March 15, 2012

Central and Syracuse NY Personal Injury Lawyer -- "Good Staff Makes For Good Results"!

RebeccaKinney.jpgI blogged last time about a seven-and-a-half year Syracuse NY wrongful death case I settled on the first day of trial this week. Today I want to blog about the "behind the scenes" preparations for trial. It sounds boring, and it sure ain't "LA Law" stuff, but in a trial, preparation is 90% of the battle.

I knew from the get-go that the trial would involve about 25 witnesses as well as complex legal issues, so I didn't mess around. Three months before trial, I started fashioning an electronic file, with separate folders for pleadings, orders, exhibits, witnesses, depositions, affidavits, law, summation, opening, jury selection. I organized everything logically. For example, each discovery demand was set in a separate folder with its corresponding response, and each set of demand-responses was set into a file labeled "discovery".

About 2 weeks before trial, I finally had an electronic file so well organized that I could click to any of the hundreds of pages of documents I wanted within 5 seconds. I also had all my witness deposition summaries, and witness questions, set out in separate witness folders along with each witness's deposition and affidavit.

But electronic files alone aren't enough. Even though trials have become somewhat more computer-friendly, you still need to be able to reach for a "real" document. You have to mark real paper exhibits. You have to offer the paper exhibits into evidence.

So about 2 weeks before the jury trial I sent an email to one of our secretaries, Becky Kinney. The email said, "Becky, please create 'hard copy' trial notebooks that replicate my electronic ones". Her heart must have sunk, but she rose to the task without batting an eye. She had the office printer churning out the documents, the hole-puncher spitting out little round discs of paper, and she surely sucked Auburn's three-ring binder supply dry.

The Friday before trial, she produced three banker boxes full of beautifully prepared and organized trial notebooks, all clearly marked, with tables of contents and handy color-coded tabs. They were so well done that I could find any paper document I wanted in 5 seconds, just like in the electronic version.

Before I left for trial, Becky said, "Mike, you had better not settle, because if you do, all that hard work will have been for nothing".

When I came back from court, case settled, I told Becky, "when the defendants saw your notebooks, they panicked and settled with me".

This was, of course, not literally true. But trial lawyers can sense their opponents' lack of preparation. They are unlikely to make a good settlement offer if they smell blood. In this case, my opponents were confronted with a confident, well prepared, well organized lawyer, who was clearly ready, even excited, about trying the case. I believe this brought their offer up, and caused the case to settle. And that is in large part because of Becky.

Never underestimate the impact good staff has on your case results.

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

March 14, 2012

In Memorium

Thumbnail image for Thumbnail image for frank face.jpgWhen you're a personal injury lawyer, you need lawyer-friends to bounce ideas off of, friends who will listen, critique you, play devil's advocate, and just plain tell you when you are wrong. This profession is more of an art than a science, and to get it right, you need feedback, advice, and sometimes just a pep talk.

Here's a good example of a case you need friends on, one of the toughest my career. The case was full of legal and factual intricacies that befuddled and confounded not only the lawyers, but judges and their clerks. The trial judge at one point dismissed the case because he felt it was not "actionable" (the law did not allow it), but I appealed, the appellate court agreed with me, and allowed the case to stand, even though it was the first of its kind to be brought (you can read the decision here).

Then the trial judge dismissed another piece of the case, and I again appealed, and again the appellate court ruled in my favor, though a dissenting justice would have affirmed the trial judge (you can read the decision here).

Meanwhile, the four sets of defense attorneys working against me kept bringing "motions" (legal requests to the judge) to my detriment that I had to fend off. By the time we got to trial this past Monday, I had been working on the case for SEVEN AND A HALF YEARS! Do you think I might have reached out to a few lawyer friends for advice and feedback during those seven and a half years? You betcha.

