February 2, 2014

How New York Personal Injury Lawyer Can Be Spiderman's Superhero.

images[5]-thumb-300x224-13274.jpgWho wouldn't want to be Spider-man? His outfit is so much cooler than Superman's. And what about swinging between skyscrapers by spitting that web-gook from your wrists? Isn't that a more thrilling way of getting around than that all-so-boring Superman extended-arm flight?

Not so fast! Be careful what you wish for. At least that's what three Spider-man actors are saying.

Let me take you back to December of 2010, when I blogged about Spider-man's incredible 30-foot plunge to the stage floor in a Broadway performance of the musical, "Spider-Man: Turn Off the Light". His spider-swing-line failed, catapulting him to the stage below in front of a horrified crowd of Spider-man fans. But Spidey -- as I like to call him -- in true superhero fashion, recovered and returned to the show within months. The show must go on!

I don't know if Spidey sued for negligence, but he should have. Whoever designed or installed that swing-line did a terrible job and should have had to pay the consequences. How could that line fail to support him without there being some negligence?

Then the actor who eventually replaced Spidey 1 -- whom I'll call Spidey 2 -- was injured on the same stage (not clear how). He sued the stage equipment provider for $6 million.

That was not, however, the end of Spider-man's stage saga. Last August another Spider-man -- Spidey 3 -- was injured in the same theater when his foot got caught between a mechanical lift and the stage. He suffered serious foot injuries requiring "surgeries and amputations" according to the New York personal injury lawsuit he filed last week in Manhattan.

Yes, being Spider-man is clearly a dangerous job. And a certain amount of assumption of the risk clearly comes with the job. But when injuries are caused at least in part by someone's negligence, even Spider-man has right to recover.

Think about poor Spidey 3. He's a young dancer-actor with a serious permanent foot injury that may deprive him of millions and millions in income over his lifetime. It makes no sense that his foot would get caught between the mechanical lift and the stage without some kind of defective design there. A proper design would not have left a wedge wide enough for his foot to get caught.

Folks, keep in mind that us New York personal injury lawyers can be superheroes, too. You might say, "I'm not the suing type", but when you're hurt, can't work, can't pay the bills, and your kids are paying the price, too, and it's all because someone else wasn't careful, believe me, you'll be "the suing type" soon enough.

Hey, my suit-and-tie lawyer outfit might not be as exciting as Spider=man's skin-tight blue-and-red costume, but when I'm on my game, in Court, I can be someone's superhero . . . even Spider-man's!

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 Superhero Personal Injury Lawyers
Michaels & Smolak, P.C.

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


January 28, 2014

Can Uber (The Mobile Phone Driver-Rider Connection Service) Be Held Liable For a New York Car Crash?

index.jpgMove over taxi services. You're sooo "old school"! I mean, come on, making us stand on a corner and hale you down? Geez.

Uber is the new black. Just download the Uber app on your smart phone and it will "connect you with a driver at the tap of a button", according to the Uber webpage. An Uber driver will appear out of nowhere, having almost instantly obtained your location from his or her Uber drivers' app. No cash exchanges hands -- the rider's "fare" is paid automatically through his Uber online account.

Uber essentially connects freelance, self-employed drivers with anyone needing a ride in major cities, including New York City. It now operates in 26 countries and 50 cities. But at least here in the U.S. sticky questions are coming up about Uber's liability for crashes its drivers might cause.

For example, just recently in San Francisco an Uber driver hit a 6-year-old in a cross-walk, killing her. The victim's family has just filed a wrongful death suit against not only the driver, but Uber as well.

The legal problem with this in New York, and elsewhere, is that normally there are only three proper targets for a lawsuit where negligent driving is to blame: The negligent driver, the owner of the vehicle he was driving, and, if the driver was employed and on-the-job at the time of the crash, the employer.

