August 24, 2014

Why Cars Are Killing More Pedestrians (Syracuse NY Injury Lawyer Explains)

crosswalk.jpgI came upon some surprising statistics recently: Just as motor vehicle travel is getting safer (for those inside the vehicles), walking is getting more dangerous because motor vehicles are striking and killing more and more pedestrians.

Just look at the statistics: 22 percent fewer traffic fatalities from 2003 to 2012, while pedestrian fatalities have been climbing steadily since 2010. In 2012 alone, the pedestrian fatalities were up 6 percent from the year before. A motor vehicle kills a pedestrian every two hours and injures one every seven minutes, according to the National Highway Traffic and Safety Administration ("NHTSA"). Fourteen percent of all road fatalities are pedestrians. There are 4,000 to 5,000 pedestrian fatalities per year in the U.S.

Why are pedestrian fatalities up while motor vehicle fatalities are down? No clear answer out there. But I have a theory (are you listening NHTSA?)

In a word (actually two): smart phones. Drivers are using them, and so are pedestrians. More and more pedestrians are "texting while walking" or listening to music with earphones, and are thus unable to hear or see oncoming dangers. Meanwhile, more and more drivers are texting or dialing while driving.

What do you get when a texting driver turns in a busy intersection and meets a texting or dialing pedestrian crossing in a crosswalk? Bang!

Moral of story: Don't text or phone and drive. If you are a pedestrian, don't cross a road while texting or talking on the phone. Also, take those ear buds out before you cross.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Syracuse NY Pedestrian Accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

August 22, 2014

Why You Should Turn Down That First Offer From The Insurance Adjuster.

money.jpgA first offer from an insurance adjuster is like the first kiss on a date: It usually leads to something more substantial. At least that's my experience (recently in law, and a long time ago in dating). Yes, I have plenty of recent experience (more than 20 years) in New York personal injury law.

When you are hurt because of someone else's negligence, you are likely to get a call from an insurance adjuster fairly soon. He or she will offer you money to settle. It probably won't be enough. My advice? Think of it as a first date. If you simply take that offer, and sign a "release", and say goodbye, you'll never find out what would have happened on the second date.

As Nancy Reagan used to say, "just say no"! Don't worry about the offer evaporating. As a New York personal injury lawyer with many years' experience, I have never seen that first offer "disappear". I have never even seen and insurance adjuster LOWER an offer, much less take it off the table. And I have seen many, many times, indeed most times, insurance adjusters INCREASE their offer.

What makes the adjuster increase her offer?
(1) As you continue to treat for your injuries, the medical records often document more serious injuries than the adjuster or you were aware of at the first offer.
(2) If you hire a New York personal injury lawyer who has a good track record in court, the adjuster is likely to immediately rethink her initial offer.
(3) If you hire a New York personal injury lawyer worth his or her salt, they will know how to "build" your case with the adjuster, by highlighting the significant features of your medical records and the other facts of your case.

Bottom line: Don't take that first offer. See a lawyer. Your offer is likely to increase significantly, and it is almost unheard of for it to decrease or disappear. Call me to find out more.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyer

Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

August 20, 2014

Lawyer Gets Sanctioned For Calling Other Lawyer An A**hole.

iStock_000008918307Small.jpgLitigation lawyers are, in a sense, at war. Each lawyer is fighting for his client to prevail. A spirited fight requires, sometimes, spirited verbal exchanges.

But there are limits. Fellow lawyers, here's a little rule of thumb: Don't call your opponent an "asshole".

That's exactly what one lawyer called another in Alexander Interactive v. Adorama Inc., a case involving a simple business dispute, and not, as one would expect given the level of vitriol, a roiling matrimonial case. The insult-hurling lawyer -- whose surname is coincidentally "Savage" -- dropped the "A-bomb" in an email to her opponent. Then the "Savaged" opponent - who apparently denied the charge -- one-upped her by flipping the email over to the judge, who then sanctioned Ms. Savage with an admonishment, despite Ms. Savage's pleas that her opponent had "provoked" her into her transgression.

