November 2010 Archives

November 30, 2010

Black Friday Shopper Trampled -- Central NY Personal Injury Attorney Explains Liability

crowd.jpgAs a Central and Syracuse New York accident lawyer, I had been expecting a story like this since last Friday. Why? Because last Friday was "black" Friday. Read on.

Today news sources report that a western New York man was injured, though thankfully not seriously, when he found himself on the bottom of a pile of bargain-crazed shoppers on Black Friday. The deal-hunters had stormed an entrance into a Buffalo Target store at its 4:00 a.m. opening

Target has promised to improve its "Black Friday crowd management plan" for next year.

And it had better. Black Friday can be dangerous. And much of the danger is created by stores not taking proper precautions. A New York store accident lawyer can hold them liable for injuries that result from this lack of care.

Although many retailers hire extra help to handle the massive onslaught of bargain-seekers, many do not do enough to manage the crowds. On Black Friday, stores need a crowd control plan, crowd control experts, and trained crowd control staff.

But paying for all that would cut into their huge black Friday profits! Boy, that sounds a lot like the closing argument I would give in a New York store-crowd accident lawsuit.

But it's no joking matter. Just two Black-Fridays ago, a Walmart employee was trampled to death in New York.

Under New York store liability law, New York Store owners have a duty to keep their premises reasonably safe. So if they are advertising "amazing deals" to draw excited masses of shoppers into their stores, they are legally required to provide reasonably safety precautions to prevent crowd-produced injuries.

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


November 29, 2010

Central and Syracuse NY Personal Injury Lawyer Explains Why The Contingency Fee Makes For a Fairer Civil Justice System.

lawyer & client.jpgAs a Central New York and Syracuse personal injury lawyer, I make my living, in large part, on contingency fees. This means that if I don't win, I don't get paid. If I do win, or settle for a sum of money, I get roughly a third of the money, or less, depending on the type of case.

New York personal injury lawyer contingency fees (as well as such contingency fees everywhere) have sometimes sparked controversy. In many countries they are not even allowed. For example, although our U.S. legal system has its roots in England, attorney contingency fees are not allowed over there. Here's my (kind of) historic rendering of why they are allowed here but not there.

From the beginning of our new democratic nation, our founders believed courthouses should be accessable by the "people" to seek justice. This was not the case in the "old world". There, civil courts were by and large places where the rich and their companies advanced their civil money claims, and where poor people appeared only to be evicted or sent to debtor jail.

Why didn't low and modest-income earners use the courts to press their own civil money claims? The problem was, of course, that they could not afford lawyers. To add insult to injury, England had (and still has) a "winner takes all" rule. The loser pays the winner's attorneys' fees (as well as his own attorneys' fees). This creates an overwhelming disincentive for a poor or modest-income earner to bring a claim, even if it is a perfectly valid one.

Enter the U.S. system of civil justice. Early Americans rejected England's "winner take all" rule. Each side would be responsible for its own legal fees. More important, the contingency fee was born. Poor and modest income folks who had a valid personal injury or other valuable claim didn't have to pay their lawyer ANY money as long as they could convince the lawyer to take a percentage of any winnings. This was, of course, risky for the lawyer. If the case was lost, he would have worked very hard for nothing. But if the case looked promising, a daring lawyer would take the plunge.

As a result of the contingency fee system, many New York personal injury victims, who would otherwise be denied access to justice because they cannot afford to pay an attorney, can use our courts to seek compensation for wrongs they had suffered.

But for the contingency fee, only about 3% of this Syracuse New York personal injury lawyer's clients could ever get to the courthouse door. That's about how many could afford to pay my hourly fee rate. Most my clients are of modest means. And being severely injured often cripples their earning capacity, so that even the fairly well off sometimes could not afford me.

So let's hear it for the good'ol American contingency fee (insert "God bless America" music here). The contingency fee has served, and continues to serve, its purpose. It opens the courthouse doors to "the people", regardless of wealth, here in New York and around the country. It is one of the most democratic of our cherished institutions. Long live the contingency fee!

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

November 28, 2010

Yates County Jail Suicide May Be Basis Of New York Wrongful Death Lawsuit

jail despair.jpgA small, inconspicuous article caught my eye in the Geneva Finger Lakes times today. It was titled, "Teen Inmate Found Hanging in Jail Cell" and described how a 17-year old at the Yates County Jail in Penn Yan had apparently hung himself Friday evening by tying his bed sheet to his jail bars.