But there's the rub. Uber claims it is not an "employer" of the Uber driver, but rather that the drivers are independent contractors who, owning and caring for their own vehicles, choose to participate in Uber's driver-rider matching service. Uber compares itself to the auction site eBay, connecting a buyer and seller (driver and rider) and not liable for what happens between them. It thus washes its proverbial hands of liability for any accidents.

There's a problem with this logic, though. Uber may be the next Ebay, but Ebay doesn't have the same capacity to kill and maim its users. Uber does because it could screen drivers based on their driving records. Also, what happens when an accident is caused by an Uber driver looking down at his Uber app to confirm where and when to pick up a rider? Or what if the driver runs someone over while pushing a button on the Uber app to confirm an assignment? In such cases, shouldn't Uber be held liable for distracting the driver?

The issue is coming to a fore because the company is becoming wildly popular in big cities all over the world.

Here's the rule I would espouse: Uber should be held liable for failing to screen for safe drivers and for any accidents caused by its drivers' use of its Uber app. Uber is in the best position both to screen its drivers and to enforce safe uses of its app. Such a rule will make Uber drivers safer and protect all of us. Beyond that, Uber should not be held liable for mere Uber driver error. It should, however, require its drivers to have the same amount of commercial liability insurance as cab drivers in the cities where they operate.

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

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

January 26, 2014

Do Meniscectomies Relieve Meniscus Tear Pain? Central NY Injury Lawyer Discusses Recent Study.

meniscus.jpgI recently read about a Finish study published in the New England Journal of Medicine suggesting that one of the most common types of knee surgery (a meniscectomy) is worthless. The meniscus (see photo), by the way, is the cartilage of the knee located on either side of what is popularly known as the "knee cap" (patella). It acts as a shock absorber.

The removal of (either part of or the entire) meniscus, known as a "meniscectomy", is a simple operation: Small incisions are made for inserting the arthroscope (a small surgical camera) inside the knee. A tool called a "shaver", guided by the surgeon, then trims torn meniscus and smooths the edges.

In the study, 146 patients with torn menisci were divided into two groups, one to receive real meniscectomies, and the other to receive a "fake surgery", in which blade-less shavers were rubbed against the outside of the knee cap to simulate the sensation of having an actual meniscectomy.

The study showed that the same percentage of patients in each group claimed to have benefited from the "surgery".

Wow.

I personally have undergone two meniscectomies (right knee lateral and medial) about 5 years apart. For me, both meniscectomies worked like magic: before the operation, my torn meniscus would start causing a sharp, stabbing pain after about a mile of running. After the surgery, in only about a month, I was out running my usual 5 to 7 miles painfree.

Many of my clients, Central New York personal injury accident victims, also end up with meniscectomies when a knee is twisted or knocked about in an accident. They have also usually gotten significant relief from the surgery. But after this Finnish study, I have to worry whether eventually health insurers and others will stop paying for meniscectomies. After all, the Finish study is basically saying the surgery is worthless.

So who's right, the Finish study or my clients and me?

As I read the article again, I noticed that all the participants in the study had "wear-induced meniscus tears", not traumatically induced tears from sports-related injuries or personal injury accidents.

My meniscus was torn by running, a kind of trauma to the knee. My clients' were torn by accident trauma, usually falling on pavement or hitting the dashboard in a car accident. Perhaps therein lies the difference; trauma induced meniscus tears somehow are relieved through surgery, whereas old-age wear-and-tear ones are not.

So here's my note to the Finnish study folks: Redo the experiment with trauma-induced meniscus tears, will ya?

Keep safe!

Mike Bersani

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

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

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


January 25, 2014

Hospitals Rip Off Patients And Tax Payers By Prodding ER Docs To Keep Patients Overnight Unnecessarily.

money doctor.jpgHospital care in this country is sick. Sadly, old-fashioned medical "care" is giving way to the "big business" model. Nothing new about that. Profits are being exalted over patient care. Again, nothing new. But the news about Health Management Associates, a for-profit hospital chain based in Naples, Fla., is simply over the top.

