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Articles Posted in Settlements

This is the third part of the 5-part blog series about the pitfalls of trying to settle your own New York personal injury claim without a lawyer. Here’s pitfall number 3:

3. DON’T BELIEVE THE INSURANCE ADJUSTER WANTS TO HELP YOU. She (or he) doesn’t. She wants to get you to settle for as little as possible, fairness be damned. Her job, especially if she knows you have no lawyer, is to try to get you to sign something called a “release”, which puts the nails in the coffin of your case, for peanuts. The adjuster might seem nice, friendly, kind. And maybe she is, in real life. But this is not real life. This is business. And her business, sorry to be so blunt, is to screw you.

Don’t befriend her. Figure out what your claim is worth and convince her to pay you that amount, and if she won’t, tell her you will hire an experienced New York personal injury lawyer to get it in court (problem: She probably won’t believe you, though, since you have managed to avoid hiring a lawyer up to this point).

This is the second part of the 5-part blog series about the pitfalls of trying to settle your own New York personal injury claim without a lawyer. Here’s pitfall number 2:

2. DON’T SETTLE TOO SOON. Would you buy a house without carefully examining every room? Of course not. So why would you settle a case without having walked through every “room” of your injury? If you are still having problems, still hurting, still getting medical treatment, then you still have not visited the “rooms” of your injury that await you in the future. What will your body feel like in a year? Will you have a permanent limitation? Will you need surgery? You haven’t visited those “rooms” yet. You can’t visit those “rooms” until you let your injury “play itself out”, and this may take longer than a year, especially if you are seriously injured. In most cases the New York personal injury statute of limitations is 3 years (but this can vary, which is another reason why you need a New York personal injury lawyer!).

So remember, WAIT TILL YOU ARE DONE TREATING BEFORE YOU EVEN CONSIDER SETTLING.

This is the first o a five-part blog series about the pitfalls of trying to settle your own New York personal injury claim without a lawyer. I don’t recommend that anyone actually do this, without at least first consulting with a New York personal injury lawyer. In rare cases, I have recommended to accident victims that they settle their claim on their own so as to avoid paying me a 1/3 contingency fee. But that’s only when the injury is minor, has totally healed, and there are no complications such as “liens”. Otherwise, having a New York personal injury lawyer represent you will almost always “pay off” because the settlement will be enhanced by far more than the 1/3 fee.

But if you want to throw all caution to the wind and settle your own claim without even consulting with a personal injury lawyer, at least try to avoid making these common do-it-your-selfer mistakes:

1. DON’T GIVE A RECORDED STATEMENT. The insurance adjuster will seem friendly, compassionate. He or she will say, “we just want to know what happened so we can pay your claim. Can we record a statement from you”? If you say “yes”, you just fell into a trap. That recorded statement, which you believe represents the total “truth” about what happened, is likely to boomerang back and hit you in the back of the head. The insurance adjuster will rely on portions of your recorded statement, which she will call “admissions”, to low ball your settlement offer, or worse yet, the insurance company lawyer will use your “admissions” to cross-examine you at trial. You, of course, won’t know what hit you because you believe there was nothing “wrong” with what you said. But there almost certainly will be. The insurance adjuster is very good at getting you to say the wrong thing.

I just read about the Federal Appellate Court Decision deciding that the Winklevoss twins, who famously sued Facebook founder Mark Zuckerberg claiming he had “stolen” their idea for Facebook, could not undo their settlement with Zuckerberg and go after him for more money (they settled for only $64 million). The twins alleged in the suit that Zuckerberg defrauded them in the settlement by not disclosing the true value of Facebook. The Appellate Court was having none of it. The Court pointed out that the twins were represented by a lawyer, and they signed a release releasing Zuckerberg forever from any liability to them.

I know what you’re thinking — what does this have to do with New York personal injury law? After all, isn’t that what this blog is about? How the heck is Bersani going to tie the Facebook decision into his Central New York personal injury lawyer blog?

Glad you asked. There’s a lesson in this case for all New York personal injury lawyers, but especially their clients: Very, very carefully consider a settlement before you sign a release. If your signature is on it, it is going to be extremely difficult, if not impossible, to undo it. You can scream all day that you didn’t read it, you didn’t understand it, your lawyer tricked you into signing it, your lawyer gave you bad advice, the other side did not tell you all the facts, etc. But in all but the rarest of instances, you will be stuck with it.

What do health care insurance policies, such as Excellus Blue Cross Blue Shield, and others, have to do with New York personal injury settlements? Maybe nothing. Maybe. Let me explain.

If you are an insomniac in need of sleep, you might decide to pull out your health care insurance policy and read it. I guaranty that it will put you to sleep, and probably even before you get to the part, buried deep within it, that says the insured (that’s you) agrees that should you get injured through the fault of someone else, and get a settlement or a judgment against that other person, you will have to reimburse the insurer (that’s them) for all the medical costs they paid for treatment of your injury.

In other words, say a dog bites you, you sue the owner, and then settle with the dog owner’s homeowner’s insurance for $100,000. But Blue Cross Blue Shield has paid $10,000 in medical bills related to the dog bit. BCBS will claim a “lien” or a “right of subrogation” against the settlement to the tune of its $10,000.