The full email contained other "foul language", too. Here it is in full:

You're an asshole Dan. I have everything taped. And yes, under ny law and the rules of professional conduct, it's allowed. If you think you're going to sully my clients with your fictions, you're a fool. If you try any shitt with the court, I welcome it. We have provided all requested data, all requested backups and have provided it in an orderly and accessible manner, unlike your clients. Don't fuck me. I'm done with your unethical behavior. Any motions by you, if you're trying to build a case for some unmeritorious motion to deflect from your clients' unethical behavior, will include my recordings from today.
Please govern yourself accordingly.

It's no surprise to me that this exchange happened down in New York City, where lawyerly decorum is notoriously lacking. I can't say this would never happen in upstate New York where I practice, but I can say I have never seen it happen. Hopefully, I never will . . .

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyer
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169


August 19, 2014

NY Wrongful Conviction Settlement Is Big, As It Should Be (Central NY Personal Injury Lawyer Explains)

SETTLEweb-master675.jpgWrongful convictions in New York are probably a lot more common than we think. But proving a wrongfully conviction is indeed rare. It's not easy peeling away at a skillful prosecutor's evidence, especially from behind bars.

But some convicts have done it. And when they do, we should all rejoice because, "but for the grace of God, there go I".

Does society owe such a person compensation? You bet. And compensation is what happened today in New York when Jabbar Collins (shown in the photo), a man who spent 16 years in prison for a murder he did not commit, and then spent three years in litigation against the City of New York, reached a $10,000,000 settlement. That's about $600,000 per year in prison.

Collins was convicted of shooting to death a rabbi rent-collector in Williamsburg, Brooklyn. But Collins, who doggedly investigated his own conviction from jail, discovered, from behind bars, that the D.A.'s office had hidden important exculpatory evidence from him at the trial. He then got some help from a New York wrongful conviction lawyer, and together they discovered that the prosecutors had used the same dirty tricks in many other cases, which led to those other convictions being overturned as well.

Turns out Collins was no criminal. He's a hero.

In all, Collins will receive a total of $13 million after settling a separate unjust conviction and imprisonment suit against New York State for $3 million last month.

And if you think that's too much money, close your eyes and imagine the bitter despair in Collin's heart and the black, suicidal thoughts in his mind as that prison door slammed behind him, knowing it wouldn't open for him for a long, long time. Imagine his knowing that the world believed he committed a heinous crime he had nothing to do with. Imagine him knowing that his family had to carry the stigma of his infamy. Imagine his life behind bars surrounded by real dangerous criminals.

Personally, I'd rather have a terminal cancer diagnosis. I'd rather have my eyes pocked out. Sixteen years locked up, deprived of family, friends, joy, sun, sky, hope, love, sex, freedom. Nope, not for $13 million, not for $1 billion. If you're honest with yourself, you probably feel the same way . . .
Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Wrongful Conviction Lawyers

Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169


June 26, 2014

What Are The "Rights To The Road" For New York Cyclists? Syracuse Bike Accident Lawyer Explains

I've recently been blogging about New York bicycle law and how to investigate and prove bike accident cases in New York. Today I am going to answer a common question I get from other cyclists.

Because I am both a New York personal injury lawyer and an avid bicyclist, my biking buddies often ask me about bicycle laws in New York. One thing they often want to know is whether it legal for them to "take the lane" rather than stay to the far right.

