Central New York Injury Lawyer Blog

In February 1967, a young lady showed up for her first day of work at the Auburn, New York law offices of attorney George M. Michaels, our own Lee Michaels' father. (George is famous in New York - you can look him up on wikipedia). Lee, a young whipper-snapper fresh out of law school, joined the firm about two years later, and Carol has worked with Lee ever since.

But the story goes back further; Lee and Carol went to East Auburn high school together. Carol was two years ahead of Lee. Carol tells the story of how, back then, one of her teachers told the girls, "treat the under classmen well because remember, you could be working for them one day".

Times have sure changed. Today, any teacher who made a statement like that would be accused of rank sexism. But guess what --- that teacher was right! Carol ended up working for Lee for 43 years. And she worked with the rest of us ever since we joined the firm, too. She has been our head secretary and office manager for decades.

On her last day of work recently at the Auburn personal injury law firm of Michaels & Smolak, we decided to take Carol, and the entire office, out to the Sherwood Inn in Skaneateles, to celebrate her outstanding 45 years of loyal service and to surprise her, with a gift. (Carol roundly rejected our desire to give her a retirement party --- way too humble for that). But what do you give someone who clocked in 45 years of dedicated work, who hardly ever missed a day, who usually got to work BEFORE starting time, and who was, to boot, fun to work with? A gold watch? That didn't seem a good fit.

Well, we remembered that Carol had a great time a few years ago when she went on her first cruise with her husband, Jim. So at the Sherwood, we handed her some tickets. Not just any tickets, but for a cruise-for-two through the breath-taking Alaskan seas.

I shot this picture of Carol and Lee at the Sherwood. Does she look 73? I think not. If you see this young, sparky gal, congratulate her and wish her a happy trip, and retirement. She deserves both, and so much more!

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 a Syracuse New York wrongful death trial coming up in about six weeks. Six weeks may seem like a long time to you, but for preparing a complex trial, it is not. I started gearing up a few weeks ago.

The first thing I do is create a "to do" list for the trial preparation. As I get things done on my list, it feels good to cross them off. My list gets shorter and shorter.

In this case, my "to do" list is still quite long. There will be, I believe, more than 30 witnesses. I have to prepare "direct examinations" of the witnesses I am going to call, and "cross-examinations" of the ones I expect my opponents to call. And you don't just "wing it" up there. No, that's a recipe for disaster. You have to plan out carefully every line of questioning, and have exhibits and deposition transcripts ready to confront any witness who strays from the truth!

Another thing I do before a trial is look at how other experienced lawyers have handled similar trials. This is a wrongful death claim, so will watch some DVD's of opening statements and summations given by other lawyers in wrongful death trials. This gives me fresh ideas of how to structure, organize and present this kind of case.

You also have to figure out how to get all the exhibits into evidence, what witnesses to use to talk about them, and anticipate objections you might receive from opposing counsel.

And that's just the tip of the iceberg.

If you watch "Law and Order" or other TV law programs, you might think being a trial lawyer is just about going to court and trying cases. But that's only about 5% of it. The other 95% is preparation at your desk, on your computer, and on the phone or in conference with witnesses. I can't say it's exciting, and sometimes it's downright boring, but it's absolutely essential.

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 Lawyer
Michaels & Smolak, P.C.

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

Although I am a New York personal injury lawyer 95% of the time, every once in a while I let myself get talked into representing a plaintiff in a non-injury case. Usually it is to sue for breach of contract or something like that. Recently, I had a three-day bench trial (that means it was tried before a judge rather than a jury) on such a case.

My opponent was an ass. He made lots of useless objections, shouted and screamed a lot, and had a very sarcastic tone during his cross-examinations. He never smiled and he had a permanent scowl on his face. He looked mean. This particular lawyer has a reputation for being needlessly aggressive, unlikeable, and unkind. Other lawyers I have talked to about him do not think he is good or effective --- he is all smoke and no fire.

He has a steady stream of clients, though. Most of them men are of a certain type. They are the kind of men who have big aggressive dogs. This lawyer is, apparently, some kind of bulldog for them.

When we finished the trial, I thought I had probably won, but the judge wanted to "reserve", meaning he would write a Decision later.

Three weeks later the Decision arrived. I had won. My client got all the money he had sued for, plus interest. I called him and told him the good news. His response? "I can't believe we won ---- that other lawyer was so aggressive! I thought he had beaten us!"

