UPDATE — Settlement talks took place all day before Senior Judge Patty Ann Pittman but no resolution was reached. The judge said “there has been some movement.” Parties return to New Haven Superior Court Thursday.
The trial judge in Branford’s legal malpractice case against the Marcus Law Firm told the attorneys yesterday that a 2007 trial would be replayed before a jury, and the current malpractice case emanating from the trial would follow.
This was now a “case within the case,” and for a lay civil jury to understand what happened it was essential that the trial be split into two parts, a process that could be both long and costly and difficult, he said.
Superior Court judge Robert Young said in court yesterday that “we need to remember that this a complex case and we are asking six lay people to keep it straight, not to co-mingle those claims,” he said. The judge was assigned the trial earlier this month. Click here to read the story.
From the bench in his courtroom on the fifth floor of Superior Court at Wall and Church streets, the judge devised a two-part scenario.
First the jurors (not yet chosen) would hear about the Tabor jury trial in 2007 and then in an “addendum,” as the judge termed it, they would learn what might be different if the town had the right to call expert witnesses at that trial.
In addition, Judge Young indicated that additional testimony from another 2007 trial setting the cost of Branford’s Tabor land, which the town took by eminent domain, would also be part of the scenario. That trial took place a few weeks before the jury trial in Waterbury Superior Court.
David Doyle and the Marcus Law Firm, the town’s former counsel, were sued in 2008 by the town of Branford on negligence and malpractice charges. The town asserted they failed to prepare the Tabor case for trial, failed to take expert witness depositions and failed to inform a new set of attorneys of the expert witness cutoff date. As a result the town could call no expert witnesses at the 2007 trial and faced a $12.4 million judgment, which was later overturned by the Connecticut Supreme Court. Doyle is also accused of negligence in keeping the case file in so disorganized a fashion that new attorneys had serious problems getting the case ready for trial in a short period of time.
Doyle and the firm argue that they acted properly and that the case against them is politically motivated.
Judge Young said that the malpractice case will be longer and more costly and more difficult to put on. Reading testimony to the jury, the judge said “will be very, very burdensome.” For example, the jury in the malpractice case might well hear testimony from witness in the two Tabor trials, including town officials and a variety of lawyers. Judge Willaim Cremins presided over both cases. He was the trier of fact in the first case while a jury found the town liable for $12.4 million in the second. The state State Supreme Court later overturned that finding in what Judge Young cited as a success for the town.
R. Bartley Halloran, the attorney for the town, said this dual trial scenario would “put a strait jacket” on the case. “This case would be much longer than we thought.” He said as outlined by the judge the trial would be disjointed and “disadvantageous” to the town’s case.
After deciding roughly 54 pre-trial motions on a variety of topics, mostly all presented by Frederick L. Murolo, the Marcus Law Firm’s attorney, the judge repeatedly urged the attorneys to find a solution to avoid trial.
He said the attorneys should “make it clear to your clients,” meaning Ed Marcus of the law firm and Anthony “Unk” DaRos, Branford’s first selectman, that presenting this case to a jury is “very complicated and very tedious. We are going to have a task to keep them involved. There are parts to this that are interesting to attorneys and judge, but not to a jury,” the judge said. Marcus and Doyle attended the morning session.
The judge said finding a compromise would help both sides because the bills will only escalate. It would be in “the best interest of the town and its taxpayers,” he said. “This is going to be a long, complicated drawn out case.”
He suggested the attorneys listen to Senior Judge Patty Ann Pittman, with whom they are meeting this morning. He urged them to see the case with a “fresh set of eyes and be willing to compromise.” But if it no change came about he said he would see the attorneys for the start of the trial on July 8.
Jury selection is expected to begin Tuesday afternoon if a settlement discussion does not begin. Another judge, as yet unnamed, will handle jury selection.
Deadlines Missed
The judge was clearly up to speed on the nature of the malpractice case and had read transcripts of the trial transcripts. The law firm has stated repeatedly that there was no actual May 30 date established in a conference call as the cut off point for calling experts to testify at trial. As such, it argued Doyle could not be held responsible. And Judge Young said in court that he would not tell the jury that “there was a hard ruling of May 30th” as the expert witness deadline.
Judge Young agreed that “we don’t have the black letter ruling of the court on May 30.” But for the judge the May 30th date was irrelevant, he said.
The prior drop dead expert witness deadline date was set for Oct. 5 and there is no dispute about that date. In both situations, Oct 5 and May 30 Doyle did not depose witnesses. The judge noted that if he had not deposed them by Oct 5, then the expert testimony “would have been precluded anyway.”
Judge Young also pointed out that Judge Cremins thought there was a May 30th deadline and so did others.
In any event, Judge Young added, it really didn’t matter.
“What difference does it make if the deadline was May 30th or Nov. 6th? What difference? Does it matter or not?. Who cares?” Judge Young was arguing that if the May 30th deadline was missed, so was the Nov. 6th deadline. Either way Doyle did not depose experts for trial even though he told the Representative Town Meeting (RTM) that he would have experts at the trial. Ultimately the RTM demanded that the then first selectman, Cheryl Morris, hire new law firms to try the case.
At one point Judge Young noted that damages might well ensue from Doyle’s actions before the RTM. The judge said he was going to allow further exploration of this topic. The RTM agreed to go forward with a trial on the assumption that experts would testify. The RTM was the final decision maker.
A Box of Motions
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At the outset of the day the judge was faced with 54 motions, mostly all presented by Murolo. Judge Young informed the attorneys that all the motions would be decided by 5 p.m. He got there by 4 p.m.
When asked to choose the motion that meant the most to him, the number #1 motion for him, Murolo chose a motion seeking to prevent Attorney George D. Royster, the town’s expert, from discussing the Tabor compensation case because Murolo said Royster virtually ignored it in his expert’s report and in his deposition. Murolo called it “a sneak opinion and an “ambush” and said whatever Murolo thought about the first compensation case “it has never been disclosed to me.”
Halloran argued that both the 2007 cases were tied together and that one should not act on a one sentence statement Royster made in his deposition. In the end the judge denied Murolo’s motion without prejudice meaning he can raise it again at trial. Murolo looked glum. So did Marcus.
When asked to choose his #1 motion, Halloran said he was concerned about the various lawyers testifying in the case as fact witnesses who might then decide to give their opinions as experts. That he said was not permitted.
Judge Young said he was going to reserve his ruling until the lawyers took the stand. “I don’t think it is necessary to rule on this now; I can rule on each witness … I can’t do these things in a vacuum. We will see how the case unfolds.”
Costs of the Case
The judge noted that the town maintains that fees emanating from the two 2007 trials and their appeals and other fees have cost about $11 million so far.
“One party is already up in arms over costs,” he noted of the town’s position. “There will be more costs. All the more reason why attorneys should seek an alternative resolution to this entire matter.” The judge noted some witnesses may charge for their court appearance. And then there might be appeals. He urged a settlement.
At the outset Judge Young noted scheduling issues for the trial, especially if it became a two-part trial. He did not see how it all could get done in the 12 days, the time originally set for the trial. This issue was not resolved by the end of the court day.
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