Central New York Injury Lawyer Blog

mill.jpgI came across a Stanford law professor’s study on the effect of “settlement mill” type personal injury law firms on personal injury case settlement results. If you’re searching for a New York personal injury lawyer, it’s worth a read! But since you probably won’t read it (it is 63 pages long!) let me summarize it for you.

Before I go any further, I’d better explain what we mean by “settlement mill”.
In the words of the law professor who did the study, a “settlement mill” is a “high-volume personal injury law firm that aggressively advertises and mass produces the resolution of claims, typically with little client interaction and without initiating lawsuits, much less taking claims to trial”.

These personal injury firms make money by quickly processing a huge volume of cases (like a “mill” churns wheat). The cases must be under-worked because preparing a case for trial takes too much time. To get the case settled, they often take much less in settlement than the client would get if she had hired a dogged lawyer prepared to fight for her all the way to the courthouse doors. The mills make their money on volume, not quality, of work.

This way of doing business differs markedly from the traditional personal injury law practice, which we at Michaels & Smolak follow. In the traditional approach, personal injury lawyers take the time to build and advance each client’s personal injury case. Even though it is time-consuming, and doesn’t bring in the fast buck, in the end the client usually fairs better at trial or in a settlement. That’s because the insurance company or its lawyer sees that we are well prepared to try the case to a jury, which could lead to a considerable verdict, and because we have uncovered nuances of the case — overlooked by the “mills” — that can make it stronger.

Traditional personal injury lawyers (like us) spend so much time on each case because we care about our reputation among the clients and the attorneys who refer us the cases. Since most of our cases come from referring attorneys and former clients, we need to continually “prove” ourselves to them. We have a smaller case load than the “mills” , but work each case more carefully and thoroughly.

In contrast, the big-advertising “settlement mill” lawyers don’t care too much about word-of-mouth reputation. They are getting their cases not from former clients, and not from referring attorneys, but from bombarding airwaves and billboard. A dissatisfied customer is no big deal — the next customer wont’ come from her referral, but from advertising.

The law professor concludes that “settlement mill” clients generally fare worse (get less money in compensation) than the clients of traditional personal injury lawyers.

Here’s a blog post from a Florida personal injury lawyer who also summarizes the Standford study (though not as briefly as I have).

Bottom line for my readers: Be careful what kind of New York personal injury law firm you hire. If they are on TV round the clock, and on every other billboard, they may be a “settlement mill”, and you might want to talk to other lawyers regarding their reputation before deciding to hire them.

Keep safe!

Mike Bersani
Email me at: bersani@michaels-smolak.com I’d love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com Central and Syrcause NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

Lawyer ads! Godda luv’m: I’ve blogged about lawyer advertising before. It is an unfortunate necessity, at least for New York personal injury lawyers. We do very little of it compared to the “big advertisers” in Central New York, and we try to do it in a dignified, serious manner. You have to enjoy the humor, though, of those that take the opposite approach. So enjoy these lawyer ads, and don’t miss the rappin’ lawyer at the end:

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Keep safe!

Mike Bersani
Email me at: bersani@michaels-smolak.com I’d love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com Central NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

car sale lot.jpgCNBC reports that those sci-fi-like, self-driven cars (“SDC’s”), also called “automated cars”, will account for half of all vehicles on the road by the year 2035, with the first ones hitting the market by 2020. (You can see one operated here). The first generation of these vehicles will require someone in the driver’s seat just in case the technology develops a problem–much like an aircraft autopilot. Truly independent SDCs requiring no human involvement will begin to be offered by 2030. (I blogged about these new cars here).

But CNBC also reports that Nissan Motor, one of the leaders of the new technology, cautioned that “because of the litigious nature of the American market, manufacturers might have to steer clear of the U.S. unless legislators take steps to protect the industry from a flood of frivolous lawsuits”.

Forgive my skepticism, Nissan, but that is pure baloney. First, why would you fear “frivolous” lawsuits? If the lawsuits are frivolous, you will beat them and they will cost you almost nothing. What you are really afraid of are meritorious lawsuits, ones that will hold you accountable for the death and destruction your negligent design may cause.

Your request for a free pass around tort law is not new. It’s the same damn argument car manufacturers have always made when they want to put a new product on the market: “Lawsuits will prevent progress”. But all of history proves the contrary; vigorous tort law does not inhibit progress, but ensures progress in safety. The seatbelt, the air bag, crash resistance, anti-lock brakes – all of these were catapulted into existence by lawsuits.

What Nissan really wants is a get-out-of-jail free card to negligently design and manufacture dangerous vehicles so it can stuff its pockets with fat profits at the expense of Americans’ safety. Don’t give it to them! Good old fashion American tort law is the best engine ever designed for holding greedy corporations, such as Nissan, to the task of building safety into their products.

