Central New York Injury Lawyer Blog

Let Me Tell You A Story . . . .

November 29, 2014 | by Michael Bersani

A good personal injury trial lawyer is a good story teller. That’s what it takes to win a trial. A trial is really about competing stories. Whichever side tells the best, most compelling, and most believable story, wins.

That’s why a good personal injury trial attorney shuns boring power point presentations with bullet points. Charts, graphs and bullet points are ok to a certain extent. But they had better be quick, colorful, and add to the story.

Why are stories so powerful at persuading juries? That’s just the way us humans evolved. Ever since we learned to speak we have been sitting around the fire telling stories that explain everything: The beginning of the universe, the cause of thunder, the creation of us humans. We are hard-wired that way. Our brains “perk up” when we start to hear a story. We pay attention. We get emotionally involved.

The Joan Rivers New York Medical Malpractice Case.

November 17, 2014 | by Michael Bersani

Joan Rivers went in to the clinic for a routine throat examination and came out dead. She died after she was anesthetized and her renowned medical team took souvenir “selfies” of themselves posing with her. Meanwhile, the doctors did not notice her vital signs trailing off. Fifteen minutes went by. Joan Rivers then went into the cardiac arrest, which deprived her brain of oxygen, which in turn led to her death eight days later.

Investigators have found numerous violations and irregularities during Ms. Rivers’ treatment.

Rivers’ daughter has announced she will file a New York medical malpractice and wrongful death lawsuit against the clinic and the doctors. The allegations will likely include a failure to properly monitor her Propofol – the sedative administered intravenously during the procedure. This is the same drug that Michael Jackson overdosed on.

Central NY Injury Lawyer’s Second Circuit NYC Courtoom Appearance.

November 11, 2014 | by Michael Bersani

Last Friday I argued an appeal in the Second Circuit Court of Appeals at 40 Centre Street in Foley Square in downtown Manhattan. I had not done that I quite a while (a decade?).

When you are used to arguing appeals in State court, a Federal appeals court is somewhat intimidating and awe inspiring. But what first impressed me was the security. It is much stricter even than an airport. I flashed my attorney I.D. to the guards, fully expecting to avoid having to subject my possessions to scanning via the conveyer belt. I was wrong. My attorney I.D. was worthless in that Courthouse. Worse, I was told I had to leave my I-pad, I-phone or any other electronic device with Security. No exceptions.

My heart raced! I had my Brief, my notes, and even the entire Record on Appeal for my case in my I-pad. Then I remembered I had outlined my arguments the old-fashioned way on a yellow legal pad, too. I checked to make sure the yellow pad was in my brief case. Whew! It was there.

How The Massive Airbag Recall Affects Central New Yorkers

November 10, 2014 | by Michael Bersani

If you haven’t heard about the massive airbag recall, you probably don’t need to worry about it because you are living under a rock. As long as you stay down there, and don’t jump into a car, you’re fine.

But for the rest of our readers, we’ve got some news you can use: You may want to switch out your airbags for new ones. The airbags may have the dangerous shrapnel-shooting parts from Japanese manufacturerTakata.

By the way, recent evidence shows that Takata “saw and hid risk in airbags in 2004“. Sound familiar? (hint: think tobacco).

More On Ebola Malpractice . . . And Tort Reform.

November 9, 2014 | by Michael Bersani

I blogged yesterday about who can, and can’t, sue a Hospital for Ebola malpractice in New York. By “Ebola malpractice” I mean a hospital’s failure to timely diagnose and treat the disease, and to take precautions to avoid its spreading.

I determined that in New York the patient and the sickened family of the patient probably could successfully sue.

But in Texas – where an Ebola malpractice lawsuit should be brought — Ebola malpractice suits will almost certainly fail. That’s because Texas is a “tort reform” State. Back in 2003 the Lone Star State passed a Republican-led tort ~~deform~~ reform law that just about annihilated medical malpractice claims. Among other things, the law requires emergency room patients to prove not just negligence but “willful and wanton” negligence on the part of the hospital staff. That standard is tough to prove, but even if you can prove it, you face another tort-reform barrier: Damages caps. In Texas, your pain and suffering damages are “capped” at $250,000 for the hospital and $250,000 for the doctor.

