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


December 15, 2012

Central New York Personal Injury Law Firm's Year In Review

Cthse 2.jpgAs 2012 comes to a close, it's time to look back on this year's successes at the Central New York personal injury law office of Michaels & Smolak. Yes, we're proud of our victories. They have allowed us to truly help people, people we have come to care about, people we have stood beside through thick and thin from the day they were injured until the day, sometimes years later, they finally tasted sweet justice. When, after a long struggle, we finally ring the bell of justice, we celebrate.

Although we fight for fair compensation in both small and big injuries cases, the big ones stand out because they are so life-altering. Without our efforts, many of those clients would sink into financial ruin. Those unfortunate few, those severely injured victims, are not just "down on their luck", they are crushed by the overwhelming bad luck of having been at the wrong place at the wrong time in striking distance of the wrong wrongdoer. Not only can they no longer work to support their families, not only are they swimming in unpaid medical (and other) bills, but they must wake up in pain, drag themselves through the day in pain, and then lie down in pain again, only to relive the same pain again, and again, and again, every day of their lives. It's like a horror-movie remake of "Groundhog Day".

From our perspective, it's amazing, even immoral, that the insurance carriers don't pony up a fair settlement for these clients early on. Sadly, they often wait till the eve of trial to begin to make reasonable settlement overtures. Sometimes they only "see the light" or more accurately, feel the fear of a big verdict, at trial.

Here's a few examples this year: After a week of trial, an insurance company finally tendered a fair settlement of $2.25 million to a 48-year old roofer with a severe and painful leg fracture that prevented him from working for the rest of his life. In another case, the widow and small child of a fallen firefighter finally achieved a fair settlement of $1.2 million from four defendants at trial. In another case, after two years of litigation, a 48-year old welder, whose car was flipped over in a rear-end collision, and who suffered a cervical herniation requiring surgery, finally was offered a fair settlement of $1.2 million.

We also got the children and wife of a victim of medical malpractice a half a million dollars for the E.R. room doctor's negligence in failing to diagnose their father/husband's aortic aneurysm, which led to his death. And we achieved a $1.9 million settlement for a 45-year old man who suffered permanent severe aggravation of a preexisting degenerative disk condition in his neck.

We had other settlements and verdicts, some large, some small, but in every single case, even in those that do not turn out as well as we would have liked, we did our very best for our clients. We think they know that. We think they like that. And that's why they keep referring their friends and relatives to us. Thank you to all of our 2012 clients for trusting us, for believing in us, and for letting us fight for their 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 Personal Injury Lawyers
Michaels & Smolak, P.C.

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

December 8, 2012

New York Jury Acquits "Driving-While-Drowsy" Defendant.

Thumbnail image for Thumbnail image for Thumbnail image for bus.jpgI recently blogged about a new nationwide trend to criminalize "drowsy driving". Caffeine-crazed prosecutors around the country are going after sleep-deprived drivers who doze off at the wheel on criminal charges including manslaughter and other serious felonies. (The prosecutorial equivalent of pouring cold water on sleepy drivers.) Could YOU end up on the receiving end of such prosecutorial zeal some day? Hey, wake up and smell the coffee --- you too drive sleepy once in a while!

Yesterday, New York City prosecutors lost a nine-week multiple-manslaughter trial against a bus driver they charged with driving while drowsy. Essentially they argued that, by getting behind the wheel of the bus knowing he had not slept enough, and then causing an accident because of his sleep deprivation, he committed manslaughter and other serious crimes.

The jury disagreed. Yes, he caused one of the deadliest crashes in New York City's history. Yes, he was probably negligent in the extreme for having driven a busload of innocent unsuspecting passengers on too little sleep. But no, he was not criminally liable.

But don't worry about the guy getting off scot-free. He already spent more than a year in jail because he could not make bond, and he still faces liability in pending civil lawsuits for damages filed by the survivors and relatives of those killed in the crash. The injuries were horrendous, including one guy who lost both arms.

