Central New York Injury Lawyer Blog

Syracuse area lawyers received two black eyes this weekend. The Syracuse Post Standard reports that a Syracuse bankruptcy lawyer, Christopher Chadick, was convicted of defrauding many of his clients. He was found guilty of one of the oldest switch-and-bate tricks in the book --- taking a customer's money up front and then failing to deliver the product. In his case, he took retainer fees to file bankruptcy petitions and then didn't do the work and didn't return the money, either.

In a separate case, a Baldwinsville lawyer, David Pelland, was sentenced to 30 months in federal prison for conspiring to commit mail fraud. The facts are someone complicated, so I won't go into them here. What struck me about this case, though, was that this is Pellard's second felony conviction --- he was convicted in 1994 for concealment of bankruptcy assets. I guess some folks never learn.

As a fellow lawyer, I take these stories to heart. Lawyers -- especially personal injury lawyers like myself -- already suffer from a negative public image rivaled only by used car salesmen and politicians. (A letter directed to the editor of a local newspaper from an insurance industry professional not long ago referred to us as "bottom feeders".) More bad publicity for lawyers is not needed.

Yet some of the "bad" image is part and parcel of the job. We are bound to make enemies, especially among insurers and corporations, if we zealously pursue our injured clients' rights to compensation from those who carelessly caused their losses. As a Central New York and Syracuse personal injury lawyer, I fight with insurance companies and big businesses every day for my clients' rights. And those folks have big bucks to fight back. So I don't just make enemies; I make powerful enemies. And they spend millions of dollars every year lobbying Albany to get rid of me, and of my clients' claims, by so-called "tort reform legislation" (Which I call "tort deform legislation").

Hey, I don't mind making enemies. If I did, I wouldn't have chosen to become a Central and Syracuse New York personal injury lawyer. I would have gone into house closings or mediation work. But these stories about lawyers-gone-bad just pile more trash on the garbage heap of the legal profession's public image.

So fellow lawyers, do me a favor: Do your job zealously, thoroughly, but honestly and ethically. Thank you.

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 Lawyer
Michaels & Smolak, P.C.

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

I've got a "fan"! She called yesterday and told me she had subscribed to my Central New York personal injury lawyer blog a few months ago and enjoys reading my posts. She thinks I write nicely, clearly, and my posts help her understand New York personal injury law. She even forwards some of my blog posts to her friends and family. Nice compliment!

But that's not why she called. She wanted advice. Before subscribing to my blog, she had hired a Syracuse New York personal injury lawyer to represent her for injuries she had suffered in an accident. She had some questions about how this lawyer was handling her case. She wanted to hire me to give her a second opinion. I told her I would not charge her. We then talked for about 10 minutes. I eased her mind about how her lawyer is handling her case. Her lawyer is doing a fine job, and his only shortcoming was perhaps a failure to explain clearly certain aspects of the case to her. She was grateful to me. I made a new friend!

Unfortunately, some New York personal injury lawyers would have seized on this opportunity to "bad-mouth" the client's lawyer so they could take over the case. That's not right, and not fair. Her Syracuse personal injury lawyer is a darn good one. And he is doing a darn good job, I am sure. I am not so conceited to think that Michaels & Smolak is the only excellent Central or Syracuse New York personal injury law firm. (But, if you ask anyone who knows, you will hear we are among the best!)

I usually end my blog posts by saying, "I'd love to hear from you"! Well, now you know I mean it.

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 Lawyer
Michaels & Smolak, P.C.

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

Yesterday I blogged about t

I am sure this is not what the rule-makers had in mind when they made this rule. But is it too far-fetched to think that some lawyers will make the rule work in their favor by funding the campaigns of judges they don't want to appear in front of? I think not.

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 Lawyer
Michaels & Smolak, P.C.
1-315-253-3293 Toll Free 1-866-698-8169

Being a Central and Syracuse New York accident lawyer requires me to subpoena Central New Yorkers to testify many, many times a year. Sometimes I even have to subpoena children. Tomorrow I will take the subpoenaed deposition testimony of several child-witnesses to my child-client's Seneca County New York personal injury case. I served a subpoena on their parents notifying them that they were required to bring their child to my office to give testimony on the matter. That must have been quite a shock to them!

