Settlements

The Increased Role of Alternative Dispute Resolution in New York Personal Injury Lawsuits

August 15, 2010 | by Michael Bersani

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.

Strutured Settlements Are a Good Alternative to Lump Sum Payments for Some New York Personal Injury or Medical Malpractice victims.

August 9, 2010 | by Michael Bersani

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.

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.