March 24, 2013

Nothing Is Certain Except Death And Taxes (Except If you Have A Personal Injury Settlement!)

Thumbnail image for money.jpgTax season, which is now upon us, is, for most people, about as fun as sticking a fork in your eye. But your Central New York personal injury lawyer brings good tax news for personal injury victims! You've all heard the refrain, "nothing is certain except death and taxes". That's definitely true for death, but not always so for taxes, at least not for personal injury victims. Let me explain.

Many of my injured clients are pleasantly surprised to learn they don't have to pay income tax on their personal injury settlements. This is because compensation for pain and suffering is not considered "income" but rather money to replace a loss suffered. In other words, the loss + settlement = a net wash, i.e., no income earned.

Another thing our clients are sometimes surprised to learn is that they can avoid paying tax even on interest they earn on their settlement money. How? Well, If you take the money in a lump sum (cash), and place it in the bank, and earn interest on it, you must pay a capital gains tax on the interest earned. But if you instead take a "structured settlement", you can earn the same or even more interest tax free! Assume, for example, you get a $100,000 net settlement and elect to have it "structured" so that you earn an extra $10,000 on it. The insurance company pays you $10,000 a year for 11 years for a total $110,000 in payments ($10,000 of which corresponds to interest earned). Normally, you have to pay a capital gains tax on interest earned, but not if you earned that interest on a structured settlement! That's because technically the insurance company that structures your settlement money "owns" the money while it is cooking up the interest (you are not earning it - they are!) and pays you only after the interest is generated. A gimmick, yes, but a legal one that helps you keep all the interest you earned on your settlement money.

So if you are not planning on spending your personal injury settlement compensation right away, but instead are planning on investing it or spending it slowly over time, you ought to consider a structured settlement so as to avoid paying taxes on the earned interest. It's a no-brainer!

Bottom line: While death is certain, taxes are not, at least not in the world of personal injury settlements.

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


March 13, 2013

Heads You Lose Tails I Win! Central NY Personal Injury Lawyer Explains Unfair Rule.

chess.jpgImagine a three-way chess game where two players actually play, while a third sits by watching. Let's call the guy watching "the watcher" (I'm brilliant!). The watcher is going to play you next. But here's the thing: If you win the game you are now playing, the watcher will actually play you. But if you lose, then the watcher automatically wins his game against you and you automatically lose. No need to actually play that game. In other words, if you lose against your opponent, you lose against both your opponent and the watcher. But if you win, you win only against your opponent, and have to play the watcher to take a second win. In other words still, a loss makes for two losses, but a win makes for only one win.

Sound fair? Of course not! But those are the rules of the game the Court of Appeals has recently signed off on in Auqui v. Seven Thirty One Limited Partnership. And the player with the one-loss-equals-two-losses dilemma is YOU if you are an injured worker with a comp claim against your employer as well as a "third-party action" (personal injury lawsuit) against someone else.

Here's how it works: Let's say in both cases (comp claim and personal injury lawsuit) you are claiming you are disabled. Your workers' comp hearing comes up before your personal injury trial. If the comp judge finds you NOT disabled, the personal injury lawsuit judge will rule you are automatically NOT disabled for the purposes of the personal injury trial, too. But if the comp judge finds you ARE disabled, you can't use that ruling in your favor at the personal injury trial. You have to prove that all over again to the jury, who will never learn of the prior comp disability finding.

Believe it or not, this all makes some kind of sense to lawyers, which just goes to show how weird we lawyers are. The concept is called "issue preclusion", or if you want to get real fancy, "res judicata". But just because it makes sense doesn't make it fair. It's not. (I won't bother explaining the reasons behind the "res judicata" rule -- the explanation would swallow up this blog).

The res judicata rule is applied under some circumstances but not under others. Most outside observers believed that it should not apply in the comp/personal injury lawsuit mix. The Court did not have to apply that rule here. I still don't understand why they did.

Maybe they just flipped a coin: Heads we lose, tails they win.

Keep safe!

Mike Bersani

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

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

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

March 11, 2013

Is It Medical Malpractice For A Doctor To Shoot Heroin While Cutting Off The Wrong Leg With A Chain Saw?

Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for doctor bad.jpgLast week a very fine Syracuse New York medical malpractice lawyer, and a friend of ours, took a medical malpractice trial to verdict. His proof had gone in well. The malpractice seemed obvious, the harm horrendous. The jury seemed receptive. After his brilliant summation, the defendant's malpractice insurance offered $800,000 to settle.

The plaintiff refused to take it. It wasn't enough. The judge thought the jury was on plaintiff's side. He told the insurance defense lawyer he should try to get more money to settle. The judge clearly felt the jury was going to come back with an even bigger verdict. The insurance carrier wouldn't budge. So the jury did what a jury does, and came back with a verdict.

They found plaintiff had not met her burden of proving the doctor committed malpractice. That meant a zero-dollar verdict for plaintiff. The plaintiff had given up $800,000, confident that the jury would compensate her with twice that amount, and instead got the rug pulled out from under her.

Upstate New York is a famously tough venue for medical malpractice cases. Juries up here tend to side with the doctor far more often than with the plaintiff.

But our friend has kept his sense of humor despite this gut-wrenching result. This is what he emailed us shortly after he took the verdict: "Don't try a medical malpractice case in upstate New York unless you have a video of the doctor shooting heroin while cutting off the wrong leg with a chainsaw".

Gallows humor is the only known antidote to a lousy verdict. Always keep a sense of humor and you can't go wrong. We are proud of our friend for doing a great job, and taking a lousy result with dignity and grace.

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 Medical Malpractice Lawyers
Michaels & Smolak, P.C.

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


February 26, 2013

Central NY Malpractice Lawyer Makes the Blind See!

Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for doctor bad.jpgI recently read a New York Times article titled "losing My Leg to a Medical Error". The author, Frederick Southwick, a physician and professor in a Florida medical school, describes how, seventeen years ago, he had a routine surgery on his left Achilles' tendon. To prevent bleeding during the procedure, a pressurized cuff was placed above his left knee. Apparently, the cuff was left on too long, and, unbeknownst to him, damaged his arteries. He didn't find this out until just last summer when he experienced a sudden and total blockage of blood flow to his lower leg leading to amputation. Turns out the arteries, damaged by that cuff 17 years earlier, had slowly scarred, hardened and calcified, leading to the belated sudden blockage of blood flow.

Rare event? Probably. But medical malpractice is not.

Ironically, Dr. Southwick has, for the past two decades, been studying how to prevent errors in health care. In his case, he knows how the error could have been prevented; they could have used either (1) an alarm to remind the surgeon how long the cuff had been in place or (2) a cuff that automatically deflates after the prescribed time.

To prevent such malpractice, Dr. Southwick believes the medical profession must borrow from the manufacturing industry's play book. For example, machine manufacturers, stung by product liability lawsuits, have responded by incorporating almost fool-proof alarm and automatic shut-off systems.

Dr. Southerwick wonders; if the manufacturing industry can devise such safety improvements, why is the medical profession so slow to do the same?

Well Dr. Southerwick, I have an answer, but it is one that will piss off a lot of docs (maybe even you!): In a word, arrogance. Manufacturers are by nature pragmatic problem solvers with both feet on the ground while physicians are taught early on to believe they are superior beings whose judgment should not be second-guessed by mere mortals. Well, not all physicians. My brother and father are certainly exceptions!

But generally, a culture of arrogance does pervade the medical profession and blinds it to its own shortcomings. And if you are blind to your failings you can't fix them. That's why medical malpractice lawyers have such an important role. We are like miracle workers. We make the blind see!

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 Medical Malpractice Lawyers
Michaels & Smolak, P.C.

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


February 17, 2013

Hear Ye, Hear Ye, Testimony For Sale! (NY Personal Injury Lawyer Explains)

Thumbnail image for hypocrite.jpgFirst, some background: The wheels of justice would come to a screeching halt without the Court's power to subpoena non-party witnesses to testify in court. Subpoenaed witnesses, like it or not, must appear in court, take the oath, and testify about what they saw, heard, or know. In civil cases (such as personal injury trials) the judge doesn't issue the subpoena, rather, the lawyers for the parties do under their authority as "officers of the court". Each side subpoenas the witnesses it needs.

And it's dirt cheap. In New York the party subpoenaing the witness must pay him only $15 a day (CPLR 8001[a]) no matter who he is or what he does for a living. The $500-an-hour business consultant is entitled only to the same $15 an hour as the street sweeper. Each has the same civic duty to appear. And if either refuses, he can be held in "contempt of court", a punishable offense.

