Central New York Injury Lawyer Blog

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cruzsanders trumpclinton
Unlike in past presidential elections, “tort reform” is not a hotly debated issue this time around.  Nevertheless, for a New York personal injury lawyer like myself, whose firm is currently representing hundreds of injured tort victims, it is an extremely important issue.  I therefore decided to research how the four main presidential candidates (Trump, Cruz, Clinton and Sanders) feel about so-called “tort reform”. (Note:  Those in favor of limiting injured victims’ rights in court invented the term “tort reform”, but since I don’t think our tort laws need “reforming”, and I think that denying victims their day in court is a bad idea, I would rather call it “tort deform“.  I recognize, however, that most people won’t know what I’m talking about if I call it “tort deform“, so I will — unwillingly — call it “tort reform” just like they do.)

Donald Trump:  Although many or even most of Trump’s supporters would probably support tort reform, Trump himself is no enemy of lawsuits.  In fact, he is one of the most free-wheeling lawsuit filers on the planet. He often uses lawsuits to force settlements or to stop people from saying things about him that he does not like. For example:

  • He threatened to sue Ted Cruz if he did not remove a campaign ad where Trump is shown in a 1999 interview claiming he was “very pro-choice.”

our plane
Michaels & Smolak’s new publicity campaign is taking off!  Starting today, April 1, 2016, many commercial airlines around the country — and beyond — will feature the Michaels & Smolak personal injury law firm name and tagline, as shown in the photo above.

Not everyone is excited about the new ads.  One passenger interviewed as she was boarding a Michaels & Smolak plane was quoted as saying, “while I realize Michaels & Smolak is one of the top personal injury law firms in the nation, their logo on this plane with the tagline ‘for serious cases‘ makes me a little uneasy about boarding to say the least”.

Most airlines nevertheless jumped on board the innovative campaign.

index$55 Million. That’s a lot of money. I can’t claim to have ever gotten a verdict that big. Not even close. Almost no one has.

What is more stunning is that the verdict was purely for emotional, not physical harm. No amputated arm or leg. No paralysis. No scars. She is still beautiful. She still has a stunningly successful career as a sports broadcaster for Fox.

Yes, I am blogging about the Erin Andrews verdict.

jury verdictHere at Michaels & Smolak, on any given day, you are likely to find, on our attorneys’ desks, piles of dog-eared, highlighted, and marked-up volumes of the New York Jury Verdict Reporter. The Reporter summarizes jury verdicts on a weekly basis from around New York State. (Actually, this publication is now called “VerdictSearch“, but old-timers like me, and most New York personal injury lawyers, still call it the “Jury Verdict Reporter“.)

Why do we read it?  To help us represent YOU in YOUR CASE.  True, every case is different, including yours, so the New York Jury Verdict Reporter provides only limited guidance.  Every case, including yours, has a unique set of facts, lawyers, and jury members. All of these variables can and do affect the result of a case. Therefore, in one sense, the result of a single case reported in the Jury Verdict Reporter literally tells us nothing about how your case will end up.

But if you keep reading the jury verdict reports week after week, as we do, certain patterns emerge that are very helpful to both predicting the result of, and guiding our handling of, your case. Here are five main lessons that come out of the jury verdict reporter:

29906170001_4711937433001_FLINT-STILLOne thing you godda love about lawsuits is “discovery”. It’s what goes on right after you sue and the party you sued answers. Then you get to ask them to turn over almost any document relevant to the claims or defenses. Almost any document that has any possible relevance at all is game.

And sometimes you turn up some real gems. It’s what I call “getting the goods”.

Think about the lawsuits in the 70’s against Big Tobacco. Imagine finding – hidden in the reams of papers turned over to you – internal reports admitting that Big Tobacco manipulated nicotine levels to “hook” smokers to their dangerous product. Or that they knew their product caused cancer even as they denied it publicly.  It’s a “gocha” moment! How much money is that kind of evidence worth at trial!?

2010-thumb-250x171New York personal injury lawyers like me get this question all the time. The answer is complex, but explaining complex things to judges, juries and clients, is what we do for a living. We are essentially in the “communication” business. So here goes:

  1. Most often it is not a good idea to settle your claim until you are done treating or at least until your doctor can render an opinion on what – if any – permanent injuries you have. This often takes a year or longer. Insurance adjusters won’t give you anything for “permanent” injuries until your medical records make it clear that they are permanent. This can usually happen only a year or longer after your injury, or even longer if the injuries are very serious.
  2. If the insurance adjuster is disputing “liability”, that is, he or she says  the defendant was not at fault, or that the accident was partially your fault, the case may take longer. We may need to sue.  Only by suing can we take depositions.  Once we nail down the defendant’s and witnesses’ sworn testimony at deposition, we can show the insurance adjuster the accident was all defendant’s fault.  If there is still a dispute about liability after depositions, we may have to go to trial to prove we are right. This judicial process takes months or even years!

juryOur jury system is in trouble, big trouble, and that’s no small matter.  It’s a Constitutional matter.  The right to a civil jury trial is enshrined in our Constitution’s Seventh Amendment as part of the Bill of Rights.

But that right is under siege, as explained in a recent series of New York Times articles. Who is assaulting this important right? Corporate America.  Corporations are tucking away arbitration clauses into the contracts their customers and employees are routinely required to sign. These arbitration clauses state something like this: “The company may elect to resolve any claim by individual arbitration”. With these simple words, corporations are depriving millions of Americans to their Seventh Amendment right to a jury trial.

Examples abound.  Do you have a credit card, a cell phone, or internet service? Then you have given up your right to a jury trial in any dispute with those companies.  In the fine print of your service contract lies a hidden a requirement that you “arbitrate” any disputes at a forum pre-selected by the corporation. The same is true in many employment contracts you might sign. Think your boss has discriminated against you? No jury.  No Court.  Arbitration.

monkey

I blogged about this case before when the judge granted the monkeys a hearing.  But I find it fascinating and wanted to post an update.

In a case watched closely by animal rights activists, a State Supreme Court judge in Manhattan recently denied a petition by a not-for-profit animal rights group seeking to free a pair of chimpanzees, Hercules and Leo, being held at a state university on Long Island.

The petition sought a writ of habeas corpus (a time-honored process of challenging imprisonment as unlawful) for the chimps. The group argued that the animals are so genetically superior to other animals and so similar to humans (they share 99% of DNA with humans) that they should be deemed “human” at least to the extent that they should not be locked up without good cause. Expert affidavits were submitted attesting to the monkeys’ language prowess, intelligence, and personalities.  Among other human-like traits, chimps have a keen sense of self-awareness (they recognize themselves in a mirror).

best lawyersModesty gets you nowhere.  Sometimes you have to toot your own horn.  (Just ask Donald Trump . . .).  And today we are doing just that:

We proudly proclaim that all four Michaels & Smolak Lawyers – Lee Michaels, Jan Smolak, Michael Bersani and David Kalabanka — were selected by their peers to be listed in a national directory of top-rated attorneys, “Best Lawyers in America”, for 2016. They were listed in the categories of “plaintiffs’ personal injury law” and “products liability law”.

The inclusion in Best Lawyers is limited to the best of the best — based entirely on peer-review (lawyers rating lawyers). According to the Best Lawyers publishers, the way they select lawyers to be listed