New York prison suicide lawyers know that suicides like this are usually preventable.

The kid was only 17-years old! Think of his poor family! Unlike prisons, which house convicted criminals, county jails hold many pre-trial detainees who may have committed no crime at all. The ones who are jailed there post-trial are usually guilty of lesser crimes. This young prisoner may have been just a bone-headed kid who temporarily ended up on the wrong-side of the law, and who would have eventually become a good, upstanding citizen.

Here are some facts that might surprise most my readers: (1) the family of a jailhouse suicide victim has a potential New York wrongful death claim against the jail authorities for having failed to prevent the suicide and (2) prison suicide is not at all uncommon, especially in small jails.

As for number (1), New York prison authorities have a legal duty to prevent a prison suicide when they know or should know that a prisoner is prone to suicide. The prison guards must use reasonable care to assure that such a prisoner does not harm himself. Therefore, proper and thorough screening of a newly admitted inmate is essential in determining suicide risk, and if there is a risk, proper monitoring and supervision is required.

Unfortunately, smaller jails, unlike maximum security mega-prisons (e.g., Auburn, Attica), often suffer from inadequate and undertrained staff who don't properly screen inmates for suicide risk, and later fail to monitor and supervise them to prevent suicide. Further, small county jails often lack proper anti-suicide equipment such as tear-proof blankets and sheets that can't be turned in suicide ropes (as this 17-year-old inmate did with his sheets).

Most rural counties, such as Yates, are struggling to just meet the basic federally mandated requirements for jails. They cut corners on needed anti-suicide training, staffing and equipment. But these cost-cutting measures wind up costing lives in smaller jails, where, according to Bureau of Justice statistics, 2/5 of all deaths are from suicides.

Some jails are worse than others. For example, the Erie County jail is under investigation by the Department of Justice for having 5 times the national average in suicides.

The highest suicide rate is with newly admitted inmates. Some may be depressed following the events that led to their arrest, or from the mere trauma of being arrested and jailed for the first time. About a quarter of suicides happen within 48 hours of admission, and half occur within the first week. That's why initial suicide-risk screening is so important.

People charged with crimes need to be temporarily incarcerated until bail is established. People who are convicted of crimes need to pay the price. But jailhouse suicides are preventable, And suicide is not part of our criminal justice system. This is especially true when the jailed person has not even been convicted of a crime.

In this New York personal injury lawyer's humble opinion, the family of a jailhouse suicide victim should always check with a New York jail suicide lawyer to investigate whether a claim can and should be brought against the jail or prison authorities.

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

November 27, 2010

Central and Syracue NY Accident Lawyer Has Lots To Be Thankful For

IMG_2062.JPGThis Central and Syracuse New York personal injury lawyer seldom delves into his personal life in these blog posts, but I feel compelled to do so today. It is the Saturday after Thanksgiving. I recently spent two blissful weeks visiting my two daughters, their significant others, and my three-year old grandchild in Spain (see accompanying picture). I spent Thanksgiving with my Central New York State-side family, including my other daughter, two sons, wife, parents, who are both alive and well at 83, multiple brothers with wives and kids, etc. I count more than 50 "close" family members, including 5 brothers, all with great wives and children. And remarkably, we are, every single one of us, healthy, uninjured, and well-off.

My job as a Central and Syracuse New York accident lawyer requires me to confront my clients' sometimes unbearable injuries, loss of loved ones, loss of income, and related misfortunes. Those misfortunes are caused by the carelessness of others. But some misfortunes are caused by just plain bad luck.

My family has, so far, had nothing but good luck - we have avoided the slings and arrows that nature rains down on some --- the unlucky - and we have, so far, also avoided the injuries that befall those who just happen to be in the wrong place at the wrong time when someone else acts negligently or carelessly. Knock on wood!

Dear reader, if you are lucky like me, take a moment to count your blessings. If you have not been so lucky, may luck now find you.
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

November 25, 2010

Central and Syracuse New York Medical Malpractice Lawyer Discusses Medical Malpractice Study.

Thumbnail image for emergency.jpgI came across this article in the New York Times titled "Mistakes Still Prevalent in Hospital Care, Study Finds". The article didn't tell me, a Central and Syracuse New York medical malpractice lawyer, anything I didn't already know. To know how prevalent hospital malpractice is, all I have to do is pick up phone and listen to the stories my clients tell me.

