January 30, 2015

Are Winter Car Accidents The Drivers' Or God's Fault? Central NY Car Accident Lawyer Explains.

icyroad.jpgI just read about a spectacular rollover crash on Interstate 690 in Geddes, NY (near Syracuse) a few hours ago. Fortunately, there were only minor injuries.

I don't usually blog about local accidents, but I did want to make folks aware that - even though the heavy snow we have been getting is partially to blame for this kind of car accident, New York car accident lawyers routinely bring these kinds of claims successfully against the drivers of the out-of-control vehicles. Yes, insurance defense lawyers often raise the "act of God" defense to weather related accidents. But that defense usually works only where the driver is totally blameless, which is hardly ever the case.

Always remember that you, as the driver, have an absolute duty to your passengers and to other motorists or pedestrians to KEEP CONTROL OF YOUR VEHICLE. Usually, "the road was real icy" or "I hit a snowy patch" are not valid excuses in Court. The only exception usually is where there was no ice or snow anywhere on the roadway before you hit a patch. If you already know there is snow and ice on some areas of the roadway, you have a duty to drive at a speed and in a manner that allows you to control your car even given those conditions.

Almost nothing is harder to live with than causing the death of a loved one - your passenger - because you did not drive at a prudent speed for the conditions. Please drive carefully!

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 Auto Accident Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

If you are the injured passenger of such a vehicle, do not hesitate to call me for more information.

January 29, 2015

Emoticons Can Be Important Evidence! CNY Personal Injury Lawyer Explains.

th.jpgA spurned man was recently on trial for posting threats against his ex on FACEBOOK. His defense? The "threats" were just a joke, and she should have known it. To support this claim, he pointed to certain emoticons (a facial glyph, used especially in e-mail and online posts, indicating an emotion or attitude) that accompanied the "threats". For example, there was one of a face with a tongue sticking out. This emoticon meant the "threats" were in jest, he claimed.

The prosecutor wanted the threatening posts "read" to the jury, but the man's lawyer - wisely - wanted to bar any open court "reading" of the posts. He wanted the jury to only SEE the posts so they could take into account emoticons. The man's lawyer argued that it would be unfair to merely read in court the posts because the accompanying emoticons could not be "read" aloud. The jury would hear the "threat" without "hearing" the accompanying (and mitigating) emoticon. The posts had to be SHOWN and only SHOWN to the jury!

The lawyer had a point. Certain forms of writing -- like repeated question marks ("???"), distorted words (like "soooo") and emoticons -- can't be reliably or adequately conveyed orally. To do so distorts the meaning.

How did the judge rule? The Judge allowed the posts to be read in open court, but also instructed the jury that the messages had not been communicated that way to the ex. The ex, like everyone else in the FACEBOOK world, would have SEEN the postings with the accompanying emoticons. "The jury should read them," the judge said. "They are meant to be read. The jury should note the emoticons."

Think of how an emoticon can change the meaning of a sentence. "I'm going to kill you!" followed by a wink, tongue out, or a smiley is not same message as a bare "I'm going to kill you".

Fellow lawyers, if you have a case where online postings or emails or texts are coming into evidence, and they were accompanied by emoticons, and the emoticons change the tenor, tone, or the meaning of the post, fight like hell to have the post SHOWN to the jury on a big screen, or at least passed onto the jury at the same time or shortly after they are read aloud in court.

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


January 26, 2015

If You Want To Bring A New York Wrongful Conviction Claim You Need Clean Hands

jail despair.jpgIf you've been wrongfully convicted of a crime, and you want to be compensated for it, you need to explore several legal avenues of redress. If there was some government wrongdoing - on behalf of the police, prosecutor, or judge -- you may be able to bring a case based on "malicious prosecution" or based on deprivation of civil rights (42 U.S.C. 1983). But what if there really was no "wrongdoing" on the part of the prosecutor, judge or police? What if you were simply convicted - for example - based on mistaken identity?

