Central New York Injury Lawyer Blog

In my last blog post, I explained that "pain and suffering" is an important part of compensation sought in a personal injury lawsuit. Personal injury lawyers here in Central New York, and everywhere else for that matter, tend to lump the two words, "pain" and "suffering", together as if they meant the same thing. But they don't. There is a difference between "pain" and "suffering". That's what today's blog is about.

Generally, "pain" is the physical part of the equation. For example, fractures, broken bones and nerve impingements all cause physical pain. Suffering, on the other hand, is the mental and emotional harm that physical pain can cause. The physical pain inhibits the victim's ability to work, exercise, or do his or her normal routines. For example, a victim of an accident may not be able to go bowling anymore, or not be able to hold his or her child. This can cause serious psychological suffering, including anxiety, sadness and depression. That is what we call "suffering".

If the pain is long term, then the suffering is usually correspondingly greater. Long term disabilities can cause a lot of "suffering". They can create a permanent and dramatic change in lifestyle and life outlook, leading to depression, fear, panic attacks, post traumatic stress disorder (PTSD), or even suicidal thoughts.

So pain causes suffering. And a lot of pain causes a lot of suffering. But pain is not the only thing that causes suffering. The other losses suffered by a severely injured person also cause suffering. For example, an injured parent may have had a good income, but now can't work. Her income is drastically reduced and she can no longer afford to provide her children with the same lifestyle. This causes suffering, that is, mental anguish, worry, stress and emotional turmoil.

So there you have it. When personal injury lawyers talk about "pain and suffering" compensation, they mean compensation for the total culmination of the physical and psychological and emotional aspects affecting the victim after an accident. Under our civil justice system, those who endure pain and suffering because of someone else's carelessness, negligence or intentional wrongdoing, are entitled to full compensation.

A competent trial lawyer must know the proper techniques for enhancing a jury's understanding of, and feeling for, his or her client's pain and suffering. If fact, that is one of the most important things a personal injury trial lawyer can do. The other losses (lost income, medical bills, etc.) often speak for themselves. But since pain and suffering are invisible, the trial lawyer must know how to make them not only visible, but palpable and real to the jury.

"Pain and suffering" is the ugly duckling of personal injury damage claims. Many people roll their eyes when those three words are spoken, especially when spoken by personal injury lawyers. The concept is so unpopular, so despised, that when Syracuse and Central New York personal injury and medical malpractice lawyers pick juries for trial, one of the most important questions we ask, to see whether a juror can be fair, is, "what do you think of awarding compensation for pain and suffering"? Many, many prospective jurors say, "I'm against it" or like words.

Yet New York personal injury law entitles victims of the careless, negligent or intentional acts of others to FULL compensation for all their losses, including lost wages, medical expenses and, yes, "pain and suffering". Why? Think of the "scale of justice" (pictured on this page). When someone is injured through someone else's fault, the scale tips down on one side. The "down" side is where the victim is. The whole idea of our civil justice system is to tip the scale back up to a balanced state again. If someone has suffered lost wages, medical expenses, and pain and suffering, would the scale be tipped upright again if he or she were compensated only for lost wages and medical expenses, but not pain and suffering?

Unfortunately, people seriously injured in an accident don't just jump up off the pavement, brush themselves off, and go on with their lives as if nothing happened. Pain and Suffering sometimes lasts a lifetime. The victim's way of life can be completely altered. It converts athletes into couch potatoes. It turns happy people into sad, anxious people. It turns families upside down when one parent, or child, is constantly in pain.

Pain and suffering should not be a political issue. It is not an issue to be laughed at or derided. It is very real, and very serious, for those who aren't able to play with their kids the way they used to, or have to take pain medications every day to deaden, but never completely eliminate, the pain. When you are in pain, you can think of almost nothing else except the pain. You can't enjoy the simple pleasures of life because the pain shouts out the pleasure.

Justice requires FULLY compensating innocent accident victims. Only a FULL cup of justice is justice. A half cup of justice is no justice at all. Awarding less than FULL compensation keeps the scales of justice forever out of balance, with the innocent victim on the downside. This is why any "civil justice system" must compensate innocent accident victims for their pain and suffering. If it does not, it cannot be called a "civil JUSTICE system", or even a "CIVIL" system. It is just a "system", nothing more.