But can a party pay a subpoenaed witness more, even a lot more, if both agree to it? That's the issue that came up in the recent Court of Appeals (highest Court in New York) case of Caldwell v. Cablevision Systems Corporation.

In Caldwell, a defendant in a New York trip-and-fall personal injury suit subpoenaed the E.R. doctor who had treated the plaintiff. The doc balked at the $15-a-day subpoena fee, and demanded instead $10,000, clearly a lot more than even an E.R. doc's daily wage.

The defendant's lawyer could have sent the E.R. doc to hell, and told him to appear for the $15 or else face contempt-of-court sanctions. But instead the two struck a deal, for the $10,000 fee!

In his hour-long testimony --- for which he pocketed ten grand --- the doctor authenticated a note he made after examining the plaintiff in the emergency room. The note said the patient had "tripped over her dog" while walking in the rain, not that she had fallen into a hole on defendant's property, as she was claiming in court.

Did the exorbitant fee taint the doc's "memory" of what the plaintiff told him? Should the testimony have been stricken as bought-and-paid-for?

The Court of Appeals, though "troubled" by the payment, held that the witness should be allowed to testify, as long as the plaintiff's lawyer had an opportunity to cross-examine him regarding the payment. The Court also said that judges must instruct the jury that such payments might -- duh! -- make the witness biased.

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


February 10, 2013

NY Health Clubs Must Have But Need Not Use AED's, New York's Highest Court Rules

defibrilator.jpgLast year I blogged about a case (Miglino v. Bally Total Fitness) where one of New York's intermediate appellate courts (the Second Department) 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 not, they can be held liable to the unattended victim.

In that case, the Court was interpreting a 2005 Statute, General Business Law 627-a, whose literal reading required only that AED's be "on-site" at New York health clubs, and did not specifically mandate that Club employees use them. Nevertheless, the intermediate appellate Court read between the lines, holding that it was "illogical to conclude that no such duty exists".

Now the highest Court in the State, the New York Court of Appeals, has reversed that Court's Decision. The majority disagreed that the law creates an affirmative duty for clubs to use their defibrillators.

Often courts go out of their way to prevent what they perceive as an unwarranted spread of liability. That's clearly what the Court did here.

In a partial dissent, Chief Judge Jonathan Lippman said "it should go without saying that the presence of an AED will be of no benefit whatsoever to a person in cardiac arrest unless, of course, it is actually used". He felt that the Statute, as interpreted by the majority, was "essentially purposeless" in that it required health clubs to purchase AEDs and train employees to use them but does not require the devices to be used.

Judge Lippman's reasoning makes sense. And now the Statute, as interpreted by the Majority, makes no sense. It's a toothless paper tiger. Might as well wipe it off the books.

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

February 3, 2013

CNY Injury Lawyer Discloses The Solution To Frvolous Lawsuits

Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for courtroom.jpgAre you against frivolous lawsuits? Good, me too. Not to worry. I've got the solution. Hold on. First a story.

Several years ago, a fellow Central New York personal injury lawyer secured a famously large settlement on a personal injury case. At a party a few days later, someone took issue with his fee. "Your 1/3 fee on that big settlement is not fair". My quick-witted friend replied, "you're right --- it's not fair. I did ALL the work, I took ALL the risks, but my client gets 2/3 of the money - NOT FAIR!".

He was just kidding, of course. But in Spanish there is a saying: "From every joke, some truth does poke" (de broma en broma la verdad se asoma). The point of the joke is that, yes, the contingency fee IS fair! Actually, not only is it fair, it is the only system that makes "justice for all" possible. That's because most people could never afford charge-by-the-hour legal fees. But even if you are poor, if you have a legitimate claim, you can find a lawyer to take the case on a contingency fee basis.

Notice how I said a legitimate claim. No lawyer in his right mind would willingly take on a frivolous case, one that is likely to be tossed out of court by a judge or jury, on a contingency fee. If he does, he will work long and hard for nothing. How often can a lawyer shoot himself in the head like that? Once is quite enough for most. It's sure not habit forming. If an obstinate lawyer makes a habit of it, he will soon run out of money, have to close shop, and start serving up fries and burgers instead of justice.

