Amicus Brief — Tomlin v. Woodruff

No. 79-1802

In the Supreme Court of the United States

October Term, 1979

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.

MOTION OF TENNESSEE BAR ASSOCIATION

UNDER RULE 42(3.) FOR LEAVE TO FILE

THIS BRIEF AS AMICUS CURIAE

WILSON SIMS

2700 First American Center

Nashville, Tennessee 37238

and

Jac CHAMBLISS

1111 Maclellan Building

Chattanooga, Tennessee 37402

E. L. Menpennatt, Ino,, 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030

MOTION OF TENNESSEE BAR ASSOCIATION

Comes the Tennessee Bar Association and respectfully

moves the Court that it be allowed to file its Brief in

support of the Petition of Hewitt P. Tomlin, Jr., et al. for

Writ of Certiorari to the United States Court of Appeals

for the Sixth Circuit. This Motion incorporates the Brief

of the Tennessee Bar Association, as amicus curiae.

It is not the purpose of the Tennessee Bar Association

to take a position in support of any litigant; rather it is

the purpose of the Association to express great concern on

behalf of the trial attorneys in the State of Tennessee that

the opinion of the Sixth Circuit in this cause has recreated

the situation sought to be remedied by Erie Railroad Co.

v. Tompkins, 304 U.S. 64 (1938) - or two divergent or con-

flicting systems of law, one to be applied by the Tennessee

State Courts and the other to be applied in the Federal

Courts concerning the standards governing negligence or

malpractice suits against attorneys engaged in Tennessee

litigation.

Tennessee Bar Association was permitted to file an

amicus curiae brief before the Court below arguing that,

under Tennessee law, there can be no cause of action for

malpractice against an attorney arising out of the manner

in which he honestly and in good faith chooses to litigate

his client’s case. This Association urged that the Tennessee

law in this regard was settled by Stricklan v. Koella, 546

S.W.2d 810 (Tenn. Ct. App. 1976), cert. denied (Tenn. 1977).

The Association argued that under Erie, and specifically

under West v. American Telephone & Telegraph Co., 311

U.S. 223 (1940) (since Stricklan is an opinion of an inter-

mediate appellate court in Tennessee and not the Tennessee

Supreme Court) Federal Courts judging the performance

of a Tennessee attorney engaged in Tennessee litigation are

bound by the Tennessee law. In addition, the Association

argued that the record in this case would not sustain a

jury verdict against a Tennessee lawyer because such ver-

dict would necessarily be based upon speculation and guess-

2

work as to the proximate cause and measure of the plain-

tiff’s injury and damages.

This movant states that its position as to the standard

of performance by which a Tennessee lawyer in litigation

is judged is fully and adequately set forth and argued in

the Tomlin Petition for Writ of Certiorari. However, the

Association moves the Court that it be permitted to demon-

strate that the opinion of the Sixth Circuit Court misin-

terprets and fails to apply the Tennessee law of proximate

cause and the proper measure of damages in legal malprac-

tice actions in Tennessee. Movant’s argument is as follows.

To recover in Tennessee, the client, in an attorney mal-

practice action, must prove that he would have been suc-

cessful in the prosecution or defense of the action in ques-

tion but for the attorney’s negligence of which he com-

plains. Gay & Taylor, Inc. v. American Cas. Co. of Reading,

Pa., 93 Tenn. App. 120, 381 S.W.2d 304 (1964).

In Tennessee, a “‘jury is [not] permitted to speculate

or guess as to proximate cause of injury”. Moon v. John-

ston, 47 Tenn. App. 208, 337 S.W.2d 464, 469 (1959). If

from all the evidence it is a matter of conjecture, or sur-

mise as to the cause of the injury, a verdict should be

directed for the defendant. Tenn. Cent. Ry. Co. v. Williams,

9 Tenn. App. 529 (1929).

Tennessee, in Stricklan, reaffirms that its general law

of proximate cause is applicable in attorney malpractice

cases such as the instant case:

“In a suit [against a trial attorney] complaining of the

manner in which proof was presented and the manner

of examination and cross-examination of witnesses,

only by pure guesswork 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.” 546 S.W.2d at 813. [Emphasis

added ]

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The trial judge in this case, Judge Bailey Brown (now

Circuit Judge), held that he, as a federal judge, must apply

the law of Tennessee and was, therefore, bound by Stricklan

(and universally accepted principles of negligence and prox-

imate cause law, as well), and stated:

“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 some-

thing that was not done had been done, the jury ver-

dict in the personal injury case would have been dif-

ferent. 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 ac-

tion such as this can be maintained, 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. 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.” 423

F. Supp. at 1288. [Emphasis added]

Under Erie, the federal court in diversity cases, on

matters of negligence and proximate cause, is bound by the

law of the forum state. Peerless Ins. Co. v. Cerny &

Associates, Inc., 199 F. Supp. 951 (D. Minn. 1961). In-

deed, in all aspects of the law of negligence the law of the

forum state is controlling. Cordle v. Renault, Inc., 361 F.2d

332 (6th Cir. 1966).

