Central New York Injury Lawyer Blog

Syracuse area lawyers received two black eyes this weekend. The Syracuse Post Standard reports that a Syracuse bankruptcy lawyer, Christopher Chadick, was convicted of defrauding many of his clients. He was found guilty of one of the oldest switch-and-bate tricks in the book --- taking a customer's money up front and then failing to deliver the product. In his case, he took retainer fees to file bankruptcy petitions and then didn't do the work and didn't return the money, either.

In a separate case, a Baldwinsville lawyer, David Pelland, was sentenced to 30 months in federal prison for conspiring to commit mail fraud. The facts are someone complicated, so I won't go into them here. What struck me about this case, though, was that this is Pellard's second felony conviction --- he was convicted in 1994 for concealment of bankruptcy assets. I guess some folks never learn.

As a fellow lawyer, I take these stories to heart. Lawyers -- especially personal injury lawyers like myself -- already suffer from a negative public image rivaled only by used car salesmen and politicians. (A letter directed to the editor of a local newspaper from an insurance industry professional not long ago referred to us as "bottom feeders".) More bad publicity for lawyers is not needed.

Yet some of the "bad" image is part and parcel of the job. We are bound to make enemies, especially among insurers and corporations, if we zealously pursue our injured clients' rights to compensation from those who carelessly caused their losses. As a Central New York and Syracuse personal injury lawyer, I fight with insurance companies and big businesses every day for my clients' rights. And those folks have big bucks to fight back. So I don't just make enemies; I make powerful enemies. And they spend millions of dollars every year lobbying Albany to get rid of me, and of my clients' claims, by so-called "tort reform legislation" (Which I call "tort deform legislation").

Hey, I don't mind making enemies. If I did, I wouldn't have chosen to become a Central and Syracuse New York personal injury lawyer. I would have gone into house closings or mediation work. But these stories about lawyers-gone-bad just pile more trash on the garbage heap of the legal profession's public image.

So fellow lawyers, do me a favor: Do your job zealously, thoroughly, but honestly and ethically. Thank you.

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

I've got a "fan"! She called yesterday and told me she had subscribed to my Central New York personal injury lawyer blog a few months ago and enjoys reading my posts. She thinks I write nicely, clearly, and my posts help her understand New York personal injury law. She even forwards some of my blog posts to her friends and family. Nice compliment!

But that's not why she called. She wanted advice. Before subscribing to my blog, she had hired a Syracuse New York personal injury lawyer to represent her for injuries she had suffered in an accident. She had some questions about how this lawyer was handling her case. She wanted to hire me to give her a second opinion. I told her I would not charge her. We then talked for about 10 minutes. I eased her mind about how her lawyer is handling her case. Her lawyer is doing a fine job, and his only shortcoming was perhaps a failure to explain clearly certain aspects of the case to her. She was grateful to me. I made a new friend!

Unfortunately, some New York personal injury lawyers would have seized on this opportunity to "bad-mouth" the client's lawyer so they could take over the case. That's not right, and not fair. Her Syracuse personal injury lawyer is a darn good one. And he is doing a darn good job, I am sure. I am not so conceited to think that Michaels & Smolak is the only excellent Central or Syracuse New York personal injury law firm. (But, if you ask anyone who knows, you will hear we are among the best!)

I usually end my blog posts by saying, "I'd love to hear from you"! Well, now you know I mean it.

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

Yesterday when I gave my tips about how to minimize injuries in a rear-end collision, I forgot to mention a few things. First, to recap,yesterday I recommended waiting to turn left with your front wheels straight rather than turned left. This can avoid a flip-over in the event of a hard-impact rear-end collision. But what I did not mention was that this also prevents a second danger --- getting pushed into on-coming traffic, where you can get hit head-on by an on-coming car. That's a double wammy --- a rear-end followed by a head-on. Doesn't get much worse.

Here's something else I forgot to mention: A few years ago we handled a Central New York motor vehicle accident case where a client was stopped at a red light waiting to turn left with his left signal on. He got rear-ended hard, and, because he had turned his steering wheel left in anticipation of his turn, he got pushed into the oncoming lane, where his front-seat passenger (his wife) got killed by the impact.

