I am in my final days in Costa Rica where I have been exploring rain forests, volcanos, and beaches. Some of the exploring is (just a little) risky.  Costa Rica is famous for its “environmental tourism” also called “adventure tourism”.  But where there is adventure there is a risk of misadventure.  In other words, s— happens.  And since I can’t go anywhere without taking my lawyer brain with me, I have been thinking a lot about the “assumption of the risk” doctrine, which protects sport facilitators from lawsuits by participants who might get hurt while engaging in the sport. This includes of course adventure sports.

I have had some “misadventures” here already.  Read on and find out about them!

But first, a little about the assumption of risk doctrine.  In New York, this means that if you are injured in an adventure sport such as zip-lining, hiking, bungee jumping or whatever, it is difficult to bring a claim and get compensation in court against the entity that provided or facilitated your participation in the activity.  It is pretty much universally the rule – in New York and everywhere – that you “assume the risk” of dangerous activities you choose to participate in.  This is based on a fundamental concept of law . It’s called “common sense”.

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Photo above:  A New York sidewalk defect, suitably marked with orange cones.

I love traveling and have done a lot of it, including in Mexico and Central America.  Right now I am in Costa Rica.  Love it here!  The people are super friendly, the climate is awesome, the food great.  The countryside is spectacular – active volcanoes, dense pristine jungles, and sandy beaches both on the Atlantic and Pacific costs. What’s not to like?

So far I can think of only one thing:  Their tort law.  Though I have not read their laws, I have to assume – from what I have seen – that someone injured through the negligence of others does not have much of a remedy in Court.  Take a look at this video I shot today before you read any further:

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At M&S, we are big on safety, and that includes motorcycle safety.  But safety requires some study and practice.  We like to say that “safe riding is no accident!”  We urge our biking clients to read up on and follow the strictest biking safety guidelines.  But unfortunately, there are many FALSE biking safety tips out there.  And some myths never die no matter how much evidence accumulates to debunk them.  For example, remember when they used to tell you that eating before you swim was a no-no because it could cause you to cramp up and drown?  Turned out to be false!  Still, many people still believe it to be true.

Here are the most common and enduring myths about motorcycle safety.  Share these with any friends or family members who bike:

MYTH 1. Full-Face Helmets Restrict Your Visibility

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Yes, you read that caption right.  This personal injury lawyer wants FEWER boating accident cases.  Not because I don’t enjoy representing those injured through negligent boating (I do), but because I want there to be fewer accidents altogether.  I have enough personal injury cases.  I don’t need more and would prefer fewer cases if it meant fewer people were being injured and killed in boating accidents.

And I think I know a way to make boating much safer, and to avoid accidents.  Here me out!

But before you hear me out, here’s a little background.  I just became a first-time boat owner.  Not that I am new to boats.  I grew up around motor boats and sail boats (on Skaneateles Lake) and have been using my brothers’ motor boats for many years. I have boated on Cayuga Lake, Owasco Lake and Seneca Lake.

Hey Upstate New York bikers, it’s that time of year again.  You’ve probably taken your motorcycle out of storage, tuned it up, wiped it down, and taken a few rides. Good for you.  Now all you need  is to freshen up on safety.  You might think (cynically) that New York motorcycle accident lawyers like us would rather wait for you to have the accident and then turn a profit off of your suffering.  No!  Believe me, we have plenty of work, and we would rather save a life than add one more case to our portfolio.

Knowledge is power.  If you know how most Upstate New York motorcycle accidents happen, you are more likely to avoid them.  So are you curious to know the most common types of motorcycle accidents here in Upstate New York, including the Syracuse and Rochester areas?  Thought so.  Here they are:

Head-On Collision As Car Turns Left

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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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