Central New York Injury Lawyer Blog

1236746_10201899072505171_1829587463_n.jpgI’m posting this blog from my hotel here in Guatemala City where I am hanging out with my two clients, Hugo and Lucio, shown in the photo with me. You guessed it, I’m the tall one.

I already blogged about why this Central NY injury lawyer had to come all the way to Guatemala to take their testimony. Today’s blog is about how much I admire these guys. Why? They are outstanding fathers.

Several years ago they realized the three dollars a day they were earning working the corn fields in their pueblo wasn’t ever going to fill the hungry little mouths at home. So they did something about it. They “went north”, as they call the trek to the United States around here.

Yes, they broke a few immigration rules along the way. I am not going to tell you that was “right”. But letting your little ones go hungry ain’t right either. What would you have done in that situation? You’ll never know, will you?

So yes, they “went north”. “Up north” they worked their asses off for five years or so, sending almost every sweat-soaked peso back home to those hungry little mouths. Meanwhile, they didn’t see their wives or kids for all those years.

Then they got blown up in a propane gas explosion. Now they are having trouble feeding those little mouths again. You can’t see it in the photo, but they have burn scars all over their bodies.

I won’t go into who is to blame for that explosion. A jury will hear the full story one day. I hope the lawsuit I filed on their behalf will one day help them feed those mouths again.

I like to think of myself as a good dad. Heck, I take my kids to Disney World and save up for college, don’t I? But that seems to pale in comparison to what these guys have done for their kids: moving to a country where they don’t understand the language or culture, working their asses off in a brutal job under a hot sun for 12 hours a day, sometimes 7 days a week, missing seeing their kids grow up, all so they could give their kids a decent meal every day.

Let’s face it; as a dad, I’m a slacker compared to these guys.

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

Seal_of_New_York.svg.pngThis Auburn New York personal injury lawyer has a new feather in his cap. I have been invited to speak at a state-wide meeting of New York Court of Claims judges in Cooperstown, NY on September 26. It appears that several judges read my recent article, which recently appeared in the New York Bar Law Journal, on the topic of “governmental immunity”, and want to hear me talk on the subject.

Governmental immunity is hot button topic for New York personal injury lawyers and judges. The “governmental immunity defense” can be raised by any governmental agency that is sued for personal injuries, including the State.

The Court of Appeals (New York’s highest Court) has recently come down with a series of rulings that tilts the playing field of this defense in favor of the government at the expense of victims of the government’s negligence. (That’s what I wrote about). Since Court of Claims judges preside over all personal injury claims brought against the State of New York, it is easy to see why the judges want to hear from me.

There are three adjectives that describe New York’s governmental immunity law: convoluted, byzantine and labyrinthine (I couldn’t decide which one of those adjectives to use so I used them all!). In my article, I try to simplify and clarify the law while explaining the new Court of Appeals rulings.

So how will I feel telling a room full of New York judges (some of whom I will be appearing before on my personal injury cases) what the law is and how to apply it in their Court rulings? This time I have only one adjective:

SCARED!!!

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

beam me up.jpgNext Tuesday I’ll be jumping on a plane to Central America. But I won’t be on vacation. I’ll be representing my Guatemalan clients as they get deposed, remotely, by video, from Syracuse, NY. There’ll be an interpreter with us.

How did I end up in Guatemala on a case? That story made the front page of the New York Law Journal and the Syracuse Post Standard. I blogged about that here.

Technology has changed every aspect of law practice. A few decades ago, what is about to transpire would have been impossible. Your Central NY injury lawyer will be sitting next to his clients in Guatemala City while insurance defense lawyers in Syracuse New York ask them questions by video. We will see those lawyers on the screen, and they will see my clients. They will be face to face. It’s kind of like Star Trek. “Beam me up, Scotty”! The video of my clients will later be presented to the jury.

I wonder if the “courthouse of the future” will be completely digital and remote. A “virtual” courthouse. Instead of appearing physically in the Courtroom, witnesses will pop up on a large courtroom screen from whatever city or town they reside in. Lawyers, too. Perhaps brick-and-mortar “courthouses” will be totally replaced by virtual ones.

