November 23, 2013

The Creepy Jury Stalker Story Goes Viral

stalker.jpgThe "Creepy Jury Stalker" story, straight from my hometown, Syracuse, New York, has gone "viral". The New York Law Journal covered it, and so did the American Bar Association Journal not to mention the Syracuse Post Standard.

Now an even more important news source is covering it: Me.

The backdrop to the story is a dental malpractice trial in Onondaga County Supreme Court. The insurer for the defendant dental practice was AIG, the same AIG which helped collapse the global economy in 2008. I guess their fifteen minutes of fame infamy back then wasn't enough, and they have come back to the trough for more.

But I digress. On with the story.

AIG paid for local Syracuse trial counsel to defend its insured defendant but also sent to trial a downstate "litigation lawyer", Scott Greenspan, to "monitor" (according to him) the trial. He had no role in the trial itself but, as you'll see, was an important "presence" at the trial.

At the conclusion of the trial, the jury rendered a verdict in the defendant's (AIG's insured's) favor. Then, in a kind of "debriefing" session after trial, they happened to ask the judge who that "creepy" guy was who had been following them around everywhere during trial. The jurors described Greenspan, and complained that he would follow them into the elevators, into restaurants - wherever they went, he was close behind, or right next to them. Listening and watching. In other words, stalking. And though they were puzzled as to who he was or why he was doing this, they figured out he worked for the defendant because he was often seen talking to defendants' trial lawyers.

Now the story gets very interesting because Judge Karalunas did a very brave thing. She flipped the verdict. She un-rung the bell. She ordered a new trial. She snatched victory from the claws of the defendant, and thus from AIG and its stalker.

Why was this brave? Because even though what AIG and its lawyer did were clearly wrong, reprehensible, even "creepy", there was no evidence, at least none I have seen, indicating that the jury verdict was affected by the stalking. None of the jurors told anyone, as far as I can tell, "we voted to let defendant off the hook because we were afraid of the creep".

Personal injury lawyers like me are just eating this story up. It feeds our love/hate relationship with insurance carriers. Insurance companies are the boogie man we all love to hate. Why do we hate them? Let me count the ways: They wrongfully disclaim coverage whenever they think they can get away with it, never mind years of faithful premium payments by their insureds; they give our seriously injured clients low-ball settlement offers; they advance ridiculous legal positions in court; they spy on our clients through tinted glass vans with zoom-in cameras, sometime right into their bedrooms; they make our clients submit to so-called "independent" medical exams by their biased medical doctors who routinely testify on their behalf that our clients' injuries are fake, exaggerated and/or not causally related to the accident.

Now we get to add one more transgression to the insurance industry's seemingly infinite list of sins: They send creepy lawyers out to stalk jurors at trial. And we love this story because for once the insurance carrier was actually punished for its misbehavior!

I hope Judge Karalunas' decision will stand up on appeal. The insurance companies and their goons need to learn some lessons from the school of hard knocks.

Now let me tell you something about Judge Karalunas. I have argued many motions in front of her, but this summer I had the pleasure of tying a jury trial in front of her. She was extremely sharp, fair and always tried to do the right thing. She showed great respect for the lawyers, the parties, and especially the jury. I must emphasis this -- she made it clear that she respects juries enormously -- in my opinion more so than most judges -- and will go out of her way to make sure the jury has an uplifting experience while performing its civic duty of rendering justice as best it can.

That's probably why she was so harsh on the defendant here. She was clearly outraged -- as we all should be -- that an insurance company would stoop so low as to exert this type of psychological pressure on the jury.

She might be shocked at this behavior, but I'm not. I have become jaded to insurance company foul play. Ask any New York personal injury lawyer who has had this gig as long as I have and I think they will concur. Judge Karalunas hasn't ever been a personal Injury litigator, so this was simply a wake up call for her. I applaud her courage and hope to see her affirmed.

November 17, 2013

Greedy Lawyers Give Us Good Guys A Bad Name

hypocrite.jpgOne bad apple can spoil the whole bunch. Likewise, a few greedy lawyers can make all lawyers look bad. Here's a prime example.