I certainly don't relish putting a family through the stress of a subpoena and then a deposition, but sometimes I can't avoid it. I have a duty to represent my client diligently, and in this case that means finding out what these child-witnesses know, and making a record (called a transcript) of it.

On the other hand, for the kids it's probably not so bad. ("Cool --- I get out of school for the morning!") The parents, though, are probably kind of worried ("what the hell do they want my kid to testify for --- did he do something wrong?")

The children will, of course, be accompanied by at least one parent. I always try to make the parent and the child feel very comfortable with the process. I try to make it a lesson in civic duty. I explain that our civil justice system works because lawyers are allowed to subpoena witnesses to say what they know about a court case.

The first order of business when taking the testimony of a child is making sure the record reflects that they are capable of taking an oath. I must show, on the record, that they understand what an oath is, or at least that they know the difference between a right and wrong, between a lie and the truth, that lying is wrong.

Deposing a child is different from deposing an adult. First, if you have a heart, and believe it or not most lawyers do, you really want to avoid making the child feel at all picked on or uncomfortable. I try to dig out the truth without being overly aggressive. I avoid any hostile gestures or intonations. I try to befriend them. I feel I get more truthful answers this way, and I also avoid making the child feel at all uncomfortable.

Children, especially very young children, can make poor witnesses. I have deposed children who have given me contradictory stories about what happened within the span of only a few minutes. They are usually not lying. I think they feel they need to know the answer, so if they don't know, they sometimes make it up. Then they forget what they just told me and make up a new story. They have several stories in their little heads!

Tomorrow the kids are a little older, around 12, so I shouldn't have this problem. I hope to get the truth, the whole truth, and nothing but the truth! Wish me luck.

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 Lawyer
Michaels & Smolak, P.C.

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

I have been a Central and Syracuse New York personal injury lawyer for many years now. So I have been around the block a few times. I am steeped in our civil justice system. And I have news for you: It works just fine. It ain't broken, so don't fix it. No "tort reform" needed, thank you.

Here's an example of how our civil justice system automatically weeds out frivolous lawsuits without the need for tort reform.

The other day I went to visit a farmer whose arm had recently been ripped off by a piece of farm equipment. I went to inspect the machine to see if the manufacturer was to blame. If the design was unreasonably dangerous, and the dangerous machine caused the accident, the farmer would have had a good New York products liability claim to compensate him to the tune of several million dollars.

As it turned out, there was nothing wrong with the machine; the farmer had simply made a mistake. He should have shut the machine off before he climbed into where he did to fix a mechanical problem. We all make mistakes, and unfortunately this one cost him dearly.

So guess what? I did not file a frivolous claim. And my farmer friend did not ask me to file a frivolous claim on his behalf. He understood and accepted my explanation as to why he had no claim. He was grateful to me for having explained how the law works and why he had no case.

Even if I had been an unethical lawyer who wanted to file a frivolous claim, I would not have filed the frivolous claim. Why not? It would have made no economic sense. The claim would have cost me lots of money and time and would have eventually been dismissed. And no, the manufacturer would not have paid us big bucks to go away. He would have paid us nothing, or next to nothing, and certainly not enough to pay for my time and expenses on the case.

This case is no different than any other in this regard: It never makes any economic sense to file a frivolous claim.

Real flesh-and-blood personal injury lawyers (as opposed to the figments of tort reformers' imagination) live by this refrain: "you make money on the cases you turn down". What this means is that you can only make a living in this business by turning down frivolous cases, and taking only legitimate ones.

So please contact me if you believe you may have a legitimate New York personal injury claim.

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 Lawyer
Michaels & Smolak, P.C.

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

As a Central and Syracuse New York personal injury lawyer who takes on only legitimate accident claims, I resent, despise, disown, and spit-in-the-general-direction of all frivolous personal injury lawyers and their frivolous lawsuits. They give my bonafide injury lawsuits a bad name. And they give all legitimate personal injury lawyers a bad name.

