# Petition — Tomlin v. Woodruff > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2381%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 449 U.S. 888 ## Text =" “aI 7 Preme Court, U. a. ; FILED al MAY 121997 = _MICHAFL RODAK, JR., CLERK NR TT In the Supreme Court of the United States HEWITT P. TOMLIN, JR.; HOMER H. WALDROP; ROY HALL; and DAVID R. FARMER, Individually and As Partners Doing Business Under the Name and Style of Waldrop, Hall, Tomlin and Farmer, a Professional Business Association, Petitioners, VS. JOAN WOODRUFF; PATRICIA WOODRUFF HAMILTON; and LOUIS HAMILTON, Respondents. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT LEO BEARMAN, JR. 1140 Sterick Building Memphis, Tennessee 38103 and JOHN J. THOMASON Suite 2518 100 North Main Building Memphis, Tennessee 38103 Attorneys for Petitioners a E. L. MENDENHALL, INc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030 TABLE OF CONTENTS ir EEO | NII sicicsicacosiripsnsdnssicuschns ileaipentepemabatantaienines TEES Fe PAT RIO svccscncestisiscacsaincetessspnssacetonsinn QUESTIONS PRESENTED FOR REVIEW .................... CONSTITUTIONAL AND STATUTORY PROVI- RTE GIEE RIIN TROP pnictdenininnicanonsnseacenpetrasedadincantsealbiaapta, EAR EUR SAE RE NIE erichiccceccmicempeciines REASONS RELIED UPON FOR GRANTING WRIT OF CERTIORARI— THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT, SITTING EN BANC, HAS DECIDED AN IMPORTANT STATE QUESTION IN A MANNER IN DIRECT CONFLICT WITH APPLICABLE STATE LAW A. Under Tennessee Law, There Is No Cause I. B. Of Action Against An Attorney For The Manner In Which He Honestly Chooses To Present His Client’s Case To The Trier Of The Facts; In This Cause, However, The United States Court Of Appeals Failed To Follow Tennessee Law, Thus Violating The Mandate Of Erie Railroad Company v. Tompkins And Establishing A Dual Stan- dard Of Liability For Tennessee Trial At- I ac cesisinenssciousasceubiespnsneneiinledaseaaiaieieisinabicidenaniciaiads Tennessee Law On Attorney Malpractice In The Trial Of A Lawsuit Specifically Fol- lows The Law Of England (Now Also Adopted By New Zealand) In Granting The Trial Attorney Immunity, Absent Bad Faith; _ The United States Court Of Appeals In This Diversity Case Erroneously Applied A Dif- OCU TI hiciicccieeaces Sees II C. Under Tennessee Law A Trial Attorney’s Alleged Conflict Of Interest Cannot Be The Basis For A Malpractice Suit Against Him; The United States Court Of Appeals Has Erroneously Held To The Contrary ................ 14 I sal ta hcsnadeinichiedtapcancnaiceneansssansiis ctiieasbssahihesces 17 ge Ne ye 6 5 4 | Onan 18 P APPENDIX: Appendix A—Opinion Of United States District Court For Western District of Tennessee [Wood- ruff v. Tomlin, 423 F.Supp. 1284 (W.D. Tenn. A cide tad Rela lls sijscccachlinhauibactedgebarenantinnaiehaananensiis Al Appendix B—Opinion Of United States Court Of Appeals For The Sixth Circuit [Woodruff v. Tomlin, 593 F.2d 33 (6th Cir. 1979) ] 0.0 .. Al3 Appendix C—En Banc Opinion Of The United States Court Of Appeals For The Sixth Circuit .... A35 Table of Citations STATUTES AND RULES Rule 10E, Federal Rules of Appellate Procedure ............ 15 ede ccorin qnadisone dpdbcauiedstubestasimnasichwatnsasves 2 ‘ Nee ca cd sacncnsiiah darpaneasaes 3,4 5(a), Tennessee Code Annotated, page 89 000... 3, 14 $59-859, Tennessee Code Annotated ....00.0000000 10 §59-854, Tennessee Code Annotated 220020... 10-11 CasEs CITED Biggar v. McLeod, (1977) 1 N.Z.L.R. 321 00... 12 Butz v. Economy, ........ Be nastics , 98 S.Ct. 2894 (1978) 13 Erie Railroad Company v. Tompkins, 304 U.S. 64, 58 sass a neyo vénnnnensasescesdeainganchahecsad 3, 7, 8, 14 III Ferri v. Ackerman, ........ i» Sarees , 100 S.Ct. 402 (1979) 13 Rees v. sitet, (1974) 1 NZD. 160 on... ecckiseccsscesscsces: 12,13 Rondel v. Worsley, (1966) 1 All. E.R. 467 (1966 C.A.), 3 All, E.R. 657 (1967 H.L.), 3 All. E.R. 993 (1969), 1 SAE I Agni citici cesses csntn aca cdersse iterinnpaciedcietaghinakacloaus toute abana aos 12, 13 Sitton v. Clements, 385 F.2d 869 (6th Cir. 1967) ........ 15 Stricklan v. Koella, 546 S.W.2d 810 (Tenn. App. 1976, cert. denied by S.Ct. of Tenn., Feb. 7, 1977) ... .... 6, 7, 8, 9, £2, 13, 14, 15 Woodruff v. Tomlin, 423 F.Supp. 1284 (W.D. Tenn. NERS: sscanesispicsatsaheeusietarn encsnesane kan oapelcueiabbenan basmati ian ] Woodruff v. Tomlin, 593 F.2d 33 (6th Cir. 1979) (Opin- ion vacated by U.S. Court of Appeals) ............ 1, 6, 13, 14 Woodruff v. Tomlin, Opinion by U.S. Court of Appeals Sitting En Banc (Feb. 21, 1960) ..........................0000...- 2 In the Supreme Court of the United States HEWITT P. TOMLIN, JR.; HOMER H. WALDROP; ROY HALL; and DAVID R. FARMER, Individually and As Partners Doing Business Under the Name and Style of Waldrop, Hall, Tomlin and Farmer, a Professional Business Association, Petitioners, VS. JOAN WOODRUFF; PATRICIA WOODRUFF HAMILTON; and LOUIS HAMILTON, Respondents. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Your petitioners above-named respectfully pray that a writ of certiorari issue to review the judgment and order of the United States Court of Appeals for the Sixth Circuit sitting en banc, decided and filed February 21, 1980. OPINIONS BELOW The opinion of the United States District Court for the Western District of Tennessee was reported as Woodruff v. Tomlin, 423 F.Supp. 1284 (W.D. Tenn. 1976) and is printed as Appendix A. The original opinion by a panel of the United States Court of Appeals for the Sixth Cir- cuit was reported as Woodruff v. Tomlin, 593 F.2d 33 (6th Cir. 1979) and is printed as Appendix B. That opinion 2 was vacated by the United States Court of Appeals after it granted petitioners’ petition for a rehearing and a sug- gestion of rehearing en banc. The subsequent opinion of the United States Court of Appeals for the Sixth Circuit sitting en banc is not reported and is printed as Ap- pendix C. BASIS FOR JURISDICTION The opinion and judgment of the United States Court of Appeals for the Sixth Circuit sitting en banc, was filed February 21, 1980. This Court’s jurisdiction to review the judgment in question is invoked pursuant to 28 U.S.C. §1254. QUESTIONS PRESENTED FOR REVIEW 1. Should a trial attorney be subjected to a suit for mal- practice arising out of the judgmental and tactical decisions he must make in the planning, presentation and argument of his client’s case to the trier of fact? 2. If in Tennessee there can be no cause of action for malpractice 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, can the United States Court of Appeals, in a diversity case from Tennessee, hold other- wise? 3. When the only reported case on point in Tennessee expressly holds that, while there is no general exemption 3 for Tennessee attorneys against negligence in malpractice, “there can be no cause of action 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,” can the United States Court of Appeals, in a diversity case from Tennessee alleging attorney malpractice, hold that a trial attorney’s judgmental decisions on the witnesses he interviews, the statutes he argues to the jury, and the parties he represents in the trial, may form the basis of a cause of action of malpractice against him? 4. Can an attorney’s alleged conflict of interest be the basis of a civil suit for negligence against him when there is no proof that the alleged conflict resulted in any dam- ages to his client? CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED 28 U.S.C. §1332—Diversity of Citizenship; Amount in Controversy; Costs. (a) The District Court shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $10,000.00 ex- clusive of interest and costs, and is between (1) citizens of different states .... Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817 (1938). Tennessee Code of Professional Responsibility, 5(a) Tenn. Code Ann. at page 89: The Code makes no attempt to prescribe either dis- ciplinary procedures or penalties for violation of a Disciplinary Rule, nor does it undertake to define standards for civil liability of lawyers for professional conduct. STATEMENT OF THE CASE The issue raised in this petition has been decided by the House of Lords in England, by the New Zealand Court of Appeals, by the Tennessee Court of Appeals, and in this case, by the Court of Appeals for the Sixth Circuit. Only the Sixth Circuit, in a sharply divided de- cision by an en banc court, has ruled contrary to pe- titioner’s position. The importance of this issue is evidenced by the four separate opinions filed by that en banc court: Judge Lively writing for a majority of four, Judge Weick con- curring in part and dissenting in part, Judge Engel dis- senting, and Judge Merritt dissenting. - The decision in this case, if left standing, will allow a jury to find a trial attorney guilty of malpractice by “second guessing” the judgmental decisions the attorney makes in the preparation and trial c: his client’s case. As such it adversely affects every trial attorney at the Bar; eliminates that attorney’s independent role as an officer of the court and renders the trial attorney’s judgment sub- servient to a client’s whims; and thus seriously hinders the efficient and effective operation of the adversary system and disposition of trial cases. This is a suit for attorney malpractice brought by respondents, former clients of petitioners, against peti- tioners in the United States District Court for the Western District of Tennessee. Jurisdiction in the trial court is based upon diversity of citizenship pursuant to 28 U.S.C. §1332. Tennessee law governs. ’ Respondents (plaintiffs below) brought suit against petitioners Hewitt P. Tomlin and his law firm (defendants below) who represented the plaintiffs in their personal in- jury suits arising out of an automobile accident occurring 5 May 22, 1968 on Highway 100 in Chester County, Tennessee. The facts of the accident were hotly disputed. The plaintiff, Joan Woodruff, was a passenger in her father’s automobile being driven by her sister, Patricia Woodruff, on a two-lane road in Chester County, Tennes- see, when it was involved in an accident with a truck ap- proaching from the opposite direction. After a trial which lasted more than a week, the jury rendered a verdict in favor of the defendants in the suits brought by the Wood- ruff girls. An appeal filed by Tomlin to the Court of Appeals of Tennessee, Western Section, was unsuccessful. The Woodruff girls then brought suit against Tomlin and his law firm, alleging that they had negligently pre- pared, tried, and appealed the personal injury suits. They further alleged that Tomlin represented conflicting inter- ests by representing both Joan and Patricia Woodruff (al- though he had been requested to do so by both girls and their parents), and that this “conflict of interest” had somehow caused them damages. (The girls’ father, Charles Woodruff, carried liability insurance on his automobile, but this insurance excluded coverage for Patricia Woodruff in the event she was sued by her sister, Joan Woodruff, who was a resident of the same household. Therefore, had Joan sued Patricia, she could have collected nothing.) When the malpractice case was tried in the United States District Court, District Judge (now Judge in the United States Court of Appeals for the Sixth Circuit) Bailey Brown eliminated the issue of conflict of interest from the trial, holding that no jury could reasonably deter- mine that there was any proximate causal connection be- tween the alleged conflict, if any, and the loss of the per- sonal injury suit by the Woodruffs in state court. The Woodruffs alleged negligence on the part of petitioners in (1) failing to attempt either to change venue or to refile 6 the case in Federal Court; (2) failing to object to an allegedly erroneous jury instruction; (3) failing to consult a traffic reconstruction expert and use him as a witness at trial; (4) failing to interview and present available wit- nesses who might testify to important facis; (5) failing to bring to the attention of the trial court and jury certain Tennessee statutes bearing on the operation of motor ve- hicles in the state; (6) and negligence in the conduct of the appeal. The jury in the United States District Court dis- agreed, and a mistrial was declared. Petitioners’ motion for judgment notwithstanding the mistrial was granted by the United States District Court, the Court relying upon a published opinion of the Court of Appeals of the State of Tennessee in the case of Stricklan v. Koella, 546 S.W.2d 810 (Tenn. App. 1976, cert. denied by the Supreme Court of Tennessee Feb. 7, 1977). That case held that, while Tennessee would recognize generally a cause of action for malpractice against attorneys, “there can be no cause of ac- tion 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.” Stricklan v. Koella, supra, at p. 814 (Emphasis supplied). On appeal the panel opinion of the United States Court of Appeals for the Sixth Circuit reveresd the judg- ment of the District Court. See Woodruff v. Tomlin, 593 F.2d 33 (6th Cir. 1979). Petitioners filed a petition for rehearing and a sug- gestion of rehearing en banc. The United States Court of Appeals granted the petition, vacated the panel opinion, and reheard the cause en banc with additional briefs. The Memphis and Shelby County Bar Association and the Tennessee Bar Association both submitted amicus curiae briefs in support of petitioners. The en banc United States Court of Appeals agreed with petitioners that the rule of Stricklan v. Koella controlled the cause through the re- 7 quirements of Erie Railroad Co. v. Tompkins, and required a dismissal of the charges of negligence in failing to obtain a change of venue, failing to object to the jury instruction, failing to consult a traffic reconstruction expert and neg- ligence in the conduct of the appeal. The majority of a sharply divided court ruled, however, that, despite the clear mandate of Stricklan v. Koella, a jury would be entitled to decide whether petitioners were negligent in failing to interview certain witnesses whom the Woodruffs believed would be helpful to their cause; in failing to bring to the attention of the trial court certain statutes regard- ing conduct of motor vehicles on the highways; and in representing both Woodruffs in their suits against the other drivers. Curiously, the majority opinion is careful to point out that it does not hold that the statutes which Tomlin allegedly did not refer to the Court would be ap- plicable to the facts of the Woodruff case. Nor does it hold that Tomlin should have called as witnesses the two individuals who were suggested as witnesses. Nor does the majority opinion, on the conflict question, convincingly face the exclusion in the insurance policy which would have precluded Joan Woodruff, the passenger, from re- covering against Patricia Woodruff, her driver, even if suit had been brought by Joan against Patricia by another attorney. Two judges of the United States Court of Appeals (one of whom was the only Tennessee member of the en banc court) strongly dissented from the majority opin- ion, contending that the case was controlled by Stricklan v. Koella, and that the judgment of the United States Dis- trict Judge granting judgment n.o.v. for the defendants was correct and should be affirmed. REASONS RELIED UPON FOR GRANTING WRIT OF CERTIORARI I. THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT, SITTING EN BANC, HAS DECIDED AN IMPORTANT STATE QUES- TION IN A MANNER IN DIRECT CONFLICT WITH APPLICABLE STATE LAW. A. Under Tennessee Law, There Is No Cause Of Action Against An Attorney For The Manner In Which He Honestly Chooses To Present His Client’s Case To The Trier Of The Facts; In This Cause, However, The United States Court Of Appeals Failed To Follow Tennessee Law, Thus Violating The Mandate Of Erie Railroad Company v. Tompkins And Establishing A Dual Standard Of Liability For Tennessee Trial Attorneys. This is a suit which attacks the manner in which an attorney prepared and tried a personal injury lawsuit. Since this is a diversity case from Tennessee, Tennessee law controls. