Central New York Injury Lawyer Blog

Central New York Injury Lawyer Gets Lucky Break On A Dog Bite Case

March 18, 2012 | by Michael Bersani

I just got a lucky break on a Geneva NY dog bite case. I’ll tell you about it in a minute. But first let me tell you about an article I just read about animal attack cases in the New York Law Journal, which concluded that “New York is perhaps the toughest jurisdiction in the nation to be in” for dog bite (or any animal attack) cases. Why?

There is kind of a paradox in New York. On the one hand, New York is a “strict liability” state for animal attack (including dog bite) cases. That means that you don’t even have to prove that the animal’s owner was “negligent” or careless. If the dog bit you, or the animal attacked you, and you are injured, the owner is strictly (automatically) liable, BUT ONLY IF _______ (I’ll fill in the blank later). In other words, even if the owner was very careful in, for example, tying up the dog, but some neighborhood kids let him lose as a kind of gag, and the dog then bites someone, the owner is still liable BUT ONLY IF _____. The law is generous to animal attack or dog bit victims, BUT ONLY IF _____.

OK, enough already. Only if what? Only if the owner “KNEW OR SHOULD HAVE KNOWN OF THE ANIMAL’S VICIOUS PROPENSITIES“.

Central and Syracuse NY Personal Injury Lawyer — “Good Staff Makes For Good Results”!

March 15, 2012 | by Michael Bersani

I blogged last time about a seven-and-a-half year Syracuse NY wrongful death case I settled on the first day of trial this week. Today I want to blog about the “behind the scenes” preparations for trial. It sounds boring, and it sure ain’t “LA Law” stuff, but in a trial, preparation is 90% of the battle.

I knew from the get-go that the trial would involve about 25 witnesses as well as complex legal issues, so I didn’t mess around. Three months before trial, I started fashioning an electronic file, with separate folders for pleadings, orders, exhibits, witnesses, depositions, affidavits, law, summation, opening, jury selection. I organized everything logically. For example, each discovery demand was set in a separate folder with its corresponding response, and each set of demand-responses was set into a file labeled “discovery”.

About 2 weeks before trial, I finally had an electronic file so well organized that I could click to any of the hundreds of pages of documents I wanted within 5 seconds. I also had all my witness deposition summaries, and witness questions, set out in separate witness folders along with each witness’s deposition and affidavit.

In Memorium

March 14, 2012 | by Michael Bersani

When you’re a personal injury lawyer, you need lawyer-friends to bounce ideas off of, friends who will listen, critique you, play devil’s advocate, and just plain tell you when you are wrong. This profession is more of an art than a science, and to get it right, you need feedback, advice, and sometimes just a pep talk.

Here’s a good example of a case you need friends on, one of the toughest my career. The case was full of legal and factual intricacies that befuddled and confounded not only the lawyers, but judges and their clerks. The trial judge at one point dismissed the case because he felt it was not “actionable” (the law did not allow it), but I appealed, the appellate court agreed with me, and allowed the case to stand, even though it was the first of its kind to be brought (you can read the decision here).

Then the trial judge dismissed another piece of the case, and I again appealed, and again the appellate court ruled in my favor, though a dissenting justice would have affirmed the trial judge (you can read the decision here).

New York Health And Fitness Clubs Beware: You Must USE Those AED’s!

February 7, 2012 | by Michael Bersani

One of New York’s appellate courts (Second Department) recently held that health and fitness clubs in New York State must actually use automated external defibrillators (AEDs) when necessary, and not just have them available. If they don’t, a heart attack victim can sue them for failing to act. You can read the case here.

Since I am both a Central New York personal injury and wrongful death lawyer, and am on the Board of the Auburn, New York YMCA (former president of the board), I took a keen interest in this ruling. I also immediately informed the Y’s CEO about this case. After all, it’s one thing to require that health clubs have such devices available, but quite another to require that staff actually make a judgment call about when and whether to actually use them, and to be subject to wrongful death lawsuits if they fail to act properly.

Here are the facts of the case before the court: A racquetball player at a fitness club collapsed, a fellow player reported it promptly to the front desk, and the front desk immediately called 911. While they waited for the ambulance, several employees, with AED in hand, hovered over the stricken player, checking his pulse, but they never actually used the AED. The ambulance arrived in only a few minutes later, which may explain why they never used the AED. But the guy died at the hospital, and his family blamed the fitness club for not using the defibrillator.

“Hey Fed Gov, Don’t Cut Bicycle Safety Out Of Your Transportation System!” Central and Syracuse NY Bike Accident Lawyer Says

February 6, 2012 | by Michael Bersani

Fellow New York Bicycle accident attorney Jim Read reports in his blog that a Bill making its way through congress would, if made law, remove bicycling from the federal transportation program. As Jim notes, it would set us bicyclists back many years in our efforts to get government roadway designers and planners to consider bicyclist safety when designing and upgrading roadways.

The Bill is called “the American Energy and Infrastructure Jobs Act“. Among other things, the proposed law would allow states to build bridges without safe access for pedestrians and bicycles and eliminate bicyclists’ status and standing in the planning and design of our transportation system. This heavily auto-biased program would also endanger funding for our safe paths, bike lanes and bikeways.

If you are a bicyclist and want to stand up for your rights, go here to find your local representative and send them an urgent message.

