616 F.2d 924 (6th Cir. 1980)
In May 1968, fifteen-year-old Joan Woodruff and sixteen-year-old Patricia Woodruff were severely injured in an automobile collision on Highway 100 in Chester County, Tennessee, when the car driven by Patricia and owned by their father Charles Woodruff was struck by a 73,000-pound gravel truck.1 Joan was thrown from the car and run over by the truck, crushing the bones in her legs and tearing the skin, while Patricia sustained a skull and brain injury resulting in traumatic amnesia.2 The girls' hospital bills alone exceeded $20,000.3 Charles Woodruff carried liability insurance with Tennessee Farmers Mutual Insurance Company with limits of $10,000 per person and $20,000 per occurrence.4 The insurer's claims adjuster Theo. Leathers contacted Woodruff, provided a medical reimbursement check, advised him to retain a lawyer because witness statements were inconsistent and changing, and recommended Hewitt P. Tomlin, who also represented the insurance company.5
Tomlin filed personal injury suits for Joan and Patricia and a property damage suit for Charles Woodruff against truck driver Pomeroy, owner Teague, and another driver Nobles in the Circuit Court of Chester County, Tennessee.6 Pomeroy and Teague filed counter-suits against Patricia and Joan alleging negligence by Patricia and aiding and abetting by Joan.7 Tomlin, as counsel for the insurer, defended the counter-suits.8 All cases were consolidated for trial.9 The first trial ended in a 9-3 hung jury and mistrial.10 At the second trial the jury returned verdicts against the Woodruffs on their personal injury claims and awarded $600 to Pomeroy and $3,000 to Teague against Patricia.11 The Tennessee Court of Appeals affirmed the judgments against Patricia but reversed as to Joan, holding there was no evidence she aided and abetted.12
The Woodruffs then filed a legal malpractice action against Tomlin and his law firm in the United States District Court for the Western District of Tennessee based on diversity of citizenship.13 They alleged negligence in the investigation, preparation for trial, and presentation at trial of the state court cases, including specific failures to seek a change of venue or refile in federal court, to object to a jury instruction, to consult a traffic reconstruction expert, to interview available witnesses, to cite certain statutes, and to avoid damaging concessions on appeal.14 They also alleged breach of fiduciary duties arising from Tomlin's simultaneous representation of the insurer, the father, and both daughters.15 The district court severed the conflict of interest claims, ordered a bifurcated jury trial on liability and damages, and after the jury failed to reach a verdict on liability granted the defendants' motion for judgment n.o.v. dismissing the complaint.16
An appeal was taken to the United States Court of Appeals for the Sixth Circuit.17 A panel of the court reversed the district court's judgment.18 The court then granted rehearing en banc, vacating the panel opinion and judgment, and the case was reargued before the full court after additional briefing.19
Whether the defendants committed legal malpractice by failing to attempt to obtain a change of venue or to take a nonsuit and refile in federal court?20
Under Tennessee law an attorney is bound to exercise reasonable skill and diligence in attending to business entrusted to his care.21 An attorney is not liable for refusing to make a frivolous motion such as one for change of venue based on unsubstantiated rumor.22 An attorney is not liable for continuing to pursue an action in state court. This applies when the attorney has no clear notice of a change in residence sufficient to support diversity jurisdiction. No evidence exists of systematically higher verdicts in federal court.
No. The established facts show that Charles Woodruff relayed only an unsubstantiated rumor that a fair trial could not be obtained in Chester County and that Tomlin correctly assessed the motion as having virtually no chance of success.23 The facts further establish that Tomlin was never clearly advised that the family had changed residence to Arizona. This is demonstrated by Joan Woodruff's trial testimony placing her residence in Toone. Tomlin regarded the family as Tennessee residents with no perceptible pattern of higher verdicts in federal court.