Cover-ups. Personal injury lawyers here in Syracuse, Central New York, and everywhere, love them. We play them for all they are worth. Think about those big tobacco lawsuits. Would those smokers have rung the bell with those big pain and suffering verdicts without evidence that the tobacco industry had covered up what they knew about smoking and cancer? Nothing makes a jury madder than a cover up. And nothing pushes the size of a personal injury verdict up more than raw anger.

This blog post is about the Toyota defective pedal dilemma. But first, let me digress (again!).

In a Syracuse New York personal injury lawsuit I handled a few years ago, the insurance company hired an expert witness, an orthopedic doctor, to testify that my client's lower back injury was pre-existing and therefore not caused by her slip and fall on the defendant-restaurant's wet floor. He based this opinion in part on the fact that my client had not complained about lower back pain until two weeks after the fall. He was wrong and I knew it. My client had reported back pain at the emergency room. I noticed, when I looked at the list of records the doctor claimed to have reviewed in reaching his opinion, that a key record was missing --- the emergency room records. So my cross-examination of the doctor was all about a "cover up". I insinuated that the insurance company had "covered up" this ER report, that they had deliberately hidden it from the doctor. Maybe they didn't. Maybe it was an innocent mistake. But the cross-examination was brutal, and the insurance company lawyer knew it. A large personal injury settlement soon resulted.

My point: Cover-ups piss juries off!

Now back to Toyota (finally!). Congress has apparently gotten its hands on "secret" Toyota documents from a turncoat former Toyota lawyer. Apparently, these secrete documents show that Toyota's own investigators had knowledge of the sticking pedal defect yet covered it up.

A cover-up is a game-changer for a personal injury case. The main issue becomes, what did they know and when did they know it? If Toyota can show it made efforts to investigate the sticking-pedal problem, and then to resolve it, and did not drag its feet, and especially that it did not cover up its findings, it will fair much better in court. But if the jury smells a cover up, all bets are off. Toyota can expect a string of large verdicts against it, maybe with punitive damages to boot. So, Toyota, if you have "covered up", get ready to "pay up"!

Do you take you Syracuse or Central New York injury claim seriously? Do you want the insurance company to take it seriously, too? Well, I've got some news for you: The sure-fire way to guaranty that the insurance company will NOT take your injury seriously is to represent yourself.

You are not the only injured person the insurance company is dealing with. Other people with injuries, very similar like yours, have retained attorneys to advocate their claims with that same insurance company. All those other people seem to be taking their injury seriously. They are taking their injuries so seriously that they have hired an attorney. They are showing the insurance company that they are prepared to go to court if the insurance company does not take their injuries seriously.

True, you can talk to that insurance adjuster yourself when she calls. She might even seem nice on the phone, might promise to treat you fairly. Believe me, she won't. Not without an attorney. Why? Here's why, and try to remember it, as it is the most important part of this blog --- INSURANCE COMPANIES MAKE THEIR PROFIT BY PAYING AS LITTLE AS THEY CAN ON YOUR CLAIM.

When the adjuster, who works for a faceless money-counting company, sees that you are handling your claim yourself, without an attorney, what is going on in her head? I'll tell you what: "Oh, good, another injured guy without an attorney --- if I seem very caring and am nice to him, I can probably settle his claim for pennies on a dollar and make my boss happy".

Perhaps I have badmouthed insurance adjusters too much here. That is not my intent. Insurance adjusters can be good people. They are trying to make a living, trying to feed their families. But to keep their job, to get praised by their supervisors, to "make it" in their world, they need to settle cases on the cheap. The adjuster working on your case might even get a promotion or a raise for doing such a good job at selling you short.

Even if you and the adjuster really "hit it off", and he or she really does want to help you because of some "bond" you have developed on the phone, the adjuster has a supervisor, a claims examiner, a regional manager, and a corporate office that looks at only one thing --- the bottom line.

To an insurance company you are nothing but an injured person without an attorney, which is by far the best kind of injured person in their book.

Take your injury seriously. Show the insurance company that you take your injury seriously and want it dealt with seriously. Hire a competent personal injury lawyer. Seriously.

