Last night my wife Alejandra and I attended the Geneva YMCA’s fundraiser, the “Frost Fest”, at Three Brothers Winery right along the eastern shores of Seneca Lake. Here is a photo of us sitting on the ice thrown:
As a longstanding NY personal injury lawyer, I have seen my clients’ right to privacy disintegrate over the years. And just when I thought it could not get much worse, it got worse. Let me tell you about it.
First, though, a little background. When you sue for personal injuries, you give up some of your privacy. The insurance company lawyer has a right to pry into your medical records, at least to the extent they are relevant to the injuries you are claiming from the accident. So if you are claiming a broken right arm, for example, they have a right to scour through any medical records related to your right arm, whether from before or after the accident. But they would not have the right to look at records for treatment unrelated to that arm. You don’t give up all your privacy, just that much of your privacy that is related to the injuries you are claiming.
Now, if you are claiming that your injuries have hampered your lifestyle – as they often do – and that you can no longer do certain things you used to do, the insurance company lawyers can try to uncover evidence that you are either lying or exaggerating your disability. For example, they can have investigators secretly trail you and try to catch you – on camera – performing activities you claim you can’t do.
Merry Christmas everyone! Hope you all enjoy this holiday season. Like most of you, I will be spending Christmas with family and friends. But come the New Year, I will be spending a week with complete strangers. Here’s my story:
I will be a volunteer lawyer on a week-long assignment in an immigrant detention center near the Texas-Mexico border. I will be helping asylum seekers advance their claims. I will help them present evidence that they have a credible or reasonable fear of returning home because their safety or lives are threatened there. The fear cannot be simply economic. It has to be a fear of persecution based on their ethnicity, religion, nationality, political opinion, or membership in a particular social group.
It’s not an easy claim to win. As anyone who follows the news knows, our borders are now crowded with refugees, mostly from Central America. Some politicians have painted these refugees as evil. Although there may be a criminal here and there in the group, the vast majority of refugees consist of simple, poor, and desperate families seeking safe harbor. And unfortunately for them, most of their asylum claims will fall on deaf ears. Their “reasonable fear” of returning home will not fit within the narrow confines of asylum law.
Most lawyers, whether they make their living representing personal injury victims or others, have a few heroes who inspire them to fight the good fight, to go above and beyond, and to be courageous warriors for their cause. We at Michaels & Smolak are no different. So let us tell you about one of our heroes, George Michaels.
To tell the George Michaels story, we need to take a walk through the New York State Equal Rights Heritage Center (located right next to the historic William H. Seward museum and about a mile from the Harriet Tubman home, in our home town of Auburn, New York), which had its grand opening on November 13, 2018. The Center celebrates New York State’s progressive history of promoting social and equal rights by luminaries such as Harriet Tubman.
As we start our tour, the first thing we see is a seven-and-a-half-foot commemorative statue of Harriet Tubman, which adorns the entrance.
I hate to break it to you, but despite all the cute auto insurance ads on TV, insurance companies are not “nice guys”. At least not if you were injured through the negligence of their insured. You have to understand this very important fact right from the get-go: In personal injury litigation, insurance companies are not your friend. They are not a “good neighbor”. They are not a cute little lizard. They are not “by your side”. You are not in “good hands” with them. They are a business. Their business is to pay you as little as possible on your claim so they can yield a bigger profit.
Case in point: Last week I settled a case for a woman who fell off a horse at a local riding stable during a riding lesson in upstate New York (near Syracuse). It was her first time on a horse. The saddle spun around while she tried to mount, throwing her to the ground, where she suffered a serious femur fracture. Turns out she weighed more than the saddle setup could handle. The stable owners knew it, but failed to warn her. Here was the original position the insurance company took (you need to click the image to read it):
After we got that letter, we sued the stable owners. We then took the deposition testimony of the owners and witnesses. The insurance company lawyers then asked the trial judge to toss out our case because our client had “assumed the risk” of horse riding lessons, and had signed the waiver. The trial judge dismissed our case. We then appealed to the appellate court in Rochester, New York, got the trial judge reversed, and the case reinstated. Last week, at a mediation, we settled the case for $130,000, which by the way was the amount of money we always thought the case was worth.
Yesterday there were lots of smiles on the sidewalk of East Genesee Street, Auburn, NY, just outside the office of Michaels & Smolak. The reason? Our back-to-school backpack giveaway. We loaded up the new backpacks with all kinds of school goodies and supplies. Live radio coverage was provided by Mix 98.5. For a full hour they came, lined up, chose their backpack, and left with a smile. Most takers were single parents or grandparents with their kids. It was so great to see smiling kids pick out their backpacks. Shout out to Catholic Charity volunteer Ellen Wayne and Angelo DiAngelo of Angelo’s Pizzeria (free pizza)! Check out our photos below:
I 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.”
Michaels & Smolak has several connections with the Auburn Maroons hockey team: (1) We are financial & broadcast supporters; (2) our law partner Dave Kalabanka is the father of goalie Jack Kalabanka; and (3) we love to win in Court just like the Maroons love to win on the ice!
And now we have even another reason to be proud of “our boys”: On Monday evening, at the Onondaga County War Memorial, Auburn defeated Clinton Warriors 5-1 to take the Division II section 3 final. Among the hundreds of exuberant Auburn players and fans who filled the ice in pan-demonic celebration were M&S partners Dave Kalabanka (proud father!) and Jan Smolak (proud supporter!).
“I’m just ecstatic to see this team make it this far” said Dave Kalabanka. “I have followed these kids for years. I know their capabilities. There is so much potential to be harnessed. I don’t think they realize just how good they can be with the right focus. They are a great bunch of kids. They are everything we want our kids to be: Hard-working, dedicated, spirited, respectful of each other, and with a never-give-up attitude. They so deserve this win!”
Since I am a New York personal injury lawyer, you might think I never met a personal injury case I didn’t like. Nothing could be further from the truth. I reject more injury cases than I take. One reason I reject so many is that injuries are often caused by no one but the injured. They sometimes try to blame others when there is no one to blame but themselves. When that happens, obviously, there is no one to sue.
One thing I have learned in this profession is that, if there is a way to get hurt, some people will find it. Mostly guys. Some guys just live kind of dangerously. And I am one of those guys.
I have gotten injured through my own male stupidity many times. Here’s one more to add to my long, painful record.
Everyone knows you can get injured when you get into a motor vehicle, operate dangerous equipment, or climb up on a scaffold at a work site. The risk of a serious physical trauma (impact) is inherent in all those activities. I have represented countless victims of such accidents.
But sometimes big injuries can also result from small traumas. For example, I once had a client who suffered a serious injury when one of those drive-thru bank teller windows closed on her hand as she was reaching in for her money. The glass window closed on her hand fairly slowly, and only bruised her hand. But the bank customer later developed a very serious injury known as RSD (Reflex Sympathetic Dystrophy), also known as complex regional pain syndrome, a rare disorder of the sympathetic nervous system characterized by chronic, severe, permanent pain.
Who would have thought that such a minor trauma could cause such a serious condition? Even so, under principles of New York injury law, if we could prove that the bank teller negligently closed the window on my client’s hand, my client was entitled to full compensation for her RSD.