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M&S’ senior law partner, Lee S. Michaels, is not only a top New York personal injury lawyer, but also an award winning adjunct professor at Syracuse College of Law.  He teaches young soon-to-be lawyers how to try a court case.  This is called “trial practice” in law school.  The Syracuse College of Law website recently featured an article about Lee’s amazing trial teaching techniques.

Lee’s trial teaching philosophy is simple:  The best way to learn to try a case is – well – to try a case.  So his students all have to try one to get their final grade. It’s just a simulated trial, sure, but a very realistic one nevertheless.  The students take on roles such as prosecutor, criminal defense lawyer, and witnesses in a fictitious criminal trial.

Lee tries to make the simulated trial as realistic as possible, “with a little help from his friends”.  He calls on former students – now judges – to act as trial judges.  Lee’s class’ most recent  “trials” starred Auburn NY’s City Judge David Thurston and US Northern District Magistrate Judge Thérèse Dancks, both former students of Lee’s. Also participating were Auburn City Judge Michael McKeon and Lee’s former student Kevin Kuehner, a Syracuse trial lawyer

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This morning I was at the radio studios of Finger Lakes Radio Group in Geneva, New York.  They wanted to interview me about my new book, “Understanding Your New York Personal Injury Claim“.  Geneva’s station – WVGA – ran the interview live.  It’s sister station in Auburn, NY  – WAUB – will run it at a later date.

It was fun to be on the radio again.  Ted Baker is an excellent interviewer.  He has interviewed me several other times about my volunteer work for the Boys & Girls Club of Geneva.  He made me feel right at ease and asked very on-point questions about my book.  For example, he asked me:

Why did you write the book?

money-doctor-300x200I just read a disturbing article in the New York Times about a large-scale personal injury insurance scam in New York City.  It works like this:  A gang of fraudsters lines up “scouts” to go into poor neighborhoods in search of people willing to “fake” accidents and injuries in exchange for money.  The “victims” are then coached on how to fake both the accidents and the injuries.  Suitably trained, they then “fall” in potholes, deliberately trip outside of restaurants or other businesses, or crash cars.  The fake accident victims then visit doctors whose pockets are also being lined with the fraud ring’s money.  The dishonest doctors then “treat” the “patients” for broken bones or internal injuries that do not exist, and of course keep copious records of all the “treatment” they provide.  The doctors even go so far as performing unnecessary medical procedures to bump up the settlement value of the injury.

The five men who orchestrated this particular scam have now been indicted.  The indictment alleges that the scam lasted for five years and cost insurance carriers about $30 million.

This is the kind of dishonesty that gives New York personal injury lawyers, and personal injury victims, a bad name.  And this is the kind of news article that jury members I empanel will have in mind when I am presenting a legitimate personal injury case to them for a seriously and legitimately injured victim.  Unfortunately, juries have to wonder whether my client, and perhaps even I, am trying to pull the wool over their eyes.  And a lot of it is the fault of scammers like these guys.

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Did you ever wonder where the expression, “to read the Riot Act” comes from?  Well, if not, you are probably wondering now.  So here’s the explanation:  The so called “Riot Act” was an Act of the Parliament of Great Britain when the USA was still part of Great Britain (1715).  It authorized the government to declare any assembled group of twelve or more people unlawful, and force them to disperse.  Before the group could be arrested or punished for illegal assembly, the authorities had to read aloud the Act as a warning to disburse.  The phrase “to read the Riot Act” thus came to mean more generally any situation where an authority delivers a stern reprimand or warning to someone indicating that they must change their behavior or else suffer dire consequences.

A recent Court of Appeals (New York’s top court) Decision has New York personal injury lawyers “reading the Riot Act” to their clients.  Before I can tell you why the “Riot Act” is being read to New York personal injury claimants, I have to first explain the Court’s ruling.

In Forman v. Henkin the Court held that, when you sue someone for personal injuries, their lawyers can get access not only to your “public” Facebook posts, but also – under certain circumstances — to the ones you posted under your “privacy” settings.  Those private postings do not automatically need to be disclosed to the insurance company lawyer, but those lawyers – whose goal is to defeat your claim — can force you to turn them over by showing they are reasonably likely to be relevant to the credibility of your injury claims.

law-360-300x182I recently posted a blog about New York’s top Court’s recent ruling that New York personal injury plaintiffs can win “summary judgment” against defendants without proving that the plaintiff was blameless for his own injury.  The rule previously, in most courts, was that the plaintiff could not get summary judgment without first proving that he or she was blameless. You can read that earlier blog here.

Since the blog was posted, Law360, and online legal newspaper of national renown, interviewed me about the case.  The article’s headline is:  “NY High Court’s Injury Ruling Could Spark Fast Settlements”.  The article quotes me as follows:

Michael Bersani, a personal injury plaintiffs lawyer for Michaels & Smolak PC in Syracuse, New York, said it has been in insurance companies’ best interests to stall litigation given their considerable resources. But if liability is already established, then a 9 percent interest rate on a potential $1 million verdict would glean $90,000 annually, he said. “It makes the plaintiff comfortable and makes the insurance companies very uncomfortable,” Bersani said. “If the insurance adjuster knows I’m going to get a verdict, they have much more incentive to get it resolved early and get it settled.” Bersani said the ruling will also help injured clients obtain third-party litigation funding in order to pay for daily living expenses. “Some plaintiffs are poor, and to wait out their case they have to borrow money from third-party lenders,” said Bersani, who noted that many can’t work due to their injuries and often run out of disability insurance funds. “Once you get a finding of liability, it’s easier to get a third-party lender at a better rate,” he said. “If I have an iffy case and can’t get a lender, if I get summary judgment, then it makes it a lot easier because the lender knows there will be money coming in and will get paid.”

