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We are well into the one-year grace-period (which started on August 14) of New York’s Child Victim’s Act (“CVA”).  Victims of childhood sexual abuse of any age can, during this one-year window, sue their perpetrators and those who facilitated the sexual abuse through negligence or worse.  More than 600 CVA lawsuits have already been filed.  New York childhood sexual abuse lawyers, myself included, have received thousands of calls and emails from victims.

I have been surprised by the many calls I have received from those abused by teachers.  Some schools, it turns out, were sexual abuse “clusters”.  For example, Kenmore West High School in Buffalo has been in the news for the large number of CVA suits (31) filed against it. Maryvale Union Free School District and Niagara Falls School District also are sexual abuse clusters.

Sexual abuse clusters are the product of what I call a “culture of silence”.  A perpetrator cannot rape so many children alone.  He needs a culture of silence to surround and insulate him from detection. What do I mean by a culture of silence?  It’s a “see no evil, hear no evil” attitude about sexual abuse. It’s a kind of “what happens in Vegas, stays in Vegas” even when the evil perpetrated is against children.

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Congratulations to my partner, attorney Jan Smolak, who recently settled a Syracuse personal injury case in mediation for a confidential amount above seven figures. Although we are not at liberty to discuss the details of the settlement, nor any of the specifics regarding the injury (we signed a confidentiality agreement with the insurance company), nor the exact amount, I can say that Jan, once again, did an outstanding job.

I interviewed Jan about this result after his mediation.  Here’s what he said:  “My client was very satisfied with the result.  As usual, I can’t say much about the case because the insurance company insisted on a confidentiality agreement.  But I can say this:  The settlement was a win for our client.  She is very happy with the result.  And that’s my definition of winning.” 

Why did the insurance company insist that the settlement be “confidential”?  This happens a lot with large settlements. Insurance companies worry that, if word gets out that they have paid out a significant sum of money on one case, plaintiffs with similar injuries in other cases against them will hold out for more money and refuse to settle for less.

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Now that the new school year has begun, here’s a mind-blowing statistic for New York State parents to worry about:  50,000 drivers a day in New York illegally pass stopped school buses.  And by “stopped” I mean with lights flashing and stop sign extended.  I have actually witnessed this happen myself.  Do I sound like an old fogy if I say that drivers used to respect stopped school buses?

Maybe, but I’m not the only old fogy out there. Just talk to any veteran school bus driver.  They’ll tell you that “back in the day” people respected stopped school buses as almost sacred.  One of them, A North Syracuse Central School bus driver, was interviewed last year in the Syracuse Post Standard.  She  complained that she was seeing not just a few, but many motorists, on a daily basis, illegally passing her bus with its lights on.  She eventually took matters into her own hands; she no longer allows children to cross until she has personally checked to see if traffic is approaching.  She no longer trusts motorists to stop for her bus’ flashing lights and extended stop sign! Now isn’t that sad?

Check out this video that went viral a few years ago.  It shows a car in New York passing a stopped school bus and narrowly missing a child:

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I sue for a living. I say that with pride.  I help injured folks get compensation from wrongdoers.  But when the wrongdoer is the Government, it gets tricky. And when I say “the government”, I mean not just “THE” Government, but all the cities, towns, counties, school districts legally deemed subdivisions of the State of New York. On the road to victory against such defendants lies a minefield of bombs.

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The procedural requirements for suing the government are rigorous.  On the way to the finish line, government lawyers will be watching for your mistakes.  But not just watching.  Slung across their wool suit jackets, they carry a quiver packed with sharp arrows, legal defenses that are available only to government entities.

Why is suing the government so hard?  Because the legislature has deliberately set up an obstacle course between the injured victim and government money.

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That’s a photo of me on my bike above.

Yes, I am an avid cyclist (150 road miles a week in the good weather) and a Central New York bicycle accident lawyer representing injured cyclists all over Upstate New York. So a New York Times article about a recent horrific car-on-bike crash, caught on camera, also caught my attention.

Before you read on, you might – or might not – want to take a look at the video of the crash.  You will see a car run a red light and T-bone an SUV, plowing it right into the cyclist:

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We are proud to announce that once again all four lawyers in the Michaels & Smolak team have been selected by other New York lawyers and New York judges for inclusion in “Best Lawyers in America”. The 2020 edition of the publication names all four partners, Lee Michaels, Jan Smolak, Mike Bersani, and Dave Kalabanka “Best Lawyers” in the Syracuse metropolitan area for representing injured plaintiffs in three categories:  Personal injury, professional malpractice and products liability. Senior partner Lee Michaels has been named in the publication for decades, and the other partners have been included since 2012.  All four lawyers have argued and tried personal injury and malpractice cases in courts all over Upstate New York, and each of them have settled or received multi-million dollar verdicts. Lee Michaels, the firm’s senior partner, says, “I am very honored that the law firm my father started decades ago is considered one of the best of the best in Upstate New York for personal injury practice.”  Dave Kalabanka, another M&S partner, responded to the news, saying, “folks who are injured through the fault of others often come to us in desperate economic circumstances, hoping we can save them from ruin. And more often than not, we do save them.  Getting justice for our clients is its own best reward.  But this continued recognition from our peers is great to have.”  M&S partner Jan Smolak noted that “being top-ranked in a publication like Best Lawyers is not only good for us, it’s good for our clients.  Our reputation breeds more success for our clients because the lawyers and insurance adjusters we are up against can see that we are tough and successful, and they are thus more likely to want to settle with us for larger amounts so as to avoid trial”. The American Lawyer magazine describes the Best Lawyers publication as “the most respected referral list of attorneys in practice.”  All four lawyers at Michaels & Smolak are also named in “Super Lawyers”, another prestigious directory of top lawyers.