The answer is "sometimes". Section 1234(a) of New York's Vehicle and Traffic Law (not applicable in New York City) provides that, "upon all roadways, any bicycle . . . shall be driven either on a usable bicycle . . . lane or, if a usable bicycle . . . lane has not been provided, near the right-hand curb or edge of the roadway or upon a usable right-hand shoulder in such a manner as to prevent undue interference with the flow of traffic except when preparing for a left turn or when reasonably necessary to avoid conditions that would make it unsafe to continue along near the right-hand curb or edge. Conditions to be taken into consideration include, but are not limited to, fixed or moving objects, vehicles, bicycles, in-line skates, pedestrians, animals, surface hazards or traffic lanes too narrow for a bicycle or person on in-line skates and a vehicle to travel safely side-by-side within the lane."

So there you have it. You should "take the lane" to turn left. Be sure to signal left! Otherwise, stay right, unless you need to avoid some danger there.

Other important New York bicycle rules to remember:

You may ride side by side, but only two abreast, and must switch to single file when being overtaken by other vehicles. Sec 1234(b).

Keep at least one hand on the handlebar at all times Sec. 1235.

Never wear more than one earphone attached to a radio, tape player or other audio device Sec 375(24-a).

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central & Syracuse NY Bike Accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169


June 24, 2014

How To Properly Investigate A Bycicle Accident Case: CNY Bike Accident Lawyer Explains

bicycle helmets.jpgIn my recent blog post about how bicycle accidents happen, I promised to blog next about how to properly investigate a bike accident to prepare a New York bicycle accident case against the at-fault motor vehicle driver. I keep my promises!

The first rule is to preserve the evidence. This is important not only to prove your case, but also to prevent the defendant from later arguing that your case should be tossed out because you destroyed evidence. So save the bike! Don't use it or fix it. Preserve it!. The damage to it may help show where the car struck the bike and the force of the impact among other things.

Of course you should get any police accident reports. Equally important, but more time consuming, go to the scene and explore it carefully. Bring a camera and photograph and film everything in sight. Look for skid marks. Have an accident reconstructionist or investigator with you to take measurements. Have someone take a video as he or she rides or walks along from the cyclist's point of view. Do the same, from a similar car, for the driver's point of view. Look to see if it should have been obvious to the driver that there would be bikes and pedestrians in the area. For example, are there marked bike lanes? Are there sidewalks or crosswalks?

Look around for surveillance cameras that might have captured the accident. Look at the surrounding stores, houses, traffic lights, nearby buildings. Surveillance cameras are more and more prevalent.

When interviewing the client, pay close attention to time, speed and distances. How far was the cyclist from the intersection at the time he first saw the car? How many seconds passed before the collision? How far did the cyclist travel from one point to another? How fast was he going? How fast was the car going?

To make sure the client's memory is correct, bring him or her to the scene (if he can stand it!). This will show you and the client whether his memory makes sense. Check the facts against the well-known mathematical formula for calculating feet traveled per second at a given speed. For example, if the cyclist was going 10 miles per hour, that means he was going about 15 feet per second, so in 3 seconds he would have traveled about 45 feet. Does the client's memory of the time, distance and speed before impact make sense given this formula? Does your math help refresh the client's recollection of distance, time and speed?

It's also important to explore the safety measures the cyclist (hopefully) took. Think about how you can avoid the defense blaming him or her, at least in part, for the accident. Was he wearing a helmet? Was the client wearing bright clothing? Preserve them! Was there a light on the bike? Preserve it! Was the cyclist looking in front and did he see the car? Did he try to avoid it or did he even have time?

In an ideal case, the cyclist would be looking right at the car when it suddenly cuts him off or turns into him, violating his right-of-way, and giving him almost no time to react. Either that, or the car hits him from behind when he is as far right as he reasonably can go. You probably won't have a "perfect" case (those are rare!) but a good, solid bicycle accident investigation will ensure that you (1) preserve all the "good" evidence for your case and (2) are prepared to confront and minimize the "bad" evidence.

Good luck!

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central & Syracuse NY Bicycle Accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

June 22, 2014

Auburn New York Bicycle Accident Lawyer Explains How Bike Accidents Happen

bicycle mike.jpgYeah, that's yours truly in the photo (at the Geneva NY MusselmanTriathlon a few years ago). No, I didn't win anything, not even for my age group, but yes, I had fun trying!