Now if you were an insurance defense attorney representing the driver of the vehicle that rear-ended our client at a red light, what would you do? Would you concede that your client was fully responsible for the accident? Sure, you or I or any normal human being would do that, but not an insurance defense lawyer. They are not normal. They feel compelled to raise any argument, no matter how ridiculous or frivolous, in order to placate the hand that feeds them, that is, the insurance company.

This insurance defense lawyer argued that our client-driver was partly responsible for the death of his wife-passenger and for his own injuries for having turned the steering wheel to the left in anticipation of his left hand turn. That lawyer claimed that our client was negligent in doing so, never mind that the turned steering wheel would have done no harm at all had his client simply obeyed the motor vehicle traffic laws and had been looking in front of him as he was required to do by law.

Fortunately, in responding to the insurance defense lawyer's arguments, we found several New York cases to support our position that turning the steering the wheel in anticipation of a left-hand turn does not amount to negligence. The Court ruled that the rear-ending driver was fully responsible, and our client-driver not responsible at all, for the accident and injuries.

Even though turning your wheel while waiting to turn left is not "negligent", it is not the best practice. Be smart. Wait with the wheels straight.

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

You probably won't hear the advice I am about to give you from anyone else. I came up with this safety tip myself from my years of experience as a Central and Syracuse New York car accident lawyer. I will give you two simple techniques you can use to minimize your injuries if you are rear-ended. Before I give you my tips, though, let me explain why I am giving them now.

You see, I am getting more and more rear-end auto accident cases caused by distracted drivers, usually someone texting or looking down at his or her phone. I just took one in the other day. These rear-end collisions come with explosive force because the distracted driver never applies the brakes. He or she is too busy looking down at his or her phone to even notice the stopped vehicle. Further, these collisions usually don't happen at stop signs or traffic lights. They usually happen when the front vehicle is waiting to turn left into a driveway. That is an area of the roadway where the distracted driver never really expected the front vehicle to stop before he looked down at to check his calls or text his friend.

I hear you, "enough lawyer talk already, give us the tips!" OK, here is the first of my two tips: Don't wait with your steering wheel turned. Instead, keep your front wheels straight, and only turn them as you actually make your turn. Why? Because if you wait with your wheels turned, and you are rear-ended with force, your car can flip, and you will end up upside down. Not fun at all, believe me, I have been there! Two of my recent rear-ended clients got flipped. Their wheels were turned as they waited. If you keep your wheels straight as you wait, you will instead be catapulted forward, a much better deal.

Ready for tip number two? I thought so. Look in the rearview mirror while you are waiting to turn left. If you see you are going to be rear-ended, take your foot off the brake. That way your car will take the impact by rolling forward, rather than absorbing the full impact, which will translate more damage into your body.

Remember: Wheel STRAIGHT as you WAIT and get ready to lift that foot off the BRAKE (hey, it rhymes, kind of!). And when the dust has settled, come see me, your Central and Syracuse New York auto accident 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
Central NY Personal Injury Lawyer
Michaels & Smolak, P.C.

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

When I clicked my way to Syracuse.com this morning to check out the Syracuse Post Standard news, I was both surprised, and not surprised, to read that Dr. Holsapple, a former Upstate University Hospital neurosurgeon, had sued the Hospital for retaliating against him after he voiced concerns about dangerous medical practices there. I'll tell you why I was both surprised, and not, but first let me summarize the allegations.

In the lawsuit, Holsapple claims that, at Upstate University Hospital, safety took a second seat to profit concerns, and that the Hospital regularly covered up their mistakes and bad medical practices by doctoring the medical records. For example, the suit contends that a neurosurgeon was allowed to oversee spine surgeries in two different operating rooms at the same time, which Holsapple says was way too dangerous. Statistics seem to support the Doctor's allegations; at the time, five times more patients were dying from spine surgery at Upstate compared to the national average.

Holsapple also alleges that when he complained about the dangerous, unethical practices, the Hospital responded by demoting him and cutting his pay. For these reasons, he claims, he resigned from Upstate in early 2009, and that's why he is suing, too.

