What is obvious to one is a judgment call to another.  in Noone v Stieglitz ;2009 NY Slip Op 01093 ; 59 AD3d 505]  February 10, 2009 ;Appellate Division, Second Department we see a plaintiff involved in a motor vehicle accident.  Defendant in that MV case claimed that it was forced out of its lane into plaintiff’s lane by an errent cab.  When the target attorney says that such a decision was a "judgment call" it often carries the day.
 

Case went to trial, and there was strong evidence for plaintiff, strong enough for plaintiff and defendant to enter into a high/low agreement while awaiting the jury.  High was $ 1 million and low was $ 500,000.  Verdict was for defendant, and plaintiff received the $ 500,000.

Plaintiff sues the attorneys on the theory that a map of the accident site would have demonstrated that there was no place from which a cab could have come, and if a map had been introduced in evidence, there would inevitably have been a plaintiff”s verdict.

"The respondents moved for summary judgment on the grounds, inter alia, that the plaintiff was advised of the consequences of the high-low settlement on the record in the underlying action, their strategy was to rely upon the favorable testimony of a nonparty eyewitness, and submitting a map of the road would not have helped the plaintiff’s case. The respondents noted that at the trial in the underlying action, the plaintiff’s position was that if there was no shoulder, there was no place for the yellow car to come from, but if there was some sort of shoulder, the defendant in the underlying action should have used the shoulder rather than the plaintiff’s lane to avoid the yellow car.

The Supreme Court granted the respondents’ motion for summary judgment dismissing the complaint insofar as asserted against them, noting that the respondents "offered a reasonable trial strategy as to why they did not submit the maps and diagrams." The plaintiff appeals.

To establish a claim to recover damages for legal malpractice, "a plaintiff must demonstrate that the attorney ‘failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession’ and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages" (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007], quoting McCoy v Feinman, 99 NY2d 295, 301-302 [2002])."Attorneys are free to select among reasonable courses of action in prosecuting clients’ cases without thereby exposing themselves to liability for malpractice" (Iocovello v Weingrad & Weingrad, 4 AD3d 208, 208 [2004]; see Rosner v Paley, 65 NY2d 736, 738 [1985]). Here, the respondents established their entitlement to judgment as a matter of law by demonstrating that they were pursuing a reasonable trial strategy. Further, they demonstrated that the plaintiff was advised of the consequences of the high-low settlement. In opposition, the plaintiff failed to raise a triable issue of fact.