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Do lawyers for plaintiffs ever sue defendants just to see if “somebody's home?”

Worcester, MA |

For example, lets say the plaintiff accepted a foolish contractual agreement from the defendant, and had paid the defendant much more than they had intended, but they only discover this later. They don't really know the defendant, but they think they may either be mismanaged or very poorly run.

In this situation, do plaintiff's lawyers ever try to sue the defendant hoping that they are foolish enough not to respond, and therefore hoping to secure a summary judgment?

In this scenario assume the plaintiff's case is not frivolous, just that if it were properly defended most likely result would be in favor of the defense.

Attorney Answers 2


The scenario is too sketchy to give a detailed answer. While there are bad apples in every bunch, I would like to think we all would not bring a case that has no merit; indeed we are governed by ethical rules that prohibit it. None of us has a crystal ball as to default or active defense. Default would likely lead to collection efforts, which will wake up the other side and likely lead to removal of the default. So we all assume active defense, as should you. Frivolous or not I suppose is in the eye of the beholder, but bringing a case that you expect to lose would fit that definition in my book.

To questioners from West Virginia & New York: Although I am licensed to practice in your state, I practice on a day-to-day basis in Massachusetts. I answer questions in your state in areas of the law in which I practice, and in which I feel comfortable trying to offer you assistance based on my knowledge of specific statutes in your state and/or general principles applicable in all states. It is always best, however, to work with attorneys and court personnel in your own area to deal with specific problems and factual situations.

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Rule 3.1 of the Massachusetts Rules of Professional Conduct, which governs the conduct of Massachusetts attorneys, prohibits a lawyers from filing frivolous claims that have no good faith basis.

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