So the contingency fee system screens out frivolous lawsuits and fosters "justice for all". Any other benefits? Yes! The contingency fee system aligns the client's and the lawyer's interests. It puts them in the same boat. The lawyer wins 1/3 of whatever he wins for the client, so he is uniquely inspired to maximize his client's recovery, and thus his own fee.

Not so on an hourly-fee billing system. For example, say I am representing an injured guy on an hourly fee basis. He has to pay me $300 per hour. I can charge him this same amount win or lose. Let's say the defendant offers a settlement that seems fair. But if I settle, I won't be able to continue billing the client for the case. Sure, my ethical responsibility is to do what's best for the client, but what's best for the client is not best for me. Who knows whether this self-interest is coloring my judgment of whether the settlement is fair. The problem is that the client's and my interests are not aligned.

In sum, the contingency fee system in a personal injury case has three main benefits: (1) it makes "justice for all" possible; (2) it weeds out frivolous claims; and (3) it aligns the client's and the attorney's interests.

The contingency fee system is uniquely American. And it's the greatest invention our American legal justice system has devised. Now salute the flag . . . and keep safe! And if your efforts to keep safe fail, don't hesitate to pick up the phone and call me about -- you guessed it --- my representing you on a contingency fee basis!

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

January 25, 2013

Why Assault Rifles Should Be Banned (And Automobiles Should Not).

Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for car crash.jpgThumbnail image for Thumbnail image for Thumbnail image for assault rifle.jpg
................. Your Central New York Injury Lawyer is still blogging on the topic of gun control (see my most recent post here). New York recently passed an assault rifle ban. Other states will follow. An argument against such laws I have been hearing recently is, "more people are killed in car accidents than by shootings, so why don't we ban cars?". In other words, what fools you are for banning assault rifles!

But the analogy fails, and this blog post will explain why.

What's the difference between banning automobiles and banning assault rifles? They both kill, they're both dangerous, and cars may even be more dangerous! So why ban assault rifles and not cars? Think about it! I bet you can guess. Don't give up!

Okay, so you gave up. Here's the answer in a single word: Utility.

I can explain this best by reference to New York products liability law (it's really the same in all states). The law uses something called a "risk-utility test" to determine whether a product is unreasonably dangerous. Let's start with the premise that virtually every human invention --starting with the wheel -- carries with it some risk of harm. The "risk-utility test" weighs the harms against the benefits (also called "utility") of the product. The harms from the product are placed on one side of the imaginary scale, and the benefits or utility of the product is placed on the other side. If the scale tips to the "harms" side, then the product gets a thumbs down, i.e., it is deemed "unreasonably dangerous" and thus "defective", and the manufacturer is liable for the harms. By contrast, if the scale tips to the "utility" side, then the product gets a thumbs up and the manufacturer gets a free pass.

The test can be best understood by way of examples. So imagine a booby-trap invention designed for home windows. If an intruder tries to jimmy the window open -- boom! -- he's toast! On the "utility" side of the scale, the device thwarts burglaries. On the "harms" side of the scale, the device will almost certainly kill or seriously injure not only evil intruders, but also mischievous children, pranksters, or even homeowners who forget their key. The risk of harm outweighs the benefits, especially since there are other, less dangerous ways to prevent burglaries. Thumbs down!

You can do the test with any invention. Take an ageless invention, the kitchen knife. Harms: Can cut and injure people, and can be used as a weapon in domestic disputes. Utility: It is indispensable both in the kitchen and at the table for preparing and eating food. Nothing can really replace it. Thumbs up.

Now let's put automobiles and assault rifles to the test.

Automobiles
Harms: They kill and maim a lot of people.
Utility: Without cars our economy, our world, would screech to a halt. They are a necessity of modern life. The benefits clearly outweigh even the terrible harm they cause.

Assault rifles
Harms: Crazed shooters inevitably get their hands on them and commit rapid-fire mass murder in our schools, movies houses, and college campuses before anyone has time to react or protect themselves.
Utility: Some sportsmen gain pleasure from shooting them at shooting ranges. They're "fun". But unlike automobiles, they are not necessary to our society or to our economy. And sportmen can also derive pleasure from shooting more traditional, and safer, guns. Thus, their utility is minimal, and their harm (Sandy Hook, Columbine, Aurora) is great. Thumbs down!

