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On Eve Of Hearings, Marcus Law Firm Makes A Filing

by marcia chambers | Feb 28, 2013 9:49 am

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Posted to: Legal Writes, State

As former town counsel Shelley Marcus (pictured) prepares to address questions from the state legislature Friday on her fitness to be a state judge, her law firm has moved to try to end a contentious malpractice suit filed by the town of Branford against her law firm.

That suit was filed against the Marcus Law Firm in 2008. The firm has waited until now to file a motion to have the suit dismissed.

Governor Dannel P. Malloy recommended Shelley Marcus and 14 other nominees to positions on the state Superior Court bench late in January. All are expected to appear Friday in Hartford at a public confirmation hearing before the Judiciary Committee. The General Assembly must approve their judicial appointments. 

Shelley Marcus’s nomination to the Superior Court faces uncertainty because she did not initially disclose her role in the so–called gifting table fraud cases or in a malpractice case that stems from years 2005-2007, when the Marcus Law Firm represented the town of Branford. Click here to read about that.

Governor Malloy told the Hartford Courant that Ms. Marcus’s role as an attorney in the recent gifting table federal fraud case did not come up in her review by the Judicial Selection Commission and it did not come up in her background search.

According to the Courant, all judicial nominees are asked a general question of whether there is anything in their background that might embarrass themselves or the administration if it became public. “This did not come up,” Malloy said of the gifting tables. Shelley and Ed Marcus both testified for the prosecution at the recent gifting table trial that recently ended in the conviction of two Guilford women. The trial was held in U.S. District Court in Hartford. 

Shelley Marcus’s involvement as an attorney in the gifting table case came to light the same week as her nomination to the bench by the governor. She and her father Ed Marcus, former head of the state Democratic Committee and a well-known political powerbroker, represented a group of gifting table participants, including the two women on trial, when the State Attorney General’s office investigated gifting tables.

MALPRACTICE CASE TAKES EXTRAORDINARY TURN

As the gifting tables trial was winding up, The Marcus Law firm’s attorneys decided to take an extraordinary legal step regarding the malpractice case.

Just as Shelley Marcus was preparing to go before the Judiciary Committee this week, the law firm’s attorneys filed a motion last week seeking permission to file a summary judgment motion in the nearly five-year old malpractice case. Permission is necessary because after a judge sets a trial date, a summary judgment motion is barred. Both sides agreed last year to a trial date of June 4. If a summary judgment motion is permitted, the case could be delayed for months. 

And the reason for the summary judgment motion?  Allegedly, to save judicial costs.  The Marcus attorneys now say that if they win a summary judgment, a motion usually filed early in a case, they will preserve judicial resources because there will be no trial. A summary judgment means there is no dispute either on the law or the facts of a case, conditions not readily apparent in this malpractice case.

Avoiding a trial, according to a filing by Frederick L. Murolo of Murolo & Murolo, the law firm representing the Marcus Law Firm, would maximize “judicial efficiency.”  He added the judiciary’s needs should be considered: “In the interest of judicial economy, the motion should be heard and decided prior to wasting the judicial resources of the court with a trial.”

Since the town’s complaint against the Marcus Law Firm was first filed in August 2008, the case has been heard by numerous judges in the New Haven Superior Court. 

The long court docket shows there have been 103 entries for motions, pleadings and documents by both sides as of this week.  Over this period of time, the Marcus Law firm has declined to settle the case. Depositions have been delayed and rescheduled many times, the town attorneys say. Nor did the Marcus attorneys raise the issue of preserving judicial efficiency until this week.  The summary judgment motion cherry-picks deposition testimony from various witnesses as it seeks to make its point. So far it has not named its own expert witness.

In December 2010, the Branford Board of Selectmen unanimously approved a so-called “offer to compromise” that would have led to a $3 million settlement with the Marcus Law Firm in the malpractice case. The Marcus Law firm had 60 days to answer or the offer would lapse. In the end, the offer lapsed. Click here to read the story.

Attorney R. Bartley Halloran of Hartford, who represents Branford in the malpractice case, filed his objection to the new summary judgment motion this week, saying the summary judgment motion should be rejected. He said the real reason for this summary judgment motion is to delay the trial.

“The defendant’s counsel has not offered a single reason as to the untimeliness of this motion,” Halloran wrote.

