The Bysiewicz Test
HARTFORD, CT — It’s been almost eight years since Susan Bysiewicz sued the Connecticut Democratic Party to prove she was qualified to run for attorney general.
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The Connecticut Supreme Court concluded that she was not, and provided in their ruling an interpretation of what the phrase “active practice at the bar” would mean for future attorney general candidates. It’s part of the language from the 1897 law that created the office.
In legal and political circles the court’s interpretation is now informally known as The Bysiewicz Test, and it has come up for discussion again following Attorney General George Jepsen’s November announcement that he would not seek re-election to a third term.
In Bysiewicz v. DiNardo, the state Supreme Court said that in order to qualify to run for attorney general, an attorney has to have been in active practice for at least 10 years.
Further, the court concluded that “at least ten years’ active practice at the bar of this state” means “an attorney with at least some experience litigating cases in court.”
Based on that ruling, not only do the candidates have to have litigation experience, they also have to have trial experience.
There’s no question that all three Democratic and two Republican candidates for attorney general have been practicing lawyers for more than 10 years. But do they pass The Bysiewicz Test for trial experience?
Among the Republicans, Susan Hatfield, the party’s endorsed candidate, has been a state prosecutor since 2005 and has spent much of her career in courtrooms prosecuting criminal cases.
One of her biggest cases involved the state’s first human trafficking convictions. In 2016, Hatfield was able to get a former judicial marshal to plead guilty under the Alford Doctrine, which means he did not admit guilt but conceded that prosecutors had enough evidence for a conviction.
Hatfield said a focus on Connecticut and practicing in Connecticut courts is an important part of the job of attorney general. Even though most of her experience is on the criminal side, she dealt with civil cases as a temporary court clerk in New London Superior Court and prior to becoming a prosecutor she was a public finance attorney with the New York City law firm of Hawkins, Delafield and Wood.
She faces a primary from John Shaban, a Republican from Redding who is a partner with Whitman Breed and has 25 years practicing in Connecticut.
Shaban said he is almost exclusively a civil litigator and spends 90 percent of his time in court on behalf of clients.
Shaban, a former legislator, said he was not in favor of changing the qualifications for attorney general because “the key ingredient in active practice before the civil courts is knowing when to push a button and whether to push the button.” He said he would not be willing to lower the bar and eliminate the need for trial experience for a job overseeing 200 attorneys and the interests of the state.
In the three-way primary on the Democratic side, Chris Mattei is a former federal prosecutor who led the Financial Fraud and Public Corruption Unit in Connecticut and is now in private practice with Koskoff, Koskoff and Bieder. He has 12 years of litigation experience in Connecticut. State Sen. Paul Doyle is a partner in the firm of Kennedy Doyle and has been practicing for 27 years. He is one of the Democratic co-chairs of the Judiciary Committee along with the party-endorsed frontrunner in the race, state Rep. William Tong, of Stamford.
Leading up to the Democratic Party’s convention, questions had been raised about both Mattei’s and Tong’s ability to pass The Bysiewicz Test.
Dan Klau, an attorney and blogger who recently became a judge, questioned in December how much experience Mattei had in state court, as opposed to federal, and whether he passed The Byseiwicz Test. He concluded that the federal work does count. While Mattei might be best known for his closing argument in a months-long trial that helped send former Gov. John G. Rowland to prison a second time, he has since spent most of his time in private practice trying cases in state court.
Mattei’s litigation experience is detailed and involved, according to public databases and documents.
A recent medical malpractice trial lasted more than two months and involved more than 45 appearances in court on behalf of his client. In a 2016 case, Mattei represented Sen. Ed Gomes, who was challenging a paperwork error that left his name off the ballot. A transcript of that court proceeding can be found here.
“Pick up any newspaper, and you’ll see that so many of the fights that matter — guns, the environment, financial protection, big pharma litigation, immigration — are being waged in courtrooms,” Mattei said. “The Attorney General’s job is to lead 200 lawyers into court to win those fights. So, of course, experience supervising investigations, leading trials, and managing public interest lawyers is essential.”
Tong is currently of counsel at Finn, Dixon & Herling. He’s been practicing law for 18 years — three in New York and 15 in Connecticut.
Tong is admitted to practice in Connecticut and New York and the U.S. District Courts of the Southern District of New York and Connecticut.
Tong’s biography on the law firm’s website says he has “broad experience representing clients in commercial litigation in federal and state courts, negotiating multi-party settlements, conducting internal investigations, and responding to federal and state government investigations.”
