I am writing this post mostly for my fellow attorneys, but non-attorneys might also find it interesting.

One of the differences between a seasoned litigator and a novice is the ability to take total control of the witness, both at deposition and at trial.  Inexperienced attorneys, including my former self, often let witnesses run from the question, or take them down irrelevant rabbit holes, or hide behind non-answers.  But as we mature as lawyers, we learn to reign the witness in, to “let them know who’s boss”.  We also learn not to take any crap from opposing counsel.

Here’s a recent example of “taking control” from a deposition I recently had.  I was deposing a corporate witness in a convenience store slip-and-fall case.  She was trying her hardest to weasel out of answering my questions.  Look at how she tries to evade my questions:


For years now I have made it my goal to clearly explain even the most complex concepts of the New York personal injury claim process to my clients.  And over the years I’ve gotten very good at it.  I love it when my clients call me bewildered and confused with a question about their claim, and five minutes later say, “now I get it, Mike, thanks“.  Some have even said, “hey Mike, you ought to write a book”!

But I didn’t really want to write a book.  I was too busy representing my many clients injured in New York accidents.  So instead I looked online and in book stores for a book that would explain what all my clients should know about their New York State personal injury claims process.

Guess what.  I didn’t find one.  (Well, there were some, but they were either inadequate or just plain wrong.)

dog-245x300Today I am blogging about a recent development in New York dog bite / attack injury law.  By way of background, New York is one of only a few states where, to win your case, you have to prove the dog had a prior bite or attack or otherwise displayed “vicious propensities” and that the owner knew about these propensities.  Otherwise, the owner of the dog is off the hook, even if the dog viciously attacks you.

This rule “bites”.  The problem with this rule is that it doesn’t allow victims to sue the owner of the dog for the owner’s negligence.  The owner might have a perfectly good dog with no viscous propensities, but the owner might nevertheless – through plain stupidity or negligence — cause even the Mother-Theresa-of-dogs to hurt people.

For example, in Doerr v. Goldsmith, a dog owner signaled for his nice, obedient doggy to come to him.  Bad idea.  The dog was on the opposite side of a very busy street.  The tail-wagging, happy-go-lucky pooch then bolted across the busy street to his loving owner, causing an innocent bicyclist to be thrown from his bike.

water-slide1-300x184waterslide2This past week in Geneva, New York, where I live, the temperatures rose to 71 degrees.  And we are only in late February!  As the ski season ends (earlier than usual), I can’t help but think the amusement parks will be opening earlier than usual.

Generally, amusement parks are reasonably safe.  But accidents – tragic ones – do happen.  For one thing, the industry has become very competitive in trying to get the “highest”, “fastest”, or craziest rides.  That kind of competition can lead to dangerous results.

Case in point:  Last year a 10-year old boy was killed on the “tallest” water slide in the world located in Kansas City (see photos above).  The slide had opened to much fanfare in 2014 as it surpassed the then-tallest water slide in the world located in Brazil.  The slide – christened the “Veruckt” (German for “insane”) — consisted of a 168-foot, 17-story drop followed by a bump and then a final descent into the pool below.  Go on the ride by video here:

thOne thing I love about being a personal injury lawyer (besides all the great jokes that go with it) is that there is always room for improvement.  Yes, that’s right.  Even after twenty-five years of representing injured people against big companies and insurance carriers, I can still learn to do my job better.  Since I can always strive to get better, I never get bored with this job.

Case in point:  Recently a very accomplished fellow New York personal injury lawyer recommended a book to me, “Advanced Depositions”, by Phillip Miller and Paul Scoptur.  The book is designed to teach experienced personal injury lawyers like me additional skills for taking depositions, especially of experts and “tough” witnesses who might be evasive or tricky.

I admit I picked up the book somewhat skeptically, figuring I would already know everything in the book and that it would be a mere “refresher” course for me.  But I was wrong.  I learned some knew techniques for “boxing in” witnesses, for “exhausting” their knowledge on a topic, and for ensuring that the deposition transcript reads well so the jury can easily understand the “points” I scored.  I also learned better ways to make corporate witnesses concede that certain safety rules apply to the conduct of their employees, and even perhaps to get them to admit the rules were broken.

I am a resident of Geneva, NY, and a personal injury lawyer with experience in “toxic torts”.  I have been following closely the developments regarding the high lead and arsenic levels in the area surrounding the old foundry in Geneva. It is a sad, unfortunate mess.  I feel deeply for the foundry neighbors, especially those who have had children grow up in the area.  If nothing else, the anxiety and fear must be overwhelming.  Many blame — and have filed notices of claim against — our government officials (DEC, Department of Health, etc.) for having failed to notify them of high toxin levels years ago when they first found out about it.  Longtime residents’ worry, fear, and anger are visceral.

