cognizable injury" or he has suffered no damages. Becker v. Colonial Parking, Inc., 133 U.S. App. D.C. 213, 409 F.2d 1130 (D.C. Cir. 1969). In the District of Columbia, in order to prove that he has suffered a "legally cognizable harm," the plaintiff in a legal malpractice action must show that the result of his criminal trial would have been different had his attorney not committed the alleged misconduct. See, e.g., McCord, 204 U.S. App. D.C. 334, 636 F.2d 606, (failure to raise an affirmative defense caused no harm since the defense would have been stricken); Bigelow, 737 F. Supp. 669 (failure to locate and interview witnesses caused no harm since plaintiff failed to identify how they would have supported a defense that would have resulted in his acquittal).
Plaintiff in the instant case has not established that, had the defendant not committed the alleged acts of misconduct, plaintiff would have been acquitted. Thus, plaintiff has not established the prima facie element of a legally cognizable harm proximately caused by defendant's conduct. See Niosi v. Aiello, 69 A.2d 57 (D.C. 1949).
Plaintiff has failed to show either that defendant breached the applicable standard of care owed by a criminal defense attorney to his client or that plaintiff suffered a legally cognizable harm. Accordingly, plaintiff cannot prevail on his claim of legal malpractice.
III. Plaintiff's Claim of Intentional Infliction of Emotional Distress
To establish a claim for intentional infliction of emotional distress in the District of Columbia, a plaintiff must prove that the defendant engaged in (1) extreme and outrageous conduct that (2) intentionally or recklessly caused (3) severe emotional distress to another. Woodner v. Breeden, 665 A.2d 929, 934-35 (D.C. 1995).
With respect to the first element, "'liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" Sere v. Group Hospitalization, Inc., 443 A.2d 33, 37 (D.C. 1982) cert. denied, 459 U.S. 912, 74 L. Ed. 2d 176, 103 S. Ct. 221 (1982) (quoting Restatement (Second) of Torts § 46 cmt. d (1965)).
It is for the trial court to determine, in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery. Sere, 443 A.2d at 38. The case should be submitted to the jury if reasonable people could differ as to whether the conduct was extreme and outrageous. Best, 484 A.2d 958 at 985. The clear implication is that if reasonable persons could only conclude that defendant's conduct was not "extreme and outrageous" the trial court must rule in defendant's favor as a matter of law. King, 640 A.2d 656 at 666.
The plaintiff has not submitted, nor has independent research uncovered, any authority for the proposition that the conduct complained of in this case -- that is, an attorney's failure to (1) adequately investigate identification evidence; (2) adequately interview potential witnesses; (3) make any pre-trial motions; (4) move for a mistrial; (5) vigorously cross-examine; and (6) zealously advocate -- constitute outrageous and egregious conduct. If the conduct does not rise to the level of outrageousness, tort liability may not be imposed.
Best, 484 A.2d at 986; Sere, 443 at 38.
Plaintiff has not shown by affidavit or otherwise that defendant intentionally inflicted emotional distress.
His complaint demonstrates, at most, that he disagreed with his attorney's trial tactics. As a matter of law, defendant's alleged professional misconduct does rise to the level of "outrageous" conduct. Plaintiff has not established a prima facie case of intentional infliction of emotional distress. Accordingly, the Court will grant defendant's motion for summary judgment. An appropriate Order accompanies this Memorandum Opinion.
UNITED STATES DISTRICT JUDGE