I can think of few laws as unfair as "damages cap" laws. For those readers unfamiliar with this concept, let me explain. A "damages-cap" law essentially says that, in a personal injury or medical malpractice lawsuit, the injured plaintiff is limited to a certain amount of compensation for his or her "non-economic" damages, no matter how devastating the injury. "Non-economic damages" essentially means compensation for pain and suffering and loss of enjoyment of life.

The unfairness of damages caps can best be shown by way of example:

Patient A undergoes neck surgery, his surgeon commits medical malpractice, he ends up with moderate but permanent pain running down both arms. Full and fair compensation for this annoying, painful sensation for a lifetime is about $500,000. Patient A goes to court, the jury awards him $500,000, and he gets it. He is fully and fairly compensated for his injury.

Patient B undergoes the same operation, the surgeon commits medical malpractice, but this time renders the patient QUADRIPLEGIC. Patient B is now nothing but a head on a pillow for the rest of his life. Patient B goes to court, the jury says he should get $3,000,000, but the judge says, "sorry, the medical malpractice damages cap law requires me to reduce this verdict to $500,000, which is the maximum allowable, no matter what the injury".

So the guy with the less serious injury gets full and fair compensation for his injury, while the guy with the devastating, catastrophic injury gets pennies-on-the-dollar for his injury. Sound fair? Of course not.

The Illinois Supreme Court doesn't think it's fair either. Just this week, in Lebron v. Gottlieb Memorial Hospital, the Court overturned the State of Illinois' landmark 2005 "Medical Malpractice Reform Law", which featured a $500,000 cap on medical malpractice pain-and-suffering damages. The Court ruled the law unconstitutional because it violated the principle of "separation of powers". In other words, the LEGISLATIVE branch of government should mind its own business and not tell the JUDICIAL branch of government how much it can award for pain and suffering in court.

This is a big win for trial lawyers and patients' rights advocates, and a black eye for tort-reformers.

I hate damages caps because I love justice. Damages caps are unfair because they disproportionately impact those who have suffered the worst injuries. Why should only the catastrophically injured "pay" for tort reform?

Several courts around the United States agree with me. They have tossed out such laws, either because they violate the separation of powers, or because they deny citizens the right to a fair jury trial, or because they violate equal protection principles.

Fortunately, New York State has never adopted damages caps, though the insurance industry has had its cronies in Albany propose such laws. Let's hope our legislature never passes such a law and, if it does, that New York courts would have the guts to strike them down as unconstitutional.

I abhor frivolous lawsuits. I try to bring my New York personal injury lawsuits only against companies and people whom I feel are truly liable for my clients' injuries. But once in a while I am forced to sue "iffy" claims against those who probably are not responsible for my clients' injuries. Why? Because of insurance companies and their lawyers, that's why. Let me explain by way of example.

My client is a passenger in her boyfriend's motor vehicle. On a snowy night, they come upon a car stopped in the middle of the road, which apparently stopped because of the snowy conditions. It appears, though, that the driver of that car could have done a better job pulling over onto the shoulder of the road. Nevertheless, my client's boyfriend is able to stop in time. Moments later, a tractor trailer comes from behind and hits the rear of my client's car, propelling it into the car stopped in front. That tractor trailer driver was clearly going too fast for the snowy conditions. My client suffers serious injuries, can never work again, and no-fault insurance is quickly exhausted.

So who do I sue to get her the compensation she needs and deserves? After all, she was an innocent passenger.

I think it was mostly the tractor trailer driver's fault, but perhaps also the driver of the first car, for stopping completely or for not pulling far enough over onto the shoulder. I think my client's boyfriend is without fault. All he did was stop to avoid hitting the car stopped in front of him.

But as the 3-year statute of limitations approaches, I know I have to sue not only the two drivers whom I think may be responsible, but also my client's boyfriend, whom I think is not responsible. Why? Because I know from experience that, if I don't sue him, the insurance company lawyers for the other two drivers will point the finger at "the empty chair" in the courtroom, that is, my client's boyfriend whom I did not sue. They will try to pass all the blame onto the one person I did not sue on any number of theories, for example, for not putting his flashers on, for not pulling over enough, for not passing around the stopped car --- who knows! I will only find out AFTER the statute of limitations expires, and then I will be in a jam. If somehow these insurance company lawyers convince a jury it was entirely my client's boyfriend's fault, then the jury will return a big goose-egg verdict for my client.