Want to know what it's like to live with no arms? One of New York's finest trial lawyers ever, Mo Levine, once famously summed it up to a jury like this: After telling the jury he had just taken his client out to lunch, he paused and said, "ladies and gentlemen, my client eats like a DOG"! Then he sat down. The jury gave his armless client the biggest New York personal injury verdict ever recorded until that day.

I feel terrible for the victims of this unspeakably horrendous accident. I hope they get zillions of dollars in their New York personal injury lawsuits. But as I explained in my last blog, in the humble opinion of this Central New York auto accident lawyer, criminally prosecuting sleepy drivers is a Pandora's box not worth opening.

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 Injury Lawyers
Michaels & Smolak, P.C.

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


December 2, 2012

Should Drowsie Driving Be Criminalized? Central NY Car Crash Lawyer Weighs In.

jail despair.jpgJust read an article in the New York Times titled, "Push to Prosecute Drowsy Driving May Hinge on Its Definition". Before I discuss this article, I need to make a confession: I've done it. I have driven drowsy. I've felt myself nodding off at the wheel. It has happened a few times in my life, and every time it scared the crap out of me. Come on, admit it --- it's happened to you, too!

Now I (and you?) could go to jail for it. According to the article, law enforcement officials are pushing State legislators to make driving-while-drowsy a crime punishable by jail time. This follows a decades-long trend toward criminalizing dangerous driving behaviors, such as drinking-while-driving, texting-while-driving and phoning-while-driving.

Until now, law enforcement has simply coaxed the sleepy driver with friendly nudges from roadside signs, such as "You Snooze, You Lose" or "Drive Alert, Arrive Alive." Is it a good idea to up the ante, to make it a crime?

Since my job includes suing negligent drivers for causing car crashes that injure my clients, I would love a law like that. To prove my case, I would just hand the judge proof of the criminal conviction, and he or she would instruct the jury that the defendant driver is liable as a matter of law. Case closed. Only thing left for the jury would be to figure out how much money my client is owed.

Even though I personally would benefit from the criminalization of drowsy driving, I'm against it. (You see! We personal injury lawyers are not all about greed!). It's just wrong. Nowadays we believe jail is the answer to every problem. But jail is expensive for us taxpayers. Some otherwise very good people might get drowsy at the wheel. Driving without enough sleep is in part a consequence of our modern high-stress world, where we are all juggling busy schedules, long work hours, sometimes more than one job, not to mention taxi-ing our kids around to and from sports practices. And how do you prove someone was legally "too sleepy" to be driving anyway? There's no blood test (like for alcohol) and no record (like cellphone call records) to prove sleeping, or lack of it.

Don't get me wrong --- I am all for holding folks accountable for their negligence in a civil trial for damages. But if you can prove someone fell asleep at the wheel, that's already just about always a slam dunk on civil liability in New York State. (See my past blog post "Does Falling Asleep at Wheel Automatically Make Sleeping Driver Liable For Central New York Motor Vehicle Accident?"). I just don't want a separate criminal penalty for it. I don't think the threat of jail will keep sleepy people off the road.

The one exception I would make would be for commercial drivers and common public carriers, such as taxi drivers, bus drivers. But you still have the problem of defining what legally is "too sleepy", and proving it. Lots of grey areas in there.

Keep safe!

Mike Bersani

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

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

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


November 28, 2012

CNY Accident Lawyer Explains: If You Can "Write" You Are More Often "Right" In Appellate Court


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.jpgA lawyer friend of one of my partners called him yesterday to tell him that, while in a telephone conversation with one of the judges who sits in the Appellate Court in Rochester (Fourth Department), the judge asked him if he knew Michael Bersani (me). He responded, "sure, I know Mike, why"? The judge replied, "because he writes the most excellent appellate briefs"!

Very flattering, especially since I don't even know that judge. I used to work up there clerking, many years ago, but all the judges I worked for are retired.

More important than the flattery, though, is what this could mean to my clients. I have two important appeals pending up in that Court. I argue one of them next week. Did the judge's comment mean that this particular judge agrees with my arguments? Or does he just think I write wonderfully on a losing argument? I am hoping the judges don't just think I can "write" well, but also that I am just plain "right" on the legal issues.

