciability issue as to the affirmative defense - Coogan never truly raised the issue at the trial court, and you can’t argue now what you didn’t raise then. Thus, she would not have reached the confusion as far as whether collectibility needs to be affirmatively pleaded. However, she takes the opinion in the footnote that emotional distress is not available in this case, but does not expound on it. The concurrence was joined by McLeod, Jim Johnson as Pro Tem, and Madsen.
The dissent (written by Deb Stephens and signed also by Steve Gonzalez, would allow the Negligence Infliction of Emotional Distress Claims, and they agree with the lead opinion on the affirmative defense issue.
So that is, essentially, 7 justices for no NIED claims in a garden variety case, absent more (and dicta as to what more may be), and five justices that collectibility is an affirmative defense.