With all this great weather we've been having here in the Finger Lakes, I've been getting out on my road bike quite a bit. I try to cram in two or three 30-milers during the work week and one long one on the weekend.

Since I've got cycling on my mind, my next few blogs will thus be about cycling accidents, how to prevent them, and, god forbid, if you are hurt in one, how your lawyer should build your case.

Let's start with cycling law. Motor vehicle laws are fairly consistent all across the country. Not necessarily so for bicycle laws. For example, Idaho cycling law allows bicyclists to treat a stop sign as a yield sign and a red light as a stop sign. Not here in New York. You're actually required to STOP at stop signs and red lights.

Generally in New York State, Bicycles must follow the same rules as motor vehicles. But even though there is a near 100% overlap of rules for bikes and motor vehicles in New York, car-on-bike crashes are not like motor vehicle crashes.

First, statistically, they happen differently. The five most common car-on-bike collisions are:

(1) The left cross (the oncoming driver turns left in front of you);
(2) The right hook (the driver passes you on your left, then turns right, cutting you off);
(3) Dooring (parked car opens door - bang!),
(4) Parking lotting (driver exits parking lot without seeing you), and
(5) The overtake (car strikes you while passing, or rear-ends you, even though you
are as far right as you can safely go).

If you re-read the five most common types of car-on-bicycle collisions above, you will see they all have one thing in common; the driver of the car just does not see the cyclist. That explains why, in the majority of cases, the driver cuts left across the cyclist's path, cuts him off turning right, opens the door as the cyclist come through, pulls out of the parking lot into him, and hits him while overtaking him.

The car-on-bike collision is different from the car-on-car collision in another way, too: Damages. The bike, and biker, take almost the full thrust of the g-forces. The car, and especially the car driver, walk away unscathed.

Because car-on-bike collisions are so different, the investigation, discovery and trial techniques must also be different. My next blog will discuss bike accident investigations aimed at building a New York personal injury bicycle accident case. Stay tuned!

And keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Bicycle Accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

June 20, 2014

Auburn NY Personal Injury Law Firm Honors "Hometown Heroes" Again!

doubledays.jpgunited way-thumb-300x125-69782-thumb-250x104-69783-thumb-270x112-69787.jpgFor the second year in a row, the Michaels & Smolak Auburn New York Injury Law Firm is honoring United Way of Cayuga County volunteers as "hometown heroes" at all 38 Auburn Doubledays home games this year.

Here's how it works: At each home game, one United Way volunteer is publicly recognized and honored as a "hometown hero" and receives four game tickets and food vouchers for his or her family and friends. A different volunteer is honored at each home game and the Michaels & Smolak Auburn New York Injury Law Firm funds the program, including the free tickets plus food for the "hometown heroes".

"It's a wonderful program and I am thrilled that they are generously continuing it again this year," said Carrie Collins-Fadell, Executive Director of the United Way of Cayuga County.

The unique aspect of this program is how it recognizes that volunteering is not just an individual effort, but a family, community one. In a United Way press release, Michaels & Smolak attorney Dave Kalabanka, who started and runs the program, explained, "if family and friends aren't right next to the volunteers while they are giving of their time and talents, then they are often helping them balance things at home and work, so that they can volunteer". That's why we at Michaels & Smolak Injury Law Firm are treating not only the volunteers, but their family and friends, as well."

Jan Smolak, another Michaels & Smolak partner, was also quoted in the same press release saying, "there are amazing volunteers in our community that are doing all the things - little and big - that help us remain a successful community. We are happy to recognize and celebrate them for their volunteer efforts."