Ed Marcus is the only partner in the Marcus Law Firm, formerly of New Haven and now located in North Branford. Both Ed Marcus and Shelley Marcus live in Branford, she in Short Beach, he in Stony Creek.They served as Branford’s town attorneys between 2005 and 2007 during former First Selectwoman Cheryl Morris’s term in office.   

Shelley Marcus was the face of the law firm at town meetings, and David Doyle was the firm’s litigator. Doyle also attended many town meetings. The malpractice lawsuit says the Marcus Law Firm and Doyle were negligent in preparing the Tabor eminent domain case for trial and in arranging expert witnesses for trial. It was clear from presentations before the Representative Town Meeting that their aim was to settle the Tabor case, not try it.

When two Tabor cases went to trial in Waterbury in the summer of 2007, the town was barred from calling expert witnesses, the town’s expert says, and a jury returned a $12.4 million judgment against the town. It was later overturned by the State Supreme Court in a ruling that held the developers in the case had only an option to buy the land.   

Halloran said the summary judgment motion deals primarily with the issue of when Doyle and the Marcus Law firm learned of the date by which expert witnesses had to be disclosed in order to be able to testify at the Tabor trial.  It does not deal, he said, with other issues in the case. Both sides dispute the facts surrounding the date. The attorneys in a companion case, one involving the Tabor land, disclosed experts in compliance with the date Doyle maintains was not set. 

“The defendants,” said Halloran “pointedly ignore the other claims” set out in the lawsuit “…backed up by expert testimony, that they failed to address, prepare, brief and analyze legal issues necessary for a proper defense of the town.” In addition, he said, “they failed to prepare exhibits, organize data and prepare demonstrative evidence and exhibits necessary for trial.”

The Marcus Law Firm failed to consult with experts to testify at trial when it first took the case back from outside counsel the town hired to handle the Tabor case.  No experts were consulted as far back as October 2006, Halloran said in this week’s answering court papers.

During the course of the malpractice lawsuit, the town of Branford hired an expert witness, Attorney George Royster, who is expected to testify at trial about his findings.  Tthe Marcus Law Firm has yet to identify its own expert witness to testify on the issue of standard of care, causation or damages, Halloran wrote. 

At a Representative Town Meeting, which had to approve sending the Tabor case to trial in 2007, the legislative body acted only after Doyle promised he would have experts at the trial.

In asking that the summary judgment be denied, Halloran wrote that the town has spent a great deal of time and money organizing “this complex matter so that it can proceed in conformance with the court’s order that trial begin on June 4, 2013, almost five years after the filing of the complaint.

“The facts upon which the late motion for summary judgment relies have been known by both parties for years. There is no justification for granting the motion at this late date; the defendants have provided no plausible justification for this extraordinary remedy.”

ABOUT THOSE GIFTING TABLES ...

Meanwhile, the issue of the gifting tables also looms over Friday’s upcoming confirmation hearings for Shelley Marcus.

At the outset of the recent gifting tables trial, the defense said it planned to call Ed and Shelley Marcus to the stand to testify about whether they told their clients the tables were legal. Ed Marcus told the New Haven Register in 2010 that the tables were legal, but later changed his mind, he said. 

Both Ed and Shelley Marcus have retreated from their position that the tables were legal. Shelley Marcus’s role in possibly revising the gifting table’s handbook was not fully explored at trial. She testified she did not revise the handbook but Jill Platt, one of the defendants, said she did. Neither Platt nor Donna Bello, both convicted at trial, took the stand to discuss their Marcus conversations. They earlier waived attorney-client privilege. 

However at the trial Town Clerk Marianne Kelly, who said she earned $5,000 at a gifting table, testified for the prosecution. She was asked about an e-mail dated Nov. 19, 2009, that she sent to Jill Marcus, Ed Marcus’s wife, in which she said she “sent women from our sisterhood to Ed and Shelley to make sure we are legal due to the Blumenthal investigation of pyramids.”

She was referring to former Attorney General Richard Blumenthal’s inquiry into gifting tables as pyramid schemes.  “Ed now understands that we are legal. I want to ask you to join us and check it out. Shelley wants to get in, too. I think you should, as least check us out again. Talk to Ed and let me know,” she wrote. At the trial Kelly denied under oath that this was her e-mail. Called by the prosecution, she also testified that neither Shelley Marcus nor Jill Marcus was involved in the gifting table operation. 

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