First some background. We New York personal injury lawyers generally charge a 1/3 contingency fee. Sometimes we work our asses off and the case goes south or we get a very small settlement or verdict. Cases that look good at the start can quickly sour when the other side pulls out its evidence. In those cases our per-hour fee can end up being a buck hour or less.

On the other hand, sometimes we get a great result for not-so-much work, and can earn a huge hourly fee. It all evens out in the end and we make a decent living, even a very good one if we are very good at what we do (we are!).

There are exceptions to the standard 1/3 contingency fee, though. One of them is when the injured plaintiff is an "infant", defined by law as anyone under the age of 18. When settling an "infant's" case, New York law requires court approval of both the amount of settlement and the amount of the fee. In my experience, Central New York judges won't allow for a 1/3 fee in an infancy case unless (1) the lawyer has brought the case all the way to trial or (2) the case involved more legal work than is customary for a personal injury case.

For example, if a lawyer takes the case as far as depositions, and then settles before trial, the Court is likely to grant the attorney a 25% contingency fee, maybe 30%, but no more.

We at Michaels & Smolak make it a practice to request only a fee that we believe the judge will deem fair for the infant. As a result, our fee requests in infancy cases have never been rejected.

Apparently not all law firms follow this practice. In a case recently discussed in the New York Law Journal, C.M. v. Syosset (11-cv-01402) a judge recently referred a Long Island law firm to an attorney disciplinary committee after finding the firm's fees were not only too high, but they failed to disclose the true amount.

How high were the fees the attorneys failed to disclose? Guess.
50%?
Nope.
$75%?
Nope, guess again.
100%?
Not even close.

FOUR TIMES THE AMOUNT OF THE SETTLEMENT!!! That's right, the infant had to pay the lawyer 4 times what he got in settlement. This incredible fee was based on a combination of contingency and hourly payment calculations.

When the judge got wind of the fee, he called it "wildly disproportionate" and ordered most of it disgorged.

In my opinion, they should also be ordered to disgorge their law licenses. Getting rid of the bad apples spares the whole bunch.

Keep safe!

Mike Bersani

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

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

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

November 15, 2013

Should Drunk Who Tries To Kill Himself By Lying Down On Railroad Tracks Be Allowed To Sue Railroad?

train tracks.jpgLet's say you're feeling blue, have a few, get into a drunken stupor and decide to kill yourself by lying down on some nearby railroad tracks. Let's say the railroad company, doing what railroad companies do, then runs a train along its tracks. The engineer spots you almost immediately, puts the train into emergency, but cannot stop the train before it reaches you. You get hurt.

Should you be able to sue the railroad? In De Los Santos v. MTA Long Island Rail Road, the Queens County judge says "no". After reviewing the case law regarding a railroad's liability for striking pedestrians on its tracks, he surmised that the "focus [must be] on whether the reaction of the train operator was reasonable under the attendant circumstances", which they were here.

I represent injured people all day long. They sometimes have some fault in causing their own injury (we personal injury lawyers call this "comparative negligence"). But I don't know if I could sue a railroad on behalf of a suicidal drunk who lies down on the tracks. Takes hutzpah.

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


November 14, 2013

A Yellow Dot Can Save Your Life

yellow-dot-web.jpgsheriff yellow dot window.pngAs New York car accident lawyers, we have represented many critically injured motor vehicle accident victims over the years. One thing we have learned is that first responders who arrive at the scene of a wreck aren't always able to take into account the victims' health history or medical conditions before rendering treatment. And that's too bad, because that knowledge can mean the difference between life and death.

For example, I am on a blood thinner (Xarelto) because if have developed some atrial fibrillation - a common and minor disorder of the heart. And I sure would want anyone performing emergency medical care on me to know about that. After all, I could bleed to death if they do surgery on me without knowing I am on blood thinners.