The New York Times reports that, in order to entice their ER docs to drum up more profits, the hospital chain carefully tracked each physician's ratio of admitting, versus not admitting, ER visitors for overnight stays. Worse, each physician had a visible-to-others color-coded "score card": green (good grade), yellow (watch out!) or red (failing grade). "Green" docs were given bonuses while the reds' jobs were on the line.

The goal? To inflate the company's payments from Medicare and Medicaid by admitting patients who really don't need to be admitted to a hospital, like -- and this really happened -- an infant whose temperature was a normal 98.7 degrees for a "fever".

This is what happens when community based not-for-profit hospitals are transformed into large, corporate, profit-driven ones. Good health care is no longer the real goal - big profits are. Sure, there are advantages - economies of scale, efficiencies, some cost cutting - but at what price? Under this new model of health care, physicians become mere employees of large corporations who focus on making sick profits rather than making the sick profit from their services.

The head of the outfit -- the genius who initiated the twisted color-coded reward system for ER docs -- stepped down last year, but not before making $22 million in the last three years before he left.

Hello? Is there any justice out there? Well, some. Medicare and Medicaid, with the help of the Department of Justice, have sued the hospital chain to recoup payments. There may be criminal charges, too. But what about the patients who were persuaded to stay overnight for unneeded vigilance and testing? Can they sue for their lost time and the extra worry? Individually, probably not -- the cost of litigation would overwhelm any potential recovery. But there may be a class action lurking out there somewhere.

Let's hope so. A class action would be a nice shot-in-the-arm to this sick corporate hospital model.

Keep safe!

Mike Bersani

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

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

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

January 24, 2014

Beware Of Personal Injury "Settlement Mills", Central NY Injury Lawyer Explains.

mill.jpgI came across a Stanford law professor's study on the effect of "settlement mill" type personal injury law firms on personal injury case settlement results. If you're searching for a New York personal injury lawyer, it's worth a read! But since you probably won't read it (it is 63 pages long!) let me summarize it for you.

Before I go any further, I'd better explain what we mean by "settlement mill".
In the words of the law professor who did the study, a "settlement mill" is a "high-volume personal injury law firm that aggressively advertises and mass produces the resolution of claims, typically with little client interaction and without initiating lawsuits, much less taking claims to trial".

These personal injury firms make money by quickly processing a huge volume of cases (like a "mill" churns wheat). The cases must be under-worked because preparing a case for trial takes too much time. To get the case settled, they often take much less in settlement than the client would get if she had hired a dogged lawyer prepared to fight for her all the way to the courthouse doors. The mills make their money on volume, not quality, of work.

This way of doing business differs markedly from the traditional personal injury law practice, which we at Michaels & Smolak follow. In the traditional approach, personal injury lawyers take the time to build and advance each client's personal injury case. Even though it is time-consuming, and doesn't bring in the fast buck, in the end the client usually fairs better at trial or in a settlement. That's because the insurance company or its lawyer sees that we are well prepared to try the case to a jury, which could lead to a considerable verdict, and because we have uncovered nuances of the case -- overlooked by the "mills" -- that can make it stronger.

Traditional personal injury lawyers (like us) spend so much time on each case because we care about our reputation among the clients and the attorneys who refer us the cases. Since most of our cases come from referring attorneys and former clients, we need to continually "prove" ourselves to them. We have a smaller case load than the "mills" , but work each case more carefully and thoroughly.

In contrast, the big-advertising "settlement mill" lawyers don't care too much about word-of-mouth reputation. They are getting their cases not from former clients, and not from referring attorneys, but from bombarding airwaves and billboard. A dissatisfied customer is no big deal -- the next customer wont' come from her referral, but from advertising.

The law professor concludes that "settlement mill" clients generally fare worse (get less money in compensation) than the clients of traditional personal injury lawyers.

Here's a blog post from a Florida personal injury lawyer who also summarizes the Standford study (though not as briefly as I have).

