We have seen that in “wrongful death” actions, the generally applicable rule in New York is that emotional trauma caused family members by the loss of a loved one is not a permissible basis for a “cause of action” in a lawsuit.

Is there ever a time when the emotional impact upon a loved one can be the basis for a lawsuit by that loved one?

The answer is “YES”. When the loved one finds themselves within what is known as the “Zone of Danger”at the time a member of their immediate family was injured or killed…

To be eligible to bring a “zone of danger” lawsuit for the emotional trauma and psychological impact an immediate family member’s accident had upon you, it would be necessary to demonstrate not only that it was an immediate family member that was involved, but that:
—You were also in such proximity to the accident victim that you could well have been injured yourself;
—You were aware of the fact the immediate family member was being seriously injured or killed as the event was occurring;
— You have valid medical proof that you suffered a psychological injury as a result of that accident (psychological or psychiatric medical treatment).

Zone of Danger cases are relatively rare since the requirements to bring such a lawsuit are very stringent. There is a general perception that whereas physical injuries are usually subject to objective tests, psychological injuries might be more susceptible to fraud and so conditions are created that make the infliction of psychological injuries more plausible.

It takes an experienced Personal Injury Attorney to recognize the possible availability of a Zone of Danger case, and to properly analyze the circumstances surrounding an accident to appropriately apply the requirements to be successful in such a lawsuit.

We have noted that the awards in wrongful death cases in New York State involving the death of children or infants is almost invariably shockingly low to the average lay observer. This is because the permissible guidelines for determining the amount of such award, in New York, are generally restricted to “conscious pain and suffering” and “pecuniary loss”, the latter item of which, in the case of a child or infant, is understandably negligible.

In determining “pecuniary loss”, the jury can consider what the child or infant would have contributed to the support of the parents. Conjecture is not appropriate and consequently, proof of such an item is extremely difficult, if not impossible. It is usually to “conscious pain and suffering” that attorneys look to salvage some modicum of monetary compensation for the parents. In the event of an almost instant death then this, too, becomes a source of difficulty rather than of a just award.

If the defendant evinced conduct that was utterly indifferent to the safety of others, exhibited gross negligence or showed a conscious disregard for the life of others, then punitive damages might be applicable. In such instances, recoveries can be significantly higher.

If a parent was at the scene of the accident, in what is known in legal parlance as the “zone of danger”, then the parent may possibly be entitled to separate damages for “emotional trauma” inflicted by witnessing the accident.

Both “punitive damages” and a “zone of danger” claim are rarely available, but the experienced Personal Injury Attorney will be alert to any possible avenue to increase what might be, frankly, an otherwise inadequate recovery.

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If settlement cannot be reached in a case, and a final trial date has been set, the attorneys come to court and are assigned to a  room where a “jury panel”, usually numbering about fifteen people from the larger jury pool, are also sent.   The attorneys take turns introducing the case and then proceed to ask questions of each of the potential jurors.  Some jurors are dismissed “for cause,” which means there is a valid legal reason to prevent that juror from sitting on the jury.  Since the aim of each attorney is to try and have a jury composed of as many individuals the attorney perceives will be favorable to their client at trial, the attorney has at his/her disposal a number (often three) of “peremptory challenges” which allow the attorneys to exclude a juror without cause.  Once those challenges are exhausted, however, the attorney will be compelled to take everyone else, other than those that can be excused “for cause”.   Arguments regarding the dismissal of jurors are referred to a judge to resolve.

Once the jury is selected, the jurors and the attorneys go to an assigned courtroom (in some jurisdictions the selection of the jurors takes place in the assigned courtroom) with an assigned judge.

After preliminary procedures are attended to, each attorney is given an opportunity to make an “Opening Statement” to the jury.   The trial then continues with the Plaintiff presenting the Plaintiff’s Case.  This will usually consist of testimony from the Plaintiff, possible witnesses, and “Expert Testimony”.   Expert Testimony can involve testimony given by treating physicians, experts in economics discussing the future earning losses of the Plaintiff, or experts in other fields such as product or roadway  design,  police procedures, etc.   The Defendant’s attorney has the opportunity to Cross Examine every one of the Plaintiff’s witnesses, as the Plaintiff will do when the Defendant presents its case.

At the conclusion of both the Plaintiff’s and Defendant’s cases, the Trial Judge will give a “Jury Charge”.  Instructions are given to the jury as to the rules of law the jury MUST apply when it considers all  the evidence, oral and tangible exhibits, that was presented to it during the trial.  The jury then deliberates.  In a civil trial there are normally six jurors (with two alternates that are dismissed when the matter goes to the jury).

Laymen are usually not aware of the fact that the decision of the jury may not be the final word.

The judge can play a major role in restructuring or changing the determination of a jury if the judge considers that the decision of the jury contradicts a viable legal reason for sustaining the “VERDICT” of the jury.   VERDICTS can be “set aside” “as against the weight of the evidence” and money damages awarded by a jury can be increased or decreased by a judge.   Keep in mind, too, that any action a judge takes can serve as the basis of an APPEAL to a higher court.  Appeals, however, are costly and time consuming, and are usually not resorted to under other than extraordinary circumstances.

