Marcia Chambers Photo
At the end of full day of settlement talks, Senior Superior Court Judge Patty Jenkins Pittman ordered the administrator in charge of the Marcus Law Firm’s malpractice insurance to be available by phone all day Wednesday to discuss the firm’s insurance policy.
She issued the order Tuesday after a long day of closed-door talks aimed at settling a lawsuit about to go trial, in which the town of Branford accuses the Marcus Law Firm of malpractice when it served as the town’s counsel in handling an eminent domain case involving the 77-acre so-called Tabor Property.
After a long day of discussions between attorneys for the town and for the law firm (it appears this was one of the first times the parties actually sat down together to talk, she said), the judge brought all the parties back into her fifth-floor courtroom late in the day to put her thoughts on the record.
First she praised them. “I am pleased to report at this point that instead of picking a jury today we have engaged in good faith discussions about a settlement. I am very pleased that all sides in this case have at least entered into some discussions in the spirit of attempting to explore whether or not a compromise is available in this matter in lieu of what may be a lengthy, complicated trial,” she said.
While the judge commended attorneys for both sides for “engaging in good-faith discussion about a settlement” in the five-year-old malpractice lawsuit, it was clear she had run into a roadblock.
At issue, it appeared, was whether the Marcus firm was ready or willing to negotiate the monetary size of his portion of a possible settlement. The firm’s insurance policy is believed to cover in the area of $3 million, according to prior discussions in 2010. The town’s trial attorney, J. Bartley Halloran, told the Eagle as he left the court house at 4 p.m. that he did know “what they were offering.”
Back in 2010 the Board of Selectmen unanimously approved “an offer to compromise” in the law firm malpractice case, a process that could have led to settlement. The Marcus Law Firm and the insurance company involved had 60 days to answer or the offer lapsed. The offer lapsed. What stayed, however, and is still in effect, is an 8 percent interest rate added to any amount equal or greater than the $3 million the town sought. It is not known how the law firm’s insurer responded back then. (Click here to read that story.)
Enter the Insurance Rep
So the judge decided she needed to bring the insurance company into the mix and she took the unusual step of ordering them in.
“What I would like to do at this point — and I think I need to put this on the record — I want to make sure we clarify the lines of authority, [that we know] the decision-makers in the case,” Pittman said. She said she was not as worried about the plaintiffs, the town of Branford. “I am concerned about the defendants,” she said referring to the law firm.
“It is unclear to me that we have a decision-maker who is immediately available to guide the continuing discussions and to provide counsel in considering various positions that may be forthcoming.”
She explained that the Connecticut Practice book has a provision that permits the court to compel the insurance company representative to be available either in person or by phone. (It is not often a judge will invoked this rule, attorneys said later.)
Then she entered an order for the individual “who has the authority” to make decisions on the insurance policy the law firm holds and “to be continuously available to the court.”
Judge Pittman said she was asked by Presiding Judge Angela Robinson to try to find a way to settle this case prior to trial. Judge Robert Young, the trial judge, said in court he had also consulted Judge Robinson and urged the parties to try to settle. Judge Robinson ordered the attorneys in the case and those with authority to resolve it to appear at a settlement conference with Judge Pittman Tuesday.
Branford First Selectman Unk DaRos arrived in the courtroom early in the morning because he has the authority to help resolve the case. He will return Wednesday, he said. With him were Halloran, the trial attorney and William H. Clendenen, Jr., the town’s counsel. Kaitlin Halloran, an attorney in her father’s firm, was also present.
Ed Marcus of the Marcus Law Firm was in the courtroom in the morning and in the early afternoon, but had left before the judge issued her order. David Doyle, the firm’s litigator and the named defendant in the case, took his place at their table. Frederick Murolo, who represents the law firm, sat next to him.
Judge Young voiced concern in court Monday as he was hearing motions about the difficulty of lay jurors handling a case that delves into legal expectations, legal rules, judicial decisions and positions of the many attorneys who have handled the Tabor case. Click here to read that story.
The town of Branford sued Doyle, a litigator for the Marcus Law Firm, and the firm itself in 2008 for alleged malpractice and negligence in the preparing the Tabor case for trial. The town believes that but for their negligence they would not have faced a $12.4 million jury judgment, later overturned by the Connecticut Supreme Court. The Marcus Law Firm denies the allegations in the lawsuit and calls it politically motivated.
Before she left the bench, Judge Pittman said she was not compelling the attorneys to settle the case: “And I am not compelling you to put something on the table. I couldn’t do that if I wanted to.” What she did want was the insurance information she needed to continue negotiations.
“We need to know if we are moving toward a settlement or not. We need good faith negotiations,” she said. So far, she said, “we have made good progress and that will either continue or we will reach the end of the rope.”
If there is no settlement, jury selection may begin this week.
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