Central New York Injury Lawyer Blog

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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!?

Which brings me to the subject of this blog post:  The Flint, Michigan water scandal.  Lawyers have now filed three suits against the State of Michigan on behalf of Flint residents who have suffered from the toxic water they have been drinking. Two additional suits – class-actions – have also been filed against the Governor and others. And guess what those lawyers are going to ask for? emails. Internal mems.  All the communications in any form between the various governmental and health agency heads and underlings.

The key issue in a case like this is:  What did they know and when did they know it? More specifically, when did the authorities know that the kids of Flint were drinking water poisoned with led, and when did they finally do something about it. That “gap” is going to be crucial. Also crucial will be when they should have known the water was harmful, but did not care enough to find out.

As with any juicy scandal, there are already signs of a cover-up. When Gov. Rick Snyder was asked this week when he learned the water was harmful, he couldn’t recall. And the health department has been stalling on responding to a college professor’s request for public records that might show who knew what and when.

Stay tuned for “Watergate II“!

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

 

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!
  3. If the insurance adjuster undervalues your case, we will have to take them to court to prove the true value. If you settle without going to court, you sell yourself short.  Some clients actually prefer this to going to court, and that’s OK with us.  It is always the client’s decision.  But if you don’t want to take the “low ball” offer, you have to be willing to go to court, and all that can take up to a year or longer.

In sum, you only get one chance— one bite at the apple—to settle your case. If you settle before your case is “ripe”, you will usually be “selling yourself short”.  You won’t get all the compensation you deserve.

Think of your New York personal injury case as an investment.  Smart investors are patient. They only “cash out” when the timing is right.  Most investments need time to pay off.  Injury cases are usually no different.   If you rush to cash out your investment, you usually shoot yourself in the foot.  Smart investors are patient. Remember, we are in the same boat with you.  We don’t get paid till you get paid.  So we have no reason to dilly dally.  We are invested together in your case, and we both need to wait till the “timing” is right to cash out the investment.

 

Hope this explanation helped.  If you want to discuss this, give me a call!

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

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.

What’s wrong with that? Lots. The arbitration forums chosen by corporations are generally heavily stacked with pro-corporate arbitrators who are afflicted by something called “repeat player bias”.  What’s that?  You might go up against a corporation in arbitration just one time in your lifetime. The arbitrator doesn’t know you from Adam. But the corporation you are up against appears repeatedly before those same arbitrators defending claims brought by all its customers. The corporation is a “repeat player”.   Repeat players get cozy with the arbitrators.  If the “repeat players” don’t like certain arbitrators “tendencies”, they refuse to select them or otherwise sideline them. The arbitrators know who butters their bread. If they want to stay in the arbitration business, they had better please the “repeat players”.

Another problem:  The arbitration clauses are written to prohibit class actions. That’s why the language quoted in red above says “INDIVIDUAL arbitration” is required. You can’t go up against the corporation with a group of other consumers who were ripped off just like you were. Each consumer has to go it alone.  Thus, companies like AT&T can rip off all their customers for small amounts – say $30 each – and the victims can’t ban together to bring a class action. And how many of them are going to bother going through the arbitration process on their own for a measly $30? None. And that’s one of the reasons corporations are forcing us into arbitration agreements.

These arbitration clauses have not yet had much impact on New York personal injury lawyers or the cases they bring on behalf of injured victims of corporate or medical negligence.  Plaintiffs injured in New York by the negligence of others still have – in most cases – a right to a jury trial. But it is probably only a question of time before doctors and manufacturers try forcing arbitration clauses onto their patients and consumers. Not sure how all that will turn out.  But for anyone who believes in an even playing field and in our Constitution, it is scary . . .

Check out the New York Times three-part series here, here and here.