Bottom line for my readers: Be careful what kind of New York personal injury law firm you hire. If they are on TV round the clock, and on every other billboard, they may be a "settlement mill", and you might want to talk to other lawyers regarding their reputation before deciding to hire them.

Keep safe!

Mike Bersani

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

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

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

January 23, 2014

More Funny Lawyer Advertisements, Posted By Central NY Injury Lawyer.

Lawyer ads! Godda luv'm: I've blogged about lawyer advertising before. It is an unfortunate necessity, at least for New York personal injury lawyers. We do very little of it compared to the "big advertisers" in Central New York, and we try to do it in a dignified, serious manner. You have to enjoy the humor, though, of those that take the opposite approach. So enjoy these lawyer ads, and don't miss the rappin' lawyer at the end:

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Keep safe!

Mike Bersani

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

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

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

January 10, 2014

Self-Driven Car Manufacturers Should Get No Free-Pass Around Tort Law

car sale lot.jpgCNBC reports that those sci-fi-like, self-driven cars ("SDC's"), also called "automated cars", will account for half of all vehicles on the road by the year 2035, with the first ones hitting the market by 2020. (You can see one operated here). The first generation of these vehicles will require someone in the driver's seat just in case the technology develops a problem--much like an aircraft autopilot. Truly independent SDCs requiring no human involvement will begin to be offered by 2030. (I blogged about these new cars here).

But CNBC also reports that Nissan Motor, one of the leaders of the new technology, cautioned that "because of the litigious nature of the American market, manufacturers might have to steer clear of the U.S. unless legislators take steps to protect the industry from a flood of frivolous lawsuits".

Forgive my skepticism, Nissan, but that is pure baloney. First, why would you fear "frivolous" lawsuits? If the lawsuits are frivolous, you will beat them and they will cost you almost nothing. What you are really afraid of are meritorious lawsuits, ones that will hold you accountable for the death and destruction your negligent design may cause.

Your request for a free pass around tort law is not new. It's the same damn argument car manufacturers have always made when they want to put a new product on the market: "Lawsuits will prevent progress". But all of history proves the contrary; vigorous tort law does not inhibit progress, but ensures progress in safety. The seatbelt, the air bag, crash resistance, anti-lock brakes - all of these were catapulted into existence by lawsuits.

What Nissan really wants is a get-out-of-jail free card to negligently design and manufacture dangerous vehicles so it can stuff its pockets with fat profits at the expense of Americans' safety. Don't give it to them! Good old fashion American tort law is the best engine ever designed for holding greedy corporations, such as Nissan, to the task of building safety into their products.

Bottom line: The only thing standing between the American people and unsafe SDC's is tort law. So let's not let the automobile lobby get their way on this one!

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 Auto Accident Lawyers
Michaels & Smolak, P.C.

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


January 9, 2014

How NY Medical Malpractice Law Discriminates Against The Young, The Old, And The Poor

nursing home woman.jpgI recently read an interesting online article entitled "Patient Harm: When An Attorney Won't Take Your Case". The article describes the sad truth that most legitimate medical malpractice victims will never find a lawyer to represent them because their injuries are too "insignificant" to be "litigation worthy".

You see, medical malpractice cases are extremely expensive to bring because (1) the doctors and their insurance companies will generally fight you all the way to trial and won't settle; (2) to prove your case, you need to hire at least one, and usually more, expensive expert physicians who will testify that the defendant doctor committed medical malpractice and who will describe the injuries he caused you.

Because medical malpractice cases are so expensive (the costs, not including attorney's fees, are generally at least $50,000 and usually closer to $100,000), the amount of compensation a jury is likely to give you for the injury has to be worth at least $250,000 to make it worth the lawyer's time, and worth the risk he is taking of going to trial and losing.

The article points out that the law here seems to discriminate against children, the poor and the elderly because often it is only a "bread winner" who can prove sufficient economic loss to make the case worthwhile. For example if a 40 year-old computer technician earning $100,000 per year is the victim of medical malpractice and he can't work for the rest of his life, in lost earnings alone his case is worth a few million dollars. But the retired worker, or an unemployed one, or a child, often can't prove any real damages for lost wages, so their malpractice case won't be capable of bringing in a verdict big enough to entice a malpractice attorney to take on all that work and risk.

