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Thread: Question our legal representation

  1. #1
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    Unhappy Question our legal representation

    At the last Town Meeting, I specifically challenged the additional legal fees asked to be approved for the Public Safety Building litigation. Retiring Selectman Michael Tichnor, an attorney, insisted that the Town would have a substantial recovery from this litigation, far-and-away exceeding our investment in legal fees.

    Now Wayland Voters Network has reported that the lawsuit has been lost, and moreover, Wayland has been found responsible for the other party's legal fees - which usually only occurs where initiation of the litigation was considered to be frivolous.

    For years I have publicly questioned the adequacy of Wayland's legal counsel. In light of this litigation failure, at the cost of what will likely be $1,000,000 in combined legal fees, Wayland needs to take a look at its representation. And let's not forget the recent (irresponsible) legal challenge of the Historic Commission's independent right to counsel which also was lost by the town's lawyers.

    Perhaps the real answer behind our inability to move the Town Center forward lies in the quality of legal advice that the Town is receiving and in the inability of our Selectmen to choose and retain adequate counsel.

    Steven M. Glovsky
    Shaw Drive

  2. #2
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    Default

    We received this response from Town Administrator Fred Turkington to the above post:
    As you know, I am reluctant to respond to citizen opinions posted on the Wayland E-News discussion board, but on rare occasions, a post contains such inaccurate information that it compels me to set the record straight. As I have done in the few prior occasions, I invite Mr. Glovsky or any other citizens with questions or wish to have a dialogue with me on this or any other subject to contact me directly at fturkington@wayland.ma.us.

    Unfortunately, Mr. Glovsky has repeated unconfirmed statements written by Michael Short's WVN #373 commentary on the conclusion of the Town's litigation against the civil engineering firm responsible for designing the drainage system and made inflammatory remarks based on some of that misinformation. Accurate details of the court finding were posted on the Town website (www.wayland.ma.us) on the home page (upper right corner - Town News) late Monday evening after selectmen determined that an appeal was unlikely to result in a different outcome. [Admin note: here is the direct link: http://www.wayland.ma.us/Pages/Wayla...1537B-000F8513]

    To be sure, the jury verdict was a disappointment in that it found civil engineer BSC Group, Inc. of Boston negligent in its design, but not financially responsible for the resulting damage. The suit was the culmination of a four year effort to determine the cause of water penetration and damage to the concrete floor of the Public Safety Building, identify solutions for repairing the damage, and to hold those responsible financially accountable. The Town retained independent engineering experts to make these determinations and recommendations and to assist with the preparation and presentation of our position in the legal process. Each member of the Board of Selectmen since the defect was discovered has been united in its determination to hold design professionals accountable for defects and to recover compensation to help finance repairs. It would be easy using the benefit of hindsight to question that resolve, but no one has argued at any time in the past four years that the town should not have pursued litigation to seek recovery for damages.

    For the record, the initial suit resulted in a negotiated settlement with the insurer representing the architect in the amount of $550,000. These funds offset a town meeting appropriation for funds to repair defects in the exterior siding application on a significant portion of the building. The Town and BSC worked with a mediator in an attempt to avoid the cost and uncertain result of a jury trial. However, BSC and its counsel refused to offer any substantive amount to settle the lawsuit short of a trial. As a result of the jury verdict, BSC is entitled to request Wayland to pay its "costs" related to the litigation, including deposition transcripts, filing fees, expenses, etc., but NOT attorneys' fees. To date, BSC's counsel has not made such a claim (the jury decision was handed down late Thursday afternoon), so we do not know the potential liability at this time. Mr. Glovsky's characterization of the litigation as "frivilous" is based on the inaccurate belief that Wayland is responsible for costs that "will likely be $1,000,000 in combined legal fees."

    Turning to Mr. Glovsky's allegations about the Town's expenses in pursuing this litigation, a brief history is in order. As Town Administrator, I retained special counsel skilled in construction litigation to represent the town. Wayland resident John Perten from the firm Sheehan, Phinney, Bass and Green represented the town. The Board concurred with the selection of special legal counsel. As of August 31, 2010, the Town expended approximately $475,000 in legal, engineering, and other consulting fees related to litigation against both the architect and the civil engineer responsible for the design of the Public Safety Building. These fees were paid within Town Meeting appropriations for legal expenses on an annual basis since 2006.

    Mr. Glovsky also makes statements disparaging the quality of the town's legal representation. Town Counsel Mark Lanza is an experienced and specialized municipal law attorney, representing not only Wayland, but also Harvard, Newburyport, Franklin, and other municipalities as special counsel. The Town uses Kopelman and Paige as special municipal counsel on certain matters where their expertise adds value and reduces costs or when Mr. Lanza has a conflict of interest. The firm represents more than 130 towns across the Commonwealth as town counsel or special counsel. Deutsche Williams is the town's labor relations counsel, assisting with negotiations of union contracts and complex personnel issues. I have retained specialized legal counsel to handle unique legal issues, such as cable television franchise negotiations, siting of wireless telecommunications towers, and complex environmental matters, customarily at reduced rates. In summary, the quality and value of Wayland's legal representation compares favorably with similar municipalities throughout greater Boston.

