Articles Posted in Settlements

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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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Here is a letter I recently wrote to a client who suffered a serious injury caused by the negligence of the State of New York.  I’ll call my client “Joe”, though that’s not his real name:

Dear Joe:

jury verdictHere at Michaels & Smolak, on any given day, you are likely to find, on our attorneys’ desks, piles of dog-eared, highlighted, and marked-up volumes of the New York Jury Verdict Reporter. The Reporter summarizes jury verdicts on a weekly basis from around New York State. (Actually, this publication is now called “VerdictSearch“, but old-timers like me, and most New York personal injury lawyers, still call it the “Jury Verdict Reporter“.)

Why do we read it?  To help us represent YOU in YOUR CASE.  True, every case is different, including yours, so the New York Jury Verdict Reporter provides only limited guidance.  Every case, including yours, has a unique set of facts, lawyers, and jury members. All of these variables can and do affect the result of a case. Therefore, in one sense, the result of a single case reported in the Jury Verdict Reporter literally tells us nothing about how your case will end up.

But if you keep reading the jury verdict reports week after week, as we do, certain patterns emerge that are very helpful to both predicting the result of, and guiding our handling of, your case. Here are five main lessons that come out of the jury verdict reporter:

2010-thumb-250x171New York personal injury lawyers like me get this question all the time. The answer is complex, but explaining complex things to judges, juries and clients, is what we do for a living. We are essentially in the “communication” business. So here goes:

  1. Most often it is not a good idea to settle your claim until you are done treating or at least until your doctor can render an opinion on what – if any – permanent injuries you have. This often takes a year or longer. Insurance adjusters won’t give you anything for “permanent” injuries until your medical records make it clear that they are permanent. This can usually happen only a year or longer after your injury, or even longer if the injuries are very serious.
  2. If the insurance adjuster is disputing “liability”, that is, he or she says  the defendant was not at fault, or that the accident was partially your fault, the case may take longer. We may need to sue.  Only by suing can we take depositions.  Once we nail down the defendant’s and witnesses’ sworn testimony at deposition, we can show the insurance adjuster the accident was all defendant’s fault.  If there is still a dispute about liability after depositions, we may have to go to trial to prove we are right. This judicial process takes months or even years!

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