And that's too bad, because for many of these patients or surviving family, a lawsuit is their only hope to recover what, for them, isn't just "chump change", but real money they need, and it is also the only means they have to learn the truth about what happened to them or their loved one.

The sad truth is that most malpractice victims seeking a medical malpractice lawyer can't find one who will take their case. At Michaels & Smolak, we reject at least 90% of medical malpractice cases. And it's not because we don't want to help the victims, but because the damages suffered won't pay for the lawsuit! If we took on every medical malpractice case that walked into our door we would be shutting that door within a year. Unfortunately, sometimes reality gets in the way of real justice.

Keep safe!

Mike Bersani

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

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

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


December 31, 2013

Happy Most-Dangerous-Night-of-the-Year! (Central NY Injury Lawyer Explains)

Why is New Year's Eve so damn dangerous? Drunk driving is, of course, the biggest killer tonight. But drunk walking is a close second. Did you know that more people die while walking down the street tonight than any other night of the year? The dangers of dunk driving and drunk walking are easy to avoid; just stay home and celebrate with friends and champagne, right?

Yes, but even if you stay home there is one New Year's Eve danger you need to avoid tonight. Cork popping. No, not popcorn popping, cork popping. Champagne, a big New Year's favorite, incorrectly popped, causes serious blinding injuries each year. The pressure in those bubbly bottles can reach 90 pounds per square inch - more than most car tires. The cork can travel at a bullet-like 50 miles per hour as it leaves the bottle, fast enough to rupture eyeballs, detach retinas and take out your eye, or the eye of a fellow reveler. Spending New Year's Eve on an ophthalmologist's surgery table is not a good way to bring in the New Year. And guess what --- it happens every year. Just ask your local emergency room doc.

But thankfully there's a surefire (no pun intended) way to slow down the cork's pace --- and thus make it a lot safer. Make sure your champagne bottles are well chilled. A warm bottle's cork explodes much sooner and with greater force than a cold bottle's. And here's some other safety tips for uncorking the bubbly:

Don't shake the bottle.

Place a towel over the entire top of the bottle and grasp the cork.

Keep the bottle at a 45-degree angle, away from your eyes and others', while uncorking

Watch this video for a complete explanation of safe cork-popping:


Keep safe!

Mike Bersani

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

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

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

December 28, 2013

Meet "Everyday Hero" Chris Rawlins!

131225_0000.jpgAs Syracuse Crunch fans all know by now, Michaels & Smolak, P.C., your Central New York Injury Law Firm, is honoring "Everyday Heroes" at all Syracuse Crunch home hockey games this winter. "Everyday Heroes" are local community volunteers who have given their time and talents to a local charitable organization. In front of the whole Crunch crowd, we regal them, and their family and friends, with free game tickets, food, drink, etc.

Let me introduce you to Michaels & Smolak's latest "Everyday Hero", eleven year-old Christopher Rawlins. Chris was born with Cerebral Palsy. He attends Reynolds Elementary School where he is an excellent student, plays the tuba and soccer, and participates in school plays. Chris has also participated in the Special Olympics and is a Jr Elk at the American Legion in Baldwinsville.

Nothing holds this kid back! He has a fantastic attitude, an infectious smile, and likes to keep friends and family entertained with knock-knock jokes. He is a huge Dallas Cowboys fan and can rattle off statistics on games and players.

As you can see, Chris has not let the hard knocks of life knock him down. But there's more: He gives back! He regularly helps out at a local Music Fest to raise money for Cerebral Palsy and is an active member for other fund raisers as well. He approaches each new task with determination and pride in doing the best he can.

Congratulations to Chris for being an Everyday Hero, and to his family for helping him become the wonderful person he is. And thanks to Linda Wood for nominating him.