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It’s lacrosse season.  I learned to love the sport while watching my youngest son Nico play in middle school.  He went on to play JV and Varsity lacrosse at Geneva High School in Geneva, New York where we live.  I witnessed many games.  It’s a fast and furious sport, “the fastest game on foot” as its fans say.

As in any sport, especially one where a very hard ball is being tossed around at speeds above 60 miles per hour, lacrosse has its risks.

I remember back a few years ago a Buffalo NY Lacrosse player died when the ball hit him right in the solar plexus and caused his heart to stop. And that same thing has happened more than once.  Naturally that’s a risk we as parents assume when we let our kids play the sport.  And our kids assume that risk, too.  We lawyers call this concept “assumption of the risk”.  Here’s what that means:  A sports participant who agrees to play a sport like lacrosse is legally consenting to the commonly appreciated risks that come with the sport.  When the player is injured by one of those normal risks that everyone knows is part of the game, he or she is , naturally, barred from suing anyone for the injuries.

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Warning:  This blog may be a little too “legalese” for many of my readers, but it is an important development in New York personal injury law, so I feel compelled to write about it for my many lawyer-readers and others with a more-than-casual interest in the law.  The new development is a case from New York’s top Court — the Court of Appeals — called Rodriguez v. City of New York”.

The particular facts of that case don’t matter for our purpose here.  So I am not even going to talk about them.  Here’s what you need to know:  Whenever we New York personal injury lawyers sue a defendant for negligence, there comes a point, usually after depositions, when we consider making a “summary judgment motion on liability”.  That means we are asking the Judge – without a jury – to rule that the evidence so clearly shows the defendant was negligent that the Judge – without even giving the case to the jury to consider – should rule that the defendant was negligent and is liable to our client, the plaintiff.  At that point, if we get “summary judgment on liability” in our favor, we gain several advantages.

First, the only remaining issue now for a jury to decide is the amount of “damages”, in other words, how much is the injury worth?  We get to go to the jury and tell them “the judge has already found the defendant liable for what he did to our client and now you only have to consider HOW MUCH he owes our client, not WHETHER he owes our client.”  Huge advantage.  It’s like starting a football game with a three-touchdown head start.

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A woman is walking her bicycle across a street at night. She is wearing light colored clothing. A car approaches.  Its headlights shine upon her.  The car does not slow down. It is traveling at 40 miles per hour. The car does not brake. Inside the car, another woman sits behind the wheel. She does not steer. She does not brake. She just sits there.  At the last second, just before the collision, the woman behind the wheel shrieks.  But it is too late to react.  The pedestrian is down.  She is dead.

In the 20th Century traditional car accident case, no question about who’s responsible:  the driver.  But this case is different.  There is no driver.  The car was driving itself.  The car is owned by Uber.  Uber’s engineers designed the car to be driverless.  The woman sitting behind the wheel was not driving.  She is an Uber employee and was supposed to be “monitoring” the vehicle, just in case the vehicle made a mistake.

This collision, which occurred Sunday night in Tempe, Arizona, was a major setback for Uber.  But also for the entire self-driving car industry. It is believed to be the first pedestrian death caused by a self-driving car.

 
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New York personal injury lawyers like me welcome this news:  The Food and Drug Administration recently approved a new kind of blood test that can detect concussions and identify possible brain injuries.  It’s called the “Banyan Brain Trauma Indicator” (“BBTI”).  The test works by measuring the levels of proteins, known as UCH-L1, and GFAP, that a damaged brain releases into the blood. Higher levels of these blood proteins indicate intracranial lesions.

There are several advantages of BBTI over traditional CT scans (which is how brain lesions at present are usually detected).  First, the blood test does not expose the brain to radiation as a CT scan does.  Second, the blood test will make for a speedier diagnosis of a brain injury.   But my hope is that the test will one day also be used to detect small lesions that today’s CT scans cannot detect.

Why is this last thing important?

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Michaels & Smolak has several connections with the Auburn Maroons hockey team: (1) We are financial & broadcast supporters; (2) our law partner Dave Kalabanka is the father of goalie Jack Kalabanka; and (3) we love to win in Court just like the Maroons love to win on the ice!

And now we have even another reason to be proud of “our boys”: On Monday evening, at the Onondaga County War Memorial, Auburn defeated Clinton Warriors 5-1 to take the Division II section 3 final. Among the hundreds of exuberant Auburn players and fans who filled the ice in pan-demonic celebration were M&S partners Dave Kalabanka (proud father!) and Jan Smolak (proud supporter!).

“I’m just ecstatic to see this team make it this far” said Dave Kalabanka. “I have followed these kids for years. I know their capabilities. There is so much potential to be harnessed. I don’t think they realize just how good they can be with the right focus. They are a great bunch of kids. They are everything we want our kids to be: Hard-working, dedicated, spirited, respectful of each other, and with a never-give-up attitude.  They so deserve this win!”

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