The Times article discusses a recent, extensive study on hospital errors and problems. This is the first major study of hospital malpractice since 1999. That one caused a public outcry when it revealed that hospital malpractice causes a million injuries a year, and more than 50,000 deaths, in the U.S. alone.

The new study concludes that things have not improved since 1999. Here is a very scary statistic: About 18 percent of hospital patients are harmed by medical care, and most of those injuries are preventable.

The study concludes that many hospitals have failed to implement safety measures proven to reduce errors. How can hospitals improve safety? The study suggests that 1/3 of the errors in the intensive care unit disappear when residents work 16 hours or less. But they are still working longer hours. Longer than 16 hours? You have got to be kidding! No wonder they make mistakes.

Also, computerized systems for prescription drug orders, which drastically reduce prescription errors -- by as much as 80 percent -- are available. (The computer corrects the doctors' dosage prescription errors and alerts doctors when they have ordered a drug counterindicated for the patient.) Yet only 17 percent of hospitals have installed such life-saving computer systems.

Also, the study shows, hospitals can reduce deaths and injuries caused by medical malpractice by being transparent, and allowing themselves to be compared to other hospitals. The sense of competition among hospitals spurs improvements. Patients ought to be able to easily know, for example, the infection rate of their hospital compared to other hospitals. They will vote with their feet, and the hospital who finds its beds empty will either shut down or improve its safety statistics.

This article demonstrates, as usual, good reporting by the New York Times. But next time they want to know about the prevalence of hospital medical malpractice, all they have to do is call me!

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

November 24, 2010

Central NY Hunting Accident Lawyer Reminds Hunters of Safety Rules

deer at sunset.jpgHey hunters, it's that time of year again. Grab that gun, and your other hunting gear, get out there in the great outdoors, and make your kill.

But as a Central New York hunting accident lawyer who represents injured and shot hunters, I have to ask you to please remember safety! According to the International Hunter Education Association, hunters accidently shoot about 1,000 people in the US and Canada every year. About 100 of the 1,000 shootings are fatal. In fact, I handled a hunter-shot-hunter case last year. Luckily my client was not killed, but he was seriously injured by the other hunter who mistook him for a deer.

The victims of hunting accidents are usually fellow hunters, but not always. I remember reading about a case a few years ago where a woman was hanging clothes up to dry in her back yard, which was near some woods. She was wearing white gloves. A hunter mistook her white glove for a deer tale and shot her dead. She left behind several young children. Tragic!

Here are some important safety rules published on the New York Department of Environmental Conservation website:

• Assume every gun is loaded
• Point the gun in a safe direction, not at people
• Keep your finger off the trigger until you are ready to shoot
• Never, ever fire until you are absolutely sure of your target. Don't "assume" it is a deer or other game. Know it!
• Wear hunter orange --- it is 7 times safer

By the way, the increase in your safety when you wear hunter orange can't be overstated. Eighty percent of hunters in New York know it and wear it. Over the past ten years, of the 15 New York State big game hunters who were mistaken for deer and shot dead, every single one of them was not wearing hunter orange. They were among the small minority of hunters who have not switched to hunter orange. And there is absolutely no proof that hunters who wear hunter orange are any less successful in downing deer. Deer can't see red or orange, so they don't see the difference, really!

Happy hunting!

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

November 23, 2010

Auburn NY Pedestrian Car Accident Victims Have Solid New York Pedestrian Accident Case

crosswalk.jpgThe Syracuse Post Standard reports today that two Auburn (NY) girls, one 12, the other 13, were hit by car as they were crossing East Genesee Street in the marked crosswalk at the East Genesee/Howard Street intersection at about 7:25 a.m. The driver of the car said she did not see the girls.

New York pedestrian accident law (Vehicle & Traffic Law 1151) protects pedestrians walking in crosswalks. Specifically, the law says that if a pedestrian is struck in a crosswalk, the driver is automatically liable unless he can show that the pedestrian suddenly left the curb and walked or ran into the path of the vehicle. In other words, the driver here is automatically liable unless the girls darted out in front of her, which does not appear to be the case.

The Auburn New York pedestrian and car accident lawyers at Michaels & Smolak wish these two girls a speedy recover.