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

 

The following Article appeared in the Auburn Citizen Newspaper yesterday.  Pretty proud of my firm:

Volunteering: Michaels & Smolak program honors Auburn’s ‘heroes’

hometown

When you think of a hometown hero, what comes to mind? Is it a first responder such as a police officer, firefighter or EMT? Maybe it’s an educator, a nurse, someone that stopped to help someone in need.

When the law firm of Michaels & Smolak began thinking about doing something new to support the community, they looked to the United Way of Cayuga County as a natural fit. David Kalabanka of the firm said the United Way has “a firm understanding of the community’s pulse, especially when it comes to volunteers.”

Dave says that they like to give back and support local organizations, especially youth-based groups. When discussing the firm’s already active community involvement, they knew they wanted something different and a way to recognize more individuals. He said that working with the United Way came to mind because they “truly have eyes and ears in the community as to who is working to make it a better place.”

The result was a decision to recognize the many volunteer “heroes” that do great deeds, often unnoticed, throughout the region. And, so in 2013, the Everyday Hometown Heroes program began.

“Volunteers can often do thankless work, very graciously,” Dave said. “They are the people doing the tasks that make this a community and make it better.”

The Everyday Hometown Heroes program allows the United Way to recognize the efforts of one Cayuga County champion at each Auburn Doubledays home game with four box seat tickets and a $10 concession voucher. The hero is recognized briefly in the fourth inning by the Doubledays staff, which reads a paragraph about why this individual is deserving of this honor. Michaels & Smolak kindly funds the entire program.

“Michaels & Smolak has generously offered the Everyday Hometown Heroes program at the Auburn Doubledays for the past three years to all of our volunteers,” said Carrie Sue Hanno, interim executive director of the United Way of Cayuga County. “The United Way could not accomplish all that we do without the dedicated volunteers that provide us with tremendous talent, knowledge and the most valuable asset: time.”

The United Way seeks the help of its 23 partner agencies and 41 programs throughout the county in identifying these individuals. United Way and other community volunteers are on the front lines of turning actions and ideas into sustainable community solutions. Volunteer opportunities run the gamut of possibilities, from helping people learn to read to mentoring youth to serving on boards and committees. No matter what the task, they are giving their time, talent and resources into making our community stronger and ensuring opportunities for all.

For example, Carrie points out that the United Way’s CA$H program is such a success because of many community members who take time to learn a skill and then spend more time helping others get to a better financial place. With the free tax return program, 757 families were helped this year.

Additionally, all United Way committees are all comprised of volunteers who bring ideas, direction and a voice to the organization. They also have great office volunteers that really help them to get the job done.

Since the program started, the following individuals and groups have been recognized for their service to the community, the partner organizations, and the United Way of Cayuga County:

• Pat Allen

• Debbie Anderson

• Michelle Barber

• Sara Buhl

• Jessie Caza

• Jim Daddabbo

• Tim Donovan

• Melissa Flask

• JoAnne Field

• Felicia Franceschelli

• Cheryl Gabak

• Kimberly Gilfus

• Barbara Graney

• Ginny Kent

• Jennifer Haines

• IGNITE

• Renee Jensen

• Judy Lepak (first Hometown Hero)

• Lynne Marinelli

• Laura Marquart

• Susan Marteney

• Ted and Anne Mosley

• JD Pabis

• Karen Quest

• Tom Schuster

• Jamie Sears

• Nancy Sumner

• Joan Taggart

• Marion Wezowicz

• Laurie Whiting

• Jon Wilcox

Carrie noted, “I am thankful that Michaels & Smolak law offers the Everyday Hometown Heroes program to show the family and friends of our volunteers how much they are appreciated and that they can be proud of the work they do to help balance things at home while their volunteer loved one is giving of themselves.”

 

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).

The judge reviewed all this evidence with a sympathetic eye, but in the end refused to smash the wall of existing case law, which says animals have no “rights” other than to be free from unnecessary mistreatment or abuse. The judge concluded that chimpanzees – no matter how intelligent and human-like – “are considered property under our law”.