My client will not be left without recourse, though --- she can still file a New York legal malpractice lawsuit against me for failing to sue her boyfriend! So there you have it --- sometimes I have to sue people who probably aren't to blame.

Legend has it that, during the crusades, when a Christian army was invading a middle-eastern city whose residents were mostly Muslim, but which contained a significant minority of Christians, a soldier asked his military commander, "sir, how do I know which ones are Muslims, and which Christian", to which the commander replied, "kill them all, and let god sort them out".

So there you have it. Sometimes you have to "sue them all, and let the jury sort them out".

I get this question all the time. A client is hurt by someone else's negligence and wants to know what to expect, and more specifically, HOW MUCH to expect in settlement for her personal injury.

First, you can usually only tell after the doctor has released you from further treatment. Only then can the doctor tell us whether you will have any permanent injuries, and if so, how bad.

But after the injury has healed as much as it can, the math itself is pretty simple. You take the average jury verdict you expect a jury to give (jury verdicts vary widely, so you simply take what the average jury would probably give), and then multiply it by the percentage chance you believe you have of winning at trial. For example, let's say you have an injury an average jury would award $100,000 for. But there are some weaknesses in your case, so that about 1 out of 4 juries would rule against you. Doing the math, you have a 75% chance of winning on a $100,000 injury, and thus a fair settlement would be $75,000.

But it is really not that simple. The hard part is figuring out what an average jury would give you to compensate you for your pain and suffering. Pain and suffering is a pretty loosey-goosy concept. How do lawyers figure this out? Well, here at Michaels & Smolak we have a system. First, all our lawyers read religiously a publication called "The Jury Verdict Reporter", which reports personal injury and medical malpractice verdicts all over New York State. This is like having our finger on the pulse of juries. It gives us a very good idea of what juries are generally giving for certain types of injuries. We also have taken many verdicts ourselves, so those too act as a point of reference. Next, we take into consideration the age of our client (younger clients get more because they have more years to suffer with their injuries), the place where we have to try the case (some counties produce juries that are traditionally more stingy, and others are more generous - see my previous blog on this), and how the injury has affected our client's life (physically active clients who are rendered inactive because of an injury usually get bigger verdicts than couch potatoes). Insurance policy limits are also taken into consideration. Other factors count too, but I have listed the main ones.

Next, we have to figure out our chances of winning at trial. That's also tricky. It is more of an art than a science. Some cases are clear slam dunks (drunk blows stop sign and crashes into client), but most cases have some "holes" in them. The lawyer just has to roughly measure the size of those holes! Before I enter into settlement talks, though, I have in my head what my "chances" at trial are (slam dunk, 50-50 chance, 30% chance, long shot, etc.). The Jury Verdict Reporter I mentioned earlier really helps; you see cases with your same fact pattern in there, and if the jury is consistently rejecting those cases, you know you are fighting an uphill battle.

And by the way, what I think would be a fair settlement really doesn't matter --- we always let the client decide whether to settle, and if so, for how much. All I can do is advise my client what I think would be fair.

And that's pretty much the nuts and bolts of it. If you want to know more, email or call me

I get it all the time: "I'm not THAT kind of person. I'm not the suing type". They fidget nervously, from their chair on the other side of my desk, afraid I will think they are "that kind of person" for coming to see me. I think silently, "What must you think of me, who makes a living out of being 'that kind of person?'"

But I don't say that, of course. I show compassion. No one wants to be in their position. Here they are, forced by circumstances to become "that kind of person". Embarrassed by it, really. I tell them what they are feeling is very common. No one wants to sue anyone. No one wants to claim money for an injury. Money won't make the pain go away. But they need to think about the future, about their lost income, about their medical costs, and of course about their pain, suffering and loss of enjoyment of life that may last forever. And they shake their head in agreement knowingly, relieved that I am not going to judge them to be "that kind of person".

