Sunday, December 28, 2014

Affidavit of Expert Review Requirement Eased

Most legal malpractice cases end up focusing upon the affidavits of expert review and the proposed testimony of those experts.  It has always been a hurdle, essentially manufactured when the Minnesota legislature first enacted the expert witness affidavit requirements in 1997.  In October, 2014, the Minnesota Court of Appeals suggested that those requirements are not so broad as many district courts had been suggesting.   In Gusick v Kimball, the plaintiff, the personal representative of an estate, brought a claim against an attorney whose firm had drafted powers of attorney which proved defective in that they allowed a relative to wrongfully drain the decedent's accounts.

The Court of Appeals held that an expert witness was not required to establish that "but-for" causation, but only proximate cause.  The court quoted Wartnick v Moss & Barnett for the holding that, in a legal malpractice case, one must show that the act is one which the party ought, in the exercise of ordinary care, to have anticipated was likely to result in injury to others. The attorney is then liable for any injury proximately resulting from it, even though the attorney could not have anticipated the particular injury which did happen.  The appeals court in Gusick held that as to but-for causation expert testimony was not necessary as these issues did not require any "technical or specialized knowledge."  For example the question as to whether a person would have refused to sign the form or would have limited the form's authorization was not a matter of expert testimony.  This decision eases the requirements of expert review as a number of experts may shy away from making such predictions.

Unfortunately, as is true with most plaintiff oriented decisions from the Court of Appeals, Gusick is a unpublished opinion and may be disregarded by the courts in the future.  It is however, a harbinger that the appellate courts may finally becoming a bit more reasonable in interpreting the expert affidavit requirements of Minn. Stat. sec. 544.42.

Thursday, December 25, 2014

Sortland Law Office, PLLC

Too Aggressive Representation?

A recent panel of the Minnesota Court of Appeals issued a decision which should put attorneys on guard for any contrivances with clients to avoid the payment of a judgment.  In an unpublished decision, Janssen v Lommen Abdo, issued December 22, 2014, the court of appeals reversed the district court and held that the plaintiff could maintain a cause of action against the law firm representing the other side for its part in creating a transfer which violated the Minnesota Uniform Fraudulent Transfers Act. 

Acknowledging that an attorney acting within the scope of his employment as an attorney is normally immune from liability to third persons for actions arising out of that professional relationship, the decision cited a number of Minnesota cases which held that a cause of action would exist where the attorney "knowingly participates with his client in the perpetuation of a fraudulent or unlawful act."