There was one lawyer in particular I often reached out to on this case (and other cases). He was "there" for me every inch of the way. In fact, he had been my main confident ever since I first got out of law school. He always had time to listen, and to counsel, and usually for a joke or two. Whenever I got a big win, he would be thrilled for me. Whenever I suffered a loss, he would console me. I trusted him like no one else. He was a great lawyer, a great friend, and a great man.

On February 11, that lawyer, my brother Frank Bersani, suddenly died. He was only 57 years young, not even a year older than me.

On Monday, my seven-and-a-half year case settled, favorably, as I was about to pick a jury. On my way back to the office, I picked up my phone to call Frank to tell him the good news.

Then I put it down.

Not having Frank to call about my cases will take some getting used to . . .

Appreciate the friends, and brothers, who help you along the path of life, and don't forget to tell them once in a while how much they mean to 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

February 7, 2012

New York Health And Fitness Clubs Beware: You Must USE Those AED's!

defibrilator.jpgOne of New York's appellate courts (Second Department) recently held that health and fitness clubs in New York State must actually use automated external defibrillators (AEDs) when necessary, and not just have them available. If they don't, a heart attack victim can sue them for failing to act. You can read the case here.

Since I am both a Central New York personal injury and wrongful death lawyer, and am on the Board of the Auburn, New York YMCA (former president of the board), I took a keen interest in this ruling. I also immediately informed the Y's CEO about this case. After all, it's one thing to require that health clubs have such devices available, but quite another to require that staff actually make a judgment call about when and whether to actually use them, and to be subject to wrongful death lawsuits if they fail to act properly.

Here are the facts of the case before the court: A racquetball player at a fitness club collapsed, a fellow player reported it promptly to the front desk, and the front desk immediately called 911. While they waited for the ambulance, several employees, with AED in hand, hovered over the stricken player, checking his pulse, but they never actually used the AED. The ambulance arrived in only a few minutes later, which may explain why they never used the AED. But the guy died at the hospital, and his family blamed the fitness club for not using the defibrillator.

While the Court noted that the Statute on the books (Business Law 627-a) requires only that AEDs be "on-site" at New York health clubs, and does not specifically mandate that Club employees use them, the Court read between the lines, holding that it was "illogical to conclude that no such duty exists".

Makes sense. By the way, the use of an AED is simple and clear and requires no significant training.

Health Clubs beware! Let's hope this requirement saves lives (it probably will!).

Keep safe!

Mike Bersani

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

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

1-315-253-3293

February 6, 2012

"Hey Fed Gov, Don't Cut Bicycle Safety Out Of Your Transportation System!" Central and Syracuse NY Bike Accident Lawyer Says

Thumbnail image for Thumbnail image for bicyclists racing.jpgFellow New York Bicycle accident attorney Jim Read reports in his blog that a Bill making its way through congress would, if made law, remove bicycling from the federal transportation program. As Jim notes, it would set us bicyclists back many years in our efforts to get government roadway designers and planners to consider bicyclist safety when designing and upgrading roadways.

The Bill is called "the American Energy and Infrastructure Jobs Act". Among other things, the proposed law would allow states to build bridges without safe access for pedestrians and bicycles and eliminate bicyclists' status and standing in the planning and design of our transportation system. This heavily auto-biased program would also endanger funding for our safe paths, bike lanes and bikeways.

If you are a bicyclist and want to stand up for your rights, go here to find your local representative and send them an urgent message.

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

February 5, 2012

Centryal and Syracuse NY Accident Lawyer On LeRoy NY Toxic Spill: Proving "Causation" Is Tough

toxic spill.jpgI read in the Pop Tort that Erin Brockovich appeared on HLN's Dr. Drew Show to talk about the cluster of Tourette's like symptoms hitting teenagers in Leroy, NY. It turns out that in 1971 a train derailed and dumped tons of cyanide and TCE, which was never cleaned up, in the area where these kids have gone to school all these years. Brockovich's skeptics are saying, hey, if this spill happened all the way back in 1971, why are kids turning out with these symptoms only now? Her response is that there have been similar symptoms in the past, but back then these kinds of ailments were not consistently reported or diagnosed, and also back in the early days of the spill, many parents told their kids not to drink the water around the school area.