Judy Lepak, a 16 year United Way volunteer, was the first honored "hometown hero" at last Friday's season opener, followed by Melissa Flask, also a United Way volunteer, who treated her father and friends to the game on Father's Day. Tim Donovan, a Human Services Coalition volunteer is off to the ballpark this weekend to receive his award. A list of all honorees will be available at the conclusion of the 2014 Auburn Doubledays' season.

So readers, if you know of any Cayuga County United Way volunteers who deserve recognition, just email me your nomination. I'll pass it along to the Cayuga County United Way.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Auburn NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

June 19, 2014

Ten Tips For Safe Motorcycle Riding In Heavy Traffic (From Your Central NY Motorcycle Accident Lawyer!)

Thumbnail image for motorcycle riders.jpgHey bikers, it's me, your Central New York motorcycle accident lawyer with some motorcycle safety tips for heavy traffic riding. That's where a lot of the accidents happen, so listen up. I'm warning you, you're going to have to multi-task out there when competing with heavy traffic. And if you don't do it right you could end up wrong. I'm talking road kill or hood ornament.

(1) Ride in open zones
Look for those gaps between vehicles and try to ride them. This will keep those big hunks of moving metal away from you and give you more room to maneuver and react.

(2) Use vehicles as shields
When you can, let those four-wheelers block for you as you pass through intersections. If some jerk blows the light or runs the stop sign, you're protected.

(3) Watch drivers' heads
Anticipate what a driver will do by watching his head. Usually, they won't switch lanes or turn without moving their head one way or the other. Learn to "head read". But never rely on the head language alone. Watch the vehicle, too.

(4) Be a "low rider"
Sometimes you can avoid a collision by accelerating rather than braking. In heavy traffic, ride a gear lower than normal so you can zip forward on a moment's notice. As a side benefit, the higher decibels you'll be emitting will make nearby motorists take notice of you. Here's the low rider theme song.

(5) Stop/slow to the side
When traffic in front of you slows or stops, don't stop or coast right behind the car in front of you. Stay a bit off to one side. This will keep you from getting rear-ended by the guy texting behind you. He'll coast right past you and bang the car in front of you instead of you. Being off to one side will also give you a front escape route in front if needed.

(6) Scan, man!
Constantly scan the scene, including in your mirrors, concentrating on what is going on around you. No daydreaming! Be a Zen monk; live completely in the present.

(7) More than one way out
There's almost always an escape route. As you look around, anticipate one. Think ahead: "If this guy on my left starts drifting toward me, I'm going to . . . ." Think of riding in heavy traffic as an elaborate chess game.

(8) Hover over the brakes
In a car, in thick traffic, you probably hover your foot over the brake pedal. The equivalent on a bike is to keep a finger on the brake lever and your right toe close to the rear brake pedal. That way, if someone suddenly cuts you off, you'll be ready to "give them the finger", that is, the finger on your brake.

(9) Be left-turn aware
When approaching an oncoming car that's signaling a left to turn across your lane of travel, be ready for him NOT to see you and to turn into your lane. Your bright lights should be on so the driver can see you (during the day), but never trust that he'll see you. Watch the car's wheels and the driver's hands on the steering wheel; if you see movement, be ready to brake, swerve or accelerate, whichever seems best for the situation. Again, hover over your brakes.

(10) Never get between a vehicle and an off-ramp
Getting between a four-wheeler and an off-ramp is like getting between a shooter and a target. Yeah, the shooter will probably see you and hold off, but what if he doesn't? Drivers wanting to exit a highway may not see you (they often don't see bikes!) just to their right, as they lunge for the ramp. The best way to avoid getting clobbered is to never, ever, get between a car and a ramp.

Thanks for taking motorcycle safety seriously. Now reward yourself by listening to the ten best motorcycle songs ever written.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Motorcycle Accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

June 18, 2014

Central and Syracuse NY Motorcycle Accident Lawyer: Seven Ways To Be Safe On Your Motorcycle

motorcycle riders.jpgI published these motorcycle safety rules in our Spring Newsletter, but it can't hurt to publish them again here on my blog site. These are general motorcycle safety suggestions. My next post will give safety tips for riding in heavy traffic.

