I am thinking about writing a book about the case so I would very much like to hear about it from your perspective!

So, if you are willing to talk about it, please get in touch with me via email (wfz@canopusresearch.com) or just call my office number (781-934-9800) and leave a message.

I very much look forward to hearing from you!

All the best,

will

William F. Zachmann, Editor and Publisher, The Duxbury Times

Select one of the files listed below to listen to it:

Yet ‘Wins’ the Case? We’ll See!

The North Hill Golf Course Trial (Johnson Golf Management v. Town of Duxbury et al) ended yesterday (Wednesday, April 24, 2013), the fourteenth day of the trial, in Middlesex Superior Court in Woburn, Massachusetts, with a verdict that was at least as ironically weird as the trial as a whole has been all along. The jury’s final verdict is as follows:

• The Town of Duxbury violated MGL Chapter 30B when it awarded the contract to manage the North hill golf course to Calm Golf in January 2009.
• Duxbury when awarding that contract to Calm Golf in January 2009, did not violate MGL 30B “in bad faith” .
• The Town of Duxbury, however, “based on the conduct of the Town of Duxbury through the Chief Procurement Officer Richard MacDonald in awarding the North Hill management contract to Calm Golf in January 2009″ committed “an unfair or deceptive act or practice” toward Johnson Golf Management that was “willful and knowing” and “a substantial factor in causing a loss of money to Johnson Golf Management”.
• Johnson Golf Management, as a result of this “unfair or deceptive act or practice” lost and therefore should be awarded $200,000 in net profits.
• A penalty multiplier should also be applied to that $200,000 in lost profits and awarded to Johnson Golf Management.

“But wait,” as they say on television infomercials, “there’s more!” “More” in this case means more confusion, more continuing dispute, and almost certainly more court hearings in the future. “It ain’t over ’til it’s over” as old-time New York Yankee’s catcher Yogi Berra once said, and this one ain’t over yet. The “more” starts with a dispute over how much, based upon the jury’s verdict, Duxbury’s taxpayers are obliged to cough up to Johnson Golf Management.

Duxbury’s attorneys say it is ‘only’ $400,000. Johnson’s, however, say it is $600,000. Either way, assuming it eventually gets paid, the town will be on the hook for the vig as well: 12% annual interest from the start of the lawsuit up until the day the money is paid. At the moment, that increases the amount to be paid by Duxbury to Johnson Golf as recompense for lost profits by more than half.

The reason for the two different versions of how much the jury says Duxbury should pay to Johnson Golf is the sloppy wording of what ended up being Question 9 on the Amended Partial Verdict Slip (a copy of which is inserted below) which reproduces the sloppy wording of Question 3 on the seriously flawed original Verdict Slip (see yesterday’s post about Day 13 of the trial for details).

As noted yesterday, the question calls for a multiplier in the range of 2.0-3.0 but the blanks provided are for a dollar amount. So should the $400,000 amount the jury wrote in as damages be interpreted as damages to be awarded in addition to the  lost profits of $200,000 for a total of $600,000 (which appears to be Johnson Golf’s position) or as the sum of the lost profits plus damages (which definitely is the Town of Duxbury’s attorneys’ view)?

But wait, there’s more! Duxbury’s lead attorney in the case, Leonard Kesten, despite all the above, unequivocally proclaims “We won!” and says he expects, with virtual certainty, that he will be able to have the entire award overturned on technical grounds and that, at the end of the day, “Duxbury will not have to pay Johnson Golf a penny”. Obviously, Johnson Golf’s attorney, Steve Follansbee, does not agree.

The bad news (for Duxbury taxpayers) is that if Follansbee is right, Duxbury will have to pay Johnson Golf $600,000 (lost profits of $200,000 plus $400,000 in penalty damages); interest (on the $200,000 in lost profits) of something over $100,000; and attorney’s fees of $400,000 or perhaps a bit more; for a total of $1,100,000 plus. The good news is that, if Kesten is right, Duxbury will never pay Johnson Golf “a penny”. So, what Yogi Berra said!: “It ain’t over ’til it’s over”.

But then, Yogi also said: “If the world were perfect, it wouldn’t be”.

20130424 Amended Partial Verdict Slip by William F. Zachmann

Just when you think it cannot possibly get any more weird than it already is, it gets even weirder. Day 13 of the North Hill Trial got off to a slow start, with last-minute legal wrangling over jury instructions and the verdict slip, but then went on as expected, with final arguments by lead lawyers for each party followed by jury instructions read by the judge to the jurors, wrapping up neatly about 1:30 PM with the jury going off to the jury room to decide the case.

Rather than wind up with a clear verdict, however, the day ended with considerable confusion, in the first instance on the part of the jury, over the jury instructions and the verdict slip, and a decision by Judge Desmond to send the jury home overnight to return tomorrow morning when, hopefully, some way can be found to sort things out and avoid a mistrial.

The way this works (or, at any rate, is supposed to work) is that after the presentation of evidence is complete and final arguments are made by both parties, the judge gives instructions to the jury and provides the jury with a verdict slip containing questions the jury must decide and which is to be used to record their decisions. While both the instructions and the jury slip are ultimately decided by the judge who presides over a case, they are not typically written by the judge.

