Lawyer Ethics

New York Personal Injury “Loss-of-Consortium” Claims: What Are They, What Are They Worth, and Why Do They Sometimes Lead to Trouble?

July 18, 2010 | by Michael Bersani

What is a “Loss-of-Consortium” Claim? A loss-of-consortium claim is a claim for compensation brought by the uninjured spouse of an injured spouse against the negligent tortfeasor who caused the injury to the injured spouse.

Wew, that was a mouthful! Let me try to break that down.

Although the uninjured spouse of a New York accident victim has not suffered any “physical” injury, New York personal injury law recognizes that she or he often suffers a different kind of injury or loss, specifically, the loss of spousal “services” that the injured spouse would have continued to provide but for his or her injury. The “services” lost can include household services (cooking, cleaning, etc.), love, companionship, affection and sexual relations. Because this notion of “loss of consortium” is rooted in traditional principles of “man and wife”, it has not (yet?) been extended to cover loss-of-consortium claims by unmarried or gay couples who live together but are not married.

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?

Central New York Accident Lawyer: Health Care Overhall Will Help Syracuse and Central New York Accident Victims

March 24, 2010 | by Michael Bersani

I generally try to avoid talking about politics in this Blog. So, without telling you what I personally think of Obama’s health care overhaul, I will tell you what impact the new Law will have on Syracuse and Central New York personal injury and medical malpractice victims.

First, though, let’s talk about how the current health care system affects victims of injuries caused by someone else’s wrongdoing or negligence. If these injured folks are unlucky enough to be among the 15% of Americans who can’t afford, and thus do not have, health care insurance, they are in a real bind. The liability insurer for the at-fault guy will REIMBURSE their medical bills after they are done treating for the injury, upon a global settlement of the whole case, but the liability insurance will NOT pay the medical bills as they come due in the meantime. This too often means that the accident victim’s doctors won’t treat him, because no one is paying his bills. Doctors usually won’t wait for their patient’s settlement or victory at trial to get paid because they don’t know for sure that the patient will win his case, or get a settlement that will cover the medical expenses. And things get worse for the patient-accident victim. Without proper, well-documented medical treatment, it is later difficult to prove the accident victim’s injury.

So the accident victim really gets injured not once, but THREE TIMES!: First, when someone’s carelessness caused his physical injury. Second, when he can’t get the medical treatment he needs and thus has to suffer through needless pain and perhaps ends up with a much worse result. And third, when he doesn’t get a fair settlement or verdict because he is unable to fully prove his injury for lack of medical records documenting it.

Personal Injury Attorney Advertising — Yuk!, But Constitution Protects It.

March 14, 2010 | by Michael Bersani

I hate attorney advertising, especially personal injury lawyer advertising. Yet I advertise. Well, I mean, my firm does. I remember when we finally decided to advertise on TV. It was a tough decision. For years Michaels Bersani Kalabanka prided itself on its success in attracting top personal injury and medical malpractice cases through word of mouth and through referrals from other attorneys who knew that we were among the best in the New York personal injury and medical malpractice field.

But our case load had started to dwindle even though we were still at the top of our game. Why? Because other Central New York accident lawyers were advertising and we were not. They were getting the cases simply by being on TV! For the most part, their ads were in terrible taste (examples: an attorney who called himself “The Hammer” and a firm that called itself “The Heavy Hitters” and one who claimed he was “a son of a bitch”, but if you hired him he would be “YOUR son of a bitch!”).

All this advertising, though totally tasteless, and even deceptive, was legal because decades ago the U.S. Supreme Court had ruled that attorney advertising fell under the protection of the “free speech” clause of the First Amendment to the United States Constitution. In other words, those guys had a right to say all this crap in their ads, even though it created a terrible image for personal injury lawyers.

Why New York Personal Injury Lawyers Must Sometimes Sue Everyone in Sight.

February 13, 2010 | by Michael Bersani

I abhor frivolous lawsuits. I try to bring my New York personal injury lawsuits only against companies and people whom I feel are truly liable for my clients’ injuries. But once in a while I am forced to sue “iffy” claims against those who probably are not responsible for my clients’ injuries. Why? Because of insurance companies and their lawyers, that’s why. Let me explain by way of example.

My client is a passenger in her boyfriend’s motor vehicle. On a snowy night, they come upon a car stopped in the middle of the road, which apparently stopped because of the snowy conditions. It appears, though, that the driver of that car could have done a better job pulling over onto the shoulder of the road. Nevertheless, my client’s boyfriend is able to stop in time. Moments later, a tractor trailer comes from behind and hits the rear of my client’s car, propelling it into the car stopped in front. That tractor trailer driver was clearly going too fast for the snowy conditions. My client suffers serious injuries, can never work again, and no-fault insurance is quickly exhausted.

