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The answer to the question posed in the title of this blog post is “yes”.  I will show you how this is true using a recent case I settled as an example.

My pedestrian-client was injured while j-walking across East Genesee Street in Auburn, right outside our main office. The pedestrian seemingly did everything wrong:  She chose to cross the street a hundred feet or so from an intersection equipped with a traffic light and crosswalk.  Further, she did so at night, dressed in dark clothing, so dark in fact that the witnesses who saw her lying on the pavement after the collision assumed she was a black trash bag that had blown into the road.  The only thing that “tipped off” the witnesses that the black bundle in the road was a person was a shock of blond hair.

Despite these seemingly “bad facts”, we got a substantial settlement for her. How?

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I have been representing personal injury victims for decades.  No two victims are alike.  They’re kind of like snowflakes: They are each unique.  This goes for how they deal with their injuries, too.  But generally you can think of how they handle their injuries as running along a spectrum, a continuum, which is the subject of my blog post today.

At one end of the spectrum is what I call the “tough guy”.  The use of the word “guy” here is deliberate, and not sexist.  This kind of personal injury victim is almost always a guy, not a woman, though I have seen exceptions to this rule.  The tough guy has to prove that he is too tough to let an injury bother him at all.  The extreme tough guy will not admit, even to his doctor, that he is in pain. He will refuse pain meds.  He will ask his doctor to send him back to work even when the doctor thinks this will be deleterious to the healing process.  The tough guy believes he is superman.

The problem with representing the tough guy is that when it comes time to settle his case, his medical records and his comportment have minimized the injury and so the case value is also minimized.  When he realizes that he has shot his case in the foot, the tough guy may finally admit to his lawyer, me, that he was in a lot of pain the whole while, and still is, but wanted to work and live through it without complaining.  He does not like to complain. But try explaining this to an insurance adjuster or a jury who is looking at reams of medical records wherein the victim had reported “no pain” or “minimal pain” or “nothing I can’t deal with”.  The tough guy is his own worst enemy in a personal injury case.  He sinks his own case with his bravado and chest pounding.

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I am arguing an appeal tomorrow.  I am writing this blog post during a “break” in my preparation.  Let me tell you about the appeal, and how I am preparing to argue it.

First, it’s a big case.  We have sued for more than $8,000,000.  Our client is a wealthy trust fund that lent $6,000,0000 to a power company.  The loan went sour when the power company went broke and was unable to repay the loan.  The lawyers representing our client for the loan transaction, whom we have sued, then had to file a foreclosure action to try to salvage whatever they could from the loan-gone-bad.

We allege that the lawyers committed malpractice in failing to conduct “due diligence” to ensure that the borrower would be solvent and able to repay the loan, and then continued to malpractice our client during the foreclosure proceedings, which cost our client another $2,000,000 or so in attempting futile efforts to stymie the losses.

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We get this question a lot.  When we get it early on – while the client is still treating for her injuries, the answer is, “we don’t know”.  It depends on how well and how quickly you heal”.   But once the client is done healing and we can see what her “permanent” prognosis is, including any permanent pain, limitations or scars, we can take a stab at it.

Take a stab at it?  Kind of a brutal metaphor for a personal injury case valuation.  How about this:  We can establish a “ballpark” estimate of what the case is likely worth.  There is no “exact” value number because determining the “value” of a case is an art, not a science.

Here’s how we do it:

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You are walking along the shoulder of a road with no sidewalk.  You are facing traffic, as you are supposed to.  To your right, walking with you, is your husband.  Suddenly the car heading towards you veers off the road and onto the shoulder.  You have time to jump to the left and escape injury.  Your husband, on the other hand, is hit and killed. You watch this happen, horrified.

Clearly your husband’s estate has a claim for “wrongful death” against the negligent driver of the car. As his widow, you are probably going to be the administrator of that estate, and will sue on behalf of the estate.  The estate will recover all the financial expenses stemming from the accident (medical and funeral expense) and will also recover for any pain and suffering he endured before death, and for any loss of financial support you and other family members will suffer.

But what about you.  Do you have a personal claim (not just on behalf of the estate) against the driver for the emotional harm you suffered from being right next to your husband, and watching, when he was hit and killed?  That image is going to haunt you for the rest of your life!

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Several years ago, Lee Michaels, our senior member, was asked and agreed to endow this significant scholarship and award at Syracuse University College of Law recognizing a second-year top trial or appellate advocacy student.  The primary goal in initiating this scholarship/award was to help a worthy student, but it was also aimed at attracting fresh applicants interested in advocacy to the law school. That secondary purpose seems to be working out: The law school has risen significantly in the national law school rankings, in two tabulations, ranking 10th and 11th in the USA.

