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deer-crossing-street-300x199We are right in the middle of “regular-firearm” (as opposed to bow-and-arrow) deer hunting season in New York State. It started October 23 and ends December 12. So let’s talk about car-on-deer collisions, how to avoid them, and the legal consequences if you don’t.

Deer are a lot like you in that, if they are smart, they try to avoid personal injuries.  This means running from bullets.  And spooked deer don’t look both ways before crossing any roads that lie between them and safety.

Just like those deer, you need to watch out for your own safety, but instead of fleeing bullets, you need to avoid the fleeing deer.

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Today I am going to blog about legal advertising and my love/hate relationship with it.

First, why do Syracuse NY area personal injury lawyers like us have to advertise at all?

The question is a fair one.  After all, our law firm is, according not just to us, but to many of the best lawyers and judges in the area, one of the top personal injury law firms in all of Upstate New York.  We have won many awards and recognitions for our outstanding results and performances in court.  Judges and fellow lawyers sing our praises, as do former clients.  So why do we have to advertise at all? Shouldn’t word of mouth bring us more cases than we can handle?

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We are pleased to announce that all four of M&S’s lawyers have once again been ranked in the publication The Best Lawyers in America©  (2022 edition). Dave Kalabanka was listed for representing plaintiffs in personal injury and products liability litigation, Lee Michaels and Jan Smolak for personal injury litigation, and Mike Bersani for personal injury, products liability and professional malpractice litigation.

Since it was first published in 1983, The Best Lawyers in America® has been regarded as the most serious guide to ranking and honoring top lawyers. In order to compile their Best Lawyers lists, the publishers use an exhaustive “peer-review” evaluation system. Lawyers and judges who have been named Best Lawyers are eligible to vote on the legal abilities of other lawyers based on their specific practice areas around the world. For the 2022 Edition of The Best Lawyers in America©, 10.8 million evaluations were analyzed, which resulted in more than 66,000 leading lawyers in 147 practice areas being included in the new edition. Lawyers are not required or allowed to pay a fee to be listed; therefore, inclusion in Best Lawyers is not a paid-for vanity listing.  It is a true recognition by one’s peers of legal accomplishment.

We are proud of our top-ranked position in the The Best Lawyers in America publication.  We promise to keep working hard to maintain that ranking. Michaels & Smolak is a premier Syracuse-based law firm recognized around the State of New York for its legal excellence in the field of representing plaintiffs in personal injury, product liability, and professional  Call us to get a free consultation about your case.

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Hello there blog readers!  This is Dave Kalabanka, Mike Bersani’s partner. I’ve hijacked his blog for today to interview Mike about another important award he just got: Mike has been selected the 2022 “Lawyer of the Year” for the Syracuse metropolitan area in the field of “professional malpractice” for his outstanding representation of victims of legal or other professional malpractice. A publication called “Best Lawyers in America” bestows this honor on the lawyer with the highest overall positive peer-feedback (judges and other lawyers rate him higher than any other lawyer) for a specific practice area and geographic region. Yes, Mike was the highest ranking attorney in the field of representing victims of legal and other professional malpractice for the entire Syracuse Metropolitan area.

This new honor comes on the heels of Mike’s being named the 2021 “lawyer of the year” for the Syracuse Metropolitan area in the field of representing personal injury plaintiffs.

Given his second-year-in-a-row “Best Lawyer designation, I decided to take some time from Mike’s busy schedule to interview him:

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The answer to the question posed in the title of this blog post is “yes”.  I will show you how this is true using a recent case I settled as an example.

My pedestrian-client was injured while j-walking across East Genesee Street in Auburn, right outside our main office. The pedestrian seemingly did everything wrong:  She chose to cross the street a hundred feet or so from an intersection equipped with a traffic light and crosswalk.  Further, she did so at night, dressed in dark clothing, so dark in fact that the witnesses who saw her lying on the pavement after the collision assumed she was a black trash bag that had blown into the road.  The only thing that “tipped off” the witnesses that the black bundle in the road was a person was a shock of blond hair.

Despite these seemingly “bad facts”, we got a substantial settlement for her. How?

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I have been representing personal injury victims for decades.  No two victims are alike.  They’re kind of like snowflakes: They are each unique.  This goes for how they deal with their injuries, too.  But generally you can think of how they handle their injuries as running along a spectrum, a continuum, which is the subject of my blog post today.

At one end of the spectrum is what I call the “tough guy”.  The use of the word “guy” here is deliberate, and not sexist.  This kind of personal injury victim is almost always a guy, not a woman, though I have seen exceptions to this rule.  The tough guy has to prove that he is too tough to let an injury bother him at all.  The extreme tough guy will not admit, even to his doctor, that he is in pain. He will refuse pain meds.  He will ask his doctor to send him back to work even when the doctor thinks this will be deleterious to the healing process.  The tough guy believes he is superman.

The problem with representing the tough guy is that when it comes time to settle his case, his medical records and his comportment have minimized the injury and so the case value is also minimized.  When he realizes that he has shot his case in the foot, the tough guy may finally admit to his lawyer, me, that he was in a lot of pain the whole while, and still is, but wanted to work and live through it without complaining.  He does not like to complain. But try explaining this to an insurance adjuster or a jury who is looking at reams of medical records wherein the victim had reported “no pain” or “minimal pain” or “nothing I can’t deal with”.  The tough guy is his own worst enemy in a personal injury case.  He sinks his own case with his bravado and chest pounding.

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I am arguing an appeal tomorrow.  I am writing this blog post during a “break” in my preparation.  Let me tell you about the appeal, and how I am preparing to argue it.

First, it’s a big case.  We have sued for more than $8,000,000.  Our client is a wealthy trust fund that lent $6,000,0000 to a power company.  The loan went sour when the power company went broke and was unable to repay the loan.  The lawyers representing our client for the loan transaction, whom we have sued, then had to file a foreclosure action to try to salvage whatever they could from the loan-gone-bad.

We allege that the lawyers committed malpractice in failing to conduct “due diligence” to ensure that the borrower would be solvent and able to repay the loan, and then continued to malpractice our client during the foreclosure proceedings, which cost our client another $2,000,000 or so in attempting futile efforts to stymie the losses.

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We get this question a lot.  When we get it early on – while the client is still treating for her injuries, the answer is, “we don’t know”.  It depends on how well and how quickly you heal”.   But once the client is done healing and we can see what her “permanent” prognosis is, including any permanent pain, limitations or scars, we can take a stab at it.

Take a stab at it?  Kind of a brutal metaphor for a personal injury case valuation.  How about this:  We can establish a “ballpark” estimate of what the case is likely worth.  There is no “exact” value number because determining the “value” of a case is an art, not a science.

Here’s how we do it:

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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.

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