alexarkadin wrote:
The whole key for the estate was to establish that Kirby had created characters on spec which he brought to Lee. That argument is sunk, because Lee claims to have created all the characters and basic plots before ever talking to Kirby. 


Toberoff would disagree with you on this point, which is why I think you misunderstand the legal reasoning here.  Reading Toberoff's briefs, I believe he thought the key to the case was the "cost" prong of the test, not the "instance" prong.   

If he truly believed that the key to his case was the argument that Kirby created the characters on spec, which I don't think any serious comic historian would agree with, then he committed malpractice because he failed to introduce much, if anything, in the way of admissible evidence to support that contention.  In contrast, he has good foundational evidence on the "cost" argument. 

Of course, once the Kirby's file their Appellant's Opening Brief any doubt about what Toberoff's strategy is will be removed.