Yes, I hate frivolous claims, but I also dislike so-called "tort-reformers". Most of them have self-interest at heart; they work for or represent big insurance companies or businesses who stand to gain by taking away the little guys' right to hold big business liable in court for their careless safety shortcuts that injury innocent people. To dupe the public into believing our time-tested tort law is a problem, they blow out of proportion the very few "frivolous lawsuits" that are filed, and try to convince the public that all or nearly all, personal injury lawsuits are frivolous.

So, since I despise frivolous lawsuits, and I also dislike tort-reformers, I should doubly despise and dislike frivolous personal injury lawsuits filed by tort reformers, right? What? A tort reformer filing a frivolous accident lawsuit? Yes, you heard me. An editorial in the New York Daily News the other day criticized conservative Republican New York State Senator James Alesi, a self-proclaimed "tort-reformer" (he represents the Monroe County towns of Chili, East Rochester, Henrietta, Irondequoit, Mendon, Penfield, Perinton, Pittsford, Riga, Rush and Wheatland, and portions of the City of Rochester) for filing a frivolous lawsuit.

And boy was it ever frivolous! Here are the facts: While out looking to buy a home, Alesi and a friend tried to enter a partially built house that was already sold to someone else. Since the door was locked, they looked for, and found, an unlocked basement door. The stairs were not yet built, but they found a ladder that led from the basement to the first floor. Alesi fell and broke his leg while climbing the ladder. He later sued the homeowner (whose home he had basically burglarized!) and the construction company who had left the ladder there.

Alesi's fellow conservatives so harshly criticized, mocked, disparaged and heckled him for filing the bogus claim that he recently withdrew the case, saying, "I filed the suit without regard to the anxiety that it would cause the homeowners, the builders or the community where we live, and I'm sorry for that".

He forgot to mention the anxiety his frivolous claim caused me, and other legitimate New York personal injury lawyers.

The New York Daily News editorial concludes that Alesi will "go down in the annals of political hypocrisy". You can say that again: A so-called tort-reformer who was willing make a few bucks for himself by filing a frivolous claim, but is unwilling to allow accident victims whose lives have been ruined by corporate negligence to file legitimate claims.

If you have a legitimate claim, call me, or 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 Lawyer
Michaels & Smolak, P.C.

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

When you are injured and can't work and don't have any income, life gets ugly fast. You can't pay bills, so bill collectors hound you. You have to say "no" to all those little extras for the kids. You might even end up losing your home to the bank in a foreclosure action.

And when you have a pending lawsuit against the negligent person or company that injured you and caused all these losses, and your New York personal injury lawyer says you should eventually get a nice settlement or money judgment, you want to reach out into the future and grab some of that money now, to pull yourself back up above water.

So when a lawsuit lending company offers you a loan that you only have to pay back when and if your New York personal injury lawsuit settles or you get a monetary judgment, it seems like a life-line.

But things aren't always what they seem.

I have blogged about lawsuit lending before. There, I said, and I repeat, that I don't recommend to my personal injury clients that they use lawsuit lenders unless they have exhausted all other means of getting loans, including from family and friends, and they absolutely can't get by without the cash.

Apparently, many people agree with me. Here's a new on-line article explaining how lawsuit lenders can rake desperate injured plaintiffs over the coals. In one of the cases the article discusses, the injured plaintiff borrowed $9,150 from a lawsuit lender, promising to repay the loan from the proceeds of his eventual settlement or judgment against the folks whose negligence injured him. But he should have read the fine print and done some math. It turns out that, because of the high interest rate, by the time he got paid on his personal injury case a year and a half later, he owed the lender $23,588. And his settlement was for only $27,000. He got peanuts from the case.

How could that be? How could they charge him so much interest? Can banks and lenders get away with that? Isn't that called "usury" and isn't it illegal?

If this had been a normal bank-to-person loan, it would be illegal. Interest rates and lending practices are strictly regulated to protect the consumer. But lending to injured plaintiffs who are willing to use their lawsuit as collateral is a fairly new practice, and our old laws don't cover it. In fact, the lenders make damn sure that what they are doing does not technically qualify as a "lending" at all so that they are not regulated by the rules prohibiting exorbitant loans with interest rates. The way they do this is by providing that the plaintiff need not repay the money if they lose the case. (There is no way most injured plaintiffs could repay the loan anyway if they lose the case, so this is not much of a concession). Since the money need not be repaid unless you win a settlement or monetary judgment, lawsuit lenders claim what they are doing is not "lending" at all, but rather "investing" in the case, at a substantial risk. This, they say, justifies the exorbitant "rates of return" (it's not "interest", they say, since it is not a "loan" but rather an "investment").