You have a much better chance of winning an appeal if you are a powerful writer. Being "right" and knowing how to "write" overlap. Appellate advocacy is not about splashing an argument onto a brief and hoping the judges agree. It's about framing the argument right, organizing it right, and saying it right, so that the only logical conclusion a reasonable reader can draw is that you ARE right.

I sure hope I'm right!

Stay tuned . . .

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 19, 2012

Cicero, NY Car Accident -- Could The Roadway Design Have Been Partially At Fault?

Thumbnail image for defectiveroad.jpgToday a driver was seriously injured when she careened over an embankment at a sharp curve on Lakeshore Road, near Ontario Ave, in Cicero, near the edge of Oneida Lake. Some witnesses say the car was going too fast, but a neighbor was quoted in the paper saying the curve has a history of bad crashes.

The "history of bad crashes" caught my eye. By force of habit, my NY car accident lawyer thinking cap went on. Get under that cap with me for a moment.

Here's my stream of thought: "Could this unfortunate driver, even if she was going a bit too fast, bring a claim against the State, County, Town or whoever designed the roadway? Did the design of the roadway contribute to her car accident? Was the posted speed limit too fast? Were there adequate signs announcing the curve? Should they have installed flashing yellow lights or other hazard warnings for the curve?"

In New York, this kind of case can sometimes prevail if the signage, speed limit or design of the roadway evolved haphazardly, without a reasonable governmental study or plan, or were the result of an inadequate plan or study. Some of the questions that will come up in such a case are: Did the design of the roadway, or inadequate signage, or a too-fast speed limit, help cause the accident? Did the roadway design, signage and speed limit comply with the highway engineering standards at the time the roadway was built? Did the government learn of other similar accidents over the years -- accidents that should have tipped it off that the design, signage or speed limit should be re-considered --- and yet they fail to take a second look?

Accidents often have more than one cause. Many times there is plenty of blame to spread around. And sometimes some of that blame falls squarely on the government agency that designed the road.

Drive safe!

Mike Bersani

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

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

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


November 16, 2012

Central NY Trip-And-Fall Lawyer Takes Advantage Of Poorly Drafted Village Law

Thumbnail image for Thumbnail image for sidewalk.jpgLife is full of surprises. I got one yesterday.

A client suffered a very bad injury from tripping on a sidewalk defect in a village near Geneva, New York (I won't name names!). Normally, trip-and-fall on sidewalk cases are nearly impossible to win because of a special law that protects villages (as well as cities, towns, etc.). That law -- General Municipal Law section 50-e(4) -- says that, under most circumstances, you can't sue a village, town, city, etc., for injuries caused by defects in a "sidewalk, crosswalk, street, highway, bridge or culvert" as long as the village (or town, city, etc.), has enacted a "prior written notice" local law. Such a local law must in turn say, "hey, folks, you can't sue us for injuries caused by defects on our sidewalks, crosswalks, streets, highways, bridges or culverts unless, before you were injured, we already had written notice of the defect."

This is an extremely unfair law. No one, at least in upstate New York, ever writes to a village or town or city to tell them, "hey, you have a defect in your sidewalk at such-and-such a location and you'd better fix it before someone gets hurt". If people complain at all about a defect or hazard they see, they are more likely just to call and complain. But that's not enough under New York Law. It has to be in writing to be valid.

Getting back to my client, because she had a pretty serious injury, I wanted to make sure the village actually had a prior written notice law on the books. In my experience, 99% of villages, towns and cities in New York do, so I would have been very surprised if they did not.

Sure enough, they did. The village attorney sent me the village's "prior written notice law". But upon careful review of it, I noticed, to my surprise, that it required prior written notice only for defects in "culverts, bridges, streets and highways" AND NOT FOR SIDEWALKS.

The author of that village law clearly screwed up. Whoever that was, I would like to thank him or her for the gift. Now we do not need to show that the village had prior written notice of the sidewalk defect that injured my client. All we have to show is that the village negligently maintained the sidewalk, a far easier task.

