How to Sue for Emotional Distress

Co-authored by Clinton M. Sandvick, JD, PhD

Last Updated: March 13, 2021 References Approved

How is emotional distress defined in the eyes of the law? In most cases, you can only sue for emotional damages if the incident in question physically harmed you. Emotional distress suits are trickier than other types of lawsuits. It’s important to have a solid understanding of the types of emotional distress claims before you attempt to file a lawsuit.

Part 1

Part 1 of 7:

Determining the Type of Emotional Distress

1
Familiarize yourself with the types of emotional distress claims. Emotional distress is categorized according to the intent of the person or company responsible for inflicting harm. There are two types of emotional distress. These include negligent infliction of emotional distress and intentional infliction of emotional distress.
- Negligent infliction: The responsible party exhibited negligent behavior that caused distress.
- Intentional infliction: The responsible party demonstrated outrageous behavior that caused distress.
2
Determine if emotional distress was negligently inflicted. Negligent infliction of emotional distress happens when the one party's negligent behavior causes distress. The emotional distress must be the result of physical injury caused by the person you are suing.
- For instance, you might be able to sue for emotional distress if you saw an accident that killed a loved one. You must have suffered emotional issues afterwards.^{[1]
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  Research source
  Dillon v. Legg, 68 Cal. 2d 728.}
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3
Determine if emotional distress was intentionally inflicted. Intentional infliction of emotional distress happens when one party's outrageous behavior causes distress. In this case, you must prove that the other party intentionally or recklessly demonstrated outrageous and extreme conduct. Physical injury must also be a factor.
- For example, your neighbor started a fire on purpose in your garage with the intent to kill you. If you started having panic attacks that led to fainting, you might have a case. In this type of situation, the physical injury is a direct result of emotional distress. But if an employer screams and makes threats at an employee, this might not count as outrageous conduct. Even if it's rude and insensitive, it might not count as emotional distress.^{[2]
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  Buscemi v. McDonnell Douglass Corp., 9th Cir. 1984) 736 F.2d 1348, 1351-1352.}

Part 2

Part 2 of 7:

Determining If Physical Injury Impacts Your Emotional Distress

1
Keep a record of physical symptoms. Write down the physical symptoms you've experienced as a result of extreme emotional distress. Note changes in your sleep patterns and eating habits. Write down other physical symptoms that you’re experiencing.
- If you don't have a record of your physical symptoms that relate to your emotional distress, you may still have a case. It will be a lot tougher to prove that your issues are directly connected to the incident in question. Severe emotional distress like prolonged extreme social anxiety or paranoia may be enough to collect damages.^{[3]
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  Research source} If you don't have proof of related physical symptoms, talk to a lawyer. You can ask if you have a case.^{[4]
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  Trustworthy Source
  National Paralegal College Law Shelf
  Online education resource from the National Paralegal College
  Go to source}
2
Determine what role physical injury played in your situation. Emotional distress suits are almost always related to physical injury. These types of suits vary by region. But it’s typical that you must have experienced physical harm or were threatened with physical harm.
- Talk with your doctor to determine how your emotional distress relates to your physical injury
3
Show the link between physical harm and prolonged emotional symptoms. In cases of negligence, you must prove that you experienced physical harm. This physical harm caused prolonged emotional symptoms like severe depression or anxiety.
- A common example of proof includes medical records that describe your emotional symptoms. These will also describe the likely causes of your symptoms.
4
See if you can sue for emotional distress as a third party. In some states, you can sue for emotional distress as a third party. For example, you might have a case if your child or someone close to you was physically harmed in an incident. This incident must have occurred right in front of you. You would have a more solid case if you were also physically injured or experienced the threat of injury.
- For your case to stand, you must be closely related to the victim. You must also prove that the emotional stress you experienced as a witness exceeds that of a random bystander.^{[5]
  X
  Trustworthy Source
  National Paralegal College Law Shelf
  Online education resource from the National Paralegal College
  Go to source}
- You must also prove that you had such distress that you experienced physical symptoms for a long time afterwards.
- You must prove the connection between your physical and emotional distresses.^{[6]
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5
Assemble your medical records. Make sure you have copies of all your medical records so that you can show how your health has changed after the incident in question.

