New York State Bar Association Seminar-Basics of Handling An Auto Accident Case (2012)
Our partner, Chris Sallay discusses motion pratice related to automobile cases.
By Anthony H. Gair
Preparing the plaintiff for deposition in a personal injury action is perhaps the most neglected element in personal injury cases. Before the plaintiff’s deposition is conducted, the defendant’s counsel has been served with a Bill of Particulars, has obtained all available medical records and police reports and has visited the scene. That information will be used during the plaintiff’s deposition. How do you prepare your plaintiff. Some basic rules are worth remembering.
Rule 1. – Know Your Plaintiff
Your plaintiff’s knowledge and his ability to testify as to the occurrence will often be directly related to his status regarding the claim made. In the case of an automobile accident, the plaintiff will be either a driver, passenger or pedestrian.
Unless it is a case where proof of a prima facie case will come from other than the plaintiff (and, in most cases, even if it will), the plaintiff must be prepared to testify at least sufficiently to make out a prima facie case.
Your client must be as thoroughly prepared as possible. This means taking the plaintiff to the scene of the accident prior to his deposition if possible. It means making certain that the plaintiff knows the basic facts and has been ingrained to repeat them in response to any question concerning them. It means familiarizing your plaintiff with concepts of time, space and direction. Most importantly, it means preparing your plaintiff with the same degree of diligence and concern as you would if he or she were about to testify at trial rather than at deposition.
Do not try to create abilities to answer which simply are not there. Train, teach and educate on the essential elements of the case. Don’t worry about the minor details. If you concentrate on those, your plaintiff may get the minutiae correct and blow the case out of the water by not responding properly to the important questions.
Rule 2. – “I Don’t Know”/”I Don’t Remember”
For reasons most likely inbred in us during our elementary school education, most people, including injured plaintiffs, seem to have an overwhelming desire to answer whatever questions might be asked of them, whether they know the answer or not. You must teach the plaintiff the concept of being able to respond “I don’t know” when such is the case or “I don’t remember”, when such is the case. Of course, this does not mean that the client should be asserting that he or she does not know or remember if he or she were injured. It does, however, mean that the plaintiff should be trained not to throw out an answer simply because a question is asked. And the plaintiff must be taught the difference between not remembering and not knowing. This is particularly important in cases where memory might be refreshed following a deposition. Memory can be refreshed; knowledge cannot be. The basic rule is that the plaintiff must be told not to guess if he doesn’t know the answer to a question. It must be explained to the plaintiff that the deposition will be used to impeach him at the time of trial.
Rule 3. – An Adversary Is Not A Buddy
Explain to the plaintiff that the attorney who is doing the questioning is not his best friend. That smiling amicable, nice man or woman on the other side of the table, regardless of the charm and warmth shown during the deposition, will not invite your client to dinner that night and is there only to destroy his case. You know that. Remind your client of it. Also, we work in a small community and know many of our adversaries. If you want to have a friendly chat with an old friend do it after the deposition and never in front of the plaintiff.
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Our Partner, Chris Sallay, will be speaking at The Advanced Uninsured/Underinsured Motorist Law Seminar sponsored by NBI. From NBI, “Statistics say that six out of ten drivers on the road carry inadequate or no insurance. With the largely voluntary nature of UM/UIM insurance coverage and rapidly changing statutory and case law, you have your work cut out for you. Don’t struggle through the mountains of legalese alone. Join us at an engaging analysis of current issues in the law and practice of UM/UIM and get the latest legislative updates along with a balanced view of today’s challenges. Register today!” The seminar will be held on Friday, September 21, 2012, 9:00 am-4:30 pm at The Hilton Long Island 598 Broadhollow Road Melville, NY.
Chris will be speaking on BAD FAITH – AN INDELIBLE PART OF UM/UIM PRACTICE? and UM CASES.
For complete information on the seminar and to register click here.
Our partner, Ben Rubinowitz, will be representing the Medina family in their medical malpractice case against Montefiore Medical Center. On May 23, 2012, Yolanda Medina, 41 in an act of pure altruism, attempted to donate a kidney to her brother Roberto Medina, 39 as part of Montefiore Hospital’s voluntary Live Organ Donor Transplant Program. Roberto Medina has been on dialysis suffering from renal failure since early February.
During the voluntary Live Organ Donor Transplant Yolanda Medina bled to death as a result of her aorta being negligently severed during the organ harvesting surgery. Yolanda’s death ended any chance of using her kidney for this life saving procedure for her brother, Roberto. Mr. Rubinowitz stated; “This is a terrible tragedy. Out of the goodness of her heart and sheer kindness, one woman attempted to save her brothers life; unfortunately her kindness resulted in tragedy. It is our firm’s responsibility to the Medina family to provide them with the security that they deserve as a result of this horrific event.” The Montefiore Medical Center has recently suspended its live organ donor transplant program.