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 premises liability Lawyers
Michaels & Smolak, P.C.

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


November 11, 2012

The Good Die Young; Construction Accident Takes Heroe's Life.

Thumbnail image for Thumbnail image for scaffold.jpgI read in Syracuse.com yesterday that a 37-year old man, Lateef Haskins, died Friday in a construction accident when he fell from the scaffold he was working from. He was working for a subcontractor on a job renovating the State University College of Oswego.

The article went on to say that Mr. Haskins had shown heroism when, several years ago, he helped rescue a family of four from their house fire. Using a ladder, he had gotten people out of the top floor before the fire department got there. This was not without risk to his own life; flames were shooting out of the roof as he rescued his trapped neighbors.

Mr. Haskins' family will likely be entitled not only to workers' compensation benefits, but to much more compensation should they file a claim under New York's Labor law 240, also known as "The Scaffold Law". I have blogged about this special Statute often before. Under most circumstances, when a construction worker falls from a scaffold, the general contractor and the owner of the construction project (here, New York State) are automatically liable for all damages suffered by the worker and his family. In this case, that would include all future lost wages and compensation to any children Mr. Haskins' has for "loss of parental guidance".

Our condolences go out to Mr. Haskins' Family.

Here are some of my previous blog posts about Labor law 240:

Save New York's Scaffold Law!

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

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

"Worker in Geneva New York Who Fell from Scaffold Probably Has a Slam Dunk Case against Wal-Mart", Geneva New York Injured Worker Lawyer Says.

OSHA'S Increased Construction Site Safety Enforcement in Syracuse and Central New York May Help Decrease Syracuse New York Falling Construction Worker Lawsuits.

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 Construction Accident Lawyers
Michaels & Smolak, P.C.

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

November 10, 2012

Personal Injury Lawyer Trial Tips By The Greatest New York (and other) Trial Lawyers

Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for courtroom.jpgOne great thing about being a personal injury trial lawyer, whether in New York or elsewhere, is that you can keep improving, keep getting better, keep honing your skills, forever.

Recently I have been listening to lectures by some of the best New York trial lawyers, as well as great trial lawyers from other States, about how they try personal injury cases. The most recent one I listened to is Jim Perdue's "The Art of Story Telling". Jim is a well-respected Texas trial lawyer. I had read some of his stuff years ago, so this was kind of a refresher course. Jim's basic premise is that a jury trial is all about story-telling, and the side that tells the best, most credible story, wins. Here are some notes I talked into my smart phone as I listened:

(1) Tell the jury the safety rule the defendant violated, then tell them why the rule is important, then show how defendant broke the rule, then show them the harm defendant's breaking the rule did to plaintiff.

(2) Use a visual aid board, with two columns, one for "the right way" and one for "the wrong way" of doing whatever it is that defendant did wrong. For example, if a manufacturer improperly tested the product before putting it on the market, put in the "wrong way" column the way he did it, and in the "right way" column the way he should have done it (you can use an expert to explain to the jury the right way).

(3) Defendants don't have "defenses", they have excuses. Call them that, excuses. Make an excuse chart to show the jury. In summation, as you go through each excuse, explain why it is not valid, and cross off the excuse with a big red "x".

(4) Jim likes this metaphor: "This defendant has so many excuses it's like the crabgrass growing on my backyard. But we have a weed killer called "truth" . . .". Nice. I'll try using that one (in the summer!).

(5) Trials are about character. Juries like characters who are rescuers, or who suffer misfortune through no fault of their own, and who struggle back, and they like dependable people. They don't like greedy or traitorous characters. Try to bring out the positive characteristics of your client and the negative ones of the defendant, where appropriate.

(6) Remember, the defendant is on trial, not plaintiff. So start with what the defendant did wrong. That's the story you want to tell first.

(7) Make eye contact with each juror - do not talk to the jury, but to jurors.

See ya in court (hopefully at my table, not at defense counsel's!)

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