That's where Court of Claims Act §8-b can be a lifesaver. Under this very special Statute, you don't have to prove anyone did anything wrong. All you have to prove is that you were convicted for a crime you did not commit, that the conviction was duly vacated, and that (by clear and convincing evidence) you were not guilty of that crime nor of any of the offenses for which you was charged.

One last thing: You must show that you "did not by [your] own conduct cause or bring about [your] conviction" (Court of Claims Act §8-b[5]). Why would you have done anything to bring about your own conviction? The most common way is if you were trying to protect someone else. Did you help cover up evidence that your spouse or friend did the crime? That might have done you in! Did you help bring about your own conviction by giving a non-coerced confession? Did you attempt to induce a witness to give false testimony, or attempt to suppress testimony, or testify untruthfully in court? If you did, a Court might find your own conduct caused your own wrongful conviction.

Bottom line: If you want to bring a wrongful conviction claim against the State of New York based on Court of Claims Act § 8, you had better have clean hands.

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

January 25, 2015

Recent Syracuse NY Brain Injury Trial Result Demonstrates Diffuculty Of Brain Injury Cases for NY Brain Injury Lawyers

brain.jpgI tried a traumatic brain injury case about a year and a half ago in Syracuse, New York. Although I got a "verdict", it was not the one I wanted. The jury did not think my client was very hurt, and thus awarded him a lot less than we believe he deserved and needed.

Misery loves company. Traumatic brain injury cases are statistically among the toughest to win for a plaintiff's lawyer, as a very recent - and well reported -- Syracuse New York brain injury verdict bears out.

Before I go into the case, why is this kind of case so tough? The symptoms of mild traumatic brain injury are often "invisible" to a jury: headaches, cognitive slowdown, depression, blurred vision, memory or concentration problems, mood swings, confusion, and balance issues. Nothing you can show the jury on an MRI slide.

Worse, the injured plaintiff usually looks and talks "normal". It is easy for a jury to conclude -- especially in this post-MacDonald's case environment - that the plaintiff is "faking" or at least exaggerating.

The press was all over the recent Syracuse traumatic brain injury trial because it involved a famous entertainer - Rick Springfield. A fan at his 2004 NYS Fair performance - 45-year old Vick Calcagno -- claimed that, while dancing on stage, he had fallen on her, knocked her down, and caused her to suffer a traumatic brain injury. She claimed that Springfield had been "careless and negligent" during the course of his concert by "performing, hopping and/or jumping" on chairs and benches.

After a week of testimony and only about an hour of deliberations on a recent Friday morning in the Courtroom of Judge Anthony Paris in Syracuse, a jury determined in only one hour that the singer and actor had not caused any brain injuries - or any injuries at all.

Calcagno's credibility quickly and repeatedly came under fire. Although this is typical in brain injury cases, this case presented even greater hurdles for the plaintiff. She had no witnesses to back up her story that Springfield had fallen on her. There were no videos showing what happened. She conceded that she did not leave the concert or seek medical attention at the time. The defense pointed out that, although she had emailed the NYS Fair about the incident, she did not mention specific injuries but rather asked only for Springfield's contact information.

She also attended a Cyndi Lauper concert a week after the Springfield concert, which probably convinced the jury she could not have suffered a brain injury at all (apparently the jury did not think -- as I do -- that wanting to see a Cyndi Lauper concert at all is indicative of a brain injury).

Although plaintiff's lawyer tried to explain all these seeming contradictions away, he failed. This case was a perfect storm for a brain injury lawyer. No good proof of what happened, post-accident behavior that could lead a jury to conclude the plaintiff was not very hurt - if at all, and only "invisible" symptoms that could not be clearly demonstrated on the stand.

There are of course ways to win traumatic brain injury cases, and each case turns on its own facts. I have attended seminars on how to try and win these cases, but they can -- and often are -- lost. If you have a traumatic brain injury, be sure to hire an experienced brain injury attorney so that you have the best chance at trial.