But in reality, lawsuit lenders screen very carefully the cases they will lend on, and usually shell out the bucks on the slam dunks, or near slam dunks, and take little risk at all in exchange for those high interest rates ... er I mean "rates of return".

Some States, including New York, are starting to catch on --- and have begun to regulate lawsuit lending. But it's still pretty much a free-for-all out there. That means, buyer beware! Until the law catches up with lawsuit lending practices, my advice to clients is: (1) read the fine print; (2) calculate very carefully just how much money you will end up paying the lawsuit lender overtime; (3) ask yourself, "is it really worth it" and "can't I get by without this for now"?

Be careful!

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 Lawyer
Michaels & Smolak, P.C.

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

It's nice to win. And this Central and Syracuse New York personal injury and wrongful death lawyer recently won an appeal for the widow of a wrongful death victim in a Syracuse wrongful death lawsuit. The case is about a tragic accidental death that got extensive news coverage all over New York State. I have received phone calls from lawyers from other parts of the country about this case. Some have asked me for copies of my arguments (Brief) in the appeal.

What's the case about? I am not at liberty to discuss the facts of the case in this blog for reasons I will explain below.

But first let me tell you that this was the second time the appellate court reversed the trial court in this case. Each time, the trial court had thrown my case out, and each time the Appellate Court reversed and reinstated it. I am sure the trial judge did the best he could each time. But the case involves difficult, novel New York wrongful death legal issues, and even I did not know how the Appellate Court would resolve them. I feel fortunate to have won, twice now. And guess what. A third trial court decision is coming, and after that, a third appeal. How do I know? Well, I know I will appeal if I lose, and the defendants will do the same if they lose. It is a big case. Both sides are giving it all they've got, fighting tooth and nail.

Now here's why I can't give you more facts about this case: After I won this second Appeal, a Syracuse TV reporter called me and asked if she could come out to my office in Auburn and interview me for a News story about the case. I told her, "I'll check with my client to see". I did check with my client, the wrongful death victim's widow. She did not want me to talk to the press. So I called the reporter and said, "no thank you". And that is why I am not at liberty to tell you about this case. I don't believe my client would like me too discuss it here, since she did not want me to talk to the press about it.

Would I have rather been on TV? Yes and no. "Yes" because it would have been good publicity for my firm and me, and might have attracted other Central and Syracuse New York personal injury and wrongful death cases to my firm. But "no" because I really don't like trying my cases in the press, either. I am kind of like my client. I like to keep a low profile and quietly go about seeking justice for my clients.

In any event, the important thing is to respect the client's wishes. A lawyer has to remember that the client's interests always come first.

Honest New York personal injury lawyers like myself abhor dishonest personal injury claimants. They give our honest clients, and us, a bad name. Many people already assume, wrongly, that personal injury claimants exaggerate or completely fake their injuries. One true story about a fraudulent personal injury claim gives the whole profession a black eye.

I have represented hundreds of Central New York and Syracuse personal injury claimants over the years, and I can count on one hand those who were faking (and with my long experience representing personal injury victims, I can tell!). When I discover the deceit, I quickly sever the relationship. Even if I did not discover the deceit, the personal injury claim process would eventually, in almost all cases, reveal it. An insurance carrier's thorough investigation, or the harsh light of a deposition, usually brings the lie into focus.

In my experience, most personal injury fakers are also stupid. And dishonesty mixed with stupidity can easily backfire. Here's a good example:

The Syracuse Post Standard reports today that an Auburn man was charged with insurance fraud for faking a slip-and-fall personal injury accident in a Central New York convenience store last January. The man purposely poured soda on the floor and then lay there until customers, and then employees of the store, found him. He later filed an insurance claim against the store, alleging he suffered a back injury in the "fall".