Now there is a potentially life-saving program from the New York State Sheriffs' Association that can help you, your family, and your friends alert first providers about their medical conditions and medications. It's called the "Yellow Dot Program" and it works like this:

Pick up the Yellow Dot kit at your local sheriff's office. Then place the "yellow dot" decal you find in the kit on the driver's side rear window of your vehicle (see photo). This alerts first responders that vital medical information is stored in your glove compartment. Then fill out and place in your glove compartment the "yellow dot card" which has your photo on it and contains all the important medical information that first providers need to know about you. You can complete one card for each person who regularly occupies the vehicle.

Yellow Dot kits save lives and are available for free. Pick up a kit at any of the central New York deputy sheriff's offices listed below:

Cayuga County Sheriff's Office
7445 County House Road, Auburn, NY 13021
(315) 253-1222

Monroe County Sheriff's Office
130 South Plymouth Avenue Rochester, NY 14614
(585) 753-4178

Ontario County Sheriff's Office
74 Ontario Street, Canandaigua, NY 14424
(585) 394-4560

Seneca County Sheriff's Office
6150 State Route 96, Romulus, NY 14541
(315) 220-3200

Tompkins County Sheriff's Office
779 Warren Rd, Ithaca, NY 14850
(607) 257-1345

Wayne County Sheriff's Office
7376 Route 31, Suite 1000 Lyons, NY 14489
(315) 946-9711

Your may also request a kit by going to www.nysheriffs.org/yellowdot.. Request kits for your friends and family too!

Keep safe!

Mike Bersani

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

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

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

November 11, 2013

Bystanders Accidently Shot By Police Face Uphill Battle In New York Personal Injury Lawsuits

policecar.jpgI came across a New York Times' article today titled, "Bystanders Shot by the Police Face an Uphill Fight to Win Lawsuits." We don't get a lot of cases brought by bystanders struck by police bullets in my neck of the woods (Syracuse & Central New York), but the article interested me because it deals with an area of New York personal injury law I write and speak about frequently; "governmental immunity".

First, a bit of background. The legal doctrine of "governmental immunity" in very general terms says this: As long as a governmental actor, such as a police officer, exercises his or her discretion in making a decision, the victim of any negligence can't sue for the harm. This doctrine is meant to protect our governmental agencies, such as police departments, from a barrage of lawsuits and allow them to make their sometimes necessarily spur-of-the-moment decisions without fear of being sued. It also protects all of us taxpayers from getting hit with huge bills for lawsuit verdicts.

But recently, in my opinion, the Court of Appeals has taken the doctrine too far. As a result, it seems almost impossible to hold a police officer liable for his or her negligence. For example, in the 2010 case of (Johnson v City of New York) the Court threw out a lawsuit brought by a bystander struck by police bullets intended for an armed robbery suspect, even though the police officers testified THEY NEVER EVEN LOOKED TO SEE IF THERE WERE BYSTANDERS NEARBY BEFORE THEY STARTED FIRING. The police won that suit by relying on police guidelines stating that officers should not fire their weapons when "in their professional judgment, doing so will unnecessarily endanger innocent persons". They claimed they had exercised their "professional judgment", and thus were off the hook. But how could they even exercise that "judgment" if they never looked to see whether there were any bystanders? Four of the seven justices said it did not matter; the police were acting within their discretion when they fired, and thus were protected by "governmental immunity".

As a result of cases like Johnson v City of New York, the City has now taken an "aggressive stance" against claims brought by wounded bystanders who sue for injuries caused by stray police bullets. Recent example: In September two officers near Times Square mistakenly believed, wrongly, that a man was holding a gun, shot at him, missed, and instead struck two female bystanders standing in a crowd nearby that was clearly visible to the two officers. One of them has sued for negligence. The City's legal department's stance? This is a "no-pay" case. Won't negotiate a settlement.

I'm not saying that the police should pay for any and all "collateral damage" resulting from their admirable and sometimes heroic efforts to protect us all. Some discretion and mistakes should be allowed for in the heat of battle. All I'm saying is the scale seems to have tilted too far in favor of the police right now, and that means police departments can, with impunity, allow their officers to act carelessly and even recklessly, thus endangering all of us, without paying the price.