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817 (1938). There is a Tennessee case directly on point which clearly and unequivocally holds that in Ten- nessee there is no cause of action arising out of the manner in which a trial attorney presents his client’s case to the trier of fact. See Stricklan v. Koella, supra, at p. 813: However, none of the Tennessee cases that we find recognize a cause of action for alleged negligence in the attorney’s choice of trial tactics or conduct of the cause .... We do not hold that there generally is no cause of action against an attorney for his negli- gence or malpractice; we only hold that for the rea- sons given, there can be no cause of action against an 9 attorney arising out of the manner in which he hon- estly chooses to present his client’s case to the trier of the facts. (Emphasis supplied) The United States Court of Appeals recognized Strick- lan as the law of Tennessee and held that it should be followed. Inexplicably, however, it failed to follow that opinion on two matters directly related to the manner in which this trial attorney chose to present his case to the trier of the facts: the attorney’s decision made as to which witnesses to interview, and the attorney’s choice of statutes upon which to rely. Grounding a malpractice suit upon the failure to inter- view certain alleged witnesses is clearly contrary to the Stricklan decision. In Stricklan the plaintiff-client alleged that his attorney failed to summon certain witnesses to his criminal case and failed to take certain depositions of alleged witnesses. Stricklan was decided on summary judgment, which would assume the truth of those asser- tions. The Court of Appeals of the State of Tennessee rejected those contentions, holding that they did not state a cause of action in Tennessee unless there was proof that the attorney acted in bad faith. The basis for the Court’s decision is in great part centered on the proximate cause issue, the obvious inability of any malpractice jury to deter- mine except by guesswork what the personal injury suit jury might have done had the witnesses been before it. In this case the United States Court of Appeals, it is re- spectfully submitted, ignored the direct mandate of Strick- lan in holding that this allegation of negligence should be submitted to the jury. [The holding of the United States Court of Appeals becomes even more clearly erroneous when it is noted that the Court carefully points out ( page 23 of its decision) that it does not hold that petitioner was required to use Burkett and McClendon as witnesses. } Surely, it is as much an exercise of judgment to decide 10 which witnesses to interview (who may have helpful tes- timony ) as it is to decide which witnesses to call. Further, note that the United Statés Court of Appeals acknowledged that petitioners’ clients could not base a suit upon petitioner Tomlin’s failure to consult, interview, and use a traffic reconstruction expert. (See Opinion of the United States Court of Appeals at p. 14.) It is anom- alous indeed that the Court should hold that the jury could find legal malpractice in not interviewing two witnesses, but that there could be no malpractice in failing to inter- view a third. It is hard to conceive of any more judgmental decision on the part of a trial attorney than a determination of which witnesses may possess relevant and helpful tes- timony. If attorneys in Tennessee or elsewhere are to starff trial for failing to interview any witness whom a client later conceives might possibly have been of some assistance in a losing cause, there will be no end to mal- practice litigation. Such a ruling would be unjust, unfair and in conflict with applicable Tennessee law. Likewise, the alleged failure to rely upon certain Tennessee statutes as a basis of liability in a personal in- jury case is clearly an attack upon a lawyer’s judgment. The selection of a theory of liability is typical of judg- mental decisions made during the preparation and course of a trial. Certainly the legal determination of the ap- plicability of such statutes cannot be left tu the jury. It is basic procedural law that it is for the trial court and not the jury to determine whether certain statutes are applicable to a particular set of facts. In the same opinion petitioner is erroneously faulted for failing to plead Ten- nessee Code Annotated §59-859 when in fact the record reflects that he did plead it. The trial court did not charge that statute, however; nor did it charge Tennessee 11 Code Annotated §59-854. The reason is pointed out by Judge Gilbert Merritt in his dissent at pages 46-47 of the Court’s opinion: neither statute is applicable to the facts of the personal injury case. Where judges of the United States Court of Appeals disagree on the applicability of a statute, a lawyer should not ke required to stand trial for malpractice because he came to the same legal conclusion as the appellate judge. Both these decisions were judgment calls. They are made every day by every trial attorney in the heat of preparation and trial of a lawsuit. Judgmental decisions should not be the basis for a malpractice suit against the trial attorney by a disgruntled client. Tennessee law spe- cifically holds that such decisions cannot be the basis of such a suit. The United States Court of Appeals failed to follow Tennessee law and must be reversed. B. Tennessee Law On Attorney Malpractice In The Trial Of A Lawsuit Specifically Follows The Law Of England (Now Also Adopted By New Zealand) In Granting The Trial Attorney Immunity, Absent Bad Faith; The United ’ States Court Of Appeals In This Diversity Case Erroneously Applied A Different Standard. This Court should grant certiorari and address this very important question of a trial attorney’s liability for the manner in which he presents his client’s case. It is a matter of significant public policy and will bear very heavily on the effectiveness with which cases will be presented in the future. The singular importance of this issue has been acknowledged by the highest courts of England and New Zealand, which have both wrestled with this question. Both jurisdictions have concluded that the trial attorney must for public policy reasons be granted immunity from suit for the manner in which he prepares 12 and tries his client’s case. This opinion of the United States Court of Appeals for the Sixth Circuit is the only case which holds to the contrary. The worldwide landmark decision on this precise issue, specifically relied upon by the Tennessee Court of Appeals in Stricklan v. Koella, is Rondel v. Worsley, (1966) 1 Ali E.R. 467 (1966 C.A.), 3 All E.?. 657 (1967 H.L.), 3 All E.R. 993 (1969), 1 A.C. 191. Rondel holds that as a matter of public policy trial attorneys must be immune from li- ability for the manner in which they present their clients’ cases. The policy reasons are sound, and are forcefully and articulately presented in that case. See also Rees v. Sinclair, (1974) 1 N.Z.L.R. 180. In that case the New Zealand Supreme Court reaffirmed the Rondel holding and then extended the immunity for trial attorneys to pretrial work as well. Likewise, see Biggar v. McLeod, (1977) 1 N.Z.L.R. 321. There the New Zealand Court again extended the im- munity doctrine to actions by the trial attorney after the actual trial of the case for matters which were related to the trial. No citation of authority is necessary to point out that judges are immune from liability for their own negligence. Efficient administration of justice requires that all parties to the trial, not only judges but jurors, witnesses, and trial attorneys concern themselves with the resolution of the issues at hand without being concerned about whether they might be sued by a disgruntled litigant in a subsequent civil proceeding. This Court should accept certiorari and reaffirm this important position by establishing it as an important precedent in American jurisprudence. It is essential to assure the continued effective operation of the adversary system and the commitment of a trial attorney to exercise independent judgment as an officer of the Court. 13 This Court has already held that state courts have the right to set their own standards of liability for trial at- torneys: The narrow issue presented to this Court is whether federal law in any way pre-empts the freedom of a State to decide the question of immunity in this situa- tion in accord with its own law. We are not con- cerned with the elements of a state cause of action for malpractice and need not speculate about whether a state court would consider petitioner’s allegations sufficient to establish a breach of duty or a right to reeover damages. Nor are we concerned with the question whether Pennsylvania may conclude as a matter of state law that respondent is absolutely im- mune. For when state law creates a cause of action, the State is free to define the defenses to that claim. including the defense of immunity unless, of course, the state rule is in conflict with federal law. Ferri v. Ackerman, ........ | Sareea , 100 S.Ct. 402, 406 (1979). (Emphasis supplied) The State of Tennessee has set its standard, but the Sixth Circuit has failed to follow it. The United States Court of Appeals decision in Wood- ruff v. Tomlin seriously erodes essential protections estab- ished in Stricklan, Rondel, Biggar and Rees and suggested by decisions of this Court.’ This Court must correct that erosion. 1. “Absolute immunity is thus necessary to assure that judges, advocates, and witnesses can perform their respective func- tions without harassment or imitation.” Butz v. Economu, lesisnais U.S. _.... 98 S.Ct. 2894 (1978). (Emphasis supplied) 14 C. Under Tennessee Law A Trial Attorney’s Al- leged Conflict Of Interest Cannot Be The Basis For A Malpractice Suit Against Him; The United States Court Of Appeals Has Errone- ously Held To The Contrary. The United States Court of Appeals in Woodruff v. Tomlin was in error in ruling that the question of “con- flict of interest” might be evidence of negligence which could be presented to a legal malpractice jury. First, a determination by trial counsel as to which clients he will or will not represent is the most obvious kind of judgmental decision which falls within the aegis of Stricklan v. Koella. The doctrine of Erie Railroad Co. v. Tompkins, supra, requires reversal on this point alone. Second, the Supreme Court of Tennessee has adopted the Code of Professional Responsibility for Attorneys and has also adopted the Code Preamble and Preliminary State- ment, a portion of which is codified into Tennessee statu- tory law as follows: The Code makes no attempt to prescribe either dis- ciplinary procedures or penalties for violation of a Disciplinary Rule, nor does it undertake to define stan- dards for civil liability of lawyers for professional con- duct. Code of Professional Responsibility, Vol. 5A, Tenn. Code Ann., at p. 89. (Emphasis supplied) Thus, applying Tennessee statutory law, the United States Court of Appeals should have dismissed the “con- flict” issue in this cause. Third and most important, there is no conflict of inter- est under the facts of this case. The record reflects that the policy of insurance insuring the Woodruff automobile contained a “member of the household” exclusion which would exclude coverage for Patricia, the driver, had she 15 been sued by Joan, the passenger. See in the record, Memorandum Pursuant to Motion for Correction or Omis- sion under Rule 10E, Federal Rules of Appellate Procedure, p.2. Therefore, had Tomlin not represented both passenger and driver and had suit been brought by passenger Joan against her sister Patricia, the driver, no damages could ever had been collected from Patricia even if a verdict had been rendered against Patricia, because there was no lia- bility insurance coverage available to her under the policy on the Woodruff automobile. If Stricklan v. Koella holds nothing else, it clearly establishes that in order for a client to recover against his attorney for malpractice, the client must establish that, but for the malpractice, he would have won his case against the original defendant and that he could have collected the damages from the defendant. Assuming malpractice, the client can recover no greater verdict from his attorney than the amount of damages which he would have been able to collect from the original tort-feasor. Sitton v. Clements, 385 F.2d 869 (6th Cir. 1967). In the case at bar, because of the policy exclusion, Joan’s theoretical suit brought by a theoretically different at- torney than petitioner against her sister, Patricia, could have resulted in the collection of no damages whatsoever, no matter how high the verdict. Therefore, there could be no actual conflict between the sisters because one could not have recovered against the other. This lack of an actual conflict is emphasized by the record in this cause, which reflects without dispute that Patricia remembered nothing about the accident, and that Joan’s testimony at the trial completely exonerated her sister from any negligence in the operation of their vehicle. (See pages 8 and 38 of the Transcript of the original trial.) The only way a conflict could have been created was for Joan to change her testimony to place blame against her sister whose driving she had previously approved. Even 16 assuming a conflict existed, nowhere is it shown or sug- gested how the conflict affected the manner in which the case was tried or resulted in any damage to either of the sisters. The theory of the case adopted by the trial lawyer was purely a judgmental decision. As a matter of fact he made the decision with respect to each of two trials— the first having resulted in a hung jury and a mistrial. His judgment was certainly correct insofar as some of the jurors were concerned, as evidenced by the hung jury at the first trial. The conflict question is a false issue. Judge Gilbert Merritt in his dissent in the en bance decision forcefully articulates this point. The majority opinion’s view on the alleged conflict of interest question is erroneous and should not be allowed to stand. 