Central New York Injury Lawyer Blog

Common Misconceptions about New York Personal Injury Cases, Part II: “If I Complain about My Injury A lot to My Doctor And to The Jury, I Will Get More Compensation”

May 15, 2010 | by Michael Bersani

Take two clients with the same injury, say a cervical disk herniation. They are both in pain day and night. They can’t sleep. They have a hard time doing what they used to do during the day. They both try nerve block injections but get only limited, temporary relief. They both get neck fusion surgery and now have limited rotation of the neck, but still experience pain every day. There is only one difference between the two: Client A complains bitterly to his doctor about the pain and convinces his doctor to take him out of work. Client B sucks it up and tells his doctor he really wants a normal life, and wants to try to keep working. Who has a better personal injury case, client A or client B?

A few (fortunately, very few) of my Central New York personal injury clients believe it is client A because he has “proved” how much he is suffering by having his doctor take him out of work, and by filling up his medical file with complaints of pain. But actually client B may have a better case. In any event, I would much rather represent client B. Why?

Juries hate whiners. In fact, everyone does. Juries often assume they are milking the system, exaggerating their injuries to bring in a big verdict at trial. Conversely, juries, and people generally, love the fighter, the survivor, the guy who doesn’t give up. When such people testify in their own personal injury trial, they don’t give the impression that they are in it for the money. They have done everything they can to try to overcome their limitations, and are now just seeking fair compensation for what they have been unable to overcome. And juries like them and reward them for their I-can-lick-this-thing attitude.

Finger Lakes Boating Accident Lawyer Discusses Staten Island Ferry Crash

May 13, 2010 | by Michael Bersani

At Michaels Bersani Kalabanka, we are “joined at the hip” to the Finger Lakes. Our main law office is in Auburn, near the shores of Owasco Lake. One of our lawyers, Lee Michaels, lives on Skaneateles Lake. I live in Geneva, on Seneca Lake. Since we are personal injury lawyers, and work in the Finger Lakes area, it is no surprise that we are the Finger Lakes boating accident lawyers of choice for many boating accident victims.. We know all too well the horrendous injuries that Central New York boating accidents can cause. A few years ago, we got a large settlement for a woman who lost her leg to a boat propeller.

Having lots of experience in boating accident lawsuits, I read with interest, and dismay, about last week’s Staten Island Ferry crash. Imagine the fear passengers experienced as the ferry approached the docking area without slowing down! Those who had time to react scurried toward the back of the boat. This week, the first lawsuit stemming from the boat crash was filed.

A boating accident like this has two possible causes: Pilot inattention or mechanical failure. Here mechanical failure appears to be the culprit. The boat’s throttle failed to engage, making it impossible for the pilot to apply the reverse thrust, which is how this boat is slowed down for docking. Investigators still haven’t figured out what caused the malfunction.

Surveillance Cameras Help Syracuse Slip-and-Fall Lawyers Prove Stores Are Liable for Personal Injuries.

May 10, 2010 | by Michael Bersani

Sometime ago I blogged about how the omnipresence of cell phones with cameras has been a game-changer for many Central New York and Syracuse accident victims. The evidence of the at-fault person’s or corporation’s negligence can be “snapped” right at the scene with the cell phone camera. This is important because often the evidence disappears within hours, for example, where you slip and fall on an unplowed, unsalted walkway in a Central New York winter.

Another game-changer for Syracuse and Central New York personal injury cases (and for such cases everywhere) is the omnipresence of surveillance videos. Now almost all major stores, including supermarkets, have surveillance cameras filming in almost every nook and cranny.

How does this help New York personal injury attorneys prove liability in personal injury lawsuits? Here’s an example. A woman slips and falls in the produce section of a major Syracuse supermarket. Turns out she slipped on a piece of tomato.

Syracuse and Central New York Accident Lawyer on Frivolous Insurance Defenses

May 9, 2010 | by Michael Bersani

As a Syracuse and Central New York accident lawyer, I have had loads of experience dealing with car insurance companies and their lawyers. Here’s another example of how insurance companies and their lawyers take frivolous positions in Court that cost you, the taxpayer, money.

