The Judge Is Not A Witness

The Tennessee Court of Appeals has affirmed the denial of a recusal motion filed by a defendant law firm in a legal malpractice case.

The trial judge had handled the underlying class action settlement that led to the malpractice allegations.

The law firm contended that he was a necessary witness in the present matter.

This lawsuit was brought against attorneys who had represented Ms. Hawthorne and others in a prior class action case in Chancery Court, one that concerned the mishandling of human remains at the Galilee Memorial Gardens cemetery. In her first amended complaint in the Malpractice Suit, Ms. Hawthorne asserted that the named Defendant attorneys, “along with their corporate affiliates, recklessly consider[ed] themselves to be infallible . . . [and] wielded total control of the Galilee Class Action . . . and egregiously and inexcusably refused to entertain, respond to, and accept over $25 million dollars in settlement offers made by the Funeral Home Defendants during the trial of the Galilee Class Action.”

The amended complaint alleged over $11 million in damages.

The law firm’s position

In this matter, the Defendants contend that they will be calling Chancellor Kyle as an essential witness to prove the falsity of Ms. Hawthorne’s allegation that the Galilee Class Action would have settled for huge sums but for alleged malpractice. Chancellor Kyle will be a key witness, they suggest, due to the requirement that settlements in class actions must garner the consent of the trial court.

The court here

No doubt, the assertion here is that favorable settlements in the underlying lawsuit would have been achieved absent the Defendants’ negligence.  Clearly, therefore, that is part of the case Ms. Hawthorne must establish in her “trial within a trial.” In our view, however, the jury is not in a position to make the determination of whether any alleged settlements would have been approved in the underlying litigation. That question is for the court, not the jurors as factfinders, and therefore, there is no basis to solicit supposed factual testimony from Chancellor Kyle on the question. He does not need to testify.

(Mike Frisch)