Mystified by how a New York personal injury lawyer knows how much a case should settle for? Let’s demystify the process. I’ll walk you right through it!

The first step for determining the settlement value of a case is to wait. We have to wait until either the client is either done treating or has reached “maximum medical improvement”. When that happens, we can look back at all the client have been through and decide what the pain and suffering is “worth”. Also, at that time we will know whether the client has any “permanency”, meaning whether she is going to continue to suffer for the rest of her life. If her doctor says the condition, pain, or disability is “permanent”, then we can claim pain and suffering compensation for the client’s natural lifetime.

The next step is to look at what other juries have awarded people with similar injuries. We can figure this out both by looking at past verdicts we have gotten in court for our clients, and also by cases we have read about. All lawyers in our office read religiously a weekly publication called the “New York Jury Reporter” which describes in detail plaintiffs’ injuries and what juries have awarded for them.

I just settled a Syracuse New York workplace injury case today for $1,000,000. It was a fair settlement. Because of some Labor Law violations, my client fell off a scaffold at a construction project in Syracuse. He landed on his feet, and his lower back suffered what is known in the medical community as a “spondylolysis” (a small fracture in the pars of the vertebrae) which later developed into a “spondylolystheisis” (the small fractures caused one of the discs to slide relative to the disc below, narrowing the spinal canal, and causing impingement).

Like I said, the settlement was fair. We used a mediator in Rochester. It took just about all day to hammer out the settlement. But in the end my clients were happy with it.

The case was scheduled for an Onondaga County personal injury jury trial in just a little over two weeks. For me that means that I was already prepared to try the case. I knew the case backward and forwards, and had my arguments all set to present to the jury.

My last blog was about ADR (Alternative Dispute Resolution), such as mediation and arbitration, which is, to a certain extent, replacing jury trials as a way to resolve personal injury lawsuits in Syracuse, Central New York, and, in fact, just about everywhere else. Here’s a recent example of how ADR works from my own case load.

I am scheduled to try a Syracuse fall-from-scaffold lawsuit in about 3 weeks. Meanwhile, the defendant’s insurance carrier has invited me to try to settle the case through “mediation” first. After I explained how this works, my client agreed to it, and we will be at the mediation table in about a week. If we don’t settle at the mediation, I will have only a few weeks to prepare my trial, which is not enough time. I really need 6 weeks! So I am already preparing my exhibits, my direct examinations, my cross-examinations, etc., in case I need to try this Syracuse construction accident lawsuit.

The case may or may not settle at mediation. Much of that depends on how reasonable the insurance carrier will be. If the case settles in mediation, I won’t feel bad about having spent so much time preparing for trial. I always learn by preparing for trial. It makes me a better lawyer.

Syracuse New York personal injury jury trials are fewer and farther between than only a decade ago. The same can be said for all Central New York personal injury jury trials. In fact, the same trend is being noted throughout the entire State, as well as the other 49 States. Read about it for yourself, but clicking here and here. All civil jury trials are down in numbers, everywhere.

Let’s be clear; although the number of lawsuits filed has remained steady over the last decade, fewer and fewer of those lawsuits are going to trial. Here’s a vivid demonstration of the trend: In 1962, more than 11 percent filed civil lawsuits in federal court went to trial. By last year, however, that percentage had dropped to 1.8.

If almost 98% of personal injury lawsuits are not going to trial, what is happening to them? Many of them are being resolved by “alternative dispute resolution”, (known as “ADR”). In some areas, ADR has overtaken trials as the predominant way to resolve personal injury lawsuits as well as other types of civil disputes. ADR consists mainly of “mediation” and “arbitration”. “Mediation” is a non-binding settlement procedure where a neutral “mediator”, usually a lawyer or a retired judge, tries to bring the parties to a reasonable settlement that is acceptable to both sides. “Arbitration” is an informal hearing where a lawyer or retired judge hears the case, and decides it, but the formal rules of evidence, such as the bar against hearsay, don’t usually apply.

Being a New York personal injury lawyer has its perks! A client took me out to dinner the other night. It was a fine meal at a great Geneva New York restaurant, Port’s Café. The restaurant is only about a mile and a half from where my client’s tragedy happened 3 summers ago — his wife was hit and killed by a tractor trailer as she crossed routes 5 and 20 on foot, in a crosswalk, in the City of Geneva.

The dinner was a kind of celebration. We had settled his Geneva New York wrongful death case after almost three years of intense litigation, which included the filing of two lawsuits, and the taking of many depositions. And although no amount of money could ever replace the loving wife he lost, he had finally found peace. He felt that at least a measure of justice had been done. We had made them pay! To him, the money meant they had finally accepted responsibility for the accident after years of denial.

Because the wrongful death settlement was for a substantial sum of money, and my client does not need the money at this time (he has a good job and no children to support), I suggested he should consider a “structured settlement“. A “structured settlement” is an insurance or financial agreement in which the plaintiff does not take the entire settlement from the insurance carrier in “a lump sum payment” right away, but instead forgoes immediate payment of at least some of the money, which he will receive later in “periodic payments” (usually monthly). A structured settlement is usually created through the purchase of an “annuity“, which guaranties future periodic payments at a fixed amount over a fixed period of time, with interest added in so that you end up with more money.

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