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Renowned Washington litigator Michele Roberts has the kind of reputation that makes other attorneys salivate with envy. “She mesmerized juries,” says Wiley Rein partner Barbara Van Gelder, who worked for the U.S. Attorney’s Office when Roberts was arguably one of the best public defenders in the District. “She was, to me, one of my most feared adversaries.” Still, there is one case that the seemingly infallible Roberts has not been able to win. It began nearly six years ago as a simple matter, one she agreed to handle as a favor to a federal judge. It has since given rise to a $5 million legal malpractice claim filed against her by a former client. Vaughn Stebbins, whom Roberts represented in a civil case against the District of Columbia and a Metropolitan Police Department officer, claims that the superstar litigator botched his chance to recover damages for injuries he received after being shot nine times by the police officer in 1998. Stebbins accuses Roberts of blowing deadlines and failing to properly serve a key defendant — mishaps that led to the dismissal of his case. Roberts isn’t the only defendant in the D.C. Superior Court case. Stebbins has also sued solo practitioner Steven Kiersh and Goodwin Procter, the firm that absorbed Shea & Gardner, where Roberts once worked. In motions for summary judgment filed in June, Roberts and Kiersh argue that it is irrelevant whether their slip-ups led to Stebbin’s case being dismissed, because a reasonable jury would never have sided with him. Yet that defense has placed the two lawyers in the awkward position of having to tear apart their original case and discount deposition testimony given by the expert witnesses that Kiersh had assembled. Last month, Stebbins’ lawyers — Richard Swick and David Shapiro of Swick & Shapiro — filed their own motion for partial summary judgment, alleging that Roberts and Kiersh’s negligence was so straightforward that the matter is undisputable. Now, it’s up to D.C. Superior Court Judge Jennifer Anderson to decide whether the case will proceed to trial. MEETING EYEBALL-TO-EYEBALL According to court documents, in September 2001, then-Senior Judge William Bryant of the U.S. District Court for the District of Columbia summoned Roberts to his chambers. There, Bryant told her about his grandson, Stebbins, who had been shot nine times by an MPD officer almost three years earlier. Stebbins, who could not be located for comment for this article, wanted to file a civil action against the District for negligence and against the officer, John Diehl, for civil rights violations. The statute of limitations was about to run out on his claims, and Bryant hoped Roberts would take the case. Roberts, now a partner at Akin Gump Strauss Hauer & Feld, declined to comment, but in an April 10 deposition she said she had been hesitant to oblige Bryant. At the time, she was dissolving her firm, Rochon & Roberts, and leaving behind the world of street crimes to handle white-collar defense cases for the firm then known as Shea & Gardner. In her deposition, Roberts said she only agreed to draft and file a complaint for Stebbins. Beyond that, she said, she told Stebbins he would have to find a new lawyer. And that, it appears, is where things get blurry, particularly considering that there is no letter of engagement or written retainer documenting the agreement, according to court records. Roberts filed an amended complaint in the U.S. District Court for the District of Columbia on Oct. 15, 2001, shortly after filing the original on Sept. 27. After that, she said in her deposition, she assumed she was off the case. According to court documents, Stebbins denied knowing he was supposed to find new representation. And Roberts said she was surprised to receive notification that she was still his counsel when the first status conference was scheduled in late May 2002 — seven months after the amended complaint was filed. Roberts attended that initial conference but testified that she then recruited Kiersh to take the case. Both Roberts and Kiersh attended the second status conference a month later, where Roberts told Judge Reggie Walton that there was a chance she would leave the case. After the conference was over, Roberts recalled in her deposition, she sat in on a meeting where Stebbins agreed to let Kiersh take over as lead counsel. Although Stebbins said during his Feb. 19 deposition that he was under the impression that both Roberts and Kiersh were now representing him, Roberts insisted the arrangement was perfectly clear. “I do recall at that meeting, he said eyeball-to-eyeball, �I am fine with Steve. You can go,’” Roberts said, according to a transcript of her deposition. Roberts did not deny that she never officially withdrew her name from the case, but in her deposition she said she thought she made her intentions obvious — albeit orally — to her client. But Barry Cohen, a partner in Crowell & Moring’s professional responsibility practice who is not involved in the Stebbins case, says Roberts’ word might not be enough. “If she never formally terminated the relationship but ceased being active on the case, she could continue to have responsibility for even Kiersh’s conduct,” he says. In addition to failing to withdraw her name, Roberts also never served process on Diehl. “My recollection was, I was going to wait to find out if the District would accept process,” she explained during her deposition. She said she assumed Stebbins would find another attorney to serve the officer once the District answered the complaint. But Diehl never did get served — neither by Roberts nor by Kiersh. “I would say that I must have overlooked it,” Kiersh, who also declined to comment, said during his deposition on April 23. That oversight is now a major factor in Stebbins’ malpractice suit because it ultimately led to his civil case getting dismissed by the federal court. Kiersh did file a motion to obtain permission to untimely serve Diehl, but it was denied. By that point, Kiersh had assembled and