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 and Syracuse Brain Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

January 18, 2015

Do Xarelto Benefits Outweigh The Risks?

xarelto.jpgA couple of years ago, I developed arterial fibrillation, more commonly known as "afib", which is not uncommon with people 50 and older. My dad had it from the time he was 50 until he died at age 86. It's not life threatening, but does raise the risk of blood clots, which can lead to strokes.

The treatment? Blood thinners. "Thin" blood can't clot so easily, and thus prevents stokes. My dad used the blood thinner of his era - Coumadin (warfarin) - for 35 years. The problem with Coumadin was it was not user friendly. Dosage depended on diet, age, and other medications being taken. With Coumadin, patients had to get blood tests monthly or more often and watch their intake of vitamin K, which could lessen the effectiveness of warfarin.

Coumadin - with all those hassles - is now considered "old school". I am using a new generation blood thinner called "Xarelto" (rivaroxaban). The advantage of Xarelto over Coumadin is that one size fits all. Almost anyone can take 20 miligrams and be protected from blood clotting, and thus protected from strokes. No need for monthly blood tests. Just pop the pill once a day and your good.

Or are you? The problem with Xarelto is that there is no ''antidote'' if you start to bleed excessively. Vitamin K acts as an antidote to Coumadin if you start bleeding excessively, but it has no effect on Xarelto.

So, because I am on Xarelto, if I develop serious bleeding, there may be little the doctors will be able to do to stymie it. Death may follow.

I have nevertheless made the decision to continue to use Xarelto rather than deal with the hassle of Coumadin and its monthly blood tests. You might say I have "assumed the risks" of Xarelto in order to avoid the hassles of Coumadin.

When I watch TV during my YMCA workouts, I see many ads on TV for Xarelto followed shortly by ads like this one:

It's kind of funny seeing ads for Xarelto back-to-back with ads inviting those harmed by it to sue.

Xarelto lawsuits exist because of products liability law, which essentially says that a product is "defective" if it is "unreasonably dangerous". Is Xarelto unreasonably dangerous? Our courts will have to test that. But for me - unless there are hidden risks I am unaware of - the small (I hope) risk of unstoppable bleeding is outweighed by the convenience of not having to get my blood tested once a month. Too busy!

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 Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

January 10, 2015

What Do Honda Motors And Foxes Have In Common? CNY Car Accident Lawyer explains.

Honda.jpgMaking big auto companies self-report to the government fatal accidents and injuries caused by their vehicles is kind of like having the fox report to the farmer how many hens he ate. The fox is likely to under-report.

Same with Honda. And as a result, the "farmer" (the National Highway Traffic Safety Administration -- our top federal auto safety agency) has fined Honda a record $70 million for its gross under-reporting.

The penalty is double the one slapped on General Motors just last year for being slow to identify safety problems.

Honda ran afoul of the law by failing to report hundreds of death and injury claims as well as certain warranty and other claims. This mandatory self-reporting helps regulators identify safety defects, which in turn helps them decide on recalls to save our lives. Honda's lack of reporting put its customers' lives on the line.

But who cares? Big business is all about making money, not saving lives, right? When the fox is hungry, what difference do a few hens make?

Will Honda continue to under-report fatalities, injuries and warranty claims? Or will the fine slapped on them - the largest ever - act as a deterrent? In my opinion, not likely. What's a measly $70,000,000 to a multi-billion dollar global company like Honda? A drop in the bucket. A slap on the wrist. Choose your metaphor.

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 Car Accident Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293


January 9, 2015

How To Avoid A DWI Arrest At A Sobriety Checkpoint: CNY Injury Lawyer Explains (Kind of)

DUI flyer.jpgI don't do criminal law. I'm New York personal injury lawyer. But I came across an interesting article about a controversial way to avoid getting "busted" at a sobriety checkpoint. This is criminal defense lawyer stuff. I am not recommending this, or even saying I agree with it. But I just find the technique interesting and wanted to pass it on to my readers.

Here's how it works: As you approach a sobriety checkpoint (a/k/a drunk trap), put your license, registration, proof of insurance and a "note" like the one depicted above in a plastic baggie attached to the exterior of your driver's side window and then roll up the window as you approach the checkpoint.

