Woodruff v. Tomlin

MERRITT, Circuit Judge,

dissenting.

I find the opinion of the Court unsatisfactory for two reasons. First, the Court erroneously concludes that the standard of liability for a lawyer engaged in litigation in Tennessee courts is one of ordinary negligence. This conclusion directly conflicts with the law as declared by Tennessee courts. Second, even if ordinary negligence were the standard under Tennessee law, the Court’s application of that standard to the facts of this case is unacceptable.

I.

Stricklan v. Koella, 546 S.W.2d 810 (Tenn.Ct. of Appeals, 1976), is the only reported Tennessee case which decides, or even discusses, the liability of a lawyer in the conduct of litigation. There the complaint alleged that the lawyer, in advance of trial, did not take three depositions as instructed by his client. The complaint did not allege bad faith but rather stated that the lawyer’s preparation for trial was negligent, “unprofessional” and “unskilled.”

After quoting from the portion of the complaint which asserts a negligence theory, the Tennessee Court of Appeals said: “[w]e hold that there can be no such cause of action in this state.” Id. at 812 . The Tennessee Court then acknowledged that “ordinarily a lawyer, like a physician, is liable for professional negligence,” but stated that entirely different considerations apply to “a cause of action for alleged negligence in the attorney’s choice of trial tactics or conduct of the cause.” Id. at 812-13 . As explained by the Tennessee Court, these considerations are as follows: (1) in litigation a lawyer has a different responsibility than in other legal matters, “a duty to the court which is paramount”; (2) the special nature of trial practice creates pressures, delays, strategems and lapses which the layman or “the client does not know” and understand and may “[t]o him indicate incompetence or negligence”; (3) “the possibility of being sued for negligence would at least subconsciously lead some counsel to undue prolixity [or defensive rather than vigorous and creative advocacy], which would not only be harmful to the client but against the public interest”; (4) a lawyer should not be held responsible for negligent errors and omissions in a case decided by a jury because “only by pure guesswork can the verdict of a jury be examined and a so-called cause for that verdict be determined.” Id. at 813 . The Court then concluded “that for the reasons given, there can be no cause of action [for negligence] against an attorney arising out of the manner in which he honestly chooses to present his client’s case to the trier of the facts.” Id. at 814 .

One may or may not agree with the policies enunciated by the Tennessee Court, but it has declared the current applicable standard of liability in Tennessee. It is not a negligence standard but a standard based on the “honesty” or “good faith” of the lawyer in the presentation of the case.

It is important to emphasize that under this standard the trial lawyer is not absolutely immune from civil liability for wrongful conduct, as are judges and prosecutors under federal law. Tennessee law gives the trial lawyer only a qualified privilege or immunity. Like the standard applicable to certain officials under federal law, see Butz v. Economou, 438 U.S. 478 , 98 S.Ct. 2894 , 57 L.Ed.2d 895 (1978), the Tennessee trial lawyer is civilly liable only for wrongful conduct that amounts to bad faith.

It is not unusual that this should be the standard. Under New York Times v. Sullivan, 376 U.S. 254 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (1964), journalists who exercise public responsibilities under the First Amendment are liable only for “malice” or the “reckless disregard” of the rights of others, not for negligent investigation, misstatement, omission or conflict of interest. They are given a qualified privilege, based on honesty and good faith, because of the nature of their work. There are other fields of law in which courts have devised ways to limit the liability of a person employed to exercise his trained judgment. For example, the public official and the corporate director are not liable for negligent mistakes in the exercise of discretion in making decisions. *946 They are given a qualified privilege based on good faith. See Wade, A Survey of the Law of Legal Malpractice, 32nd Ann.Proc. Miss.L.Inst. 49 (1978).

Trial lawyers have functions to perform similar to those of the journalist. When representing clients in court, they perform important duties referred to in the Constitution. The Sixth Amendment provides that “In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense,” and the Seventh says that “In suits at common law . . . the right of trial by jury shall be preserved.” Like journalists who cover public affairs, trial lawyers perform these functions in a heated, disputatious and highly competitive environment under strict deadlines and severe pressures. The search for truth is difficult and controversial. The trial lawyer’s role is often misunderstood. When he presses his advantage too far, fails to press it far enough, or presses it just the right amount, someone may be injured and want to sue him for wrongful conduct. When he wins or when he loses, when the verdict is too small or too large, the lawyer is open to criticism and suit. A disgruntled party may believe that his lawyer or his lawyer’s adversary unfairly caused the harm. The Tennessee Court cites these and other strong policy reasons for limiting the liability of lawyers engaged in litigation. My brothers simply pay no attention to the Tennessee Court’s holding or to its reasons.

In addition, the Court gives no consideration at all to the Tennessee Court’s discussion of proximate causation and fails entirely to analyze this issue. Should the members of the original jury and the trial judge have been called and asked to speculate upon the outcome of the case if the lawyer had followed the different strategy now advocated by the Woodruff family? The Court makes no effort to discuss this problem at all or give any guidance to the District Court in the trial of the case upon remand.