November 22, 2010

They Operated On My Wrong Leg --- Do I Have a Case?

Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for surgery.jpgThis should never happen, not any more. But it still does. What am I talking about?
Not too long ago it was pretty common for surgeons to mistakenly operate on the wrong leg, wrong arm, wrong eye, etc. But this kind of error got national attention. It outraged the public, including of State hospital regulators. Hospital administrators cracked the whip and made their hospitals and surgery centers adopt more stringent safeguards to prevent this kind of gross error. They started requiring that the part of the body to be operated on be marked with a sharpie. They began asking the patient, before surgery, to confirm which side he was expecting to be operated on. New York surgery malpractice lawyers like us at Michaels & Smolak began seeing fewer wrong-side surgery cases.

So a few weeks ago, when I got a call from a guy whose upstate New York surgeon performed his operation on the wrong leg, I asked myself, how could this happen? As I investigated, it became clear why. It seems that the hospital just did not follow the safety protocols. No one bothered asking the patient, before the surgery, which leg he expected to be operated on. No one marked his leg.

Here's a message to all local hospitals and surgeons: If you operate on the wrong part of the patient's body, you will be sued. There is no excuse for it. It is always malpractice. It is always negligence. You failed to follow your own safety rules. This is a slam dunk case of medical malpractice. Be careful. Mark the part, ask the patient, and do it right. Because if you don't do it right, we will do what good New York medical malpractice lawyers do, and we will do it right.

November 16, 2010

Central NY Pedestrian Killed By Driver Looking At Cell Phone

cell phone driving.jpgIt happened again. I think I have blogged at least 5 times within the last six months about this happening. It seems to be happening with greater and greater frequency. In fact, as a Central and Syracuse New York car accident lawyer, I am handling more and more of this kind of case.

What am I talking about? I am talking about Central and Syracuse New York car accidents caused by drivers distracted by texting, phoning or looking at their electronic devices.

The latest distracted driving accident? The Post Standard reports that a driver admitted he had been checking a missed call on his cell phone when his vehicle swerved off onto the shoulder of Route 5 and struck a woman who was out walking her dog on Route 5 in the Town of Sullivan (near Chittenango). When he looked back up from his cell phone, he saw the woman hitting his windshield.

The lesson we should all take from this tragic accident comes right from the mouth of the driver., who told police, "I should have just waited until I got home to look at my phone and then none of this would have happened".

Slam dunk central new york wrongful death car accident case for the victim's husband (who was walking right next to her)? Yes. Will the driver's insurance company pay the husband the policy limit? Certainly. But this driver has to live with having killed a woman, and is also almost certainly going to jail for it.

Don't let this happen to you! Learn from others' mistakes! Remember the words of this man, who will almost certainly now be charged with vehicular manslaughter, "I should have just waited . . . "

Be 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

November 15, 2010

Syracuse NY Accident Lawyer Discusses Representing the Injured Child.

Thumbnail image for child.jpgI love children (I have 5 or them myself) and love representing them, too. But representing an injured child is not the same as representing an injured adult. Here are the main differences as I have come to see them in my years as a Central and Syracuse New York accident lawyer:

1. The child can't legally hire an attorney or sue in his or her own name. The parent or guardian must act for the child.

2. Children, especially very young children, can make poor witnesses. They can sometimes change their accounting of what happened without even realizing they are doing it. At deposition, when the defense attorney uses leading questions, which they are entitled to do, the child is more likely to want to "agree" with the lawyer, even if the answer is not entirely true. The child can easily be led into agreeing to untrue "facts" that destroy his or her case. A lawyer representing the child has to be on the lookout for this, and has to be prepared to "pounce" with appropriate objections to the questions.

3. There is a question of whether young children are capable of giving an "oath" when they testify. They must be able to know the difference between a lie and the truth, and that lying is wrong and that they cannot lie in their testimony.

4. A lawsuit for a child can be traumatic. I try to isolate my child client from too much "case stress" by calling him to testify only when he is needed. I don't usually have him sit through all the depositions of the witnesses, as I would an adult client. I spend time with the child before his or her testimony making them feel relaxed and going over very carefully what happened to him or her.

5. The fee a lawyer charges in a case involving an injured child must be approved by the Court in a proceeding known as an "infancy settlement". Unless the attorney has actually taken the case to trial, most judges will not permit a full 1/3 contingency fee. 25% or 30% is far more common.

