Archive for the ‘New York City Lawyer’ Category

Jill Mattice, a six-year veteran of the New York State Troopers was fatally injured in a head on collision with a tractor-trailer on the evening of Wednesday, January 20th. Mattice was pronounced dead on Route 23 where the accident took place.

“Her community was enhanced by her service,” Governor David Paterson said in a written statement. “Her State is humbled by her sacrifice.”

There is an ongoing investigation into the crash. She was the first female to have ever been killed on the job in the state of New York.

Source: New York Daily News

NEGLIGENCE: DUTY AND FORESEEABILITY

The overwhelming number of personal injury cases involve an act of “negligence” by one individual that results in an injury to another.   However, the fact that one individual’s negligent act results in another individual’s injury does not automatically create a valid basis for a lawsuit by the injured party against the negligent party.

The most famous “tort” (“tort”= a civil wrong) case studied by every law student for generations is Palsgraf v. Long Island Railroad. Mr. Palsgraf was standing on a train platform after buying his ticket, near some scales.  At the other end of the platform some men were rushing onto a train.  Conductors on the train helped the men aboard, but in the rush one man dropped a package which contained fireworks.  The fireworks exploded, causing the scales near Mr. Palsgraf, at the other end of the platform, to fall and injure Mr. Palsgraf.    Was the LIRR liable to Mr. Palsgraf for the injury he sustained?

The appeals court discussed  whether, in the first instance, there was any duty owed  Mr. Palsgraf by the LIRR and its conductors, since he was so far from the scene of the activity involving the alleged  negligence.  The lower court  ruled that there was a duty owed to Mr. Palsgraf.  The appeals court (overruling the lower court that found in favor of Mr. Palsgraf) decided that it was not reasonably foreseeable that the action by the conductors would result in injury to someone as remote as Mr. Palsgraf was to the scene of the acts. Consequently, there being no “duty”, there is no basis for the LIRR’s liability !

Since that case, courts have differed considerably in determining the basis as to whether negligent parties owe a duty to, and therefore become liable for, injuries that occur to remote individuals. The Palsgraf court established the principle of “foreseeability”–would a reasonable person have foreseen the possibility of the incident resulting in injury, in the manner the accident occurred?

Other courts have adopted a broader definition: was there a continuous and direct connection between the cause (the negligent act) and the effect (the injury)?   “Foreseeability” of the exact occurrence is not as dramatic an issue in this latter scenario.

“FORUM SHOPPING”

PICKING THE COURT THAT’S “RIGHT” FOR YOU

CHOICE  OF  “VENUE”

As any experienced litigation attorney will explain, more often than not there will be a choice of courts in which to bring a lawsuit you may be contemplating.  Among attorneys, this is known as choosing a “venue.”

Often the venue choice will be between state courts in different counties.  Other times, it may be a matter of choosing to bring the case in either a state or a federal court.

Experienced attorneys fully realize that the choice of “venue” at the very beginning of a case can, in and of itself, spell the difference between  great, or merely modest, success,  and at times it can even mean the difference between success and complete failure!

In 2004 a disabled passenger fell down a flight of stairs while disembarking from a commuter airline (Elasaad v. Independence Air) in Philadelphia.   The lawsuit was brought in the state court.  The state court ruled that federal law applied.   Since federal law requires that a disabled passenger must request assistance before the airline is obligated to lend assistance, and the passenger in this case failed to request assistance, the case was dismissed by the state judge.

Since appeals are both time consuming and costly, pursuing an appeal from a court decision is not a frequent event.In this case however, an appeal found its way to the Federal Court of Appeals which reversed the state court decision.  The Federal Appeals Court found that while federal rules do apply while the plane is in flight, state laws may apply while passengers are disembarking. Federal law did not pre-empt state law in such a situation. The case, originally brought by the Plaintiff in state court, may stay in state court and state law may apply. Since state law does not require a prior request for assistance to an airline by a disabled passenger, before the airline becomes responsible, the passenger was victorious.

While the attorneys in this matter certainly chose the correct court originally in which to bring this lawsuit, it was the original court that got the law wrong!  The diligence of the Plaintiff’s attorneys corrected that mistake.  Future attorneys will take note of this case.  Those attorneys that keep track of cases as they develop (which is essential for any competent, experienced attorney), will be aware that the choice of venue in cases of this nature will be the state, and not federal, court.