    Lastly, Mr. Glovsky's ill-advised remarks about the HDC's actions to retain independent legal counsel was made without full knowledge of the facts. The procedural motion seeking disqualification of the HDC's pro bono legal counsel was argued by counsel for Twenty Wayland, not lawyers for the town. The Town of Wayland and the Massachusetts Municipal Association joined in an amicus curiae brief prepared by Kopelman and Paige asking the court to sustain the unbroken chain of court decisions recognizing the authority of boards of selectmen and/or town administrators and managers to make all decisions involving legal representation. The judge's decision on the procedural motion provides no precedential value and certainly does not affirm the right of town boards and commissions to retain independent legal counsel.

    Fred Turkington
    Town Administrator

  3. #3
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    Default More To The Story Than We're Obviously Being Told

    Nothing Mr. Tukington says suggests that my opinion was in any way inaccurate except his clarification, to my relief, that Wayland is not liable for the opposing side's legal fees just their costs.

    The fact is $475,000 spent by August 31 plus how much more to cover a 12 day trial in September, $100,000 anyway, plus the other side's costs. Is $1,000,000 really going to be that far off even if I misunderstood from the Wayland Voters Network report what the extent of the liability was to the other side? I did not characterize the litigation as frivolous in my thread. I believe that a winning party's costs of litigation are normally not awarded unless the court questioned the merits of the loser's suit, and these defendants were found to be "negligent"? I was clearly speculating in my thread that the court must have considered the suit frivolous in making this award, and I've heard nothing to dispute that. Mr. Turkington needs to explain how it is possible the engineer could be found "negligent" yet Wayland got stuck with their costs. The story lies in that explanation.

    Competent counsel should have advised the Selectmen of the likelihood of success in counseling them to authorize such substantial litigation expense, and Mr. Tichnor assured Town Meeting that this litigation would be successful. It seems reasonable to assume that either counsel's estimation was wrong or their handling of the case was inadequate, unless Mr. Tichnor simply misrepresented to Town Meeting their estimation of the likelihood of success.

    Mr. Turkington wants to bring up the $500,000 settlement, but that was past history when Mr. Tichnor spoke at Town Meeting.

    It was, in my opinion, irresponsible of the Board of Selectmen to aggravate an unfortunate situation when they allowed the Town to be involved in the Historic District Commission matter. Competent counsel's job is also to advise when to abstain. And obviously, the judge wasn't impressed with the Town's legal opinion.

    To say that we should be happy with Mr. Lanza as Town Counsel because he and his firm perform the same services for many other municipal entities is hardly an evaluation of legal ability and perhaps speaks more to availability. The same applies to the other attorneys and law firms that Mr. Turknigton mentions.

    Ultimately, my conclusion remains unchallenged. If we had better legal representation, perhaps we wouldn't have committed so substantially to the Public Service Building litigation, and perhaps we'd now have a vibrant new Town Center.

    Steven M. Glovsky
    Shaw Drive

  4. #4
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    Quote Originally Posted by Steven M. Glovsky View Post
    The fact is $475,000 spent by August 31 plus how much more to cover a 12 day trial in September, $100,000 anyway, plus the other side's costs. Is $1,000,000 really going to be that far off even if I misunderstood from the Wayland Voters Network report what the extent of the liability was to the other side? I did not characterize the litigation as frivolous in my thread. I believe that a winning party's costs of litigation are normally not awarded unless the court questioned the merits of the loser's suit, and these defendants were found to be "negligent"? I was clearly speculating in my thread that the court must have considered the suit frivolous in making this award, and I've heard nothing to dispute that. Mr. Turkington needs to explain how it is possible the engineer could be found "negligent" yet Wayland got stuck with their costs. The story lies in that explanation.
    I agree that there's an interesting story in [a] the jury finding the defendent negligent, [b] the jury finding the defendent not financially liable (which doesn't seem to square with [a]), and [c] Wayland being obligated to cover some costs. What's not clear is why Mr. Turkington needs to (or is in a position to) explain this. Aren't these questions better asked of the jury (impractical) and/or the court? Steven, if I'm not mistaken, you're a lawyer. Do you have any expertise in the area of how a generic outcome such as my [a/b/c] might come about?

    Quote Originally Posted by Steven M. Glovsky View Post
    Ultimately, my conclusion remains unchallenged. If we had better legal representation, perhaps we wouldn't have committed so substantially to the Public Service Building litigation, and perhaps we'd now have a vibrant new Town Center.
    I don't agree with this opinion. I don't even know if our legal representation recommended that we pursue litigation. What I do know is that all Board of Selectmen members favored that path, and few if any residents took issue with the decision. The finding of negligence seems to bear out taking that path. To be sure, the outcome wasn't what we wanted. I haven't heard anything to suggest why "better" legal representation would have resulted in a more favorable conclusion. Until someone supplies that "why," the aspersions being cast are without foundation and unconstructive.