This brings to light one of the main hurdles New York toxic tort lawyers face: Proving "causation". It is often easy to prove negligence in causing the spill, or in failing to properly clean it, but how do you prove that exposure to the toxic substance caused your client's cancer, or Tourette's syndrome, or other ailment, when those diseases or syndromes appeared many years later? You will probably find experts in the field who will hold that opinion, but many times the evidence they rely on is not firmly established, and defendants' experts will say, hey, wait a minute, lots of other stuff can cause cancer or Tourette's-like symptoms, and your proof that this spill caused it is merely speculative! Many judges will toss the case before it ever gets to a jury.

But that doesn't mean you can't win one of these cases, and it especially doesn't mean that the toxins emitted by corporate America are not killing us and making us sick. They are, and we known, and they know it. The only question is, can we prove it 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 NY Personal Injury Lawyer
Michaels & Smolak, P.C.

1-315-253-3293

January 24, 2012

Auburn NY Personal Injury Law Firm Office Manager Carol Beach Retires!

carol & lee.jpgIn February 1967, a young lady showed up for her first day of work at the Auburn, New York law offices of attorney George M. Michaels, our own Lee Michaels' father. (George is famous in New York - you can look him up on wikipedia). Lee, a young whipper-snapper fresh out of law school, joined the firm about two years later, and Carol has worked with Lee ever since.

But the story goes back further; Lee and Carol went to East Auburn high school together. Carol was two years ahead of Lee. Carol tells the story of how, back then, one of her teachers told the girls, "treat the under classmen well because remember, you could be working for them one day".

Times have sure changed. Today, any teacher who made a statement like that would be accused of rank sexism. But guess what --- that teacher was right! Carol ended up working for Lee for 43 years. And she worked with the rest of us ever since we joined the firm, too. She has been our head secretary and office manager for decades.

On her last day of work recently at the Auburn personal injury law firm of Michaels & Smolak, we decided to take Carol, and the entire office, out to the Sherwood Inn in Skaneateles, to celebrate her outstanding 45 years of loyal service and to surprise her, with a gift. (Carol roundly rejected our desire to give her a retirement party --- way too humble for that). But what do you give someone who clocked in 45 years of dedicated work, who hardly ever missed a day, who usually got to work BEFORE starting time, and who was, to boot, fun to work with? A gold watch? That didn't seem a good fit.

Well, we remembered that Carol had a great time a few years ago when she went on her first cruise with her husband, Jim. So at the Sherwood, we handed her some tickets. Not just any tickets, but for a cruise-for-two through the breath-taking Alaskan seas.

I shot this picture of Carol and Lee at the Sherwood. Does she look 73? I think not. If you see this young, sparky gal, congratulate her and wish her a happy trip, and retirement. She deserves both, and so much more!

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

January 20, 2012

Syracuse New York Wrongful Death Trial Preparation

I have a Syracuse New York wrongful death trial coming up in about six weeks. Six weeks may seem like a long time to you, but for preparing a complex trial, it is not. I started gearing up a few weeks ago.

The first thing I do is create a "to do" list for the trial preparation. As I get things done on my list, it feels good to cross them off. My list gets shorter and shorter.

In this case, my "to do" list is still quite long. There will be, I believe, more than 30 witnesses. I have to prepare "direct examinations" of the witnesses I am going to call, and "cross-examinations" of the ones I expect my opponents to call. And you don't just "wing it" up there. No, that's a recipe for disaster. You have to plan out carefully every line of questioning, and have exhibits and deposition transcripts ready to confront any witness who strays from the truth!

Another thing I do before a trial is look at how other experienced lawyers have handled similar trials. This is a wrongful death claim, so will watch some DVD's of opening statements and summations given by other lawyers in wrongful death trials. This gives me fresh ideas of how to structure, organize and present this kind of case.

