Articles Posted in Settlements

JanSmolak
Congratulations to my partner, attorney Jan Smolak, who recently settled a Syracuse personal injury case in mediation for a confidential amount above seven figures. Although we are not at liberty to discuss the details of the settlement, nor any of the specifics regarding the injury (we signed a confidentiality agreement with the insurance company), nor the exact amount, I can say that Jan, once again, did an outstanding job.

I interviewed Jan about this result after his mediation.  Here’s what he said:  “My client was very satisfied with the result.  As usual, I can’t say much about the case because the insurance company insisted on a confidentiality agreement.  But I can say this:  The settlement was a win for our client.  She is very happy with the result.  And that’s my definition of winning.” 

Why did the insurance company insist that the settlement be “confidential”?  This happens a lot with large settlements. Insurance companies worry that, if word gets out that they have paid out a significant sum of money on one case, plaintiffs with similar injuries in other cases against them will hold out for more money and refuse to settle for less.

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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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In this Syracuse NY Injury lawyer’s last blog post, I talked about how, in most cases, a New York personal injury victim will end up with a much larger settlement with a lawyer than without one.  The problem with “going it alone” is that insurance companies will generally low ball” you an offer, hoping you will take it, sign a release, and go away (forever).

But my clients aren’t the only ones who get low balled.  Sometimes insurance company adjusters will “low ball” me an offer, hoping I will want to make a quick buck and move onto the next case.  But at my law firm, we don’t take low ball offers (except in the rare case where our clients won’t listen to our advice and take the low offer).  Although some New York personal injury lawyers regularly traffic in low ball settlements, I am proud to say ours does not.

In my opinion, those that do are typically large law  firms who advertise heavily and need to “churn” their cases to keep the money rolling in to pay their advertising bills.  At my law firm, where the bulk of our cases come by referral from other lawyers, we would rather handle fewer cases and MAXIMIZE the amount we can get for those few but dear clients.  We make our money by working up a few cases rather than knocking off quick settlements on a swarm of cases.

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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):

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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.

law-360-300x182I 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.”

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Just in case you were wondering (and I’m sure you were), the photo on the left is what eleven years of litigation looks like.  I have blogged about this case before:  It took me eleven and a half years to finally get justice for nine Guatemalan and Mexican migrant farm workers who were injured in a big explosion in upstate New York.

The picture on the right was taken in a hotel in Guatemala where I brought the men to sign settlement papers and open bank accounts.

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As a New York personal injury lawyer, my job is to fight my hardest on behalf of each and every one of my clients.  And so I do.  But I would be lying if I said I liked all my clients to the same degree.  Just like teachers have their “pets”, lawyers have their favorite clients.  You are looking at some of my favorite clients ever in the photos above.

The seven men shown in these photos all came into the USA illegally and worked here illegally, too.  Some of you who are reading this will now instantly dislike them.  Please don’t.  Please forgive them for breaking a few rules.  They are not criminals, rapists or murderers (as some politicians will have you believe).  They are simple peasants with only second or third grade educations who needed to support their families back home in Guatemala and Mexico.

Once here, they worked brutally long and hard hours in upstate New York’s vegetable fields from spring to summer, and then in Florida’s orange groves in winter.  They were sending almost every penny they earned back home to feed small hungry mouths.

money handshakeI know I have blogged about this topic before, but after several years of blogging, you can’t help but repeat yourself sometimes.  Still, every time I discuss some aspect of New York personal injury law, I tackle it from a slightly different angle.  So here goes.

When will your New York personal injury lawyer try to settle your case?  Well, if he knows what he is doing, not until it is “ripe”.  When is it “ripe”?  It depends.  But the most important factor is whether your injuries are still receiving active treatment aimed at healing you.  If that is so, then you have not reached “maximum medical improvement”, also called “MMI”.  Your case is not “ripe”.

We personal injury lawyers don’t want to settle before you have reached MMI because as long as there is still some hope of your injury improving, the insurance adjuster will argue that you can still get better, and so she won’t pay the full value of your likely future pain and suffering, lost income, medical treatment, etc.  But if we wait until your doctor has documented MMI, then we can claim all the future pain and suffering and other damages, since reaching MMI means that any symptoms you still have are there for good.

ladywithdollarbillI just read an article in the New York Times about a woman charged with stealing her 11-year-old daughter’s medical malpractice settlement to pay for liposuction, a “tummy tuck” procedure, online shopping, plane tickets, restaurant bills – you name it. She was using her child’s settlement money like her own private piggy bank!

The settlement was for medical malpractice that had left the child with severe, lifelong limitations in the use of her right arm.  The settlement was “structured” so that the victim would get payments every five years or so starting at age 18. She’ll need the money because of her severe income limitations! (We at Michaels & Smolak have set up countless structured settlements like this one for injured children.)

But some $67,000 of the money was placed in a judicially protected savings account. Such a court-approved account is set up for the child to access – with accrued interest — when she turns 18. A parent can withdraw money from the account on behalf of the child before the child turns 18, but only for important educational or medical needs of a child, and only with a court order. To access the money on behalf of her child, a parent would normally seek the judge’s approval, and then present a signed court order to the bank to make whatever withdrawals the judge has approved. (We at Michaels & Smolak have also set up countless court-protected bank accounts like this one for injured children).

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