So what makes them overcome their embarrassment and come to see me? Their life has suddenly changed for the worse because someone was careless. Maybe they got hit by a drunk driver that didn't stop at the stop sign. Maybe they slipped and fell on an icy walkway that no one bothered salting. Maybe they were injured on a construction job where the safety rules weren't being enforced, causing them to fall from a ladder or scaffold. Whatever it was, they are hurt, it wasn't their fault, and after mulling it over for a few days, after seeing how their life has changed, perhaps forever, and how unfair that is, and after feeling the rage, the injustice of it all ---- they call. They set up the appointment. They come in. They sign the retainer.

And so we are on our way to getting them a measure of justice.

The Syracuse Post Standard reports today that State police have arrested a 28-year old socio-therapist at a residential center for teenage boys on rape charges. The socio-therapist is alleged to have had sexual contact with a 15-year-old resident of Snell Farms Children Center in Bath, in Steuben County.

Criminal charges have been filed, but the question I want to address in today's blog is, what are the possible CIVIL LAW consequences? In other words, assume the child has suffered some psychological trauma, pain and suffering, and has a need for psychological treatment. Can the child, through a parent or guardian, bring a New York rape or child abuse lawsuit for money damages to pay for his treatment and to compensate him? Who would the child-victim sue and how would he be compensated?

The child, through his guardian or parent, can sue both the alleged rapist and the employer, Snell Farms Children Center. The lawsuit against the rapist would allege assault and battery and other intentional acts. But, even if the child wins at trial, that lawsuit would almost certainly be a waste of time and money. Why? Because even if this socio-therapist has liability insurance, such as homeowner's insurance, the insurance company won't pay out a dime on this case. Insurance never covers INTENTIONAL wrongdoing. And what can be more intentional than rape?

What about the employer, the Snell Farms Children Center? Can the child-victim, through a guardian or parent, sue the employer? Yes. But the employer is not automatically liable for the rape committed by its employee. The child's lawyer must prove that the employer was NEGLIGENT in hiring, retaining, or supervising its employee, the alleged rapist. If the employer carefully checked its employee's background before the hiring, and found no past incidents of child abuse, and if the employer properly supervised the employee's work and had no reason to suspect such behavior, then the employer cannot be held liable.

It might be a tough case against the employer, but at least the employer's liability insurance will cover the costs of the legal defense and, if the jury renders a verdict favorable to the plaintiff, will pay money damages to the child.

But wait a minute! Didn't we just say that insurance won't cover intentional wrongdoing? True, but while "rape" is by definition "intentional", the EMPLOYER'S wrongdoing, if any, was not "intentional" (the employer did not commit the rape), but merely "NEGLIGENT". In other words, although the employer may not have been careful enough in hiring or supervising its employee, it did not "intentionally" harm the child. It was at most "negligent", and "negligence" is precisely what liability insurance is supposed to cover.

The New York State Trooper dutifully pulled his patrol car over for a distressed vehicle on the shoulder of the New York State Thruway in the Town of Brutus, Cayuga County, New York. He then got out, approached the car, and----- was struck be a flying wheel. A flying wheel? Yes, one that had apparently fallen off a passing vehicle.

Rendered unconscious by the giant frisbee, he was airlifted to SUNY (Upstate) hospital in Syracuse. Yesterday the New York State Troopers released a photo of the guilty tire (a kind of tire mug shot - shown here at left) in the hopes that someone will recognize it and blow its owner in. Judging from its size, and its rust, it appears to be the spare for some kind of small truck.

What if they find the tire's owner? Will he be legally liable to the Trooper in a New York personal injury lawsuit for medical expenses, lost income and pain and suffering? Probably. Here's how the law works.

Assume the tire's owner says, "gee, I have no idea how that tire came flying off of my truck. I secured it down real good just last week". Oh yeah? The fact that it flew off the truck shows that he did NOT secure it well enough.

Recently I blogged about the legal doctrine of "res ipsa loquitur." When a tire or other object comes flying off a vehicle for no good reason, that makes for a classic "res ipsa loquitur" case, which means the owner is liable. In fact, there are several New York personal injury cases just about exactly on point: Pollock v. Rapid Indus. Plastics Co., Inc.113 A.D.2d 520, Spica v. Connor, 56 Misc.2d 364, Polk v. Roger Sherman Transfer Co., 3 A.D.2d 882.

But wait a minute. Why should this Trooper be able to bring a New York accident lawsuit for medical expenses and lost wages? Won't his workers' compensation cover that?

