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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).

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.

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.

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. 

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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