The TortsProf blog is reporting on a recent case from the Vermont Supreme Court reversing an award of damages for emotional distress in a legal malpractice case. However, the court did not hold categorically that emotional distress can't be recovered in a legal malpractice claim, but its conclusion is quite confusing:
"...Assuming without deciding that Vermont law follows the modern trend of allowing damages under certain circumstances for serious emotional distress in legal malpractice claims and that the evidence in this case could support a finding of sufficiently serious emotional anguish to support such a claim, we conclude that the subject of defendant’s representation of plaintiff was not of such a personal and emotional nature that it would support an exception to the general rule disallowing recovery of emotional distress damages in the absence of either physical impact or substantial bodily injury or sickness. In many ways, this case is less compelling than the loss-of-home cases cited above; plaintiff here did not lose his home but, rather, faced a threatened loss of his home which he ultimately avoided by settling the case. We do not mean to suggest that the anxiety associated with the threatened loss of one’s home cannot be profound. But in contrast to the loss of liberty or one’s child—very significant losses for which there may be no adequate measure of pecuniary damages, and in connection with which serious emotional distress can be readily expected—what plaintiff ultimately lost in this case was money. We consider plaintiff’s losses in this case to be economic, and reverse the trial court’s award of emotional distress damages to plaintiff."
So, explain this to me. The court seems to be saying a number of different things and it is not clear which is more important. For example, the court seems to say that there should be no recovery here because the emotional distress was not severe. If that is the case, that is all it needed to say, period... But it then goes on to talk about whether the representation was about a "personal" or "emotional" matter. Why would that be important? The question should be whether the plaintiff suffered the emotional distress he claims to have suffered and whether he can meet the elements of the cause of action. Then, as if that was not enough, the court seems to say that an emotional distress claim can't be based on a monetary injury.
None of this makes much sense to me. If the jurisdiction recognizes recovery of pain and suffering in cases of personal injury, then why not allow the recovery for emotional distress as long as the plaintiff can prove the elements of the cause of action?
As it is, however, it does not seem to me the plaintiff would be able to show the elements of the cause of action: there is no evidence that the distress was severe, and there was no "impact" nor a "near miss".