You also have to figure out how to get all the exhibits into evidence, what witnesses to use to talk about them, and anticipate objections you might receive from opposing counsel.

And that's just the tip of the iceberg.

If you watch "Law and Order" or other TV law programs, you might think being a trial lawyer is just about going to court and trying cases. But that's only about 5% of it. The other 95% is preparation at your desk, on your computer, and on the phone or in conference with witnesses. I can't say it's exciting, and sometimes it's downright boring, but it's absolutely essential.

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

January 19, 2012

Central NY Injury Lawyer Blog Gets Inquiries From Near And Far

Picture of Michael Bersani .jpgYou might find this hard to believe, but my Central New York injury law blog attracts responses and inquiries not just locally, but from afar, too. From how far? Well, for example, in just the last few weeks, I have been contacted by readers in the Philippines, California and Canada, about family members who were injured or killed here in New York State. I have even heard from Europe a few times.

Yes, I receive lots of emails, both from far and near, many asking me to represent them in a New York personal injury, medical malpractice, or personal injury matter. Unfortunately, I can't take all those cases. In many cases, after exploring the facts with my new "pen pal", I learn that the case is weak, or that the injury is too minor to make a lawsuit financially viable. But in every case, I try to give my new friend something for his or her trouble in writing me --- at the very least a good explanation as to why I think their case is not worth pursuing. And often, they thank me for that.

And by the way, the very first thing I always say when I respond to an email inquiry is "Thanks for writing!". Even if I can't accept the case, it is rewarding to know that someone out there is reading these posts! So come on, don't be shy, just tap me a line or two!

Keep safe (and keep reading me)!

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

January 8, 2012

"Aggressive" Lawyers Are Often All Smoke And No Fire, Says Central NY Injury Lawyer

HomePagePhoto.jpgAlthough I am a New York personal injury lawyer 95% of the time, every once in a while I let myself get talked into representing a plaintiff in a non-injury case. Usually it is to sue for breach of contract or something like that. Recently, I had a three-day bench trial (that means it was tried before a judge rather than a jury) on such a case.

My opponent was an ass. He made lots of useless objections, shouted and screamed a lot, and had a very sarcastic tone during his cross-examinations. He never smiled and he had a permanent scowl on his face. He looked mean. This particular lawyer has a reputation for being needlessly aggressive, unlikeable, and unkind. Other lawyers I have talked to about him do not think he is good or effective --- he is all smoke and no fire.

He has a steady stream of clients, though. Most of them men are of a certain type. They are the kind of men who have big aggressive dogs. This lawyer is, apparently, some kind of bulldog for them.

When we finished the trial, I thought I had probably won, but the judge wanted to "reserve", meaning he would write a Decision later.

Three weeks later the Decision arrived. I had won. My client got all the money he had sued for, plus interest. I called him and told him the good news. His response? "I can't believe we won ---- that other lawyer was so aggressive! I thought he had beaten us!"

Moral of the story: Being needlessly mean and "tough" in the courtroom may impress some clients, and even the other lawyer's clients. But that's because non-lawyers' impressions of what good lawyering is comes from TV shows. In the real courtroom, good lawyering means being smart, skillful and persistent -- and being likeable can't hurt, either.

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

January 4, 2012

CNY Injury Lawyer's Letter To Insurance Adjusters

lawyer & client.jpgDear friendly insurance adjuster:

Thank you for your recent letter requesting permission to take my injured client's "recorded statement" regarding the accident your insured so carelessly caused. As a Central and Syracuse New York personal injury lawyer, I appreciate all communications with insurance adjusters that might help me resolve my clients' claims. My response is a conditional "yes". I will allow you to take my client's recorded statement only if you allow me to take your insured's recorded statement.

