One unique aspect of Legal Malpractice is the principal that an attorney may not be held responsible for a strategic decision, even if it is a loser.  So long as it is reasonable, both subjectively and objectively, the attorney will not be held in legal malpractice.

This 2d Circuit case,Rubens v. Mason bears on this principal.  This is the third go-round for plaintiff.  Her case was dismissed by Judge Chin, and she went to the 2d Circuit, which reversed.  The case was again dismissed by Judge Chin, and again, the 2d Circuit has reversed.  At the first reversal, the court wrote that "whether Mason’s alleged failures were negligent or merely reasonable tactical decisions presented a question of fact that could not be resolved on summary judgment.”

Interestingly, the court found an allegation that defendants did not bring the correct expert to a Dalkon Shield arbitration to be the strongest theory of causation.  Beyond the implicit annoyance of the 2d Circuit at this decision, is the broader question of whether strategic or tactical decisions may be the subject of a motion to dismiss or summary judgment.