All may be well that ends well, but for Molly McBride there was nothing good about the journey.
First she nearly died in a horrific crash on Highway 101 in Prunedale.
Then she survived a mystifying jury verdict that found the state Department of Transportation at fault for the accident but awarded her no money.
Then, adding insult to injury, her attorney, Arthur Jacobs of Monterey, sued her over the cost of preparing for the losing trial, $72,000.
But McBride fought back, hiring new lawyers who have won for her $910,000 settlement from Jacobs' malpractice insurance carrier.
Jacobs' attorney say McBride's malpractice suit was without merit, and that the insurance company settled rather than face a jury that would have been inflamed by false information presented by her new attorneys.
But those lawyers scoff at that analysis. And one of them, San Francisco malpractice specialist Don Carlson, argues that what happened to McBride was "an example of the worst things that people see in lawyers, and why people distrust lawyers."
Legal tussle begins
As spelled out in court records and deposition testimony, McBride's journey began in a pouring rain on Highway 101 in Prunedale on Feb. 15, 2996. Then 20, McBride was headed to her Mountain View home after visiting her father in Carmel when she was struck by a truck that had hydroplaned out of control across the highway.
With two punctured lungs, six fractured ribs, seven pelvic fractures and a lacerated liver, McBride nearly died. She spent 31 days in the hospital, 21 of them in a coma. When she awoke, Jacobs came to her bedside, sent there by her maternal grandparents.
McBride said Jacobs told her that her injuries were worth a least $10 million and that she would never work again.
But a family tug-of-war broke out over who should represent her. McBride's father, Don, who is divorced from her mother, wanted his lawyer, Robert Rosenthal of Monterey, to represent his daughter.
In an effort to hang on to the potentially lucrative case, Jacobs reportedly told McBride's family that Rosenthal had no experience with personal-injury law. Carlson said that when the family later learned otherwise, Jacobs told McBride and her mother that Don McBride wanted Rosenthal because he had promised him a $25,000 kickback, which Rosenthal and Don McBride deny.
The result was a months-long estrangement between the father and daughter, who ended up retaining Jacobs.
What Jacobs didn't tell McBride, according to court records, is that he had never handled a jury trial. Rather than handle the trial himself, Jacobs hired San Diego lawyer Dennis Atchley and his partner, Donnie Cox, to perform the courtroom work on McBride's behalf.
Atchley said Jacobs also failed to tell McBride that her lawsuit against Caltrans realistically was worth only $1 million or $2 million. Because the driver who hit her was drunk at the time, he said, Caltrans undoubtedly would argue that he was at fault, and a jury would probably reduce any state liability.
Nevertheless, Jacobs filed a $10 million claim against the state alleging that the accident was caused by improper sloping and insufficient drainage on 101 near Moro Road.
He also helped McBride obtain a $500,000 settlement from her father's uninsured motorist policy, because the driver who hit her was uninsured. According to court records, Jacobs kept $125,000 for himself.
Atchley and Carlson said it was an inappropriate fee since McBride, who faced more than $600,000 in medical bills, would have received the insurance money even without an attorney.
Worse, they said, the insurance settlement largely spelled the end of Jacobs' efforts on McBride's behalf except for hiring the other lawyers to handle the trial.
Rebutting the allegations.
Jacobs was admitted to the state Bar in 1970 after earning a degree from the University of Pennsylvania Law School. After many years of practicing personal-injury law in San Jose, he moved to Monterey in 1989 and has continued his practice on the Peninsula. No previous complaints have been filed against him with the Bar.
The Herald's telephone calls to Jacobs were returned by his attorney, General Rose of Monterey. Rose rebutted many of the allegations by Atchley and Carlson, saying that Atchley "is obviously looking for someone to blame for his failure to convince a jury that his client was entitled to a judgment."
Though McBride testified otherwise in a pretrial deposition, Rose said Jabobs never told her the case was worth $10 million. Rose also said Jacobs spent "hours and hours" working on the case.
Cox and Atchley both said that very little preparation had been done when they entered the case. They said, for instance, that Caltrans had fixed the dangerous road design after the accident but Jacobs had failed to have an engineer inspect the site before the repairs. Civil engineer Thomas Schultz wasn't able to take measurements or photographs to support his conclusion that the road design caused water to pool on the highway during heaving rain.