Then just remember to shut up. Don't answer any questions. Don't talk. The officer outside won't be able to say he smelled any odor of alcohol from behind your closed window, nor will he be able to say he heard you slur words (if you keep quiet). The cop will thus have no "probably cause" to arrest you.

Worried he might get pissed off at your sealed-in silence? You have the right to remain silent! What if he asks you to open your door or window? You have a right to keep them locked and closed! You have a Fourth Amendment right against unreasonable searches!

Unless the officer can say he saw you driving erratically, or you happen to have a bottle Jack Daniels in your hand, he won't be able to find probable cause to arrest you. Or to make you open the door to search your car.

A video of this technique being tested by a brave Florida driver this past New Year's Eve has gone viral on the internet. How did the cop react? He waved the car on! Will you be so lucky? What if the cop challenges you? What if he threatens to arrest you for failing to obey his order to open your window? In Florida, where this technique has emerged, certain sheriffs have threatened to arrest motorists for "obstruction"- if they try the technique. Yet Constitutional experts say the technique is probably perfectly legal.

I am asking my brave New York readers to drive into a sobriety check point (sober please!), and try this technique. Let me know if it works. Film it for me. Remember, this is not legal advice. In fact, it might be illegal advice. But I'm dying to know how it turns out for you. And if you call me from jail, remember, I am not a criminal defense lawyer!

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 & Central NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

January 3, 2015

Tort Reform Gives G.M. (And Other Corporations) A Free Pass To Kill

car sale lot.jpgA New York Times article recently highlighted the consequence of many state's "tort deform reform" laws: Victims of devastating corporate safety lapses can't find a lawyer willing to represent them.

The article gives several examples of how tort deform reform is killing cases where corporate negligence has killed people. For example, a defective ignition switch caused a Wisconsin victim's car ignition to suddenly power off, causing him to lose control of the car, hit a tree, and die. The car ignition failure also caused the air bag system to fail. G.M. had received many reports of similar incidents involving the defective ignition switch before this victim died. In fact, at least 42 people had died under similar circumstances.

Yet when the family went looking for a lawyer for what they thought would be a "slam dunk" case, they got the same response from every lawyer they turned to: None were willing to take the case because of a Wisconsin "tort reform" law limiting recovery "for loss of society" to $350,000. Because of the extreme expense - estimated at $300,000 -- of suing a big corporation like G.M. for a complicated mechanical defect, it just did not make economic sense for a law firm to take the case on.

Do the math yourself: Would you spend $300,000 to maybe, if you win, take in a maximum of $350,000, which would net $50,000, of which you would have to give 2/3 to the client? That leaves you with about $17,000 for three of four years of litigation and at least 1,700 hours of attorney work, or at most $100 an hour, and that's if you win. And the $100 does not go in your pocket. You've got paralegals, secretaries, rent, etc. to pay. And don't forget you could lose the case and get nothing at all for your trouble.

Tort deform reform is killing many important lawsuits, like the one described above, before they can get off the ground. In the past, such lawsuits have exposed corporate cover-ups, greed, and the dangers inherent in corporate products. Think of all we know about the dangers of tobacco -- and the coverup within the industry -- that came to light only because of the discovery demands made on those corporations by cancer victims' lawyers.

Because of tort reform, this kind of important information may never see the light of day. Tort lawsuits against big corporate wrongdoers shed light on their dangerous products and practices. Tort reform turns off the light. Who will be left in the dark? You will. Your family will. We all will. In the dark, without a lawyer, with no road to justice. Welcome to "tort deform reform".

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 & Central NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

December 29, 2014

Did Shakespeare Hate Lawyers? Central NY Injury Lawyer Explains.

wshakesp.jpgAs long as there are lawyers, there will be lawyer jokes and lawyer insults. You can probably think of three lawyer jokes off the top of your head. I know I can. (Don't worry - I won't tell any in this blog post!)