Part 3

Part 3 of 7:

Talking with a Lawyer

1
Write down an account of what happened. Before you meet with your lawyer, write down your account of what happened. Take careful note of what you think caused your emotional and physical symptoms. Also, make a list of symptoms you are experiencing.
2
Hire a lawyer to take a look at your case. Because emotional distress suits have so many gray areas, it's a good idea to talk with a lawyer to test the strength of your case.
3
Ask your lawyer about the likelihood of recovering damages. Even if you have a good case, it might not be worth it to sue. You will have to decide whether you want to incur the fees, time and mental energy it will take to move forward with the lawsuit.

Part 4

Part 4 of 7:

Filing Your Complaint

1
Make sure it’s not too late to sue. Each state has a statute of limitations on different types of offenses. These specify the length of time during which you can take action after the incident occurred. Emotional distress falls under the category of a personal injury tort. The statute of limitations for personal injury tort ranges from 1 to 6 years, depending on your state's law. After you are injured, you need to immediately look up your state's statute of limitations. Regardless of the statute of limitations, it's best to file your case sooner rather than later.
- Look up the statute of limitations for personal injuries in your state to make sure you've still got time.^{[7]
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2
Find out where you will 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, it is likely that you will file in the county where the incident in question occurred. Talk with your lawyer to make sure you file in the right jurisdiction.
3
Fill out the complaint. Work with your lawyer to fill out your complaint. This involves assembling paperwork that gives details about 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 important that you fill out the forms correctly, so it's best not to do it on your own.
4
File your complaint. File the complaint with the courthouse to start the personal injury lawsuit process. You will likely need to pay a filing fee; check with the court clerk for the fee amount.
- Some courts will allow you to file your complaint online. Check with your courthouse to determine if this is an option.
5
Wait for the defendant’s written answer. The defendant has a specific amount of time, such as 28 days, to file a written answer to your emotional distress lawsuit. If they don't file an answer, then you will win the lawsuit.
- You will need to file a motion for default and get an order of default. Check on your state's process, since the process varies from state to state.
- If the other party files an answer, then you may proceed to a court hearing.

Part 5

Part 5 of 7:

Assembling Evidence for the Case

1
Begin the "discovery" process. This is the process in which both sides find out as much information as possible to argue their sides of the case.
- For example, the other party's lawyer may contact your employer
- Your lawyer will also perform research to make sure you have plenty of information about the other party.^{[8]
  X
  Trustworthy Source
  American Bar Association
  Leading professional organization of lawyers and law students
  Go to source}
2
Give a deposition if requested. The other party's lawyer might ask you to give a deposition, which is an oral testimony given before any trial. You'll be interviewed about the incident that occurred as well as your personal history. In particular, you will be asked questions about your past medical issues.
3
Have your lawyer file motions with the court. Each side has the chance to file motions to dismiss certain evidence, admit more evidence, or dismiss the case. 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.

Part 6

Part 6 of 7:

Settling Out of Court

1
Consider reaching a settlement agreement. If you and the other party are willing to settle the case by reaching a mutual agreement, the case won’t need to go to trial. Personal injury trials can be lengthy and expensive. It's considered preferable to settle out of court instead. Talk with your lawyer about the right decision for your case.
2
Meet with a legal mediator. A legal mediator can help you negotiate an agreement with the other party and will be satisfying to both parties.
- Find a legal mediator through a community dispute resolution center. You can also hire a professional mediator. Both parties usually share the cost of mediation.^{[9]
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3
Stay informed with the process. Your lawyer and the defendant's lawyer will also talk throughout the process. They will try to reach a settlement agreement. Your lawyer should keep you informed about the process. Try to schedule regular contact you’re your lawyer to ensure that you’re kept informed.^{[10]
X
Trustworthy Source
American Bar Association
Leading professional organization of lawyers and law students
Go to source}

Part 7

Part 7 of 7:

Taking Your Case to Trial

1
Decide if you should take your case to trial. If you were unable to reach a satisfactory settlement agreement with the defendant, the next step is to go to trial. Your lawyer can talk to you on the pros and cons of taking your case to trial.
- At the trial, you will need to discuss your case in front of a judge.
2
Work with your attorney to prepare. Your attorney will help you prepare for the trial. This might include preparing testimony and assembling evidence.
3
Attend the trial if you haven’t settled. If you have opted to take your case to trial, you will be notified when the trial will take place. Your attorney will use evidence, witnesses and information to prove your case.
- The jury will decide whether you will receive compensation and how much you will receive.
- If the court postpones your trial date, don’t worry too much about this. Trials are often rescheduled based on the judge’s schedule. Don’t worry that your case has less merit.^{[11]
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Warnings

This article is for informational purposes only and should not be the only legal advice you get. You should contact an attorney to get advice about your particular issue or problem.

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