Thirty-one other drivers, all of them sober, had been involved in similar accidents at the site between 1993 and 1996. In 1994, the state's own computerized accident-tracking system warned of the danger there, which prompted the repairs in 1996.
Atchley and Cox said Jacobs also failed to promptly interview a number of people who could have testified that no signs were posted to warn drivers of dangerous conditions the day of McBride's accident. By the time of the trial two years later, when the signs became an issue, memories had faded and Caltrans employees testified it was their "custom and practice" to post the signs.
In the end, the jury agreed that the accident was caused by the dangerous road, vindicating Jacobs, according to his lawyer. But the jurors also concluded that Caltrans did not create the dangerous condition. They awarded McBride nothing.
Atchley and Cox said they believe they would have won a financial award if Jacobs had done a better job preparing the case. They appealed the jury decisions but lost, and never received any payment for their work
Broke and in pain
By then, McBride was 22. Expecting a large judgment, she had spent most of the insurance settlement on things that included a trip in France. She was nearly broke and still suffering from chronic pain when she learned that Jacobs had filed suit against her to recover his expenses.
Her original agreement with Jacobs called for him to receive 40 percent of any judgment or settlement after lawsuit was filed, with his expenses to come out of those awards. Rose noted that the contract said the expenses were being "advanced."
According to several Monterey County lawyers, it's common practice in contingency cases that the attorney gets a considerable share of any monetary award. But it's unusual, they said, for the lawyer to seek reimbursement of expenses in the event of a loss.
According to Rosenthal, Jacobs admitted that he'd never previously sought to recover expenses from a losing client.
To defend herself against Jacobs' lawsuit, McBride hired Rosenthal, the lawyer her father had wanted her to use in the first place. She sued Jacobs, alleging malpractice. To help, Rosenthal brought in Carlson, the San Francisco malpractice specialist.
Carlson said he set out to win $10 million for McBride, the amount Jacobs had told her the initial case was worth. He said the grounds were failure to adequately prepare for trial and, citing deposition testimony, other unethical and fraudulent actions by Jacobs. As alleged in court papers:
Jacobs never told McBride he had no experience with jury trials. "He was a 'billboard attorney,'" said Carlson, referring to a lawyer who finds personal injury cases and either settles them or hired others to try them.
He aggressively pursued the case and allegedly isolated McBride from other attorneys to keep from losing it. Carlson said Jacobs and his wife made daily phone calls to McBride, bought her gifts and sent her on vacation.
When they had McBride over for dinner, Jacobs' wife admitted in a pretrial deposition, the couple would hang McBride's portrait on the wall, then remove it when she left.
Jacobs told Atchley and Cox they couldn't speak to McBride until two weeks before the trial because she was "mentally fragile." Atchley said he later concluded the real reason was because Jacobs knew that they would tell her that the case was realistically worth $1 million to $2 million, not $10 million.
McBride testified at deposition that Jacobs asked her to come to court in a wheelchair, which she didn't need, and asked her if she had friends who would "bend the truth" about her physical condition.
Accepting the offer
Calson said that after reviewing details of the case, he faxed Jacobs to say he would take the malpractice case to trial unless Jacobs' insurance carrier agreed to pay the full amount of his policy, $910,000. And if a jury award exceeded Jabcob's malpractice policy, he would go after Jacobs' personal assets. He gave Jacobs until 5:00 p.m. the next day to accept the offer.
At 4:57 p.m. the next day, Jacobs accepted.
Late last month, Jacobs agreed to drop any remaining litigation, including a countersuit he filed against Atchley.
Rosenthal, who worked with Carlson on the malpractice case, said he felt vindicated by the settlement.
"The way this client was handled by this attorney was incredible," Rosenthal said. "(Novelist John) Grisham should write a novel about it. This was the kind of behavior that gives lawyers a bad name."
Atchley and McBride both said they plan to push the Bar to revoke Jacobs' law license.
McBride is now back at home in Seattle and pleased the ordeal is over – though she wonders how she will occupy her time now that she doesn't have to deal with lawsuits and lawyers. She said she believes Jacobs knows in his heart he took advantage of her.
"I really hope," she said "that no one else has the misfortune to have such poor representation."