Bottom line: The only thing standing between the American people and unsafe SDC’s is tort law. So let’s not let the automobile lobby get their way on this one!

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 Auto Accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

nursing home woman.jpgI recently read an interesting online article entitled “Patient Harm: When An Attorney Won’t Take Your Case”. The article describes the sad truth that most legitimate medical malpractice victims will never find a lawyer to represent them because their injuries are too “insignificant” to be “litigation worthy”.

You see, medical malpractice cases are extremely expensive to bring because (1) the doctors and their insurance companies will generally fight you all the way to trial and won’t settle; (2) to prove your case, you need to hire at least one, and usually more, expensive expert physicians who will testify that the defendant doctor committed medical malpractice and who will describe the injuries he caused you.

Because medical malpractice cases are so expensive (the costs, not including attorney’s fees, are generally at least $50,000 and usually closer to $100,000), the amount of compensation a jury is likely to give you for the injury has to be worth at least $250,000 to make it worth the lawyer’s time, and worth the risk he is taking of going to trial and losing.

The article points out that the law here seems to discriminate against children, the poor and the elderly because often it is only a “bread winner” who can prove sufficient economic loss to make the case worthwhile. For example if a 40 year-old computer technician earning $100,000 per year is the victim of medical malpractice and he can’t work for the rest of his life, in lost earnings alone his case is worth a few million dollars. But the retired worker, or an unemployed one, or a child, often can’t prove any real damages for lost wages, so their malpractice case won’t be capable of bringing in a verdict big enough to entice a malpractice attorney to take on all that work and risk.

And that’s too bad, because for many of these patients or surviving family, a lawsuit is their only hope to recover what, for them, isn’t just “chump change”, but real money they need, and it is also the only means they have to learn the truth about what happened to them or their loved one.

The sad truth is that most malpractice victims seeking a medical malpractice lawyer can’t find one who will take their case. At Michaels & Smolak, we reject at least 90% of medical malpractice cases. And it’s not because we don’t want to help the victims, but because the damages suffered won’t pay for the lawsuit! If we took on every medical malpractice case that walked into our door we would be shutting that door within a year. Unfortunately, sometimes reality gets in the way of real justice.

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 Medical Malpractice & Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

Why is New Year’s Eve so damn dangerous? Drunk driving is, of course, the biggest killer tonight. But drunk walking is a close second. Did you know that more people die while walking down the street tonight than any other night of the year? The dangers of dunk driving and drunk walking are easy to avoid; just stay home and celebrate with friends and champagne, right?

Yes, but even if you stay home there is one New Year’s Eve danger you need to avoid tonight. Cork popping. No, not popcorn popping, cork popping. Champagne, a big New Year’s favorite, incorrectly popped, causes serious blinding injuries each year. The pressure in those bubbly bottles can reach 90 pounds per square inch – more than most car tires. The cork can travel at a bullet-like 50 miles per hour as it leaves the bottle, fast enough to rupture eyeballs, detach retinas and take out your eye, or the eye of a fellow reveler. Spending New Year’s Eve on an ophthalmologist’s surgery table is not a good way to bring in the New Year. And guess what — it happens every year. Just ask your local emergency room doc.

But thankfully there’s a surefire (no pun intended) way to slow down the cork’s pace — and thus make it a lot safer. Make sure your champagne bottles are well chilled. A warm bottle’s cork explodes much sooner and with greater force than a cold bottle’s. And here’s some other safety tips for uncorking the bubbly:

Don’t shake the bottle.

Place a towel over the entire top of the bottle and grasp the cork.

Keep the bottle at a 45-degree angle, away from your eyes and others’, while uncorking
Watch this video for a complete explanation of safe cork-popping:
 

 

Keep safe!

Mike Bersani
Email me at: bersani@michaels-smolak.com I’d love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com Central NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

131225_0000.jpgAs Syracuse Crunch fans all know by now, Michaels & Smolak, P.C., your Central New York Injury Law Firm, is honoring “Everyday Heroes” at all Syracuse Crunch home hockey games this winter. “Everyday Heroes” are local community volunteers who have given their time and talents to a local charitable organization. In front of the whole Crunch crowd, we regal them, and their family and friends, with free game tickets, food, drink, etc.

Let me introduce you to Michaels & Smolak’s latest “Everyday Hero”, eleven year-old Christopher Rawlins. Chris was born with Cerebral Palsy. He attends Reynolds Elementary School where he is an excellent student, plays the tuba and soccer, and participates in school plays. Chris has also participated in the Special Olympics and is a Jr Elk at the American Legion in Baldwinsville.

Nothing holds this kid back! He has a fantastic attitude, an infectious smile, and likes to keep friends and family entertained with knock-knock jokes. He is a huge Dallas Cowboys fan and can rattle off statistics on games and players.

