Expert: Marcus Law Firm Negligent in Tabor

Branford lost a $12.4 million court case because it relied on negligent lawyers, an expert has found.

The expert opinion comes in a new report issued by the town as part of a lawsuit it has filed against the Marcus Law Firm, the former town counsel.

Branford is suing the firm over its role in helping the town handle a controversial eminent domain case involve the Tabor property. The town is looking to recover damages and legal fees in that case. It hired the expert, George Royster, a partner in the law firm Halloran & Sage, to conduct an analysis of the Marcus Law Firm’s actions in the Tabor case and probably to testify at trial unless the case is settled.

Royster’s take on the firm’s performance is scathing.

Ed Marcus, the firm’s top partner and a former state Democratic chairman, has in the past denied the assertions of negligence and has said he would fight them. He was unavailable for comment yesterday because he is out of the country, his office said. Shelley Marcus, a partner at the firm, did not return a call seeking comment today. 

The Tabor case has enveloped Branford politics for nearly seven years. It began in late 2003 when then First Selectman Unk DaRos, along with the town’s Board of Finance and Representative Town Meeting,(RTM) approved taking the 77-acre land by eminent domain because of its proximity to the town dump. Since then three administrations, including the current DaRos administration, have lived with the repercussions of seizing the land and rejecting plans for a major condo development on the site.

The town’s lawsuit against the Marcus Law Firm and David Doyle, its top litigator, was brought by L. Bartley Halloran, a Farmington attorney, one of the state’s experts in legal malpractice, in August, 2008. Halloran asked Royster to review the conduct of the Marcus firm to determine if it fell below ​“the standards of practice for attorneys in Connecticut.” If it did, Royster wrote, ​“then I was asked to render an opinion as to whether or not their failure was a substantial factor in causing the verdicts that were rendered against the town and the subsequent appeal.” He found it was.

Click here to read his report.

The town is suing the Marcus firm for its role in the Tabor eminent domain case. Former First Selectwoman Cheryl Morris appointed the Marcus firm as town counsel when she took office in 2005. Marcus then took the cases from outside law firms overseeing them. Before the trial, Doyle was removed as lead counsel, and new attorneys were hired for the Tabor trial. (The state’s Supreme Court later overturned the $12. 4 million jury awarded to the developer.)

After DaRos was again elected first selectman, the town filed a number of lawsuits in connection with how the Tabor matter was handled under Morris. One centered on overturning the Tabor $12.4 million judgment. Branford won that case but the developers have sought a new hearing. Another was on the land valuation case. The town lost that one and has since paid the owners $5.2 million. The town has sued its insurers and that case is pending. And it has sued the Marcus law firm seeking to recoup damages and legal fees both for the Tabor case and the appeals that followed. 

Now Royster has produced an eight-page report, released this week, charging the firm with professional negligence.

In his report, Royster, a well-respected trial litigator, says the Marcus firm failed to keep their client, the town, and subsequent attorneys informed of key dates and actions and its records were incomplete and disorganized. 

Royster, an expert in trial preparation and the rules that govern it, concludes that the firm failed its legal duty to its clients (the town) and by its actions ​“was a substantial factor” in causing the $12.4 million verdict against the town. In legal terms, the substantial factor test is crucial for finding causation of an event. Royster also provided a two-inch thick packet of exhibits.

Overall, Royster concluded the law firm had a duty ​“to accept only cases they, and each of (their attorneys) were competent to handle, prepare and try. They also had a duty to keep their client (the Town and subsequent attorneys) fully informed of important developments and important dates in this case.”

In his report, Royster also concluded that in failing to disclose either orally or by transcript the expert disclosure deadline of May 30, 2007, the town was unable to call any expert witnesses at a trial that required their testimony. Kerry Callahan, of Updike, Kelly & Spellacy, was never told of the deadline. Callahan became the town’s chief litigator at trial after the RTM raised questions about Doyle’s ability to represent the town at the Tabor trial. 

“Exclusion of the town’s experts was a serious and obvious blow to the Town’s case and was a substantial factor in causing the verdicts that were rendered against the Town on September 12, 2007,” the report concludes.

When DaRos took office in 2007, he appointed William H. Clendenen Jr. as town counsel. Clendenen said then that he would leave ​“no stone unturned” in trying to reverse the massive $12.4 million damage award that a jury gave the developers, New England Estates. Clendenen and Wesley Horton, a constitutional expert, appealed the jury’s verdict to the Connecticut Supreme Court and in a major victory, the high court ruled for the town in February. The developer’s attorneys at Shipman & Goodwin have appealed. Clendenen said yesterday the Royster report ​“speaks for itself.”

DaRos said he received the Royster report last Friday. ​“I expected something like this to come out. I didn’t expect it to be as compelling as it is. You did not have to be an attorney to know something was wrong here. It was very clear to me that there was a deadline and it failed to be met. And there should be some accountability for that. However, this report got a lot deeper than that. ” 

Clendenen suggested in 2008 that L. Bartley Halloran be hired in the Marcus case and Halloran remains in charge of the case. Halloran was hired to evaluate the conduct of all the law firms in the Tabor case. Except for the Marcus firm, he found no cause to sue any of them. 

Royster reviewed and analyzed the voluminous Tabor records, both on the land case and the developer’s case and, in addition, interviewed key attorneys.

It is the lawyers from Updike, Kelly & Spellacy, the law firm Morris hired for the developer’s trial, who show in detail the disarray the Tabor case was in as they sought to retrieve essential documents under a stiff trial deadline two months away. 