How do the authorities know he faked it? His actions were all filmed on the store's surveillance camera. Pretty stupid. Don't most people know that surveillance cameras are almost everywhere these days? The only smart thing this guy did was withdrew his insurance claim after learning he had been caught on camera.

I hope the authorities "throw the book" at him. His crime harmed the store, the store's insurance carrier, and my law firm's clients. We try Auburn and Central New York personal injury cases. When we are picking our next jury, we will have to assume that many of the potential jurors have read this story. Will they be looking at our client as another possible faker? Yes! So we will have to work doubly hard to convince them that our client has a legitimate claim.

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 Lawyer
Michaels & Smolak, P.C.

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

Insurance companies love to snoop. They want to dig up all the dirt they can on you. They think that if they know everything about you, they will eventually unearth something they can use to torpedo your case.

For example, both federal and New York State law give you a right to medical privacy. Just because you are injured in an accident caused by someone else's negligence, and you sue them, doesn't mean you give up that right. But many insurance companies act as if this gives them a right to find out everything about your medical history. Whether my client is the victim of New York medical malpractice, a slip-and-fall case, a car accident, or other type of New York personal injury case, the insurance company lawyer will almost invariably ask me for "unrestricted" medical authorization, which, when signed by my client, will give the insurance company lawyer the right to access any and all medical records regarding any and all treatment my client may have gotten from any medical provider from the beginning of the world to the end of the world!

But New York personal injury and medical malpractice law doesn't give them a right to such broad authorizations. They can't snoop! They have a right only to the medical records that are relevant to the parts of the body you are claiming were injured. For example, if you are suing for a broken arm, they have a right to see all medical records, both pre-and post-accident, for treatment for that arm. They can't find out about your C-section, or your hemorrhoids, or about that depression you were treated for years ago!

A couple of years ago, in a case known as Mayer v. Cusyck, a trial judge gave me a bad ruling. He ordered me to supply the insurance company lawyer with unrestricted medical authorizations. I refused, appealed the Order, won, and the defense attorney ended up getting only those records relevant to the part of the body we were claiming was injured.

Every time a defense attorney asks me for "unrestricted" medical authorizations, I write them back and ask them to read Mayer v. Cusyck. But even when they read it, they don't always give up. I just finished battling this issue out in a case. The defense attorney made a motion to force me to turn over unrestricted medical authorizations. At first the judge appeared to agree with the defense attorney, but then I asked the him to read Mayer v. Cusyck. He did, he "got it", and then did the right thing: He gave the defense attorney ONLY the records relevant to the part of the body my client injured (her mouth and teeth).

It always surprises me how many New York personal injury lawyers allow their clients to sign unrestricted medical authorizations. They don't seem to care, or know, about their clients' right to privacy. They should care, and they should know! And so should you. If your New York personal injury lawyer asks you to sign unrestricted medical authorizations, have him or her read this blog post. Then have them call me if they want some legal briefs on this issue.

What is a "Loss-of-Consortium" Claim? A loss-of-consortium claim is a claim for compensation brought by the uninjured spouse of an injured spouse against the negligent tortfeasor who caused the injury to the injured spouse.

Wew, that was a mouthful! Let me try to break that down.

Although the uninjured spouse of a New York accident victim has not suffered any "physical" injury, New York personal injury law recognizes that she or he often suffers a different kind of injury or loss, specifically, the loss of spousal "services" that the injured spouse would have continued to provide but for his or her injury. The "services" lost can include household services (cooking, cleaning, etc.), love, companionship, affection and sexual relations. Because this notion of "loss of consortium" is rooted in traditional principles of "man and wife", it has not (yet?) been extended to cover loss-of-consortium claims by unmarried or gay couples who live together but are not married.

The "loss-of-consortium" claim is also called a "derivative" claim because the uninjured spouse's claim depends on, and derives from, the injured spouses claim. The two claims are always brought together.

What Is a Loss-of-Consortium Claim Worth? Frankly, juries don't usually award much for New York "loss of consortium" claims, and therefore, their "settlement value" is low, too. Although jury awards for loss-of-consortium claims vary, if you look at a lot of cases, and average them out, you will see (as I have) that they amount to, on average, about 10% of the injured spouse's award. Big loss-of-consortium awards usually ride on the coat-tails of big awards for catastrophic or very significant long-term injuries such as brain damage, paralysis, incontinence, or loss of sexual function.