6. The settlement money in a child's case must be placed in a special bank account under Court order where no one can remove the money without a another Court Order. Once the child reaches 18 years of age, he or she can withdraw them money, which by then will have earned interest. A judge will only allow the parent or guardian to withdraw the money before the child's 18th birthday if a "special need" can be demonstrated (i.e., medical necessity, educational needs).

I find representing injured children very rewarding. They are vulnerable, and if they were wrongly injured by the negligence of others, their case is very compelling to most juries. Most people have a natural protective instinct that makes them want to help the injured child. Juries are no different.

The child's personal injury lawyer must also try to protect the child from the stress of testifying, and from being mislead into giving false testimony by wiley defense counsel. I believe this is an art that can be learned by patience and practice.

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

November 12, 2010

What Is A Good New York Sports Injury Case?

basketball.jpgAs a Central and Syracuse New York sports injury lawyer, I can tell you that sports injury cases in New York are not easy. I like to tell my clients that they are like a soufflé. They will fall flat unless they are made of the right ingredients. That's why a sports injury lawyer must listen carefully to the client to learn whether he or she is bringing the right ingredients to the kitchen.

What are those ingredients? Well, first let's talk about what they are NOT. If you or your child is injured in a sporting event in which you or he or she voluntarily participated, a legal doctrine called "assumption of the risk" generally bars the claim. For example, if you are playing basketball and the ball hits you in the face, and causes you to lose some teeth, you generally can't sue anyone because that's just one of the risks inherent in the game of basketball. New York sports injury law says you are deemed to have assumed that risk when you agreed to participate in the game. Tough luck!

Sure, that player who tossed the ball at you could have been more careful, and maybe the coach or ref could have policed the game better, but hey, getting a ball slammed in your face is still just one of the risks inherent in the game of basketball. Getting to a jury on those facts will be tough. Your soufflé is toast!

What are the good ingredients of a New York sports accident lawsuit? In general, the best ingredient is an injury suffered from risks or dangers that are not part of ("inherent in") the game. So if you are playing basketball and slip on a wet spot caused by a leaky roof, and you were not aware of the spot before you slid in it and tore out your ACL, well now we're cooking. Slippery floors caused by badly maintained roofs are not one of the risks inherent in the game of basketball.

But the difference between sports injuries you can sue for those you can't is not always black and white. There is a lot of gray area between risks "inherent" in the sport, for which you can't sue, and those that are not.

To muddy the waters still further, there are exceptions to the general rule of "assumption of the risk" for sports injuries. For example, if your child is hurt during mandatory gym class at school, he cannot be said to have voluntarily assumed the risks, since he was required to participate. Therefore, in gym class, the "assumption of the risk" doctrine generally does not apply. And when the child is very young or has no experience in the sport, he or she may be deemed to young to have truly knowingly assumed the risks.

Deciding whether a sporting injury claim can be brought involves a complex legal analysis. You can only know for sure if you have a valid claim by having a qualified New York sports accident lawyer review the facts of your case. If you or someone you love is injured in a New York sporting accident, why not call a New York sports injury lawyer to get a review of your case? A good sports accident lawyer will listen to you carefully to see if you have the right ingredients, and will let you know either way.

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

November 10, 2010

Central NY Injury Lawyer Update on Tonawanda DuPont Plant Explosion

Further news reports indicate that the injured and killed worker were not empThumbnail image for Thumbnail image for Thumbnail image for fire factory.jpgloyed by DuPont, as I had indicated in my earlier blog post, but rather by another company, an outside contractor. This means that a New York workplace explosion lawsuit against DuPont for failure to provide a safe workplace will not be barred by workers' compensation law.

The welding equipment was apparently attached to an outside storage tank that had been taken out of service. The tank previously housed a chemical known as polyvinyl fluoride, or PVF, which is used as.a coating for solar panels.

Since the cause of the explosion is still unknown, a New York explosion lawyer would have to hire an explosion expert to investigate. From my experience handling explosion cases, I can say that this explosion must have been caused by some negligence on the part of DuPont of the supplier of the chemical or tank. Explosions like this just don't happen. Carelessness and mistakes make them happen.