Now here's why I am not surprised: Everything Holsapple says rings true. Not just for Syracuse's Upstate Hospital, but for hospitals across the nation. In our experience as Syracuse New York medical malpractice attorneys who have successfully sued several New York State hospitals, including Upstate Hospital, for millions of dollars, hospitals regularly shortchange safety, make bone-headed errors as a result, and then, rather than accept responsibility for their negligent practices, they pass the blame to medical malpractice lawyers and their clients for their problems. They try to paint us as "greedy", and our claims as "frivolous", and blame us for causing their medical malpractice insurance premiums to skyrocket. What they do NOT generally do is say, "gee, sorry about that, we'll make every effort to improve so this won't happen again". As the old Saturday Night Live skit put it, "they think denial is a river in Africa".

Now here's why I am surprised by Dr. Holsapple's suit. I am surprised that Dr. Holsapple would blow the whistle on his former employer, the Hospital. In our experience as Syracuse New York medical malpractice attorneys, there appears to be an unwritten oath that doctors swear to when they graduate from medical school, which goes something like this: "I hearby swear that I will do no harm, except that I shall never report the medical errors of my brothers-in-medicine no matter how much harm my silence causes, and no matter how egregious, how wrong, and how bone-headed, or careless, their errors are, so help me God". Dr. Holsapple appears to have broken this unwritten code of conduct.

And for that, I say, "thank you Dr. Holsapple"!

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

Yesterday I blogged about t

I am sure this is not what the rule-makers had in mind when they made this rule. But is it too far-fetched to think that some lawyers will make the rule work in their favor by funding the campaigns of judges they don't want to appear in front of? I think not.

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

Mum's the word.

As a Central and Syracuse New York accident lawyer, I religiously read the New York Times and other newspapers for news that affects my law practice. Today I read in the New York Times that U.S. Supreme Court Justice Clarence Thomas has not spoken for almost five years at oral argument in Court! He has not asked a single question of the many lawyers who appear before the highest Court in the land to argue cases. By contrast, many of his colleagues on the bench pepper lawyers with tough, piercing questions "right out of the box" (as soon as they start their argument).

So what's better, a quiet judge or an inquisitive one? As a Central and Syracuse New York personal injury lawyer who argues appeals in Courts all over New York State, I have learned to appreciate the talkative type. Why? Because the questions usually tell me what problems the judge is having in adopting my reasoning. If I know the concerns he or she has, I can then customize my oral argument to try to get that judge past his or her mental roadblocks to ruling in my favor.

In fact, I regret that Juries aren't allowed to ask me questions, too. There they sit, silent as lambs as I deliver my closing argument after trial. It's a one-way street, with my verbal traffic going their way, and no traffic coming back. I feel like I have a sign on my forehead, "One Way - Do Not Enter". I can't know what they are thinking. I don't know what problems they see with my case. If only we could talk about it. If only jurors could raise their hand and say, "But Mr. Bersani, what about . . . ?" -- then I would have an opportunity to guide them gently over those bumps in the road to a favorable verdict.

Now don't get me wrong; there are many good reasons for the rule prohibiting the jury from asking questions. I won't go into those reasons here. But generally, "give and take", isn't that the best way to get to a well-reasoned result? And that's why I welcome judges' questions, even the tough ones. My response when I am "interrupted" by a judge with a question? "Judge, I am so glad you asked that. Let me explain . . ."

It's been nice talking at you. Now feel free to talk back!

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

These winter days of snow-caked rooftops, there are lots of folks are up on roofs with chisels, hammers and shovels trying to dislodge ice and clear off snow. And for a good reason; all that snow and ice buildup can damage the roof, and can even cause the roof to collapse! That's pretty dangerous, but being up there on the snow-and-ice capped roof, if you don't know what you are doing, isn't so safe either. Quick advice from this Central and Syracuse New York personal injury lawyer: Don't do it yourself unless you know what you are doing. Hire a contractor or roofer instead.

But wait a minute. If you do hire someone to do it for you, and he falls off your roof and is injured or dies, can he, or his family, sue you?