Roberto Medina has still not received a kidney. He awaits transplant surgery. The Montefiore Medical Center had scheduled another transplant for Roberto Medina on Thursday, June 7, but the surgery was abruptly canceled. Montefiore Medical Center officials had not obtained the proper federal approvals required to expedite a transplant. Mr. Rubinowitz, responded that, “The entire Medina Family is devastated. Roberto lost his sister. He was told they have a kidney for him. He gets his hopes up, only to be told he’s not going to have the surgery. You can’t imagine the disappointment that the entire family is experiencing right now. Why didn’t they tell him he would have to wait for a transplant? I believe the hospital was well intentioned in finding him a kidney, but the communication on their part was, simply put, horrible.” Four months after starting dialysis, Roberto Medina still does not have a kidney designated to him. “It is our hope that a kidney will become available before it is too late,” said Rubinowitz. “This family has suffered enough heartache. A young woman died as a result of medical negligence. She was an innocent victim of medical carelessness. At this time I hope a kidney can be found for this wonderful young man, Roberto Medina, before time runs out on him.”
Our partners Anthony H. Gair and Christopher L. Sallay settled the personal injury case of a 63 year old female pedestrian who was struck by a motor vehicle traveling in reverse on a one-way street. The case settled prior to trial for $2,050,000.
As a result of the accident, the plaintiff sustained spinal fractures from L1 – L4, which required corrective surgery. The defense claimed that he never saw the plaintiff prior to his vehicle striking her as she was bending over in the street looking for her gloves. The defense further alleged that the plaintiff made a full recovery and required no additional treatment following the initial surgery.
The New York Personal Injury Lawyer at Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf have years of experience representing people who have suffered injury in all types of accidents in New York.
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Christopher Sallay |
Our Partner, Chris Sallay is the Co-Chair of this New York State Bar Association seminar together with Robert A. Glick, Esq; Brand, Glick & Brand, PC. Our Partner Anthony Gair will be speaking at the New York City and Long Island seminars.
PROGRAM DESCRIPTION:
This full-day practical skills program is designed for the newly admitted attorney or the attorney seeking a fundamental but practical overview of handling an auto accident case. A representative case will be reviewed from inception to conclusion from both the plaintiff and defense attorney perspective. The step-by-step practical aspects of the case will be presented by experienced attorneys to demonstrate both the practical aspects of each phase of the litigation as well as the overall thought process behind each phase leading to the ultimate resolution.
AGENDA:
8:30-9:00 REGISTRATION
9:00-9:50 1. INTAKE OF THE PLAINTIFF’S CASE – THE ASSIGNMENT OF THE CASE FOR THE DEFENDANT FROM THE INSURANCE COMPANY
The Plaintiff’s Perspective:
Preliminary Investigation Highlights of the “Typical Case”
The Mechanics of Auto Collisions and Issues Relating to Accident Reconstruction Obtaining Information from the Roadway – Visibility and Traffic Control Devices Soft Tissue Injury Auto Accident Cases – The Serious Injury Threshold Early Settlement The Defendant’s Perspective:
Analyzing Liability, Damages, Threshold, Potential Exposure Knowing Whether to go Down the Road of Settlement or Trial 9:50-10:40 2. NO-FAULT ISSUES AND COVERAGE CONCERNS
No-Fault Coverage – Who is Eligible and Filing Requirements Statutory Requirements for Auto Insurance Coverage in New York The Basics of the Automobile Liability Insurance Policy – Primary and Excess/Umbrella Coverage Uninsured/Under Insured Motorist Coverage Considerations 10:40-10:50 BREAK
10:50-11:40 3. DISCOVERY
Notices for Discovery and Inspection Bills of Particulars The Preliminary Conference The IME 11:40-12:30 4. TAKING A MEANINGFUL DEPOSITION
Preparation is the Key Avoid the Boilerplate, Look up from your Outline and Listen to the Answers All Police and Accident Reports Scene and Vehicle Photos All Medical Records Other Documents – Repair Estimates, Diagrams, etc.