Yes, it will (all his meds, and most his lost wages). But if the trooper decides to sue the guy responsible for the loose tire for pain and suffering compensation, he had better also sue for the lost wages and medical expenses. Why? Because workers' comp has a "lien" on any recovery he gets from his lawsuit against that guy. In other words, comp gets to take back from the Trooper's lawsuit award (be it from a settlement or verdict) all of the comp payments it made for the Trooper's medical treatment and lost wages. So if the Trooper doesn't sue for the lost wages and medical expenses, comp will take its comp payments back out of his pain and suffering award. But if he includes in his lawsuit a claim for the lost wages and the medical expenses, then he will be able to pay comp back with the money from those awards, and will be able to keep 100% of his pain and suffering compensation, plus whatever lost wages were not covered by comp.

In the end, the innocent trooper acts as a kind of "pass through" between the guilty tire/truck owner who actually caused the injury, and the innocent workers' compensation insurer. The innocent injured trooper gets to keep his pain and suffering award, but the medical expenses and lost wages "pass through" him from the guilty guy (or his auto insurer) to the innocent workers' compensation insurer. Sound fair? I think so.

Central New York accident lawyers and victims, and such lawyers and victims everywhere, owe a big debt to Philippe Kahn. Who's he, you ask? Kahn invented, on a whim, the camera phone about 13 years ago (while he was waiting for his wife to deliver a baby -- read full story in USAToday). Yes, that ubiquitous, ever-handy device that can snap a picture anywhere, anytime, was invented only 13 years ago!

Why do accident victims need to thank Kahn? Because they can just reach into their pocket, or pocketbook, pull out Kahn's invention, point, click and --- voila! - evidence preserved!

Two of our recent cases demonstrate what a game-changer the cell phone camera is for personal injury cases.

Case #1: Wife slips and falls and suffers a serious back injury on snow-covered steps outside a commercial office building. The husband, after attending to his injured wife, has the wherewithal to pull his cell phone out of his pocket and snap some pictures of the icy, snow-covered steps. Fast forward several months --- case settles for a very significant amount of compensation. Why? Because we could prove how bad those steps were with the photos. Without the photos, the snow would have been gone by the time a lawyer or investigator got to the scene.

Case #2: Heavy-set man was walking down wooden steps of a New York State police trailer. The wooden steps snap underneath his foot, causing him to fall and sustain multiple tears in the soft tissue around his knee. Before dragging himself to his car, he has the wherewithal to snap photos of the broken steps with his cell phone. They show that a "stringer" (a support device) was missing from the middle of the steps, which is what caused them to snap under his weight. Now the evidence is preserved for his personal injury case.

These are just two examples of how cell phone cameras have helped our New York personal injury victims preserve evidence in their cases. The same kind of photo-snapping is happening now in all kinds of accident cases, including auto accidents (shoot up that collision scene before the tow trucks arrive!), parking lot falls (snap that pothole before they fill it!), construction accidents (photograph that collapsed scaffold before they remove it!) and defective products cases, just to name a few.

I am sure Philippe Kahn did not have personal injury cases in mind when he invented the camera phone. But Henry Ford didn't have space travel in mind when he invented the combustible engine, either. I tip my hat to you, Philippe Kahn (and, while I'm at it --- to Henry Ford, too).

How about this for a New Year's resolution: "I'll practice common sense safety rules to protect myself and my family from harm this year". Pretty good one. And probably a lot easier to keep than the standard resolution of "I'll go to the gym religiously and lose 20 pounds".

You can take a first step toward fulfillment of this safety resolution by starting the New Year out right. Follow these safety tips from this Central New York Injury Lawyer:

If you are HOSTING A PARTY on New Year's Eve, protect your guests (and yourself from liability) by doing the following:

• SHOVEL AND SALT all areas of your driveways and walkways where people might walk. People who are intoxicated are more likely to suffer slip and fall injuries.
• COLLECT YOUR GUESTS' CAR KEYS (perhaps in a bowl) and only hand them back to a designated driver who has had nothing to drink. You might also have some kids home from college who want to make a few extra bucks by acting as "professional designated drivers". They could simply taxi the guests home. Remember, under New York's Dram Shop Act you can be held liable if guests who got intoxicated at your party end up causing a car accident.
• THINK TWICE ABOUT CANDLES, FIREPLACES AND OTHER SOURCES OF FIRE: Fire and alcohol don't mix well. Many of your guests will be drinking more heavily than usual. Do you really want to expose them, and you, to the risks of candles and other fire sources coupled with alcohol-induced clumsiness? Consider battery-operated candles instead. Keep fireplace fires encased in safety screens at all times.

