The town’s malpractice case against the Marcus Law Firm, its former counsel, will get underway on July 8, nearly five years after the town of Branford first filed its complaint.
Superior Court Judge Robert E. Young was appointed to preside over the case Tuesday morning.
Jury selection was slated to begin yesterday, but when attorneys arrived they first had to find out which judge would preside over the case. No judge’s name was attached to the case when they started their court day. The way the court system works in Connecticut any number of judges may hear motions in one case. In this case 12 judges have heard the case, some multiple times over the last five years.
Judge Young was not among them. He was chosen to preside over the trial yesterday. He was in fact presiding over jury selection in another civil case Tuesday morning, a case that gets underway June 19. He questioned jurors individually after each said there was a reason why he or she could not serve. He seemed personable, smart, quick and decisive during the morning questioning.
At one point during a court break he met with attorneys in the Marcus case. He gave them a timetable for filing pretrial motions, objections and holding oral arguments on June 17. Jury selection may start on July 1. The actual trial is scheduled to begin July 8.
The town’s lawsuit asserts that “negligent and careless” legal representation in the Tabor eminent domain case led to a $12.4 million judgment against the town when a jury ruled against the town following trial in Waterbury during the summer of 2007.
Branford accuses David Doyle, the firm’s litigator in the Tabor case from 2005 to 2007, of failing to disclose expert witness deadlines set forth in a court order, thereby precluding the town from calling expert environmental and financial witnesses essential to making the town’s case at trial. The Marcus Law Firm represented the town during those years and when they arrived they removed the outside firms handling the Tabor case, preferring to handle it themselves.
Doyle was in court yesterday along with attorneys from the insurance firm representing the Marcus Law Firm.
When the town first filed its lawsuit against the law firm, back in August, 2008, Ed Marcus, the firm’s owner, said he would fight it to the end. And he has.
It is not every day that a law firm gets sued, especially when the moving party is a town. In a prepared statement he issued back in 2008, Marcus accused Unk DaRos, the first selectman, of “playing political hardball using Tabor Drive in a suit without merit against the Marcus Law Firm in a vindictive and malicious fashion. To begin with no one knows what will occur in the appellate process; and the Marcus Law Firm continues to believe that the Town of Branford will succeed on appeal.”
Marcus was correct. The town did win its lawsuit before the Connecticut Supreme Court. The court reversed the $12.4 million jury judgment. But the town’s lawsuit against the law firm continued. Efforts to settle failed.
The law firm, owned by Ed Marcus for a half century, was a fixture on Whitney Avenue in New Haven for decades until it moved to North Branford. Marcus is a 1950 graduate of the Yale Law School and a former state Democratic chair. One of his close associates, former state Sen. Bruce Morris, is married to Cheryl Morris, who became first selectwoman in 2005 and tapped Marcus and his firm, including Shelley Marcus, to become Branford’s town counsel. DaRos subsequently unseated Morris in 2007.
R.Bartley Halloran of Farmington, a leading trial lawyer in the state, whose specialty is legal malpractice, is representing the town. His complaint says that the Marcus Law Firm and Doyle’s “deviation from the standard of care” has cost the town dearly.
Damages, the court papers say, include the jury’s verdict amounting to $12.4 million when the town lost its case to the developer, New England Estates; the millions more due to the property owners Thomas Santa Barbara, Jr. and Frank Perotti, Jr.; and “the payment of additional attorney’s fees in order to seek reversal of the jury verdict, payment of costs for attorneys for appeals and attorney’s fees for attempting to disclose experts past the deadline and moving for re-argument.”
William H. Clendenden, Jr., the town’s current attorney, put together a team of legal experts to evaluate the town’s situation in the Tabor case after DaRos took office in 2007. As a result, the town filed a number of lawsuits, including the malpractice suit in an effort to recover from the fallout of the Tabor case.
Attorney Doyle, from the Marcus firm, was the point man on the case beginning in early 2006. From the outset he was talking settlement. A settlement would be designed to bring a major condo development to the 77 acre Tabor site — even though the town’s major boards, commissions and the Representative Town Meeting (RTM) had rejected that idea.
Doyle signed on off on a proposed settlement agreement he entered into with the developer, New England Estates and its attorney Jim Bergenn on Feb 9, 2007. Attorney Shelley Marcus, now a judge of the Superior Court, said during a judicial nomination hearing in Hartford earlier this year that she attended that mediation session “in the capacity of the client and not the attorney.” In other words even though she was a town attorney at the time she took Mrs. Morris’s place in the negotiations. She noted that the RTM had no interest in the settlement proposal “that arose from the mediation session and the cases were scheduled for trial.”
Doyle had told RTM members he would get the best experts he could find to testify at trial and that included experts from a variety of fields. The town’s complaint against him says he took no action at all, “failing to obtain, prepare or produce any expert report concerning environmental contamination or advise co-counsel of the court ordered date for said disclosure.”
The RTM believed the town would win at trial. In fact, Doyle told the town’s legislators that he would call experts. Without this promise it is unlikely the RTM would have pressed for a trial.
Cheryl Morris hired Updike, Kelly and Spellacy on May 8, 2007 to defend the developer’s case and the firm’s top litigator, Kerry Callahan, took over for Doyle as chief trial counsel. Morris said at the time that Doyle was facing surgery, and that is why she acted to remove him, adding that he had done “an exceptional job.” Marcus recommended the firm.
As it turned out, the complaint says, Doyle failed to inform Callahan or his firm of a Feb. 9, 2007, phone conversation with all lawyers and the judge that required that the names of all expert witnesses be disclosed by May 30, 2007. Attorneys for the law firm say no date was set during this phone call. Neither Doyle nor the law firm ever made a diary entry about this date, the complaint says. In short, when Callahan was hired on May 8 2007, Doyle and the firm had three weeks to let the new trial lawyers know, either orally or in writing of a court order regarding expert deadline disclosure.
During those three weeks it is not known if Updike, Kelly and Spellacy reviewed the actual court file kept at the Waterbury Superior Court to find out the date set by the court for experts. That option was available to them.
Mrs. Morris also appointed a second law firm, McCarter & English, to represent the town on the valuation of the land case. This firm had the case until Marcus took it over in 2005.
When Callahan learned during the Tabor trial that Doyle had failed to inform him of the crucial expert witness date, he tried to fix it, recognizing that the town had been placed in a perilous position. (Doyle often attended the trial but he did not sit at the defense table.) Callahan submitted various briefs, seeking to persuade the trial judge, William T. Cremins Jr., to lift the deadline. The judge refused. As a result, the jury heard no testimony from the town’s experts.
Marcus noted five years ago that Judge Cremins “rejected the proffered expert testimony because the court considered it irrelevant.” Marcus referred to a Cremins finding that “ the town could not defend itself with information developed after the public hearings for the condemnation.” That took place in 2003.
But the judge’s decision during the 2007 summer trial that prevented experts not involved in the taking of the property back in 2003 was not a decision attorneys knew about or could have anticipated while preparing for a case that required expert testimony. And the town’s position is that Doyle failed to get expert testimony during the time he had the case.
The town’s expert witness is Attorney George Royster who wrote a report criticizing how the Marcus Law firm handled the case and the case file. The law firm’s expert witness is Attorney Kenneth Rosenthal. Both experts have been adversaries in the courtroom before.