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

November 9, 2010

Tonawanda NY DuPont Plant Explosion Victims May Have NY Explosion Injury Case Against Suppliers Of Tank Or Others

Thumbnail image for fire factory.jpgI read a news report today about a chemical tank exploding at the DuPont plant in Tonawanda, New York. The Tonawanda plant produces countertops and sinks and laminate film used in solar panels.

The explosion killed one worker and injured another. Police say the blast may have been caused by fumes or residue from chemicals the tank once held that were ignited by welding activities nearby.

Sounds to me like DuPont did not properly empty or isolate the tank. Unfortunately for the injured worker and the deceased worker's family, the case against DuPont will be barred by workers' compensation law. That means that they will get only workers' compensation benefits, which are minimal when compared to what they could get if a full-fledged lawsuit were allowed. Workers' compensation generally pays medical bills and about 60% of the lost wages. No pain and suffering compensation is allowed.

We had a similar explosion case a few years ago. In that case, an explosion happened at the Carrier plant in Syracuse. Several workers were very seriously injured. We could not sue Carrier (because of the workers' compensation bar), but we sued the manufacturers and suppliers of the equipment that exploded. And we settled for a multi-million dollar figure.

Perhaps there is a New York workplace explosion case here against the manufacturer or supplier of the tank or chemical that had been in the tank. Perhaps they failed to properly warn about the dangers of their product igniting and exploding. Perhaps there were defective valves on the tank that caused a leek. All these possibilities, and many more, should be investigated by a competent New York explosion injury lawyer.

November 8, 2010

Central NY and Syracuse Accident Lawyer In Spain.

coffee.jpg"Waiter, bring me a latte and a churro please."

Your Central and Syracuse New York personal injury lawyer is writing this blog post from a quaint little café in Barcelona, Spain. I have come here to visit my daughter. It's a lovely city. I'll be here for two weeks. It's good to get away from the office for a while.

If I am handling your New York personal injury case, don't worry! I have not dropped the ball in your case! Modern technology allows me to handle it from here. The technology lawyers have at their disposition these days is dazzling. These days I can read all my files from my laptop from anywhere in the world! I just click a few icons and I am into my law office server in Auburn, NY, where my electronic files are stored. I can read every piece of mail, pleadings and deposition transcripts, on all my New York personal injury cases. My adept staff scans my mail into my files daily, so I can read all my new mail, new pleadings, etc. I can then email draft responses to my staff, review the drafts and approve them, all while sipping a Latte in this quaint little cafe in Barcelona.

I can even stay in touch with my clients from here, through email.

About the only thing I can't do from here is appear in court. I still haven't figured out how to do that from my laptop. But, hey, who knows, technology may be coming soon that allows me to Skype into court from anywhere in the world. The way technology is advancing, I wouldn't be surprised!

"Excuse me Judge --- waiter, another latte please! As I was saying your honor . . ."

November 4, 2010

Central New York and Syracuse Car Accident Lawyer: Watch Out For Those Deer!

deer crossing street.jpgMotorists, welcome to deer season in Upstate New York. Watch out! The white-tailed deer this year are more populous than in recent years. And they still haven't learned how to look both ways before crossing the road! They are a moving target you want to miss.

Hey, last time I checked the law books, you can't sue a deer. So if you run into one, and your car, or you, or both, are damaged, you are out of luck. Sure, you may have collision insurance, and no-fault insurance will pay the medical bills and lost wages (for a while!), but if you are seriously injured in a car-on-deer collision, you really have no good options legally.

Unless you are a passenger. Then you can bring a New York car accident claim against your driver for failure to drive in a careful enough manner so as to avoid the deer collision. Don't worry; you won't be dipping into your friend's pocket. His or her car insurance will compensate you, if you can, with the help of a good New York car accident lawyer, prove the driver was at least partially at fault for failing to drive more slowly, look more carefully, or brake more quickly.

The average cost of repairing damage to a car caused by a deer-on-car collision is $3,000. I suppose if you take the venison home with you, that would amount to a $500 offset, so the net cost would be $2,500. But you still come out losing. And all joking aside, about 140 people die from animal-vehicle accidents every year in the United States. Don't be one of them! I hear being alive is more fun than being dead (but I heard that from the living, not the dead, so who knows . . .)

