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Meet my future client.

This week a New York judge granted two chimpanzees a hearing to challenge their confinement at Stony Brook University. Well, actually the judge granted the hearing to the chimps’ lawyers, who are said to be a bit more articulate than their clients.

The action was brought by “show cause order” on behalf of the chimps. This order, signed by the judge, requires the University to demonstrate why the chimpanzees should continue to be confined. The judge has not yet decided whether the chimps will get released.

Extra, extra read all about it: West Virginia woman files lawsuit against Walt Disney Corporation claiming Disney planted a rubber chip in her body without her knowledge or consent!

She filed the complaint last month in Kanawha Circuit Court, West Virginia. The lady is seeking for monetary damages and for the chip to be removed from her body. Can you blame her?

She is representing herself.

I came across this lawyer advertising billboard on the web and couldn’t convince myself NOT to post it on my blog. So now I have to justify posting it. I am going to somehow tie this sign into New York personal injury stuff. Just wait and see!

When you think about it, the sign is not just funny, or a sad statement about sleazy lawyering, it is actually true. You may have done the act you are accused of doing, but nevertheless be “not guilty” of the crime for a variety of reasons. For example, Bob Marley may have shot the sheriff, but if it was in self-defense (or if he was insane, or if the gun went off by mistake) there may be no “crime”.

When deciding whether a defendant committed a “crime”, the law looks not only WHAT he did but WHY he did it. What was going on in his head as he did the act? That’s what lawyers call “the mens rea“, i.e., the mental state. If the defendant kills someone deliberately with premeditation, that’s a more serious crime than if it was just careless. And if it was in self-defense, then it was no crime at all.

A spurned man was recently on trial for posting threats against his ex on FACEBOOK. His defense? The “threats” were just a joke, and she should have known it. To support this claim, he pointed to certain emoticons (a facial glyph, used especially in e-mail and online posts, indicating an emotion or attitude) that accompanied the “threats”. For example, there was one of a face with a tongue sticking out. This emoticon meant the “threats” were in jest, he claimed.

The prosecutor wanted the threatening posts “read” to the jury, but the man’s lawyer – wisely – wanted to bar any open court “reading” of the posts. He wanted the jury to only SEE the posts so they could take into account emoticons. The man’s lawyer argued that it would be unfair to merely read in court the posts because the accompanying emoticons could not be “read” aloud. The jury would hear the “threat” without “hearing” the accompanying (and mitigating) emoticon. The posts had to be SHOWN and only SHOWN to the jury!

The lawyer had a point. Certain forms of writing — like repeated question marks (“???”), distorted words (like “soooo”) and emoticons — can’t be reliably or adequately conveyed orally. To do so distorts the meaning.

I don’t do criminal law. I’m New York personal injury lawyer. But I came across an interesting article about a controversial way to avoid getting “busted” at a sobriety checkpoint. This is criminal defense lawyer stuff. I am not recommending this, or even saying I agree with it. But I just find the technique interesting and wanted to pass it on to my readers.

Here’s how it works: As you approach a sobriety checkpoint (a/k/a drunk trap), put your license, registration, proof of insurance and a “note” like the one depicted above in a plastic baggie attached to the exterior of your driver’s side window and then roll up the window as you approach the checkpoint.

Then just remember to shut up. Don’t answer any questions. Don’t talk. The officer outside won’t be able to say he smelled any odor of alcohol from behind your closed window, nor will he be able to say he heard you slur words (if you keep quiet). The cop will thus have no “probably cause” to arrest you.

New York State has a new rule — §202.5[e] of the Uniform Civil Rules of the Supreme and County Courts — requiring attorneys to omit or redact “confidential personal information” from court-filed papers. The “confidential personal information” includes social security numbers (except the last four digits), the dates of birth (except for the year), the full name of a minor (except for the minor’s initials), and financial account numbers (except the last four digits). Compliance with the new rule is voluntary until Feb. 28, 2015 at which point it becomes mandatory.

Why this new rule? Identity theft, a growing problem. Identity thieves might conceivable go to the Courthouse or County Clerk’s office to peruse publicly available litigation papers in search of enough personal identifying information to get a hold of bank accounts, etc. Further, court-filed papers are soon going online, which will make identity theft even easier.

This new rule makes perfect sense. New York personal injury lawyers like me often file in courthouses and county clerk offices “motions” attaching “pleadings” and deposition transcripts, which traditionally contained private identifying information (client’s date of birth, ss number, etc). At Michaels Bersani Kalabanka we have been proactive in protecting our clients’ personal information. For several years now we have refused to disclose our clients’ social security numbers in any “pleadings” or other publicly filed documents. When we are required to disclose such information to our opponents, we do so “off the record” so that the information won’t inadvertently show up in any public filings.

A good personal injury trial lawyer is a good story teller. That’s what it takes to win a trial. A trial is really about competing stories. Whichever side tells the best, most compelling, and most believable story, wins.

That’s why a good personal injury trial attorney shuns boring power point presentations with bullet points. Charts, graphs and bullet points are ok to a certain extent. But they had better be quick, colorful, and add to the story.

Why are stories so powerful at persuading juries? That’s just the way us humans evolved. Ever since we learned to speak we have been sitting around the fire telling stories that explain everything: The beginning of the universe, the cause of thunder, the creation of us humans. We are hard-wired that way. Our brains “perk up” when we start to hear a story. We pay attention. We get emotionally involved.

Last Friday I argued an appeal in the Second Circuit Court of Appeals at 40 Centre Street in Foley Square in downtown Manhattan. I had not done that I quite a while (a decade?).

When you are used to arguing appeals in State court, a Federal appeals court is somewhat intimidating and awe inspiring. But what first impressed me was the security. It is much stricter even than an airport. I flashed my attorney I.D. to the guards, fully expecting to avoid having to subject my possessions to scanning via the conveyer belt. I was wrong. My attorney I.D. was worthless in that Courthouse. Worse, I was told I had to leave my I-pad, I-phone or any other electronic device with Security. No exceptions.

My heart raced! I had my Brief, my notes, and even the entire Record on Appeal for my case in my I-pad. Then I remembered I had outlined my arguments the old-fashioned way on a yellow legal pad, too. I checked to make sure the yellow pad was in my brief case. Whew! It was there.

When I started writing this blog a few years ago, I’ll admit I was fishing for new cases. I figured that since the internet was where more and more potential clients were looking for New York injury lawyers, blogging about New York injury cases would bring those surfers to my portal. They would then pick up the phone, call me, and – voila – a new case!

Well, I was wrong. I have not gotten a substantial number of direct new cases from this blog. Every once in a while, yes, I do get a case from my blog posts. But that’s not a significant part of my intake. I still get most of my cases from my traditional sources: referrals from prior clients, word of mouth, and from a network of very loyal referring attorneys who love our work product.

So why do I keep blogging? Good question. Let me think about that. Hmm. Ok, I have the answer: I have actually come to enjoy it, at least when I’m not too busy with my cases. And I do get a lot of emails about my posts, sometimes from prospective clients, sometimes from other lawyers. I enjoy discussing the issues raised in my blogs with these folks.

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