Articles Posted in Lawyers

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I am writing this post mostly for my fellow attorneys, but non-attorneys might also find it interesting.

One of the differences between a seasoned litigator and a novice is the ability to take total control of the witness, both at deposition and at trial.  Inexperienced attorneys, including my former self, often let witnesses run from the question, or take them down irrelevant rabbit holes, or hide behind non-answers.  But as we mature as lawyers, we learn to reign the witness in, to “let them know who’s boss”.  We also learn not to take any crap from opposing counsel.

Here’s a recent example of “taking control” from a deposition I recently had.  I was deposing a corporate witness in a convenience store slip-and-fall case.  She was trying her hardest to weasel out of answering my questions.  Look at how she tries to evade my questions:

thOne thing I love about being a personal injury lawyer (besides all the great jokes that go with it) is that there is always room for improvement.  Yes, that’s right.  Even after twenty-five years of representing injured people against big companies and insurance carriers, I can still learn to do my job better.  Since I can always strive to get better, I never get bored with this job.

Case in point:  Recently a very accomplished fellow New York personal injury lawyer recommended a book to me, “Advanced Depositions”, by Phillip Miller and Paul Scoptur.  The book is designed to teach experienced personal injury lawyers like me additional skills for taking depositions, especially of experts and “tough” witnesses who might be evasive or tricky.

I admit I picked up the book somewhat skeptically, figuring I would already know everything in the book and that it would be a mere “refresher” course for me.  But I was wrong.  I learned some knew techniques for “boxing in” witnesses, for “exhausting” their knowledge on a topic, and for ensuring that the deposition transcript reads well so the jury can easily understand the “points” I scored.  I also learned better ways to make corporate witnesses concede that certain safety rules apply to the conduct of their employees, and even perhaps to get them to admit the rules were broken.

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We did it again!  Once again, Michaels & Smolak has been named in the annual U.S. News & World Report “Best Law Firms” in the practice area of both Personal Injury Law and Products Liability.  Is this a small honor? No it is not. The Michaels & Smolak Law Firm was the only personal injury law firm anywhere between Syracuse and Rochester (not including those two cities) to be named to this nationally recognized 2017 directory of top personal injury law firms in the United States.  Moreover, we are one of only three Syracuse area firms to be ranked in the “first tier” of personal injury law firms in the directory.

Awards are nice.  It sure is great to be recognized for our hard work and success.  But in the end “awards” are not the “rewards” we seek. Winning for our clients is its own reward.

The four Michaels & Smolak lawyers are so proud of our team’s incredible successes over the years.  Hard work and authentic concern for our clients have paid off.  Our support staff is the best!  And of course we could never have reached this high place without amazing referring attorneys and clients who put all their trust and confidence in us. To all of you, we give you our eternal thanks.

thYes, once again all four of the lawyers here at Auburn New York’s premier personal injury and medical malpractice law firm have been included in this most prestigious legal directory, the 23rd (2017) edition.  They have been selected for both the “personal injury” and “product liability” litigation categories.

According to the publishers of “Best Lawyers in America”, inclusion in Best Lawyers is “based entirely on peer-review and employs a sophisticated, conscientious, rational, and transparent survey process designed to elicit meaningful and substantive evaluations of the quality of legal services.” Best Lawyers asks voters – which consist only of other lawyers and judges who are named Best Lawyers – the question: “If you were unable to take a case yourself, how likely would you be to refer it to this nominee?”

The American Lawyer magazine – one of the nation’s preeminent law magazines – describes the Best Lawyers directory as “the most respected referral list of attorneys in practice.”

thWatching the Syracuse University basketball squad get scorched by North Carolina was tough. It seemed that North Carolina just could not miss a shot.  Their three pointers seemed to swoosh in just as easily as their shots from within the paint.  And SU?  They could not seem to even score a foul shot.  Where was the miraculous Syracuse team we saw only a few days ago pull off an amazing come-from-behind victory over number-one ranked Virginia?

Yes, despite playing their heart out, the SU team lost.

Every good personal injury lawyer knows the feeling.  That’s because good personal injury lawyers sometimes try tough cases, where the odds are stacked against them.  They take risks.  And sometimes they lose.

As we approach the end of the year, it is time for the Michaels & Smolak personal injury law firm of Central New York to give out its “Worst Personal Injury Lawyer Advertisement of the Year Award”. This year we have a hands down winner. No need to even talk about a runner up. Not even close. Hold your applause until after you view the winning ad by “The Texas Law Hawk”:

Need I say more?

money doctorDear client: You have been ripped off. No, not by me, silly! By your doctor, by the hospital, by your physical therapist, and by anyone else who has treated you for your injuries. Let me explain.

Your medical providers have been charging me 75 cents a page for your medical records. This money initially comes out of my pocket, but eventually comes out of yours because I charge it as an expense on your case.  The charge reduces your “net” settlement or recovery.

Seventy-five cents a page may not sound like a lot.  But it’s a nickle-and-dime ripoff that can add up to a lot of money if we are ordering hundreds or even thousands of pages of medical records.

best lawyersModesty gets you nowhere.  Sometimes you have to toot your own horn.  (Just ask Donald Trump . . .).  And today we are doing just that:

We proudly proclaim that all four Michaels & Smolak Lawyers – Lee Michaels, Jan Smolak, Michael Bersani and David Kalabanka — were selected by their peers to be listed in a national directory of top-rated attorneys, “Best Lawyers in America”, for 2016. They were listed in the categories of “plaintiffs’ personal injury law” and “products liability law”.

The inclusion in Best Lawyers is limited to the best of the best — based entirely on peer-review (lawyers rating lawyers). According to the Best Lawyers publishers, the way they select lawyers to be listed

just because you did it.pngI 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.

th.jpgA 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.

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