Assuming you want to keep on living, at least for a while, how do you protect yourself from those vicious deer? First, wear your seatbelt. You are much less likely to suffer severe injuries in head-on collisions if you are buckled up. Also, remember that deer travel in packs (or is it flocks?). (Do deer say the same about cars?). So if you see one, expect more.

Just do me a favor for crying out loud. This fall, visually scan the side of the road as you drive down wooded roadways. If you have a cruise control, use it, and drive with your foot hovering over the brake pedal. And drive slow!

Don't die from a deer-on-car collision. I probably won't be able to help your family recover any New York wrongful death claim money. The deer are broke and they aren't insured!

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

November 2, 2010

Auburn NY Personal Injury Claim Faker Is Caught!

banana peel.jpgHonest New York personal injury lawyers like myself abhor dishonest personal injury claimants. They give our honest clients, and us, a bad name. Many people already assume, wrongly, that personal injury claimants exaggerate or completely fake their injuries. One true story about a fraudulent personal injury claim gives the whole profession a black eye.

I have represented hundreds of Central New York and Syracuse personal injury claimants over the years, and I can count on one hand those who were faking (and with my long experience representing personal injury victims, I can tell!). When I discover the deceit, I quickly sever the relationship. Even if I did not discover the deceit, the personal injury claim process would eventually, in almost all cases, reveal it. An insurance carrier's thorough investigation, or the harsh light of a deposition, usually brings the lie into focus.

In my experience, most personal injury fakers are also stupid. And dishonesty mixed with stupidity can easily backfire. Here's a good example:

The Syracuse Post Standard reports today that an Auburn man was charged with insurance fraud for faking a slip-and-fall personal injury accident in a Central New York convenience store last January. The man purposely poured soda on the floor and then lay there until customers, and then employees of the store, found him. He later filed an insurance claim against the store, alleging he suffered a back injury in the "fall".

How do the authorities know he faked it? His actions were all filmed on the store's surveillance camera. Pretty stupid. Don't most people know that surveillance cameras are almost everywhere these days? The only smart thing this guy did was withdrew his insurance claim after learning he had been caught on camera.

I hope the authorities "throw the book" at him. His crime harmed the store, the store's insurance carrier, and my law firm's clients. We try Auburn and Central New York personal injury cases. When we are picking our next jury, we will have to assume that many of the potential jurors have read this story. Will they be looking at our client as another possible faker? Yes! So we will have to work doubly hard to convince them that our client has a legitimate claim.

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

November 1, 2010

Under New York Personal Injury Law, Can You Sue a Police Officer Who Crashes His Police Car Into You While Pursuing a Criminal?

Thumbnail image for police car.jpgA police officer who risks his life trying to catch the bad guy, and is injured while doing so, ranks high up there among this Syracuse New York injury lawyer's pantheon of heroes. And that's what happened yesterday in Syracuse. The Syracuse Post Standard reports that a Syracuse police officer, in hot pursuit of a burglary suspect, was seriously injured when he crashed his police car into the back of another car, and then into a tree on East Fayette Street in Syracuse.

The fact that the police officer may have injured innocent bystanders (the occupants of the car he rear-ended) is, though, problematic. You might be wondering how the law deals with that. Do those injured by cops pursuing criminals have a right to sue the police officer, and his police department, for their injuries?

The answer is "yes", but they have to show more than that the police officer was negligent. They have to show he was driving with "reckless disregard" for the public's safety. This is a pretty tough standard, and for good reason; we want our brave police officers to pursue criminals, even at high speeds when necessary, without having to worry about getting sued for accidents they inadvertently cause in trying to protect us from criminals and other dangers.

Still, the public should have, and does have, a right to expect that police officers (and other emergency responders, such as an ambulance drivers), not drive recklessly, even when pursuing criminals or responding to other emergencies. We don't want them to needlessly risk the lives of innocent bystanders. That's why New York personal injury law allows people injured by police officers and other emergency responders to sue for reckless driving, but not mere negligent driving.

This is a good rule. Otherwise, police officers and other emergency responders could take their pursuits to excessively dangerous limits with impunity, causing more harm (by injuring innocent bystanders) than good (by catching the bad guys).

In the end, at least to this Syracuse New York personal injury lawyer, New York personal injury law makes sense. I hope you agree! Feel free to let me know. I'd love to hear from you!

Mike Bersani

Email me at: bersani@michaels-smolak.com

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

1-315-253-3293