  5. #5
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    Quote Originally Posted by Steven M. Glovsky View Post
    Mr. Tichnor assured Town Meeting that this litigation would be successful.
    Here is precisely what then-Selectman Michael Tichnor said about the litigation at April's Town Meeting:

    Quote Originally Posted by Michael Tichnor
    In regards to a prior speaker who asked whether it was worth the legal fees to litigate in regards to the problems with the Public Safety Building, we did conclude one part of the litigation with one party and we did recover in excess of our legal fees. We are still in negotiation with another party, as I mentioned, when I spoke to the motion.

    It's difficult to speak in any detail as it is obviously very sensitive right now and we don't want to speak publicly about the negotiation and litigation, but our expectation is that we will basically settle or in litigation as we go to trial we will collect far in excess of our legal costs and it will be well worth the town's while to continue this litigation.

    It would be an incredible mistake for this town not to move forward to conclude this litigation and negotiation.
    So this was "assurance" if you mean in the sense of confidence, but certainly not in the sense of a guarantee. He didn't use the word "assure", though, he talked of their "expectation" which is all anyone ever could have. I don't think anyone was under any illusion that this was a sure thing (at least, how could anyone have been after the OJ verdict? You just never know what juries are going to do, do you?) I understood, I think most people understood, that our counsel and our BOS believed we had a good case. You don't always win, even when you have a good case, which we can probably all agree stinks.

    I would like to know the jury's thinking in this matter, and if there's anyway to find out more about that, it would likely make interesting reading.

  6. #6
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    It is generally very difficult to intelligently and accurately comment on the result of a trial unless you were there. However, I feel that some things have been said in this thread that need to be responded to, and I doubt very much if anyone who was part of the litigation process will respond. So --- I will give a response, but please understand that I am not familiar with any specifics about this case, so I will try only to be helpful with some general principles.

    1. You absolutely cannot conclude that a lawsuit was frivolous because a jury finds for the defendant. You can also not conclude that if a jury finds against a plaintiff, a good lawyer would have counseled his/her client to not bring the suit. There is a winner and a loser in almost any lawsuit, and the vast, vast majority of them are not frivolous. The decision by the Town, with the advice of its attorney, to pursue these claims would be a very complicated decision. Unless someone has been part of that decision making process, it is extremely unfair for them to comment on whether the attorney properly advised the client.

    2. You absolutely cannot conclude that a lawsuit was frivolous because the court will assess "costs" against the Town. By court rule and statute, costs are assessed against every losing party. These costs are generally considered to be somewhat nominal. They are generally filing fees, service of process fees, and items like that. The Court has discretion, upon request, to assess the cost of transcribing depositions, and there is some latitude for the court possibly assessing other costs. But, as a general proposition, attorney's fees, which everyone knows to be the big-ticket item in litigation costs, are not assessed in this manner. There is a separate statute (Mass. Gen. Laws Ch. 231, Sec. 6f) that allows a prevailing party in a lawsuit to request that the court assess attorneys fees against the losing party, but in order to prevail under that statute, it must be established that the claim was frivolous. A motion seeking attorneys fees under that statute is brought separately at some time after the jury verdict. It is my experience as an attorney (and I have done research on this particular issue) that it is quite unusual for a court to award attorney's fees under this statute. Although, again, I am not familiar with the details, it is very difficult to imagine that a court would find the Town's lawsuit to have been frivolous after a jury determined that the defendant was, in fact, negligent in its design.

    3. You are almost never able to find out why a jury did what it did. Anyone who has tried cases knows that jury verdicts aren't always easily explainable. Although I have no idea of why the jury did what they did in this case, I will give you a possible explanation. Maybe the jury decided that, although the engineering firm was negligent in the way it designed the drainage system, that negligence was not the proximate cause of the flooding. Perhaps the jury ultimately concluded that, due to the location of the building and the characteristics of the land it sits on, the flooding would have happened even if the engineering firm had properly designed the drainage system. Once again, I have no idea why the jury did what they did, but I'm just trying to demonstrate that there are plausible explanations for jury verdicts. And, I'm sure there are other possible explanations. Sometimes juries even get it wrong --- we've all seen and read about that. This is just the nature of our system - it's not perfect, and there aren't always great explanations for every verdict. And, it's usually a mistake to draw the kinds of conclusions that have been drawn above by the use of hindsight.

    So, all in all, it is my opinion that it is extremely unfair to criticize either the attorney or the Town for the result in this case based only upon the jury verdict and the reporting thus far of the Town Crier and WVN.
    Last edited by Lawrie Glick; 10-07-2010 at 02:37 PM.

  7. #7
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    Thanks Lawrie, GREAT post, exactly the sort of thoughtfulness I was hoping for.

  8. #8
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    Default Would You Hire These Lawyers Again?

    Thank you for posting Mr. Tichnor's exact words: "our expectation is that we will basically settle or in litigation as we go to trial we will collect far in excess of our legal costs and it will be well worth the town's while to continue this litigation".

    Not only is the Town receiving nothing - but it is liable for the other side's costs.

    Would you hire these lawyers again? What about taking Mr. Tichnor's advice and that of our Board of Selectmen on risking vast sums in litigation costs?

    Steven M. Glovsky
    Shaw Drive
    Last edited by Steven M. Glovsky; 10-07-2010 at 09:34 PM.

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