Keep safe!

Mike Bersani

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

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

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


November 11, 2013

Bystanders Accidently Shot By Police Face Uphill Battle In New York Personal Injury Lawsuits

I came across a New York Times' article the other day titled, "Bystanders Shot by the Police Face an Uphill Fight to Win Lawsuits." We don't get a lot of cases brought by bystanders struck by police bullets in my neck of the woods (Central New York), but the article interested me because it deals with an area of law I write and speak about frequently; "governmental immunity".

First, a bit of background. The legal doctrine of "governmental immunity" in very general terms says this: As long as a governmental actor, such as a police officer, exercises his or her discretion in making a decision, the victim of any negligence can't sue for the harm. This doctrine is meant to protect our governmental agencies, such as police departments, from a barrage of lawsuits and allow them to make their sometimes necessarily spur-of-the-moment decisions without fear of being sued. It also protects all of us taxpayers from getting hit with huge bills for lawsuit verdicts.

But recently, in my opinion, the Court of Appeals has taken the doctrine too far. As a result, it seems almost impossible to hold a police officer liable for his or her negligence. For example, in 2010 the Court threw out a lawsuit brought by a bystander struck by police bullets intended for an armed robbery suspect, even though the police officers testified THEY NEVER EVEN LOOKED TO SEE IF THERE WERE BYSTANDERS NEARBY BEFORE THEY STARTED FIRING. The police won that suit by relying on police guidelines stating that officers should not fire their weapons when "in their professional judgment, doing so will unnecessarily endanger innocent persons". They claimed they had exercised their "professional judgment", and thus were off the hook. But how could they even exercise that "judgment" if they never looked to see whether there were any bystanders? Four of the seven justices said it did not matter; the police were acting within their discretion when they fired, and thus were protected by "governmental immunity".

As a result of cases like JOHNSON, the City has now taken an "aggressive stance" against claims brought by wounded bystanders who sue for injuries caused by stray police bullets. Recent example: In September two officers near Times Square mistakenly believed, wrongly, that a man was holding a gun, shot at him, missed, and instead struck two female bystanders standing in a crowd nearby that was clearly visible to the two officers. One of them has sued for negligence. The City's legal department's stance? This is a "no-pay" case. Won't negotiate a settlement.

I'm not saying that the police should pay for any and all "collateral damage" resulting from their admirable and sometimes heroic efforts to protect us all. Some discretion and mistakes should be allowed for in the heat of battle. All I'm saying is the scale seems to have tilted too far in favor of the police right now, and that means police departments can, with impunity, allow their officers to act carelessly and even recklessly, thus endangering all of us, without paying the price.


November 8, 2013

Michaels & Smolak Once Again Ranked "Tier 1 Best Law Firm" By U.S. News & World Report

index.jpgI'm proud to report that Michaels & Smolak has once again been honored by U.S. News & World Report as a "Tier 1" National Best Law Firm for our area of expertise, that is, New York personal injury law.

The 2014 rankings were announced November 1 of 2013. This prestigious national recognition -- recognizing that we are among the best in the nation at what we do -- not only honors us for being good, it might even make us BETTER at what we do! How?

Insurance defense firms and insurance adjusters who sit on the other side of our cases -- and who aren't familiar with the high quality of our work already -- might take notice that they are dealing with a top notch firm that gets top results, and may thus be more inclined to settle with our clients at top dollar without a need for trial.

As always, strong achievement breeds a strong reputation, and vise versa.

The U.S. News & World Report website describes its selection process as follows:

"Rankings are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in their field, and review of additional information provided by law firms as part of the formal submission process".

Yes, the lawyers at Michaels & Smolak are highly accomplished New York personal injury lawyers. But we could not have gotten there without a lot of help -- from a great staff, great referring attorneys and wonderful clients. Thank you all!

Keep safe!

Mike Bersani

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

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

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


October 10, 2013

dog.jpgI just love it when I'm right!

