If an attorney claims in advertising or on his Web site, that he is competent in criminal defense, does that mean he really is? Not necessarily, says an expert witness in a Missouri legal-malpractice case.
According to court documents, David Shuler (my brother), of Springfield, MO, represented himself as a criminal-defense lawyer and signed up Scott J. Wells as a client in a complex child sexual-abuse case, with Wells paying $15,000 for Shuler's services, (plus some expenses added on). What did Wells get for his money and trouble? He was convicted -- even though a complaining witness was found to have lied under oath, with other witnesses telling wildly contradictory stories -- and faced more than five life sentences. Daniel Dodson, of Jefferson City, took over the case and got the convictions overturned, based largely on a court's finding that Shuler had provided ineffective assistance of counsel.
Dodson served as an expert witness in Wells' legal-malpractice case and testified at length about the lousy lawyering job Shuler had done. The record also shows that Shuler acted with a complete lack of class; Wells sent a letter asking for a refund of his money, and Shuler refused -- even though documents show he essentially admitted that he screwed up the case.
Bottom line: Just because a lawyer claims to be competent in a certain area of the law, it doesn't mean that really is the case. And David Shuler is Exhibit A on that point. Here is testimony from Daniel Dodson in a deposition for the legal-malpractice case. Shuler's lawyer, Scott Bellm, is doing the questioning:
Bellm: The first allegation [of legal malpractice] is that he did not prepare for trial, he being Mr. Shuler, did not prepare for trial or effectively assist the Plaintiff in defending himself by adequately investigating the charges and the defenses to those charges by fully and adequately interviewing witnesses against and for the accused. Let's just top with that.
Dodson: Yeah. As I said in the transcript -- and I read through it, but I don't remember them all -- there were numerous things in the reports that were critical to bring out in terms of inconsistencies and in terms of reasons not to believe these girls that were there for [Shuler] that he did not bring out.
There were additional witnesses, neighbors, credibility witnesses, character witnesses for Scott Wells, neighbors who would say these little girls were untruthful, they had a reputation for being untruthful around the neighborhood, that he didn't explore.
How did David Shuler fall outside the standard of care for attorneys defending a case of alleged child sexual abuse? A key factor, Dodson says, was the failure to hire an expert witness:
Bellm: We talked about he experts briefly. You say he should have endorsed who -- to be within the standard of care . . . ?
Dodson: I think it was -- he needed to at least explore hiring an expert witness to have these recorded statements (from complaining witnesses) analyzed, just as I eventually did.
In this particular case, I don't really think there's room for a determination to not use an expert witness, given the statements, what was in them, the prior inconsistent statements, the later inconsistent statements, the inconsistencies all throughout. I don't think there was room within the standard of care for cases like this to not, at least look into and probably hire an expert witness.
Bellm: And if he talked to Scott about doing that, and Scott didn't want to spend the money to do it . . . ?
Dodson: [That] needed to be in the initial conversation. "Mr. Wells, these cases require that I look into hiring an expert witness. And if I do, it's going to be several thousand dollars. And you're going to need to be in a position to come up with that money or you're going to have to give me a deposit of that money so I have it available, because otherwise, I can't represent you properly.
Dodson addressed the issue of whether Wells was entitled to a refund of the more than $15,000 he paid David Shuler, plus other possible remedies:
Bellm: Did you ever tell him or advise him to try to get get his money back from David Shuler?
Dodson: I'm sure I told him that I think, yes, based on the finding of ineffective assistance, that Shuler would probably be wise to give you your money back. . . .
Bellm: Did you ever advise him to report David to the Office of the Chief Disciplinary Counsel?
Dodson: I don't believe I did. I don't -- the Chief Disciplinary Counsel and the criminal justice system are both over-rated in their ability to deal with problems, I think.
Dodson also was asked about possible damages for Scott Wells in the legal-malpractice case:
Bellm: . . . we were talking about the damages in this case. And I guess what I'm trying to find out, Mr. Dodson, is we can do the math and know what it cost Mr. Wells to hire you to finish his case. And I also understand that you're not going to give any testimony about his medical condition or medical bills or anything like that.
Bellm: From an economic standpoint as to what his issues are, as occasioned by David Shuler's alleged negligent handling of his case, do you have any opinions about that?
Dodson: Yes, I do.
Dodson: First of all, as I have said, because of the penis evidence, I think David Shuler, even David Shuler, despite all his mistakes, was in position to win it. And so the difference would be between $15,000 and the $60,000 or $65,000 that they eventually spent with me, $45,000 to $50,000. . . .
Bellm: So the economic damages in this care are around $50,000?
Dodson: I would say, yeah. From a legal standpoint, yeah.
Bellm: Well, you would agree that he's certainly not entitled to get back the $15,000 he spent on -- with David Shuler and then the money he spent on you? I mean, he was going to spend something on this case?
Dodson: Not as pure economic damages.
Dodson: I don't know if punitives are available in cases like this or not or -- or what his medical are. But in terms of the pure additional legal costs, yeah, $50,000 would be about right. Unless, I don't remember what the bondsman costs were.
Based on Dodson's testimony, David Shuler was looking at being liable for what might be called "direct damages" of at least $50,000, plus possible medical damages (Scott Well has a benign brain tumor, is blind in one eye, and relies on assistive devices to be mobile.), damages for emotional distress, and punitive damages that could have increased the number substantially.
Also, the testimony does not address the expenses Wells incurred for being placed in the position of bringing a legal-malpractice case -- and it makes no mention of whether David Shuler carried malpractice insurance, and without it, the damages likely would have come straight out of his pocket.
As for Shuler's apparent admission that he butchered the Wells case, it can be found on page 38, Vol. 1, of the Dodson deposition. (Both volumes are embedded at the end of the post.)
Bellm: During that meeting [at Shuler's office], did he say anything to you that could be construed as an admission that his representation fell short?
Dodson: Yeah, to some degree. Yeah, it was like, yeah, I probably should have done this differently. Yeah, I felt like he was more forthcoming in our meeting at his office than he was at trial, in terms of, yeah, maybe if I had this to do over again, I would do it differently, maybe I didn't really think this through, things to that effect. . . .
(To be continued)