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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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Most folks know that when you are hurt on the job you can’t sue your employer.  Instead, you get worker’s compensation, which means the employer’s worker’s compensation insurance (“comp”) pays your medical bills and some of your lost income (the most they pay is about 2/3 of your lost income, but that’s only if you are 100% disabled).

You can’t sue your employer, or your co-workers employed by the same employer, but you can sue others who negligently caused, even partially, your on-the-job injuries. When you sue these non-employer others, that lawsuit is called a “third-party action”.

For example, say you are working on a Syracuse construction site for a plumbing subcontractor.  One of the employees of an electrical subcontractor is working from a ladder and drops a power tool on your head.  Your employer’s insurer pays your worker’s compensation benefits, but you can also sue the electrical subcontractor in a “third-party action”.

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Last week I gave a lecture to more than 800 fellow New York personal injury lawyers by Zoom.  The hour-long lecture (followed by a 20-minute question-and-answer period) was titled, “How to Defeat the Governmental Immunity Defense”.  You can watch a short clip from my lecture here, or you can, if you are a lawyer interested in this area of the law, watch the entire presentation here.

I used power point to guide my audience through the relevant case law and the “do’s and don’ts” of defeating the defense.  Thanks to my legal assistant Becky, the accompanying power point presentation was attractive, informative, and well received.

The lecture was by zoom rather than in person because of COVID.  I really missed delivering to a live audience.  But the advantage was that I got in front of 800 lawyers from all over the State in real time in the same hour.  Usually, I’ve got to travel around the State to deliver to rooms of a few hundred at a time.

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I have not looked back to see how many years in a row our firm has made this top ranking, but it’s been quite a few.  Sometimes I wonder whether the folks at “Best Lawyers” even bother checking on us.  Maybe they just assume we have not declined in skill, talent or experience and therefore just “rubberstamp” our “Tier 1” ranking year after year?

But that’s not the way it works, at least according to them.  A firm must have at least one attorney who is recognized in the current edition of Best Lawyers in order to qualify for being ranked as a “Best Law Firm” in their publication. (All four of our lawyers are listed).  After that first condition is met, Best Lawyers says they then dig deeper, collecting data from the firms’ clients, and eliciting “votes” from other lawyers in the area.   (And no we can’t vote for ourselves.)  According to Best Lawyers, “all of the quantitative and qualitative data is then combined into an overall ‘Best Law Firms’ score for each firm.”

Somehow this process always seems to make us land in the top tier.  Good for us!

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As anyone who has not been living under a rock knows, it’s election season.  Boy, is it!  The Trump/Biden contention is one of the most – well – contentious in modern history.  It’s a battle of two completely opposite and irreconcilable narratives:

Trump says he has performed brilliantly in fighting the coronavirus.  Biden says he has failed miserably.

Trump says Biden is senile and incapable of governing.  Biden says Trump is a narcissistic egoist whose every act is aimed at self-aggrandizement and self-enrichment.

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A few weeks ago, Breonna Taylor’s family received $12 million in settlement for their wrongful death case against the City of Louisville, Kentucky and its police department for their botched “no-knock” warrant raid in which Ms. Taylor was killed. When news broke about that settlement, I asked myself, “would she have gotten such a settlement in New York State”?  My answer was “no”.  That’s because New York’s highest court, the Court of Appeals, has, in the last decade or so, narrowed and toughened a rule of law called the “public duty” rule, also called the “special duty” or “special relationship” rule.  Under the recent version of this rule, no one injured by the negligence of a governmental entity (such as a city or its police) can sue for money damages unless the victim can show that the blameworthy officials had a “special duty” toward him or her.  In cases like Breonna Taylor’s, that means that in New York her family would have to show that the police had some kind of verbal communication with Breonna, before she was shot, that made her feel she was safe or protected from harm.

But Breonna Taylor had absolutely no communications at all with the police before they burst open the door in the apartment where she was staying and shot her.  Thus, under New York law, the police did not have a “special duty” toward her.  It is very possible that a New York Court would thus have felt compelled to throw her case out based on lack of “special duty”.

In fact, this is exactly what happened in the recent New York case of Ferreira v. City of BinghamtonThe facts in that case were, in all relevant ways, exactly the same as in the Taylor case.  Jesus Ferreira was staying in a friend’s apartment when a SWAT team burst in with a “no-knock” warrant.  The lead officer wasted no time in firing bullets into the unarmed Ferreira.  Ferreira had done nothing wrong. Fortunately, unlike Taylor, Ferreira did not die.

MGB-photo-223x300Hello there blog readers!  I’m back after my partner Dave Kalabanka hi-hacked this site last week to write about that “Personal Injury Lawyer of the Year” award.  What Dave did not mention is that ALL four lawyers at Michaels & Smolak were again listed for their representation of personal injury victims in the Best Lawyers in America publication this year.  In addition, Dave Kalabanka and I were listed in the categories of representing injured plaintiffs in product liability litigation , and I was also listed for representing victims of professional malpractice.  All these listings were based on “peer review”, meaning that the folks at Best Lawyers asked other lawyers and judges who know our work to rate us.  Most of those rating us were likely our opponents and judges since they best know our work.  So we are all very proud to have made such a strong impression on them.

What the Best Lawyers listings don’t tell is this:  At Michaels & Smolak we don’t work as isolated lawyers representing individual clients.  So it’s a bit misleading to rate us individually. Rather, we work as a team, meeting every second week to discuss our cases.  We also pitch in with the actual heavy lifting on each other’s cases.  For example, Jan smolak might have a case where I will draft his summary judgement motion papers or argue his appeal, or I might do his legal research.  Dave Kalabanka might consult with his network of New York lawyers to find solutions to a problem that has emerged on one of my cases.  Lee Michaels might call any of us at any time of day or night seeking help deciding on a strategic move he is considering making on one of his cases.

So although Best Lawyers rates each lawyer separately, what they really can’t see or feel is how this office works as a team.  We believe that of all the personal injury law firms in the Syracuse area, we have the best “team”, not just because our individual lawyers are outstanding, but because the formula we use to work together creates a powerful “synergy” that is the best in the area.

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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 him about an important award he just got: Mike has been selected as the “Personal Injury Lawyer of the Year” for the Syracuse metropolitan area. 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 injured folks in personal injury litigation for the entire Syracuse Metropolitan area.  Given this tremendous honor, I decided to take some time from Mike’s busy schedule to interview him about it:

DAVE:  Mike, first, congratulations! That’s quite an honor, and well deserved.  Did you know this was coming?

MIKE:  Thanks Dave, and no, it caught me by surprise.  There are many outstanding personal injury lawyers in the Syracuse area, including right here at Michaels & Smolak.  I had no idea I would be selected.

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