These facts demonstrate that Tomlin's decision rested on an honest exercise of professional judgment rather than a failure to exercise reasonable skill and diligence.24
The defendants did not commit legal malpractice by failing to attempt to obtain a change of venue or to take a nonsuit and refile in federal court.25
Related opinions on this issue
Weick disagrees with the majority on this issue. He notes that after the first trial ended in a mistrial a juror advised Woodruff that a fair trial could not be obtained in Chester County. Tomlin gave incorrect advice by failing to dismiss without prejudice and refile in federal court.
Weick further observes that an incident of alleged juror tampering by defendant Nobles during the second trial illustrates the wisdom of the juror's advice.26
Whether the defendants committed legal malpractice by failing to object to a jury instruction on last clear chance and to preserve the error for appeal?27
Under Tennessee law an attorney is not liable for failure to object to or preserve an instruction on last clear chance when the proper application of the doctrine was unsettled at the time of trial.28 This is reflected in conflicting intermediate appellate decisions that were later corrected by the state supreme court several years afterward.29
No. The established facts show that the last clear chance instruction given at the second trial reflected the rule then being followed by the Western Section of the Tennessee Court of Appeals in Gardner's Masonry and Smith v. Craig. That rule held that continuing contributory negligence remained a complete defense. The facts further establish that Street v. Calvert, which repudiated those decisions, was not rendered until nearly five years after the Woodruff trial.30 These facts demonstrate that Tomlin's failure to object or preserve the issue rested on an honest exercise of professional judgment in light of the unsettled state of Tennessee law at the time.31
The defendants did not commit legal malpractice by failing to object to a jury instruction on last clear chance and to preserve the error for appeal.32
Whether the defendants committed legal malpractice by failing to consult a traffic reconstruction expert?33
Under Tennessee law an attorney is not liable for the choice to establish physical facts through an engineer's plat rather than a traffic reconstruction expert when there is no evidence that the accepted standard of performance requires such an expert.34 The decision constitutes an honest exercise of professional judgment regarding the most effective presentation of the client's case.35
No. The established facts show that Tomlin employed an engineer who made measurements and prepared a plat. Distances and stopping times were simple mathematical computations once the physical facts were established. There was no evidence the accepted standard of performance for Tennessee lawyers required consultation with a traffic reconstruction expert. The facts further establish that Tomlin made a tactical decision to rely on the testimony of Joan Woodruff and Gayle Sterling rather than cross-examine the state's expert.36
These facts demonstrate that the decision rested on an honest exercise of professional judgment rather than a failure to exercise reasonable skill and diligence.37
The defendants did not commit legal malpractice by failing to consult a traffic reconstruction expert.38
Whether the defendants committed legal malpractice by failing to interview and present available witnesses identified by the client?39
Under Tennessee law an attorney is liable for malpractice when he fails even to interview persons whom his client has identified as potential witnesses whose testimony would be material to the issues.40 Such failure constitutes neglect rather than an honest exercise of professional judgment in the choice of trial tactics.41
Yes. The established facts show that Charles Woodruff told Tomlin well before trial that Eugene Burkhead could testify to a five-to-six-second lapse between the end of the Woodruff skid marks and the impact. Mail carrier Mclendon and the Woodruffs' son could testify that the skid marks measured approximately 180 feet rather than the 252 feet reported by the investigating officer. The facts further establish that Tomlin never interviewed these witnesses and had no recollection of being told about Mclendon or the son until the malpractice action was filed.42
These facts demonstrate that Tomlin failed to exercise reasonable skill and diligence in attending to business entrusted to his care.4344
The defendants committed legal malpractice by failing to interview and present available witnesses identified by the client.45
Related opinions on this issue
Engel reserves judgment on whether investigative activity falls within the limited immunity of Stricklan but concludes that even under the majority's view the testimony of the neglected witnesses was not sufficiently different from that already in the record to warrant reversal.46 He notes that any factual dispute was not material and would not have affected the outcome of the case.47 Engel emphasizes that the Tennessee Court of Appeals in Stricklan relied on English precedent from Rondel v. Worsley to remove evaluations of attorney conduct based solely on negligence from jury consideration.48
He cautions against interfering with state court interpretations of their own law even when federal judges might prefer a different rule.49
Whether the defendants committed legal malpractice by failing to bring Tennessee Code Annotated sections 59-854 and 59-859 to the attention of the trial court?50
Under Tennessee law an attorney is liable for loss to clients resulting from a want of proper knowledge of statutes in common use or of such plain and obvious principles as every lawyer is presumed to know.51 This includes the failure to urge applicable statutes as a basis for establishing negligence as a matter of law.52
Yes. The established facts show that Tomlin requested instructions on several statutes but did not rely on Tennessee Code Annotated sections 59-854 and 59-859. These statutes make it unlawful to drive so slowly as to impede traffic or to stop a vehicle within 200 feet of the crest of a hill. The facts further establish that there was evidence Nobles was stopped in the highway or proceeding very slowly as the Woodruff car approached.