“Forum shopping” extends beyond issues of conflicting laws.  Often it concerns itself with more subtle issues.  We will touch on this subject in another posting.

“FORUM  SHOPPING” II

PICKING THE COURT THAT’S RIGHT FOR YOU: CHOICE OF “VENUE”

As we have seen, with respect to situations where state law may differ from federal law, and both state and federal jurisdiction exists, the fact situation of the case may determine the most advantageous court in which to bring your lawsuit.   There are, however, several other factors that will be considered by the experienced litigator, particularly in personal injury cases, in deciding which court to file your lawsuit, presuming a choice exists.

Time limits that restrict, or even eliminate, your pursuit of an action in state court may well be viable in Federal court.

This could also hold true should you have a choice of bringing an action in the courts of different states–the Statute of Limitations in one state could well differ from that of another state.

AM I LIMITED TO GETTING WORKERS COMPENSATION?

During the last week of May of this year (2010) alone, there were two serious construction site accidents involving falls from significant heights. One involved a worker at a residential building falling fifty feet while he was working on the building’s steel framework. The other involved a worker at the Throgs Neck Bridge.

The first worker died after falling fifty feet. The bridge worker fell 15 to 20 feet off a ladder and was seriously injured.

With respect to the worker that died, officials indicated that it seemed as if he was not wearing a safety harness ! It is precisely this point to which we direct our attention.

There are several facts that make accidents at construction sites unique in the area of Personal Injury Law in New York:

• Construction site accidents are among the most frequent accidents that occur;
• The resulting injuries are among the most serious that occur;
• Public policy is very inclined to seek protection for injured workers and their families;
• the law, especially with respect to liability (who is responsible for the accident that occurred) is not at all necessarily what the layman might think it is–the law can be extremely complex.

The fact that the worker that fell and was not wearing a safety harness should not, and does not, eliminate the possibility that the worker or his family will have a THIRD PARTY LAWSUIT available to him. This would be in addition to any workers compensation claim the worker or his family might have.

It is truly esential when dealing with a construction site accident that a personal injury attorney, in addition to a workers compensation attorney, be consulted. As we have noted on previous blog postings, this could mean very substantial differences to the injured worker and his family. Because of the law’s complexity in this area, be very certain the Personal Injury Attorney chosen is well experienced in this important area of law.

While virtually everyone has heard the term “citizen’s arrest” used at some point in time, rarely do people realize that the term has specific legal meaning and potentially serious legal implications.

The former chief crane inspector for New York City began serving a two to six year prison term after having pled guilty in March (2010).  His conviction was for taking bribes for approving the use of cranes he had not actually inspected, and for issuing crane operator licenses to unqualified individuals.

This investigation was prompted by the collapse of two cranes in 2008.  In the first collapse, seven individuals died; in the second collapse, two individuals died.   The defense attorney noted that the cranes involved in these accidents were not of the type for which the defendant was accused of taking bribes.

The punishment, while severe, may well have been even harsher were it not for the fact that the defendant suffers from a pulmonary disease brought on by his work supervising crane operations at Ground Zero after the 9/11 tragedy.

“SUBSTITUTION OF ATTORNEYS”

SO YOU WANT TO CHANGE YOUR LAWYER

It is a fact of life that Personal Injury lawsuits, as a general rule, require years, rather than months, to reach a conclusion. This is a product of both the nature of a personal injury lawsuit–which requires investigation and “discovery”– and crowded court calendars. This situation also leads to the increased chance that a client will become dissatisfied, in some manner or for some reason, with some aspect of his or her attorney’s performance.

It is the absolute right of any client to dismiss their attorney at any time. It is also the right of that client to choose another attorney and to replace the dismissed attorney with another attorney. In legal parlance this is known as “SUBSTITUTION OF ATTORNEYS.” No grounds need be stated–though any responsible attorney to be “substituted” will want to know the reason he is being asked to replace the original attorney. The ethical attorney would be reluctant to accept the client if the reason being presented was one which the newly approached attorney would not be able to improve upon.

One of the most common reasons that clients give for dissatisfaction with their attorneys , as inexplicable as it is, is that the attorney does not respond to phone calls; that inquiries go unanswered; that the client feels as if they are ignored. Attorneys are often overworked and very busy. However, an attorney owes their client the respect and consideration of answering their inquires as expeditiously as possible, and that should be considered part of the responsibility in every case that is accepted by the attorney.