But was William Shakespeare among the insult-hurling lawyer joke makers? Was the best writer of the English language among the mud-slinging anti-lawyer crowd? I ask this because of the famous line from one of his plays where one of his characters says, "'the first thing we do, let's kill all the lawyers''? This phrase is often bandied about as proof that the great bard hated us lawyers. And if Shakespeare - the greatest writer in the English language - hated us, shouldn't all reasonable but less skilled writers and thinkers hate us as well?

In my opinion, and the opinion of many Shakespeare scholars, Shakespeare did not despise lawyers! Au contraire, he loved us. Shakespeare's famous "kill all the lawyers" line was uttered by Dick the Butcher in ''Henry VI,'' Part II, act IV, Scene II, Line 73. Dick the Butcher followed rebel Jack Cade who thought that if he got rid of law and order, he could become king. Thus, when Shakespeare has Dick say, "the first thing we do (to take over government), let's kill all the lawyers", he is really giving a kind of backhanded compliment to lawyers. He is saying, "if you want to illegally take power and set up a totalitarian regime, you need to first get rid of lawyers who will stand in your way".

Yet this quote from Shakespeare has instead been used by many to slam lawyers. It is used to insinuate that lawyers are an annoying and drab lot who get in the way of the legitimate pursuits of mankind. Nonsense! In fact, Shakespeare is saying "thank God for lawyers, who are the guarantors of the rule of law and order and who protect us against mob or totalitarian rule".

I love Shakespeare and I am proud that he loved my kind. I like to think that if he needed a New York personal injury lawyer, he would come a-knocking on my door. And if he did, I know exactly what I would say to him: "Hey Will, the first thing we do, let's kill all those insurance defense lawyers - in court!''

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 Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

December 27, 2014

Pre-Death Terror Claims Can Be Worth A Lot In New York Wrongful Death Cases

flowerongrave.jpgNew York, unlike many other States, does not allow the family of a wrongful death victim to recover for emotional grief. All they can really recover is "economic loss" (medical and funeral bills, loss of financial support, etc.) and compensation for the decedent's "conscious pain and suffering". In many cases, however, the death is so quick there is no real "pain and suffering", only a short period of fear or anxiety about the impending death.

No matter how short, however, any New York personal injury lawyer worth his or her salt won't underestimate the value of pre-death terror compensation. In terms of dollar-per-second of suffering, no claim is worth more. Why? Because the jury wants to do something for the family and, if the death came on quickly, there is often no other way to compensate the family.

For example, let's say your loved one was hit head on my a negligent truck driver who crossed over into her lane. The force of the collision instantly killed her. The jury thus won't be able to give you - the family - anything for her "pain and suffering" after the collision. But it is pretty obvious that, at least for a few seconds before impact, your loved one "saw death coming" and was probably very fearful of what was about to transpire. In New York, those few seconds of anguish are compensable as "pre-impact terror". Most juries will make those few seconds of anguish very expensive for the negligent truck driver's insurance.

This is true not only for collision cases, but for any wrongful death case in which the victim had some moments to fear death. When there is no other pain and suffering provable, juries tend to be very generous with this kind of claim. They want to give the family something. Since the law does not allow for much else in New York, this is a good way for them to do it.

For example, in Lee v New York Hosp Queens, 35 Misc.3d 1225 (Queens Co. 2012) a medical malpractice victim suffocated and choked to death during intubation while fully conscious over the course of 12 minutes. The jury awarded the family $5,000,000 for that 12 minutes! (Note: the Court later lowered it to $3,750,000).

In Rivera v. City of New York (80 AD3d 595 [2nd Dept 2011] ) an asthmatic 10-year-old decedent died from a tension pneumothorax as a result of four hours of several intubations performed without administering pain medication or paralytics. The jury's verdict awarding his family $3,500,000 was upheld on appeal.

In Hackert v First Alert, Inc.,006 WL 2335230 (NDNY 2006) two family members died in a house fire, one suffering for 3 minutes, the other for 6 minutes, before dying of smoke inhalation and severe burns. Their body positions indicated they had tried to escape. The jury awarded the families $3 million each (although the appellate court reduced the amounts to $1 million for one, and $2 million for the other).

