by John J. Tollefsen | Oct 13, 2014 | Blog, Torts WA
Teresa Schmidt v. Timothy P Coogan (WA SC, October 9, 2014) Decision: 141009-Schmidt-v-Coogan Emotional distress and collectability in legal malpractice cases Washington’s Supreme Court held that uncollectability of the underlying judgment is an affirmative defense in legal malpractice claims that must be proved by the attorney. The court also held that emotional distress can be an element of damages in certain legal malpractice cases. The reasoning on the limitation on emotional distress damages was not accepted by the dissent: STEPHENS, J. (dissenting) – The attorney-client relationship is vital to the functioning of our justice system. The lead opinion erodes the trust that is central to this relationship by erecting artificial barriers to a client’s ability to fully recover damages against a negligent attorney. Insisting that emotional distress damages require a showing that the attorney’s actions were “particularly egregious,” lead opinion at 14, the lead opinion discounts the special nature of the attorney-client relationship and relies on a faulty analogy between attorney malpractice claims and negligent infliction of emotional distress (NIED) claims involving strangers. It would make more sense to analogize attorney malpractice claims to tort claims in other fiduciary contexts more closely resembling the attorney-client relationship. Because such damages should be allowed, where proved, I respectfully dissent.1I agree with the lead opinion that collectability is an affirmative defense, not an element of every plaintiff-client’s case. Lead opinion at 4. This dissent addresses onlythe issue of emotional distress damages in attorney malpractice cases. The lead opinion begins its analysis by discussing claims between strangers and noting that historically, Washington courts were cautious to award emotional distress damages. Lead opinion at...
