In my recent post, I talked about Jamie Leigh Jones losing her trial. Ms. Jones became a hero to many when she successfully opposed and overturned the mandatory arbitration agreement she allegedly signed with KBR. Since then, I now understand that Ms. Jones’ mother was called to testify and was cross-examined by the defense lawyers regarding Ms. Jones’ mental health history. Apparently, the defense lawyers had hundreds of pages of Mr. Jones’ psychological history and were using it well against her.
There is a risk in employment cases when we seek large psychological damages. To justify large damages, we need mental health professional testimony and evidence. To do that, the plaintiff employee must disclose her psychological history. Her mental health history becomes relevant. Since, the defense will want to introduce evidence of other things that cause emotional stress in the employee’s life other than her employment. The employer may be entitled to introduce evidence regarding other matters that have caused the employee emotional distress. That right may open the door to everything from family problems to drug problems to low self-esteem. Of course, any drug problems, however ancient, may prejudice many juries.
But, if the plaintiff limits her claim to "garden variety" emotional distress, then her mental health history is not discoverable, much less admissible. So, yes, it is often better not to plead more than "garden variety" emotional distress damages. Otherwise, we may open the door to our client’s entire history, a history which may be not be flattering and which may cause additional stress for our clients. Many clients feel like they are being abused again during the litigation process.