Moral of the story: Being needlessly mean and "tough" in the courtroom may impress some clients, and even the other lawyer's clients. But that's because non-lawyers' impressions of what good lawyering is comes from TV shows. In the real courtroom, good lawyering means being smart, skillful and persistent -- and being likeable can't hurt, either.

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 Lawyer
Michaels & Smolak, P.C.

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

I ran across a fellow personal injury attorney's blog post pointing out that only one state, Oregon, requires attorneys to be covered by malpractice insurance. When you think about it, it's amazing the other 49 states, including New York, do not require attorneys to carry malpractice insurance, especially personal injury lawyers who handle multi-million dollar claims for their severely injured clients. Can you imagine a surgeon not carrying malpractice insurance? Unheard of. Lawyers make mistakes, too, and their clients should be protected from that, just as doctors' patients are.

I am not sure whether we need a law requiring all New York lawyers to carry malpractice insurance. But I do think we need, at the very least, a law requiring full disclosure. I think all uninsured New York lawyers should be required to disclose, on their letterhead or in some other prominent place, "we do not carry legal malpractice insurance". Why? Because most clients see lawyers as "rich" professionals, and assume they have adequate insurance coverage, just like doctors do. If they knew the lawyer they were about to hire was "bare", they might decide to choose another lawyer who is covered.

Here at Michaels & Smolak we sue lawyers for legal malpractice in New York. From our experience, we know that it is tough to collect on a judgment against an uninsured lawyer. These lawyers have no insurance for a reason; they can't afford it because they are already in financial straits. Usually, they have multiple debts or judgments against them, little or nothing in the way of assets, and they may file for bankruptcy to protect themselves from their malpracticed clients' lawsuits. We have seen this happen many times.

This is just not fair to the client, who never suspected she had hired an uninsured lawyer. That's why I'm for full disclosure. My two cents!

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 Legal Malpractice Lawyer
Michaels & Smolak, P.C.

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

Aw shucks, folks, it was nothin', really . . .

No, wait a minute. We are going to leave all modesty aside for a moment: Here's the news: Michaels & Smolak has been bestowed once again (for 2011) with a "first tier ranking" in U.S. News "Best Lawyers in America" for personal injury litigation firms in the Syracuse, New York metropolitan area.

Inclusion in Best Lawyers is based entirely on peer review (they ask other lawyers and judges about us). Other lawyers are asked this question; "If you could not handle a case yourself, to whom would you refer it?" Lawyers are asked to give nominees 5-1 numerical grades - 5 for a lawyer the voter would certainly refer a case to, 4 for a lawyer the voter would probably refer a case to, etc. Those with only the very highest "grades" make it to the list of "Best Lawyers in America".

Michaels & Smolak is one of only a handful of Central New York personal injury law firms who made the "first tier" ranking.

So if other lawyers - including insurance defense lawyers we take on every day of the week --- think we are so great ---- hey, maybe we are!

Wait. I just remembered. Bragging is not cool. Sorry about that.

Aw shucks folks, it was nothin', really . . .

Keep safe (and hire a GOOD law firm)!

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

With internet search engine optimization techniques, many New York personal injury lawyers from as far away as New York City pretend to be "Seneca County personal injury lawyers" or "Seneca Falls Accident Lawyers". Just do a google search with those words and you will see what I mean. You can even do a search like "Waterloo personal injury lawyer" and those far away firms show up on page one.

Those far flung law firms are just fishing for cases all over the State. But they are not familiar with the Seneca County judges and juries. And that's critical when trying a Seneca County personal injury or medical malpractice case. You have to know your audience. That's why I would never post myself on the net as being a "New York City personal injury lawyer". First, it wouldn't be true. And second, personal injury and medical malpractice victims down there are best represented by lawyers from down there who "know the ropes" in New York City courts, and who understand jury mindsets in the City.

My law office is in Auburn, New York, and I live in Geneva New York, many of my personal injury and medical malpractice clients hail from Seneca Falls and Seneca County. Our law office handles many personal injury and medical malpractice cases in the Seneca County Courthouse. We know the judges, and they know and respect us. And we know the jury pool. And we are the only law firm near Seneca County who handles almost exclusively personal injury and medical malpractice cases. We don't do real estate closings or transactional work or criminal defense. We do only one thing, personal injury and medical malpractice, because by doing only that one thing day in and day out every day, we get really, really good at it. And we do it on a regular basis in Seneca County, and that is why I can say without misleading anyone that we are Seneca County personal injury lawyers and "Seneca Falls personal injury lawyers."

