Update (August 7, 2012): It is extremely rare for a legal malpractice plaintiff to miss the deadline for the “Affidavit of Expert Identification” and have his case survive to tell about it. Even if you think your client’s legal malpractice claim is simple and blazingly obvious — analogous to “wrong kidney transplant” for which you do not need a medical expert to establish this is malpractice — hedge your bet and fulfill this prerequisite. If you want to (or have to) roll the dice and cannot or decide not to complete the affidavit, at least you should affirmatively seek a waiver of the statutory requirement. Otherwise, you could be looking at a multi-lawyer cake of legal malpractice malpractice. In the case described below, the malpractice plaintiff’s counsel was spared the case’s “death penalty” due to their initial request for a waiver.
Original Post (December 23, 2011): When a doctor removes a healthy kidney, leaving behind the kidney with the cancer that he was supposed to remove, most would agree a jury does not have to sit and listen to an expert testify that this mistake falls below the appropriate standard of care for medical treatment.
A plaintiff has brought a legal malpractice lawsuit against a lawyer for his failure to properly associate himself with Minnesota counsel, failure therefore to be admitted to practice in a lawsuit brought in Minnesota, and his apparent failure to let the client know that the client was unrepresented in pending litigation. Does this legal malpractice plaintiff need to come up with an expert?
Time will tell how U.S. District Court Judge Joan N. Ericksen (D. Minn.), to whom the case has been assigned, will decide the issue. But given the ease and low cost of filing a Minn. Stat. § 544.42 Affidavit of Expert Review, some might wonder why one would bother with the effort for leave to file a legal malpractice complaint without one.
Do the allegations in this case rise to the level of “wrong kidney” malpractice? Maybe they do.