The sticking point for us lawyers is that we believe, perhaps incorrectly, that a witness’ credibility is easier to judge live. Live testimony allows for better viewing of moist foreheads, blinks, twitches, stray glances, and body shifting. Those witnesses could be just nervous, or lying.

But with the pace of technological advances, who can doubt that, within the next 100 years, we will be able to project a 3D-high-definition image of a witness that almost exactly duplicates the live person? Then what? Will I be able to try my personal injury lawsuits from my living room? How about from a vacation home in Fort Lauderdale?

Sound incredible? Too sci-fi for you? Well what do you think attorney Abraham Lincoln would have said if someone had told him that lawyers in the future would be taking live depositions from 1,000 miles away (Syracuse to Guatemala) through something called a “screen” . . . ??!!

Keep safe!

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

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

1-315-253-3293

Mary.JPGI recently blogged about our paralegal Ellen Williams’ retirement after twenty eight years of outstanding service. Although Ellen is, in our view, irreplaceable, we nevertheless did our best in trying to replace her.

We believe we hit the mark with Mary Jones. In the photograph above she is at the Zonta Club of Auburn Women’s Golf Tournament (which this law firm sponsored).

Mary comes to us with a long history in the “justice business”. She was a paralegal in real estate law for seven years, in bankruptcy law for 5 years, and at the Cayuga County District Attorney’s Office for twelve years. She was also clerk for the Cayuga County Legislature for five years.

We didn’t just plop Mary down in Ellen’s still-warm chair. Mary “shadowed” Ellen for a few months before Ellen retired. Yes, she is still “learning the ropes”, but she’s a fast learner, a self-starter, and we expect her to be fully operational in no time at all.

She’s ahead of the learning curve so far. For example, she worked tirelessly and with great skill to help get me ready for a recent personal injury jury trial I had in Onondaga County.

So, dear clients, you will be hearing from Mary instead of from Ellen from now on. Please welcome her to our team – and to your case. If you have any questions about your case, you can email her at mary@michaels-smolak.com, or call her at the number below.

Keep safe!

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

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

1-315-253-3293

Thumbnail image for Thumbnail image for united way.jpgThumbnail image for Thumbnail image for doubledays.jpgGiving back to those who make Cayuga County strong is a priority for the Auburn New York personal injury lawyers at Michaels & Smolak. That’s why Michaels & Smolak is honoring United Way of Cayuga County volunteers as “hometown heroes” at all Auburn Doubledays home games this summer.

How does this Michaels & Smolak charitable program work? We asked the United Way of Cayuga County to nominate volunteer “heroes”. They chose dozens of volunteers who work with their 23 partner agencies and 41 programs throughout Cayuga County. At each home game, one United Way volunteer is publicly recognized and honored as a “hometown hero” and receives six game tickets and food vouchers for his or her family and friends. A different volunteer is honored at each home game, with a total of 38 volunteers honored. Michaels & Smolak funds the program, including the free tickets and food for the “hometown heroes”.

What’s really cool about this program is how it recognizes that volunteering is not just an individual effort, but a family, community one. If family and friends aren’t right next to the volunteers while they are giving of their time and talents, then they are often helping them balance things at home and work so that they can volunteer. That’s why we at Michaels & Smolak are treating not only the volunteers, but their family and friends as well. We are proud to “take them out to the ballgame”!

We hope being publicly honored and treated will be an exciting reward for United Way’s hard-working volunteers, and will inspire others in the audience to “step up to the plate” as volunteers as well.

The United Way of Cayuga County is committed to improving lives in our community by advancing the common good. It focuses on creating long-lasting changes that will better our community today, tomorrow and in generations to come. Donations to the United Way help fund 41 programs that assist thousands of people throughout Cayuga County. To learn more about the United Way, or to make a donation go to www.unitedwayofcayugacounty.org or call 315-253-9741.

