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cropped-183x300My 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.

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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: 

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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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Holy Kamoli!  The weather gods sure dumped a lot of that white fluffy stuff on us last night here in Geneva NY!  I measured almost a foot and a half in my backyard this morning.

But it’s not just Geneva – the whole State is blanketed, including New York City.  Nearby Syracuse, which is in the “snow belt”, got even more than us.

Are you a homeowner?  If you are, you may be wondering whether you can get sued for personal injuries if you don’t remove the snow and ice from your walkway.  Quick answer:  Yes!  Believe me, I have represented victims of walkway slip-and-falls before.

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Decades ago, when I was just a baby NY personal injury lawyer, most of my personal injury clients came from lawyer referrals.  Those other lawyers knew that my firm concentrated  in the field of personal injury law.  Those lawyers had discovered from past referrals to us that we got top results even with difficult cases.  Those lawyers in turn would tell other lawyers about us, and our referral base grew and grew in Syracuse, the Central New York area, and across the entire Upstate New York region.

Even back in those days, however, there were always some “cold calls” – people who found us not by referral from other lawyers, but directly, the old-fashioned way, by something called “the yellow pages”.  (If you are younger than 30, ask mom and dad).  But by and large it was our trusting network of referring lawyers who fed our personal injury pipeline.

Then came lawyer advertising. This followed on the heals of the Supreme Court case Bates v. State Bar of Arizona finding that bar association rules banning or strictly limiting lawyer advertising violated the First Amendment’s guaranty of free speech. The proverbial floodgates opened, and the flood of tacky “INJURED?” billboards and TV ads rushed in.

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Attorney Mike Bersani

This is Dave Kalabanka, Mike Bersani’s partner, high-jacking his blog (again) to write about yet another award Mike has received for his outstanding work representing personal injury victims. Recently, I blogged about Mike being named “Personal Injury Lawyer of the Year” for 2021 by the publication Best Lawyers in America, which deemed him the “number one” ranked personal injury lawyer in all of the Syracuse metropolitan lawyer based on peer reviews (judges and other lawyers ratings). 

I am proud to announce that our own Mike Bersani has now been named to the Blue Ribbon Panel of Super Lawyers. Let’s unravel this new award:  Super Lawyers is a national publication that lists only the best lawyers in each field of law (top 5%).  All the lawyers at Michaels & Smolak are listed as “Super Lawyers” in the field of personal injury law.  The publishers of the Super Lawyers directory choose who to designate as Super Lawyers by way of a multi-phase process that includes a statewide survey of lawyers, an independent research evaluation of candidates, and “peer reviews” (lawyers rating each other) by practice area. 

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Congratulations to my partner, attorney Jan Smolak, who recently settled a wrongful death case for $5,500,000!  Although I am not at liberty to discuss the details of the settlement, nor any of the specifics regarding the injury (we signed a non-disclosure agreement with the insurance company), I can say that Jan, once again, did an outstanding job.

Such a large settlement for a motor vehicle accident case is unusual.  There are two reasons why:

First, a negligent driver who causes an accident is extremely unlikely to have enough insurance (or personal assets) to cover such a large settlement. The minimal liability insurance for motor vehicles in New York is only $25,000, and a good chunk of New York auto owners carry only this bare minimum in coverage.  Even well-off folks rarely carry more than $1,000,000 in coverage.  Greater coverage is usually only available when the at-fault vehicle is owned by, or the driver of the vehicle was in the scope of his employment for, a large corporation.  Personal injury lawyers refer to this as a “deep-pocket defendant”. In car accidents, “deep pocket” defendants are rare.

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The author in “virtual court” arguing an appeal

As I write this blog post, I just got an appointment for my first COVID vaccine shot for February 6.  I am 65, just barely, which qualifies me for this early round of vaccines.  Lucky me! With the vaccine soon to be widely available, the pandemic lockdowns and distancing may (we hope!) soon end.

This got me thinking about the post-COVID world.  In my little corner of the world representing New York personal injury victims, COVID has driven many changes to the way we practice law. Will the COVID way of practicing of law end when the pandemic ends?

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So, your New York personal injury lawyer is on the verge of settling your case.  Finally, many months or even years after your accident, you are going to get some compensation for your injuries, your lost income, your permanent disabilities, etc., etc., etc.  You know what I mean.  This has been the worst thing to ever happen to you. Now you see the light at the end of the tunnel.

But wait.  Your personal injury lawyer says there is one more stumbling block to a successful resolution of your case:  “Liens”.  He says he has got to investigate the “liens” on your case.  What is that?  How can it affect your settlement?

First, if you are only hearing about “liens” at the end of your case, your lawyer has not done a very good job of keeping you informed.  He or she should have told you about that little problem – and yes it is a problem – long ago. Better late than never!

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Even though I write all the appellate briefs and argue all the appeals for my office, and even though I have been blogging about New York personal injury issues for almost a decade, and even though I spent two years clerking for an appellate court (Fourth Department in Rochester) before I began representing personal injury victims, I just realized I have never blogged about the process of arguing an appeal. It’s time!

I’m not going to talk about writing the brief:  That’s way too technical and boring for this blog spot.  I’ll address the actual oral argument.

By the time we get to oral argument, both sides have researched all the law and how it applies to the facts of the case.  Both sides have made all their arguments in writing – in the “Briefs”.  The Appellant fires the first salvo with an Appellate Brief arguing for a reversal or modification of the lower court’s order or judgment.  The “Respondent”, who won in the court below and wants an “affirmance”, then files its Responding Brief to try to undermine the arguments in the Appellant’s Brief.  The Appellant gets to fire the last shot with a Reply Brief, which tries to poke holes in the Responding Brief.

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