I really doubt, though, that you will agree to this absolutely fair proposal. I have proposed this same "swap" hundreds of times to many different insurance adjusters from all kinds of insurance companies, including yours. So far, no insurance adjuster has agreed to it. They all want to take, but not to give. Haven't they ever learned that it is better to give than receive?

If I were to ask you why you want to take my client's recorded statement, you would say (as all adjusters have always said since the mother of all adjusters first walked the planet) that this will help you "adjust" the claim, that is, figure out how much it is worth so you can settle it with me. (You would emphasis this last phrase). Gosh, that really makes me want to give you that recorded statement!

But the fact that you want a "recorded" statement rather than just an unrecorded conversation with my client indicates to me that you have other purposes. You want to "box in" my client so that your lawyers can later cross-examine him if his later testimony is even a little inconsistent with the recorded statement.

Even so, I really have no problem with this. I am not afraid of what my client might say, since he is an honest, injured client with a legitimate claim. What I do have a problem is the one-way street you insurance adjusters always pave. What's good for the goose is good for the gander, right? Taking a statement from your insured, who caused my client's injury, would also help me "adjust" the claim, that is, figure out how much we should be willing to take in settlement.

Don't take this personally, but you insurance adjusters, though you are often fine people otherwise, have a blind spot for simple fairness.

I am hoping we can settle this case for a fair amount even without recorded statements. But if we can't, I'll see you in Court. In that arena, we will both get to hear the "recorded statements" (sworn testimony recorded by the Court reporter) of both your insured and my client. It will be a fair swap!

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

January 2, 2012

Central New York Personal Injury Law Firm's Good Deed For 2011: Michaels & Smolak Helps Save "Camp Rotary".

Thumbnail image for Thumbnail image for scouts.jpgNothing brings Auburn and Cayuga County, NY, together like an attack from outside forces. Just as the ancient Greek city-states came together to fend off attacks from their ancient common enemy, Persia, all of Auburn and Cayuga County recently united to fend off an attack by the National Texas-based Boy Scouts of America. And Michaels & Smolak is proud of its role in that battle. Here's what happened, and what we did about it:

The Texas-based Boy Scouts of America forced the Auburn-based local Cayuga County Council Boy Scouts to "merge" with a larger local council, "Long House" Council, which occupies Onondaga County and other territories to our north. As part of the "merger", the Texas-based Scouts were forcing the transfer all the Cayuga County Council's assets to Long House Council, taking them out of local control. One gem-of-an asset was "Camp Rotary", a 33-acre camp located on the east side of Owasco Lake and used by local scouts since 1910. It was clear, and neither the cash-strapped National Scouts nor the equally economically distressed Long House Council denied it, that once they acquired Camp Rotary, they intended to sell it off to developers for cash. To make matters worse, Camp Rotary sits right next to the Auburn YMCA's "Camp Owasco" and the local Girl Scout Camp. Those groups were not anxious to have development so close by.

So the not-for-profits and good citizens of Cayuga County and Auburn bound their forces to fend off the attack, with the battle cry, "Save Camp Rotary"! Local leaders came to Michaels & Smolak looking for legal representation for the local not-for-profit which held title to Camp Rotary, the Owasco Camp Association. Michaels & Smolak took on the case, stood up to the big national Scouts in Court, and after a year and a half of tough-fought litigation, helped negotiate a settlement that culminated in Auburn's YMCA acquiring the Camp for a relatively small sum of money - $350,000 (it is easily worth over $1 million). It is now saved forever for local youth use! You can read several news reports about the battle here, here and here.

Michaels & Smolak donated approximately $20,000 worth of free legal services in support of this worthy cause. In gratitude, on December 20, 2011, the Cayuga County Legislature issued a "Proclamation" wherein special recognition was given to Michaels & Smolak for their role in saving Camp Rotary.

The Auburn-based Central New York personal injury firm of Michaels & Smolak is proud of their commitment to local charities and causes, and we thank Auburn and Cayuga County for allowing us to serve.

