Imagine how it would change the practice of litigation if lawyers could be held answerable for intentionally inflicting emotional distress on opponents, witnesses or third parties. Of course that’s not going to happen, since our legal profession is quite good at immunizing itself from exposure to liability for the same sorts of injuries that it sues over when inflicted by others. In this SSRN paper (via Robinette, TortsProf), Alex Long of the University of Tennessee proposes a presumption that lawyers’ behavior is “extreme and outrageous,” a precondition of IIED liability, if they could get disbarred for it.
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I once defended a malicious prosecution case brought by 2 lawyers against a doctor. The lawyers alleged they suffered emotional distress when they were served with the suit that was the foundation of the malicious prosecution claim. I imagined the jury falling out of their chair laughing. The case never got that far.
(Doctor sued for malpractice by lawyers on behalf of client. Malpractice case dismissed on summary judgment. Doctor sues lawyers. Appeals Court rules only client can be sued for malicious prosecution, not lawyers and dismissed Doctor’s suit, then lawyers sue doctor)
IIED is a claim by, for, and of lawyers. The 99% can’t afford a lawyer to file an IIED claim, and contingent fee lawyers like me won’t touch them because they never succeed and there’s no insurance coverage, but if you’re a lawyer or you’re in the 1%, then you can bring an IIED claim because the cost/benefit proposition is irrelevant to you.
I can’t imagine anything worse than adding IIED claims to lawyer’s conduct. You know what happens then? After every case is resolved, an inevitable IIED follow-up lawsuit is filed, so that every soft-tissue-injury car accident case turns into Jarndyce v. Jarndyce. Can you even imagine what would happen to family law? It’s already hard enough to get real closure in family law cases; add in a post hoc civil claim and you’ll never, ever see the end of custody or alimony cases, it’ll just be IIED claim followed by IIED-claims-for-the-prior-IIED-claims, ad nauseum.