My client hired me to bring a Central New York car accident claim on his behalf. Here’s how his Cayuga County car accident happened: He was a passenger in his friend’s car. The friend had stopped at an intersection and was waiting for on-coming traffic to clear so he could turn left. His left blinker was on. Then, — BAM – the car was struck from behind. The driver who rear-ended them admitted to the police right on the scene that he was reading a map while driving so he did not see the stopped car.

After the insurance company refused to settle for a fair amount, I sued the rear-ending driver and his employer (he was on the job when this happened, so the employer is vicariously liable for his negligence). Since the only real disputed issue was what my clients’ extensive injuries were worth (no question about whose fault it was, right?), I made a “summary judgment motion”, that is, I asked the judge to decide, without the need for a jury trial, that the rear-ending driver was solely responsible for the collision. I made this request to the judge right after I sued the case out, and before any “depositions”. Depositions are where the lawyers get to ask the parties questions under oath about how the accident happened so they can try to prove their case, or their defense to the case. But I figured, why should we bother with all that when there was so clearly no issue of whose fault it was?

Syracuse Medical Malpractice Lawyers’ Verdict Applauded

May 7, 2010 | by Michael Bersani

New York Medical malpractice cases, like medical malpractice cases everywhere, are tough. Juries like doctors. They feel sorry for doctors who are sued. They don’t want to tell physicians they were “negligent”. Doctors’ insurance company lawyers fight like hell to disparage the patient in front of the jury, to make the patient seem untrustworthy, and to paint their client-doctor as a helpless, honest victim of a greedy medical malpractice lawyer. These strategies sometimes work. Even when juries think a doctor made a mistake, or was careless, they sometimes refuse to find them liable for the injuries they carelessly caused. They justify such verdicts by saying to themselves things like, “gee, that doctor didn’t MEAN to hurt the patient”. Statistically, the doctor beats the patient in most New York medical malpractice lawsuits that go trial.

So when a New York medical malpractice lawyer brings a medical malpractice lawsuit all the way to trial, and wins, it is cause for celebration (not for the doctor or her insurance carrier, of course, but for the patient and her lawyer).

Today we celebrate the victory of our friends and fellow Syracuse medical malpractice attorneys David Howe and Michael Porter who, on May 7, won for their client a thumbs-up verdict in a Syracuse medical malpractice lawsuit. The patient’s surgeon had committed malpractice by negligently severing nerves in her ankles during a tarsal tunnel syndrome surgery several years ago. This caused significant limitation in her ability to move her feet, as well as permanent and severe pain to her feet and ankles, and eventually caused her to lose her job. The Syracuse jury awarded the patient $678,000 in compensation.

Syracuse Construction Worker Fall in Hole Demonstrates Special New York Falling Construction Worker Law

May 5, 2010 | by Michael Bersani

Construction season is in high gear again, and that, of course, means more construction accidents. Yesterday the Syracuse Post Standard reported that a construction worker fell into a 12-foot hole, which was to be the foundation for a new single-family home, on a construction site job on Seymour Street. The worker apparently suffered some kind of head injury.

I wish this worker a speedy recovery. But when I read cases like this one, and after I feel sorry for the victim, I can’t help but “think like a lawyer”. As a Syracuse New York construction lawyer, I see this accident as proof of why, many dozens of years ago, New York State’s wise legislature passed a law known as Labor Law section 240. This statute may help this unfortunate worker today to get the financial compensation he may need.

Under Labor Law 240 a construction worker who falls from a height, including from ground level into a hole, generally has a New York personal injury claim against the owner of the property, the general contractor, and perhaps others as well, for failure to, among other things, cover or guard the hole to prevent the fall. The worker does not even have to prove that anyone was “at fault” or careless or negligent. The only thing he has to prove, generally, is that he fell because a “safety device” (such as a barricade or other means of preventing the fall) was not provided. Even if the worker himself was largely to blame for his own fall, he still wins his New York construction accident lawsuit if the proper safety devices were not provided or failed. The law was designed to give extra protection to construction workers who risk their life and health everyday by working from heights or in areas where they can fall and be seriously injured or killed.