1. PROTECT YOUR MOST IMPORTANT ORGAN!
Your brain, of course! Looking cool is important (just ask any 14-year old!) but those skull cap helmets won't protect your brain when your head gets dashed against the pavement. Wear a properly certified helmet and your chances of surviving a crash
go up dramatically.

2. BE "BLING BLING" ON WHEELS.
Wear bright clothing, a brightly colored helmet and keep that headlight on. Remember, the number one danger of being on a bike is that other motorists just don't see you. Make them see you! Your colors and your light should be SCREAMINGat them!

3. LIKE YOUR BIKE.
More than with a car, a mechanical problem with a bike can cause a serious accident. Check your oil, tires, chain and brakes. Immediately investigate any unusual noises.

4. BE AN "EASY" RIDER.
What's the rush? Enjoy the scenery. There's no race. Your chances of getting into an accident go up with every mile-per-hour you increase your speed.

5. DON'T PUT YOUR "SKIN IN THE GAME".
Wear clothing that is not only colorful, but that protects your skin. Nothing beats leather.

6. BOOZE AND BIKES? -- YIKES!
Get your high from the freedom of the road. Don't enhance it with alcohol or drugs because those things also dramatically increase your risk. And by the way, riding while you are sleepy is not much safer.

7. BE A ZEN MONK.
One of the best ways to prevent having to get peeled off the pavement is to be completely "there" on your bike. Observe everything and everyone around you. Don't let your mind wander. Be a Zen monk out there. Better yet, be a prophet. Try to anticipate trouble before it happens. Expect cars to zip out in front of you. Expect them not to see you. Don't take anyone or anything for granted.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central & Syracuse NY Motorcycle Accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

June 16, 2014

New York Personal Injury Lawyers: Be Sure To Promptly Demand That Surveillance Videos Be Preserved.

surveillance cameras.jpgA recent case published in the New York Law Journal illustrates the importance of personal injury lawyers promptly demanding that surveillance videos be preserved. Surveillance cameras are virtually everywhere now: In our streets, stores, businesses, banks, schools and traffic lights. So almost every time a new case comes into your office, your first thoughts ought to be, "might there be surveillance videos? Who might have them?"

The importance of promptly demanding that surveillance tapes be preserved is illustrated in the recent case of Rodriguez v City of New York. In that case, a child was assaulted at school. The victim's lawyer claimed the school provided negligent or insufficient supervision, thus facilitating the attack. After suit was commenced, during the deposition of one of the school employees, the employee testified that she had reviewed a surveillance video taken the day of the incident. She claimed it did not show the attack, but did show kids leaving the school.

Right after the deposition, the injured child's attorney sent out a "Notice for Discovery and Inspection" demanding a copy of the surveillance video. The School's lawyer sent a response indicating the video had been automatically taped over about 60 days after the incident and that, in any event, it had not shown the attack.

The plaintiff's lawyer moved for sanctions against the defendant, arguing that the video would have, at the very least, shown the amount of supervision going on as the students left the school.

While the judge faulted the School for having failed to preserve the video when it knew litigation was afoot, the fact that the video was destroyed BEFORE plaintiff's attorney asked that it be preserved certainly did not help plaintiff's argument that the defendant should be severely punished for having allowed the video to be over-written. The judge refused to preclude defendant's defense of the case, and instead meted out the less severe sanction of charging the jury that it could draw an "adverse inference" from the fact that the School let the video be taped over. The judge also noted that, if the video-tape had shown the attack itself, he might have issued a more severe sanction because the loss of that evidence would have more seriously prejudiced the plaintiff's case.

Moral of the story: As soon as you represent an injured plaintiff, think about whether the incident happened in an area where there might have been surveillance cameras (almost everywhere these days!) and immediately send out a letter asking that all surveillance videos be preserved.