Last year I blogged about the Court of Appeals (highest court in NY State) case of Hastings v Suave where the Court made an exception to the general rule that, if an animal harms someone, the owner can be held liable only if he knew or should have known that the animal had "vicious propensities". The issue in that case was whether a farmer could be held liable for negligently allowing his cow to stray out into the road and cause an accident. Obviously cows are not "vicious", so under the general rule the farmer could not be held liable for the harm.

The wise Court saw the need for an exception to the rule, and held that "a landowner or the owner of . . . a farm animal . . . may be held liable where the animal is negligently allowed to stray from the property on which the animal is kept even when the animal did not display 'vicious propensities'".

The Court, however, left the question of whether the same exception would apply to stray dogs and cats, stating, "we do not consider whether the same rule applies to dogs, cats or other household pets; that question must await a different case". I predicted that the "different case" should not take too long to go up to the Court of Appeals because cats and dogs running into the road and causing accidents is very common.

Well a "stray" dog case is now barking at the Court of Appeal's door. Just the other day an intermediate appellate court (the First Department) decided Doerr v. Goldsmith. In that case, the owner (defendant) of a small dog called across the street to her friend (co-defendant), asking the friend to put the dog down so the animal could come to her. The friend released the pooch, who then darted across the road toward his owner's loving arms. The pup failed to look both ways and caused an oncoming cyclist to topple to the ground.

The defendants tried to wiggle their way out of the case on the grounds that their four-legged friend didn't have a "vicious" bone in his tiny body. But in a 3-to-2 split decision (which means an automatic appeal to the Court of Appeals) the Court held that releasing a dog, even a non-vicious one, near traffic under such circumstances can be grounds for liability.

I like the Court's reasoning. The Court observed that this kind of case is entirely different from the kind where a vicious animal attacks someone. It is more analogous to two people playing "catch" with a ball across a street. If the ball had struck the cyclist, causing him to fall, they would be liable, so why should they not be liable for releasing a dog, albeit an non-vicious one, to run across the street into the cyclist's path? Answer: They should!

So I'll make another prediction: The Court of Appeals will agree and affirm! And I am certain that my readers are predicting that my prediction is right :)

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 negligence Lawyers
Michaels & Smolak, P.C.

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

October 9, 2013

Syracuse Personal Injury Lawyers at Michaels & Smolak honor "Everyday Heroes" at Syracuse Crunch games!

crunch_2012_primary.jpgAs all of Auburn and Cayuga County knows, all summer long, at each home Auburn Doubleday baseball game, Michaels & Smolak honored a"Hometown Hero", that is, a local community volunteer who had given his or her time and talents to a local charitable organization. In front of the whole crowd, we regaled them, and their family and friends, with free game tickets, food, drink, etc.

But that was not enough for us. In fact, the program's success only whetted our appetite for more! So now we have expanded the program to all of Central New York.

This fall and winter, and all the way through April, "Everyday Heroes" will be nominated, selected and then honored at all Syracuse Crunch home hockey games this winter.

What's really cool about this program is how it recognizes that volunteering is not just an individual effort, but a family, community one. If family and friends aren't right next to the volunteers while they are giving of their time and talents, then they are often helping them balance things at home and work so that they can volunteer. That's why we at Michaels & Smolak are again treating not only the volunteers, but their family and friends as well.

Have you noticed an Everyday Hero in your community or neighborhood? Let's thank them together! Nominate someone today for a chance to win 4 tickets to a 2013-2014 Syracuse Crunch home game, $40 food vouchers ($10 per person), 1 parking pass for the Oncenter Garage, 4 custom hockey pucks and recognition on the video board during the game.

Come on, help us honor our Everyday Heroes 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 and Syracuse NY Personal Injury Lawyers
Michaels & Smolak, P.C.

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

September 24, 2013

Central NY Auto Accident Lawyer Explains How To End The Texting-While-Driving Crisis In New York

cuomo.jpgI recently blogged about Governor Cuomo's new beefed up penalty for texting while driving (from a 3-point violation to 5 points). But apparently the Gov ain't done tackling texting. His latest anti-texting initiative is to designate old rest stops along the Thruway and other major highways as "Texting Zones" (see photo).