Come on, help us honor your Everyday Hero, right here, right now! It could be a friend, a relative, or just someone whose volunteer efforts you admire. Click here to nominate someone right now.

Keep safe!

Mike Bersani

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

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyers
Michaels & Smolak, P.C.
1-315-253-3293 Toll Free 1-866-698-8169

December 17, 2013

"What's My Central NY Personal Injury Case Worth?"

money.jpg"How Much Is My Case Worth"?

I have heard this question thousands of times. And there is no easy answer. That's because so many factors affect the "value" of a case. What do we mean by "value" anyway?

The settlement value of a case is based on a prediction of whether a jury will find you have a valid case, and if so, what the jury will award you for your injury. Since juries vary widely, and it is impossible to predict what any particular jury will do, we consider what an average jury would do.

Why are juries different? Because they are made up of people , and people are all different. The chemistry of the jury, with their individual biases, will impact the deliberation and thus the result. Also, juries in some geographical areas, such as New York City and Buffalo, are generally more generous with their verdicts than juries in rural areas. Thus, the venue of your case matters in determining "value".

But not only do juries vary widely, so too do the facts of each case. Although I have been practicing law for decades, I have never had the "same case" twice. Each one is different. That's because the factors discussed below, which affect value, are infinitely variable.

Here are the main variables:

(1) the "liability" component. How solid is our case for holding the defendant legally liable for your injuries? If the defendant is clearly liable, your case is worth more. The settlement value of your case goes up proportionally with the likelihood of a jury finding defendant liable.

(2) The "causation" component. Sometimes it might be very clear that the defendant was liable, and that you were injured, but not at all clear the two things are linked. We call that a problem with "causation". We are legally required to prove the defendant's negligence caused your injuries. This problem comes up a lot when the client has pre-existing injuries. For example, if you had pre-existing neck pain and are claiming that it got a lot worse after the accident, the defendant will often argue that none or very little of the injury was caused by the accident. If this argument appears strong, your case is worth less.

(3) The injury component.
The more significant your injury, the more horrible your suffering, the longer you have to endure it, the more it limits your activities, the more your case is worth. So, for example, the case of a 10-year old who lost a leg is worth more than the case of an 80-year old with the same injury because the 10-year old has about 70 years left to soldier on with that injury, while the 80-year old only has a few left. And the missing leg case is worth more than the missing finger case and both are worth more than the fractured-but-well-healed knee case.

Other factors also help us determine settlement "value". For example, one thing we consider is how well you will present to a jury. Some folks come across as more attractive, more sympathetic, better at explaining without whining. Others are just not as likeable. Likewise, if the defendant is unlikeable, or what he did is likely to anger the jury, that increases the value of your case. Other factors include the economic damages (lost wages and medical bills) and the amount of available insurance.

Who decides whether to settle the case? You do! Our attorneys just tell you what they believe your chances of success are, and what we believe a fair settlement that reflects these chances is. The insurance company on their end does the same thing. Sometimes we agree with them, sometimes we don't. The insurance company might present us with a settlement offer that we believe is unfair in that it is too low to accurately reflect what an average jury would give you. But ultimately you decide whether to take the offer or go to trial. And by the way, once an insurance company has offered you its top dollar, those are your only two choices: take the money or go to trial.

That being said, we often sue a case out when the insurance offer is too low (with your consent of course) and then during the course of litigation the offer goes up considerably. This is so because (1) the insurance carrier sees we "mean business" and (2) often the depositions and other evidence that come out during litigation sharpen the case and show the insurance company that it is risky to go to trial.

In my many years of talking with clients about the "value" of their case, I find that clients often think that some things matter, when in fact they don't. The most common things that don't matter, but that clients believe do matter, are:

(1) "I could have died in the accident". This is generally not relevant. The fact is you did not die. "Could have" is generally irrelevant in determining value.

(2) "I got behind on my bills because of this". This is generally not relevant. Yes, you have a right to recover your lost wages and your medical bills, but the law generally does not allow you to recover for the anxiety of getting behind on your bills or even for loss of your good credit rating.

