Massachusetts Victims of Legal Malpractice Get Emotional Distress Damages

Traditionally, victims of legal malpractice cannot get money damages for emotional distress. You are entitled to the damages you would have received had your lawyer not been negligent, the extent of the damages you can receive; the “reasonable and foreseeable losses” of the underlying case. See Fishman v. Brooks 396 Mass 643 (1986). That is, notwithstanding the stress you undergo after you find out your lawyer was negligent; you do not have any extra damages. There are, of course, possible exceptions to this rule. If the result of the malpractice was incarceration, false imprisonment, or being confined to a mental hospital as a result of the legal malpractice, there can be money damages against an attorney for emotional distress. For the full case, see Wagenmann v. Adams 829 F. 2d 196 (1987), in an extremely well written, and, frankly, entertaining decision, by Judge Selya, of the First Circuit.
In Massachusetts, to prove intentional infliction of emotional distress, we must show three things:

1. That the defendant knew or should have known his/her actions would cause emotional distress;
2. That the defendant’s conduct was “extreme and outrageous” such as “conduct so abhorrent that a civilized community simply cannot tolerate it.” See Agis v. Howard Johnson, 371 Mass 140 (1976);
3. That the result was that the plaintiff’s distress was “severe.” Typically, you need medical, or psychological, evidence to prove severity. See Simon v. Solomon, 385 Mass 91 (1982).
In a legal malpractice case against a divorce attorney, the Massachusetts Supreme Judicial Court found against the plaintiff’s emotional distress claims because of the attorney’s actions. See Meyer v. Wagner 429 Mass 410 (1999).