Here's my take on the Gov's new laws: I know the Governor might be naïve to think that his "texting zones" are going to make a lot of texters pull over, just as I know that increased penalties are not likely to put a dent in the texting while driving problem. But I submit he's moving in the right direction.

The truth is that texting while driving is now so pervasive in New York, and probably everywhere else, too, that the Governor's anti-texting measures are the equivalent of sticking your finger in a dike that has already burst. Believe me, I know how ubiquitous the practice is, since I sue texting drivers for the broken lives their habit leaves behind.

The real solution may be a combination of several solutions: Combine stricter penalties, and stricter enforcement, with a mass publicity campaign that makes texting behind the wheel seem shameful in our collective consciousness. Yes, it can be done! How do I know? History is the best teacher.

I am old enough to remember when driving without a seat belt was cool, driving drunk was funny, and tossing litter out of your car window was acceptable. What turned the tide on all these practices were: (1) Stricter "buckle-up" laws and a ferocious buckle-up publicity campaign (remember the TV jingle, "buckle up for safety, buckle up"?), (2) stricter anti-littering fines and a ferocious anti-littering publicity campaign (remember, "don't be a litter bug"?), and (3) harsher drunk driving penalties with a ferocious publicity campaign (remember, "friends don't let friends drive drunk"?).

In all three examples (seat belts, littering and driving drunk) the one-two punch of more serious penalties combined with humongous ad campaigns turned the tide of pubic opinion. What before was cool or ok now became shameful. The ad campaigns were extremely successful in making it socially unacceptable to litter, drive drunk or drive unbuckled.

There may come a day when people are embarrassed or ashamed of being seen texting and driving, just like we eventually became ashamed to be caught driving drunk or littering. Passengers and nearby drivers will give them disdainful looks. That's what we need. A change of collective consciousness.

Yes, mass anti-texting campaigns will be expensive, but slowly, surely, they will change mindsets, and they will save lives. And in the long run, that will save money. Accidents are expensive for all of us . . ..

Keep safe!

Mike Bersani

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

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

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


September 21, 2013

Yes, You Can Be Held Liable For A Car Crash Happening Right Now Thousands Of Miles Away -- Syracuse NY Car Accident Lawyer Explains

texting and driving.jpegTexters beware! You might be held liable for a distant car crash happening right now as you sit in the comfort of your living room texting a friend. To find out how this is possible, read on!

A New Jersey appellate court recently held that texting to a driver you know is reading your texts, or is likely to do so, while driving, can make you liable, along with the driver, for any resulting accidents (Kubert v. Best, 2013 WL 4512313, N.J. Super. App. Div. Aug. 27, 2013). This is the first case in the nation expanding tort liability for car accidents to remote texters. Until now, only the texting driver could be held liable for the accident he caused while texting, not the companion texting with him from some remote location.

The case was cleverly argued by plaintiffs' counsel. They pointed to case law that said a passenger in a motor vehicle has a duty "not to interfere with the driver's operations". For example, it has long been the rule that a passenger can be held liable, along with the driver, for showing him a road map to read while driving where the distraction causes an accident.

Plaintiffs' lawyers also pointed to case law that said someone who "aids and abets" a tortfeasor in committing a tort is equally liable for the tort. For example, if a friend is throwing stones from a bridge onto a highway below, and you encourage him to do it, even though you are not doing it yourself, you, along with your friend, can be held liable to those injured below.

Given this existing case law, it was not such a stretch for the Court to conclude that sending texts to a driver you know will read the text while driving constitutes "aiding and abetting" the driver in breaking the law.

I predict that eventually, when the right case comes along, New York courts will follow suit. The rule makes sense. New York already has a Statute (Motor Vehicle & Traffic Law § 1225-d) providing that "no person shall operate a motor vehicle while using any portable electronic device while such vehicle is in motion". It is not such a stretch to hold a participant liable for exchanging texts with a driver, as long as the participant knew, or should have known, the driver was breaking the law by reading the texts or texting back while driving.

