Hindsight reasoning, roundly disliked by the judiciary is at the heart of legal malpractice.  Legal malpractice always comes down to a backwards comparison of the hypothetical better outcome v. the actual outcome.  This is the essence of the “but for” question.  Would there have been a better economic outcome “but for” the mistakes (or acts) of the attorneys?  Was this a mistake or a reasonable trial strategy?  In the end it all comes down to “reasonable doubt” (a criminal law standard of proof).  We see this in Brookwood Cos., Inc. v Alston & Bird LLP  2017 NY Slip Op 00535  Decided on January 26, 2017  Appellate Division, First Department.

“A focal point of this appeal is Brookwood’s claim that A & B, in the patent action, negligently litigated defenses that were available to Brookwood pursuant to 28 USC § 1498. 28 USC § 1498 provides that when a patent is infringed for the benefit of the United States government, the patent holder’s remedy is against the United States in the United States Court of Federal Claims. Brookwood alleges that had A & B not been negligent, the motions that A & B eventually brought based on 28 USC § 1498 would have been granted and Brookwood would have avoided the approximately $10 million it expended on defending itself at trial and on appeal. Important in this analysis is the fact that Brookwood ultimately prevailed in the underlying patent action, achieving a judgment of noninfringement. The theory of Brookwood’s malpractice case is not that but for A & B’s negligence it would have prevailed in the patent action; rather Brookwood’s claim is that but for the manner in which A & B interposed the defenses available to Brookwood under 28 USC § 1498, Brookwood would have prevailed without incurring the additional legal fees it expended. In other words, but for A & B’s negligence, Brookwood could have achieved the same result more expeditiously and economically. The Supreme Court granted A & B’s motion and dismissed the complaint in its entirety, holding, among other things, that the allegations did not support a finding of attorney negligence or of proximate cause. We now affirm.”

“Decisions regarding the evidentiary support for a motion or the legal theory of a case are commonly strategic decisions and a client’s disagreement with its attorney’s strategy does not support a malpractice claim, even if the strategy had its flaws. “[A]n attorney is not held to the rule of infallibility and is not liable for an honest mistake of judgment where the proper course is [*4]open to reasonable doubt” (Bernstein v Oppenheim & Co., 160 AD2d 428, 430 [1st Dept 1990]). Moreover, an attorney’s selection of one among several reasonable courses of action does not constitute malpractice (see Rosner v Paley, 65 NY2d 736, 738 [1985]; Rodriguez v Lipsig, Shapey, Manus & Moverman, P.C., 81 AD3d 551, 552 [1st Dept 2011]). Brookwood has not alleged facts supporting its claim that A & B’s evidentiary decision, to rely on Nextec’s expert, rather than compromise the merits of Brookwood’s position on other arguments, was an unreasonable course of action.”