Legal malpractice is always a comparison between the actual outcome and the hypothetical better outcome had the attorneys not departed from good practice. Courts often refuse to allow plaintiff to “prove” the hypothetical better outcome. While plaintiff can succeed where there has been a total shutout in the actual outcome (and can show that a reasonable jury would have awarded some recovery), here in Bei Yang v Pagan Law Firm, P.C. 2024 NY Slip Op 03394 [228 AD3d 547] June 20, 2024
Appellate Division, First Department the speculation was too great in trying to show that a reasonable jury would have awarded more than $ 1.3 million for the injuries.

“Defendants met their prima facie burden on a motion for summary judgment by submitting the affidavit of their legal expert, who averred that defendants did not depart from the applicable standard of care in prosecuting plaintiff’s medical malpractice action (see Orchard Motorcycle Distribs., Inc. v Morrison Cohen Singer & Weinstein, LLP, 49 AD3d 292 [1st Dept 2008]; see e.g. Merlin Biomed Asset Mgt., LLC v Wolf Block Schorr & Solis-Cohen LLP, 23 AD3d 243 [1st Dept 2005]). Defendants established that the decisions they made in that case were reasonable and strategic courses of action (see Orchard Motorcycle, 49 AD3d 292).

Plaintiff cannot show that, but for defendants’ negligence, she would have obtained a verdict after trial that exceeded the $1.3 million settlement amount defendants negotiated (see Gallet, Dreyer & Berkey, LLP v Basile, 141 AD3d 405 [1st Dept 2016]; see also Schloss v Steinberg, 100 AD3d 476 [1st Dept 2012]). Concur—Oing, J.P., Friedman, González, Rodriguez, O’Neill Levy, JJ. [Prior Case History: 75 Misc 3d 757.]“