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Is there a general de facto "minimum standard of

Is there a general de...
Is there a general de facto "minimum standard of assertability of legal argument " (my term) that lawyers rely on to make their cases, and which differs as a function of the following:
1. The individual lawyer's personal views and , 2. Whether the case is on contingency or not;
I am totally convinced that is so, and here's why:
Scenario: A lawyer, not on contingency, is asked to argue a case based on statutory law. But on an issue that has never been litigated before in the particular area of law at Bar. He does not dispute the statutory law, but apparently relying on the fact that "it has never been done before" refuses, or shows great reluctancy, to do so.
Another lawyer upon hearing the same thing, is willing to go forward at once, on the basis that it is good law.
I can see a contingency fee lawyer refusing to argue a case on law that he does not believe likely to prevail.
But why would one do so who was on an hourly basis? (Is it possible he is so certain he will lose that he does not wish his client to spend money on his time for nothing?)
I define "the standard of assertability of a legal argument" as one a lawyer believes is good law, regardless of the absence of any precedent for or against the interpretation. . One about which legal argument the lawyer is comfortable asserting, regardless of his personal opinions about its eventual success.
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11/23/2017
legalg
legalg, Attorney
Category: Business Law
Satisfied Customers: 13,706
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Many hourly attorneys will deny cases that they feel there is no reasonable basis of obtaining a favorable outcome. Some will do this as a matter of integrity as they do not want the client to incur legal fees for nothing. In some instances it is because the attorney feels there is no merit in bringing the suit and doing so may expose the attorney to sanctions for bringing a frivolous lawsuit.
legalg
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Customer reply replied 7 months ago
I get that. The question is a little more specific. Putting it another way: Is there a "threshold" of some kind to which a lawyer is required by Florida Bar rules to adhere to before he is permitted to present a case without risking the sanctions of a frivolous lawsuit. Or, absent a Bar Rule, will some, or perhaps all, lawyers set their own threshold and will it differ from one to another? Perhaps or even surely with the best of intentions. All the evidence of which I am aware supports just that conclusion.
Example: Florida law says elderly abuse is a crime. Overwhelming evidence is presented to Probate lawyer A to the effect that such a crime was committed and should be raised as evidence of "undue influence" in a Probate case. Lawyer A, insists that "there can be no crime of elderly abuse in a long term marriage". He refuses to raise the issue. Lawyer B, a criminal lawyer, says of course it exists, and could be used in Probate or as a complaint in a criminal accusation. (But not as a threat of criminal prosecution, which threat would itself constitute a crime). There is no case law of any kind on the issue.
Lawyer A has apparently set his own minimum threshold for arguing a legal issue to the detriment of his client, with nothing but his own unsupported view to back him.
In a case I was involved with 40 years ago, I faced exactly the same issue. I argued that a clear statement in a complaint that an otherwise legal contract for the purchase of a condo was not understood, negated the contract on the basis of "an absence of a meeting of the minds". I asked the lawyer to argue that rescission was appropriate. I offered to refund 200 people their money in return for cancelling their contract and taking back their apartments. (Which had tripled in value) The lawyer told me I was crazy and that it would never fly. I insisted. He finally very reluctantly agreed. He also assured me we would lose. We won very big.
That lawyer too, had no law to support his views that we would lose. But he asserted it anyway!!!
Customer reply replied 7 months ago
The question remains: Do lawyers operate, whether consciously or not, as a result of personal "pleading thresholds" that may differ from one to another?

Yes, they do; as with any profession that requires independent analysis, an attorney's view point as to what constitutes an adequate threshhold will vary.

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Customer reply replied 7 months ago
Thank you for your reply. I have to comment that when the Florida Courts call the striking of pleadings "drastic action" with any doubts to be resolved in favor of the pleading. And when Courts say that a party may move to strike "When the material is wholly redundant, impertinent, immaterial, or scandalous or upon a showing that the pleadings is a mere pretense, set up in bad faith and without color of fact, clearly known to be false at the time of pleading" (Younger (Fla 5th DCA 2002), it seems to me that that the pleading threshold is a very bright line that would be very hard for anyone to cross. Yet I know it happens all too often.
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