Central New York Injury Lawyer Blog

A client of mine is having a very merry Christmas indeed. I already blogged about his Waterloo, New York car accident case. Guy was passenger in his buddy's car, who was stopped and waiting for traffic to clear so he could turn left into a driveway. Driver from behind, lost, looking at a map while driving, rear-ends them at full speed, causing them to flip over. Our guy ends up with a herniated cervical disc that takes him out of his welding job, for good, and requires surgery. The surgery helps, but does not rid him of the pain.

At first, there appeared to be no more than $100,000 in insurance, the policy limit of the driver/owner of the at-fault vehicle. There was no indication in the police report, or anywhere, that the negligent driver was doing anything but his own business when he rear-ended our guy. But an off-the-cuff remark by him at the scene -- about some "bovine sperm bottles" he had in his pickup truck -- tipped us off that perhaps he was working for some company that dealt in such products, even though he owned the vehicle and there was no company emblem or signage on it.

After some investigating, we turned up a California employer. The insurance carrier for the employer discloses a $1,000,000 insurance policy. Now we're talking! But still, we felt our client's case was worth more - what with all his pain and suffering, his completely altered life style, and the loss of his job.

We sued the employer and the driver. We got the judge to rule, without a jury trial, on "motion papers", that the defendants were liable and that our client had a "serious injury". Now all we would have to do was have a jury decide how much our client deserved. But just as we were getting ready for trial, and just after we made a full insurance policy limit demand of $1 million, the insurance carrier finally disclosed there was more --- another $10,000,000 excess policy!

The final result --- a $1.4 million settlement --- was obtained just the other day after a day-long mediation.

Our client is now having the merriest Christmas he has had in several years. And he is smart. He is making sure future Christmases will not leave him out in the cold. He is structuring his settlement into monthly payments that will take care of him for the rest of his life. The total amount of payments he will receive far exceed the cash value of his settlement.

So, yes, Virginia, there is a Santa Clause . . .

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

You should never settle a New York personal injury case until you have let enough time go by so that you are fully aware of all your injuries, and the full extent of them. It is not uncommon for New York personal injury lawyers to wait a year or more before even making a settlement demand; they want to see where the injury "ends up" before they settle. That's because once you settle you generally can't go back for more money, so you have to be absolutely sure you know the full extent of your injuries before settling.

But let's say you were not so prudent. Let's say you got into a car accident and suffered a neck injury. Instead of hiring a lawyer, you settled your case on your own with the insurance adjuster for a small amount of money. As part of the settlement, you signed a "release" that said you were releasing the at-fault driver, and his insurance carrier, from any and all liability for all injuries "known and unknown" that were caused by the car accident.

After you sign, and after you get the settlement money, you start noticing pain in your lower back. The back pain gets worse and worse, and your doctor tells you it was probably caused by the car accident. The doctor is recommending surgery on your back.

You want to undo the settlement, because now you feel the small amount of settlement money is not nearly enough to compensate you for a severely injured back.

Can you undo the release ("rescind" it in legal terminology)?

The answer is a resounding . . . . maybe. The legal grounds for undoing it is called "mutual mistake". To undo the agreement, you will need to prove that both you and the insurance adjuster assumed the neck was all that was injured, and that you both meant to strike a deal only regarding that injury, no matter that the release speaks of both "known and unknown" injuries.

In deciding whether the release was intended to cover only the known injury, that is, the neck injury, and not unknown injuries, like your back, a jury will be allowed to consider all of the facts and circumstances of the settlement, including the amount, the relationship of that amount to the your injuries, the language of the release, how long after the incident the release was signed, whether you were examined by your own doctor before you signed, whether you had been examined by a doctor on behalf of the insurance company, what the insurance adjuster said to you about your injuries and about the release, and several other factors, which are all set forth in New York Pattern Jury Instruction 4:11.

Undoing a release is hard. It is far from a sure bet. But it may be worth a try.

Think about this, though: You would never have gotten yourself into this mess if you had just hired me before you settled. Don't make the same mistake twice. Get a good lawyer to help you undo the settlement.

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

This is the fifth and final part of the 5-part blog series about the pitfalls of trying to settle your own New York personal injury claim without a lawyer. Here's pitfall number 5:

5. WATCH OUT FOR VULTURES. In some cases, you can't take the settlement money without others, officially called "lien holders", but whom I call "vultures", holding out their hand for a piece of the pie. I call the lien holders "vultures" because they don't participate in the "hunt", i.e., the hard work of getting the settlement, but sit around and wait for you to make the kill, and then swoop in for a piece of the meat.