17 CONCLUSION The issues raised in this lawsuit are of most crucial importance to the trial bar. They raise policy questions which bear heavily upon the administration of justice in the trial courts of this Country. They have been considered important enough to justify consideration by the highest courts of England and New Zealand. The United States Court of Appeals for the Sixth Circuit has erred in its ruling and has, in so erring, established a very dangerous precedent. For the reasons set out above a writ of cer- tiorari should issue to review the judgment and opinion of the United States Court of Appeals for the Sixth Circuit. Respectfully submitted, LEO BEARMAN, JR. 1140 Sterick Building Memphis, Tennessee 38103 JoHN J. THOMASON 100 North Main Building Memphis, Tennessee 38103 Attorneys for Petitioners, Hewitt P. Tomlin and Waldrop, Hall, Tomlin & Farmer, a Professional Business Association 18 CERTIFICATE OF SERVICE The undersigned hereby certifies that three copies of the foregoing Petition for Writ of Certiorari have been served upon the following counsel of record on this the 9th day of May, 1980: Mr. Norman Herring Attorney at Law 114 West Adams Street Phoenix, Arizona 85003 Mr. James F. Schaeffer Attorney at Law 100 North Main Building Suite 3100 Memphis, Tennessee 38103 Mr. Thomas Prewitt, Sr. Attorney at Law One Commerce Square Memphis, Tennessee 38103 Mr. Wilson Sims Attorney at Law 2700 First American Center Nashville, Tennessee 37238 LEO BEARMAN, JR. Al APPENDIX APPENDIX A Joan WOODRUFF et al., Plaintiffs, V. Hewitt P. TOMLIN, Jr., et al., Defendants. Civ. No. C-74-6. United States District Court, W. D. Tennessee, E. D. Dec. 10, 1976. Clients filed legal malpractice action against former attorneys. Following dismissal of the action as being barred by the statute of limitations, and reversal and re- mand by the United States Court of Appeals for the Sixth Circuit, 511 F.2d 1019, case was submitted to a jury, which was unable to agree on a verdict, and a mistrial was de- clared. Thereafter defendants moved for judgment n. o. v. and for dismissal. The District Court, Bailey Brown, Chief Judge, held that suit could not be maintained either on theory of negligence in preparation and trial of personal injury case or on theory of conflict of interest in repre- senting both plaintiff driver and plaintiff passenger in suit against third persons, where it would be speculation to say that the alleged negligence or the alleged conflict of interest affected the outcorne of the personal injury trial. Judgment n. o. v. granted and action dismissed. Attorney and Client (Key) 112, 113 Former clients could not recover against former attor- neys for alleged legal malpractice in connection with prior A2 personal injury suit in which clients were plaintiffs, either on theory that lawyers were guilty of negligence in inves- tigation, trial and appeal of the case, or on theory that there was conflict of interest in representing both plaintiff passenger and plaintiff driver in suit against third parties, as well as representing driver’s insurer, where it would be speculation to say that the alleged negligence or the alleged conflict of interest would have affected the outcome of the personal injury trial. Norman Herring, Phoenix, Ariz., James F. Schaeffer, D. Franklin Moore, Jr., Memphis, Tenn., for plaintiffs. Leo Bearman, Jr., John J. Thomason, Memphis, Tenn., Victor F. Schneider, Jackson, Tenn., for defendants. MEMORANDUM DECISION BAILEY BROWN, Chief Judge. This is a legal malpractice case in which damages are sought from the defendant lawyers for losing personal injury cases in a jury trial. Plaintiffs contend that the lawyers were guilty of negligence and other wrongdoing in the investigation, trial and appeal of the cases and that this proximately caused the loss. This court has jurisdiction on the basis of diversity of citizenship. This malpractice case was submitted to a jury, which was un- able to agree on a verdict and a mistrial was declared. Thereafter, defendants moved for a judgment n.o.v. and for a dismissal of the case; briefs have been filed and argument has been had. This court concludes, for rea- sons herein set out, that the motion must be granted and the action dismissed. The automobile accident out of which this litigation arose occurred in Chester County, Tennessee in 1968. At the trial in question, there was ample evidence to support A3 the following account of the accident. Plaintiff Patricia Woodruff, who was sixteen and had just obtained a driver’s license, and her sister, plaintiff Joan Woodruff, who was fifteen, with their father’s permission, had taken the family Chrysler to Chickasaw State Park on Highway 100. There they saw a friend, a young girl named Sterling, who also was driving a car. Both cars left the park at about the same time with the Woodruff girls behind the Sterling girl. Although Highway 100 is two-laned and is up and down hills, the Woodruff girls managed to pass the Sterling girl before the point of the accident which was one and one-half miles from the park. Just prior to the accident, when the Woodruff girls topped a hill, they saw a vehicle in front of them being drive:rmby one Nobles headed in the same direction in their lane. Nobles was either stopped or moving very slowly and had his left turn signal on preparatory to turning into a side road on the left. Patricia Woodruff applied her brakes, put down a total of 252 feet of skid marks, which were initially on her right side and then on the left side of the highway. The car skidded sideways for a considerable part of this dis- tance and came to rest with the front end off the left side and the rear on the highway. It did not strike the Nobles vehicle. One Pomeroy, an employee of one Teague, who was driving a loaded gravel truck in the opposite direction, struck the rear of the Woodruff vehicle. Sterling had to swerve to her right onto the shoulder of the highway to keep from being hit by the gravel truck, which had swerved to its left in an effort to avoid hitting the Woodruff car. The result was that both of the Woodruff girls re- ceived serious and permanent injuries, Joan receiving even more serious injuries than did Patricia. The Woodruffs had their liability insurance coverage with the Tennessee Farmers Mutual Insurance Company, whose investigator was asked by Charles Woodruff, the father, who would represent them in behalf of the insur- A4 ance company. When he learned that the defendant Tom- lin, a lawyer in Jackson, would do so, Woodruff called on Tomlin and employed him and his law firm to represent himself and his daughters in prosecuting any claims they might have. Tomlin learned that, according to the Wood- ruffs, Patricia Woodruff had been driving at a reasonable speed, that the Woodruff vehicle had been at rest for several seconds (five to eight) before it was struck by the oncoming gravel truck, and that, in any event, the Woodruffs, including Joan, did not want any blame to be placed on Patricia, the driver. Tomlin promptly went to the scene, took pictures, reviewed the investigation file of Tennessee Farmers, and filed suit for the Woodruff girls and their father against Nobles, Teague and Pomeroy. Pomeroy sued the Woodruffs for his personal injuries and Teague for the damage to the gravel truck. The first trial in the Circuit Court of Chester County resulted in a hung jury, nine to three against the Wood- ruffs. At the second trial the jury found against the Woodruffs and in favor of Teague and Pomeroy. The verdict was approved by an experienced and able trial judge (who sat as a “thirteenth juror”) and, upon appeal by defendants in behalf of the Woodruffs, the judgment below was affirmed by the Tennessee Court of Appeals.! Both trials were conducted by defendant Tomlin for the Woodruffs. One of his partners wrote the brief on appeal. Thereafter, the instant action was filed by Patricia and Joan Woodruff (their father did not sue) against their lawyer, Tomlin, and his partners. This court dis- missed the action as being barred by the statute of limita- tions, which dismissal was reversed on appeal (511 F.2d 1019 (6th Cir. 1975)) on the basis of a Tennessee deci- sion that became available after the ruling here but before 1. Except that, insofar as the jury verdicts assessed dam- ages against Joan Woodruff, the judgments were reversed and the actions dismissed as to her. A5 the ruling in the Court of Appeals. This malpractice case was then set for trial in July, 1976. Plaintiffs contended in their complaint and arrended complaint that Tomlin and his partners were guilty of negligence in the investigation, trial and appeal of their cases and that such negligence proximately caused the loss of their claims. Pursuant to pre-trial order, plaintiffs specified that the defendants had been guilty of negligence in failing to personally interview a potential witness (who had been interviewed by the Tennessee Farmers investi- gator), in failing to present as a witness an accident re- construction expert, in failing to prepare and introduce proper maps and plats, in failing to present adequate evidence that would support a reliance on last clear chance or discovered peril, in failing to dbject to examination of an expert offered by defendants or to properly cross- examine him, in failing to rely on certain statutes that were claimed to be applicable, in failing to object to a jury instruction, in failing to use available witnesses in rebuttal, and in failing, on appeal, to raise and argue all necessary assignments of error. Plaintiffs contended, as stated, that each and all of said acts or omissions prox- imately caused the loss of their claims. In addition to the foregoing negligence alleged, plain- tiffs contended that defendant Tomlin, since he represented Tennessee Farmers, had a conflict of interest in repre- senting Joan Woodruff because she had a potential claim against her sister Patricia. In this connection, it has been the position of defendant Tomlin that there was never a conflict since Joan had stated from the first that Patricia was without fault and in detail supported the theory of the accident as related to him from the beginning by the father. Further, defendants contend that the coverage would have been only $10,000 and that in any event there would have been no coverage under the policy for Patricia with respect to a claim by her passenger-sister; there is A6 no proof tendered or in the record on these coverage questions one way or the other. In any case, it appeared to this court that this claim based on alleged conflict of interest on the part of defendant Tomlin should not be tried with the claims of negligence in losing the lawsuits and therefore it was, by pre-trial order, not dealt with at the trial. The court had the impression that the only conflict of interest contention made by plaintiffs had to do, as above set out, with defendants’ representation of the Wood- ruff’s liability insurance company. However, just prior to the trial, plaintiffs sought to make the further con- tention that defendant Tomlin should not have represented both Joan and Patricia, since, if they had had separate counsel, there would have been advantages in offering witnesses and in the right to cross-examine them, and, further, Patricia’s claimed negligence in operating the Woodruff car would not have rubbed off on Joan in the jury’s mind.” The court concluded, at a pre-trial confer- ence, that this contention, also, should not be tried with the contentions of negligence against defendants in their investigation, trial and appeal of these personal injury cases. For completeness, it should be mentioned that defen- dants were charged with negligence in failing to remove this case to the federal district court at Jackson after the first trial. It appeared to the court that there would have been a serious question as to whether plaintiffs had at that time acquired an out-of-state domicile and there- fore, in the malpractice trial, the jury would also be trying the domicile issue. In any event, we determined that it would be speculation to say that federal jury 2. This contention was made even though the trial judge had instructed the jury as to the circumstances under which the negligence of the driver may be imputed to the passenger and also the duty of care of a passenger. A7 would have rendered a favorable verdict for the Woodruffs and therefore we dismissed this claim at a pre-trial con- ference. The court determined that the malpractice liability of defendants would be tried first and, if liability were determined favorably to plaintiffs, the question of dam- ages would then be tried. However, so that plaintiffs could show the malpractice jury the seriousness of their injuries (in support of their contention that defendants did not exercise proper care), by agreement plaintiffs were allowed to read to the jury a full summary of their injuries and damages. Moreover, the entire transcript (except that part dealing with injuries) of the second personal injury trial was read to the jury as well as the lengthy charge to the jury and the brief on appeal. This court had concluded that questions of law with respect to the personal injury trial became, with the aid of expert testimony, questions of fact for the malpractice jury and were so treated, leaving for the court questions of mal- practice law. Plaintiffs presented, as part of their proof, an expert in accident reconstruction from Arizona and also an Arizona attorney who testified at length as to how these claims should have been investigated and tried by plaintiffs’ lawyers. This court submitted to the jury practically all of plaintiffs’ contentions as to negligence in the investigation and trial of the personal injury cases as well as their contentions that each and all of such negligent acts or omissions proximately caused the jury verdict against plaintiffs.