As a lawyer, I wish I could bring them good news, some hope that our justice system will eventually bring fair and equitable compensation to those affected.  Unfortunately, I can’t. I have been approached by several Genevans to represent them against the City, the State, DEC and other governmental entities, but have declined.  One of the reasons I have declined is that the plaintiffs (the residents and property owners in the contaminated zone) are unlikely to prevail with their claims against the City, State, DEC, etc.  I am not saying the cases are hopeless, or that winning is impossible, but I can say without a doubt that the cards are stacked against the claimants.  Let me explain.

What Is A “Toxic Tort” and Who Can Be Sued?

You might think that if you or someone you love gets hit by a commercial truck in New York you should seek out a New York car accident lawyer.  You would be wrong.  Suing a commercial trucking company for personal injuries is NOT the same as suing for a run-of-the-mill car accident.  You need a lawyer who is experienced and knowledgeable in the hyper-specialized field of truck accident litigation.

Don’t get me wrong.  There are many important similarities between truck accident and car accident litigation.  For starters, both trucks and cars are subject to the New York Vehicle & Traffic law, a set of “rules of the road” that applies to all vehicles on New York State roads (even bicycles!).  Thus, for example, all vehicles must stop at stop signs and red lights, yield at yield signs, and signal turns, etc.

But in addition to being subject to the New York Vehicle & Traffic Law, commercial trucks are subject to the Federal Motor Carrier Safety Regulations (FMCSR)(adopted and codified in New York under Title 17, Section 820).  This is an additional set of safety rules that applies only to commercial trucks.  A lawyer with a working knowledge of these rules is better armed to take on the trucking insurance company.  He or she can find additional ways to lock in liability against the negligent truck operator, his employer, and the owner of the tractor and trailer.

Medical professionals are getting away with murder!  How?  By a New York law that says victims of medical malpractice have only two and a half years to sue the doctor/hospital or other medical professional who negligently injured them, and only two years to sue for wrongful death (CPLR 214-a), REGARDLESS OF WHEN THE VICTIM FOUND OUT THAT THERE WAS A MEDICAL ERROR OR THAT THEY WERE INJURED BY IT.

Here’s an example of the cruel workings of this rule:  Patient gets a lung or breast ex-ray or mammogram.  Radiologist says it looks good.  Three years later patient is diagnosed with stage-four lung or breast cancer.  The new doctors look back at that ex-ray taken three years earlier, which clearly shows the cancer.  The radiologist three years ago clearly overlooked it.  If the cancer had been timely diagnosed, full recovery was likely.  Now it is too late – the patient is dying.

Can this unfortunate patient or her family sue the careless radiologist?  NO!  Not in New York.  That’s because the two-and-a-half year statute of limitations runs from the date of the malpractice, not from the date when the patient discovers the malpractice.

courtroom-300x199Winning is fun, especially when it’s a win not only for your client, but for many other people as well.  I am proud to say I recently helped win a victory for people injured through the negligence of governmental entities such as counties, cities and school districts.  In New York, these entities are known as “public corporations”.  Let me explain.

The case, Newcomb v Middle Country Central School District, was about a teenager struck by a hit-and-run car while attempting to cross an intersection near his high school. He suffered a life-altering brain injury.  His parents hired a lawyer who, among other things, tried to investigate whether other people, besides the driver, might have contributed to accident.  In other words, was anyone besides the driver at fault?  The lawyer did everything he could to get his hands on the police file.  But unfortunately the police delayed eight months in getting the lawyer the photos of the accident scene, the police report and other investigative materials.

Once the lawyer got the photos, he noticed that the School District had placed a temporary sign (announcing a high school musical) at the corner of the intersection.  The sign appeared to obstruct the line of sight between pedestrian and driver. This was likely a cause of the pedestrian not seeing the car approaching, and the driver not seeing the teenager as he stepped off the curb.

I came across a New York Times article the other day with the above title.  I didn’t have to read the article to know it was true; having worked as a New York car accident lawyer for more that two decades, I have personally witnessed the effects of smartphones on driving accidents.

Some of the apps for smart phones out there seem almost designed to kill drivers (and those they collide with). Take for instance the “snapchat” app’s speed filter.   Want to impress your friends as you are driving along the highway?  Ratchet your speed up to 120 miles per hour and then snap a video of your view from the car. Now you can post the video on snapchat instantly.  Your friends will see the video with your speed — “120 mph” — superimposed on it.  They will think you are so cool!

Another dangerous app is Waze.  Full disclosure:  I love Waze. I use it every time I am driving in big urban areas like New York City or Philadelphia.  It works just like any other navigator but it actually finds you the quickest route to get where you are going based on the current traffic conditions, including construction slow-downs, roadway accidents blocking traffic, traffic jams, and even objects in the road blocking a lane of travel.  But how does Waze know about all these conditions?  Other Waze users observe these conditions as they drive by and then hit buttons on Waze’ app screen to notify Waze about them.  Those drivers might feel like good Samaritans by helping other Waze users steer clear of traffic obstructions, but they are risking their own and other lives by paying attention to their phone screen instead of the road.

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