If you are GOING OUT on New Year's Eve, follow these safety tips:

• DRIVE MORE DEFENSIVELY THAN USUAL. There are more drunks on the road than at any other time of year. Don't assume others are going to stop at stop signs or red lights. Assume they are all crazy drunk and drive accordingly!
• DON'T DRINK AND DRIVE. Don't YOU drive after drinking. Don't drink ANYTHING if you are driving on New Year's Eve. The cops will be out in droves looking for an excuse to pull you over and test your sobriety. There is a big national push to crack down on drunk driving this holiday season, as I explained in a prior blog post. Either don't drink, or assign a designated driver, or travel by cab, or plan to sleep over, or arrange for a limo with friend, or --- well, you get the picture -- do ANYTHING to avoid driving after you have drunk alcohol on New Year's.

By following these tips, you'll start your year out right. And maybe for once in your life you'll even be able to keep a New Year's resolution --- that one I suggested earlier --- the one about practicing common sense safety rules all year long.

Here's wishing all my readers and their families a safe and prosperous 2010!

This central New York personal injury lawyer was born and raised in Syracuse, New York. My law offices are in Auburn, Cayuga County. I reside in Geneva, Ontario County. I am therefore fully rooted in central New York and the Finger Lakes region. But I like to travel. In fact, as a young man, I spent seven years living abroad. I speak several languages, including French and Spanish. My travels have taught me many things. One lesson I learned is that United States' personal injury law is the best in the world. Let me explain by telling a story.

One evening, while visiting my in-laws in Guatemala City, Guatemala, I was walking down a dimly lit side street to get to my in-laws' house. I came inches from stepping into a barely visible 3-foot wide, and who-knows-how deep, hole in the middle of the street. Municipal workers had created the hole and left it uncovered and un-barricaded. If I had taken one more step, I would have fallen into this hole and been seriously injured.

Why did the municipal employees leave the hole they were working on uncovered with no warnings or barricades? Because it did not matter to them. In Guatemala, a citizen can't sue the City for personal injury, pain and suffering, lost wages and medical expenses for municipal workers' negligence like we can in the United States. Since there was no price to pay, what incentive did those workers have to be careful? Answer: none.

Our civil justice system, and the personal injury lawyers who champion it, are responsible for the comparatively safe living standards that we enjoy in the United States, including: corporations providing consumers with safer products, doctors and hospitals employing safer medical practices on their patients, employers creating safer working conditions for their employees, landlords providing their tenants with safer apartments, owners of commercial business eliminating unnecessary hazards on their premises, and a host of other safety benefits that we Americans simply take for granted. Without our personal injury lawyers, and our generous civil justice system, none of these actors - manufacturers, doctors, employers, landlords, commercial property owners --- would have the strong incentives they now have to make safety a top priority.

Travel the world and you will see what I mean. Without our tort system, our lives would be very different. We would have to contend with much more of what many people in the world find "normal": unguarded holes in urban sidewalks and streets; chemical plants releasing harmful chemicals in neighborhoods; torturous mountain roadways with no guardrails; incompetent medical professionals performing unsafe procedures; toxic waste dumps near heavily populated areas; tainted and unsafe food supplies; dangerous drinking water; police brutality with impunity. The list goes on and on. All these evils are prevented here, in large part, by a civil justice system that allows victims of careless, negligent or intentional wrongdoers to be compensated fully for the harm caused.

Personal injury trial lawyers make society safer for everyone. That's why I am proud to be one.

I recently posted a blog entitled "Why Upstate New York Verdicts Are Much Smaller than Downstate" . I explained that New York City juries tended to be more generous than upstate juries because big-city dwellers generally tend to be "socially" oriented while rural people are more "self-sufficiency" oriented.