* The court withdrew from the 3. The court determined that the Tennessee doctrine of remote contributory negligence (which only reduces damages) would not come into play unless liability of defendants was found by the malpractice jury and then, in submitting the question to the malpractice jury as to what verdicts would have been found by the personal injury jury, the malpractice jury would have been instructed as to the doctrine of remote contributory negli- gence. A8 jury, at the conclusion of all the evidence, the question of negligence in handling the appeal, on the ground that there was no expert or other evidence to support plain- tiffs’ contention. The jury was unable to agree on a verdict as to any of the interrogatories. On the motion for a judgment n.o.v. and for a dis- missal, we therefore have to decide whether plaintiffs are entitled-to have submitted to a jury the question whether defendant lawyers were guilty of negligence which prox- imately caused the loss of their claims and whether plain- tiffs or either of them are entitled to have their conflict of interest claims submitted to a jury. We conclude that they are not and that therefore the motion for a judgment n.o.v. and for dismissal should be granted. For some time prior to the trial, this court was par- ticularly concerned because of our inability to find a reported decision dealing with this kind of case. Lead counsel for plaintiffs, who happens to be a member of the Arizona bar, reassured the court that he would supply such decisional law, but it never came. Without any such decisions as guides, and analyziny the case as an original proposition, it seemed to this court that there are two main problems in maintaining such a case as this. The first is that the preparation for and trial of a lawsuit to a jury requires the exercise of a kind of judgment that is quite different from the kind of judgment exercised by other professionals. This is so because in dealing with human beings as the trial lawyer must, be the witnesses, judges, clients, adversary counsel and jurors, the factors that come into play are intangible and numerous, so that the trial lawyer has to rely on his education, practical experience, rational analysis and sheer instinct in making decisions. This being true, it was difficult for this court to believe that it would be A9 proper to submit to a jury, based upon the expert testi- mony of a second-guessing lawyer who has the benefit of hindsight, the question whether the trial lawyer was negligent. The second reason why this court had serious doubt as to whether this action could be maintained has to do with causation; the malpractice jury is called upon to determine whether, if something that was done by the defendant trial lawyer had not been done or something that was not done had been done, the jury verdict in the personal injury case would have been different. This means that, in the malpractice trial, the personal injury trial becomes a play within a play; that is to say, the personal injury trial is replayed, by reading the record thereof, before the malpractice jury and witnesses then testify about the things that were done or not done by the malpractice defendant. It is interesting to note that, in principle at least, if an action such as this can be main- tained, then an action could be maintained by the plaintiffs in this malpractice case against the attorneys representing them here, in which case there would be a play within a play within a play! In any event, it seemed to this court that it would be speculation for the malpractice jury to say what the personal injury jury would have done but for (we will assume) negligence on the part of the trial lawyer. Just prior to the trial, counsel for defendants found an English case that supported their position, but this court determined to go ahead with the trial, which con- sumed slightly over eight trial days, and, as stated, re- sulted in a hung jury. After the trial, the Tennessee Court of Appeals decided a case which deals squarely with the question presented here. It cites and discusses the above-mentioned English case. This decision is Stricklan v. Koella, (Tenn.App., Al0 decided September 20, 1976). In that case, plaintiff had employed the defendant lawyer to represent him in a civil case brought against him for assault and battery. Just prior to the trial, plaintiff discharged the defendant lawyer, settled the case himself by a cash payment, and then sued the lawyer for legal malpractice, alleging negli- gence in the preparation of the case and in failing to get a change of venue. The trial judge sustained the lawyer’s motion for a summary judgment. The Court of Appeals affirmed, saying, in part: “Essentially and in simple terms, the cause of action stated is that retained counsel refused to use the trial tactics insisted upon by the client, for which refusal retained counsel’s services were terminated; that the refusal of counsel to try or prepare the case in the manner insisted upon by the client (by filing of depo- sitions) caused the client to be without representation on the day of trial and forced the client into an ex- pensive settlement without a trial of his case; that the plaintiff was substantially damaged by the negli- gence of defendant because if the case had gone to trial and if counsel had taken depositions in the manner insisted upon and if the plaintiff and her witnesses in the suit against Stricklan had testified in such manner so that discrepancies would appear between that testimony, if given, and discovery tes- timony, if taken, the jury (if there had been one) would have found in favor of Stricklan or if they found against him, would have found in a lesser amount than settled for if the jury would have con- sidered the testimony discrepancy if it had appeared. All if the case had been tried in another county. “We hold that there can be no such cause of action in this state. All “In the English case of Rondel v. Worsley, reported as (1966) 1 All E.R. 467 (1966 C.A.), 3 All E.R. 657 and (1967 H.L.) 3 All E.R. 993, numerous reasons by judges were given for the holding that as matter of law no action would lie against a lawyer by his client for negligence in and about his conduct of the client’s case in Court. Some judges were of the opin- ion that since in England no action could lie against the client by the barrister for failure to pay a fee, the client could not sue the barrister for his conduct of the trial, the distinction between a solicitor and barrister being duly noted and recognition made of the existence of a cause of action against a solicitor. Other judges tended to base their conclusions on the fact that lawyers in the trial of cases, do not owe allegiance to the client only, but owe dual allegiance; one to the client and the other to the Court; and if a client were permitted to sue a lawyer for what the client believes to be negligient trial tactics, in that they did not inure (in the client’s opinion) to the benefit of the client, a trial lawyer would find him- self sued for following his allegiance to the Court. * s 8 “Additionally, in all negligence cases, whether they be automobile related or medical or legal malpractice related, before a recovery can be had, the nexus be- tween the negligence and the injury must be shown. In a suit complaining of the manner in which proof was presented and the manner of examination and cross-examination of witnesses, only by pure guess- work can the verdict of a jury be examined and a so-called cause for that verdict be determined. No man shall suffer a judgment against him based on guess.” Al2 As heretofore stated, this court, at the pre-trial stage, determined not to try the contentions of the plaintiffs with respect to alleged conflict of interest along with the contentions of alleged negligence in the preparation, trial and appeal of the personal injury cases. It will be remem- bered that one conflict of interest claim is that defendants, who generally represented Tennessee Farmers in the Jack- son area and were in such capacity defending the Wood- ruffs in the personal injury litigation, should not have represented Joan Woodruff, the passenger, as a plaintiff since she had a potential claim against her sister, the driver. Although, as stated, there is no proof or tender of proof of coverage, we assume for present purposes that there would have been coverage. Obviously, Joan Woodruff is not suing here for damages for failure of defendants to sue her sister; rather, they are contending that this alleged conflict in some way inhibited defendant Tomlin’s prosecution of the suit against the parties who were sued. This court cannot see how this could be so and, in any case, it would again be speculation to say that this affected the outcome of Joan Woodruff’s personal injury trial. The other conflict of interest claim is that defendant Tomlin should not have represented both Joan and Patricia Woodruff in their capacities as plaintiffs, because there would have been alleged tactical advantages at the trial, above described, if they had had separate counsel. Again, we are of the view that, even assuming there would would have been such advantages, it would be speculation for a jury to say that the absence of such advantage affected the outcome of the trial. It is therefore ORDERED that the judgment n. o. v. be granted and the action dismissed. The Clerk will enter a final judgment for the de- fendants. Al3 APPENDIX B No. 77-1216 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT JOAN WOODRUFF, PATRICIA WOUDRUFF HAMILTON and Louis HAMILTON, her husband, Plaintiffs-Appellants, V. Hewitt P. ToMuin, JR., HomMeER H. WaA.tprop, Roy HALL and Davin R. Farmer, individually and as partners doing business under the name and style of Waldrop, Hall, Tomlin & Farmer, a professional business association, Defendants-Appellees. AppPpEAL from United States District Court for the Western District of Tennessee, Eastern Division. Decided and Filed February 22, 1979. Before: Epwarps, Chief Judge, WEIcK and CELEBREZZE, Circuit Judges. WEICK, Circuit Judge. Plaintiffs-appellants’ suit in the District Court was against an attorney at law and his law firm, to recover damages, alleging legal malpractice con- sisting of conflicts of interest and negligence in their rep- resentation of plaintiffs in personal injury actions arising out of a truck-auto collision, which actions the attorneys filed in plaintiffs’ behalf in the state court, and which re- sulted in judgments against the plaintiffs. Jurisdiction in the malpractice action was based on diversity of citizen- ship. Al4 The District Court granted defendants’ motion to dis- miss the complaint on the ground that plaintiffs’ action was barred by Tennessee’s one-year statute of limitations. T.C.A. 28-304. On appeal, we reversed and remanded for trial. Woodruff v. Tomlin, 511 F.2d 1019 (6th Cir. 1975). On remand the case was tried before a jury on the issue of liability. The jury was unable to agree on a verdict and the court declared a mistrial. The defendants then filed a motion for judgment n.o.v. and for dismissal of the complaint, which motion was granted by the court in a Memorandum Decision reported in Woodruff v. Tomlin, 423 F. Supp. 1284 (W.D. Tenn. 1976). Plaintiffs have appealed therefrom to this Court. We are of the opinion that there were factual issues which should be determined by a jury, and not by the court, and that the court erred in summarily dismissing the conflicts of interest claim, in the exclusion of evidence, and in the granting of the motion n.o.v. We reverse. The plaintiffs, Joan Woodruff and her sister, Patricia, then 15 and 16 years of age respectively, were severely injured on May 22, 1968, when an automobile driven by Patricia and owned by her father, in which automobile Joan was riding as a passenger, was struck by a large truck loaded with gravel weighing about 73,000 pounds, on Highway 100 in Chester County, Tennessee. Joan was thrown out of the car and the truck ran over her legs, crushing the bones and tearing the skin off her legs, crip- pling her for life. Patricia sustained a skull and brain injury resulting in traumatic amnesia, so that she had no memory of the accident. The girls’ hospital bills alone exceeded $20,000. The girls’ father, Charles Woodruff, carried liability insurance on his car with Tennessee Farmers Mutual In- Al5 surance Company. with limits of $10,000 for one person, and $20,000 for more than one person. While the girls were in the hospital Theo. Leathers, the Claims Adjuster for the insurer, contacted Mr. Woodruff and gave him a check for medical reimbursement. Leathers advised Mr. Wood- ruff that he should retain a lawyer. Leathers told Mr. Woodruff that the statements of witnesses to the collision were inconsistent and were changing. Leathers recommended to Woodruff that he retain Hewitt P. Tomlin, stating that Tomlin was a good lawyer. Tomlin was also the attorney for Tennessee Farmers Mutual Insurance Company. Woodruff then engaged Tomlin to represent his two daughters, and also to represent himself in his claim for damages to his car. Tomlin filed two suits for personal injuries sustained by the girls and one for damages to the car, against Pome- roy, the driver of the large truck, Teague, the owner of the truck, and Nobles, the owner of the second truck. The suits were filed in the Circuit Court of Chester County, Tennessee. Pomeroy, the truck driver, and Teague, the owner of the truck, filed suits in said Circuit Court against Patricia Woodruff and her sister Joan, to recover damages for personal injury sustained by Pomeroy, and for damages to the truck. They alleged negligence on the part of Patricia, and that Joan, the passenger, aided and abetted. Tomlin, as attorney for Tennessee Farmers Mutual Insurance Com- pany, defended the suits against the two girls. The suits were all consolidated for trial. The cases in the state court were tried before a jury, which disagreed 9-3, and a mistrial was declared. At the second trial in the state court the jury returned a verdict in favor of the defendants in the personal injury actions of Patricia and Joan against Pomeroy, Teague and Nobles. Al6 In the suit of Pomeroy and Teague against Patricia and Joan the jury returned verdicts in favor of Pomeroy for $600, and Teague in the amount of $3,000. Upon appeal to the state court of appeals the judg- ments for the defendants in the personal injury cases of Patricia and Joan against Pomeroy, Teague and Nobles, were affirmed. The judgments in favor of Pomeroy and Teague against Patricia, totaling $3,600, were affirmed, but were reversed as to Joan, the Court holding that there was no evidence to prove that Joan, the passenger, aided and abetted in the negligence of Patricia. Therefore Joan was not contributorily negligent, and Patricia’s negligence could not be imputed to her. The appeals court then referred to damaging conces- sions made by Tomlin’s law firm in their appellate brief, as follows: In short, the fact is that there is material