By the way, the "adverse inference" charge to the jury will read something like this:

Plaintiff claims that defendant has failed to produce in court a surveillance tape and that defendant has failed to offer a reasonable explanation for not producing it. Defendant claims that the video did not show the incident itself, but merely showed students exiting the school, and that the video was inadvertently taped over. If you believe that defendant has not offered a reasonable explanation for having failed to preserve the video, you must decide what weight it would have had in your deliberations, if any. If you find that the video would have been important or significant in your deliberations, you may, but you are not required to, conclude that if it had been produced it would have supported plaintiff's position on the issue of lack of adequate supervision.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central and Syracuse NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

June 15, 2014

Central NY ATV Accident Lawyer Discusses New York ATV Law And Safety

atv.jpgAt Michaels & Smolak, we've seen a lot of bad ATV accidents in Central New York. From our perspective as New York ATV accident lawyers, the best cases are those in which the accident was not the injured guy's (our client's) fault. But unfortunately, many times severely injured victims of ATV crashes are themselves to blame.

The Good news about ATV accidents is that there are fewer of them than before. ATV Deaths and accidents have been going down steadily year after year since 2006. That's because ATV's are built safer, in part because of lawsuits brought by lawyers like me forcing manufacturers to make them safer. (Remember the old three-wheelers, and the tip-over accidents that plagued them? Personal injury lawyers sued them into oblivion!)

But there are still too many ATV accidents. This blog post is aimed at helping ATV users, and their parents, avoid accidents (and tickets!).

First, let's look at New York ATV law, which is really an embodiment of good safety rules:

• No passengers allowed unless the ATV is designed for two (Most ATV's are designed to carry only one person because you need to have "interactive driving", that is, the driver must be able to shift his weight freely in all directions to properly maintain control around curves, etc.)
• Helmets are NOT optional.
• All ATVs must be registered, with renewals once a year, with the Department of Motor Vehicles.
• No ATV can be used on highways except to cross them.
• No one under 10 may ride or operate an ATV.
• Operators between 10 and 15 may ride an ATV only if they are on a parent's land and supervised by a parent, or on a parent's land and have a safety training certificate.
• A lighted headlight and taillight are required from ½ hour after sunset to ½ hour before sunrise.

Additionally, we strongly recommend you:
• get your kid some ATV training (statistics show that training reduces accident risk big time!)
• don't ride on paved roads (ATV's are tough to control on paved roads because of how they are made, and collisions with cars are deadly.)
• Make sure kids under 16 are on age-appropriate ATV's.

Enjoy your ATV, but . . .

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY ATV Accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169


June 13, 2014

"Tractor Trailer Accidents Are Deadly - Just Ask Tracy Morgan", Syracuse Truck Accident Lawyer Explains

tractor trailer.jpgI pulled some all-nighters in college. Who didn't? But that was behind a desk. I have never tried one behind a wheel, nor do I intend to, thank you.

Not everyone can say that. A Walmart tractor trailer driver, Kevin Roper, might not be able to say it. Last Saturday, while driving down the New Jersey Turnpike, he rear-ended a van carrying, among others, the comedian Tracy Morgan (Saturday Night Live, 30 Rock). The New Jersey police assure us (we don't know how they know) that Roper had not slept in 24 hours. Federal law limits tractor trailer drivers to 14 hours shifts, with only 11 of those behind the wheel.

Roper's sleep-deprived accident caused a pile up. Several were injured and one victim was killed. Morgan himself is in critical condition. There have been some reports he may lose a leg.

When bad things happen to celebrities, problems that once went unnoticed under the radar suddenly get the spotlight. For example, when Angela Jolie underwent a preventive double mastectomy after learning she had an 87% risk of developing breast cancer due to a defective BRCA1 gene, we all learned about genetic testing for this anomaly. This might help some of us avoid breast cancer.