So that's why, as I said in my last blog, assault rifles should be banned, or at least their manufacturers and vendors (who are making a "killing" on sales) should be held strictly liable to the victims of shooting sprees where such guns are employed.

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

January 18, 2013

Central NY Injury Lawyer Weighs In On New York's "Assault Rifle" Ban.

assault rifle.jpgAdam Gee, a friend and fellow New York personal injury lawyer, recently blogged about the newly enacted New York "assault rifle" ban. Adam is very knowledgeable about guns and about this new law. I can't claim to be knowledgeable about either, since I have never held a gun in my hand (except squirt guns) and have not read the new law. But what Adam appears to be saying is that upstanding citizens should have a right to own guns like those used in the Sandy Hook massacre, i.e., M-16 military style guns capable of killing a lot of people in a little time.

While I fully respect the rights of my fellow citizens to own and use guns designed for hunting and basic protection in their homes, I question the right to own military type rapid-fire guns. After all, you have to draw the line somewhere. The right to bear arms does not include, I don't think, the right to own nuclear bombs, fertilizer-truck bombs, grenade launchers or machine guns. Although the kind of M-16 style gun used in the Sandy Hook massacre did not go that far, still, where do you draw the line? I would draw it before the M-16 style weapon.

And I don't think such bans are unconstitutional. In District of Columbia v. Heller,, the Supreme Court found that reasonable prohibitions and restrictions on firearms possession are consistent with the Second Amendment. And if you interpret the Second Amendment to mean that the government cannot ban any weapon, well, why can't I buy my first nuclear bomb at Amazon.com (as soon as I finish blogging)?

Banning such guns is not the only solution (although it's the best). I've got an alternative to an outright ban: A statute holding manufacturers and vendors of M-16 style guns (who are making a "killing" on sales) strictly liable to the victims of shooting sprees where those guns are employed.

Sounds pretty radical, but I think it's fair. The resulting lawsuits would push up the price of those guns as manufacturers pass the cost onto the consumers, making them less affordable and less prevalent. Consumers who nevertheless choose to exercise their "right" to own an M-16 style gun would end up shouldering the cost to society by financing victim payouts.

It's a win-win situation. Unless you happen to be a gun manufacturer, an assault rifle aficionado or a mass murderer. But the rest of us win. We're safer, our kids are safer. And don't feel too sorry for the gun manufacturers, who can still make and sell guns, nor for the sportsmen, who can still buy and use them. All I'm saying is, at the very least, the cost of having deadly mass-killing machines "out there" should be born by those who enjoy them or profit from them.

My two cents!

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 13, 2013

How Personal Injury Lawyers May Become Victims Of Their Own Success

Thumbnail image for car crash.jpgNot long ago cars were death traps. Then Ralph Nader, a trial lawyer, wrote a best seller called, "Unsafe at Any Speed: The Designed-In Dangers of the American Automobile", published in 1965. The book detailed the resistance of the auto industry to investing in safety features, such as seat belts.

Then great trial lawyers brought a slew of products liability lawsuits against the auto manufacturers. The automobile industry responded by designing safer cars, featuring seat belts and then airbags, to avoid shelling out millions to mangled auto crash victims.

But the auto industry kept getting sued because lawyers kept arguing the vehicles could be made still safer, which spurred a leap-frogging of safer and safer designs. As a result, we now have side air bags, crash-resistant chassis, seat belt alarms, anti-lock brakes, etc.

Even in our modest little Central New York personal injury law firm, we have seen the investment returns on the auto industry's safer designs. We often marvel at how our clients walk away from mangled, squashed, twisted and bent vehicles whereas they would have been carried out, face shrouded, just a decade or so ago.

Yes, you can thank us personal injury lawyers for all these safety advances. If the auto industry could have managed a "hit and run", they would have driven away for all the human carnage they were unnecessarily causing. But we made them pay for it. Which made them think of ways of avoiding paying. Which made them improve safety.

And here's what's really interesting: The "end of history" of the auto safety evolution may be near. The ultimate goal, a perfectly safe car, may be just around the corner. Don't believe me? Take a look at this recent New York Times article and also watch this amazing video showing an"automated car" in action . It drives itself, automatically, avoiding obstacles, pedestrians, bicycles, etc., by using incredibly sophisticated sensors. The sensors also react perfectly to stop signs, red lights, construction zones, etc. The car drives on its own, without human input, and it drives perfectly.