In Maracallo v. Bd of Education, 2 Misc.3d 703 (Bronx Co. Sup Ct 2003) a 14-year old drown in a wave pool. The jury awarded her family $6,000,000 for six minutes of conscious pain and suffering (drowning), which was reduced by the trial court to $2,000,000.

Fellow New York wrongful death case lawyers: Never underestimate the compensation value of pre-death terror!

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 & Central NY Wrongful Death Lawyers
Michaels & Smolak, P.C.

1-315-253-3293


December 24, 2014

Funniest / Tackiest Lawyer Commercials Of The Year

Well it's that time of year again. The end. We know you have been waiting breathlessly for our compilation of the funniest / tackiest lawyer commercials of the Year. You need wait no longer. Just click the links!:


And here are some oldies but goodies:


Funny Lawyer TV Commercial by funnycommercial


And don't forget to look up at billboards as you drive along the nation's highways:

http://www.barnorama.com/funny-lawyer-billboards/

Happy New Year everyone!

December 21, 2014

All Four Lawyers At Michaels & Smolak Now Named "Best Lawyers In America".

index.png super.jpg The lawyers at Michaels & Smolak must have been good this year because Santa rewarded them with an early Christmas gift: Jan Smolak, David Kalabanka and Mike Bersani were all inducted into the honorary society, "Best Lawyers in America", in the category of New York personal injury lawyers. (Our senior lawyer, Lee Michaels, had already been admitted years ago.) Now all four lawyers at Michaels & Smolak are "Best Lawyers".

According to the publishers of "Best Lawyers in America", inclusion in Best Lawyers is "based entirely on peer-review and employs a sophisticated, conscientious, rational, and transparent survey process designed to elicit meaningful and substantive evaluations of the quality of legal services." Best Lawyers asks voters the question: "If you were unable to take a case yourself, how likely would you be to refer it to this nominee?"

This is another feather in the cap of the Firm. All lawyers in the firm were already listed in a similar publication, "Super Lawyers", since that publication's inception. According to Super Lawyers Magazine, the title "Super Lawyer" is given only to those attorneys who are considered to be among the top 5% of all lawyers in their field the State of New York.

Finally, once again this year Michaels & Smolak was listed as a top firm in "US News & World Report" for 2015.

Bottom line: We're damn good New York personal injury and malpractice lawyers! But we couldn't have gotten hear without a great staff, loyal referring attorneys, and terrific clients who make us the best we can be. As this year comes to a close, the Firm gives thanks to our big "family" of clients, referring attorneys and staff. Merry Christmas everyone!

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 & Central NY Personal Injury & Medical Malpractice Lawyers

Michaels & Smolak, P.C.

1-315-253-3293

best.jpg

December 6, 2014

New New York Rule Requires Lawyers to Redact or Omit Identifying Information From Court-Filed Papers.

slience.jpgNew York State has a new rule -- §202.5[e] of the Uniform Civil Rules of the Supreme and County Courts -- requiring attorneys to omit or redact "confidential personal information" from court-filed papers. The "confidential personal information" includes social security numbers (except the last four digits), the dates of birth (except for the year), the full name of a minor (except for the minor's initials), and financial account numbers (except the last four digits). Compliance with the new rule is voluntary until Feb. 28, 2015 at which point it becomes mandatory.

Why this new rule? Identity theft, a growing problem. Identity thieves might conceivable go to the Courthouse or County Clerk's office to peruse publicly available litigation papers in search of enough personal identifying information to get a hold of bank accounts, etc. Further, court-filed papers are soon going online, which will make identity theft even easier.

This new rule makes perfect sense. New York personal injury lawyers like me often file in courthouses and county clerk offices "motions" attaching "pleadings" and deposition transcripts, which traditionally contained private identifying information (client's date of birth, ss number, etc). At Michaels & Smolak we have been proactive in protecting our clients' personal information. For several years now we have refused to disclose our clients' social security numbers in any "pleadings" or other publicly filed documents. When we are required to disclose such information to our opponents, we do so "off the record" so that the information won't inadvertently show up in any public filings.