I am hoping this high profile truck accident will shine a national spot light on tractor trailer accidents. It's a growing problem. According to the National Transportation Safety Board, the number of fatal large truck crashes has been steadily rising. In 2012, there were about 333,000 large truck crashes, which resulted in 3,921 deaths and more than 104,000 injuries. Of those killed, about 73 percent were occupants of vehicles other than the large truck.

My hopes have some basis in fact. The National Transportation Safety Board, a Federal agency charged with roadway safety, has launched a team of investigators to New Jersey accident scene. They are conducting an investigation to determine how to prevent similar tragedies. Maybe they will. Let's hope so.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central & Syracuse NY Truck Accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169


June 12, 2014

Judge Beating Up Lawyer In Court Teaches Us All A Lesson About Our Justice System

boxing lawyer.jpgMany moons ago, before we humans invented a civil justice system, we resolved our disputes by brute force. Might made right. In the words of Thomas Hobbes, life was "nasty, brutish and short."

Then trials and courtrooms evolved. We put down our fists and swords and let judges and juries hear our stories and resolve our disputes.

We've come a long way, baby.

Well, not all of us.

I've been is some pretty hot courtroom battles, and I've seen some angry lawyers and judges, but in my many years in the courtroom I've never seen a lawyer or judge come to fist-a-cuffs. But that's what happened in a Brevard County Courtroom in Florida the other day.

You can see what happened by viewing the video imbedded below. Quick overview: The judge apparently gets angry with the public defender because he won't waive his client's "speedy trial" rights. The Judge angrily tells him, "if I had a rock I would throw it at you". Then all hell breaks loose. The Judge tells the lawyer, who has refused his instruction to sit down, that "if you want to fight let's go out back and I'll just beat your ass." The lawyer then eagerly heads to the back corridor. We then hear the judge yelling, "do you want to fuck with me", and some noise that appears to be blows landing.

Now here's the most disturbing part of the video: The judge comes back into the courtroom, takes his seat, the lawyer never reappears, and the courtroom erupts in applause. Apparently, the public wanted to congratulate the judge for beating the lawyer up.


Moral of the story: Our justice system is a superficial coat of civility which conceals the brutish animal lurking underneath, the one that prefers to take justice into its own hands, and the one that applauds those who do.

In the end, though, civility prevails. The pugilistic Judge has been forced to take a leave of absence for anger management. He will probably lose his job. In the end, justice prevails.

Keep safe (and Civil!)

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

June 11, 2014

Central NY Medical Malpractice Lawyer Discusses Seattle Doc Suspended for Sexting During Surgeries

doctor bad.jpgSexting during surgery? Ya godda be kidding . . .!

I blogged a few weeks ago about doctors who got into trouble for texting or surfing the web while attending to patients, even during surgery. That was incredible enough, but now a Seattle surgeon has been caught, and suspended, for SEXTING during surgery. The anesthesiologist sent 64 sex-texts during seven surgeries, mostly C-sextions - oops, I meant "sections".

You might ask yourself, so, what's the difference between SEXTING and TEXTING? Isn't the distraction the same? Well, no, in my humble opinion, it's not. Sexting is even more distracting (not that I would know from personal experience of course) because it involves both brains (guys, you know what I mean). Sexual arousal simply has to count as an additional distraction, above and beyond the mere mental distraction of texting, at least in my book.

Do I have any science to back me up? No. But I'll bet it wouldn't be difficult to find volunteers to participate in such an experiment. In fact, I know of a Seattle anesthesiologist who is currently unemployed and would thus have plenty of time on his hands to take part in this important research . . .

If any of my readers ever find out they were the victims of a sexting surgeon, be sure to call me. I'll send him this text: "Dear Doctor: Sorry for interrupting your sexting. We are going to sue your pants off. That is, if they are not off already."

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Medical Malpractice Lawyers
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169