Sua Sponte: A Judge Comments

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Professor Calvert’s article is a useful review of the legal framework supporting (or not) the tort of intentional infliction of emotional distress (IIED). I’d like to offer a few comments from the “killing floor” of trial court—both pretrial and after. Whatever my theoretical response to Calvert’s analysis, when IIED claims get litigated, many practitioners seem utterly unprepared for the demands that the tort makes on both client and counsel.

Few trial judges have not done an eye-roll when reviewing IIED claims. We find IIED claims everywhere, however incongruous—in auto cases, breach of contract suits, employment cases, and nearly all other cases. The eye-roll is triggered by our near certainty that the claim will never see a jury. The claim will fall to a motion to summarily adjudicate, be dropped when the discovery parameters become too intrusive, or disappear in response to the court’s “Really, counselor?,” which is prompted when the trial judge notes the jury’s collective eye-roll at evidence that doesn’t remotely clear the hurdle demanded by jury instructions.