Legal malpractice plaintiffs argue that defendant attorney handled the case badly, and then go on to say that if the attorney had done "x", there would have been a better or different outcome.  Defendant argues that this is all "speculation."  If you were the Court, how would you decide?  Remember that legal malpractice analysis is always a comparison of how a "hypothetical" judgment, which might have been reached had the attorney done "x" versus the actual outcome.

In Citidress II Corp. v Tokayer  2013 NY Slip Op 02369   Decided on April 10, 2013   Appellate Division, Second Department we see the AD taking a position that "Speculative contentions about what might have happened had the defendant attorney (hereinafter the defendant) taken a different approach in litigating a case on behalf of the plaintiff were not sufficient to support the plaintiff’s allegations of legal malpractice (see Humbert v Allen, 89 AD3d 804; Dempster v Liotti, 86 AD3d 169, 180; Wald v Berwitz, 62 AD3d 786)."

Isn’t all legal malpractice "speculation" about what would have happened if the attorney had done "x" and whether the failure to do "x" was a departure?