As you can see, Chris has not let the hard knocks of life knock him down. But there’s more: He gives back! He regularly helps out at a local Music Fest to raise money for Cerebral Palsy and is an active member for other fund raisers as well. He approaches each new task with determination and pride in doing the best he can.

Congratulations to Chris for being an Everyday Hero, and to his family for helping him become the wonderful person he is. And thanks to Linda Wood for nominating him.

Come on, help us honor your Everyday Hero, right here, right now! It could be a friend, a relative, or just someone whose volunteer efforts you admire. Click here to nominate someone right now.

Keep safe!

Mike Bersani
Email me at: bersani@michaels-smolak.com I’d love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com Central NY Personal Injury Lawyers
Michaels & Smolak, P.C.
1-315-253-3293

money.jpg“How Much Is My Case Worth”?

I have heard this question thousands of times. And there is no easy answer. That’s because so many factors affect the “value” of a case. What do we mean by “value” anyway?

The settlement value of a case is based on a prediction of whether a jury will find you have a valid case, and if so, what the jury will award you for your injury. Since juries vary widely, and it is impossible to predict what any particular jury will do, we consider what an average jury would do.

Why are juries different? Because they are made up of people , and people are all different. The chemistry of the jury, with their individual biases, will impact the deliberation and thus the result. Also, juries in some geographical areas, such as New York City and Buffalo, are generally more generous with their verdicts than juries in rural areas. Thus, the venue of your case matters in determining “value”.

But not only do juries vary widely, so too do the facts of each case. Although I have been practicing law for decades, I have never had the “same case” twice. Each one is different. That’s because the factors discussed below, which affect value, are infinitely variable.

Here are the main variables:

(1) the “liability” component. How solid is our case for holding the defendant legally liable for your injuries? If the defendant is clearly liable, your case is worth more. The settlement value of your case goes up proportionally with the likelihood of a jury finding defendant liable.

(2) The “causation” component. Sometimes it might be very clear that the defendant was liable, and that you were injured, but not at all clear the two things are linked. We call that a problem with “causation”. We are legally required to prove the defendant’s negligence caused your injuries. This problem comes up a lot when the client has pre-existing injuries. For example, if you had pre-existing neck pain and are claiming that it got a lot worse after the accident, the defendant will often argue that none or very little of the injury was caused by the accident. If this argument appears strong, your case is worth less.

(3) The injury component.
The more significant your injury, the more horrible your suffering, the longer you have to endure it, the more it limits your activities, the more your case is worth. So, for example, the case of a 10-year old who lost a leg is worth more than the case of an 80-year old with the same injury because the 10-year old has about 70 years left to soldier on with that injury, while the 80-year old only has a few left. And the missing leg case is worth more than the missing finger case and both are worth more than the fractured-but-well-healed knee case.

Other factors also help us determine settlement “value”. For example, one thing we consider is how well you will present to a jury. Some folks come across as more attractive, more sympathetic, better at explaining without whining. Others are just not as likeable. Likewise, if the defendant is unlikeable, or what he did is likely to anger the jury, that increases the value of your case. Other factors include the economic damages (lost wages and medical bills) and the amount of available insurance.

Who decides whether to settle the case? You do! Our attorneys just tell you what they believe your chances of success are, and what we believe a fair settlement that reflects these chances is. The insurance company on their end does the same thing. Sometimes we agree with them, sometimes we don’t. The insurance company might present us with a settlement offer that we believe is unfair in that it is too low to accurately reflect what an average jury would give you. But ultimately you decide whether to take the offer or go to trial. And by the way, once an insurance company has offered you its top dollar, those are your only two choices: take the money or go to trial.

That being said, we often sue a case out when the insurance offer is too low (with your consent of course) and then during the course of litigation the offer goes up considerably. This is so because (1) the insurance carrier sees we “mean business” and (2) often the depositions and other evidence that come out during litigation sharpen the case and show the insurance company that it is risky to go to trial.

In my many years of talking with clients about the “value” of their case, I find that clients often think that some things matter, when in fact they don’t. The most common things that don’t matter, but that clients believe do matter, are:

(1) “I could have died in the accident”. This is generally not relevant. The fact is you did not die. “Could have” is generally irrelevant in determining value.

(2) “I got behind on my bills because of this”. This is generally not relevant. Yes, you have a right to recover your lost wages and your medical bills, but the law generally does not allow you to recover for the anxiety of getting behind on your bills or even for loss of your good credit rating.

(3) “My doctor says I could develop other medical problems because of this injury”. The fact that you “might” develop other conditions because of the accident does not generally increase value. On the other hand, if your doctor says it is “likely” you will develop those conditions, this will increase your settlement value.

Keep safe!

Mike Bersani
Email me at: bersani@michaels-smolak.com I’d love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com Central NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

ladder.jpgDo you think you might be a safer driver if your traffic convictions and accidents were posted on line and easily searchable so that all your neighbors and friends could look your record up?

