By Ray Stern
By New Times
By Amy Silverman
By Stephen Lemons
By Stephen Lemons
By Monica Alonzo
By Chris Parker
By New Times
The statute of limitations for filing a complaint against the state passed in October 1998.
In November 1998, Dietrich's attorney notified McDonald that the Dietrichs believed the state was also at fault and that, based on their engineering study, they could prove the state should pay some percentage of the total damages to the O'Biers.
At that point, McDonald was in trouble. An attorney can be sued for malpractice by his or her own client for not going after everybody who could be at fault in a wrongful-death case. Since he hadn't filed a case against the state in time, McDonald's firm might be held responsible and have to pay the O'Bier family damages itself.
Under state law, the O'Biers' new attorneys argue, if McDonald thought he might face a legal malpractice claim, he was required to declare a conflict of interest and withdraw from the case. The logic of the law: If an attorney knows he could be held liable for a percentage of a settlement, that attorney could work covertly to keep his client's judgment low.
But, according to billing records and interviews with the O'Bier family, McDonald and other attorneys working on the case for the firm didn't inform the family that Dietrich was planning to file against the state.
Months rolled on. Finally, about a year later, McDonald's firm hired an engineer to look at the road.
That engineer also agreed that improper signage was an issue in the case. In March 2000, 15 months after he was informed Dietrich intended to blame the state and two and a half years after Brandon's death, McDonald notified Rayann O'Bier that he had to remove himself and his firm from the case because of the potential malpractice issue.
Then the O'Bier family got their final bill -- $74,235.38.
"I was floored," Rayann says. "And I was really floored because a lot of what I was paying for was him trying to save his own butt."
A New Times review of those billing records shows that about $25,000 of the charges came after McDonald was notified by Dietrich's attorney that they would claim the state was at fault.
The billing records show McDonald's firm was charging Rayann O'Bier for thousands of dollars of work that appeared to be an attempt to protect the firm from liability, not to help Rayann obtain more money in a settlement.
For example, McDonald billed Rayann for all expenses related to getting expert testimony from the second road engineer, which totaled more than $5,000. Because McDonald obtained that testimony after the statute of limitations for suing the state had passed, the testimony would be of little, if any, benefit to Rayann's case, but could have served to clear McDonald in any subsequent malpractice suit.
She was charged $225 in February 2000 for an hour the firm spent on "Legal research Signs & State liability," research that, for Rayann O'Bier's purposes, came about 20 months too late.
She was even charged nearly $500 for work done after McDonald notified her that he would have to pull out of the case.
It cost Rayann $8 for a legal clerk to ask a secretary to make a check out to another party in the case.
"This is how that works," says Doug Tobler, the attorney for Brandon O'Bier's mother. "A person says: 'Hey, cut a check to this guy.' Boom. They charged eight bucks for it."
Rayann was charged $40 for an attorney to make a trip between law offices that took a New Times reporter six minutes.
What wasn't in the bill, though, was any record that showed a member of McDonald's firm visiting the accident site before the statute of limitations against the state had expired. But, the O'Biers say, McDonald told them at the time that the road and its signage were fine.
In March 2000, Rayann went looking for a new attorney and found Terry McGillicuddy, a longtime Phoenix personal injury lawyer.
At first, he says, he thought McDonald had just made a mistake and that they could quickly settle the matter.
But as months passed, McGillicuddy says, it became clear what had really happened.
Terry McGillicuddy was surprised by the same thing that had bothered the O'Bier family for the preceding two years: Why hadn't McDonald sued the state?
"It's basic stuff with the evidence they had," he says. "It just didn't make any sense."
Rayann O'Bier says McGillicuddy met with her and talked to her regularly, something McDonald didn't do. He collected photos of the family, asked her about Brandon Jr., and asked her to describe what she loved about Brandon.
This is what personal injury attorneys do. They want a jury to see the full human toll of the wrong the jury must make right.
McDonald never asked for photos or personal anecdotes. And Rayann O'Bier says she never met McDonald in person regarding the case, nor did she ever meet his key partner in the case, Mark Lammers.
"I was flabbergasted when she told me that," McGillicuddy says. "They had never met with their client after two and a half years and 20 days before the trial."
"I had never had an attorney before," Rayann says. "I just figured that was how it worked by how McDonald handled the case."