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


December 31, 2011

Central NY Injury Lawyer: City Should Be Held Responsible For Adoptive Parent's Abuse Of Children

Thumbnail image for bullied.jpgI read in the New York Times about a lawsuit on behalf or10 disabled Children fraudulently adopted by a Queens, New York woman more than 15 years ago. It is an extremely disturbing case. Anyone who loves children, swallow hard before reading further.

The lady used different aliases to adopt severely disabled kids (autistic, etc.) who clearly weren't wanted by anyone else, then pocketed the support subsidies from the City, spent them lavishly on herself, all while keeping the kids locked up at "home" and out of school. Well, I guess you could say they got some "schooling", but it was the school of "hard knocks": They were caged, handcuffed, and beaten every day of their young lives.

The kids are now mostly in their early adult life and, guess what, they want justice. Wouldn't you? Now mostly in their 20s, they are asking for money to pay for the psychological and other services and treatment they will need for the rest of their lives and to be compensated for their years of suffering as well.

Their "adoptive mother" (I sneer as I write that) is now penniless and behind bars. So who are they suing? New York City and the child welfare services who handed them over to this sicko, that's who.

Some readers might think it is unfair that the City be on the hook for the wrongdoing of this depraved predator. She was the villain, and the City was just a victim of her duplicity, right?

Not so. Although the City claims this creep was a so sophisticated in her manner of applying for adoption that they were completely duped, all the City really had to do was check to see if these kids were enrolled in school after they passed them off to this witch. Doesn't seem so hard to me.

When the foster parent or adoption process fails, especially as dramatically as here, heads must roll, and money must flow. I look forward to the day I read these kids have been justly compensated. And they will be. That's my New Year's prediction!

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 Foster Care Abuse, Neglect Lawyer
Michaels & Smolak, P.C.

1-315-253-3293

December 26, 2011

New Year's Resolution Idea From Central NY Car Accident Lawyer -- Throw The Cell Phone Or Smart Phone In Your Trunk

Thumbnail image for cell phone driving.jpgHaving trouble finding a New Year's resolution? Let me help. Forget about losing weight. Been there done that -- or not!. That commitment usually lasts for only a few weeks. Here's one you might be able to stick with, and that could save your life:

Promise yourself that, beginning January 1, you'll start throwing your smart phone or cell phone in the TRUNK of your car whenever you drive. Don't just commit to not using your smart or cell phone --- as long as it's sitting next to you and on, you will. If you don't believe me, and think you can resist the temptation of answering the phone while you are driving, or of sneaking a peak at an incoming email or text message when you hear that little "beep" , take a look at this New York Times article, titled "U.S. Safety Board Urges Cellphone Ban for Drivers". The article cites to several well-researched studies proving that smart phones and cell phones are every bit as addictive -- and as dangerous to your health when you drive with them -- as cigarettes.

Why can't you resist the urge to answer, or to check that text message? Because you have a well-rooted, natural human urge to interact with other humans, especially when you are isolated and deprived of their company - as when you are alone behind the wheel.

And hands-free phones --- while still legal in New York --- probably won't be for long, given that all reputable studies show such use of your phone is just as dangerous as hands-on.

The only safe use of cell phones or smart phones while driving is NO use of them at all. And the only way that will ever happen is if you turn it off, or throw it in the truck where you can't access it.

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 Car Accident Lawyer
Michaels & Smolak, P.C.

1-315-253-3293

December 24, 2011

Neck Injury That Starts Out As A $100,000 Case Ends Up Settling For $1.4 Million.

christmastree.jpgA client of mine is having a very merry Christmas indeed. I already blogged about his Waterloo, New York car accident case. Guy was passenger in his buddy's car, who was stopped and waiting for traffic to clear so he could turn left into a driveway. Driver from behind, lost, looking at a map while driving, rear-ends them at full speed, causing them to flip over. Our guy ends up with a herniated cervical disc that takes him out of his welding job, for good, and requires surgery. The surgery helps, but does not rid him of the pain.