If your answer to that question is “yes”, then you’ll like a new rule by the Safety and Health Administration (“OSHA”) which makes companies’ safety records easily available on a government website.

Why this new rule? The shame factor. OSHA’s thinking is that if companies with a bad safety record know their record will not remain hidden is some dusty notebook in a government basement, but rather see the light of day on the world-wide web, they might think twice about cutting safety corners. In addition, prospective employees will be able to compare, when deciding which job to accept, not only the wages of the employers but also their safety records. As a side benefit, personal injury lawyers like me can build negligence cases against repeat offenders with greater ease.

This new online posting rule is really no different from what health departments already do when they inspect a restaurant. If they find a dirty stove, or a dead rat, or cockroaches, they post a failing grade on the offending restaurant’s window. The fear of this bad publicity makes restaurants stay clean. If the report were hidden, it wouldn’t have the same effect.

Despite the obvious public benefit of the “open sunshine” rule, manufacturers and businesses are balking. They claim the safety data could be “misinterpreted” by the general public. But what they are really afraid of is a shameful truth. The truth is that three to five million workers are injured on the job in the U.S. each year, and most of those injuries are totally preventable. All companies have to do to prevent most injuries is follow existing safety rules. But they don’t because it is cheaper not to. The online “wall of shame” will make it more expensive because the bad publicity might hurt their pocketbooks more than paying to keep things safe.

And that’s a good thing. Hats off to OSHA.

Keep safe!

Mike Bersani
Email me at: bersani@michaels-smolak.com I’d love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com Central NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

stupid lawyer.jpgBeing stupid and dishonest at the same time is a toxic mix. The math goes like this: stupid + dishonest = disaster. And here’s an example:

An Iowa lawyer was stupid enough to fall for one of those obvious email scams cooked up by some Nigerian shysters. You know, one of those emails that starts out with “Dear Attorney: We have urgent need to hire your firm for important matter involving large estate . . ..”

The Nigerian email schemers had a U.S.-based confederate, an existing client of the lawyer, help them convince the lawyer that the client was about to inherit $18.8 million from a long-lost Nigerian cousin. They then convinced the lawyer to represent the client to procure the inheritance in exchange for a 10% fee, which would amount to about $1.8 million.

The only problem was that someone was going to have to come up with $180,000 in Nigerian inheritance taxes, which had to be paid before the inheritance could be released. Guess who had to come up with that? You get the picture . . .

During the course of the scam, the lawyer talked by phone to people who represented themselves as lawyers, bankers and even the president of Nigeria. You have to admire the acting talent of these shysters — they totally convinced this lawyer that they were who they said they were.

The lawyer, who did not have the $180,000 to pay the “inheritance tax”, convinced several clients to loan the would-be heir the money, promising them huge returns on their investment.

Even though the lawyer was stupid, he was certainly smart enough to know that involving existing clients in a money investment where he was going to receive a contingency fee violated the code of ethics for lawyers. Thus, he was not only stupid, but dishonest.

But surprise, surprise — the $1.8 million never showed up and the heir to the fortune disappeared, and emails stopped coming.

So the dumb/dishonest lawyer’s clients are out of pocket $180,000, and he is in big-time trouble with the lawyer ethics cops. In fact, his law license has been suspended for a year.

Hey, maybe he could use that year to try to locate the inheritance money: He says he still believes its real and that the money will show up! A trip to Nigeria should do the trick . . .

Moral of the story: Don’t be stupid. And don’t be dishonest. But above all don’t be stupid and dishonest.

Keep safe!

Mike Bersani
Email me at: bersani@michaels-smolak.com I’d love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com Central NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

hangover.jpgIf you are like me, you might end up downing a few more drinks than usual during the Holiday Season, especially at the dreaded “office party”! And I am sure I don’t have to tell you that it is illegal, dangerous, and plain wrong to drink and drive — your judgment, coordination, and reflexes are all impaired.

But did you know it may not not be safe to drive the next day, either? According to two recent studies, being hungover, even with zero alcohol content in your blood, impairs your driving performance almost as much as being drunk.

Participants in the experiments went out drinking on the designated night (I am sure they found plenty of “volunteers” for this experiment), had about 10 drinks each (yowzer!), and the next morning took a 20-minute simulated drive through urban and rural settings.

The result? Excessive speed, slower reaction times, lapses in attention, and more driving errors generally. In fact, the hungover participants did just as badly as intoxicated drivers. Yet all the driving tests were performed after the participants’ blood alcohol concentration had returned to zero!

Moral of the story? If you are going to drink a lot, get a designated driver — for the next morning!

Keep safe!

Mike Bersani
Email me at: bersani@michaels-smolak.com I’d love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com Central NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293