Central New York Injury Lawyer on Compensation for Wrongful Convictions

May 4, 2010 | by Michael Bersani

Eighteen years is a long time, especially if you spend them in jail for a crime you did not commit. Just ask Frank Sterling of Rochester, New York. Local news sources report that DNA evidence recently cleared Mr. Sterling of murder. He had spent 18 long, hard, bitter years in jail for killing an elderly neighbor as she out for a walk on an old train track trail in Rochester. Only problem is he didn’t. Someone else did. But Mr. Sterling finally walked away a free man this past Wednesday.

How did he get convicted? Under heavy interrogation, Sterling made a mistake that too many innocent men make — he confessed. Why? To end the interrogation. He told his interrogators what they wanted to hear so they would stop. Sounds silly to people who have never been under that kind of grueling pressure for hour upon hour. But it makes sense to the accused at the time. Lengthy, tough interrogations do something to the human psyche. Sometimes people crack. Mr. Sterling cracked. Even though Mr. Sterling almost immediately disavowed his “confession”, it turned out to be the nail in his coffin at trial.

And the REAL murderer? Turns out he got away with it, but then killed a four-year-old girl six years later, and that time he got caught. He eventually confessed to both killings.

Recent Syracuse Bicycle Accident Demonstrates Why Motorists Are Usually At Fault for Bike-on-Car Collisions

May 2, 2010 | by Michael Bersani

It’s to be expected. With the good weather comes bicycling, and with bicycling comes bike accidents. Today Syracuse police are investigating an accident at the intersection of Sumner and Euclid avenues (not far from where I grew up!) between a bicyclist and, of all people, a Syracuse City cop driving a police car. Thankfully, the bicyclist, a Syracuse University student, suffered only minor injuries. She was treated and promptly released from Upstate University Hospital.

This accident demonstrates some interesting principles. Statistically, most bike-on-car collisions are the motorist’s fault. Do you think this accident might have been the police officer’s fault? Let’s see what happened here, and then you decide.

The police officer was heading west on Euclid Ave, and was waiting to turn left on Sumner, when a Centro bus heading in the opposite direction stopped and waved the officer through the intersection. The officer started his turn, but neither he, nor the bus driver, had observed the bicyclist traveling alongside the bus just to its right in a bike path. As the bike entered the intersection, the bike hit the police car’s passenger side as the car made its left turn in front of the bike.

Texting and Cell-phoning While Driving in Syracuse New York Leads to Many Tickets and Possible Syracuse Car Accident Lawsuits

May 1, 2010 | by Michael Bersani

I recently blogged about an upcoming federally funded crackdown on cell-phoning and texting while driving that was to take place in Syracuse. Well, the first stage of the crackdown happened, and many motorists were caught in the police net.

The Syracuse Post Standard reports that local law enforcement agents issued a total of more than 2,000 tickets during the 10-day (April 8 through 18) texting-and-phoning-while-driving ticket-issuing spree. The penalty if you plead guilty? Up to a $150 fine plus an $80 surcharge, for a grand total of $230.

Watch out! There are two more texting and phoning-while driving crackdowns scheduled for the last week of July and starting October 7.

Why Lawyers Sometimes Decline Personal Injury and Medical Malpractice Cases

April 30, 2010 | by Michael Bersani

When I tell them, they don’t like what they hear. I try my best to explain, and usually they do understand, but they are never happy about it. Sometimes (thankfully not often) they even become angry.

What am I talking about? Turning a case down. You see I, like all other Central New York personal injury and medical malpractice lawyers, must sometimes tell potential clients that I am declining to take their personal injury or medical malpractice case. Many factors come into play in deciding whether to accept a personal injury or medical malpractice case. In the end, we lawyers need to make a business decision, based on a cost-benefit analysis.

What goes into that analysis? Since we are paid on a contingency fee basis (generally 1/3 of whatever we recover for the client) we need some reasonable assurance that: (1) we can win the case; (2) the injury is significant enough to warrant a jury verdict high enough so that 1/3 of it will “pay” for our time litigating it; and (3) the at-fault party has either enough insurance coverage or a “deep pocket” so we can collect on a judgment.