DISLAIMER: In the event that this blog post has just popped up on your smart phone while driving, please note that I have no knowledge you are reading it while driving!!

Keep safe!

Mike Bersani

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

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

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

September 17, 2013

Note From A Worried NY Car Accident Lawyer / Father.

worried man.jpgThis Central New York Personal Injury lawyer handles a fair amount of car accident cases. I see a lot of bloody and broken tragedy behind the wheel. Young inexperienced teenagers are the worst. How many kids have I seen wreck their lives, and those of others, in stupid car accidents? Every time one of those kids' parents walks in my door, I cringe - will that be my kid someday?

So letting my own 16-year old boy get a driver's license does not come easy. My parental paranoia increased ten-fold when one of my partner's 17-year old kid wrapped his car around a tree this year. He, lost consciousness for several hours, and ended up with a traumatic brain injury. Luckily he healed well after several months, but jeez, what a fright and worry for his poor parents.

But it's time to cut the umbilical cord. No more helicopter parenting for me. Today he takes his mandatory four-hour driving course, which then allows us to sign him up for his driver's test. He'll be showing off his driver's license by his 17th birthday (September 30).

I made him stick with the learner's permit until I was confident he was a "safe" driver. That means he had developed the habit of looking twice in each direction before proceeding into intersections. It means he got used to leaving a comfortable space between himself and the car in front of him. It means he looks all around him when he's driving in a parking lot. It means he does not let his phone distract him.

The last thing we had to work on was his led foot. I tried to get him to use the automatic pilot to control his speed, but sometimes he would forget and we would end up at ticket-zone speeds. ("Son, do as I say not as I do!"). I think we finally have that under control.

Insurance! Aarrgg! My new rate jumps up a thousand bucks a year. My insurer apparently shares my worries about seventeen-year old boys behind the steering wheel. Nice to have them in my corner, eh?! (Not!).

So friends, readers, wish us luck. If you were brought up Catholic like me, say a prayer to St. Christopher (patron saint of safe travels) for my son Sebastian. Also say one to St. Joseph, the patron saint of (worried) fathers!

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
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September 14, 2013

Lessons For New York Personal Injury Lawyers From Obama's Syria Debacle: Careful With That "Line In The Sand"!

line in sand.jpgPresident Obama reportedly told Syria, in sum or substance, "if you use chemical weapons on your people, we will use punish you militarily".

Then Syria used chemical weapons on its people. But instead of inflicting military damage on Damascus, as promised, Obama hemmed, hawed, asked his allies what they thought, asked Congress what it thought, etc.

So what happens the next time the U.S. says to a dictator, "if you do x, we will do y"? What does an empty threat do to our credibility for future negotiations?

The Syria debacle offers a lesson to my fellow New York personal injury lawyers. Some of you sometimes tell adjusters or defense lawyers, "we won't accept a dime less than X amount of dollars" and then, when the case is close to trial, take less than X amount of dollars. What happens the next time you negotiate with that adjuster or lawyer? What credibility do you have?

The lesson is clear: If you draw a "line in the sand", stick to it. But there is a second, and perhaps more important lesson: Except in rare instances, don't draw lines in the sand! Instead of drawing a line, say something like, "my client refuses your offer of X amount of dollars and instead demands Y amount of dollars". Don't say, "my client will never accept a penny less than Y amount of dollars". The reason is that, although your client might tell you she won't take less, and she might mean it, when push comes to shove and you are at the courthouse doors, and there is a decent offer on the table, your client might change her mind, which she or he has a perfect right to do.

Sometimes I do draw a line in the sand. But that's when I am 100% sure my client will stick to it. For example, in a recent case I knew my client could not take less than $400,000 because the first $400,000 of any settlement was earmarked for "liens" and "offsets" owed to a workers' compensation carrier. A $400,000 settlement was the same as $0 to my client. So in that case I could clearly tell the adjuster "we won't ever settle for less than $400,000 and in fact we need quite a bit more".