People are very concerned about the choice of a surgeon when contemplating surgery.  A person should be no less concerned about the abilities of an attorney they choose.  Often, the expertise and reputation of your attorney can result in a favorable settlement, thereby avoiding a trial, but if a trial becomes necessary, the attorney you choose may also be crucial. At Orlow, Orlow, & Orlow we have over 30 years experience with helping you get the most from your case. Contact one of our New York City Personal Injury Attorneys today for a consultation.

Why Personal Injury Cases Take So Long

Very rarely will a case will be settled at its earliest stages, before many of the procedures in this article have been instituted. That usually only occurs when the fault of an accident is clear, the injuries determined and an agreement as to value is reachable. An agreement to settle can be quickly reached if, for example, there is a limited insurance policy and that policy limit is less than the agreed upon value of the case.

Very frequently, however, an attempt to “SETTLE” a case will begin before the time of trial. Most often it begins when most, if not all, of the discovery in a case is completed. A settlement is reached after negotiations either between the Plaintiff’s attorney and the Defendant’s attorney, or as is very often the case, between the attorney for the Plaintiff and the adjuster assigned to the case by the insurance company.

The adjuster is almost always NOT a lawyer.

Settlement discussions usually begin with a “Demand” made by the Plaintiff’s attorney, followed by an “Offer” by the defendant’s attorney, or by the insurance company adjuster. If both sides are “within the same ballpark”, so to speak, they will continue the negotiations. Settlement negotiations then involve the presentation by each side of the strengths of their side’s case and the weaknesses of the opponent’s case.

It involves first, in establishing the “COMPARATIVE NEGLIGENCE” of each of the parties. What that simply means is that an effort is made to assess to what extent (usually expressed in simple percent terms) each party is at fault. Then the negotiators will try to assess the “DAMAGES”–that is they will try to place a “value” upon the injury sustained by the Plaintiff. Then, applying the determination regarding “COMPARATIVE NEGLIGENCE” to the value of the “DAMAGES”, a SETTLEMENT amount can be determined. (If, for example, a Plaintiff and Defendant are each deemed fifty percent at fault, and the injury is valued at $100,000, the Plaintiff is entitled to 50% of $100,000, or $50,000).

Settlement discussions can take place as late as the trial itself. In fact, very many cases are settled during the selection of a jury, since both parties probably realize at that time that the other party is “serious” regarding the stand they have taken with respect to settlement. Additionally, the presence of an assigned judge at the time of trial, who is actively involved in the attempt to settle the case, will very often produce a settlement that was not attainable till now. Defendant’s representatives are very familiar with the reputations of law firms representing Plaintiffs. They know full well those that are prepared to proceed to trial and those that habitually prefer to settle before trial. The potential client will hopefully have researched this factor BEFORE having made the choice of an attorney.
Failing all else, the trial commences..

Contact our New York City Attorneys at Orlow Orlow & Orlow for more information.

The beginning of litigation refers to the start of an actual lawsuit. In cases where a NOTICE OF CLAIM was required to be filed, the law prohibits the commencement of legal action before the Notice of Claim is filed AND before the agency or governmental subdivision against which it was filed has had an opportunity to question the claimant. This questioning is called a “50 H Hearing”, the statutory name for what is simply an oral deposition of the claimant. Sometimes the “50 H Hearing is waived by the governmental entity, sometimes not. Once the hearing is held, or waived, the papers to begin the lawsuit may be filed in court, and then served on the defendant or defendants. (You, the person bringing the lawsuit, is known as the PLAINTIFF). The filing of the papers in court BEGINS the actual lawsuit.

In cases that do not require the filing of a Notice of Claim, the papers to begin the lawsuit, generally a Summons and Complaint, may be filed in court and then served upon the defendant (or defendants) at any time. The service of the Summons and Complaint is usually performed by a professional process server that works for a Process Service company. There are legal requirements as to when and how legal documents may be served, and cases can arise where the method of service will be vital to the viability of that case. This is especially true in cases that are begun very near the expiration of the Statute of Limitations, when improper service can mean the time limit within which a lawsuit MUST be brought has expired, and there is no recourse!

Just a special note regarding Statutes of Limitations:

Never, ever think you have enough time to contact your attorney about a possible lawsuit “because my friend told me that I have three years…” Time limits within which you MUST bring lawsuits vary greatly. Most negligence actions have three year time limits, most medical malpractice have two and a half, most intentional acts require lawsuits within one year, and so on. However, there are exceptions to virtually every rule. Get to an experienced attorney by calling our New York City Law Firm at Orlow, Orlow, & Orlow before your opportunity to litigate disappears!

Having determined that a case should be accepted into their office, attorneys will be eager to begin acting upon certain crucial matters as soon as possible. The most important of all these crucial matters are those that involve time limits.   There are many “time limits” that, if overlooked, could doom a case virtually before it gets off the ground.  Other time limits, if missed, might not doom the case completely but could amount to a financially costly error.