Before I tell you the answer, let me give you some law. New York has a special law, called New York Labor Law 240, which provides that workers may bring a lawsuit against the "owner" of a building (among others) if the workers fall and are injured while engaged in either "cleaning" or "repair" work (among other things). Clearing snow and ice off a roof has been held to be a "cleaning" activity, and of course fixing a leak is a "repair" activity, so if someone falls from your roof while doing either of those things, you, the homeowner, would, at first glance, seem to be liable for the injuries sustained by the fallen worker.

But wait! There's an exception that saves you, the homeowner, from having to lose sleep over the possibility that Joe the Roofer might sue you for his injuries when he falls from your roof. What is it? Drum roll please . . . .

Labor Law 240 provides that the owner of a non-commercial one or two-family dwelling (i.e., a "home") is not liable for the roofer's injuries as long as the homeowner did not "direct or control" the work. In other words, you can go ahead and hire a contractor or roofer to get that snow and ice off your roof, or to fix that leaky roof, as long as you don't tell or show him how to do it. To be safe, you'd be better off not even lending him the equipment to do it. Let him "direct and control" himself. And let him get his own stuff to do it.

As you can imagine, falls from roofs can cause very serious injuries, some of which are compensable by millions of dollars. Take it from me; my law firm and I have successfully won millions for workers who have fallen from roofs. We have never sued a homeowner on behalf of a fallen worker, though. Why not? As I already told you, they are generally immune from liability (unless they micro-manage the job). We usually sue these cases out against industrial or commercial owners of property and against the general contractor of construction projects.

So don't worry, be happy! I'm not going to sue you on behalf of that roofer or contractor you hire to get rid of that ice or snow or fix your leaky roof! But if you are someone, or know someone, who fell from a roof while clearing snow or ice or while repairing a leak, especially on a commercial building, do call, or have him or her call me.

Keep safe!

Mike Bersani

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

Michael G. Bersani, Esq.

Posted by Michael Bersani | Permalink | Email This Post

Posted In: Construction Accidents , Premises Liability

Being a Central and Syracuse New York accident lawyer requires me to subpoena Central New Yorkers to testify many, many times a year. Sometimes I even have to subpoena children. Tomorrow I will take the subpoenaed deposition testimony of several child-witnesses to my child-client's Seneca County New York personal injury case. I served a subpoena on their parents notifying them that they were required to bring their child to my office to give testimony on the matter. That must have been quite a shock to them!

I certainly don't relish putting a family through the stress of a subpoena and then a deposition, but sometimes I can't avoid it. I have a duty to represent my client diligently, and in this case that means finding out what these child-witnesses know, and making a record (called a transcript) of it.

On the other hand, for the kids it's probably not so bad. ("Cool --- I get out of school for the morning!") The parents, though, are probably kind of worried ("what the hell do they want my kid to testify for --- did he do something wrong?")

The children will, of course, be accompanied by at least one parent. I always try to make the parent and the child feel very comfortable with the process. I try to make it a lesson in civic duty. I explain that our civil justice system works because lawyers are allowed to subpoena witnesses to say what they know about a court case.

The first order of business when taking the testimony of a child is making sure the record reflects that they are capable of taking an oath. I must show, on the record, that they understand what an oath is, or at least that they know the difference between a right and wrong, between a lie and the truth, that lying is wrong.

Deposing a child is different from deposing an adult. First, if you have a heart, and believe it or not most lawyers do, you really want to avoid making the child feel at all picked on or uncomfortable. I try to dig out the truth without being overly aggressive. I avoid any hostile gestures or intonations. I try to befriend them. I feel I get more truthful answers this way, and I also avoid making the child feel at all uncomfortable.

Children, especially very young children, can make poor witnesses. I have deposed children who have given me contradictory stories about what happened within the span of only a few minutes. They are usually not lying. I think they feel they need to know the answer, so if they don't know, they sometimes make it up. Then they forget what they just told me and make up a new story. They have several stories in their little heads!

Tomorrow the kids are a little older, around 12, so I shouldn't have this problem. I hope to get the truth, the whole truth, and nothing but the truth! Wish me luck.

