Like most states, Minnesota law requires an “expert affidavit” as part of bringing a malpractice lawsuit against an attorney. This is simply a written statement under oath that at least one other attorney (“expert”) believes the case has a good faith basis.
The purpose behind this law is simple: this requirement is designed to prevent frivolous lawsuits. For example, if a pro se litigant wants to sue her attorney, she must at least find one other attorney who is willing to testify that the defendant engaged in malpractice.
This requirement isn’t a unique protection for attorneys. This requirement exists for many other professions and cases besides attorney malpractice claims. For example, an expert affidavit is required for proving malpractice by an architect, certified public accountant, engineer, land surveyor, or landscape architect.
The language required in an expert affidavit is provided in the Minnesota Statutes. Minnesota Statutes section 544.42 provides:
The affidavit . . . must be drafted by the party’s attorney and state that:
(1) the facts of the case have been reviewed by the party’s attorney with an expert whose qualifications provide a reasonable expectation that the expert’s opinions could be admissible at trial and that, in the opinion of this expert, the defendant deviated from the applicable standard of care and by that action caused injury to the plaintiff . . . .
Here is an example of an affidavit that would be signed by the plaintiff’s attorney:
I am the Plaintiff’s attorney.
The facts of the case have been reviewed by me with an expert whose qualifications provide a reasonable expectation that the expert’s opinions could be admissible at trial and, in the opinion of this expert, the defendant deviated from the applicable standard of care and by that action caused injury to the Plaintiff.
It’s not easy to win a malpractice lawsuit because you must prove that the attorney’s misconduct caused harm to you. This “causation” element is difficult. Essentially, you need to show that “but for the attorney’s error, I would not have had this harm.” This means it is not enough to show that the attorney made an error and you suffered harm: you need to show the attorney’s error caused the harm. Here is an example of where the expert affidavit failed to show causation.
You can learn more at Minnesota Attorney Malpractice: How to Sue Your Lawyer.