And if you check out our website, or better yet, if you ask other lawyers and local judges, you'll see that we are among the best of the best "Seneca County personal injury lawyers" and"Seneca Falls personal injury lawyers".

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

A web article I stumbled upon jumped off my computer screen at me today. It was titled "Plaintiffs lawyers eyeing Marcellus Shale Work." My first thought: "Gee, I am a New York personal injury lawyer located right in the Marcellus Shale zone, so how come I am not 'eyeing' the future Marcellus Shall Work". Next thought: "Hey, that hydrofracking work will be dangerous, workers will get hurt, they will need New York personal injury lawyers to represent them, so gosh, maybe I should be 'eyeing' the Marcellus shale work". Next thought: "Don't want people getting hurt, and besides, it's going to be messy for our environment up here, so thanks but no thanks".

All those thoughts streamed through my brain in about 3 seconds, before I even got to the first word of the article. Then I read it. A personal injury lawyer out of Pennsylvania somewhere was quoted as saying that the Marcellus Shale drilling would cause "horrendous injuries" because of all the gas and liquid under high pressure carried through pipelines, stored in big tanks, and ejected underground at high pressure. Drill rigs are notoriously dangerous. Toxic gas leaks burn workers and gas rigs explode. Big tanker trucks cause motor vehicle accidents on narrow local roadways.

OMG! Parade of horribles. Well, he convinced me: the Shale gas drilling, or "hydrofracking" as it's called, if it ever happens up here, will be good for the personal injury law business. Unfortunately, it probably will, if it goes forward, produce a fair number of serious injuries and deaths. And I am sure that many of the injured and the families of the dead will find their way to our law office since we are well regarded in the personal injury field and, I believe, the only law firm located in our area of the Finger Lakes that limits its practices almost exclusively to New York personal injury cases.

Still, I can't get myself to start "eyeing" future shale drilling, as if it were some kind of delicious dessert. We have enough injuries and wrongful deaths up here already to keep us busy and make a living. And we love the beauty of the area. Hydrofracking will foul our water, and mess up our pristine land and lake-scape. Some things just aren't worth the money . . .

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 Lawyer
Michaels & Smolak, P.C.

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

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

Mum's the word.

As a Central and Syracuse New York accident lawyer, I religiously read the New York Times and other newspapers for news that affects my law practice. Today I read in the New York Times that U.S. Supreme Court Justice Clarence Thomas has not spoken for almost five years at oral argument in Court! He has not asked a single question of the many lawyers who appear before the highest Court in the land to argue cases. By contrast, many of his colleagues on the bench pepper lawyers with tough, piercing questions "right out of the box" (as soon as they start their argument).

So what's better, a quiet judge or an inquisitive one? As a Central and Syracuse New York personal injury lawyer who argues appeals in Courts all over New York State, I have learned to appreciate the talkative type. Why? Because the questions usually tell me what problems the judge is having in adopting my reasoning. If I know the concerns he or she has, I can then customize my oral argument to try to get that judge past his or her mental roadblocks to ruling in my favor.

In fact, I regret that Juries aren't allowed to ask me questions, too. There they sit, silent as lambs as I deliver my closing argument after trial. It's a one-way street, with my verbal traffic going their way, and no traffic coming back. I feel like I have a sign on my forehead, "One Way - Do Not Enter". I can't know what they are thinking. I don't know what problems they see with my case. If only we could talk about it. If only jurors could raise their hand and say, "But Mr. Bersani, what about . . . ?" -- then I would have an opportunity to guide them gently over those bumps in the road to a favorable verdict.

Now don't get me wrong; there are many good reasons for the rule prohibiting the jury from asking questions. I won't go into those reasons here. But generally, "give and take", isn't that the best way to get to a well-reasoned result? And that's why I welcome judges' questions, even the tough ones. My response when I am "interrupted" by a judge with a question? "Judge, I am so glad you asked that. Let me explain . . ."

It's been nice talking at you. Now feel free to talk back!

