What constitutes emotional distress in the eyes of the law? In most cases you can only sue for emotional damages if the incident in question harmed you physically, too. Emotional distress suits are trickier than other types of lawsuits, so it's important to have a thorough understanding of what it means and where your case will fall before moving forward. If you think you have grounds to sue, hiring a smart, persuasive lawyer will be your best bet for getting the damages you deserve. If you want to know more about how to sue for emotional distress, read on.
Method 1. Finding Out if You Have a Case
1. Learn about the different categories that fall under the "emotional distress" umbrella.
Emotional distress is categorized according to the intent of the person or company responsible for inflicting harm. There are two types of emotional distress: negligent infliction of emotional distress happens when the responsible party exhibited negligent behavior that caused distress. Intentional infliction of emotional distress happens when the responsible party demonstrated outrageous behavior that caused distress.
In the case of negligent infliction of emotional distress, the emotional distress must be shown to be the result of physical injury caused by the person you are suing. For example, you might be able to sue a restaurant for emotional distress if you were served a finger in your entree, you took a bite and became sick, and you suffered emotional issues around eating afterward.
In the case of intentional infliction of emotional distress, you must be able to prove that the offending party intentionally or recklessly demonstrated outrageous and extreme conduct. Physical injury must also be a factor. For example, you might have a case for intentional infliction of emotional distress if your neighbor intentionally started a fire in your garage with the intent to kill you, and you started having panic attacks that led to fainting. In this type of situation the physical injury is a direct result of emotional distress.
2. Determine what role physical injury played in your situation.
Emotional distress suits are almost always related to physical injury. The way this plays out differs a bit from state to state in the US, but it's usually a given that in order to have a case, you must have experienced physical harm or at least have been threatened with physical harm. Before you sue you need to sort out how your emotional distress is related to physical symptoms.
In cases of negligence you must prove that you experienced physical harm that led to prolonged emotional symptoms. So if a restaurant served you a finger in your entree, causing you to become physically ill the day you ate the meal, you would only be able to sue for emotional distress if you could prove that the incident caused you such anguish that you experienced physical symptoms for a prolonged period of time afterward. Proof that your physical and emotional distress are connected is needed.
In some states you can sue for emotional distress as a third party, such as when your child or someone close to you is the person who got physically harmed in an incident that occurred right in front of you. Your case will be more solid if you were also physically injured or at least experienced the threat of injury. In order for these types of cases to stand, you must be closely related to the victim, and you must prove that the emotional stress you experienced as a witness exceeds that of a random bystander.
3. Hire a lawyer to clarify where your case will fall.
Because emotional distress suits have so many gray areas, it's a good idea to talk with a lawyer to determine whether or not you have a case. Before you meet with your lawyer, write down your account of what happened, taking careful note of cause and effect with regard to emotional distress and physical symptoms.
Have a detailed account of physical symptoms you've experienced as a result of extreme emotional distress. Note changes in your sleep patterns and eating habits. Bring medical records showing how your health changed after the incident.
If you don't have account of physical symptoms related to your emotional distress, you might still have a case, but it will be a lot tougher to prove that your issues are directly connected to the incident in question. Symptoms of severe emotional distress like extreme social anxiety or paranoia that go on for a long period of time may be sufficient to collect damages. Ask your lawyer about whether you have a case even though you have no proof of related physical symptoms.
Even if you have a good case, it might not be worth it to sue. Talk with your lawyer about what the damages will amount to and decide whether you want to incur the fees, time and mental energy it will take to move forward with the lawsuit.
Method 2. Beginning the Process of Filing Your Complaint
1. Make sure you still have time to sue.
Each state has statues of limitations on different types of offenses that specify how long you have to take action after the incident occurred. Emotional distress falls under the "personal injury" category, and in most states the statue of limitations for suing for personal injury is 2 years. Look up the statue of limitations for personal injuries in your state to make sure you've still got time.
2. Figure out where to file your suit.
If you and the defendant are from the same state, that's where you'll file. If you're from different states, in most cases you will still file in the county where the incident in question occurred. Talk with your lawyer to make sure you file in the right venue.
3. File your complaint.
Work with your lawyer to fill out your complaint, paperwork detailing the incident in question. Be sure to make it as thorough and detailed as possible. You can fill out the forms on your own, without a lawyer, but it's very important that they be filled out correctly, so it's best not to do it on your own. File the complaint with the courthouse to start the personal injury lawsuit process.
4. Begin the "discovery" process.
This is the process in which both sides, the plaintiff and the defendant, find out as much information as possible in order to argue their sides of the case. Your employer may be contacted by the other party's lawyer, for example. Your lawyer will also perform research to make sure you have plenty of information about the other party.
You might be asked by the other party's lawyer to give a deposition. You'll be interviewed about the incident that occurred as well as your personal history. You will probably be asked questions about your past medical issues, in particular.
5. File motions with the court.
Each side has the chance to file motions to dismiss certain evidence, admit more evidence, or dismiss the case entirely. Your lawyer should decide whether to file motions, and how to proceed if the defendant files a motion. The court will rule on the motions before the case proceeds.
Method 3. Deciding How to Wrap Up the Case
1. Consider reaching a settlement agreement.
If the other party and yourself are willing to settle the case by reaching a mutual agreement, you won't have to take it to trial. Since personal injury trials can be lengthy and expensive, it's generally considered better to settle out of court instead. You'll talk with your lawyer about the right decision for you.
You may meet with a legal mediator as a way to negotiate an agreement that will satisfy both parties.
Your lawyer and the defendant's lawyer will also talk throughout the process in an effort to reach a settlement agreement. Your lawyer should keep you informed about the process.
2. Go to trial if necessary.
If you were unable to reach a satisfactory settlement agreement with the defendant, the next step is to go to trail. There you will be called to discuss your case in front of a judge, and use evidence, witnesses and information you have at your disposal to prove that you have a case for emotional distress. The jury will decide whether you will receive compensation and how much you will receive.
The defendant(s) have a specific amount of time, such as 28 days, to file a written answer to you emotional distress lawsuit. If they don't file an answer, then you automatically win. If an answer is filed, then you may proceed to a court hearing.