How Do Loss-of-Consortium Claims Lead to Trouble? One thing that can throw a monkey wrench into a New York personal injury lawsuit is when married couples divorce or separate while their injury and loss-of-consortium claims are pending. Sometimes the separating or divorcing spouses fight about how to spit up any settlement money, or whether to even settle at all. A New York personal injury lawyer can't ethically represent one spouse against the other, so the lawyer's hands are tied! The spouses have to work it out between themselves, or hire separate lawyers to represent their interests.

If the case goes to trial during or after a separation, it wreaks even more havoc. The separation or divorce saps the jury of any desire to compensate the loss of marital services, so the claim tanks! Even if the non-injured spouse refuses to drop the loss-of-consortium claim, and we usually recommend they do, the jury can award loss-of-consortium compensation only for the period before the separation.

Bottom Line: Is there a lesson to be learned from all this? Yes: Let your New York personal injury lawyer bring your loss-of-consortium claim with your injured spouse's claim, but don't expect too much from it, and, please, stay married, at least till the end of the case!

As a Syracuse and Central New York accident lawyer, I have had loads of experience dealing with car insurance companies and their lawyers. Here's another example of how insurance companies and their lawyers take frivolous positions in Court that cost you, the taxpayer, money.

My client hired me to bring a Central New York car accident claim on his behalf. Here's how his Cayuga County car accident happened: He was a passenger in his friend's car. The friend had stopped at an intersection and was waiting for on-coming traffic to clear so he could turn left. His left blinker was on. Then, -- BAM - the car was struck from behind. The driver who rear-ended them admitted to the police right on the scene that he was reading a map while driving so he did not see the stopped car.

After the insurance company refused to settle for a fair amount, I sued the rear-ending driver and his employer (he was on the job when this happened, so the employer is vicariously liable for his negligence). Since the only real disputed issue was what my clients' extensive injuries were worth (no question about whose fault it was, right?), I made a "summary judgment motion", that is, I asked the judge to decide, without the need for a jury trial, that the rear-ending driver was solely responsible for the collision. I made this request to the judge right after I sued the case out, and before any "depositions". Depositions are where the lawyers get to ask the parties questions under oath about how the accident happened so they can try to prove their case, or their defense to the case. But I figured, why should we bother with all that when there was so clearly no issue of whose fault it was?

But the insurance company lawyers did what they do far too often. They responded to my motion by taking a frivolous position. They argued that my request should be denied because they needed "discovery" first. Specifically, they claimed they needed to depose my client (ask him questions under oath) to see if he might have done something to cause the rear-end collision.

Now let's get this straight: My client, a passenger in a stopped car waiting to turn left, might have done something to cause the map-reading driver to ram his car into the car my client was seated in? Yup, that was their position, I kid you not!

Fortunately, I found several cases to support my request for the judge to rule in my client's favor, even at such an early stage of the case. The judges in those other cases realized that conducting depositions was a waste of time when the defendant was so clearly at fault. The judge in my case followed those other cases, and ruled in my client's favor. But I could not help but think of the waste of the judge's time, his clerk's time, his secretary's time, in considering and deciding an issue that the insurance company and its lawyers should have just stipulated to.

So when people talk about "frivolous lawsuits" clogging our courts and costing taxpayers money, yes, it makes me mad, because I know from my years of experience as a Central New York personal injury lawyer that it is more often the insurance companies and their lawyers that clog our court system with frivolous defenses.

I generally try to avoid talking about politics in this Blog. So, without telling you what I personally think of Obama's health care overhaul, I will tell you what impact the new Law will have on Syracuse and Central New York personal injury and medical malpractice victims.