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

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

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

A guy I'll call Joe, a construction worker, rolls into my Auburn, New York office in a wheel chair with his three kids, wife and mother in tow. He has come to consult with one of the Central and Syracuse New York personal injury lawyers of Michaels & Smolak. Let's say Joe fell from 100 feet up when a scaffold collapsed, and landed on his feet. Let's say an xray view of his knees and ankles show bones that look like granulated sugar. Let's say he will never be able to walk, much less work, again. Let's further assume he is only 43 and was supporting not only his wife and 3 kids, but his mother, who lived with them. Who can sue the negligent contractor responsible for the scaffold collapse? Of course Joe can sue, but can any of his family members, too?

When you think about it, all these family members were "injured" when Joe was injured. Joe's wife now has to care for him. And she's got to take out the trash herself, mow the lawn, and shovel the snow. Also, her husband is in so much pain he hardly even thinks about sex, so she is deprived of his conjugal love. Can she sue for these losses?

And what about Joe's three kids? Their dad used to play with them, hold them, and bounce them on his knee. He used to bring home a nice wage and would buy them nice things, and was saving up for college for them. All that is gone. Can they sue?

And what about Joe's mom? Joe can't support her at all anymore. Now she has to go live in a State-funded nursing home. Can she sue?

The answers? yes, no and no. Wife can sue, kids can't, mom can't. Why? New York personal injury law inherited its main principles from English common law. Traditionally, a matrimonial couple was considered "one person". The law recognizes that when one is hurt, both are hurt. So the law allows both the injured spouse and the "uninjured" one to sue. The suit by the "uninjured" spouse is called a "derivative" claim, or a "loss of consortium" claim.

But the law does not recognize a "derivative" claim for the kids or mom.

But even though Joe's kids and mom can't sue, when you think about it, Joe can, in a way, sue for them. After all, if he recovers his lost wages in Court, he will have the money he needs to continue supporting them as he did before. If the jury does what's right for Joe, they have also done what's right for his family.

But even so, New York personal injury law fails to compensate some of those family members' losses. Under our law, no one can ask the jury to compensate the children's loss of a knee to bounce on, or of a dad who can run around and throw footballs at them. Joe can ask for compensation for his own heart break in not being able to provide these things to his kids, but the kids' own emotional loss will forever remain uncompensated under our law.

Just like human beings, laws are not perfect. Maybe that's because imperfect humans make them. Still, New York personal injury law is pretty good. And every day this Central New York personal injury lawyer is proud to harness the power of that law to help his clients get the compensation they deserve.

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 Lawyer
Michaels & Smolak, P.C.

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

When you go to the supermarket, do you know what to expect a gallon of milk to cost? If you are a careful shopper, you should. What about when you go to see a New York personal injury lawyer? Do you know?

First, you need to understand some basic concepts. The "gross recovery" in a personal injury case means the full amount of money the insurance company pays to settle the claim or to satisfy the judgment after trial. The "net recovery" means the insurance company's payment minus expenses. The "expenses" on a personal injury are all the monies your attorney pays to others to perform services to move your claim forward. Such expenses include, for example, the money he pays to the process server to serve the claim, Court filing fees, expert fees, and copying expenses.

New York law allows a New York personal injury attorney to charge a maximum of 1/3 the "net" recovery. For example, if you settle your case for $100,000 and there were $10,000 in expenses, your attorney should charge you 1/3 of $90,000, which amounts to $30,000. This leaves you with $60,000. This is the law in New York State.

Any New York personal injury attorney who tries to charge you 1/3 of the gross recovery is breaking the law. And I have seen lawyers do this! I have reviewed retainer agreements for New York personal injury cases in which the lawyer charges "1/3 the recovery plus expenses". In a case that settles for $100,000, in which there were $10,000 in expenses, this lawyer will take $33,333 in fees, charge all the expenses to you, and leave you with only $56,666.

Generally these illegal retainer agreements are prepared by New York lawyers who only "dabble" in personal injury law. They don't know what they are doing. I don't think it is deliberate. The rules in other States are different. Many States allow attorneys to charge 1/3 of the gross recovery and have the client foot the full bill for all the expenses. So maybe these New York lawyers are copying and pasting from retainer agreements from another States.

A New York lawyer who claims to handle personal injury cases but doesn't even know what he can charge doesn't inspire much confidence, now does he? That's just another reason why you should hire only a New York personal injury lawyer who handles a high volume of personal injury cases. Your case is too valuable to have some attorney "learn the ropes" on your case. Let him cut his teeth on a less careful shopper's case!

Hope this was helpful.

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