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Articles Posted in Lawyers

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Our senior lawyer, Lee Michaels, has been teaching trial practice at the Syracuse College of Law for decades.  Many of Lee’s former students keep in touch with him well into their law careers.  Lee continues to mentor many long after they have graduated.  Recently, Lee got a letter from a student, Steve Kim, who took his class nine years ago.  Here it is, abridged somewhat.  We publish it with the Kim’s permission.  At Michaels & Smolak, we are all proud of our senior trial lawyer’s achievements not only in the courtroom but in the classroom!

Dear Lee,

I was a student in your trial practice class nine-years ago.  I write to you to thank you for teaching the single most impactful class of my entire career. Although I lost most of my law school notes, books, and outlines– I held on closely to my trial practice binder and always made sure I knew where it was.

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I sue for a living. I say that with pride.  I help injured folks get compensation from wrongdoers.  But when the wrongdoer is the Government, it gets tricky. And when I say “the government”, I mean not just “THE” Government, but all the cities, towns, counties, school districts legally deemed subdivisions of the State of New York. On the road to victory against such defendants lies a minefield of bombs.

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The procedural requirements for suing the government are rigorous.  On the way to the finish line, government lawyers will be watching for your mistakes.  But not just watching.  Slung across their wool suit jackets, they carry a quiver packed with sharp arrows, legal defenses that are available only to government entities.

Why is suing the government so hard?  Because the legislature has deliberately set up an obstacle course between the injured victim and government money.

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We are proud to announce that once again all four lawyers in the Michaels & Smolak team have been selected by other New York lawyers and New York judges for inclusion in “Best Lawyers in America”. The 2020 edition of the publication names all four partners, Lee Michaels, Jan Smolak, Mike Bersani, and Dave Kalabanka “Best Lawyers” in the Syracuse metropolitan area for representing injured plaintiffs in three categories:  Personal injury, professional malpractice and products liability. Senior partner Lee Michaels has been named in the publication for decades, and the other partners have been included since 2012.  All four lawyers have argued and tried personal injury and malpractice cases in courts all over Upstate New York, and each of them have settled or received multi-million dollar verdicts. Lee Michaels, the firm’s senior partner, says, “I am very honored that the law firm my father started decades ago is considered one of the best of the best in Upstate New York for personal injury practice.”  Dave Kalabanka, another M&S partner, responded to the news, saying, “folks who are injured through the fault of others often come to us in desperate economic circumstances, hoping we can save them from ruin. And more often than not, we do save them.  Getting justice for our clients is its own best reward.  But this continued recognition from our peers is great to have.”  M&S partner Jan Smolak noted that “being top-ranked in a publication like Best Lawyers is not only good for us, it’s good for our clients.  Our reputation breeds more success for our clients because the lawyers and insurance adjusters we are up against can see that we are tough and successful, and they are thus more likely to want to settle with us for larger amounts so as to avoid trial”. The American Lawyer magazine describes the Best Lawyers publication as “the most respected referral list of attorneys in practice.”  All four lawyers at Michaels & Smolak are also named in “Super Lawyers”, another prestigious directory of top lawyers.

Mike Bersani

Email me at: bersani@michaels-smolak.com

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After decades of dealing with insurance adjusters in personal injury cases, this Syracuse personal injury attorney has come up with his personal list of do’s and don’ts in his dealings with them.  I published my first two rules yesterday here.  Below are the last three rules for dealing with a personal injury insurance adjuster:

Rule # 3:  Know the Medical Records Better than the Adjuster

When adjusters calls me, I often put them into voicemail so I can review the medical records and highlight the key facts before speaking to them.  I then call them back with the highlighted records in front of me.  Now I am ready to talk.  That’s because adjusters often have a “cherry-pick” method of discussing a case.  They take only selective quotes from doctors that supports their position that the injuries are not so bad.  But it won’t work with me.  I am ready to cherry-pick back at them.  The adjusters will quickly see I am no pushover and they are going to have to deal with me, and with ALL the medical records, not just their selective reading of them.  Believe me, it’s worth the effort.