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

1-315-253-3293

fear.jpgSome things we think we know, even things we feel certain are true, turn out not to be, on closer examination, false. I have come across a recent example of this. I do not believe I have been alone in having assumed, all my life, that it is safer to live in the country than in a big city. Haven’t you, too, always assumed life up here in peaceful Central New York is safer than in those dangerous big cities like New York?

Well, your assumption (and mine) was wrong! A recent study shows that cities are in fact safer than the country. If you think about it, I’ll bet you can guess why. Here’s a hint: It has to do mostly with cars and guns.

Give up?

Ok, I’ll tell you. First, you have to understand that the most common causes of death-by-injury are car crashes and gun accidents. And guess where there are more guns? Yup, in rural areas like upstate New York. Sure, you hear about the gun violence in the big cities. But gun accidents are much more prevalent, per capita, in the country because guns are just so much more numerous there.

And death by car accidents is three times more frequent in rural areas than in cities. That’s because city folks mostly get around by subway or bus and, even if they use cars or taxis, speed limits are a lot lower in the city, so accidents are less deadly than on our country roads.

True, the risk of death by homicide is higher in cities, but not enough to make up for all those car and gun-accident deaths in the country.

Add all this to the fact that, if you are injured, you can get to a good hospital faster in the city than out the country, and you can see why it makes sense that life in big cities is in fact safer than in rural places.

So am I packing up my suitcase and moving to the City where I’ll be safer? No way! I’ll take my chances up here in this dangerous Central New York rural area, where I’ll continue to represent victims of our dangerous way of life, especially car accident victims.

Keep safe!

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

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

1-315-253-3293

images.jpgThe jury probably did the right thing in the George Zimmerman case. Given the absence of good evidence about what happened between him and Travon Martin during those last five minutes, the defense established reasonable doubt about whether a crime, under Florida law, had been committed.

That doesn’t mean Mr. Zimmerman is innocent (just not guilty “beyond a reasonable doubt”) and it doesn’t mean he was right for tailing a young man simply because he was black.

But what does this have to do with my Central New York personal injury cases? A lot, actually. Every time we represent an African American in a Central New York courtroom, we have to wonder — will the jury treat him or her fairly? Will the jury harbor prejudices?

There is no question that a jury emphasizes more with victims who look, act and talk like they do. This is human nature. The more “different” someone is from you, the easier it is to distance yourself from their situation, from their suffering. And when that victim is black, the problem is magnified.

Example: I represent a young black man who was stabbed and sliced up in a Syracuse night club. We allege the night club was negligent in allowing the violent felon who assaulted him to circumvent the metal detector and security check and enter with a sharp metal instrument. Will the jury (which is predominantly white in all Central New York courtrooms) prejudge our client based on his race? Will they assume that since he is black he himself must be violent (he is not!), that he somehow provoked the attack (he did not!) or willingly participated in it (not!)? Would the jury harbor the same suspicions if our client looked like their (white) son or brother?

These are all questions we personal injury lawyers must address in “jury selection”, the first part of the trial where lawyers get a chance to talk to prospective jury members about their possible prejudices. But the real problem is not the prejudices the jury will admit to – those we can deal with by removing jurors who admit they can’t overcome their biases. The real problem is the prejudices that the jurors either won’t admit to or don’t even recognize in themselves. Those jurors will probably remain in the jury box – and their hidden prejudices may percolate into their decision making.

Be honest. You’ve got prejudices. If you are a fair-minded person, you do your best to overcome them, to judge people, in the words of Martin Luther King, by the “content of their character and not by the color of their skin”. But that doesn’t mean those prejudices aren’t there, where they’ve remained imbedded deep in your subconscious since early childhood. Can you overcome them in the jury deliberation room? If you happen to be in my jury pool on this case, that’s what I’ll be trying to figure out . . ..

Keep safe!

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

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

1-315-253-3293

20130529_145511.jpg20130529_145427.jpgTwenty eight years ago a smart, hard-working mother-of-two from Elbridge, NY — Ellen Williams — sent a resume and cover letter into the law offices of Lee S. and George M. Michaels (our predecessor firm) . Her two daughters were now old enough so she felt she could go back to work. She had just graduated with an associate’s degree in paralegal studies from Cayuga Community College in Auburn, NY. Now she wanted to realize her career goal – a job as a paralegal at a local law firm.

