The opinion
FRANKS, Judge,
dissenting.
The trial judge refused to disqualify plaintiffs’ counsel on defendant’s motion. The majority refuses to disqualify plaintiffs’ counsel on the basis of the same motion yet grants a new trial. I dissent.
The majority observes: “From our review of this record we cannot find that the defendant was not prejudiced by the described conduct of counsel for the appel-lee....” The record referred to is one devoid of any testimony by McFaddin at the trial. Apparently, he was available to testify but counsel elected not to call McFaddin as a witness. If we commence reversing cases on “what might have been”, it will be difficult to conclude any litigation. In order to reverse on the evi *912 dence or lack thereof, the evidentiary record at trial must establish the error. McCool v. United States, 263 F. 55 (6th Cir.1920); State v. Goad, 707 S.W.2d 846 (Tenn.1986); Strader v. State, 208 Tenn. 192 , 344 S.W.2d 546 (1961).
The majority’s statement that the affidavits of counsel state that counsel’s conduct prejudiced defendants begs the question. The issue is whether the evidentiary trial record establishes such prejudice. I agree with the trial judge that it does not. The affidavits in the record purporting to predict what would result if a witness were called to testify are highly improper and should not be considered.
I would not reverse on the grounds set forth in the majority opinion.