Yes, this amazing technology appears poised to usher in an auto-accident-free world. This is as breathtaking as the discovery of a cure to cancer. And as marvelous.

Only one problem with all this. As marvelous as it is, it also means a significant amount of my "business" will disappear. Motor vehicle accidents represent about 20% of my case load.

There is some poetic justice in this. The auto industry for years claimed that New York personal injury and product liability lawyers like me would put them out of business with our lawsuits. But now their safety improvements, spurred by our lawsuits, may put us out of business.

I am not complaining. Like everyone else who hasn't been living under a rock, I have friends and relatives who have died or been seriously injured in car accidents. I have 5 children who drive or will be driving soon. I want them safe and I want their children's children safe.

If I never see another car accident case, and I have to shut my doors, I promise you I will say these words with a grateful smile: "Will you take fries with that . . . .?"

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 Motor Vehicle Accident Injury Lawyers
Michaels & Smolak, P.C.

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


January 11, 2013

A Central NY Legal Malpractice Case Explained

Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for courtroom.jpgJust in case you were wondering how a New York legal malpractice case works (come on, admit it, you were wondering about that all day!), I have a "case study" for you.

I recently sued a lawyer on behalf of a widow and her child. I took over their case after the lawyer had mishandled it. The facts of the mishandled case went like this (in simplified form): a public official had, through his negligence, killed the widow's husband, but before he died, he went through a terrible amount of agony and suffering. This meant that the widow had two claims:

One claim was for "wrongful death" ("WD"), which mainly means a suit for lost income. The concept of the WD suit is that, had the widow's husband not been killed, he would have continued supporting her and their children, but now he was dead, and dead men don't pay the bills.

The other claim was for conscious pain and suffering ("CPS"). The idea here is that, if the husband had survived his ordeal, he would have been able to sue the public official (and his employer) for his pain and suffering. And although he died, his pain and suffering claim did not, because the law allows the widow to sue for the deceased husband's CPS.

Now we get to the legal malpractice case. When I took the case over from the former lawyer, I noticed right away that he had made a big mistake. He had missed one of the two statutes of limitations. You see, the WD statute of limitations is not the same as the CPS statute of limitations. If you are suing a private citizen, the CPS is generally longer, three years, whereas the WD is shorter, two years. But when you sue most public officials (and their government employers), it's the opposite. The CPS statute of limitations is generally shorter (one year and ninety days) whereas the WD statute of limitations is longer (two years).

Since this case was against a public official and his governmental employer, there was a one-year-90-day statute of limitations for the CPS claim. The lawyer's mistake was in assuming it was two years. I took over the case after the year and 90 days, but before the two years.

Well, we sued out the wrongful death case in time, and settled it at trial for well over a million dollars. But the CPS claim was dismissed because it was brought too late (not my fault, but the first lawyer's).

So now what do we do about that dismissed CPS claim? After all, the widow needs the money, and is entitled to it. She just can't get it from the original wrongdoer, the public official, because she did not sue him in time. But from the ashes of the botched first case arises a phoenix: The widow can sue her first lawyer for the CPS. Why? Because he negligently deprived her of her day in court against the public official for the CPS.

Don't worry too much about the first lawyer; like most lawyers, he has malpractice insurance. Will the insurance pay the widow? Sure, because she's got a very strong malpractice case against the insured lawyer. It's strong because when a lawyer misses a statute of limitations, as this one did, he is automatically guilty of negligence. Just about the only way such a lawyer can beat a legal malpractice claim is by arguing that his mistake was harmless.

How could blowing the statute of limitations be harmless? Here's how: If the widow would have lost the case against the public official at trial because the case had no merit, then it doesn't matter that the lawyer blew the statute of limitations. The claim was doomed to die at trial anyway. In other words, if the lawyer blew the statute of limitations on a dead-end claim, then the widow has a dead-end legal malpractice case. Fair enough!

But (thankfully) that's not the case here. In this case it is clear to me that the widow would have won her CPS claim at trial against the public official, and for a substantial amount of money. And that means the lawyer's insurance carrier will have to pay the widow a substantial amount of money. And there's a word for that: 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 & Syracuse NY Legal Malpractice Lawyers
Michaels & Smolak, P.C.