Unfortunately, this is their legal right. In a New York personal injury case, this is true especially if Medicare or Medicaid or ERISA-qualified health insurance policy paid for some or all of your treatment. Also, workers' compensation will have a lien to recover any medical treatment or wage loss payments. If you take the settlement money, and then spend it, without first paying off the vultures, bad things will happen! They will come after you for reimbursement, and in the case of workers' compensation, they might cut you off completely from any further comp benefits. And if you did not calculate these liens into your settlement demand, well, you'll have to sit back and watch them eat the whole carcass of your settlement, leaving you nothing but scraps, or nothing at all.

By the way, if you hired a New York personal injury lawyer, he or she would know how to negotiate these liens downward. But if you have elected to go it alone, you can just about forget about that --- it is too complicated. That's another reason why you should have hired --- and maybe still should hire --- a lawyer!

So remember, DON'T FORGET TO INVESTIGATE LIENS AGAINST YOUR SETTLEMENT.

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

This is the fourth part of the 5-part blog series about the pitfalls of trying to settle your own New York personal injury claim without a lawyer. Here's pitfall number 4

4. DON'T ASK FOR TOO MUCH, OR TOO LITTLE, TO SETTLE YOUR CASE. Let's face it; you have no idea how much your case is worth. Even an experienced New York personal injury lawyer has a hard time putting a number on some injury cases. So many factors come into play: your age, how strong your "liability" looks, how bad the injury is, and how long it will last, your state of health and whether you have "pre-existing injuries", what county the case must be tried in, and a few dozen other factors.

You might think you know how much your case is worth because a friend of a friend had the same or a similar injury, and his lawyer got him x amount. But that friend of a friend might have had a stronger or weaker liability case than you, and he might be older or younger, and he might have had, or not, pre-existing injuries to the same body part. All these things will make your case different from his, so it is a mistake to think your case is worth what he got.

No matter what you ask for, it is probably going to be a mistake. If you ask for too little, the adjuster will convince you it is too much, and low-ball you to hell. And if you ask for too much, and stick to it, the adjuster will not settle at all. Then you will have to go to trial --- and if you do that without a lawyer, well, in law school they used to say, "anyone who represents himself has a fool for a lawyer" . . .

But anyway, remember, DON'T ASK FOR TOO MUCH, OR TOO LITTLE. Ask for a little more than what's fair (enough to give you some bargaining room).

Stay tuned for Party V.

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

This is the third part of the 5-part blog series about the pitfalls of trying to settle your own New York personal injury claim without a lawyer. Here's pitfall number 3:

3. DON'T BELIEVE THE INSURANCE ADJUSTER WANTS TO HELP YOU. She (or he) doesn't. She wants to get you to settle for as little as possible, fairness be damned. Her job, especially if she knows you have no lawyer, is to try to get you to sign something called a "release", which puts the nails in the coffin of your case, for peanuts. The adjuster might seem nice, friendly, kind. And maybe she is, in real life. But this is not real life. This is business. And her business, sorry to be so blunt, is to screw you.

Don't befriend her. Figure out what your claim is worth and convince her to pay you that amount, and if she won't, tell her you will hire an experienced New York personal injury lawyer to get it in court (problem: She probably won't believe you, though, since you have managed to avoid hiring a lawyer up to this point).

So remember, THE INSURANCE ADJUSTER IS NOT YOUR FRIEND.

Stay tuned for Part IV.

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

This is the second part of the 5-part blog series about the pitfalls of trying to settle your own New York personal injury claim without a lawyer. Here's pitfall number 2:

2. DON'T SETTLE TOO SOON. Would you buy a house without carefully examining every room? Of course not. So why would you settle a case without having walked through every "room" of your injury? If you are still having problems, still hurting, still getting medical treatment, then you still have not visited the "rooms" of your injury that await you in the future. What will your body feel like in a year? Will you have a permanent limitation? Will you need surgery? You haven't visited those "rooms" yet. You can't visit those "rooms" until you let your injury "play itself out", and this may take longer than a year, especially if you are seriously injured. In most cases the New York personal injury statute of limitations is 3 years (but this can vary, which is another reason why you need a New York personal injury lawyer!).

So remember, WAIT TILL YOU ARE DONE TREATING BEFORE YOU EVEN CONSIDER SETTLING.

Stay tuned for Part III.

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

This is the first o a five-part blog series about the pitfalls of trying to settle your own New York personal injury claim without a lawyer. I don't recommend that anyone actually do this, without at least first consulting with a New York personal injury lawyer. In rare cases, I have recommended to accident victims that they settle their claim on their own so as to avoid paying me a 1/3 contingency fee. But that's only when the injury is minor, has totally healed, and there are no complications such as "liens". Otherwise, having a New York personal injury lawyer represent you will almost always "pay off" because the settlement will be enhanced by far more than the 1/3 fee.