Tomlin gave no explanation for his failure to urge these statutes. These facts demonstrate that Tomlin failed to exercise reasonable skill and diligence in attending to business entrusted to his care.
The defendants committed legal malpractice by failing to bring Tennessee Code Annotated sections 59-854 and 59-859 to the attention of the trial court.53
Whether the defendants committed legal malpractice by concessions made in the appellate brief?54
Under Tennessee law an attorney is not liable for concessions in an appellate brief that result from a tactical decision reached in the exercise of professional judgment.55 This includes the decision to concentrate on the stronger claim of one client while conceding that substantial evidence supported the jury's finding against another client whose negligence was not imputed to the first.56
No. The established facts show that the brief conceded only that substantial evidence supported the jury's finding that Patricia Woodruff was negligent. A concession that was clearly supported by the record. The defendants concentrated on attempting to salvage Joan Woodruff's case by showing negligence on the part of Nobles and Pomeroy. The facts further establish that the court of appeals did vacate the judgments against Joan on the counterclaims.57
These facts demonstrate that the concessions resulted from a tactical decision reached in the exercise of professional judgment rather than a failure to exercise reasonable skill and diligence.58
The defendants did not commit legal malpractice by concessions made in the appellate brief.59
Whether the district court erred in granting summary judgment on the plaintiffs' claim of malpractice based on alleged conflict of interests?60
Under Tennessee law an attorney who undertakes multiple representation must disclose differing interests and potential conflicts to the clients and obtain their consent after full disclosure.61 Failure to do so may constitute a breach of fiduciary duty even in the absence of bad faith. The question whether the client suffered injury as a result is one for the jury.
Yes. The established facts show that Tomlin undertook to represent the insurer, Charles Woodruff, Patricia Woodruff, and Joan Woodruff simultaneously. Joan as a passenger had a potential claim against Patricia that the insurer would have been obligated to defend. Tomlin never advised Charles Woodruff that Joan had a potential claim against Patricia.
The facts further establish that Charles Woodruff testified he would have permitted Joan to sue Patricia and did not know of this possibility until after the trials were over.62 These facts demonstrate that an issue of fact existed on whether Tomlin's failure to advise his clients fully constituted legal malpractice or breach of fiduciary responsibility.63
The district court erred in granting summary judgment on the plaintiffs' claim of malpractice based on alleged conflict of interests.64
Related opinions on this issue
Merritt concludes there was no real conflict of interest. He notes that the family's policy apparently contained a family exclusion that would have prevented Joan from recovering from Patricia, that Joan consistently claimed her sister was not at fault, and that the father as moral guardian would not have consented to the sisters suing each other and risking lasting damage to family harmony.65 Merritt further observes that the Woodruff family initially thanked Tomlin for a job well done.66
He stresses that the majority's approach would encourage unethical conduct by suggesting another lawyer might persuade Joan to change her consistent testimony.67