The Tennessee Court said: “Putting it as simply as we can, there is no way on God’s green earth that any one man, any twelve men, or any twelve hundred men, can tell with one iota of certainty how another man or jury would have decided a case if such and such had been said or done or had not been said or done. . . . ” There was no reliable proof on the subject of proximate cause in the court below. The Wood-ruff family did not attempt to prove a casual relationship between the lawyer’s conduct and the plaintiff’s damage. They should not be able to recover unless they prove that the jury would have reached a different verdict had the lawyer conducted the case differently. We should not remand the case for a new trial when the element of causation is entirely absent.

II.

Even if ordinary negligence were the standard of liability, a fair analysis of the facts shows that the lawyer was not guilty of negligence in marshalling and presenting the case to the trier of fact.

Except for the severity of the injuries to the Woodruff sisters, this was not an unusual automobile accident case. Similar accidents have occurred and similar cases have been tried many times.

The Woodruff sisters’ automobile was traveling west in a rural area of West Tennessee on a two lane, paved road, divided by a center line. Coming from the opposite direction in the eastbound lane was the heavily loaded tractor-trailer truck of James Pomeroy. The sisters topped a hill and saw the automobile of Lewis Nobles approximately 300 feet in front of them traveling in the same direction in the same lane. The Nobles automobile was stopped or traveling very slowly in preparation for a left turn across the road.

As demonstrated by the testimony of Joan Woodruff on page 61 of the transcript of the original trial, Patsy Woodruff panicked, slammed on the brakes and lost control of her car. Her car skidded some 250 feet into and across the wrong lane of traffic so that the front of her car headed south and the back end protruded onto the highway blocking a portion of the eastbound *947 lane of the road. Nobles had seen the Woodruff car in his rear view mirror as it topped the hill and decided to abort his turn and drive forward in order to clear the road for the oncoming car.

Pomeroy, the driver of the truck, was also faced with a quick decision. The Nobles car was in the opposite lane, and the Woodruff car was skidding towards him in his lane of traffic. Pomeroy pulled his truck off the road onto the right shoulder and applied his brakes. The Woodruff car, however, came all the way across the road and blocked the shoulder of the road on Pomeroy’s right; the back end protruded onto the road in Pomeroy’s lane of traffic. When Pomeroy saw he could not avoid the Woodruff car by pulling off the road to the right, he cut back to the left. The front end of Pomeroy’s truck crashed into the rear right side of the Woodruff car. Immediately after the crash Pomeroy faced yet another car coming in the westbound lane driven by Gayle Sterling. In order to avoid a head-on collision he cut back to the right missing her car completely.

The officer who investigated the accident testified that the Woodruff car laid down 252 feet of skid marks. This evidence, together with the driver’s loss of control, indicates that the Woodruff car was traveling at a high rate of speed. Other testimony showed that the Woodruff girls were in a hurry to get home and had just passed another ear going approximately 50-55 miles an hour. (Or.Tr. pp. 9, 36, 68.)

Based on these facts, the jury reached a logical conclusion. They concluded that the accident was caused by the negligent failure of the driver of the Woodruff car to keep her car under control. Were we reviewing the jury verdict on direct appeal, we would find no difficulty in sustaining the verdict below.

The majority opinion of our Court suggests that the result would have been different had the lawyer relied on T.C.A. §§ 59-854 and 59-859. Apparently, the Court overlooked the fact that the lawyer did rely on § 59-859. The statute is clearly set out in the original complaint page 8, but the transcript of the trial at page 521 shows that the trial judge refused to include it in his charge to the jury.

Neither § 854 nor § 859 is applicable to the facts of this case. Section 854(a) provides:

No person shall drive a motor vehicle at such a slow speed as to impede the normal and reasonable movement of traffic except when reduced speed is necessary for safe operation or in compliance with law.

Nobles was entitled to slow his car down at the bottom of the hill in order to turn left. Section 854 does not apply to prohibit a driver from slowing or stopping his car in the face of oncoming traffic in order to make a turn. The record shows that Nobles intended to turn left onto Murdock Road. On pages 340-41 and 451 of the trial transcript, Pomeroy and Nobles testified that Nobles’ left turn signal was blinking. The Court’s argument that the statute may be used to establish negligence per se on the part of Nobles simply will not stand analysis. Such an instruction by the state trial court would have been error.

Likewise, § 859 is inapplicable:

Upon any highway outside of a business or residence district no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main-traveled part of the highway when it is practicable to stop, park or so leave such vehicle off such part of said highway . . . and a clear view of such stopped vehicles shall be available from a distance of two hundred (200) feet in each direction upon such highway.

The facts demonstrate that Nobles had not parked his car on the highway but was slowing down to turn left. In addition, there is no proof that “a clear view” of Nobles’ car was not “available from a distance of two hundred (200) feet.” There was testimony throughout the record that it was between 300 and 330 feet from the crest of the hill to where Nobles’ car was stopping to turn left. (Trans, of original *948 trial p. 368.) In fact, the Woodruff’s own expert witness in the malpractice trial testified that the distance was some 300 feet from the crest of the hill to Murdock Road (Trans, of malpractice trial pp. 524-25.)