Meanwhile, Lee S. Michaels (our senior partner) was on the hunt for a smart, ambitious paralegal. His personal injury practice was growing by leaps and bounds. He wasn’t finding the time to draft all his own pleadings, review and summarize the hundreds of pages of medical records that landed on his desk every month, set up and calendar his depositions, and reach out to his clients for additional information he might need.

Lee received Ellen’s application, met her, and hired her on the spot.

Twenty eight years later this past May, Ellen drafted her last pleading, fielded her last phone call, and summarized her last medical record. By that time, she was paralegal to four busy lawyers. Yes, she left us – for retirement – and headed off on a whirlwind tour of the USA with her husband of almost four decades – Tom.

One of the amazing things about Ellen was her steel-trap mind. You could buzz her at any time and ask her, “Ellen, what’s going on with the Jones case”, and she would be able to tell you, without referring to our computer database, exactly what was going on, what we were waiting to receive, what needed to be done, and, to boot, what she thought of the case.

More amazing still, you could buzz her and say, “Ellen, remember that case about 12 years ago where I briefed that legal issue of strict liability for scaffold accidents — I could really use that brief” – and she would tell me the case — usually without pause.

She had an uncanny ability to read a file, meet a client, and know exactly what the issues were going to be.

We aren’t the only ones who miss Ellen. Clients loved her, too.

To celebrate her many years of outstanding service, we regaled Ellen — and all our staff – with a meal at a fine Finger Lakes eating establishment – The Elderberry Pond — overlooking the orchards and vineyards that make our little corner of the world so special. We also tucked a gift away in her travel suitcase!

In the first photo above, Ellen is sandwiched by me (on left) and partner Jan Smolak on right. The next photo shows Ellen’s husband — Tom — and our whole staff. Partners Lee Michaels and Dave Kalabanka partook in the festivities, too, but somehow escaped the camera’s lens.

Ellen is still “on the road” with Tom, so she probably won’t be reading my blog posts for a while. Ellen, wherever you are, bon voyage, and by the way, could you tell me the name of that case about 7 years ago where I briefed the issue of liability for rear-end collisions?. . . I could really use that brief!

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

Picture of Michael Bersani .jpgFolks, it’s been a while since I have had the time to blog — been in trial! But now that I am out of trial – and have some breathing space – I wanted to post an article of mine that was recently published in the New York State Bar Association Journal. It’s titled The Government Function Immunity Defense in Personal Injury Cases in the Post-McLean World”.

This article is for my fellow-lawyer readers. It walks you through the most recent legal requirements for getting past the “governmental immunity defense”, which is often raised when you sue governmental entities such as the State, counties, cities, towns, villages, school districts, etc. I hope this article helps my fellow lawyers navigate the rough seas of municipal liability.

And I will be traveling throughout the State, once again this fall, to present to my fellow lawyers my municipal liability update —- a compendium of new case law on the subject. It will be great to see old friends from all around the State. Hope to see you then!

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

Thumbnail image for Thumbnail image for texting and driving.jpegGov. Cuomo justified the new law (not that he needed to) by stating the obvious: Texting while driving is a growing problem, especially among young drivers.

How do we know? The number of texting-while-driving tickets issued has soared, from about 3,500 in 2011 to 30,000 in 2012. And those are just the ones who got caught! The average age of the drivers caught is only 26.

How else do we know? Just ask me. Among my New York personal injury case load, texting-while-driving cases are growing. Rear-enders are prominent. Most offenders are young. The texting offender never suspects the guy he is following is going to stop in the middle of the road to turn into a driveway.

Cuomo has also proposed a law suspending new drivers’ licenses for 60 days if they are convicted only once of texting while driving.

We at Michaels & Smolak applaud governor Cuomo for ratcheting up the penalties for texting while driving. Texters — kill your habit because your habit kills.

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 Car Accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293