Woodruff v. Tomlin

ENGEL, Circuit Judge,

dissenting.

Because I believe that the majority has departed from the admonitions of Erie Railroad Co. v. Tompkins, 304 U.S. 64 , 58 S.Ct. 817 , 82 L.Ed. 1188 (1938), to substitute its judgment for what is plainly the law of Tennessee, I must respectfully join Judge Merritt in his dissent.

*944 In my opinion, the trial judge correctly held that Stricklan v. Koella, 546 S.W.2d 810 (Tenn.Ct.App.1976), compelled the directed verdict. Clearly, the Tennessee Court of Appeals, in deciding Koella , directly relied upon the rationale of Rondel v. Worsley, (1966) 1 All E.R. 467, (1966 C.A.) 3 All E.R. 657 and (1967 H.L.) 3 All E.R. 993, which expressly held that clients had no action against a lawyer for negligence in the conduct of the case in court. If the Tennessee courts choose to repair to English law for guidance, our court should not interfere. They have a right to seek wisdom where they can find it. One of the glories of our federal system is its ability to tolerate a wide variety of legal experience, even at the expense of foregoing the advantage of uniformity throughout the several states.

The majority opinion, in a scholarly and highly intelligent way, seeks to reconcile Koella with the general law of malpractice observed in Tennessee and elsewhere throughout the United States. In my opinion, however, the end result simply is to rob Koella of all of its substantive meaning as a rule of law governing the liability of attorneys with respect to their conduct of their client’s case in the state’s courts. Right or wrong, the intention of Koella , as indeed of Rondel, was to remove altogether from the jury’s consideration evaluations of the conduct of attorneys based solely upon negligence. For all practical purposes, the majority opinion reduces the issue decided in Koella to a question of semantics. I do not think this is the intent of the Tennessee courts.

While I generally subscribe to the views expressed by Judge Merritt in his dissent, I have one reservation. I am not at all certain that the limited immunity conferred by Koella extends to that conduct of an attorney which is basically investigative in nature. Nearly every activity which an attorney undertakes and which is subject to the usual laws of legal malpractice in Tennessee and elsewhere will involve investigation both of the law and of the facts. It may also pose the potential for ending up in litigation if a resolution of difference is not amicably reached. I am reluctant to hold, therefore, that this investigative activity is within the limited immunity of Koella in the absence of some definitive statement to that effect from the Tennessee courts. In my view, we need not reach this legal issue because even under the majority’s more liberal view, the testimony which might have been elicited from neglected witnesses is not sufficiently different from that already on the record to warrant a reversal and remand for a new trial on that account. There may indeed have been a factual dispute between the testimony of these witnesses and of the police officer, but in my opinion that dispute was not material and would not have affected the outcome of the case.

That the Tennessee Bar Association has filed an amicus brief strongly supporting the district court opinion can perhaps be charged to the special interest of the state’s legal community in avoiding an expansion of its professional liability. I cannot, however, so easily dismiss the fact that both active judges on our court from Tennessee, one of whom tried the case, are of like mind. We have repeatedly accorded considerable weight to the interpretation of state law made by the federal judges who are located in that state and who, therefore, are possessed of a greater sensitivity to the state’s interpretation of its own laws. Lenoir v. Porters Creek Watershed District, 586 F.2d 1081, 1093 (6th Cir. 1978). See also Martin v. University of Louisville, 541 F.2d 1171 , 1176 n.7 (6th Cir. 1976), and cases cited therein. The Supreme Court has stated that:

In dealing with issues of state law that enter into judgments of federal courts, we are hesitant to overrule decisions by federal courts skilled in the law of particular states unless their conclusions are shown to be unreasonable.

Propper v. Clark, 337 U.S. 472, 486-87 , 69 S.Ct. 1333, 1342 , 93 L.Ed. 1480 (1949), cited with approval by Mr. Justice Stevens in Bishop v. Wood, 426 U.S. 341 , 346 n.10, 96 S.Ct. 2074 , 2078 n.10, 48 L.Ed.2d 684 (1976).