That is not to say that, rarely, clients can be unreasonable in the frequency of their requests for information. But experience shows that this is the infrequent exception. Unfortunately, the failure of attorneys to respond to their clients is a far more frequent occurrence.

An oft repeated complaint by clients is that they have not heard anything from their attorneys for a long period of time. The conclusion reached is that, therefore, nothing is being done on the case. This is harmful to the attorney client relationship and unfortunately is based on lack of knowledge about the activity involved in a personal injury case. While some participation by a client is necessary, such as depositions, attendance at medical examinations and perhaps supplying needed documentation, it is very limited in nature. The attorney is also involved in investigations, discovery of documentation from the other parties, possible motions, depositions of parties and witnesses and a variety of conferences. For most, if not all of these events, it is not necessary to involve the client. So while the attorney is very busy on the case, the client is unaware of the activity and deems the attorney to be idle. To inform the client of every event taking place, for every case in an attorney’s office, would indeed be excruciatingly time consuming and would probably generate client phone calls that would also consume an attorney’s time that could be far more productively be used elsewhere. It is somewhat of a dilemma.

Additionally, once ALL of the work on a case is completed, and usually not until all the work is completed, the case may be put on the court calendar (“filing the Note of Issue”). Filing the “Note of Issue” places your case in line to have a trial. Courts throughout the State of New York vary in the time it takes for a case to reach trial once the “Note of Issue” is filed. In New York City, it can vary from about eight months to two years, depending on the backlog of the particular court. This creates another problem in client relations: “dead time,” while the client is wondering what is happening to the case. Once a case is placed on the calendar, it would be a good idea for an attorney to so notify the client and make the client aware of the situation.

If, for whatever reason, the client feels compelled to change attorneys, and locates another qualified attorney with whom they believe they will find greater satisfaction (recognizing that the familiarity with the case gained by the first attorney may be sacrificed in the switchover), the client should realize that the fee charged to the client WILL NOT CHANGE. It will be the obligation of the old and new attorneys to arrange, between themselves, exactly how they will share the original fee charged the client by the first attorney. The client will in no way be penalized in terms of the fee for the desire to change attorneys.

Changing attorneys, while the absolute right of the client, should not be undertaken lightly. Suggestion: Speak with your attorney and tell them frankly of your dissatisfaction and see if it would be possible to remove the cause of your dissatisfaction before making this important decision.

SO YOU WANT TO CHANGE YOUR ATTORNEY

There are times when a client wants to change his or her attorney.  May the client do so?  Absolutely.  A client has the right to change his or her lawyer at any time.

There is more good news for the dissatisfied client.  Once he finds another attorney to replace the attorney he has, the client need not have any contact whatsoever with his former attorney.  The client signs a “Consent to Change Attorney” form and the new lawyer takes care of all the other details.   What’s more, the final fee the client will end up paying, to either or both attorneys, will TOTAL no more than the fee the client was going to pay the original attorney.   It will be up to the former and new lawyers to work out their fee arrangement.

The most common reasons for client dissatisfaction with their lawyer are:

1. Failure of the lawyer to return phone calls.
2. Failure to hear from their attorney in a long period of time.
3. Disagreement as to the value of the client’s case.
Reputable attorneys, receiving a call from a client wishing to change their attorney, will closely question the client to determine if, indeed, their firm would be in a better position to satisfy that client.   Knowingly taking a matter from another attorney when there is little or no chance to realistically rectify the “problem” described by that client would be, arguably, unprofessional.

From an attorney’s point of view there may be other reasons to be reluctant to accept the new matter.  If the matter is already at an advanced stage, when much of the discovery in the case is complete, and the date for trial may not be far off, there could be great hesitancy on the part of the new attorney to accept the case. Experienced attorneys have standards they adhere to, and there may be great reluctance to be tied into the work of a prior attorney whose standards may be different, and there would not be enough time to rectify what may not be acceptable to the new attorney.

One important word of advice to a client thinking of changing attorneys:

make the effort to speak with the old attorney and state explicitly what the problem is.  More often than not, the attorney will make every effort to accommodate the client. For more information contact one of our New York Personal Injury Attorneys at Orlow, Orlow, & Orlow.