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GENERAL SUMMARY OF LEGAL NEGLIGENCE LAW
Standard of care
In Tennessee, in a suit against an attorney for professional negligence, the
plaintiff must prove three things in order to recover: (1) the employment of the
attorney; (2) neglect by the attorney of a reasonable duty; (3) damages
resulting from such neglect. See, e.g., Zonge v. Woodall, 2000 WL 1473861,
Tenn.Ct.App.,2000; Sanjines v. Associates, P.C., 984 S.W.2d 907, 910
(Tenn.1998); Lazy Seven Coal Sales, Inc. v. Stone & Hinds, P.C., 813 S.W.2d 400
(Tenn.,1991); Sammons v. Rotroff, 653 S.W.2d 740, 745 (Tenn.Ct.App.1983), cert. denied, 464 U.S. 860, 104
S.Ct. 186, 78 L.Ed.2d 165 (1983);. Stricklan v. Koella, 546 S.W.2d 810, 813
(Tenn.Ct.App.1976).
Although Spalding v. Davis, 674 S.W.2d 710 (Tenn. 1984) was overruled
on other grounds in Meadows v. State, 849 S.W.2d 748, 752 (Tenn.1993), the
Spalding case is referred to quite often in Tennessee cases for the proposition
that:
An attorney's actions are measured against the degree of care, skill, and
diligence which is commonly possessed and exercised by attorneys practicing in
the same jurisdiction.
In other words, to date Tennessee courts use the locality rule in
professional malpractice cases. Although I have not researched
the matter, most courts today mean the state when they refer to the "same
jurisdiction".
Locality is important primarily when circumstances within the state must be
known by the attorney to properly represent the client. For example,
whether to challenge a particular juror in jury selection involves local
considerations, i.e., knowledge of the local prejudices and patterns of common
knowledge. As another example, an attorney cannot escape injury caused to
a client because of ignorance of a local court rule, Under the standard of
ordinary care and skill, the attorney must be versed in the local rules in which
he/she represents the client. The standard that a lawyer must use ordinary
care and skill is not lowered in a particular community because all the lawyers
there have chosen not to learn the local court rules in which they practice.
Mallen and Smith sum up:
"Locality is a form of
'specialization' regarding the knowledge required of those practicing within a
particular geographical area. Knowledge of those local considerations can
be essential to the client's representation. Locality, however, does not
otherwise affect the standard of care, that being ordinary skill and knowledge." Mallen and Smith, 2 Legal Malpractice 568 (4th ed).
Since the 1970's Tennessee's Rules of Civil Procedure, and since 1991,
Tennessee's Rules of Evidence, have been virtually identical with the Federal
Rules. Like other states, attorneys in Tennessee can switch between
federal and state court without difficulty. Because the rules of civil
procedure and evidence are now so similar in state courts nationally, and
because of present day communication and transportation it can rationally be
said that there is now a nationwide standard of what is the reasonable degree of
care, skill, and diligence which is commonly possessed and exercised by
litigation attorneys.Proximate Cause -
Proof of Underlying Case or Transaction
Instead of language referring to a need to prove proximate cause, Tennessee courts' case opinions speak speaks in terms of the need to show "a nexus between the
negligence and the injury". See e.g., for the use of that phrase Sanjines
v. Associates, P.C., 984 S.W.2d 907, 910 (Tenn.1998):
"The plaintiff in a
malpractice case must prove that the attorney's conduct fell below that degree
of care, skill, and diligence which is commonly possessed and exercised by
attorneys practicing in the same jurisdiction. Spalding v. Davis, 674 S.W.2d
710, 714 (Tenn.1984),. . . . In addition, the plaintiff must demonstrate a
nexus between the negligence and the injury. Lazy Seven Coal Sales, Inc. v.
Stone & Hinds, P.C., 813 S.W.2d 400, 406 (Tenn.1991)."
Note: Hutter v. Cohen, 55 S.W.3d 571, (Tenn.Ct.App.,2001) discusses the elements
necessary in an affidavit supporting a legal malpractice claim.
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