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

One thing I have learned as a Central and Syracuse New York injury lawyer is that almost no one over 30 has a perfect spine. If you are over the age of 30, and we were to take an MRI of your spine today, you would probably be surprised by what we would find. Unbeknownst to you, you probably have "degenerative disc disease" (called "DDD", which can include disc protrusions or herniations, spinal stenosis, bone spurs and other changes).

I hear you: "What, me, a spine disease"?! Don't be alarmed. A doctor friend of mine describes DDD as "gray hair of the spine". It's part of the normal aging process. We all get it sooner or later, and it is usually harmless, just like gray hair.

Even though most people with DDD have no pain at all, DDD can be associated with neck or back pain. The pain often begins with a traumatic event, such as a fall or a car crash. Many of my Central and Syracuse New York personal injury clients suffer from painful DDD. Although they were pain-free before their accident, the accident caused their asymptomatic (pain free) DDD to suddenly become painful.

How does this happen? Most doctors admit they are not sure, though there are several theories. Essentially, though, nerves near the DDD suddenly become inflamed or irritated by the DDD. In such cases, it is not the DDD on its own that causes the pain. It is the trauma (accident) that activates the DDD causing the pain. And the pain can be chronic, severe, and life-long. It can make life unbearable. It can throw a big monkey wrench into the business of living.

When one of my clients is hurt in a car accident, or in a fall from a scaffold, or is knocked around in any other way, and suddenly ends up with chronic, long term back or neck pain, the insurance company likes to blame all the pain on DDD, and none on the accident. They point to the x-rays and MRI's taken after the accident and say, "hey, this DDD we see here is causing this pain, and all this DDD was there before the accident, so how are we responsible for the pain?

But the insurance company's logic is flawed. Actually, it is deliberately flawed, and there's a word for that: "deceptive". They know perfectly well that the accident caused a harmless DDD to turn into a debilitating pain syndrome, but they refuse to take responsibility for it. They prefer to blame the DDD. Why? Because they can save money by not having to compensate accident victims for their lost wages, medical expenses and pain and suffering.

Only an experienced New York personal injury lawyer can combat this deceptive logic. If you have painful DDD caused by an accident, hire one!

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

Pain is the constant companion of many Central and Syracuse New York accident victims. Believe me, as a Central and Syracuse New York personal injury lawyer, I know! Let me give you a "for example".

The other day I took the trial testimony of an orthopedic surgeon who performed a type of surgery, called a "diskectomy and fusion", on my client's cervical spine. The sole purpose of this operation was to chase the pain out of her body. It was a gruesome operation consisting of slicing open the patient's neck, peeling back the skin and muscle, exposing the vertebra, shaving off two of the spongy discs that separate the vertebral bodies, replacing the discs with cadaver bone, and then screwing in a metal plate to hold the whole mess together.

There are many risks involved in the procedure, including stroke and paralysis. But my client gladly underwent the operation. And the fact that my client was willing, in fact eager, to go under the knife is the best evidence I have as to how much pain she must have been in. No one on the jury will be able to feel her pain, but the operation she was willing to undergo in the hope of removing at least some of it will make them understand, I hope, how intense the pain was.

Before agreeing to let her surgeon cut her open and monkey around with her spinal column, my client had tried every other medically approved neck pain treatment plan, all to no avail. My client lived in pain. Her pain would wake her at night, greet her in the morning, and take her to bed again at night. Her pain was like an uninvited dinner guest. My client tried many times to "disinvite" this guest, to no avail. I sometimes visualize the surgeon as the cop my client called to arrest this vicious intruder.

The operation did relieve some of the pain, and even relieved most of it for a few years, but, like an obsessed ex-boyfriend, it eventually showed up again on her doorstep again. That's what chronic pain is, really: a stalker.

Don't get me wrong; the people who opened the door to let this intruder, pain, into my client's body, did not do it on "on purpose". It was an "accident". They were negligent, careless, in causing the accident, not deliberate. My client is not seeking revenge. She is seeking justice. New York personal injury law, and justice, requires that the responsible parties pay for their mistake by compensating my client for her lost wages, medical expenses and, yes, her pain. Our law requires that those who act negligently or carelessly, and thus cause innocent others to suffer injuries, must fully compensate their victims. That's why people and companies have insurance; to fairly compensate victims of their mistakes.

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