Royster said incomplete files were transferred from the Marcus firm to the Updike law firm. As a result, an Updike attorney went to the Marcus Law Firm on three days in May seeking the entire file. Royster said that ​“additional documents were found all over the Marcus Law Firm, including the attic. Some file boxes originally transferred by Wiggin & Dana to Marcus two years earlier did not appear to have been looked at, and some files and boxes that were supposed to contain only this file, contained documents from other files. The files retrieved from Marcus have been described as ​‘a mess,’” he wrote. 

“Doyle and Marcus did not adequately prepare these cases for trial, ​“Royster wrote. They ​“did not keep this file in reasonable order, did not obtain or preserve critical documents, did not transfer complete and orderly files to Updike, and did not advise Updike of the May 30 expert cutoff date. (It is unclear whether Doyle and Marcus even had the transcript of the February 9, 2007 ( a joint telephone call among the lawyers and Judge William T. Cremins, Jr. ) since they never produced it to Updike.”

After Updike organized and reviewed the files, there were still files that were incomplete. So on May 18, 2007, an Updike paralegal was sent to the Waterbury Superior Court to examine the court’s file. There he identified a number of documents that had been filed with the court by the parties which were not part of the transferred Marcus file, the report says. 

At about the same time, David Monz, an environmental lawyer testifying for the town, wrote to Shelley Marcus saying that seven key depositions, including those from the First Selectman and other top town officials, were missing, the report says. 

During this period, May 23 – 31 2007, Updike began the process of retaining expert witnesses. Doyle had promised the RTM months earlier that he had experts to testify and based on that affirmation, the RTM voted unanimously to reject a settlement and go to trial. Without his promise it is unlikely the RTM would have pressed for a trial. Doyle failed to obtain, prepare or produce any expert report disclosure, the town’s lawsuit says.

“At this time Doyle was asked if there were any expert disclosure deadlines set by the Court and he replied that there were none,” the report says.

According to the report, it was not until June 13, 2007, after the expert deadline had passed, that Updike, Kelly & Spellacy learned through David A. Reif, the town’s attorney on the Tabor land revaluation case, that there had been a discussion with the judge in February 2007 and expert disclosure deadlines were set for May 30, 2007.

A few days later, on June 18 ​“Doyle was asked about this expert disclosure cutoff date of May 30 and he indicated that he hoped, believed and/or expected that this date would be extended because he had done favors for Shipman & Goodwin ( the developer’s attorneys) in the past and he expected they would reciprocate,” the report says. They did not.

Royster interviewed Kerry Callahan, who served as the town’s lead attorney at the Tabor jury trial and Monz. They would presumably be witnesses at a trial, along with others connected to the case. Reif, a partner in McCarter & English, was also interviewed. He handled the land case for the town when Republican John Opie was First Selectman. As he was preparing the case for trial or possible settlement, Marcus took over the case. Morris later reappointed him to try the land case in the summer of 2007. 

Former First Selectwoman Morris permitted the Marcus Law Firm to take the Tabor cases soon after she took office in 2005 even though the firm has little expertise in eminent domain cases. The cases were ready for trial or settlement when the Marcus Law firm scooped them up from Reif and from Wiggin & Dana.

One of the reasons why Doyle might not have prepared for trial is that it became clear that Marcus and New England Estates had agreed in principle to settle, an action that if approved by the town’s boards would enable New England Estates to construct hundreds of condos on the Tabor site.

But that was no excuse, Royster wrote. ​“Doyle and Marcus knew they had the duty to prepare this case for trial and try it, if necessary, at least up until the point where Updike took over the defense on May 3, 2007. The possibility, or even the probability, of a settlement does not change this duty.”

In recent weeks, Opie, who was openly critical of the Morris administration in 2007 and decried her turning over the Tabor cases to the Marcus firm at the outset of her term, has switched his views. He is now an ardent Marcus Law Firm defender.
 
Opie was Republican first selectman in 2004 when he formally took the Tabor land and served as third selectman during the Morris and DaRos administrations. 
 
A few weeks ago at a Board of Selectmen meeting he said that the town, by filing the lawsuit against the Marcus Law Firm, had ​“essentially ruined a lawyer’s career and besmirched a law firm.” 

He said a legal opinion should have been obtained before the town moved against Doyle and the Marcus law firm. In fact, the town had hired Halloran to investigate the conduct of all the lawyers in the case and Halloran concluded the Marcus Law Firm should be sued. Halloran did not render a legal opinion, as Opie said he should have, though it not clear one was necessary.

Opie said he wanted to know ​“why we did this.” …. I think we need something in writing to say this was justified.” 

He maintains that the trial judge approved no expert witness date in the February 9 telephone conversation with lawyers. But May 30th was clearly stated as the date and Doyle and the other attorneys approved it, according to a transcript of the conversation.

When Callahan tried to extend the deadline for expert testimony, even calling the experts to the courtroom in Waterbury in the expectation they might testify, Judge Cremins turned him down each time saying the town had missed the deadline.

The judge acted on a motion filed by James Bergenn, who represented New England Estates and Steven Humphrey, who represented the land owners.

“Upon continuance of the trial date from February 9, the parties, on the record stipulated and the court so ordered that experts be disclosed by May 30,2007. The deadline was accepted and so ordered by the court,” Bergenn and Humprhey wrote. 

With roughly two weeks left before trial was to begin, the judge ruled against the town.

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