The judge was not, however, unsympathetic to the plaintiffs’ position, and noted that one day monkeys may win their freedom: “Efforts to extend legal rights to chimpanzees are understandable and some day they may even succeed.”

So stay tuned!  We at Michaels & Smolak welcome new clients — even monkeys — as long as they have legitimate claims recognized by the law.  We’ll deal with how to dress them for court when the time comes . . .

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

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

is designed to capture, as accurately as possible, the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. Best Lawyers employs a sophisticated, conscientious, rational, and transparent survey process designed to elicit meaningful and substantive evaluations of the quality of legal services.

The American Lawyer magazine – one of the nation’s preeminent law magazines – describes the Best Lawyers directory as “the most respected referral list of attorneys in practice.”

The Michaels & Smolak team makes up 4 of only 17 lawyers in all of Central New York listed in “Best Lawyers” for personal injury law.

Why should our clients care about this rating?  Our reputation alone – regardless of the skill we actually possess – can and does influence settlements. Insurance adjusters and defense lawyers are more likely to pay more to injured people represented by well-reputed lawyers.  And besides, the “Best Lawyers” rating is — on our opinion — not just a fancy, flashy veneer.  The reality is that we are darn good at what we do!

Give us a call and find out more.

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 (“Best Lawyers”!)
Michaels & Smolak, P.C.

1-315-253-3293

 

monkey.jpgMeet my future client.

This week a New York judge granted two chimpanzees a hearing to challenge their confinement at Stony Brook University. Well, actually the judge granted the hearing to the chimps’ lawyers, who are said to be a bit more articulate than their clients.

The action was brought by “show cause order” on behalf of the chimps. This order, signed by the judge, requires the University to demonstrate why the chimpanzees should continue to be confined. The judge has not yet decided whether the chimps will get released.

The whole concept of animals having legal standing to sue may be the next frontier of legal evolution in this country. Think this will never happen? Hey, twenty years ago who would have thought that gays would gain the right to marry? It happened.

If and when monkeys are allowed to bring personal injury claims, it would be fun to be their New York personal injury lawyer. Or as the saying goes, it would be more fun than a barrel of monkeys. How would I dress my client for court? In a monkey suit, of course. Ok, no more monkey business. Back to work . ..! :)

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

images.jpgExtra, extra read all about it: West Virginia woman files lawsuit against Walt Disney Corporation claiming Disney planted a rubber chip in her body without her knowledge or consent!

She filed the complaint last month in Kanawha Circuit Court, West Virginia. The lady is seeking for monetary damages and for the chip to be removed from her body. Can you blame her?

She is representing herself.

You might be thinking “frivolous lawsuit”! You’d be wrong. This is not a frivolous lawsuit. It is a crazy lawsuit. The difference is that in a frivolous lawsuit something happened to the plaintiff, but it really should not be the grounds for suit, while in a crazy lawsuit, nothing happened to the plaintiff, except in her head.

I tell this story to point out a truth about our legal system: Anyone can sue for anything. If the suit has no merit, it will later get dismissed. But actually filing a lawsuit is easy. Any crazy can do it. No police officer or court attendant stands at the courthouse checking to see whether lawsuits being filed are frivolous or crazy.

But wait. There is a possibility – no matter how remote – that I am wrong about this Disney suit. One has to keep an open mind. Maybe I am the crazy one and the West Virginia woman is not. After all, some weird stuff does go down in Disney. For example, last time I was there a dwarf (there were seven of them) asked me for my ticket while I waited for the Space Mountain ride. Then I saw a human-sized talking mouse walk by! Weird? Well, who’s to say that some space alien employed by Disney did not in fact plant a rubber chip in this poor West Virginian’s body? Par for the course in Disney.

Hey, maybe I’ll call that West Virginia woman and ask her if she wants me to represent her. In Disney terms, I’d be her Knight in Shinning Armor.

Naa. I think I’ll pass . . ..

Keep safe .. and sane!