Rather, the judge asks the lawyers for both parties in the suit to get together to prepare drafts upon which, hopefully, they can agree, as to how the jury should be instructed and what the verdict slip should contain. The idea is for them to agree as much as possible on common drafts while indicating areas of disagreement for the judge to sort out with them.

In this case, Judge Desmond, from the first day of the trial, has repeatedly asked the attorneys to prepare such draft documents – and repeatedly not received what he asked for on a timely basis. The last instance of this was yesterday (Monday, April 22, 2013) when Judge Desmond specifically asked that combined documents be provided for him via email by 4:00 PM. He did not get them until this morning and therefore had little time to review them before the session began and he went to work with the attorneys to resolve the remaining differences. This went on from 9:35 AM until 10:45 AM.

After a brief recess, Duxbury’s lead attorney in the case, Leonard Kesten, then presented his closing arguments for the defense finishing his presentation at 11:57 AM. Johnson Golf’s attorney, Steve Follansbee then presented the closing arguments for the plaintiff, wrapping up at 12:47 PM. Judge Desmond’s instructions to the jury began minutes later and lasted until 1:30 PM. The jury was then sent to the jury room to begin their deliberations and the court recessed for a lunch break at 1:40 PM. So far, so good.

The first indication from the jury came at 3:05 PM when Judge Desmond called the lawyers in to inform them that the jury had requested a copy of Massachusetts General Laws Chapter 30B, Section 6. After a brief conference out of the courtroom  attorneys for both parties came back in and told Judge Desmond they had no problem with that being given to the jury and so it was provided. The Court again recessed to await further word from the jury.

At 4:46 PM, however, Judge Desmond again called the attorneys back into the courtroom and asked to see the copy of the verdict slip, printed on large paper, that Attorney Follansbee had in his hand and had referred to in his closing arguments. He called the attorney’s to a sidebar discussion initially, it appeared, to verify that all copies of the verdict slip agreed (apparently they did).

Judge Desmond then ended the sidebar and went into open discussion in court with the attorneys. The jury was having a problem understanding how to use the verdict slip (see below for a copy it). After considerable discussion, it became clear that a) there were significant problems with the jury slip as originally given to the jury and b) there was no obvious quick fix.

The problem seems to be that although the jury is presently inclined to vote YES on question 1 (i.e. Duxbury violated 30B) and on questions 4-6 (i.e. Duxbury committed an unfair or deceptive act or practice toward Johnson Golf Management that was a substantial factor in causing a loss of money to Johnson Golf Management which act was willful or knowing), yet the jury also seems presently to be inclined to vote NO on question 2 (i.e. Duxbury did not violate 30B in bad faith).

Clearly, the verdict slip did not anticipate this possibility, perhaps based on the assumption that to convince the jury that the Town of Duxbury engaged in “unfair or deceptive acts or practices” that were “willful or knowing” would be more difficult than to convince the jury that the Town of Duxbury had acted in “bad faith”. Moreover, the wording of question 7 is clearly defective in itself, as well as in the link to question 3. The only proper answer to the question of “how much . . . damages should be multiplied” with a constraint of “not less than two times or more than three times” is a number between 2.0 and 3.0 — not a dollar amount.

The trial resumes tomorrow, in Room 720 of Middlesex District Court in Woburn, MA at 9:00 AM. It will be interesting to see how all this gets sorted out — or doesn’t.

  20130423 North Hill Trial Verdict Slip by William F. Zachmann

Johnson Golf attorney Steve Follansbee read the questions he had posed in the depositions while Duxbury’s lead attorney, Lenny Kesten, sitting in the witness stand, read the responses from deposition witnesses John Madden (Duxbury’s Finance Director and a second round bid evaluator in 2009), Steve Studley (Duxbury’s Assistant Recreation Director, also second round bid evaluator in 2009), Duxbury Selectman Shawn Dahlen, and Bill Dixon (one of the first-round bid evaluators in 2008). For the portions of Duxbury Recreation Director Gordon Cushing’s depositions read before the jury, Kesten took the role of questioner and Cushing himself read his own prior responses.

In addition to finishing Hines’ testimony and the reading of portions of depositions, there was some legal wrangling including a motion by Duxbury Town Counsel Art Kreiger for a directed verdict to toss out the MGL Chapter 93A charges (which motion was denied by Judge Desmond) and some disagreements over jury instructions and verdict slips. Judge Desmond expressed impatience with attorneys for both parties failure to provide written recommendations. He said he would not have the jury come in until 10:00 AM tomorrow (Tuesday, April 23, 2013) in order to resolve those matters. He directed the attorneys to get documents to him by 4:00 PM (via email) so he could review them prior to tomorrow’s session.

Judge Desmond also indicated that he expected that once the jury is seated and the session resumes tomorrow morning, it would begin with closing statements by the plaintiff and the defendant followed by his instructions to the jury. He said he hoped to get the case to the jury for deliberation by the end of the morning session (by 1:00 PM)  tomorrow. So, barring some further unanticipated delays, the case should be in the hands of the jury by early afternoon. Some expect the jury deliberations to be brief and anticipate a verdict by the end of the day tomorrow. Others think the case is sufficiently complex to make it likely that the jury will not reach a verdict until sometime Wednesday (or even later).