But if you want to throw all caution to the wind and settle your own claim without even consulting with a personal injury lawyer, at least try to avoid making these common do-it-your-selfer mistakes:

1. DON'T GIVE A RECORDED STATEMENT. The insurance adjuster will seem friendly, compassionate. He or she will say, "we just want to know what happened so we can pay your claim. Can we record a statement from you"? If you say "yes", you just fell into a trap. That recorded statement, which you believe represents the total "truth" about what happened, is likely to boomerang back and hit you in the back of the head. The insurance adjuster will rely on portions of your recorded statement, which she will call "admissions", to low ball your settlement offer, or worse yet, the insurance company lawyer will use your "admissions" to cross-examine you at trial. You, of course, won't know what hit you because you believe there was nothing "wrong" with what you said. But there almost certainly will be. The insurance adjuster is very good at getting you to say the wrong thing.

Remember, just say "no" to recorded statements!

Stay tuned for Part II in the series . . .

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 just read about the Federal Appellate Court Decision deciding that the Winklevoss twins, who famously sued Facebook founder Mark Zuckerberg claiming he had "stolen" their idea for Facebook, could not undo their settlement with Zuckerberg and go after him for more money (they settled for only $64 million). The twins alleged in the suit that Zuckerberg defrauded them in the settlement by not disclosing the true value of Facebook. The Appellate Court was having none of it. The Court pointed out that the twins were represented by a lawyer, and they signed a release releasing Zuckerberg forever from any liability to them.

I know what you're thinking --- what does this have to do with New York personal injury law? After all, isn't that what this blog is about? How the heck is Bersani going to tie the Facebook decision into his Central New York personal injury lawyer blog?

Glad you asked. There's a lesson in this case for all New York personal injury lawyers, but especially their clients: Very, very carefully consider a settlement before you sign a release. If your signature is on it, it is going to be extremely difficult, if not impossible, to undo it. You can scream all day that you didn't read it, you didn't understand it, your lawyer tricked you into signing it, your lawyer gave you bad advice, the other side did not tell you all the facts, etc. But in all but the rarest of instances, you will be stuck with it.

Why such a harsh rule? Simple: courts love finality. As the Court said in the Winklevoss v Zuckerberg case: "At some point, litigation must come to an end. That point has now been reached." Lawyers and judges revere a release almost like a holy document. It's like the "bible" of the case. And it is not Genesis, but Revelations!

Before you sign a release in your New York personal injury or medical malpractice case, read it carefully, and discuss it thoroughly with your lawyer.

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

What do health care insurance policies, such as Excellus Blue Cross Blue Shield, and others, have to do with New York personal injury settlements? Maybe nothing. Maybe. Let me explain.

If you are an insomniac in need of sleep, you might decide to pull out your health care insurance policy and read it. I guaranty that it will put you to sleep, and probably even before you get to the part, buried deep within it, that says the insured (that's you) agrees that should you get injured through the fault of someone else, and get a settlement or a judgment against that other person, you will have to reimburse the insurer (that's them) for all the medical costs they paid for treatment of your injury.

In other words, say a dog bites you, you sue the owner, and then settle with the dog owner's homeowner's insurance for $100,000. But Blue Cross Blue Shield has paid $10,000 in medical bills related to the dog bit. BCBS will claim a "lien" or a "right of subrogation" against the settlement to the tune of its $10,000.

We New York personal injury lawyers for years fought the health care insurance lien. It did not seem fair to us that our clients, who had paid heavy premiums for their health care insurance, should have to hand over some of their settlement to them. It seemed the health insurer was double-dipping. It seemed like a hold up. New York case law, however, generally upheld the liens.

Then, last year, advocates of the injured won a big legislative victory in Albany. New York General Obligations Law section 5-335 ("GOL 5-335") abolished health insurance liens against personal injury settlements, with some exceptions. Here are the main exceptions: It did not abolish liens asserted by Medicaid, Medicare and ERISA (Employee Retirement Income Security Act) policies. Those are governed by Federal law, so New York's legislature had no power to upset those apple carts.

But nothing is simple. In the wake of GOL 5-335, several health care insurers now claim to be bonafide "ERISA"-protected policies when in fact they are not. They will try to assert a lien against your settlement even though they are not entitled to one.