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

just because you did it.pngI came across this lawyer advertising billboard on the web and couldn’t convince myself NOT to post it on my blog. So now I have to justify posting it. I am going to somehow tie this sign into New York personal injury stuff. Just wait and see!

When you think about it, the sign is not just funny, or a sad statement about sleazy lawyering, it is actually true. You may have done the act you are accused of doing, but nevertheless be “not guilty” of the crime for a variety of reasons. For example, Bob Marley may have shot the sheriff, but if it was in self-defense (or if he was insane, or if the gun went off by mistake) there may be no “crime”.

When deciding whether a defendant committed a “crime”, the law looks not only WHAT he did but WHY he did it. What was going on in his head as he did the act? That’s what lawyers call “the mens rea“, i.e., the mental state. If the defendant kills someone deliberately with premeditation, that’s a more serious crime than if it was just careless. And if it was in self-defense, then it was no crime at all.

Ready? Here comes the tie-in to New York personal injury law: The concept of “negligence” – the heart of most personal injury law cases — also looks into the defendant’s state of mind. Was he trying to be careful? Was he looking out for the safety of others? If so he was not “negligent”, no matter the harm he may have caused.

For example, if a motorist crosses over into the oncoming lane of traffic and crashes into an oncoming vehicle, that is normally “negligence” because he was careless. If, however, he crossed over to avoid a deer that jumped in front of him and he had only a split second to make that decision, a jury might find he was not “negligent”, and therefore is not liable. That’s because his mental state was different in each instance.

On the other hand, if the motorist was racing and crossed over to pass another vehicle at break-neck speed, his state of mind could be found to cross over from mere “negligence” into the mental land of “recklessness”. That means he was mentally indifferent or wanton or deliberate in putting the public at great risk. This is also called “gross negligence“. In New York personal injury law, the jury can award a victim of gross negligence not only compensatory damages, but also punitive damages (make him pay additional money beyond what it takes to compensate the victim in order to punish the offender).

So there you go. Do you agree I have fully justified posting this crazy lawyer billboard? Hope so.

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

th.jpgA spurned man was recently on trial for posting threats against his ex on FACEBOOK. His defense? The “threats” were just a joke, and she should have known it. To support this claim, he pointed to certain emoticons (a facial glyph, used especially in e-mail and online posts, indicating an emotion or attitude) that accompanied the “threats”. For example, there was one of a face with a tongue sticking out. This emoticon meant the “threats” were in jest, he claimed.

The prosecutor wanted the threatening posts “read” to the jury, but the man’s lawyer – wisely – wanted to bar any open court “reading” of the posts. He wanted the jury to only SEE the posts so they could take into account emoticons. The man’s lawyer argued that it would be unfair to merely read in court the posts because the accompanying emoticons could not be “read” aloud. The jury would hear the “threat” without “hearing” the accompanying (and mitigating) emoticon. The posts had to be SHOWN and only SHOWN to the jury!

The lawyer had a point. Certain forms of writing — like repeated question marks (“???”), distorted words (like “soooo”) and emoticons — can’t be reliably or adequately conveyed orally. To do so distorts the meaning.

How did the judge rule? The Judge allowed the posts to be read in open court, but also instructed the jury that the messages had not been communicated that way to the ex. The ex, like everyone else in the FACEBOOK world, would have SEEN the postings with the accompanying emoticons. “The jury should read them,” the judge said. “They are meant to be read. The jury should note the emoticons.”

Think of how an emoticon can change the meaning of a sentence. “I’m going to kill you!” followed by a wink, tongue out, or a smiley is not same message as a bare “I’m going to kill you”.

Fellow lawyers, if you have a case where online postings or emails or texts are coming into evidence, and they were accompanied by emoticons, and the emoticons change the tenor, tone, or the meaning of the post, fight like hell to have the post SHOWN to the jury on a big screen, or at least passed onto the jury at the same time or shortly after they are read aloud in court.

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