Central New York Injury Lawyer Blog

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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

DUI flyer.jpgI don’t do criminal law. I’m New York personal injury lawyer. But I came across an interesting article about a controversial way to avoid getting “busted” at a sobriety checkpoint. This is criminal defense lawyer stuff. I am not recommending this, or even saying I agree with it. But I just find the technique interesting and wanted to pass it on to my readers.

Here’s how it works: As you approach a sobriety checkpoint (a/k/a drunk trap), put your license, registration, proof of insurance and a “note” like the one depicted above in a plastic baggie attached to the exterior of your driver’s side window and then roll up the window as you approach the checkpoint.

Then just remember to shut up. Don’t answer any questions. Don’t talk. The officer outside won’t be able to say he smelled any odor of alcohol from behind your closed window, nor will he be able to say he heard you slur words (if you keep quiet). The cop will thus have no “probably cause” to arrest you.

Worried he might get pissed off at your sealed-in silence? You have the right to remain silent! What if he asks you to open your door or window? You have a right to keep them locked and closed! You have a Fourth Amendment right against unreasonable searches!

Unless the officer can say he saw you driving erratically, or you happen to have a bottle Jack Daniels in your hand, he won’t be able to find probable cause to arrest you. Or to make you open the door to search your car.

A video of this technique being tested by a brave Florida driver this past New Year’s Eve has gone viral on the internet. How did the cop react? He waved the car on! Will you be so lucky? What if the cop challenges you? What if he threatens to arrest you for failing to obey his order to open your window? In Florida, where this technique has emerged, certain sheriffs have threatened to arrest motorists for “obstruction”- if they try the technique. Yet Constitutional experts say the technique is probably perfectly legal.

I am asking my brave New York readers to drive into a sobriety check point (sober please!), and try this technique. Let me know if it works. Film it for me. Remember, this is not legal advice. In fact, it might be illegal advice. But I’m dying to know how it turns out for you. And if you call me from jail, remember, I am not a criminal defense lawyer!

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

1-315-253-3293

Well it’s that time of year again. The end. We know you have been waiting breathlessly for our compilation of the funniest / tackiest lawyer commercials of the Year. You need wait no longer. Just click the links!:

 

 

And here are some oldies but goodies:

Funny Lawyer TV Commercial by funnycommercial

And don’t forget to look up at billboards as you drive along the nation’s highways:

http://www.barnorama.com/funny-lawyer-billboards/

Happy New Year everyone!

slience.jpgNew York State has a new rule — §202.5[e] of the Uniform Civil Rules of the Supreme and County Courts — requiring attorneys to omit or redact “confidential personal information” from court-filed papers. The “confidential personal information” includes social security numbers (except the last four digits), the dates of birth (except for the year), the full name of a minor (except for the minor’s initials), and financial account numbers (except the last four digits). Compliance with the new rule is voluntary until Feb. 28, 2015 at which point it becomes mandatory.

Why this new rule? Identity theft, a growing problem. Identity thieves might conceivable go to the Courthouse or County Clerk’s office to peruse publicly available litigation papers in search of enough personal identifying information to get a hold of bank accounts, etc. Further, court-filed papers are soon going online, which will make identity theft even easier.

This new rule makes perfect sense. New York personal injury lawyers like me often file in courthouses and county clerk offices “motions” attaching “pleadings” and deposition transcripts, which traditionally contained private identifying information (client’s date of birth, ss number, etc). At Michaels & Smolak we have been proactive in protecting our clients’ personal information. For several years now we have refused to disclose our clients’ social security numbers in any “pleadings” or other publicly filed documents. When we are required to disclose such information to our opponents, we do so “off the record” so that the information won’t inadvertently show up in any public filings.

Attorneys will from time to time inadvertently violate this new rule. When that happens, is the lawyer punished? The rule doesn’t say. But bad consequences – including a lawsuit against the lawyer – are likely to result if an identity thief lifts a clients’ personal information from court papers filed by their attorney, and then empties the clients’ bank accounts. Cautious lawyers thus have a personal incentive to comply with the rule.

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

tell story.jpgA good personal injury trial lawyer is a good story teller. That’s what it takes to win a trial. A trial is really about competing stories. Whichever side tells the best, most compelling, and most believable story, wins.

That’s why a good personal injury trial attorney shuns boring power point presentations with bullet points. Charts, graphs and bullet points are ok to a certain extent. But they had better be quick, colorful, and add to the story.

Why are stories so powerful at persuading juries? That’s just the way us humans evolved. Ever since we learned to speak we have been sitting around the fire telling stories that explain everything: The beginning of the universe, the cause of thunder, the creation of us humans. We are hard-wired that way. Our brains “perk up” when we start to hear a story. We pay attention. We get emotionally involved.

If your lawyer thinks a jury trial is just about the facts or the law of your case, then you should probably switch lawyers. Ask your lawyer, “what story are you going to tell at trial”? If his face becomes blank, fire him!

A winning case is always about a winning story. A personal injury lawyer’s job is to find the story of the case and breathe life into it at trial.

For example, a slip and fall in a busy store entrance way is not about, “the store owner breaching his duty of care to the customer by failing to salt”. The story is about human greed. It’s about an owner who wanted to cut costs, and thus pocket more money, at the expense of his customers’ safety. It’s also about a hard-working family provider who, because of the defendant’s greed, can no longer provide for his loved ones.

A good trial lawyer starts looking for the “story” in his case from the time he opens the file. Before trial, he boils the story down to a “theme” – a strong one liner he can repeat over and over again at trial. It’s his “hook” for the jury’s attention. For example, “if it doesn’t fit, you must acquit”. Or, in our slip and fall case, “the store owner put his profits above our safety”.

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