Credibility once lost is tough to regain. Don't lose 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 and Syracuse NY Personal Injury Lawyers
Michaels & Smolak, P.C.

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

September 2, 2013

Drunken Student's Dash Into The Gorge Will Go To Trial

gorge in ithaca.jpgI came across an article recently in the New York Law Journal titled "Drunken Run Could Leave Cornell Liable for Fatal Fall". It's about a case judge Ramsey (Ithaca, Tompkins County) recently decided where a drunken, and possibly stoned, Cornell University student suddenly bolted from the friends he was walking with on campus, ran down a marked hiking trail, departed from the trail, ran through the woods, hurdled a split-rail fence, and plunged to his death into the 200-foot gorge below. (The trail is appropriately named "Fall Creek Gorge trail".)

Cornell moved for summary judgment (to have the case dismissed) based in part on New York's General Obligations Law §9-103, which says landowners who allow the public to use their property for recreational purposes without charge are generally immune from liability. This law was enacted years ago to encourage landowners to open their fields and woods to hikers, bikers, hunters and others.

Judge Ramsey denied the motion and allowed the case to go to trial. The Judge reasoned that General Obligations Law § 9-103 grants immunity only for recreational activities, such as hiking, and here the kid was not "hiking". The judge relied on a definition of "hiking" in the Department of Environmental Conservation's regulations, which says hiking is "walking through trees for pleasure or exercise". Here the kid was not "walking for pleasure", the judge said, but rather running wildly through the woods in the middle of the night for unknown reasons.

I am sure there will be an appeal, and who knows where the Appellate Division will land on this issue. It seems incongruous, and unfair, that the law would bar a hiker's claims but not those of a nocturnal barrier-hurdling drunk.

The judge also rejected defense arguments that Cornell had no duty to warn of the danger of falling into the gorge because it was "open and obvious". That's because the photos in evidence showed vegetation that appeared to obscure the lip of the gorge and, remember, it was nighttime.

This is the kind of case that makes folks on the street shake their heads and exclaim, "you can sue for anything in this country!". But keep in mind that this unfortunate kids parents' are not saying, "our kid was blameless". Rather they are saying, "what about you, Cornell"? You knew of five prior falls into your gorge involving alcohol. You knew your students liked to "let their hair down" on the weekends to escape your ivy-league pressure cooker. Given all you knew, shouldn't you have replaced that flimsy split-rail barrier with a real fence?

Will a jury buy the argument? Stay tuned . . .

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


August 31, 2013

Judge Admits He Is Wrong!

judge.jpg.jpgJudges, like most people, have a hard time admitting they're wrong. Well, maybe even a harder time than most people. That black robe is an ego-inflater. A lowly lawyer gets elected, dons the robe and -- voila! -- he is suddenly addressed as "your honor". People stand up when he walks into a room. You get the picture.

That's why an article in the New York Law Journal -- titled "Judge Admits Mistake and Slashes Damages" caught my eye. The article is about a judge who admitted he was wrong without having to be told so by an appellate court. He said his original decision - which awarded $1 million to the children of a deceased medical malpractice victim as compensation for their lost future financial support and parental guidance - was "misinformed", and then slashed the award down to $150,000.

Ouch kids!

The judge explained that a re-read of the trial testimony made him realize the father was kind of a creep (ok so I'm paraphrasing). His financial support was on-again-off-again, and his "parental guidance" barely had a pulse (there I go again . . .). The same sad trickle (more poetic license on my part) of fatherly love and support demonstrated before dad's death was likely to have continued had he not died. In other words, he wasn't worth much as a father before he died, so why should we think he would have been worth much at all had he lived?

This about-face is a double whammy for the kids. They got screwed by having a creep for a dad and now that he's dead they're getting their money award slashed because -- well -- their dad was a creep.

Would have been much better if the judge had gotten it right the first time instead of lifting the kids' hopes up with Decision number 1 just to smash them to the ground with Decision number 2. I can't help felling sorry for these kids. . .

Keep safe!

Mike Bersani

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

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

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