(3) "My doctor says I could develop other medical problems because of this injury". The fact that you "might" develop other conditions because of the accident does not generally increase value. On the other hand, if your doctor says it is "likely" you will develop those conditions, this will increase your settlement value.

Keep safe!

Mike Bersani

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

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

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

December 16, 2013

Online Wall of Shame For Manufactures and Other Employers Is Good Idea! CNY Injury Lawyer Explains.

ladder.jpgDo you think you might be a safer driver if your traffic convictions and accidents were posted on line and easily searchable so that all your neighbors and friends could look your record up?

If your answer to that question is "yes", then you'll like a new rule by the Safety and Health Administration ("OSHA") which makes companies' safety records easily available on a government website.

Why this new rule? The shame factor. OSHA's thinking is that if companies with a bad safety record know their record will not remain hidden is some dusty notebook in a government basement, but rather see the light of day on the world-wide web, they might think twice about cutting safety corners. In addition, prospective employees will be able to compare, when deciding which job to accept, not only the wages of the employers but also their safety records. As a side benefit, personal injury lawyers like me can build negligence cases against repeat offenders with greater ease.

This new online posting rule is really no different from what health departments already do when they inspect a restaurant. If they find a dirty stove, or a dead rat, or cockroaches, they post a failing grade on the offending restaurant's window. The fear of this bad publicity makes restaurants stay clean. If the report were hidden, it wouldn't have the same effect.

Despite the obvious public benefit of the "open sunshine" rule, manufacturers and businesses are balking. They claim the safety data could be "misinterpreted" by the general public. But what they are really afraid of is a shameful truth. The truth is that three to five million workers are injured on the job in the U.S. each year, and most of those injuries are totally preventable. All companies have to do to prevent most injuries is follow existing safety rules. But they don't because it is cheaper not to. The online "wall of shame" will make it more expensive because the bad publicity might hurt their pocketbooks more than paying to keep things safe.

And that's a good thing. Hats off to OSHA.

Keep safe!

Mike Bersani

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

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

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

December 13, 2013

Stupid + Dishonest = You Lose. Central NY Injury Lawyer Explains.

stupid lawyer.jpgBeing stupid and dishonest at the same time is a toxic mix. The math goes like this: stupid + dishonest = disaster. And here's an example:

An Iowa lawyer was stupid enough to fall for one of those obvious email scams cooked up by some Nigerian shysters. You know, one of those emails that starts out with "Dear Attorney: We have urgent need to hire your firm for important matter involving large estate . . .."

The Nigerian email schemers had a U.S.-based confederate, an existing client of the lawyer, help them convince the lawyer that the client was about to inherit $18.8 million from a long-lost Nigerian cousin. They then convinced the lawyer to represent the client to procure the inheritance in exchange for a 10% fee, which would amount to about $1.8 million.

The only problem was that someone was going to have to come up with $180,000 in Nigerian inheritance taxes, which had to be paid before the inheritance could be released. Guess who had to come up with that? You get the picture . . .

During the course of the scam, the lawyer talked by phone to people who represented themselves as lawyers, bankers and even the president of Nigeria. You have to admire the acting talent of these shysters -- they totally convinced this lawyer that they were who they said they were.

The lawyer, who did not have the $180,000 to pay the "inheritance tax", convinced several clients to loan the would-be heir the money, promising them huge returns on their investment.

Even though the lawyer was stupid, he was certainly smart enough to know that involving existing clients in a money investment where he was going to receive a contingency fee violated the code of ethics for lawyers. Thus, he was not only stupid, but dishonest.

But surprise, surprise --- the $1.8 million never showed up and the heir to the fortune disappeared, and emails stopped coming.

So the dumb/dishonest lawyer's clients are out of pocket $180,000, and he is in big-time trouble with the lawyer ethics cops. In fact, his law license has been suspended for a year.