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


January 8, 2013

Yet Another Grant Ave Car Crash In Sennett New York

car crash.jpgWe at the Michaels & Smolak personal injury law firm know all too well how dangerous Grant Ave. (Route 5) is in Sennett, just outside of our hometown of Auburn, NY. If you don't believe us, just google "car accident Grant Ave. Sennett New York" and look at the list of reported cases! Why so many?

Well, Grant Ave. is the main thoroughfare between Auburn and Syracuse. There's way too much traffic, too many commercial parking lots to turn into and out from, and traffic moves way too fast. That's a dangerous brew, but add to it the fact of life that many drivers just aren't careful enough, and there you have the explanation.

Many of the car accident cases we handle happen right here in nearby Sennett on Grant Ave. In fact, we just settled a motorcycle-car collision case that took place on Grant Ave. at the intersection with the Wallmart parking lot.

Today's paper describes yet another car accident on Grant Ave.: A four-car collision at around 8:55 a.m. near Gates Road. Cayuga County deputy sheriffs say a white car was traveling east when it sideswiped a westbound car, and then rear-ended a second car before crashing head-on into a third. Apparently, the driver of the white car and the driver of the car it hit head-on both suffered injuries requiring hospitalization.

This kind of accident is totally avoidable. Please everyone, be extra careful when driving on Grant Ave! Drive defensively because others drive offensively!

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
Auburn NY Car Accident Lawyers
Michaels & Smolak, P.C.

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


January 2, 2013

In Bumpy Road For Plaintiff, Bumper Car Case Bumped (NY Injury Lawyer Explains).

bumper cars.jpgI usual cheer for the injured plaintiff in lawsuits. I love it when wrong-doers and their insurance carriers get slammed for huge verdicts -- hey, especially if it's my case!. But every once in a while I root for the other side.

That's how I felt about a California Supreme Court ruling that a bumper-car rider could not sue the amusement park for a broken wrist he suffered in a bumper car ride. The adult plaintiff was enjoying the bumper car ride when he was hit from the front and then from behind. She broke her wrist when she sought to brace herself on the car's "dashboard". A year after the accident, the amusement park owner added an island in the middle of the bumper car park -- like those you see in most bumper car rides nowadays -- to keep bumper car drivers headed in the same direction and minimize head-on collisions. The plaintiff's lawyer argued, among other things, that this should have been done before his client's accident.

The State's highest court disagreed. It ruled that, by voluntarily engaging in the mock violence of low-speed collisions, bumper car riders assume the risks inherent that activity, just as people who play football or other sports assume the risks inherent in those sports. (We New York personal injury lawyers call this the "primary assumption of the risk doctrine" -- see my prior blog post about it here.)

Because the plaintiff had "voluntarily assumed the risk" of the injury, the Court "bumped" the case.

And I'm glad. I love those little bumper cars. My kids love them, too. But we loved them a whole lot more when there was no island in the middle. Yes, we love those head-on collisions! The little dings on the side are soooo boring. We want some real violence.

Bring back the free-for-all, island-free, head-on-collision bumper car rides! California, lead the way!

Keep safe! (kind of . .)

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


January 1, 2013

What's New in New York Personal Injury Law in the New Year (2013)?

maze.jpgThe biggest single change for 2013 in New York personal injury law is, without a doubt, the Uniform Notice of Claim Act, which Governor Cuomo has signed into law on December 20.

It's a real game changer. Let me explain.

Until now, New York public entities (counties, cities, towns, villages, school districts, public authorities, fire districts, water districts, public libraries, etc.) have enjoyed disseminating a jungle of inconsistent procedural rules and time limits for starting personal injury lawsuits against them.

For example, almost all New York public entities require an injured claimant to serve them with something called a "notice of claim" (a document designed to alert the public entity of an impending lawsuit). But while 90% or so of them required that it be served within 90 days, the other 10% or so required that it be done within 30 days, and some even 60 days. And while the statute of limitations for suing 90% or so of them was a year and ninety days, about 10% required you to sue them within a year. Further, the manner of serving the notice of claim, and the official upon whom it had to be served, varied from public entity to public entity. If you served the wrong official, in the wrong way, your goose was cooked!

