In Schmidt v. Coogan, the Washington Supreme Court addressed two questions of first impression, whether collectability of the underlying judgment is an element of the plaintiff’s claim for legal malpractice and whether emotional distress (ED) damages are recoverable in a malpractice action. The Court held that collectability is not an element of the plaintiff’s claim for malpractice. Instead, the defendant/lawyer must plead and prove that the judgment would have been uncollectible as a defense to a malpractice claim. The Court also held that a plaintiff may recover ED damages when significant ED is foreseeable based on the sensitive or personal nature of representation or when the attorney’s conduct is particularly egregious. The facts in Schmidt did not warrant ED damages. The Court also reiterated that “our case law does not support an award of attorney fees in attorney malpractice cases.”