So who do I sue to get her the compensation she needs and deserves? After all, she was an innocent passenger.

Corrupt Ex-New York State Judge Sentenced for Extorting Money from Personal Injury Lawyer

December 22, 2009 | by Michael Bersani

Today Justice was served to someone who did a disservice to justice. U.S. District Judge Gary Sharpe sentenced ex-New York State Supreme Court Justice Thomas J. Spargo to 27 months in prison for attempted extortion and bribery. A federal jury convicted Spargo on Aug. 27, 2009 for soliciting a $10,000 payment from a personal injury attorney with cases pending before him. Spargo figured the lawyer would be easy-pickings because he had recently settled a personal injury case for $3 million, thus earning a substantial fee. The trial evidence showed that when the personal injury attorney declined to pay the bribe, Spargo increased the pressure to pay.

It goes without saying that “Judge” Spargo’s behavior was despicable. Think about the implications of his actions. Imagine you have been injured in a car accident, a construction accident, or by medical malpractice, or you have suffered damages from legal malpractice. Your life is permanently and irreversibly altered. You have one chance, and only once chance, to right the wrong, to seek compensation, to hope for fair and impartial redress. Your day in Court finally arrives. But, unbeknownst to you, the judge who is to decide your case, or to instruct the jury about your case, has extorted, and accepted, $10,000 from the opposing side’s lawyer! Does that make you feel confident he will do you JUSTICE? Of course not. He is more likely to do “JUST US” with the opposing counsel as a payback for having his palms greased.

From our years of experience bringing personal injury and medical malpractice cases to courts in New York State, we at Michaels Bersani Kalabanka can assure you that this kind of judicial behavior is exceedingly rare. We have never seen it in our many years of personal injury and medical malpractice litigation. We may disagree with our judiciary’s decisions from time to time, but we have confidence in the integrity of the system.

Can My Lawyer Lend Me Money During My Personal Injury Claim?

October 25, 2009 | by Michael Bersani

So you’re hurt and out-of-work through no fault of your own. You hired a good injury lawyer to bring a claim against the responsible parties. You lawyer says you’ve got a strong case, but meanwhile you’ve got no money coming in and those bills keep piling up. So what do you do? Hey, you’ve got an idea — your lawyer can front you some money against that future settlement you’ll eventually get!

Only one problem: He can’t. The New York State Bar ethical rules just won’t allow it. If he does, and he gets caught, he can lose his license to practice law. Not long ago, a big injury law firm, with a huge advertizing presence, out of Western New York State had one if its two senior partners suspended from the practice of law because he was involved in lending money to his injured clients.

Why is it considered wrong for your injury lawyer to lend you money? The problem is that when your lawyer becomes your lender, a conflict of interest arises. Your lawyer is supposed zealously represent you in your claim for compensation without being derailed by self-interest concerns. But if you owe him money, his self interest might interfere with his doing what is right for you. For example, if he wants to make sure he gets repaid, he might be tempted to talk you into settling your case for less than it is really worth to avoid the risk of losing at trial and not getting repaid.

Syracuse Injury Attorney Explains Why He Does Not Accept “Frivolous” Cases

October 14, 2009 | by Michael Bersani

When people ask me what I do for a living, and I tell them I am a personal injury lawyer, they sometimes roll their eyes, tell me a lawyer joke, or wag their finger at me about all the “frivolous” lawsuits us injury lawyers bring. My response to the “frivolous” lawsuits remark is simple and straightforward: Neither my law firm nor I ever accept frivolous cases. We reject every single one from the outset. Why?

First, we are fortunate enough to have a full plate of legitimate claims representing honest people injured through the negligence or wrongdoing of others. Our reputation attracts good cases, so why would we want to take bad ones? Because we successfully attract good cases, we don’t have to accept bad ones.

Second, taking frivolous cases is bad business. You have to be a dishonest lawyer, who is prepared to misrepresent or exaggerate facts and law, to even have a chance at prevailing with a frivolous lawsuit. But if you are dishonest even once, if you misrepresent the facts or law even once, your reputation with insurance adjusters, judges and defense lawyers is affected not just once, but forever. After that, when you bring legitimate cases, the insurance adjusters, defense lawyers and judges will all mutter under their breath, “there he goes again with another one of those cases”. If you get a reputation for bringing frivolous claims, you are less likely to be able to settle your legitimate cases because even those cases may be perceived as frivolous. As the saying goes, “your reputation precedes you.”