deposed expert witnesses and, according to Stebbins’ deposition, indicated he had “a strong case.” Nonetheless, he stipulated to having the case dismissed because he considered the civil rights claims against Diehl his only “federal jurisdictional hook.” Kiersh attempted to refile the case in D.C. Superior Court but was unsuccessful, as the three-year statute of limitations had expired. That case was dismissed in July 2004. CAR CRASH LEADS TO GUNPLAY But unbeknownst to Roberts, she was not yet rid of Stebbins. He hired Swick and Shapiro and filed suit in April 2006. The complaint seeks $5 million in damages for professional negligence. (Akin Gump, where Roberts currently practices, was also named as a defendant, but the firm was dismissed from the case on July 21, 2006.) Swick and Shapiro declined to comment. Anthony Bisceglie of Bisceglie & Walsh is representing Roberts, and David Durbin of Jordan Coyne & Savits is defending Kiersh. Both attorneys declined to comment. In court papers, they argue that a reasonable jury never would have sided with Stebbins in his underlying civil case against the District and Diehl. But in court papers filed by Stebbins, his lawyers cite testimony from Kiersh’s former expert witnesses in an attempt to prove otherwise. According to court records, one expert on police practices, James Bradley Jr., testified that Diehl’s version of the incident was racked with implausibilities. He noted that the presence of posterior wounds on Stebbins indicated he was trying to run away from Diehl, contrary to the officer’s testimony. Cohen, though, says the fact that witnesses used by Kiersh in the civil suit are now being used against him and Roberts is nothing to be embarrassed about: “I don’t think the judge will be surprised by it.” Cohen says attacking “the case within the case” is a “very conventional defense to legal malpractice.” Whether Stebbins’ civil case had any merit is, indeed, debatable. Not surprisingly, his account of getting shot during the early morning hours of Sept. 30, 1998, differs significantly from Diehl’s version of the events. Stebbins had a fully loaded, unregistered handgun in his waistband when his parked car was approached by two police officers looking for robbery suspects that morning. One of them noticed the gun and radioed an alert, which Diehl heard while patrolling nearby. Stebbins fled, eventually speeding by Diehl, who pursued him until Stebbins crashed into a parked car. Diehl said he believed Stebbins had his gun in hand when exiting the car, but in his deposition, Stebbins testified that he put the gun back in his waistband after it fell out during the crash. Diehl said he repeatedly told Stebbins to drop the gun, but Stebbins refused. When it was over, Diehl had fired 12 rounds, hitting Stebbins nine times. As a result, Stebbins, just shy of his 19th birthday at the time, suffered internal injuries and had to undergo surgery to walk again. But in their motions, Roberts and Kiersh both claim Diehl — who they originally argued had a pattern of excessive force — acted reasonably. Jackson & Campbell partner Clifton Mount, who has represented numerous clients in excessive-force cases against the Metropolitan Police Department, says the fact that Stebbins was armed “substantially weakens” his case. And while Diehl had a record of alcoholism and one prior indictment for excessive force, Mount, who is not involved in the Stebbins case, says there typically has to be more than one incident to establish a practice-or-pattern claim. Also unclear is whether Diehl misidentified Stebbins as one of the robbery suspects the first two officers had been pursuing. In the civil complaint, Roberts claimed Diehl was guilty of negligence for wrongly assuming Stebbins was one of the suspects. Perhaps Stebbins’ strongest claim in the underlying case was that the police department mishandled its internal investigation of the shooting. At the time, those types of investigations were referred to the department’s homicide division. With Stebbins’ incident, it took the division five months to relinquish the case file to the lieutenant assigned to independently investigate it. Within that time, Stebbins’ passenger, the only eyewitness who was not a police officer, died. Mount says that witness could have been invaluable. “It would have been extremely significant to get a deposition from him before he died,” he says. WHY TAKE THE CASE? Stebbins also wasn’t a very sympathetic plaintiff. For one, he pleaded guilty to destruction of property and carrying a pistol without a license in connection with the shooting incident. He was sentenced to three years of supervised probation, according to court papers. Stebbins has more recent convictions on his record, too, including one for misdemeanor possession of an unregistered firearm in 2003 and several for marijuana possession as recently as 2004. All this raises an obvious question: Why would Roberts attach her name to a case if she genuinely believed it was impossible to win? Deborah Jeffrey, who specializes in legal malpractice at Zuckerman Spaeder, says it is not unusual to take a case as a favor. “We all have friends who are judges,” says Jeffrey, who is not involved in the Stebbins case. During her deposition, Roberts said she did not consider Bryant a friend, but she said he was highly regarded by the African-American community. She recalled seeing him at various functions and making it a point to say hello. (Bryant died in 2005.) Jeffrey also emphasizes that Roberts was dealing with a fast-approaching deadline. “Particularly if you’re up against a statute of limitations with filing to begin with, you may have to file the case on a lot less than perfect information,” she explains. Crowell’s Cohen, though, says Roberts had to have had some faith she could develop the case. “If she was going to put her name on the complaint, she had an obligation to make sure that the minimum requirements were satisfied.”
Marisa McQuilken can be contacted at [email protected].

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