Plaintiffs alleging legal malpractice in some states must file expert affidavits supporting their claims before trial. Requirements for these affidavits vary by state; in Minnesota, for example, they must contain specific details linking the defendant’s negligent conduct to the plaintiff’s damages. This imposes a high burden on plaintiffs and filters out frivolous lawsuits that will never obtain legitimate expert support. This burden, however, is a double-edged sword: it can also preclude meritorious claims that, for some reason, cannot timely secure adequate expert support.
Minnesota Statutes section 544.42 requires plaintiffs to file two pretrial expert affidavits supporting legal and other non-medical malpractice claims. Section 544.42 also allows for additional time to remedy defects in the second, more detailed and burdensome of the two affidavit requirements, which helps prevent dismissals of meritorious claims. In Guzick v. Kimball, the Minnesota Supreme Court established that a legal malpractice plaintiff can obtain additional time only if her affidavit passes a two-step process. First, provided a set of facts, courts determine on a case-by-case basis which elements of legal malpractice require expert support. If a lay juror would likely not understand how the facts of the case relate to an element of malpractice, expert support is required for that element. Second, courts evaluate the expert support for each required element, and if the support is deficient, the court may dismiss the case before trial without granting the plaintiff any time to remedy the deficiency.
Guzick was the supreme court’s first legal malpractice case interpreting section 544.42. Arguably, its primary contribution to Minnesota jurisprudence was interpreting the first of the two steps: determining which elements of legal malpractice require expert support. Guzick upheld the second step—the court’s ability to evaluate expert support—from the court’s previous case on section 544.42.
Guzick’s two-step process is problematic because it opens the door to two ways plaintiffs can lose their cases. First, a plaintiff might fail to anticipate that the court may require expert support for an element of malpractice after applying its lay juror standard. This would make the affidavit insufficient. Second, even if the plaintiff correctly identifies all the elements that require expert support, she still may not solicit enough detail from the expert. Again, this would be insufficient. Guzick, therefore, sets two traps for plaintiffs to lose a case with prejudice on a procedural misstep. This threatens the law’s “primary objective . . . to dispose of cases on the merits.” This is what is at stake after Guzick.
This Note begins with a history of legal malpractice and the statutory framework underlying Guzick. The facts, procedural history, and majority analysis of Guzick follow. The analysis of this Note argues that courts should not dismiss cases on the basis of a defective affidavit without providing time to remedy defects. The court’s unforgiving approach contradicts legislative intent to avoid dismissing meritorious lawsuits and needlessly goes beyond the plain language of section 544.42. The court’s self-imposed ability to grant extra time on an evaluative basis also opens the door for inconsistent and unpredictable application. This, in turn, may result in public distrust in the legal profession. On a plain reading of the statute, extra time is automatically granted to remedy a defect. Consequently, when the court has the opportunity, it should overrule Guzick and adopt a plain reading of the statute.