Centryal and Syracuse NY Accident Lawyer On LeRoy NY Toxic Spill: Proving “Causation” Is Tough

February 5, 2012 | by Michael Bersani

I read in the Pop Tort that Erin Brockovich appeared on HLN’s Dr. Drew Show to talk about the cluster of Tourette’s like symptoms hitting teenagers in Leroy, NY. It turns out that in 1971 a train derailed and dumped tons of cyanide and TCE, which was never cleaned up, in the area where these kids have gone to school all these years. Brockovich’s skeptics are saying, hey, if this spill happened all the way back in 1971, why are kids turning out with these symptoms only now? Her response is that there have been similar symptoms in the past, but back then these kinds of ailments were not consistently reported or diagnosed, and also back in the early days of the spill, many parents told their kids not to drink the water around the school area.

This brings to light one of the main hurdles New York toxic tort lawyers face: Proving “causation”. It is often easy to prove negligence in causing the spill, or in failing to properly clean it, but how do you prove that exposure to the toxic substance caused your client’s cancer, or Tourette’s syndrome, or other ailment, when those diseases or syndromes appeared many years later? You will probably find experts in the field who will hold that opinion, but many times the evidence they rely on is not firmly established, and defendants’ experts will say, hey, wait a minute, lots of other stuff can cause cancer or Tourette’s-like symptoms, and your proof that this spill caused it is merely speculative! Many judges will toss the case before it ever gets to a jury.

But that doesn’t mean you can’t win one of these cases, and it especially doesn’t mean that the toxins emitted by corporate America are not killing us and making us sick. They are, and we known, and they know it. The only question is, can we prove it in court. . . .

Auburn NY Personal Injury Law Firm Office Manager Carol Beach Retires!

January 24, 2012 | by Michael Bersani

In February 1967, a young lady showed up for her first day of work at the Auburn, New York law offices of attorney George M. Michaels, our own Lee Michaels’ father. (George is famous in New York – you can look him up on wikipedia). Lee, a young whipper-snapper fresh out of law school, joined the firm about two years later, and Carol has worked with Lee ever since.

But the story goes back further; Lee and Carol went to East Auburn high school together. Carol was two years ahead of Lee. Carol tells the story of how, back then, one of her teachers told the girls, “treat the under classmen well because remember, you could be working for them one day”.

Times have sure changed. Today, any teacher who made a statement like that would be accused of rank sexism. But guess what — that teacher was right! Carol ended up working for Lee for 43 years. And she worked with the rest of us ever since we joined the firm, too. She has been our head secretary and office manager for decades.

Syracuse New York Wrongful Death Trial Preparation

January 20, 2012 | by Michael Bersani

I have a Syracuse New York wrongful death trial coming up in about six weeks. Six weeks may seem like a long time to you, but for preparing a complex trial, it is not. I started gearing up a few weeks ago.

The first thing I do is create a “to do” list for the trial preparation. As I get things done on my list, it feels good to cross them off. My list gets shorter and shorter.

In this case, my “to do” list is still quite long. There will be, I believe, more than 30 witnesses. I have to prepare “direct examinations” of the witnesses I am going to call, and “cross-examinations” of the ones I expect my opponents to call. And you don’t just “wing it” up there. No, that’s a recipe for disaster. You have to plan out carefully every line of questioning, and have exhibits and deposition transcripts ready to confront any witness who strays from the truth!

Central NY Injury Lawyer Blog Gets Inquiries From Near And Far

January 19, 2012 | by Michael Bersani

You might find this hard to believe, but my Central New York injury law blog attracts responses and inquiries not just locally, but from afar, too. From how far? Well, for example, in just the last few weeks, I have been contacted by readers in the Philippines, California and Canada, about family members who were injured or killed here in New York State. I have even heard from Europe a few times.

Yes, I receive lots of emails, both from far and near, many asking me to represent them in a New York personal injury, medical malpractice, or personal injury matter. Unfortunately, I can’t take all those cases. In many cases, after exploring the facts with my new “pen pal”, I learn that the case is weak, or that the injury is too minor to make a lawsuit financially viable. But in every case, I try to give my new friend something for his or her trouble in writing me — at the very least a good explanation as to why I think their case is not worth pursuing. And often, they thank me for that.

And by the way, the very first thing I always say when I respond to an email inquiry is “Thanks for writing!”. Even if I can’t accept the case, it is rewarding to know that someone out there is reading these posts! So come on, don’t be shy, just tap me a line or two!

“Aggressive” Lawyers Are Often All Smoke And No Fire, Says Central NY Injury Lawyer

January 8, 2012 | by Michael Bersani

Although I am a New York personal injury lawyer 95% of the time, every once in a while I let myself get talked into representing a plaintiff in a non-injury case. Usually it is to sue for breach of contract or something like that. Recently, I had a three-day bench trial (that means it was tried before a judge rather than a jury) on such a case.

My opponent was an ass. He made lots of useless objections, shouted and screamed a lot, and had a very sarcastic tone during his cross-examinations. He never smiled and he had a permanent scowl on his face. He looked mean. This particular lawyer has a reputation for being needlessly aggressive, unlikeable, and unkind. Other lawyers I have talked to about him do not think he is good or effective — he is all smoke and no fire.

He has a steady stream of clients, though. Most of them men are of a certain type. They are the kind of men who have big aggressive dogs. This lawyer is, apparently, some kind of bulldog for them.