Stricklan is not the only appellate decision establish-

ing the Tennessee law of proximate cause in regard to

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attorney malpractice suits. ‘The Sixth Circuit and this

Court cannot ignore these Tennessee decisions and be “con-

vinced by other persuasive data that the highest court of

the state would decide otherwise”. West v. American Tele-

phone and Telegraph Co., 311 U.S. 223, 237. The Sixth

Circuit opinion itself correctly declares “the Tennessee

Rule”, of proximate cause and quotes with apparent ap-

proval, from Gay & Taylor, Inc. v. American Casualty Co.,

supra, as follows:

“The burden of proving that damages resulted from

the negligence of an attorney, or from his failure to

follow instructions, in connection with the prosecution

or defense of a suit rests upon the client and usually

requires the client to demonstrate that, but for the

negligence complained of, the client would have been

successful in the prosecution or defense of the action

in question. 7 Am. Jur., Attorneys at Law, Sec. 188,

p. 156; Anno. 45 A.L.R.2d 21.” [Emphasis added]

But then the Sixth Circuit Court puts misplaced re-

liance upon Loftis v. Finch, 491 S.W.2d 370, 373 (Tenn.

App. 1972), cert. denied (1973) and Story Parchment Co. v.

Paterson Parchment Paper Co., 282 U.S. 555, 563 (1931) and

states that a jury question for proximate cause is presented

on the conflict of interest claim’ of the plaintiffs. The

Loftis case was not an attorney malpractice case but was an

automobile collision case involving personal injuries, med-

ical expense, lost personal property and lost earnings.

Story Parchment Co. involves damages under the Sherman

Antitrust Act and is not concerned with state law.

We must agree with dissenting Judge Merritt of the

Sixth Circuit that the majority opinion of the Court below

1. While the Sixth Circuit holds that the jury question is

also presented by Tomlin’s failure to interview and present avail-

able witnesses and failure to bring to the attention of the Trial

Court certain Tennessee traffic statutes, the Court’s discussion

of those two issues does not address this critical issue of proxi-

mate cause. On both the witness question and traffic statute

question no second jury could determine the effect on the ver-

dict of the first jury of the absent witnesses or traffic statute

arguments.

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“gives no consideration at all to . . . proximate causation

and fails entirely to analyze this issue.” 616 F.2d at 946.

To paraphrase the Tennessee Court in Stricklan there

is nO way any subsequent jury “can tell with one iota of

certainty how another . . . jury would have decided a case

if such and such had been said or done or had not been said

or done...” The Sixth Circuit opinion concedes that any

jury verdict in this case involves guesswork, albeit “second

guessing.” 616 F.2d 937. As stated by District Judge (now

Circuit Judge) Brown “in any event it seems 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.” 423 F. Supp. at 1288.

Thus, the opinion of the Sixth Circuit is erroneous and

contrary to the law of Tennessee and disturbs Movant be-

cause of the apparent inattention to the creation of differ-

ent standards of attorney malpractice litigation in violation

of Erie and the failure of the Court to deal with the prox-

imate cause issue discussed herein.

CONCLUSION

For the reasons set out above the Tennessee Bar

Association joins in the Petition for Writ of Certiorari by

Tomlin and requests that this motion be allowed as its Brief

Amicus Curiae, in support of the Writ. The issues raised in

this lawsuit are of most critical importance to the trial bar

of Tennessee, and of other states.

Respectfully submitted,

WILSON SIMs

2700 First American Center

Nashville, Tennessee 37238

and

Jac CHAMBLISS

1111 Maclellan Building

Chattanooga, Tennessee 37402

CERTIFICATE OF SERVICE

The undersigned hereby certifies that three copies of

the foregoing Motion of Tennessee Bar Association have

been served upon the following counsel of record on this

the 6th day of June, 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. Leo Bearman, Jr.

Attorney at Law

1140 Sterick Building

Memphis, Tennessee 38103

Mr. John J. Thomason

Attorney at Law

100 North Main Building

Suite 2518

Memphis, Tennessee 38103

WILSON SIMS