One thing I did not mention in that post is that, even within upstate, the size of a personal injury or medical malpractice verdict tends to vary between counties. Let's just take, for example, the counties where Michaels & Smolak tries most its cases. I have attempted to list them here in order from biggest-verdict counties to smallest-verdict counties:

Erie County, Monroe County, Onondaga County, Ontario County, Oswego County, Cayuga County, Seneca County, Wayne County, Yates County.

As shown above, a personal injury or medical malpractice victim is best off in Erie County. Juries there, by upstate New York standards, are very generous. In my view, the average Erie County verdict is about twice that of most other upstate New York county verdicts. Why? Well, Erie County contains Buffalo, a big blue-collar city. As I explained in my previous blog post, this makes for a more generous jury. The juries' message there, stated in dollar terms, tends to be, "defendant, you really injured this poor plaintiff, so pay up in full for everything he has been through". This explains why Monroe County and Onondaga County are also high on the above list; they contain the cities of Rochester and Syracuse, and juries there, as in most cities, tend to give more pain and suffering compensation than rural juries.

But a personal injury or medical malpractice plaintiff will generally fair far worse in Wayne or Yates County. Juries there tend to be exceedingly "tight" with their personal injury and medical malpractice verdicts. Those are very rural counties, so juries there tend to have the "self-sufficiency" mindset. Their message to the injured plaintiff, stated in dollar terms, seems to be, "plaintiff, stop your whining, get on with your life, and, by the way, we don't believe in compensating pain and suffering with money".

How do we choose what county to "venue" (place) a case in? Well, the law requires that we venue the lawsuit in a county where at least one of the parties resides. If both the plaintiff and the defendant reside in the same county, then we have no choice. But sometimes we have a choice. For example, if the plaintiff resides in Yates County, but the defendant resides in Erie County, we can choose to "venue" the case in either of those two counties. Given what I said before about the difference between a typical Yates County verdict and an Erie County verdict, that would be a no-brainer!

One last point: Sometimes, especially if either the defendant or the plaintiff is from out of state, we can choose to venue the case in Federal Court, instead of State Court, which will usually put the trial in a bigger city such as Rochester or Syracuse.

The tendency of juries in certain counties to give big or small verdicts is not the ONLY thing we consider when deciding where to venue our cases, but it certainly is, for obvious reasons, a BIG consideration.

Central New York is anything but white so far this holiday season. In fact, it's down-right green and balmy here in the Syracuse, Auburn and Geneva, New York regions! Many of us upstate New Yorkers are hoping for some snow right about now- at least to take us through the holiday season. (Careful what you wish for --- it might stay through March!)

While we upstaters are "dreaming of a white Christmas", the United States Fire Administration (USFA) is dreaming of a . . . SAFE Christmas.

And justifiably so: Every holiday season needless house fires kill about 400 people and injure about 1,650 in the U.S.

The USFA offers these simple safe-holiday tips (and lots more, too --- visit the USFA's website here):

CHRISTMAS TREES:
• Old, dried out Christmas trees are a fire hazard and should be avoided. You can identify them by knocking the tree trunk on the ground. If lots of needles fall off, it has probably dried out.
• Avoid placing the tree close to a heat source. (The heat will dry out the tree, making it more flammable.)
• Do not leave a tree up for longer than two weeks. (Get it later and get rid of it earlier!)
• Keep the tree stand filled with water.
• When the tree becomes dry, get it out of the house. (A dry tree is a major fire risk.)

HOLIDAY LIGHTS
• Check Holiday lights for frayed wires, gaps in the insulation, broken sockets, kinking or wear and tear.
• Do not link more than three light strands (unless the directions say it is safe to do so). Connect strings of lights to an extension cord before plugging the cord into the outlet.
• From time to time, check the wires - if they are warm to the touch, get rid of them.
• Keep holiday lights on only while you are awake and near them.

HOLIDAY DECORATIONS:
Decorations should be nonflammable or flame-retardant and placed away from heat sources.

NEVER PUT WRAPPING PAPER IN A FIREPLACE:
It can cause the fire to surge, and send off sparks and embers.

SMOKE DETECTORS
Check them to make sure they are working on all levels of your home.

We at Michaels & Smolak wish you all a happy and SAFE holiday season!