At first, there appeared to be no more than $100,000 in insurance, the policy limit of the driver/owner of the at-fault vehicle. There was no indication in the police report, or anywhere, that the negligent driver was doing anything but his own business when he rear-ended our guy. But an off-the-cuff remark by him at the scene -- about some "bovine sperm bottles" he had in his pickup truck -- tipped us off that perhaps he was working for some company that dealt in such products, even though he owned the vehicle and there was no company emblem or signage on it.

After some investigating, we turned up a California employer. The insurance carrier for the employer discloses a $1,000,000 insurance policy. Now we're talking! But still, we felt our client's case was worth more - what with all his pain and suffering, his completely altered life style, and the loss of his job.

We sued the employer and the driver. We got the judge to rule, without a jury trial, on "motion papers", that the defendants were liable and that our client had a "serious injury". Now all we would have to do was have a jury decide how much our client deserved. But just as we were getting ready for trial, and just after we made a full insurance policy limit demand of $1 million, the insurance carrier finally disclosed there was more --- another $10,000,000 excess policy!

The final result --- a $1.4 million settlement --- was obtained just the other day after a day-long mediation.

Our client is now having the merriest Christmas he has had in several years. And he is smart. He is making sure future Christmases will not leave him out in the cold. He is structuring his settlement into monthly payments that will take care of him for the rest of his life. The total amount of payments he will receive far exceed the cash value of his settlement.

So, yes, Virginia, there is a Santa Clause . . .

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


December 23, 2011

Central NY Injury Lawyer On Fall From Cell Tower In Marcy, New York

celltower.jpgNews reports say a man working on a cell phone tower near Marcy, New York, suffered serious injuries today after falling more than 80 feet. He is reported to have suffered multiple broken bones and was taken to Utica's St. Elizabeth's Medical Center.

Falls from a height like that can cripple, maim or kill. We had a similar case (fall from a cell tower) a few years ago, which we brought to a successful conclusion. To win it, we used a special law that helps workers who fall from rooftops, scaffolds and towers. It's called Labor Law 240, or "the scaffold law". It allows a fallen worker, under certain circumstances, to sue anyone with an ownership interest in the tower or the land the tower is on, including leaseholders, for compensation above and beyond what the worker will get in workers' compensation from his employer.

The key to winning this kind of case is to show that the worker was on the tower to "repair" something or to inspect something that was broken or malfunctioning. If his task involved "repair" work, or inspection work in contemplation of repair work, he is generally protected by Labor Law 240. But if he was performing mere "routine maintenance" of the tower, then he cannot prevail under Labor Law 240. He will generally be stuck with just his workers' compensation benefits, which (as anyone who has been on comp knows) generally isn't enough to pay the bills. It covers at most only about 2/3 of lost wages.

Under New York Labor Law 240, anyone with an ownership interest in the tower or land the tower was on can be held strictly liable for the workers' injury, even if the fall was largely the workers' own fault. The statute is designed to give the maximum amount of protection to construction workers and others who must risk their lives by working from heights.

Here are some of my other blog posts about Labor Law 240:

Save New York's Scaffold Law!

Tully High School Roof Repairman Who Fell From Roof Most Likely Has Solid Labor Law Case Against School District

Syracuse New York Construction Accident Lawyer Looks Up And Sees Labor Laws Being Broken!

Can I Be Sued If Someone I Hire To Remove Snow And Ice From My Roof Or Fix My Leaky Roof Falls? Central And Syracuse NY Personal Injury Lawyer Explains.

Can Spiderman Bring A New York Personal Injury Lawsuit For His Injuries?


Syracuse Fall-Off-Scaffold With Back Injury Case Settles For $1,000,000.

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
Fallen Worker Injury Lawyer
Michaels & Smolak, P.C.

1-315-253-3293