Attorneys will from time to time inadvertently violate this new rule. When that happens, is the lawyer punished? The rule doesn't say. But bad consequences - including a lawsuit against the lawyer - are likely to result if an identity thief lifts a clients' personal information from court papers filed by their attorney, and then empties the clients' bank accounts. Cautious lawyers thus have a personal incentive to comply with the rule.

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 Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

December 4, 2014

Legal Malpractice Juries -- Put On Your Black Robes! CNY / Syracuse Legal Malpractice Lawyer Explains

judge.jpg.jpgLegal malpractice trials, which have always been kind of weird, just got weirder. In a case of first impression, the New York Court of Appeals in Grace v. Law recently held that the failure of a plaintiff to appeal an underlying adverse ruling does not bar a subsequent legal malpractice claim, unless the attorney-defendant can prove that plaintiff would have been "likely to succeed" in his appeal.

Say what? What does all this mean?

Let's say your lawyer messed up your New York personal injury trial. He forgot to call a key witness. The jury found against you. You sue him. His defense? "Hey, maybe I should have called that witness, but if you had only appealed the trial result to the appellate court, maybe you would have won. We'll never know because you never appealed. Therefore I win because you can't prove the appellate court wouldn't have given you a victory."

Of course your argument would be, "wait a minute. I didn't appeal because the appeal was a loser. Why should I waste my time and money on appeal that cannot succeed? I don't have to appeal to be able to sue you for the screw up you made that cost me my case with the jury".

So who's right? The Court of Appeals now says you are both partially right. You are not barred from suing the lawyer just because you didn't appeal the bad result. But the lawyer can defeat your claim if he convinces a new jury that you would "likely" (not absolutely positively, but only "likely") have won on appeal if you had just bothered to take an appeal.

This puts the new jury - the one that will hear the malpractice case - in the weird position of having to guess what an appellate court would have done with the first jury's verdict. How do you ask a jury to figure that out? The jury is comprised of regular folks -- not lawyers or judges -- and they are being asked to divine what five black-robed and judicially trained jurists would have done.

Now you know why I said that legal malpractice trials just got weirder.

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 Legal Malpractice Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

November 29, 2014

Let Me Tell You A Story . . . .

tell story.jpgA good personal injury trial lawyer is a good story teller. That's what it takes to win a trial. A trial is really about competing stories. Whichever side tells the best, most compelling, and most believable story, wins.

That's why a good personal injury trial attorney shuns boring power point presentations with bullet points. Charts, graphs and bullet points are ok to a certain extent. But they had better be quick, colorful, and add to the story.

Why are stories so powerful at persuading juries? That's just the way us humans evolved. Ever since we learned to speak we have been sitting around the fire telling stories that explain everything: The beginning of the universe, the cause of thunder, the creation of us humans. We are hard-wired that way. Our brains "perk up" when we start to hear a story. We pay attention. We get emotionally involved.

If your lawyer thinks a jury trial is just about the facts or the law of your case, then you should probably switch lawyers. Ask your lawyer, "what story are you going to tell at trial"? If his face becomes blank, fire him!

A winning case is always about a winning story. A personal injury lawyer's job is to find the story of the case and breathe life into it at trial.

For example, a slip and fall in a busy store entrance way is not about, "the store owner breaching his duty of care to the customer by failing to salt". The story is about human greed. It's about an owner who wanted to cut costs, and thus pocket more money, at the expense of his customers' safety. It's also about a hard-working family provider who, because of the defendant's greed, can no longer provide for his loved ones.

A good trial lawyer starts looking for the "story" in his case from the time he opens the file. Before trial, he boils the story down to a "theme" - a strong one liner he can repeat over and over again at trial. It's his "hook" for the jury's attention. For example, "if it doesn't fit, you must acquit". Or, in our slip and fall case, "the store owner put his profits above our safety".

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 Lawyers
Michaels & Smolak, P.C.

1-315-253-3293