Before you settle your case, your New York personal injury attorney is duty-bound to investigate whether a claimed "ERISA" health care lien is in fact valid. Experienced New York personal injury attorneys have learned where to look, and how to investigate, the validity of claimed ERISA-protected liens. There are website listings that help, but often the attorney must ask the self-proclaimed "ERISA" insurer for its "Summary ERISA Plan Description", and other documentation, to see whether it is a valid ERISA plan exempt from New York's new anti-lien law (GOL 5-335). If there is any doubt whether a health insurance policy is part of a true ERISA plan, and thus can assert a lien, court intervention may be needed.

By the way, even if there is an ERISA lien, your attorney should be able to negotiate it down. Generally, at least one third should be deducted as the health care plan's fair share of attorneys' fees.

The complexity of these lien issues is just another reason you need a good, experienced New York personal injury lawyer.

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 just settled a Syracuse New York workplace injury case today for $1,000,000. It was a fair settlement. Because of some Labor Law violations, my client fell off a scaffold at a construction project in Syracuse. He landed on his feet, and his lower back suffered what is known in the medical community as a "spondylolysis" (a small fracture in the pars of the vertebrae) which later developed into a "spondylolystheisis" (the small fractures caused one of the discs to slide relative to the disc below, narrowing the spinal canal, and causing impingement).

Like I said, the settlement was fair. We used a mediator in Rochester. It took just about all day to hammer out the settlement. But in the end my clients were happy with it.

The case was scheduled for an Onondaga County personal injury jury trial in just a little over two weeks. For me that means that I was already prepared to try the case. I knew the case backward and forwards, and had my arguments all set to present to the jury.

When a case settles this close to trial, I always have mixed emotions. On the one hand, I am glad to have the case settled. On the other hand, I regret not being able to present the case to the jury.

Smart lawyers tell me that the best case is a settled case. It means there is no longer any risk of losing, or getting a bad result. Sure, there is always a chance you could have done better at trial. But trial is often a crap shoot.

Most of my clients don't like crap shoots. They like the sure thing. Most my clients prefer to settle. They want certainty. They are risk-adverse. And who can blame them? Usually they are already strapped for money because their injury has put at least a dent in their earning capacity. Once a decent amount of money is on the table, it is hard for them not to grab it and call it a day.

The pot of money my client got was not only adequate, it was fair. So today was a good day. I made my client happy. I got a fair result. Now on to the next case!

My last blog was about ADR (Alternative Dispute Resolution), such as mediation and arbitration, which is, to a certain extent, replacing jury trials as a way to resolve personal injury lawsuits in Syracuse, Central New York, and, in fact, just about everywhere else. Here's a recent example of how ADR works from my own case load.

I am scheduled to try a Syracuse fall-from-scaffold lawsuit in about 3 weeks. Meanwhile, the defendant's insurance carrier has invited me to try to settle the case through "mediation" first. After I explained how this works, my client agreed to it, and we will be at the mediation table in about a week. If we don't settle at the mediation, I will have only a few weeks to prepare my trial, which is not enough time. I really need 6 weeks! So I am already preparing my exhibits, my direct examinations, my cross-examinations, etc., in case I need to try this Syracuse construction accident lawsuit.

The case may or may not settle at mediation. Much of that depends on how reasonable the insurance carrier will be. If the case settles in mediation, I won't feel bad about having spent so much time preparing for trial. I always learn by preparing for trial. It makes me a better lawyer.

In preparing to try this case, I have become a kind of "expert" on lumbar (lower back) injuries, which is what my client suffered when he fell from a scaffold at work and landed on his feet. I have even ordered large "blowups" of my client's x-rays and MRI's so his doctors can vividly explain his injuries to the jury. I have also hired a medical illustrator to create illustrations of the surgery my client endured as a result of his accident.

Even if I don't try this case, the medical knowledge I gained in preparing for trial will help me in other cases, since lumbar spine injuries are very common injuries in falls from scaffolds cases, car accident cases, and other types of traumatic injury cases.

My father always said, "there is no such thing as useless knowledge". As usual, he was right.

Syracuse New York personal injury jury trials are fewer and farther between than only a decade ago. The same can be said for all Central New York personal injury jury trials. In fact, the same trend is being noted throughout the entire State, as well as the other 49 States. Read about it for yourself, but clicking here and here. All civil jury trials are down in numbers, everywhere.

Let's be clear; although the number of lawsuits filed has remained steady over the last decade, fewer and fewer of those lawsuits are going to trial. Here's a vivid demonstration of the trend: In 1962, more than 11 percent filed civil lawsuits in federal court went to trial. By last year, however, that percentage had dropped to 1.8.