But has he argued in court on behalf of clients?
Public records show there are 23 entries for Tong in the federal court database, and none in the state Superior Court database. Tong’s appearances in Superior Court are filed under the juris number of his firm, which is not an unusual practice. There are 48 entries on the Superior Court database for his firm since 2006.
Tong said Wednesday that he was involved in at least 30 cases filed in state Superior Court.
How many of them went to trial?
“I don’t know how many of them went to trial. A number of them did,” Tong said last week.
The firm’s website says Tong was “Trial counsel for former Chief Executive Officer in wrongful termination action in Connecticut federal court.” Records from U.S. District Court confirm that Tong was involved in a three-day wrongful termination trial during which one witness was called. He was not the lead attorney in that jury verdict case, which his firm lost.
Tong also filed motions in a breach of contract case involving a manufacturing company that was headed for trial in New Britain Superior Court in 2016. The docket called it a “judgment without trial.” Tong described it as a case that settled. Tong’s name is listed second under another attorney on the complaint on most of the motions, but he was listed “lead litigation counsel” under billing documents associated with the case.
“I’m often part of a team of lawyers doing these cases,” Tong said.
Asked if he had read the Bysiewicz v. DiNardo decision and believes he’s qualified to run for the office, Tong said, “There’s just no way as the chairman of the Judiciary Committee I would have jumped into race for attorney general without taking the [Bysiewicz] test myself.”
Tong said while he believes he’s qualified based on the Connecticut Supreme Court’s majority decision in the case, he thinks it’s absurd that — based on the same decision — two of the three founding partners of Finn, Dixon & Herling would not be qualified to run for attorney general.
“They are two of the most accomplished attorneys I know and the idea that they would not satisfy the test is an absurdity,” Tong said.
Since the Bysiewicz ruling was handed down in 2010, the Judiciary Committee has debated changing the statute. But those debates never reached the House or Senate floor. Tong and Doyle are co-chairs of the committee along with Republican state Sen. John Kissel.
Doyle said he can’t recall the issues raised during those debates, but said, “Let’s be honest — whoever wins this race is not going to be in court every day.”
Doyle, whose experience includes everything from housing court to probate court to criminal and civil court, said the Bysiewicz decision doesn’t say a candidate has to be in court 100 percent of the time.
Ryan McKeen, the attorney who first raised questions about Bysiewicz’s qualifications in 2010, said the justices never defined how much trial or courtroom experience is required. It simply said they had to have “experience trying cases.”
Since “cases” is plural, it means more than one case, McKeen said. He cited a portion of the Bysiewicz decision from Justice Fleming Norcott:
“Although the presumption of eligibility might require this court to conclude that an attorney who has not practiced exclusively or even primarily as a litigator for at least ten years is qualified to hold the office of attorney general under § 3-124, the presumption does not authorize us to ignore the clear intent of the legislature that the attorney general must have some measure of experience in trying cases,” Norcott wrote.
The court never went further in defining how much trial experience an attorney should have because Bysiewicz had “no experience representing persons in court.”
What’s the difference between litigation and trial work?
McKeen said litigating a case by filing motions is different from serving as “trial counsel.” He said the decision was clear in saying that an attorney general must have not just litigation experience, but must have actually pushed cases at trial in a courtroom.
McKeen said most attorneys who do trial work would be able to provide transcripts and other documents to demonstrate their work product — mostly because the records are necessary to maintain malpractice insurance.
Tong said litigation work at the attorney general’s office is generally managed by one associate attorney general. The attorney general is managing 200 lawyers and is not typically the person in court defending the state.
“The attorney general’s role is to do battle with the legislature, governor, and president of the United States,” Tong said. “It’s not just to practice law, but to change it.”
In the Bysiewicz case, Justices Richard Palmer and Thomas Bishop did not agree with the rest of the court regarding the litigation and trial requirement, even though they joined the majority in the 7-0 decision.
In a concurring opinion, the two wrote that they believe an attorney general must have 10 years of legal practice, but they didn’t necessarily believe the phrase “at the bar” refers to “courtroom practice.”
Bishop and Palmer wrote: “I do not think a reasonable reading of the statutory language leads to the conclusion that the term ‘attorney at law’ or the phrase ‘at the bar’ refer to the courtroom. Rather, I believe, they refer to one’s membership and active participation in the legal profession of the state.”