evi- dence in this record from whith the jury could have concluded that Patricia Woodruff was guilty of negli- gence. This fact is conceded in appellants’ brief and it is therein admitted that neither of the plaintiffs in the original cases of Patricia Woodruff vs. Nobles, Pomeroy and Teague, and in Charles Woodruff vs. the same defendants can now prevail. [App. 162-63] As we will point out later, this damaging admission wrecked Joan’s case for personal injuries against Pomeroy, Teague and Nobles. There was plenty of evidence of neg- ligence on the part of the two truck drivers for submis- sion of the issue to the jury. The issue of contributory negligence of Joan was eliminated from the case by the court of appeals. By reason of this wrongful admission, there was no issue for Joan to take her case to the Supreme Court of Tennessee. In effect what was done was to im- pute the negligence of Patricia to Joan, and the doctrine Al17 of imputed negligence does not prevail in Tennessee, as the state court of appeals held. See also Gulf, M. & O. R. Co. v. Underwood, 182 Tenn. 467, 187 S.W.2d 777 (1945). The wrongful admission also ruined Patricia’s case for negligence against Pomeroy, Teague and Nobles. As we will later point out, the state trial judge gave an erroneous instruction to the jury on last clear chance. Tomlin did not point out this error to the trial judge, and did not claim it as error in his motion for a new trial, and his law firm did not assign it as error in the state court of appeals. If they had done so, instead of making admissions against the interest of their clients, the appellate court, in all probability, would have reversed and remanded for a new trial. Their clients were deprived of their right to a new trial and their right to proceed against Pomeroy, Teague, or Nobles, or their insurers. The malpractice complaint charges Tomlin with repre- senting conflicting interests and with negligence in the in- vestigation, preparation and trial in the circuit court and in the appeal in the state appellate court. The most grievous of the allegations of negligence against Tomlin was his failure to object to an erroneous in- struction on last clear chance, in the second trial, and to raise that issue on motion for a new trial, and on appeal. Also, complaint was made concerning his failure to call witnesses who had stepped off various skid marks; his failure to engage an accident reconstruction expert to testify as to critical issues at the trial; and his failure to support the charge of negligence against defendant Nobles in violating T.C.A. § 59-854(a) by driving slowly down- hill, and in violating T.C.A. § 59-859 by stopping. It is also contended that the District Judge erred in applying a standard governing liability of attorneys which Al8 would virtually exempt attorneys from any liability to their clients for malpractice. At the time of the accident Patricia and her sister Joan were returning home from a trip to Chicasaw State Park. Patricia was driving her father’s Chrysler automobile, with his permission. She had a driver’s license. Patricia was driving in broad daylight, in a westerly direction on Highway 100, which is a two-lane, paved highway in Chester County. She was followed closely by another automobile occupied by a friend, Gail Sterling. Patricia, Joan and Gail Sterling all testified that Patricia was driv- ing at about 55 miles per hour. The speed limit on the highway was 65 miles per hour. When Patricia passed over the crest of a steep hill, to proceed downhill, a short distance from Chicasaw State Park, she was suddenly confronted with a serious traffic problem. A small truck owned and operated by defen- dant Nobles, was moving down the steep hill, in the same direction as Patricia was traveling; he came to a com- plete stop about 300 feet ahead of Patricia and at a point opposite a dirt side road to the south. Approaching her from the opposite direction and at some distance was the large truck loaded with gravel, which truck was about 35 feet long, weiging 73,000 pounds. That truck was owned by G. L. Teague, and was being operated by his servant, James Pomeroy. Thus the two trucks impeded travel in both lanes of the two-lane highway. Patricia applied the brakes of her car, which com- menced to skid forward in her lane, and then sidewise over on the left side of the road until it came to a complete stop with the front -£ the car off the road, heading into a ditch, and the rear of her car protruding out into her left or south lane. After her car had stopped Patricia flicked the starter several times in order to start the Alg motor of the car, but the starter did not work. The large truck then crashed into the right rear fender of her car. There was evidence that the car was stopped in a posi- tion of peril about 5.9 seconds before the crash when the large truck was 168 feet away and then traveling at the rate of 30 miles per hour. The driver could have applied his brakes and stopped within 95 feet, or 73 feet before the collision. Actually the truck driver saw the auto skidding on his side of the road when he was 347 feet away from the point of impact. After the collision, and going up- hill, the truck still continued to travel a distance of 112 feet, skidding 24 feet before the point of impact. I CONFLICT OF INTEREST Tomlin and his law firm were the attorneys for Ten- nessee Farmers Insurance Company, and had represented that company for a number of years. As before stated, it was the insurer’s adjuster, Theo. Leathers, who recom- mended to the insured, Mr. Woodruff, that he engage Tomlin to represent the two girls in their personal in- jury cases, as well as to handle Mr. Woodruff’s action for damages to his car, against Pomeroy, the truck driver, and Teague, the owner of the truck. The adjuster re- ported to Mr. Woodruff that the statements of witnesses were inconsistent, and were changing. No doubt Tomlin became fully aware of the inconsistent statements of witnesses when he received the claim file from his client, the Insurance Company. He also learned of this fact when Pomeroy and Teague filed suit- for damages against Patricia and Joan, alleging that Patricia negligently caused the injury to Pomeroy and the damage to the truck, and alleging that Joan, the passenger, aided and abetted Patricia. A20 Tomlin, in defending the suits of Pomeroy and Teague against Patricia and Joan, necessarily was contending until the case reached the appellate court, that Patricia was not negligent. He could not, therefore, very well have represented Joan in a suit against Patricia, which would have required himt to allege that Patricia was negligent. Tomlin should have advised Joan to obtain other counsel. In his deposition taken in the malpractice suit, Tomlin testified: Q Of course, you, as a lawyer, knew that Patsy [Pa- tricia], as the driver of the vehicle, could be responsible to Joan for her injuries; legally, that is? A Itis theoretically possible, yes. Q And that a lawsuit could have been filed A A lawsuit could have been filed in theory, yes, sir. Q Oraclaim presented to Tennessee Farmers demand- ing payment? A It could have been. Q All right, and I take it from your answer to the previous question that you never did discuss this with the parents, and you have told me the reason, but you never did discuss it with them, is that correct? A I never said to them or advised them that “You should present a claim to Tennessee Farmers,” because they believed and I believed that Patricia was free of any negligence and they wanted her claim pressed, as well as Joan’s. Q Mr. Tomlin, the question was not whether you told them that they should. The question was, did you ever tell them that it could be done? A To sit here and tell you specifically I told them it could be done, I can’t dogmatically say that I did, but I can’t dogmatically say that I didn’t. At this late date it was much more than mere “theory” that Joan had a right of action against her sister Patricia A21 to recover damages if Patricia was negligent, since the jury had found that Patricia was negligent. Tomlin had an obli- gation to, and did, defend Patricia and Joan as insureds under the policy of liability insurance, as he was attorney for the insurer. Also the state appellate court found that Joan was not an aider and abetter; she was a passenger. Patricia’s negligence could not be imputed to Joan. If Joan had only been represented by other counsel, and had sued her sister Patricia for damages for personal injuries, the jury, having found that Patricia was negligent in the suits by Pomeroy and Teague, would necessarily have returned a verdict in favor of Joan against Patricia in Joan’s case. Any other verdict could not be supported since the state court of appeals held that Joan was not an aider and abetter, and therefore was not negligent. The District Judge in his opinion stated that the de- fendants claim that Joan was not covered under the liability policy of Woodruff. Defendants offered no such proof, and the undisputed fact is that Tomlin was defending both Joan and Patricia in the suit filed by Pomeroy and Teague. The District Court further stated: In any case, it appeared to this court that this claim based on alleged conflict of interest on the part of de- fendant Tomlin should not be tried with the claims of negligence in losing the lawsuits and therefore it was, by pre-trial order, not dealt with at the trial. [App. 107] The District Court cites no authority for such a prop- osition. This was a legal malpractice case. If conflict of interest should not be dealt with in a malpractice case, where should it be dealt with? Malpractice is defined in Webster’s New World Dic- tionary of the American Language, College Edition, with respect to persons other than physicians, as: A22 2. Misconduct or improper practice in any profes- sional or official position. Negligence of an attorney in the investigation, trial, and appeal of his client’s case is certainly improper practice in his professional capacity; it is malpractice. It is also mal- practice for an attorney to represent parties with conflicting interests, without his disclosing all facts to his clients and obtaining their consent. Canon 6 of the Canons of Professional Ethics of the American Bar Association provide in part as follows: It is the duty of a lawyer at the time of retainer to disclose to the client all the circumstances of his rela- tions to the parties, and any interest in or connection with the controversy, which might influence the client in the selection of counsel. It is unprofessional to represent conflicting inter- ests, except by express consent of all concerned given after a full disclosure of the facts. Within the mean- ing of this canon, a lawyer represents conflicting inter- ests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose. [Opinions on Professional Ethics, p. 22.] The Supreme Court of Tennessee, effective August 31, 1948, in its Canon of Ethics 38 adopted the Canons of Pro- fessional and Judicial Ethics of the American Bar Associa- tion “now in force and as hereafter modified or supple- mented.” 185 Tenn. 889. The American Bar Association has supplemented its Canons of Professional Ethics and the Supplements were adopted by the Supreme Court of Tennessee as shown in Volume 5A of Tennessee Code Annotated, on pages 119 and 115, respectively, as follows: A23 DR 5-105. Refusing to Accept or Continue Em- ployment If the Interests of Another Client May Impair the Independent Professional Judgment of the Lawyer. — (A) A lawyer shall decline prof- fered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve him in representing differing interests, ex- cept the extent permitted under DR 5-105(C). (B) A lawyer shall not continue multiple em- ployment if the exercise of his independent profes- sional judgment in behalf of a client will be or is likely to be adversely affected by his representation of an- other client, or if it would be likely to involve him in representing differing interests, except to the extent permitted under DR 5-105(C). (C) Inthe situtions covered by DR 5-105(A) and (B), a lawyer may represent multiple clients if it is ob- vious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representa- tion on the exercise of his independent professional judgment on behalf of each. [p. 119] Interests of Multiple Clients EC 514. Maintaining the independence of pro- fessional judgment required of a lawyer precludes his acceptance or continuation of employment that will adversely affect his judgment on behalf of or dilute his loyalty to a client. This problem arises whenever a lawyer is asked to represent two (2) or more clients who may have differing interests, whether such inter- ests be conflicting inconsistent, diverse, or otherwise discordant. A24 EC 5-15. If a lawyer is requested to undertake or to continue representation of multiple clients hav- ing potentially differing interests, he must weigh care- fully the possibility that his judgment may be impaired or his loyalty divided if he accepts or continues the employment. He should resolve all doubts against the propriety of the representation. A lawyer should never represent in litigation multiple clients with dif- fering interests; and there are few situations in which he would be justified in representing in litigation mul- tiple clients with potentially differing interests. Ifa lawyer accepted such employment and the interests did become actually differing, he would have to with- draw from employment with likelihood of resulting hardship on the clients; and for this reason it is pref- erable that he refuse the employment initially. On the other hand there are many instances in which a lawyer may properly serve multiple clients having potentially differing interests in matters not involving litigation. If the interests vary only slightly, it is generally likely that the lawyer will not be subjected to an adverse in- fluence and that he can retain his independent judg- ment on behalf of each client; and if the interests become differing, withdrawal is less likely te have a disruptive effect upon the causes of his clients. [p. 115] It is clear from the testimony of Tomlin that he made no disclosure to his clients of all the circumstances of his relations to the parties and of their connection or interest in the controversy, and that his clients never consented. Furthermore, in representing Patricia it was Tomlin’s duty to contend that Patricia was not negligent, although he knew that this was a disputed issue of fact. In representing Joan it was his duty to contend that Patricia was negligent in order to maintain a claim against her and Woodruff’s insurer. In fact, in the state court of appeals Tomlin’s law A25 firm made a damaging admission against the interests of their