“Notices of Claim,” that must be timely filed in all cases involving governmental or quasi-governmental authorities or agencies, are a top priority.  Failure to file a properly completed “Notice of Claim”, within the proper time limit, upon the proper agent, and in the proper office designated specifically for that purpose will, in most instances, doom the case . (See this BLOG’s ARCHIVE for more on “NOTICES OF CLAIM”).  In motor vehicle accidents, claims for “No-Fault “ benefits must be timely filed as well as notices to “MVAIC”, the State established agency, that will be available to pay an injured vehicle occupant in the event other vehicle insurance is, for whatever reason, not available.   Failure to file appropriate documents in the prescribed fashion is a failure that can only bring gloom and doom to both an attorney and his client.   For this reason alone, the experience of the attorney you choose is an invaluable commodity!

The basis of an attorney’s relationship with a client is the “Retainer Agreement”.

This sets forth the rules governing the relationship between the attorney and the client.  It should be written in simple language, so that every client should be able to understand it.  The client should feel absolutely free to read it carefully and ask any questions that may come up.  And a client should ask for a copy of the agreement, if one is not offered by the attorney, to take with them for later review.   An attorney is also obligated to send a “Retainer Statement”, which sets forth the identity of the client, the nature of the fee arrangement, and how the client was referred to this particular attorney, to the Office of Court Administration, which is then filed and kept until an eventual “Closing Statement” is sent at the end of the case, describing how the case concluded.

The work immediately following intake does not stop there.  Investigations necessary to the eventual success of a case often begin at once.  Scenes of accidents examined and photographed, witnesses interviewed while the incident is still fresh, clients advised NOT TO SPEAK AT ALL WITH INSURANCE COMPANY AGENTS, hospital records ordered, and a myriad of other items, each specific to the needs of the individual case before the attorney, are tackled at this early stage.  There will be plenty to do later on as the case develops to make it worthwhile to see these important preliminary steps are attended to now. At Orlow, Orlow, & Orlow our New York City Personal Injury Attorneys can help you with your case. Call us today.

From a purely business point of view, this phase of a case may well be the most crucial to the attorney. In the field of personal injury law, cases are routinely taken on a “contingent fee” basis. This simply means that an attorney will not earn or receive any fee for his work unless there is a successful conclusion to the case, and the client receives some amount of monetary compensation. It stands to reason, therefore, that the decision as to whether or not to accept a matter into the office is of vital financial importance to the attorney. Too many cases accepted, that end in a failure to obtain compensation, will lead not only to unhappy clients, but will also lead, eventually, to an abbreviated life span for that law office.

Through diligent and meticulous questioning, the experienced attorney will delve into various aspects of the matter being presented by the potential client.

Questions relating to time, location, parties involved, conditions at the scene, preceding events, injuries sustained, relationships of parties and myriad other questions are all designed to see first, whether there is a viable case and second, whether the case has the possibility of ending in a way that both the client and the attorney can view as “successful.”

Issues involving Statues of Limitations (legal time limits for bringing a case), Damages (injuries suffered), Liability (fault of each party involved) and Coverage (available funds from insurance or other readily available sources)are all of pivotal importance to the experienced attorney at the Pre-Intake stage. At Orlow, Orlow, & Orlow we have been handling personal injury cases in New York City for over 30 years.

In a follow up to our posting (January 12, 2010) regarding the Presidential Executive Order banning federal employees from texting while driving government vehicles, the Federal Government has just (January 26th, 2010) banned all texting by drivers of buses and large commercial trucks.

This ban is enforceable by fines of up to $2,750.

The National Safety Council estimates that 200,000 crashes in the U.S. are caused by drivers who are texting. Currently, about 24 states ban texting while driving, and more states are on the way. There is also pending legislation in Congress that would accomplish the same result.

Sgt. McReynolds claims that he was thrown around and racially profiled for being black by overly aggressive officers Officers Kyle Bach and Joseph Azevedo of the 52nd Precinct.

“I was minding my business,” McReynolds told the Daily News. “I can think of no other reason for being stopped but my skin color.”

“This incident has opened my eyes,” added McReynolds. McReynolds audits crime statistics and is assigned to the Quality Assurance Division.

Bach “came right up in my face and said, ‘What f—— apartment are you going to?’”
“He took out his penlight and shined it right in my eyes blinding me,” McReynolds said. “I let him know I’m on the job and was looking for my wallet and he struck me in the neck with his [baton].”

“[Bach] said to me, ‘I’m gonna take your pension today,’” McReynolds said.

Officers Azevedo and Bach were called to the building regarding a domestic violence dispute. They claim they believed Sgt. McReynolds to be the boyfriend of the woman involved with the domestic dispute. This claim seems suspect because Sgt. McReynolds is 42 years old and weighs 275lbs while the suspect is in his late 20’s and weighs around 150lbs.

“There’s no way in the world I fit the description of that guy,” he said.

McReynolds has now been charged with pushing Officer Azevedo, manipulating his girlfriend into saying he was being assaulted, and resisting the cops. He has served the people of New York for 19 years and has never gotten a civilian complaint or a command discipline. If you or anyone you know has been a victim of racial profiling contact one of our New York Personal Injury Attorneys at Orlow, Orlow, & Orlow.

Source: NY Daily News