Judgment is the shorthand for the principal in legal malpractice that an attorney may not be held liable for legal malpractice solely upon an act or decision which is said to be the product of a question of judgment.  Selection of experts, selection of witnesses, which questions are put to a witness, and many other issues can be questions of judgment.  Here, in U.S. Bank National Association, as Trustee for asset Backed Pass through certificates, series 2006-HE1, Plaintiffs v. Alan C. Stein, Esq., Gastwirth, Mirsky & Stein, L.L.P., Law office of Alan C. Stein, P.C., Robert M. Steinert and Chicago Title Insurance Company, Defendants, 016919/08 we see the application of this principal.

"In an action 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 N.Y.3d 438, 442 (2007), quoting McCoy v. Feinman, 99 N.Y.2d 295, 301 302 (2002). To establish causation, "a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence". Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d at 442. Expert testimony is normally needed to establish that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, "unless the ordinary experience of the fact finder provides sufficient basis for judging the adequacy of the professional service, or the attorney’s conduct falls below any standard of due care". Greene v. Payne, Wood & Littlejohn, 197 A.D.2d 664, 666 (2d Dept. 1993).

An honest error of judgment or the "selection of one among several reasonable courses of action does not constitute malpractice". Rosner v. Paley, 65 N.Y.2d 736, 738 (1985), nor is the attorney "held to the rule of infallibility" or "liable for an honest mistake of judgment where the proper course is open to reasonable doubt". Grago v. Robertson, 49 A.D.2d 645, 646 (3d Dept 1975). Absent "reasonable" courses of conduct found as a matter of law, a determination that a course of conduct constitutes malpractice requires findings of fact. Grago v. Robertson, 49 A.D.2d 645, 646 (3d Dept. 1975).

As succinctly stated by the Court of Appeals, the relevant question on the viability of the contribution claim asserted herein is not whether the Baum Firm owed a duty to Stein, "but whether each owed a duty to plaintiff and whether, by breaching their respective duties, they contributed to her ultimate injuries…" Schauer v. Joyce, 54 N.Y.2d 1, 6 (1981). There are potentially two tortfeasors here. Stein may be found negligent in failing to have properly recorded the US Bank Mortgage and the Baum Firm may likewise be found negligent in failing to have secured an equitable lien which would have minimized US Bank’s damages. Accordingly, there are issues of fact with respect to whether Stein and the Baum Firm will be liable for legal malpractice. Under the circumstances of this case, neither party is entitled to summary judgment."