If almost 98% of personal injury lawsuits are not going to trial, what is happening to them? Many of them are being resolved by "alternative dispute resolution", (known as "ADR"). In some areas, ADR has overtaken trials as the predominant way to resolve personal injury lawsuits as well as other types of civil disputes. ADR consists mainly of "mediation" and "arbitration". "Mediation" is a non-binding settlement procedure where a neutral "mediator", usually a lawyer or a retired judge, tries to bring the parties to a reasonable settlement that is acceptable to both sides. "Arbitration" is an informal hearing where a lawyer or retired judge hears the case, and decides it, but the formal rules of evidence, such as the bar against hearsay, don't usually apply.

What has changed since the 1960's? Why are cases being resolved by ADR rather than jury trial? Here's my take on it; juries were more plaintiff-friendly back in the 1960's. In the 1960's, many New York injury lawyers would rather take their chance at trial than settle out of Court. But with all the negative publicity personal injury lawyers and cases have gotten since then (the "MacDonald's case", etc.), the jury pool is now biased against personal injury victims and their lawyers. More and more Syracuse New York personal injury cases, as well as such cases everywhere else, are tossed out by cynical juries. This makes Central New York accident lawyers, and such lawyers across the nation, more willing to consider ADR.

Also, ADR was hardly even heard of back in the 60's. It really wasn't an option. Now it is a fast-growing method of resolving New York accident cases, as well as other civil cases, principally because, compared to trial by jury, both the costs and the risks are greatly diminished.

The costs are reduced because the parties usually don't have to pay experts to give testimony; their reports can be submitted informally. At trial, the formal rules of evidence would not allow for this. Experts are expensive. For example, I am trying a case next month where the medical doctors I am putting on the stand are charging me a total of about $4,000 each, and since I have 4 of them, that will cost us $16,000. Mediating or arbitrating the case would probably save me, and my client, that money.

The risks are diminished in ADR, at least in mediation, because the injury victim is almost sure to walk away with some money, whereas a jury trial is a roll of the dice; we could win big, we could get a goose egg verdict, or we could get anything in between.

Most of my clients would prefer to take a little less than they feel they are entitled to rather than risk getting a thumbs-down verdict by a jury of strangers who might not understand their case or injury. In the end, resolving a case by trial is a gamble - and an expensive one - that most clients would prefer to avoid.

A good New York trial lawyer has to be prepared to jury-try his cases. But if he is truly representing his clients' interest, he will be open to ADR and consult his client about this option as well.

Being a New York personal injury lawyer has its perks! A client took me out to dinner the other night. It was a fine meal at a great Geneva New York restaurant, Port's Café. The restaurant is only about a mile and a half from where my client's tragedy happened 3 summers ago --- his wife was hit and killed by a tractor trailer as she crossed routes 5 and 20 on foot, in a crosswalk, in the City of Geneva.

The dinner was a kind of celebration. We had settled his Geneva New York wrongful death case after almost three years of intense litigation, which included the filing of two lawsuits, and the taking of many depositions. And although no amount of money could ever replace the loving wife he lost, he had finally found peace. He felt that at least a measure of justice had been done. We had made them pay! To him, the money meant they had finally accepted responsibility for the accident after years of denial.

Because the wrongful death settlement was for a substantial sum of money, and my client does not need the money at this time (he has a good job and no children to support), I suggested he should consider a "structured settlement". A "structured settlement" is an insurance or financial agreement in which the plaintiff does not take the entire settlement from the insurance carrier in "a lump sum payment" right away, but instead forgoes immediate payment of at least some of the money, which he will receive later in "periodic payments" (usually monthly). A structured settlement is usually created through the purchase of an "annuity", which guaranties future periodic payments at a fixed amount over a fixed period of time, with interest added in so that you end up with more money.

Example: If you "structure" $500,000 to be paid out over a 10 year period, with monthly payments starting in the year 2020 and extending through 2030, you will end up getting paid far more than $500,000, because the money will have earned interest. You might end up with $800,000 or more, depending on the interest rate of the structure.

And you won't pay a dime of income tax on the money that is earned from the structure until you actual receive the payments. If the client took that same $500,000 as a lump sum, and invested it, he would in most cases have to pay income tax on the money earned from his investments as they are earned. Not so with structured settlements.

When we help a client find the right "structured settlement" for his or her financial needs, we always carefully research structures offered by various insurance carriers and financial institutions to get the client the very best return on his or her money, i.e., the best interest rate, with a secure triple "A" rated institution.

My client was very happy with how I handled his case, and his settlement. That's why he was taking me out to dinner. He even got a gift for my wife!

Yes -- being a New York personal injury and medical malpractice lawyer has its perks --- but the best perk of all is a happy client!