This morass of hard-to-find, unpredictable procedural requirements led to a predictable result: Many lawyers, even very smart ones, were unaware of the shorter time limitations, and were thus missing them. Also, they were sometimes serving the required notices of claims on the wrong public official or in the wrong way. As a result, perfectly valid personal injury and wrongful death claims against at-fault public entities were being tossed out of court on arcane procedural grounds, which of course gave birth to new claims against the lawyers who inadvertently failed to comply with the labyrinthine rules.

Enter the Uniform Notice of Claim Act -- a breath of fresh air! It establishes a uniform procedure, with uniform time limits, for claims against all New York public entities. A lawyer needs to know only one set of rules regarding how, and when, to serve the notice of claim and to file the lawsuit.

Highlights from the act are:

• A uniform manner of service of the notice of claim. The claimant simply serves the notice of claim upon the secretary of state. The secretary of state then sends a copy of the notice of claim to the public entity within 10 days.
• A uniform 90-day time limit for serving the notice of claim.
• A uniform one-year-and-90-day statute of limitations for injury cases and 2-year statute of limitations for wrongful death cases.
• A claimant (or lawyer) who inadvertently "screws up" by serving the wrong public entity within the 90-days can apply to the court for leave to serve the right one after the 90-day time limit, and the application should be granted unless the public entity can demonstrate that it suffered "substantial prejudice" in the investigation or defense of the claim.

If you like simplicity and fairness, this legislation is a welcome change. If you like convoluted laws that confound and trick even smart lawyers into making fatal mistakes, and that get governmental wrongdoers off the hook, it's a bad change. In other words, if you are a public entity, you hate this law (and yes, they vigorously lobbied against it!), but if you are a neutral, fair-minded citizen (such as you, dear reader!) you should love it.

And of course we New York personal injury lawyers love it too. We can sleep easier, assured that we did not overlook some bizarre, arcane, hard-to-find time limit or procedural requirement for suing a public entity on behalf of our injured clients.

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
Syracuse and Central NY Personal Injury Lawyers
Michaels & Smolak, P.C.

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

December 31, 2012

"Save That Evidence Or Else . . . !" Central New York Injury Lawyer Warns.

evidence.jpgYou get hurt. Your first thoughts are about getting medical care. You aren't thinking about calling this Central New York personal injury lawyer or filing a lawsuit. You're not "the suing type", you say. But several weeks later, when you realize you may be stuck with this injury for the rest of your life, you start seething about the careless jerk who hurt you.

So you call me. Sure, you have a lot of questions, but so do I!

If you slipped and fell I am going to ask you, "do you still have the shoes you were wearing". Why? I need those to disprove the almost certain defense that worn out or inappropriate footwear made you fall.

If you slipped and fell in oil or some other substance, I'll ask, "did you already wash the clothes you were wearing"? Why is this important? I want to have a chemist examine the liquid to see what it is and where it likely came from. Maybe one of defendant's machines!

And if you were hurt in a car accident, I'm going to ask, "is the car still available for inspection"? The physical damage to the car tells us a lot about how the collision happened and whose fault it was. It also tells us a lot about the g-forces that transferred into your body so we can prove your injuries are authentic and not feigned.

In sum, what I want to know boils down to this: Did you preserve the evidence? This is important not only because it helps me prove your case, but because you, as the plaintiff, are legally required to preserve the evidence. This is because whoever you sue has a right to examine the evidence to disprove your case or prove his/her defenses. If you destroyed the evidence or threw it out, even accidentally, even without knowing any better, a judge can later "sanction" you.

What kind of "sanctions"? It depends on two things: The importance of the evidence and the degree of culpability on your part. If the evidence was not so important, and you made an innocent mistake in destroying it, the judge might simply instruct the jury that it can, if it chooses, infer the evidence would have disproved your case. But the judge is likely to be harsher on you if the evidence was either critically important or you knowingly destroyed it. In such cases, the judge can do to your case exactly what you did to the evidence; throw it out!

Bottom line: It is best to call me early on, not weeks after the accident. But if you don't call me right away, at least preserve all the evidence. Don't mess with it, don't toss it, don't sell it, don't fix it, and don't wash it. Preserve it. Photograph it. Bag it. Thanks!

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