Suing A Hospital For Ebola Malpractice In New York

November 8, 2014 | by Michael Bersani

Let’s say you just got back from a holiday in Liberia, where, unbeknownst to you, you caught Ebola. You turn yourself into your local hospital with stomach pain and a fever. You even mention that you just got back from Liberia. Let’s say the hospital ER folks – unsuspecting of Ebola — prescribe painkillers and antibiotics and send you on your way. Let’s say you end up dying a horrendous death, and that, if the Ebola had been properly and timely treated, you probably would have survived. Let’s also say that you contaminated your entire family, and some friends and associates, who either died or survived the harrowing illness. Oh, and let’s also say the hospital failed to provide the nurses who treated you with proper Ebola protective outfits, and they got Ebola, too.

Who can sue the hospital? The answers might surprise you.

THE NURSES: In New York, the nurses can’t sue because they are barred by workers’ compensation law from suing their employer. All they get is workers’ compensation benefits. That’s 60% of lost wages. In the case of death, their family gets a measly $50,000 in workers’ compensation benefits. No compensation for pain, suffering, grief.

Why I Write This Central NY Personal Injury Lawyer Blog.

October 7, 2014 | by Michael Bersani

When I started writing this blog a few years ago, I’ll admit I was fishing for new cases. I figured that since the internet was where more and more potential clients were looking for New York injury lawyers, blogging about New York injury cases would bring those surfers to my portal. They would then pick up the phone, call me, and – voila – a new case!

Well, I was wrong. I have not gotten a substantial number of direct new cases from this blog. Every once in a while, yes, I do get a case from my blog posts. But that’s not a significant part of my intake. I still get most of my cases from my traditional sources: referrals from prior clients, word of mouth, and from a network of very loyal referring attorneys who love our work product.

So why do I keep blogging? Good question. Let me think about that. Hmm. Ok, I have the answer: I have actually come to enjoy it, at least when I’m not too busy with my cases. And I do get a lot of emails about my posts, sometimes from prospective clients, sometimes from other lawyers. I enjoy discussing the issues raised in my blogs with these folks.

Should You Sue Your Best Friend For Your Personal Injuries? CNY Injury Lawyer Explains.

October 6, 2014 | by Michael Bersani

Scenario 1: You’re a passenger in your mother’s car when she crashes and injuries you (her fault). A year later, you’re still not back to your construction job. Should you sue her? But wait, she’s your MOM!

Scenario 2: Your best friend’s dog bites and mauls you, leaving you with a permanent facial scar resembling a map of Indonesia. Should you sue him? But wait, he’s your FRIEND!

There are two problems with suing a close relative or friend for personal injuries: (1) How your relative or friend might react and (2) how the jury might react.

Can Kevin Ward’s Family Sue Nascar Racer Tony Steward For Wrongful Death?

October 1, 2014 | by Michael Bersani

There has been much ado recently about a Nascar incident in my neck of the woods (Ontario County, New York State) in which Tony Stewart struck and killed Kevin Ward Jr. (See video of the incident above). An Ontario County Grand Jury recently declined to indict Steward. The Grand Jury determined that there was simply no probable cause to believe that Stewart intentionally or even recklessly killed Ward. Ontario County District Attorney Tantillo also announced for the first time that Kevin Ward had marijuana in his blood at a level that would have “impaired judgment”.

So Stewart has been cleared of criminal wrongdoing. But can Ward’s family nevertheless sue him for damages for wrongful death? Such a lawsuit might be in the works. Ward’s mother was recently quoted as saying that Stewart “intentionally tried to intimidate Kevin by accelerating and sliding his car towards him” and that she was considering “other remedies” since no criminal charges will be filed.

Remember the OJ trial? The jury acquitted him of murder (“if it doesn’t fit, you must acquit”) but then the family of Nicole Simpson sued OJ for wrongful death and got a huge verdict. Can the same thing happen here?

Central New York Injury Lawyer Finshes Up Trial

September 30, 2014 | by Michael Bersani

I just finished trying a case in Federal Court in Syracuse. It was an unusual case for me. I normally try only New York personal injury cases. But in this trial I represented a fellow lawyer who got fired from her job as Cayuga County Assistant Attorney. We claimed she was fired in retaliation for taking time off under the Family & Medical Leave Act, which would be illegal. Her employer claimed she was fired for job performance issues. I won’t have a result for several months; the judge reserved decision.

As with any trial, I put everything I had into it. I took this photo after I had delivered my “blizzard” of exhibits to the Courtroom tables. I had to put together and manage about 125 exhibits. I called about 10 witnesses to the stand — several of them fellow Cayuga County attorneys — and cross-examined almost as many. It was a busy trial!

Whatever the result, I am proud of the job I did. My client was pleased with my courtroom performance, as was my “second chair”, retired Cayuga County Judge Peter Corning. Judge Corning had handled the case through discovery, and then asked me, with the client’s consent, to try it for him.