Mike Bersani

Email me at: bersani@michaels-smolak.com

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After decades of dealing with insurance adjusters in personal injury cases, this Syracuse personal injury attorney has come up with his personal list of do’s and don’ts in his dealings with them.  I published my first two rules yesterday here.  Below are the last three rules for dealing with a personal injury insurance adjuster:

Rule # 3:  Know the Medical Records Better than the Adjuster

When adjusters calls me, I often put them into voicemail so I can review the medical records and highlight the key facts before speaking to them.  I then call them back with the highlighted records in front of me.  Now I am ready to talk.  That’s because adjusters often have a “cherry-pick” method of discussing a case.  They take only selective quotes from doctors that supports their position that the injuries are not so bad.  But it won’t work with me.  I am ready to cherry-pick back at them.  The adjusters will quickly see I am no pushover and they are going to have to deal with me, and with ALL the medical records, not just their selective reading of them.  Believe me, it’s worth the effort.

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After decades of dealing with insurance adjusters in personal injury cases, this Syracuse personal injury attorney has come up with his personal list of do’s and don’ts in his dealings with them.  Check my five hard-and-fast rules here:

Rule #1:  Do Not Allow Your Client to Give a Recorded Statement

This is rule number 1.  It’s hard for me to figure out why insurance adjusters keep asking for this.  I can only assume it’s because some personal injury lawyers are dumb naïve enough to allow them.  The adjusters try to sell the recorded interview by telling you that, once they have it, the case is more likely to settle.  They will say it will help them assess liability and your client’s credibility.  As long as your client is truthful, what have you got to lose?

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As a New York personal injury lawyer, I know that words are weapons.  When I prepare to try a personal injury lawsuit, I arm myself with the word-weapons I will parade before the jury.  They are arrows in my quiver.  I carefully pick them, and fine tune, and then deploy them.  I am the general, the commander, and they are my infantry, my soldiers. Below I will give you some examples of how I choose and deploy my soldiers for battle.

But before I do, let me tell you that words are also my enemies.  Certain words will forever be banned from my trial lexicon.  The prime example is the word “accident”.  Whether my client was injured in a car collision, or in a scaffold collapse, or slipped and fell in a supermarket, you can sit through the entire trial and never hear the word “accident” spill out of my lips.  I will never say “car accident”.  I will say “collision” or “crash”.

Why?  The whole premise of a personal injury trial is that the plaintiff’s horrific injuries were no “accident” at all.  They were caused by the NEGLIGENCE or CARELESSNESS of the defendant.  The word “accident” implies that no one is to blame.  An accident simply happens.  In popular jargon, this is expressed as , “s_ _ _ happens”.  The whole point of my personal injury trial is to prove that s_ _ _ did not just “happen”.  Rather, the defendant MADE it happen by CHOOSING to cut corners, not pay attention, allow himself to be distracted, or whatever.

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This Syracuse New York personal injury lawyer loves to travel all over the world.  I find other cultures and places fascinating.  Last year I went to Japan.  And this year it was Egypt, Jordan and Israel.  (Just got back last week).  See some pics I took above.

When I travel, because of what I do for a living, I can’t help noticing how other societies organize and structure their safety rules. I’m always on the lookout for dangerous conditions and am impressed when I see really safe practices. For example, in Japan I was impressed how pedestrians would wait for their light to turn green even when there was no motor vehicle anywhere near the intersection.  I went right ahead and crossed if there was nothing coming.  Made no sense to me to wait. The Japanese must have thought I was just another crazed foreigner.  The Japanese seem obsessed with safety, cleanliness and rule-following.  That’s probably one reason they live longer than any other people on the planet. Their average life expectancy is over 83 years.  Ours is only 78.

Egypt was another story.  I spent a few days in Cairo, a ramshackle city of 22,000,0000 people. It’s a fascinating place with thousands of years of history.  The people are friendly, the food delicious and the sites incredible. But safety?  Not a lot of emphasis on that.  For example, there are almost no rules for crossing the street.  I walked all over Cairo, and rarely did I see a crosswalk (and even then, motorists paid no attention to them).  So how do you cross a street in Cairo?  When in Rome, do as the Romans do.  Here is a video I took of my wife, Alejandra, and I braving a stream of Cairene motorists:

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