clients, as heretofore set forth. As a matter of fact it appears that the state appellate court actually imputed Patricia’s negligence to Joan, as there was ample evidence of negligence against Pomeroy and Nobles. The state appellate court should have re- manded this issue for trial. It was for the jury to decide whether the two truck drivers were negligent. To correct this error Tomlin’s law firm should not, in their appellate brief, have made admissions against the interest of their clients, and should have petitioned the Supreme Court of Tennessee for certiorari. When the District Judge, in a pretrial conference, ruled that conflict of interest could not be considered in a legal malpractice case where negligence was also alleged, the plaintiffs petitioned our Court for a writ of mandamus and prohibition to obtain relief from this error. In an order entered July 8, 1976, we held that no appeal lies from an interlocutory order except by leave of court, and that mandamus is an extraordinary remedy and can not be used as a substitute for an interlocutory appeal. Wood- ruff v. Honorable Bailey Brown, No. 76-1892, Court of Ap- peals, 6th Cir. During the trial in the District Court plaintiffs again raised the conflict of interest issue and proffered proof which the District Court rejected, and declined to submit the issue to the jury, and finally dismissed the complaint when it granted judgment n.o.v In this direct appeal we now have jurisdiction to hear and to determine the issue of conflict of interest. In our opinion it was prejudicial error for the District Court at its pretrial conference to separate and remove the issue of conflict of interest from other issues of mal- A26 practice, and to deny the admission of relevant evidence with respect thereto at the trial, and to decline to submit the issue to the jury for determination. If the issue of conflict of interest had been submitted to the jury it could have produced a different result. II OTHER GROUNDS OF MALPRACTICE A. The Erroneous Instruction On Last Clear Chance At the second trial in the state court the trial judge submitted to the jury the issue of last clear chance. Al- though conflicting, there was substantial evidence requir- ing such submission, that Pomeroy, the truck driver, saw the Woodruff car in a position of peril when Pomeroy was a sufficient distance away that he could have stopped his truck and averted the collision, had he exercised ordinary care. Instead, he not only did not bring his truck to a stop, but after the collision he continued uphill about 112 feet from the point of impact. The instruction given by the state trial judge to the jury on the issue of last clear chance was as follows: I charge you that if you believe from the evidence that Mr. Pomeroy saw, or by the exercise of reason- able care, should have seen the plaintiff’s vehicle in a position of imminent peril and in danger of being struck by the truck which he was driving, and you find that the defendant, Pomeroy, in time thereafter by the exercise of reasonable care with the means and appliances at hand on his truck, and with safety to himself and to his truck, could have stopped the same or could have decreased the speed of same, or could A27 have diverted the course of same, and thereby avoided the collision, the plaintiffs would be entitled to re- cover, provided they are not guilty of contributory negligence that proximately caused the accident. |Em- phasis added ] This instruction was clearly erroneous. Under the doc- trine of last clear chance plaintiff’s contributory negligence had ceased. It was no longer a proximate cause. The de- fendant saw the plaintiff in a position of peril in sufficient time that he could have averted the collision had he ex- ercised ordinary care. The instruction of the trial court defeated the entire purpose of the doctrine. It conflicted with a decision of the Supreme Court of Tennessee in Vaughn v. City of Alcoa, 194 Tenn. 449, 251 S.W.2d 304 (1952). It also con- flicted with our decision applying Tennessee law in Smith v. Beattie, 346 F.2d 139 (6th Cir. 1965). It is argued that the erroneous instruction is supported by an appellate decision in Smith v. Craig, 484 S.W.2d 549 (Ct. App. Tenn., cert. denied Aug. 7, 1972). The Supreme Court of Tennessee repudiated Smith v. Craig, supra, in Street v. Calvert, 541 S.W.2d 576 (1976). The trial judge, in giving the erroneous instruction, was bound by the decision of the Supreme Court of Ten- nessee in Vaughn v. City of Alcoa, supra, rather than by an erroneous decision of an inferior appellate court. Tomlin did not even object to the erroneous instruc- tion in the state court trial, nor request the court to change it. He did not assert it as error in a motion for a new trial filed in the state court, nor did he assign it as error in the state court of appeals. It was error for the District Court to grant judgment n.o.v. as this vital issue of malpractice should have been A28 submitted to the jury for determination, and could have produced a different verdict. Expert testimony on this issue and on proximate cause was offered by plaintiffs in the malpractice trial. B. Failure To Call Witnesses It is not understandable why Tomlin did not offer ex- pert testimony at the second trial in the state court, namely, an accident reconstruction expert, to refute the testimony of Col. Dawson, the expert offered by the defendants. Dawson was a state police officer. In the malpractice case, to defend himself and his law firm, they called as expert witnesses three attorneys and the state court trial judge. They also took the deposition of the state appellate court judge who wrote the opinion affirming the judgment of the trial court, which was of- fered in evidence. It was certainly unprecedented to call as witnesses the judges who decided in their favor, and to support their decisions. | Canon 2B of the Code of Judicial Conduct provides that the Judge “should not testify voluntarily as a character witness” because it would inject the prestige of his office into the proceeding to which he testifies. In the present case no criticism can be levelled at the state court judges for testifying in favor of the attorneys for a party to a case, in whose favor they decided, because the two judges in testifying responded to subpoenas issued by the defendants. It should be observed, however, that if the attorneys had exercised the same degree of diligence, by calling at least one expert witness, in handling the case for their clients as they did in defending themselves in the mal- practice case, the result in the state court personal injury cases might well have been different. A29 Mr. Woodruff also testified that he requested Tomlin to call as a witness, Gene Burkhead, who could testify as to the negligence of defendant Nobles, and also could support the testimony of Joan, but he was never called as a witness. Mr. Woodruff further testified that he advised Tomlin that his adult son Eddy and a neighbor, James McClendon, went to the scene of the accident and stepped out the skid marks on the pavement, laid down by the Woodruff car, as sixty paces, or 180 feet, which conflicted with the testi- mony of Col. Dawson, a police officer, who testified at the first trial to skid marks of 252 feet, but Tomlin never called them as witnesses. Tomlin did not even interview Col. Dawson, claiming it would be unethical for him to interview defendant’s expert witness. We see nothing unethical for a lawyer to interview a state police officer. After the first state court trial Mr. Woodruff was ad- vised by one of the jurors and by friends that the plaintiffs could not obtain a fair trial in Chester County, and he re- quested that the cases be removed from that county. Tom- lin advised Woodruff that this could not be done. Tomlin admitted in his deposition, however, that the plaintiffs could have dismissed their complaints without prejudice and re- filed in the federal court. It was at the second trial in the state court that Nobles had contact with one of the jurors relating to coon hunting on his farm. This at least was admittedly erroneous advice given by Tomlin to his client. C. Tennessee Law Applicable To Legal Malprac- tice In granting defendants-appellees’ motion for judgment n.o.v. after the jury could not agree on a verdict, and the court had granted a mistrial, the court relied on two grounds. First, the District Court accepted a Tennessee Court of Appeals decision in Stricklan v. Koella, 546 S.W.2d A30 810 (1976), cert. denied by the Tennessee Supreme Court (1977), as the law of !egal malpractice liability in Tennessee for negligence in the investigation, trial and appeal of a personal injury and property damage suit. The second ground for the District Court’s dismissal was that the harm done to appeliants, if any, was speculative and therefore was not within the province of the jury. The District Court rested its decision on a statement in Stricklan, supra, that in Tennessee no cause of action exists based on a lawyer’s refusal to prepare a case in the manner insisted upon by the client. In Stricklan attorney Koella was retained by the plaintiff to defend him against charges of assault and battery. The client discharged Koella shortly before the trial date because Koella refused to introduce certain depositions, refused to call certain witnesses, or to conduct certain cross examination at the upcoming trial. After paying an expensive settlement without the benefit of counsel, the client sued Koella for the amount of the settlement and costs, and for $250,000 for damage to his reputation. In addition to suing Koella for his refusal to conduct the upcoming trial as directed, the client also sued Koella for declining to move for a change of venue. Koella answered that a motion for change of venue would have been un- founded and improper and would not have been granted. In the present case the attorney gave admittedly incorrect legal advice to his client concerning the client’s right to vol- untarily dismiss his action without prejudice and to sue in the federal court. Koella further answered that the pretrial discovery depositions in issue in his judgment developed no dis- crepancies in testimony and would have been of no use in the upcoming trial. The defendant’s motion for summary judgment was granted. A31 In the present case the District Court was of the opin- ion that the holding in Stricklan prevented the Woodruffs from suing for negligence in the investigation, trial, and ap- peal of their personal injury suit. We believe that the District Court misapplied Stricklan. There was no actual trial in Stricklan, and there was no evi- dence of any negligence on the part of Koella, either by ex- pert witnesses or otherwise. An attorney, like any other professional, is liable for acts of negligence in the conduct of his professional work. He has a duty to possess and to use that degree of skill, competence, and learning or- dinarily possessed and used by others in the same pro- fession, under like and similar circumstances. An attorney who fails to perform his duties for his client in accordance with accepted standards of legal practice is negligent. He is liable for damages proximately caused to the client thereby. RESTATEMENT (SECOND) OF Torts § 299A (1965); Prosser, LAw or Torts § 32 (4th ed. 1971). A lawyer is not exempt from malpractice liability for trial related work. Although there is no Supreme Court of Tennessee de- cision directly on the precise points involved in the present appeal, we believe from a survey of Tennessee law that the Tennessee Supreme Court would hold lawyers liable for negligence in the investigation, trial, and appeal of actions when that negligence proximately injured a client. An attorney is not liable for mistakes in judgment or for tactical decisions, but he is liable for negligence that proximately causes injury to his client. Canon 6 of the Tennessee Code of Professional Responsibility requires a Tennessee attorney to represent a client competently, to prepare adequately, and to give appropriate attention to his work. The Tennessee standard for malpractice liability was set forth by the Tennessee Supreme Court in In re Woods, 158 Tenn. 383, 389, 13 S.W.2d 800 (1929), as follows: A32 [W]hile an attorney does not guarantee the ac- curacy of all he does, he is bound to exercise reason- able skill and diligence in attending to business en- trusted to his care and he is bound to possess such reasonable knowledge of well-settled rules of law as will enable him to perform the duties he undertakes. See also Hillhouse v. McDowell, 219 Tenn. 362, 410 S.W.2d 162 (1966). The Stricklan decision itself recognizes that a Tennessee attorney may be held for legal malpractice.’ The same standard is applied to all attorneys in the state. 1. For lower court cases see Holcomb v. Steele, 47 Tenn. App. 704, 342 S.W.2d 236 (1958), Hill v. Mynatt, 59 S.W. 163 (Tenn. Ct.App. 1900). Other jurisdictions recently have required ordinary care, skill, and diligence from attorneys or, as it is alternatively phrased, that degree of care, skill and diligence which is commonly pos- sessed and exercised by attorneys in practice in the jurisdiction. Smith v. Lewis, 13 Cal.3d 349, 118 Cal. Rptr. 621, 530 P.2d 589 (1975), Cook v. Flanagan & Berst v. Clausing, 73 Wash. 2d 393, 438 P.2d 865 (1968). This standard is well supported historically. See, e.g., Goodman & Mitchell v. Walker, 30 Ala. 482 (1857), Gambert v. Hart, 44 Cal. 542 (1872), Cox v. Sullivan, 7 Ga. 144 (1849), Stevens v. Walker & Dexter, 55 Ill. 151 (1870), Babbitt v. Bumpus, 73 Mich. 331, 41 N.W. 417 (1889). See also Skillen v. Wallace, 36 Ind. 319 (1871), Gilbert v. Williams, 8 Mass. 51 (1811). For further discussion and authority see Annot., 45 A.L.R.2d 5-58 (1956). ve 2. In Stricklan, supra, 546 S.W.2d at 812-13, the Court said: Of course, there are cases which recognize a cause of action for legal malpractice. See Hillhouse v. McDowell, (1966) 219 Tenn. 362, 410 S.W.2d 162; Gay & Taylor, Inc. v. American Cas. Co. of Reading, Pa., (1963 E.S.) 53 Tenn.App. 120, 381 S.W.2d 304; Hill v. Mynatt, (1900 Tenn.Ch.App.) 59 S.W. 163. Ordinarily a lawyer, like a physician, is liable for professional negligence. 