First, though, let's talk about how the current health care system affects victims of injuries caused by someone else's wrongdoing or negligence. If these injured folks are unlucky enough to be among the 15% of Americans who can't afford, and thus do not have, health care insurance, they are in a real bind. The liability insurer for the at-fault guy will REIMBURSE their medical bills after they are done treating for the injury, upon a global settlement of the whole case, but the liability insurance will NOT pay the medical bills as they come due in the meantime. This too often means that the accident victim's doctors won't treat him, because no one is paying his bills. Doctors usually won't wait for their patient's settlement or victory at trial to get paid because they don't know for sure that the patient will win his case, or get a settlement that will cover the medical expenses. And things get worse for the patient-accident victim. Without proper, well-documented medical treatment, it is later difficult to prove the accident victim's injury.

So the accident victim really gets injured not once, but THREE TIMES!: First, when someone's carelessness caused his physical injury. Second, when he can't get the medical treatment he needs and thus has to suffer through needless pain and perhaps ends up with a much worse result. And third, when he doesn't get a fair settlement or verdict because he is unable to fully prove his injury for lack of medical records documenting it.

Believe me, this happens all the time. Example: I have a client, a poor farm worker, whose neck was broken due to a machine operator's negligence. The at-fault guy has liability insurance, but of course won't pay the medical bills as they come due. My client got some initial medical treatment, but then the doctors refused to see him because he wasn't paying his bills. To make matters worse, lawyer ethical rules prohibit me, his attorney, from lending him money so he can get the medical treatment he needs. He hasn't been able to work since of the accident, and he hasn't been able to get medical treatment, either. So now he has no "medical bills" to be reimbursed by the liability insurer when he eventually wins or settles his case, because he has not been getting any treatment, and he has almost no medical proof of his injury. In sum, he is stuck between a rock and a hard place.

Under Obama's new health care system, 95% of Americans will be covered. Thus, far fewer injury victims will fall between the cracks as has the client I described above. So as much as I hate the idea of turning this blog into a political commentary, on behalf of my many future injured clients, who will be the victims of someone else's carelessness, I have to say, hurray Obama!

I hate attorney advertising, especially personal injury lawyer advertising. Yet I advertise. Well, I mean, my firm does. I remember when we finally decided to advertise on TV. It was a tough decision. For years Michaels & Smolak prided itself on its success in attracting top personal injury and medical malpractice cases through word of mouth and through referrals from other attorneys who knew that we were among the best in the New York personal injury and medical malpractice field.

But our case load had started to dwindle even though we were still at the top of our game. Why? Because other Central New York accident lawyers were advertising and we were not. They were getting the cases simply by being on TV! For the most part, their ads were in terrible taste (examples: an attorney who called himself "The Hammer" and a firm that called itself "The Heavy Hitters" and one who claimed he was "a son of a bitch", but if you hired him he would be "YOUR son of a bitch!").

All this advertising, though totally tasteless, and even deceptive, was legal because decades ago the U.S. Supreme Court had ruled that attorney advertising fell under the protection of the "free speech" clause of the First Amendment to the United States Constitution. In other words, those guys had a right to say all this crap in their ads, even though it created a terrible image for personal injury lawyers.

Well, we at Michaels & Smolak are not used to rolling over and letting our opponents beat us. So we fought back. We went on TV with some ads of our own. Only ours were simple, dignified and straight-shooting. No "tough guy" monikers. No screaming at the camera. No silly jokes. You can watch a clip of one our ads by clicking the image at the bottom of this blog.

Then in January 2007 the New York State Office of Court Administration, which is responsible for attorney regulation and discipline in New York State, amended the Code of Professional Responsibility by adding some new rules prohibiting some of the most tasteless and deceptive practices. For example, they barred the use of monikers such as "Heavy Hitters" or "the Hammer" that suggested the lawyer would get great results. They barred other attention-grabbing techniques, too, as well as testimonials from clients about pending matters, and fake portrayals of judges or law firms.

One of the big advertising law firms, though, challenged those rules in Federal Court, alleging that the new rules violated the firm's First Amendment rights. The Federal Court in Syracuse agreed and struck down most of the new rules as unconstitutional. Just the other day, the Second Circuit Court of Appeals affirmed that Decision, in large part, in the case of Alexander v Cahill

So what this means is that if I want to advertize on TV as "Mike the Machete Bersani" and appear, bare-chested, wielding a machete in a Court Room, well .... I can. But don't hold your breath . . . .

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".