These two statutes are, therefore, inapplicable to the situation at hand, and under no reasonable interpretation can the lawyer for the Woodruff family be said to be derelict in failing to insist that Nobles violated these two statutes.

The Court is also in error when it concludes that Tomlin’s failure to interview three witnesses, Burkhead, Mclendon and Eddie Woodruff, should have gone to the jury on the issue of negligence.

The transcript of the malpractice trial at pages 741-42 shows that an investigator did interview Burkhead and furnished his statement to Tomlin. Although Burkhead did not see the accident, he said in the statement that based on noises he heard coming from the scene of the accident, he believed that the Nobles car moved forward before the accident occurred. Tomlin concluded on the basis of the statement that Burkhead’s* testimony would not be helpful. It conflicted with plaintiffs’ theory that Nobles’ automobile remained stationary in front of the Woodruff automobile, thereby creating a hazard. The lawyer concluded that interviewing Burkhead would serve no purpose. This appears to be the kind of tactical decision or exercise of judgment that should not go to the jury even under the standard advocated in the majority opinion.

Tomlin testified that he did not interview the two other witnesses, Mclendon and Eddie Woodruff, because he did not know of their existence. The father and mother of the girls testified that they told Tomlin during the first trial that these two witnesses could give helpful testimony rebutting the testimony of Lieutenant Melton, a Tennessee Highway Patrolman of many years experience. Officer Melton had investigated the scene of the accident immediately after it occurred. He testified that he measured the length of the skid marks behind the Woodruff car. They measured 252 feet. Mr. and Mrs. Woodruff testified that they told Tomlin that the two witnesses would testify that they had gone to the scene of the accident and measured the skid marks to be considerably less than the distance stated by Officer Melton. Tomlin simply denied that anyone had told him that these two witnesses could so testify.

This conflict does present a credibility issue, but there is no proof or reason to believe that the jury would have disbelieved the testimony of Officer Melton or that Tomlin’s failure to interview and call these two witnesses changed the outcome of the trial. The element of causation is missing. The witnesses were closely identified with the Woodruff family and had an interest in the outcome. Officer Melton was a neutral witness who testified that he measured precisely the length of the skid marks. It is pure speculation to say that the jury would have discredited his testimony. In order to send the case to the jury, there must at least be some reliable evidence on which the second jury could find a probability that the first jury would have reached a different verdict had the lawyer interviewed and called the witnesses.

On the so-called “conflict of interest” issue, there is a short answer. Had Joan, the passenger, decided to sue her sister, Patsy, the driver, she would have recovered nothing. The family’s automobile liability insurance policy apparently contained an exclusion disallowing recovery by family members. Even if Joan had obtained a verdict against Patsy, there would have been no insurance funds to pay the judgment. How can the lawyer be liable for failing to advise Joan Woodruff to sue her sister when such a suit would have profited her nothing?

Moreover, the majority opinion is remarkably silent on the subject of Joan’s consistent claim that her sister was not at fault. (See pages 8 and 38 of transcript of original trial.) Should another lawyer have been called in to try to persuade Joan to change her story to make out a claim against Patsy? Before my brothers condemn the lawyer, they should at least consider the ethical implications of such a course of conduct.

*949 Lastly, and most important, the girls’ legal guardian, the father, as a moral man, would not have consented for these injured girls to sue and testify against one another and thereby run the risk of lasting damage to the emotional stability of his children and the harmony of his family. As admitted by the Court, the record shows that Mrs. Woodruff did not want Patricia to feel that she was responsible for Joan’s injuries (Deposition of Lila Woodruff, p. 11). Charles Woodruff stated that he never thought Patricia caused the injury to Joan (Deposition of Charles Woodruff, p. 25) and both testified that they were a close family (Trans, of original trial, pp. 157, 259). There was testimony by Charles Woodruff, Lila Woodruff and Louis Hamilton, Patricia’s husband, that, after the accident, Patricia had a drastic personality change. She became depressed, defensive and had a short breaking point (Id. at 158, 260). She asked her father if she was at fault and had caused the accident (Id. at 156). Patricia also began doing poorly in school. She eventually had to drop out because of her inability to concentrate. If Joan had, in fact, brought suit against her sister Patricia, what would that have done to Patricia’s state of mind?

Thus, there was no real conflict of interest between Joan and Patsy Woodruff. The issue is purely imaginary. Joan did not want to sue Patsy. She would have recovered nothing if she had. It would have been a stupid thing to do.

In closing, it should also be pointed out that the whole Woodruff family testified that they felt Hewitt Tomlin had done a commendable job and, in fact, thanked him for a “job well done.” (See depositions of Lila, p. 13, Charles, p. 53, Joan, p. 55, and Patricia Woodruff, p. 9, respectively.) It was not until Charles Woodruff talked to the Arizona lawyer, Norman Herring, that he concluded Tomlin had not done a satisfactory job (Dep. pp. 54 & 60.) For our Court to permit this lawyer to continue to be harassed in this way is unjust.

For these reasons, I would affirm the judgment of the District Court directing a verdict for the defendant.