87 A.L.R.2d 986; Hill v. Mynatt, supra. The Court further said (546 S.W.2d at 814): We do not hold that there generally is no cause of action against an attorney for his negligence or malpractice; we only hold that for the reasons given, there can be no cause of action 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. A33 Older Tennessee decisions reflect a tradition in Ten- nessee jurisprudence of holding an attorney responsible for damages flowing from negligence in the conduct of his professional duties. Collier v. Pulliam, 81 Tenn. 114 (1884), Read v. Patterson, 79 Tenn. 430 (1883); A.T. Bruce & Co. v. Baxter, 75 Tenn. 477 (1881); Bills v. Polk, 72 Tenn. 494 (1880). We do not agree with the District Court that the harm, if any, done to appellants in the present case was specula- tive and therefore beyond the province of the jury. Causa- tion, historically, has been determined by the jury in all cases involving breach of a standard of reasonable care. In the present case negligence and causation were testified to by plaintiffs’ expert. To recover, plaintiffs must show and convince the jury that, but for the negligence of defendants, the action would have been successful. Collier v. Pulliam, supra. See also Maryland Cas. Co. v. Price, 231 F. 397 (4th Cir. 1916), Spangler v. Sellers, 5 F. 882 (C.C. Oh. 1881), Sitton v. Clements, 257 F.Supp. 63 (E.D. Tenn. 1966), aff’d 385 F.2d 869 (6th Cir. 1967), McLellan v. Fuller, 226 Mass. 374, 115 ~ NE. 481 (1917), Vooth v. McEachen, 181 N.Y. 28, 73 NE. 488 (1905). The damages recoverable would be the full value of the claim lost. See A.T. Bruce & Co., supra, at 481; Annot. 45 A.L.R.2d 62-71 (1956). Ill We find no error in the District Judge’s denial of a motion filed by the plaintiffs to require his recusal under 28 U.S.C. § 455(a). Such recusal cannot be based on de- cisions or rulings of a Judge. Oliver v. Michigan State Bd. of Educ., 508 F.2d 178 (6th Cir. 1974), cert. denied, 421 U.S. 963 (1975). A34 CONCLUSION We are of the opinion that, as pointed out hereinbefore, just too many things went wrong prejudicially affecting the substantial rights of their clients, to absolve the defendants from liability for malpractice. The most grievous errors are the conflicts of interest, the prejudicial and improper admissions against the interests of their clients in the state court of appeals, and the mishandling of the issue of last clear chance. The judgment of the District Court is reversed and thie case is remanded for a new trial. A35 APPENDIX C No. 77-1216 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT JOAN WoopRUFF; PATRICIA WOODRUFF HAMILTON and Louris HAmI.LTon, Her Husband, Plaintiffs-Appellants, V. Hewitt P. ToMuin, Jr.; Homer H. Watprop; Roy HAL; and Davip R. FARMER, Individually and as Partners Doing Business Under the Name and Style of WA.prop, HALL, TOMLIN & FARMER, a Professional Business Association, Defendants-Appellees. AppEAL from the United States District Court for the Western District of Tennessee, Eastern Division. Decided and Filed February 21, 1980. Before: Epwarps, Chief Judge; WEIcK, CELEBREZZE, LIVELY, ENGEL, KEerrH and Merritt, Circuit Judges. LIvELy, Circuit Judge, delivered the opinion of the Court, in which Epwarps, Chief Judge, and CLELBREZZE and KEITH, Circuit Judges, joined. WEeELick, Circuit Judge (pp. 26-38) filed a separate opinion dissenting in part and con- curring in part. ENGEL, Circuit Judge (pp. 38-40) filed a separate dissenting opinion. Merritt, Circuit Judge (pp. 41-50) filed a separate dissenting opinion. Live.y, Circuit Judge. This case involves a claim of legal malpractice arising from the manner in which the defendants handled litigation on behalf of the plaintiffs in A36 the Tennessee state courts. Jurisdiction of the district court was based on diversity of citizenship. The district court severed the plaintiffs’ claims based on alleged con- flict of interests in the defendants’ representation of multi- ple parties. The district court also ordered a bifurcated jury trial, reserving questions of damages until after the jury had determined issues of liability. The case was tried to a jury on the plaintiffs’ claims that the defendants neg- ligently conducted “the investigation, preparation for trial and presentation at trial” of the plaintiffs’ claims for per- sonal injuries arising from an auto-truck collision. The jury in the district court was unable to agree on a verdict and the court declared a mistrial. The defendants then filed a motion for judgment n.o.v. and for dismissal of the complaint. This motion was granted. Woodruff v. Tomlin, 423 F.Supp. 1284 (W.D. Tenn. 1976). An appeal was taken to this court from the final judg- ment dismissing the malpractice action. After oral argu- ment a panel of the court reversed the judgment of the district court. Woodruff v. Tomlin, 593 F.2d 33 (6th Cir. 1979). Thereafter this court granted rehearing en banc by an unpublished order entered May 24, 1979. Following additional briefing and oral argument the case is before the court for decision. Though the effect of the granting of a rehearing en banc is to vacate the previous opinion and judgment of this court (Rule 14, Rules of the Sixth Circuit), we adopt the following statement from the panel opinion: The plaintiffs, Joan Woodruff and her sister Patricia, then 15 and 16 years of age respectively, were severely injured on May 22, 1968, when an automobile driven by Patricia and owned by her father, in which automobile Joan was riding as a passenger, was struck by a large truck loaded with gravel weighing about 73,000 pounds, on Highway 100 in Chester County, Tennessee. Joan was thrown out of the car and the A37 truck ran over her legs, crushing the bones and tear- ing the skin off her legs, cripping her for life. Patricia sustained a skull and brain injury resulting in traumatic amnesia, so that she had no memory of the accident. The girls’ hospital bills alone exceeded $20,000. The girls’ father, Charles Woodruff, carried liabil- ity insurance on his car with Tennessee Farmers Mu- tual Insurance Company, with limits of $10,000 for one person, and $20,000 for more than one person. While the girls were in the hospital Theo. Leathers, the Claims Adjuster for the insurer, contacted Mr. Woodruff and gave him a check for medical reimbursement. Leathers advised Mr. Woodruff that he should retain a lawyer. Leathers told Mr. Woodruff that the statements of wit- nesses to the collision were inconsistent and were changing. Leathers recommended to Woodruff that he retain Hewitt P. Tomlin, stating that Tomlin was a good lawyer. Tomlin was also the attorney for Tennessee Farmers Mutual Insurance Company. Woodruff then engaged Tomlin to represent his two daughters, and also to represent himself in his claim for damages to his car. Tomlin filed two suits for personal injuries sus- tained by the girls and one for damages to the car, against Pomeroy, the driver of the large truck, Teague, the owner of the truck, and Nobles, the owner of the second truck. The suits were filed in the Circuit Court of Chester County, Tennessee. Pomeroy, the truck driver, and Teague, the owner of the truck, filed suits in said Circuit Court against Patricia Woodruff and her sister Joan, to recover dam- ages for personal injury sustained by Pomeroy, and for damages to the truck. They alleged negligence on the A38 part of Patricia, and that Joan, the passenger, aided and abetted. Tomlin, as attorney for Tennessee Farmers Mutual Insurance Company, defended the suits against the two girls. The suits were all con- solidated for trial. The cases in the state court were tried before a jury, which disagreed 9-3, and a mistrial was declared. At the second trial in the state court the jury re- turned a verdict in favor of the defendants in the personal injury actions of Patricia and Joan against Pomeroy, Teague and Nobles. In the suit of Pomeroy and Teague against Patricia and Joan the jury re- turned verdicts in favor of Pomeroy for $600, and Teague in the amount of $3,000. Upon appeal to the state court of appeals the judgments for the defendants in the personal injury cases of Patricia and Joan against Pomeroy, Teague and Nobles, were affirmed. The judgments in favor of Pomeroy and Teague against Patricia, totaling $3,600, were affirmed, but were reversed as to Joan, the Court holding that there was no evidence to prove that Joan, the passenger, aided and abetted in the negli- gence of Patricia. Therefore Joan was not contribu- torily negligent, and Patricia’s negligence could not be imputed to her. 593 F.2d at 35-36. In the district court the plaintiffs contended that the loss of their personal injury actions in the state trial and appellate courts was proximately caused by negligence of the defendants and by their breach of fiduciary duties aris- ing from the attorney-client relationship. The claim of negligence was predicated upon the following acts and omissions of the defendant Tomlin or other members of his law firm: A39 (1) Failure to attempt to obtain a change of venue or take a nonsuit and refile in a federal court after the first personal injury trial resulted in a hung jury. (2) Failure to object to a “‘clearly erroneous” jury in- struction at the second personal injury trial and failure to include the giving of this instruction in the motion and grounds for a new trial. (3) Failure to consult a traffic reconstruction expert to develop time/distance factors and establish stopping distances. (4) Failure to interview and present available wit- nesses who could testify to important facts. (5) Failure to bring to attention of the trial court certain Tennessee statutes bearing on issues in the case. (6) Negligence in the conduct of the appeal. This claim was based primarily on the fact that the defendants conceded in their brief in the Tennessee Court of Appeals that there was substantial evidence to support the jury’s finding that Patricia was negligent in the operation of her father’s automobile. It was also contended that the de- fendants failed to argue applicable statutes in their appel- late brief and failed to argue the “clearly erroneous” in- struction. All of these contentions have been renewed in this court. Since this is a diversity case the court is required to apply the substantive law of Tennessee. Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938). Our problem in this respect arises from the fact that the Supreme Court of Tennessee has never decided a legal malpractice case on facts even remotely resembling those of the present case. In fact, there is a dearth of reported decisions from any jurisdiction dealing with charges of negligence and mal- practice in the conduct of litigation. However, the Ten- A40 nessee Court of Appeals rendered a decision while the present case was pending in the district court in which it held ‘‘there can be no cause of action against an attorney arising out of the manner in which he honestly chooses to present his client’s case to the trier of facts.” Stricklan v. Koella, 546 S.W.2d 810, 814 (Tenn. App. 1976), cert. denied by Supreme Court of Tennessee, February 7, 1977. The district court found that the Stricklan case “deals squarely with the question presented here.” 423 F.Supp. at 1288. On appeal it is argued by the defendants that Strick- lan states the common law of Tennessee, and since there was no charge of dishonesty or bad faith on their part, there can be no cause of action against them for the manner in which they chose to conduct the litigation on behalf of the plaintiffs. In an early decision applying the Erie doctrine, the Su- preme Court held that ‘‘in the absence of more convincing evidence of what the state law is,” a federal court should apply the law as declared by an intermediate state court. Fidelity Trust Co. v. Field, 311 U.S. 169, 177-78 (1940). Chief Justice Hughes, writing for the Court, noted, “We have no other evidence of the state law in this relation.” Id. at 178. At the same term the Supreme Court further defined the rule to be applied by federal courts as follows: A state is not without law save as its highest court has declared it. There are many rules of decision commonly accepted and acted upon by the bar and inferior courts which are nevertheless laws of the state although the highest court of the state has never passed upon them. In those circumstances a federal court is not free to reject the state rule merely be- cause it has not received the sanction of the highest state court, even though it thinks the rule is unsound in principle or that another is preferable. State law is to be applied in the federal as well as the state A4l courts and it is the duty of the former in every case to ascertain from all the available data what the state law is and apply it rather than to prescribe a different rule, however superior it may appear from the view- point of ‘‘general law” and however much the state rule may have departed from prior decisions of the federal courts. Where an intermediate appellate state court rests its considered judgment upon the rule of law which it announces, that is a datum for ascertaining state law which is not to be disregarded by a federal court un- less it is convinced by other persuasive data that the highest court of the state would decide otherwise. West v. American Telephone & Telegraph Co., 311 U.S. 223, 236-237 (1940) (citation omitted). See also, Six Companies v. Highway District, 311 U.S. 180, 188 (1940). Thus, before concluding ’that Stricklan v. Koella states the rule of law of Tennessee we must de- termine whether there is ‘more convincing evidence of what the state law is” with respect to legal malpractice in the conduct of litigation. Tennessee clearly recognizes a cause of action for legal malpractice. In fact, the concluding paragraph of the opinion in Stricklan v. Koella states, ‘“‘We do not hold that there generally is no cause of action against an attorney for his negligence or malpractice... .” 546 S.W.2d at 814. The Supreme Court of Tennessee stated the rule as follows in In Re Woods, 158 Tenn. 383, 13 S.W.2d 800 (1929): While an attorney does not guarantee the accuracy of all he does, he is bound to exercise reasonable skill and diligence in attending to business intrusted to his care, and he is bound to possess such reasonable knowl- edge of well-settled rules of law as will enable him to perform the duties he undertakes. Bills v. Polk, 72 A42 Tenn. (4 Lea) 495; Bruce v. Baxter, 75 Tenn. (7 Lea) 477; Read v. Patterson, 79 Tenn. (11 Lea) 430; Collier v. Pulliam, 81 Tenn. (13 Lea) 114; Hill v. Mynatt (Tenn. Ch. App.) 59 S.W. 163, 52 L.R.A. 883. “For loss to clients resulting from a want of proper knowledge of matters of law in common use, or of such plain and obvious principles as every lawyer is presumed to know, an attorney is liable, and he is usually held to be liable for the consequences of his ignorance of nonobservance of the rules of the courts in which he practices, or for his ignorance of the statutes and published decisions of his own state.” 2 R. C. L. 1015. 