The town’s malpractice lawsuit against the Marcus Law Firm, its former town counsel, was settled Wednesday after a day and a half of hard negotiations in which each side “compromised substantially,” the judge said.
In the end the law firm agreed to pay the town $1 million under its malpractice insurance, according to town officials.
Senior Superior Court Judge Patty Jenkins Pittman did not announce the financial terms of the settlement, but described it in open court as “a substantial amount of money to the town of Branford.”
The town filed the malpractice lawsuit against the law firm and David Doyle, its litigator, in 2008 after a jury in Waterbury delivered a $12.4 million jury damage award against the town the year before.
The Tabor case stemmed from the town’s decision in 2003 to seize under eminent domain a 77-acre tract of land known as Tabor. The Connecticut Supreme Court in Feb. 2010 unanimously overturned the $12.4 million award, saying New England Estates, the proposed developer of the Tabor site, was not entitled to damages because they had an unrecorded option on the land, but did not own it.
The town’s malpractice attorney R. Bartley Halloran told the Eagle after the court session that the primary reason the town settled was that the trial, as envisioned by the trial judge Robert Young, would be divided into two sections, and would “ have been a very, very long case.” Judge Young was quick, decisive and determined. He also let the law firm know he was unpersuaded by an argument that there was no deadline issued for expert witnesses. (Click here to read that story.)
“We would have had to read an entire transcript of the first two trials [in 2007] to a jury and then try the malpractice case for six days or seven days. This would be taxing on a jury. These were very complicated matters for a jury to understand. Really I feel this is a fair resolution for the town,” Halloran said.
“And there is compensation for what happened.”
Marcus and Doyle No-Shows Final Day
Neither Ed Marcus, the head of the firm nor David Doyle, one of the firm’s main litigators, was present in the court when the judge announced a settlement that would end one of the town’s most controversial and litigious cases in its history.
The firm’s attorney, Fredrick L. Murolo, stood alone at the defense table. Branford First Selectman Anthony “Unk” DaRos and William H. Clendenen, Jr., the town attorney, joined Halloran and his daughter Kristin, also a lawyer, at the plaintiffs’ table. An insurance representative was seated in the spectator section.
Judge Pittman noted on the record that the “expense, length and complexity “of a malpractice trial “would be substantial for both sides.” In addition, she observed, “juries are unpredictable.” She made the announcement of the settlement in her courtroom as high noon approached. She described her role as providing a forum for the attorneys as they sought to work out their differences. She described the attorneys in the case as “prepared and tenacious.” Pittman was overseeing the settlement talks; a separate judge, Young, was overseeing the trial.
The settlement must now be approved by the Board of Selectmen, which meets tomorrow (Friday) at 8 a.m. at Fire Headquarters to discuss and vote on the proposed settlement. The judge told DaRos, who participated in the negotiations, to let her know as soon as the board acts. At that point the lawsuit will be withdrawn from the record.
The judge said she was “very pleased that this matter has settled.” It came as a deadline for jury selection loomed. Testimony in the case was expected to begin July 8, Judge Young told attorneys for both sides.
The town attempted but failed to reach a settlement with the Marcus Law Firm in December 2010. When the town’s lawsuit against the law firm was first filed, Marcus accused DaRos of playing politics and said his firm had been treated “in a vindictive and malicious fashion.” The lawsuit asserted that the law firm and Doyle failed to keep the town’s subsequent trial attorneys informed of key dates and actions regarding expert witness in the Tabor trial and the firm’s records were in disarray. Marcus rejected this version of events.
He was not in court Wednesday, and efforts to reach him at home for comment were unsuccessful.
Judge Plays Decisive Role
By day’s end on Tuesday, settlement talks were progressing, the judge said. But they needed a push. Halloran told the Eagle the number on the table for the town on Tuesday was zero.
Then Judge Pittman stepped in and took the unusual step of ordering the insurance company into the negotiations. That is when the gears shifted.
Both sides were dealing not with what the town’s expenditures in the case, about $11 million, the judge said, but with the limits of the malpractice insurance for the law firm, a $3 million figure. The cost of this trial, as outlined by the judge, would have been huge for both sides. And invariably one side or the other would have appealed.
Judge Pittman also told the insurance company’s representative to be available by phone all day Wednesday to discuss the firm’s policy. She said she needed an authority at the insurance company to help guide the attorneys.
As a result discussions with a person in authority at the insurance company took place Wednesday morning. Presumably the law firm’s malpractice insurance has a deductible—all policies do. That means those fees will have to be paid directly by the law firm to the town.
Legal fees were not discussed in court. Halloran has worked on a contingency basis for the last several years, assuming there would be a trial and if successful he would be paid a percentage of the damages, if any. It was not clear yesterday what his fee will be.
According to those familiar with the negotiations, the law firm began negotiations on a financial settlement at zero and stayed at zero until Wednesday. There were many points raised over the last two days, including whether the law firm would pay interest on the $1 million. The firm rejected the idea and the town agreed to let it go.
Before the court session ended, Judge Pittman reminded the attorneys that “we are not only attorneys but we are counselors. That is part of the tradition of the bar.” She said she wanted to commend the participation of “the actual parties to the case.” She noted Doyle who was present yesterday. And she thanked Murolo for “corralling his principals.” She said “for the plaintiff, Mr. DaRos has been here in person all day yesterday and all day today. And I know he has attempted to act in the very best interests of the town of Branford. We are now done. “ Halloran thanked the judge for all her work in settling the case.
Marcus, the owner of the law firm and one of the state’s best known political figures—-he was once the head of the State Democratic Committee—has steadfastly said his firm had done no wrong, but he had to face Judge Roberts’s rulings from the bench Monday, rulings that indicated the firm faced an uphill battle at trial. And the town faced a daunting task of having to relive two 2007 trials that ran over nearly three months. Under the judge’s decision, the testimony from those trials would have to be read to a lay jury. None of the attorneys expected a re-run of the original trials.
And then there was the curve ball that Judge Young tossed out on Monday when he was discussing damages. He seemed intrigued with possible issues of liability against Doyle for promising the Representative Town Meeting, (RTM) the town’s legislative body, that Doyle would provide expert witnesses at trial. He promised this would happen before the RTM voted.
The RTM relied on his promise before voting unanimously to go to trial. Without that promise, they may well have taken other action, and the trials and their consequences would not have occurred.
Halloran planned to call three former RTM members to testify at the trial: They were Sandra Reiners, Gail Chapman—Carbone, and Lisa Avitable. Reiners was particularly concerned about the issue of expert witnesses and discussed the topic with Doyle in executive session. She kept notes of that session. As it turned out the judge in the 2007 Tabor trials told attorneys no experts could be called to testify because attorneys missed a deadline.
DaRos called the settlement a win for the town.
“It went down to the last minute,” he noted of the pending jury selection. He added that a required re-run of the 2007 trials was a game changer.
“I am glad it is over,” he added.