This year we are pleased introduce to our readers the third, and the first female winner, of the Michaels Award and Scholarship:  Marina De Rosa.  Marina was born in New York,  and lived in Staten Island until her family made the decision to move to Florida. While she often traveled back and forth between the two states, she decided to go to college in Florida, attending Florida State University, one of SU’s regular rivals in the Atlantic Coast Conference. After four years, she graduated Magna Cum Laude with a Bachelor’s Degree in Criminology and Criminal Justice, a minor in Creative Writing, and a certificate in U.S. Intelligence Studies. Upon graduating from Florida State, she made the decision to go back to her first home, moving north once more to attend Syracuse University College of Law. The decision was an easy one, as the College of Law had the Institute for Security Policy and Law program, renowned faculty members, and a 24-hour library. These features of Syracuse’s program won Marina over.

​During her time at the College of Law, Marina pursued her passion for trial advocacy. As an “arguing” member of the intercollegiate trial team, she competed in two different trial competitions in the 2020-2021 academic year. During the fall semester, she had the pleasure of representing the College of Law at the “Tournament of Champions.” She was also a member of the “National Trial Competition” team in the Spring of 2021. During the National Trial Competition, her partner and she won first place in their Region and advanced to the National rounds. Additionally, she won Best Closing Argument in the Regional round. She  plans to continue competing on the trial team during the 2021-2022 school year, and hopes to achieve similar success.

Ok, the headline of this blog was over the top.  Just trying to grab your attention!  If you have read this far, it worked!

But we really are damn good at what we do.  I don’t usually blog about our firm (too modest!).  We like our results to speak for themselves.  (And do they ever:  Check them out here). If you look back at my past blog posts,  you will see they are about cases we have had or changes in personal injury law.  But today I am going to blog about us because I really do believe we hold a very special niche among personal injury law firms in the Syracuse and Central NY area, and perhaps in all upstate NY.

First, we have virtually NO TURNOVER.  The four lawyers on our team are the same four lawyers who were with us back in the year 2000.  We have no “associates” or junior lawyers.  All four of us are seasoned, trial-proven personal injury litigators.  The same goes for our staff.  Becky and Michel, our two legal assistants, have been with Michaels & Smolak longer than even two of our lawyers!  After more than 20 years experience, they are top in their field in preparing pleadings, reviewing and analyzing medical records, drafting letters, and just keeping on top of our files.

My law firm is one of the few – if not the only – law firm in the Syracuse area whose case load includes a significant amount of legal malpractice cases. Unlike some firms, we are not afraid to sue our colleagues when they “mess up”. Here I am going to talk about an important legal malpractice statute-of-limitations issue that we have been arguing.

Two times recently, in two different courts, our clients’ legal malpractice lawsuits were dismissed by a trial judge because they were sued after the three-year legal malpractice statute of limitations had run.  In both cases, we argued that a “toll” should be applied to extend the normal three-year statute of limitations based on a legal concept known as the “continuous representation doctrine”.

What’s the continuous representation doctrine?  Basically it says that the statute of limitations clock gets “tolled” – does not start to run – until the lawyer finishes representing the client on the same matter in which he malpracticed the client.  So, for example, if your lawyer forgets to enter critical evidence at your trial, the three-year clock won’t start to run – it will be tolled — until he has finished trying your case, making any post-trial motions, and taking any appeals.  This could be many years after the original mistake.  Whenever he is completely done representing you “in that same matter” that he malpracticed you, the  three-year statute of limitations for suing him begins to run.

This has been a snowy February in Upstate, New York, especially in contrast to our January, which was green. More snow is predicted in the Finger Lakes and Syracuse area this week. So it seems like a good time for this New York car accident lawyer to review some safe driving tips for winter weather.

In fact, the New York Times just published an article on this very subject. But what do they know?  They’re in balmy downstate.  The REAL snow-and-ice driving experts are up here in the Syracuse area – the snowiest City in New York State. (No, it’s not Buffalo, it’s Syracuse, the winner of the “Golden Snowball Award” most years!)

FIRST, THE OBVIOUS: 

One thing I love about my job as a New York personal injury lawyer is that I am always learning new things. A novel personal injury case walks in my door and I say, “wow, I didn’t know that could happen”!  But then I research it and find out that not only does it happen, it happens repeatedly. And it happens because someone, and not the poor injured guy, but rather a big, fat, rich company, screwed up.

Here’s a recent example:  Two young ladies are riding on a jet ski (some manufacturers call them WaveRunners or Sea-Doos).  The driver speeds up and the backseat passenger falls backward into the water. The fall into the water didn’t hurt, of course.  It’s a fairly soft landing.  And since a jet ski has no propellers, she did not get chewed up by a prop. (We have successfully represented several clients with prop injuries, one who lost her leg).  No, what happened was that the jet ski’s “jet” of water pummeled her rectum so hard it caused severe internal damage.  She almost lost her life by bleeding to death.  And her rectum was so damaged that she ended up needing to wear a coloscopy bag.

These facts stunned me.  At first I thought this was just a fluke accident, that the “jet” of the jet ski had coincidentally hit her at just a certain angle so as to be able to enter her anus and her rectum, and that it was a one-off event.  I figured at best my client had a claim against the driver of the jet ski for accelerating too quickly. I wondered whether the owner or driver of the jet ski would even have liability insurance coverage  for the accident. (Unlike for a car, New York law does not require boat insurance).

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