158 Tenn. at 389-90, 13 S.W.2d at 803. The cases cited by the Tennessee Court in In Re Woods, supra, and other cases here cited disclose a long-standing recognition of the general rule recognizing a cause of ac- tion for legal malpractice. However, none of these cases involved the actual conduct of litigation. See e.g., Jones v. Smith, 45 Tenn. 371 (1868) (liability for confessing judgment without authority); Maxwell v. Owen, 47 Tenn. 630 (1868) (liability for assigning a debt without per- mission); Bruce v. Baxter, 75 Tenn. 477 (1881) (liability for lack of diligence in collecting claims) ; Collier v. Pulliam, 81 Tenn. 114 (1884) (liability for failure to bring suit upon an account). In Hillhouse v. McDowell, 410 S.W.2d 162 (Tenn. 1966), the Supreme Court of Tennessee reversed a circuit court judgment for an attorney in a malpractice action. The legal malpractice claim was founded on the attorney’s failure to prosecute his client’s personal injury action within the time prescribed by the applicable Ten- nessee statute of limitations. Though the court based its reversal on a finding that the trial court had applied the wrong statute of limitations to the legal malpractice action, A43 it made several noteworthy comments on the nature of an attorney’s duty to a client. For example, the court quoted from its earlier opinion in Bruce v. Baxter, supra, as follows: * * * When a person adopts the profession of the law, and assumes to exercise its duties in behalf of another for hire and reward, he must be held to employ in his undertaking a reasonable degree of care and skill; and if any injury result to the client from want of such reasonable care and skill, the attorney must respond to the extent of the injury sustained. 410 S.W.2d at 164. Further, the court described the action before it in this language: We feel that this suit is based upon an attorney- client relationship of trust, and in addition to being an implied contract it was an express contract that he would exercise reasonable skill and diligence in doing what was undertaken and that when there was a failure to thus exercise such diligence this was a breach of contract rendering the attorney liable for the loss resulting, but no more. 410 S.W.2d at 166. It appears that the Supreme Court of Tennessee has not held that an attorney may never be liable for negligence in the conduct of litigation. In view of the inclusive language which that court has used in describing the duty of attorneys to exercise reasonable care and skill in their undertakings for clients we conclude that the district couct read Stricklan too expansively. The Ten- nessee Court of Appeals in Stricklan described the case thus: A44 Essentially and in simple terms, the cause of action stated is that retained counsel refused to use the trial tactics insisted upon by the client, for which refusal retained counsel’s services were termi- nated .... 546 S.W.2d at 812. After noting cases where the Tennessee courts had recog- nized a cause of action for legal malpractice, the court of appeals stated, “However, none of the Tennessee cases that we find recognize a cause of action for alleged negli- gence in the attorney’s choice of trial tactics or conduct of the case.” Id. at 813. When viewed in light of the general Tennessee rule which holds attorneys liable for losses to clients for failure to exercise reasonable skill and care, Stricklan can only mean that there can be no liability for acts and omissions by an attorney in the conduct of litigation which are based on an honest exercise of professional judgment. This is a sound rule.’ Otherwise, every losing litigant would be able to sue his attorney if he could find another attorney who was willing to second-guess the decisions of the first attorney with the advantage of hindsight. If this were permitted, as Judge Brown pointed out in the present case, the original trial would become a “play within a play” at the malpractice trial. To hold that an attorney may not be held liable for the choice of trial tactics and 1. Though the court in Stricklan relied on the decision in the English case of Rondel v. Worsley, reported as (1966) 1 All E.R. 467; (1966 C.A.) 3 All E.R. 657; (1967 H.L.) 3 All. E.R. 993; (1969) 1 A.C. 191, neither counsel nor we have found an Ameri- can decision holding an attorney liable for the choice of trial tactics or the good faith exercise of professional judgment On appeal the appellees also cited New Zealand cases which have followed Rondel v. Worsley, holding that attorneys are immune to suits for “work done in court.” E.g., Bigger v. McLeod, 1 NZLR 321, 325 (1976). A45 the conduct of a case based on professional judgment is not to say, however, that an attorney may not be held liable for any of his actions in relation to a trial. He is still bound to exercise a reasonable degree of skill and care in all his professional undertakings. Leaving aside for later treatment the allegations of conflict of interests, we will examine the plaintiffs’ claims of negligence in the investigation, preparation for trial and presentation at trial of their personal injury actions. (1) FAILURE TO ATTEMPT TO OBTAIN A CHANGE OF VENUE OR TAKE A NONSUIT AND RE- FILE IN FEDERAL COURT. This claim is based on testimony of Charles Woodruff, father of the plaintiffs herein, that he was told that he and his daughters could not get a fair trial in Chester County, Tennessee. Mr. Wocdruff testified that he related this information to the defendant Tomlin and that Tomlin advised him that the case had to be tried in Chester County. The chances of getting a change of venue to another Tennessee circuit court on the basis of this unsubstantiated rumor would be virtually non-existent. An attorney should not be charged with malpractice for refusing to make such a frivolous motion. The plaintiffs claim, however, that they had moved to Arizona in November 1969 and that Tomlin could have brought the action in a federal court in Tennessee after that time, invoking diversity jurisdiction. It is not at all clear that Tomlin was advised that the Woodruff family had changed its residence to Arizona. In fact, at the second trial in 1971, Joan Woodruff was asked, “Where do you presently live?” Her response was, ‘“‘Toone—I live in Piney Grove, but on Toone Route.” Though the family had lived for two years in Arizona, this reply by a plain- tiff who was then 18 years old, indicated her residence A46 was the same as it had been on the date of the accident. Though Mr. Tomlin conceded in his deposition that if the Woodruffs had actually changed their residence to Arizona an action could have been filed in federal court, he further stated that he regarded the Woodruff family as Tennessee residents. Further, Tomlin testified without contradiction that there was no perceptible pattern of higher verdicts for plaintiffs in the federal courts of West Tennessee than in the local courts of the region. We conclude that there is no basis in this record for holding that Tomlin’s continued pursuit of the plaintiffs’ actions in the circuit court of Chester County, Tennessee could be found negligent, or otherwise constitute mal- practice. This claim was properly dismissed by the dis- trict court. (2) FAILURE TO OBJECT TO A “CLEARLY ERRO- NEOUS” JURY INSTRUCTION AND TO PRESERVE THIS ERROR FOR APPEAL. This claim refers to the last clear chance instruction which was given at the second personal injury trial: I charge you that if you believe from the evidence that Mr. Pomeroy saw, or by the exercise of reason- able care, should have seen the plaintiffs’ vehicle in a position of imminent peril and in danger of being struck by the truck which he was driving, and you find that the defendant, Pomeroy, in time thereafter by the exercise of reasonable care with the means and appliances at hand on his truck, and with safety to himself and to his truck, could have stopped the same or could have decreased the speed of same, or could have diverted the course of same, and thereby avoided the collision, the plaintiffs would be entitled , to recover, provided they are not guilty of contributory negligence that proximately caused the accident. A47 On its face this instruction does appear erroneous, since the doctrine of “last clear chance” only applies to a plaintiff who is negligent, and the final clause of the instruction appears to nullify what went before. Never- theless, this instruction reflected the Tennessee rule then being followed that a plaintiff may not rely on last clear chance where his own negligence “continues and is con- current with the negligence of the defendant as a causal factor up to the time of the event which causes harm.” Gardner’s Masonry Contractors, Inc. v. St. Louis-San Fran- cisco R. Co., 470 S.W.2d 945, 948-49 (Tenn. App.), cert. denied, (1971). Gardner’s Masonry was decided by the Western Section of the Court of Appeals of Tennessee three months before the second personal injury trial of the Woodruffs. This was the court to which an appeal would be taken from judgments of the circuit court of Chester County. Some six months after the Woodruff trial the same appellate court concluded that there was a difference between “last clear chance” and “discovered peril” and that continuing contributory negligence is a complete defense to a claim based on last clear chance, but has no effect on discovered peril. See Smith v. Craig, 484 S.W.2d 549, 552 (Tenn. App.), cert. denied, (1972). In Street v. Calvert, 541 S.W.2d 576 (1976), The Supreme Court of Tennessee held that the interpretation of last clear chance, discovered peril and “discoverable peril” by the appellate court in Gardner’s Masonry and Smith v, Craig, was erroneous. However, in doing so the court acknowledged that three of its earlier decisions (Williford, Roe and Todd) “provided some support” for the holdings of Gardner’s Masonry and Smith v. Craig. Id. at 583. The decision in Street v. Calvert was ren- dered nearly five years after the second Woodruff trial. In view of the confusion surrounding the proper application of last clear chance in Tennessee at the time A48 of the Woodruff trial we can find no basis for holding that attorney Tomlin could be found negligent for failing to object to the instruction or for failing to urge it as error on appeal to the Western Section of the Court of Appeals of Tennessee. In In Re Woods, supra, the Su- preme Court of Tennessee cited with approval the decision of the Tennessee Court of Chancery Appeals in Hill v. Mynatt, 59 S.W. 163 (Tenn. Ch. App. 1900). Woods, 13 S.W.2d at 803. In Hill v. Mynatt, the court discussed the responsibility of an attorney in the following language: As a matter of fact, law is not an exact science, and, as said in a leading case, “there is no attainable degree of skill or expense at which all differences of opinion or doubts in respect to questions of law are removed from the minds of lawyers and judges.” Association v. Friedley (Ind.) 23 N. E. 1075, 7 L. R. A. 669, 18 Am. St. Rep. 320. And if all of us had to go out for mistakes of judgment upon points of new occur- rence, or of nice or doubtful construction, it is appre- hended that the ranks of the profession, and of judges not final in their jurisdiction, would be decimated at an appalling rate. We recognize and approve the rule attaching liability to the attorney whose client suffers loss on account of his failure to understand and apply well-established principles of law, settled by text-books and cases published long enough for him, exercising reasonable diligence, to have informed himself of them. In other words, an attorney has no right to be a clam, and shut himself up in the seclusion of his own self-conceived knowledge of the law. He must keep pace, so far as reasonable diligence and a fair amount of common sense will enable him to do so, with the literature of his profession, and what the courts have decided. But the law does not require and never has required of a member of the A49 profession that he should be a true Sir Oracle of what the courts have decided or will decide as the law applicable to every given state of facts. 59 S.W. at 167. This claim was properly dismissed by the district court. (3) FAILURE TO CONSULT A TRAFFIC RECON- STRUCTION EXPERT. Tomlin did employ an engineer who made measurements at the scene of the accident and prepared a plat. There was no evidence that the accepted standard of performance for Tennessee lawyers requires consultation with a traffic reconstruction expert, or use of such a witness, in highway accident cases. The decision to establish the physical facts of the case by use of an engineer’s plat rather than the testimony of an expert appears to be one of trial tactics or judgment as to the most effective presentation of a client’s case. Once the distances between objects were established the time/distance factors and stopping distances were simple mathematical computations. In the absence of bad faith, the failure to consult an expert cannot be the basis of liability. Stricklan v. Koella, supra. There was no claim of bad faith in this case. The plaintiffs also complain that Tomlin did not inter- view or attempt to weaken by cross-examination the tes- timony of an expert witness who estimated the speed of the Woodruff vehicle, based on the length of skid marks, at 76 m.p.h. Tomlin explainec. that the witness was a colonel in the State Police Force of Tennessee, whom he knew well, and that he did not believe he could shake his testimony. Instead, Tomlin decided to rely on the testimony of the passenger-plaintiff Joan Woodruff and the driver of the car following closely behind the Woodruff vehicle, Gayle Sterling. Both these witnesses testified positively that Patricia Woodruff was A50 driving at no more than 55 m.p.h. on a road with a 65 m.p.h. speed limit. This was clearly a tactical decision by Tomlin which would furnish no basis for a malpractice claim under Stricklan. This claim was properly dismissed by the district court. (4) CONCESSIONS IN THE APPELLATE BRIEF. In their brief in the court of appeals the law firm repre- senting the Woodruffs (the brief was written by defendant Waldrop) conceded that there was substantial evidence to support the jury’s finding that Patricia Woodruff was negligent in the operation of her father’s car. This was clearly so. If the jury believed the expert who testified for the defendants or the defendant Pomeroy it could find that Patricia Woodruff was operating her vehicle at an excessive rate of speed. The brief did not concede that Pomeroy, the driver of the truck which collided with the Woodruff car, was free of negligence. Nor did it concede that Lewis Nobles, the driver of a third vehicle on the highway, was free of negligence. Tomlin explained the concessions in his testimony. He pointed out the duty of an attorney to be honest with the court. He and his associates felt that there was no basis for reversing the jury’s finding of negligence by Patricia Woodruff under Tennessee law. However, since Patrici [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2381%3A1. Public record. Not legal advice.