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After decades of dealing with insurance adjusters in personal injury cases, this Syracuse personal injury attorney has come up with his personal list of do’s and don’ts in his dealings with them.  Check my five hard-and-fast rules here:

Rule #1:  Do Not Allow Your Client to Give a Recorded Statement

This is rule number 1.  It’s hard for me to figure out why insurance adjusters keep asking for this.  I can only assume it’s because some personal injury lawyers are dumb naïve enough to allow them.  The adjusters try to sell the recorded interview by telling you that, once they have it, the case is more likely to settle.  They will say it will help them assess liability and your client’s credibility.  As long as your client is truthful, what have you got to lose?

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As a New York personal injury lawyer, I know that words are weapons.  When I prepare to try a personal injury lawsuit, I arm myself with the word-weapons I will parade before the jury.  They are arrows in my quiver.  I carefully pick them, and fine tune, and then deploy them.  I am the general, the commander, and they are my infantry, my soldiers. Below I will give you some examples of how I choose and deploy my soldiers for battle.

But before I do, let me tell you that words are also my enemies.  Certain words will forever be banned from my trial lexicon.  The prime example is the word “accident”.  Whether my client was injured in a car collision, or in a scaffold collapse, or slipped and fell in a supermarket, you can sit through the entire trial and never hear the word “accident” spill out of my lips.  I will never say “car accident”.  I will say “collision” or “crash”.

Why?  The whole premise of a personal injury trial is that the plaintiff’s horrific injuries were no “accident” at all.  They were caused by the NEGLIGENCE or CARELESSNESS of the defendant.  The word “accident” implies that no one is to blame.  An accident simply happens.  In popular jargon, this is expressed as , “s_ _ _ happens”.  The whole point of my personal injury trial is to prove that s_ _ _ did not just “happen”.  Rather, the defendant MADE it happen by CHOOSING to cut corners, not pay attention, allow himself to be distracted, or whatever.

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Becky Kinney                                                           Michel Tortorello

This Syracuse/Auburn NY injury lawyer is proud of his staff!  Before I tell you why, let me give you a little background.

First, working in a New York personal injury firm, whether in the Syracuse area or elsewhere, is stressful.  Litigation can be intense.  The pressure to get papers out on time, and in perfect order, is sometimes overwhelming.  When an attorney is about to go to trial, reams of binders, exhibits, and copies must be produced.  And you know who gets stuck with all that hard work?  The lawyers?  Hell no!  Staff.  And who has to deal with a stressed-out-on-edge lawyer?  Staff.

thumbs-up-e1558988680142-200x300I get calls and emails all the time from people seeking a New York personal injury lawyer.  One of the first questions I ask them is, “have you talked to any other lawyers”?  Often the answer is yes.  That’s a bad sign.  I am usually going to turn that case down. If other New York personal injury lawyers have rejected the case, chances are there were good reasons.

So my next question is:  “Why did those other lawyers turn your case down”?  Common answer:  “They said I have a good case but they are too busy to take it”.  Yes, many lawyers will claim they are “too busy” to take a case to avoid having to explain to a caller what is wrong with their case.  “Too busy” is just two words.  It takes two seconds.  Explaining why the case is no good involves a dialogue and some explaining.  Most lawyers don’t have the patience for this so they opt for the “too-busy” excuse.

At my law firm, we are different.  When we turn a case down, it is never because we are “too busy”.  No New York personal injury lawyer in his right mind would turn down a case for that reason.  In our view, it is dishonest to turn a case down for that reason.  If it is a good case, any New York personal injury lawyer worth his salt will take it.  A lawyer is never “too busy” to take a good case, only a bad case.

Happy New Year’s readers!   In my last blog I talked about my New Year’s plan to volunteer on a week-long assignment in an immigrant detention center near the Texas-Mexico border. I was to help asylum seekers advance their claims.  Not really in my wheelhouse, since I am a New York personal injury lawyer.  But I speak Spanish, and am married to a Guatemalan, and wanted to help out with all the Central Americans claiming asylum on our border right now.  I am writing now to report that my efforts were successful.  Here is an article by a reporter at the Finger Lakes Times about my journey.  Thanks for reading!

Mike Bersani

BORDERLINE: PART II: Freedom fighter

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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.

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