NOTICE OF MOTION AND MOTION

To the above named PLAINTIFF-COUNTER DEFENDANT:

You are notified that on a date and time to be determined by the Court, Defendant-Counter Plaintiff, pro se, will bring on for hearing her Motion to Reconsider Order for the reasons stated in the following Motion.

Dated: ENTER DATE                                                Respectfully submitted:

_________________XXX 17778 

Email: XXX

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT-COUNTER PLAINTIFF’S MOTION FOR RECONSIDERATION

COMES NOW Defendant-Counter Plaintiff, XXX (hereinafter “XXX”), pro se, pursuant to Minn. Gen. R. Prac. 115.11, and in support thereof would most respectfully show unto the Court the following, to-wit:

FACTUAL BACKGROUND

On October 11, 2021 PLAINTIFF-COUNTER DEFENDANT/JUDGEMENT CREDITOR (hereinafter XXX or “PLAINTIFF-COUNTER DEFENDANT”) filed the present complaint for renewal of judgment and attorney fees.

XXXX responded by filing his answer with counterclaims for breach of fiduciary duty,

legal malpractice, tortious interference with prospective contractual relations, defamation and negligence.

On XXX filed the answer to counterclaims. In its answer XXX did not assert a defense regarding the expert-affidavit requirements.

On XXX PLAINTIFF-COUNTER DEFENDANT sent a notice requesting an affidavit pursuant to XXX. § 544.42.

XXX then filed a Motion to waive the expert affidavit requirement. In the Motion, XXXX argued that a good cause existed for not requiring certification. For instance, the conduct complained of could be evaluated adequately by a jury in the absence of expert testimony. It was also not possible for XXX to find an expert within the tight schedule. Further ,XXX has not been able to find another attorney to give the expert evidence, on time. Lastly, XXX argued that there was a need to conclude the discovery process, which will reveal all communication between XXX former attorney and XXX also asserted that excusable neglect existed in the matter such that if the court does not waive the requirement for expert affidavit, the Court should extend the deadline.

On XXX, this Court entered an order on XXX Motion and XXX Motion to compel compliance with a third party subpoena. In the said Order, the Court denied XXX Motion. The Court further Ordered that XXX must file an expert affidavit within sixty days from the date of issue of the Order.

ARGUMENTS

   Defendant-Counter Plaintiff would show that the Court erred in denying XXX Motion for a waiver of the expert-affidavit requirement.

1. XXX conduct can be evaluated by a jury; expert disclosure is therefore not necessary

Expert testimony is required to establish issues of legal malpractice, unless the conduct can be evaluated by a jury in the absence of expert testimony .XXX. Thus, whether a plaintiff is required to make an expert disclosure is something that must be determined on a case-by-case basis for each element of the prima facie case of malpractice. For instance, the determination of proximate cause is normally a question of fact for the jury. See XXX. According to the Supreme Court of XXX, instead of relying on a general rule, the Court can analyze whether the facts needed to establish but-for causation are within an area of common knowledge and lay comprehension such that they can be adequately evaluated by a jury in the absence of an expert. Further there is no requirement for expert testimony on the other elements of a prima facie case of legal malpractice. The Court may conclude that a genuine issue of material fact exists even in the absence of expert testimony on causation. XXX

In the instant action, XXX avers that the jury can determine the conduct of the Plaintiff-Counter Defendant. Per XXX. the jury is able to determine the issue of probable cause of XXX actions and/or inactions. Further, the facts leading to Defendant-Counter plaintiff’s allegations are within the common knowledge of reasonable persons.

1. The discovery process will provide pertinent evidence to support XXX counterclaims

When bringing a legal malpractice claim, a plaintiff must present evidence of the applicable standard of care and that the standard was breached. XXX

According to Minn. Stat. § 544.42(3)(c),   cause includes, but is not limited to the requirement for an expert affidavit may be waived upon a showing that the action requires discovery to provide a reasonable basis for the expert’s opinion.

In the instant action, XXX counterclaims require discovery to reveal all communications between Plaintiff-Counter Defendant and Defendant Counter Plaintiff’s former Attorneys regarding XXX unpermitted disclosures. Notably, Defendant Counter Plaintiff’s former attorney decided to cancel representation after conversations with Plaintiff- Counter Defendant. These facts can be demonstrated only after conducting discovery. For this reason, XXX asserts that discovery will reveal pertinent evidence that will show XXX blameworthy conduct.

               WHEREFORE, PREMISES CONSIDERED, Defendant-Counter Plaintiff prays that this Court reconsiders its Order entered XXX. Defendant-Counter Plaintiff also requests this Court to issue any other Order it deems just.

Dated: ENTER DATE                                                Respectfully submitted:

_________________XXX

Email:XXX

CERTIFICATE OF SERVICE

            I, XXX, III, do hereby certify that I have this day mailed, U.S. Mail, postage prepaid, a true and correct copy of the above and foregoing to XXX & Associates, P.A at the following address;

XXX & Associates, P.A.

XXX

XXXX

XXX

XXX

Tel. XXX

Email: XXX

Dated: ENTER DATE                                               

_________________XXXXXX

Email: XXX

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