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A plaintiff (his lawyer actually), files a complaint citing grounds A, B, and C. In the first court hearing, the Judge throws out grounds B and C as not being under his jurisdiction. He also offers an opinion that the plaintiff might have a cause of action under ground D, that had not been previously mentioned.

So the plaintiff goes back to the lawyer and says, "Let's re-file the complaint with grounds A and D, and "pull" grounds B and C. The lawyer replies, "No, I don't think the complaint will go anywhere under ground D, and I think we can appeal on ground C.

This client is unhappy that the lawyer gives so little weight to the judge's findings. Does it constitute a summary judgment, and does the plaintiff have a right to be unhappy? How can s/he decide whether or not to follow the lawyer's advice?

Libra
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1 Answers1

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A lawyer is not at all required to follow a judge's "guidance" in handling a complaint. Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., 535 U.S. 826 (2002) ("The plaintiff is the master of the complaint."). So unless there is an order to amend, perhaps under Rule 12(e), the lawyer has no duty to change the complaint. Even if there were such an order, though, I doubt that a judge may properly order a client to add a claim to the complaint.

Nothing that you've described seems to constitute a summary judgment. The elimination of Claims B and C sounds like it was probably a dismissal rather than a summary judgment, though we haven't gotten enough details to say for sure. Certainly Lawyer's advice does not constitute a summary judgment, as counsel for the parties cannot enter judgment.

Client obviously has a right to be unhappy, as everyone has the right to feel however they want. If Client feels strongly enough, they can direct Lawyer to file Claim D or fire him for refusing.

Client can decide whether to follow Lawyer's advice by listening to it, considering the pros and cons of the options offered, and weighing the probabilities of positive and negative outcomes. If Client feels that Lawyer hasn't provided the information necessary to make an informed decision, Client can ask Lawyer more questions, seek a second opinion, or replace Lawyer.

bdb484
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