Hey, maybe he could use that year to try to locate the inheritance money: He says he still believes its real and that the money will show up! A trip to Nigeria should do the trick . . .

Moral of the story: Don't be stupid. And don't be dishonest. But above all don't be stupid and dishonest.

Keep safe!

Mike Bersani

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

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

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

December 12, 2013

This Holiday Season, Get A Designated Driver --- For The Morning After!

hangover.jpgIf you are like me, you might end up downing a few more drinks than usual during the Holiday Season, especially at the dreaded "office party"! And I am sure I don't have to tell you that it is illegal, dangerous, and plain wrong to drink and drive --- your judgment, coordination, and reflexes are all impaired.

But did you know it may not not be safe to drive the next day, either? According to two recent studies, being hungover, even with zero alcohol content in your blood, impairs your driving performance almost as much as being drunk.

Participants in the experiments went out drinking on the designated night (I am sure they found plenty of "volunteers" for this experiment), had about 10 drinks each (yowzer!), and the next morning took a 20-minute simulated drive through urban and rural settings.

The result? Excessive speed, slower reaction times, lapses in attention, and more driving errors generally. In fact, the hungover participants did just as badly as intoxicated drivers. Yet all the driving tests were performed after the participants' blood alcohol concentration had returned to zero!

Moral of the story? If you are going to drink a lot, get a designated driver --- for the next morning!

Keep safe!

Mike Bersani

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

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

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


December 9, 2013

"But I didn't Say That!" The Consequences For Your New York Personal Inury Case If Your Doctor Misquotes You In Your Medical Records.

medical records.jpgDoctors, nurses, physicians' assistants and other medical providers are not always good listeners. I know this from personal experience, but also because they frequently misquote my clients in their medical records.

For example, I once had a client who tripped on a broken-up walkway on the way into a store and suffered a serious knee injury. But the emergency room record said that the patient had "slipped and fell" and injured his knee.

"Slipped", "tripped", what's the difference, right? For the doctor, none. For me, the difference was crucial. The doctor made this mistake because it didn't matter to him how the plaintiff came to fall; for the purposes of diagnosing and treating the patient, his or her only concern was that he fell, and what part of his body he landed on. So he was only half listening when the patient told him how he ended up falling. He was more interested in learning what part of the knee hit the concrete, where it hurt, and whether the patient had mobility there.

So why did the distinction matter to me? Because later when I would call the insurance adjuster to try to settle the case, the adjuster was likely to say, "your client has no credibility. He now says he tripped and fell, but he told the doctor at the ER that he SLIPPED and fell." The implication is that I, his attorney, went out to the scene and decided it would be a better case if he tripped on the broken-up concrete. But nothing could be further from the truth.

If a case like this goes to trial, I can often keep my client's alleged statement to the doctor out of evidence. In fact, New York law says a patient's alleged statements in medical records are admissible (as part of a "business record") only where they are "germane to the diagnosis or treatment of plaintiff". Otherwise, they are inadmissible hearsay.

In other words, if the patient's statement is helpful in determining a diagnosis or a course of treatment for the patient, the statement gets into evidence, but if is not, I can keep it out.

In the above example, whether the client SLIPPED or TRIPPED is not germane to the diagnosis or treatment. The fact that he FELL is germane, but how exactly he came to fall is not germane, which is precisely why the doctor got it wrong in the medical record - it did not matter to the doctor how my client came to fall. What mattered was that he DID fall, and that he landed on that knee that now needs a diagnosis and treatment.

But try explaining all that to an insurance adjuster! Believe me, she won't understand it, and then I have to put the case in suit and try it. The adjuster will then learn, at trial, that I was right. Meanwhile, my client has had to go through a trial that should never have happened.

By the way, you'd be surprised how many New York personal injury lawyers don't know that statements by their clients in medical records that are not germane to their treatment or diagnosis are inadmissible as evidence. Be sure to hire one that does!

P.S. I'm available.

Keep safe!

Mike Bersani

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

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

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