12:30-1:30 LUNCH (on your own)
1:30-2:20 5. MOTION PRACTICE RELATED TO AUTOMOBILE CASES
The Plaintiff’s Summary Judgment Motion – Not just in Rear-end Collision Cases The Serious Injury Threshold Motion – Making and Defeating It 2:20-3:10 6. MEDIATION, ARBITRATION AND SETTLEMENT NEGOTIATIONS
The Mediation/Arbitration Statement Witnesses and Exhibits Remembering the Audience during Discussions 3:10-3:20 BREAK
3:20-4:10 7. ETHICS
Ethics Issues Related to Automobile Litigation Contingent Fee Agreements Advertising and Solicitation The Difficult Client 4:10 ADJOURNMENT
PROGRAM FACULTY:
Overall Planning Chairs
Robert A. Glick, Esq., Brand, Glick & Brand, PC, Garden City, NY Christopher L. Sallay, Esq., Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf, New York, NY Local Panels (listed in order of appearance)
THURSDAY, MAY 31, 2012
New York City
Chair: Christopher L. Sallay, Esq., Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf, New York, NY
Panel: Christopher L. Sallay, Esq., Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf, New York, NY * Robert A. Glick, Esq., Brand, Glick & Brand, PC, Garden City, NY * Nicholas Papain, Esq., Sullivan Papain Block McGrath & Cannavo P.C., New York, NY * Anthony H. Gair, Esq., Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf, New York, NY * Brian T. Stapleton, Esq., Goldberg Segalla LLP, White Plains, NY
TUESDAY, JUNE 5, 2012
Albany
Chair: John W. Bailey, Esq., Bailey Kelleher & Johnson PC, Albany, NY
Panel: John B. Casey, Esq., Dreyer Boyajian LLP, Albany, NY * Jeanne M. Gonsalves Lloyd, Esq., Friedman, Hirschen & Miller LLP, Albany, NY * Vincent J. DeLeonardis, Esq., Bailey, Kelleher & Johnson, P.C., Albany, NY * P. Baird Joslin, Jr., Esq., O’Connor O’Connor Bresee & First PC, Albany, NY * Mackenzie C. Monaco, Esq., Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., Albany, NY * Jeffrey K. Anderson, Esq., Anderson, Moschetti & Taffany, PLLC, Latham, NY * John W. Bailey, Esq., Bailey Kelleher & Johnson PC, Albany, NY
WEDNESDAY, JUNE 6, 2012
Long Island (Melville)
Chair: Robert A. Glick, Esq., Brand, Glick & Brand, PC, Garden City, NY
Panel: Robert A. Glick, Esq., Brand, Glick & Brand, PC, Garden City, NY *Christopher L. Sallay, Esq., Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf, New York, NY * Robert S. Santander, Esq., American European Insurance Group, Inc., New York, NY * Nicholas Papain, Esq., Sullivan Papain Block McGrath & Cannavo P.C., New York, NY * Anthony H. Gair, Esq., Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf, New York, NY * Brian T. Stapleton, Esq., Goldberg Segalla LLP, White Plains, NY
Syracuse
Chair: Michael P. Kenny, Esq., Kenny & Kenny PLLC, Syracuse, NY
Panel: S. Robert Williams, Esq., Williams and Rudderow, Syracuse, NY * Benjamin C. Rabin, Esq., The Rabin Law Firm, Syracuse, NY * Erin K. Skuce, Esq., Law Offices of Destin C. Santacrose (Employees of Liberty Mutual Group, Inc.), Buffalo, NY * Sandra J. Sabourin, Esq., Goldberg Segalla LLP, Syracuse, NY * Michael P. Kenny, Esq., Kenny & Kenny PLLC, Syracuse, NY * James E. Reid, Esq., Greene & Reid, PLLC, Syracuse, NY * Paul G. Ferrara, Esq., Costello, Cooney & Fearon, PLLC, Syracuse, NY
THURSDAY, JUNE 7, 2012
Buffalo
Chair: Paul J. Callahan, Esq., Law Offices of Sliwa & Lane, Buffalo, NY
Panel: David F. Kluepfel, Esq., Cascone & Kluepfel, LLP, Garden City, NY * Leonard D. Zaccagnino, Esq., Shaw & Shaw P.C., Hamburg, NY * Joseph M. Schnitter, Esq., Brown & Kelly, LLP, Buffalo, NY * Jennifer Stashko Adams, Esq., Adams Hanson Finder Hughes Rego Kaplan & Fsibein, Williamsville, NY * Leonard M. Cascone, Esq., Cascone & Kluepfel, LLP, Garden City, NY * Michael T. Coutu, Esq., Law Offices of Sliwa & Lane, Buffalo, NY * Jeffrey F. Baase, Esq., Rupp, Baase, Pfalzgraf, Cunningham & Coppola, LLC, Buffalo, NY * Peter M. Kooshoian, Esq., Rosenthal, Siegel & Muenkel, LLP, Buffalo, NY
DATES AND LOCATIONS:
THURSDAY, MAY 31, 2012
New York City Affinia Manhattan 371 Seventh Avenue at 31st Street New York, NY 10001-3984 (212) 563-1800
TUESDAY, JUNE 5, 2012
Albany New York State Nurses Association 11 Cornell Road Latham, NY 12110 (518) 782-9400
WEDNESDAY, JUNE 6, 2012
Long Island (Melville)
Melville Marriott Long Island 1350 Old Walt Whitman Road Melville, NY 11747 (631) 423-1600
Syracuse Genesee Grande Hotel 1060 East Genesee Street Syracuse, NY 13210 (315) 476-4212
THURSDAY, JUNE 7, 2012
Buffalo Holiday Inn Amherst 1881 Niagara Falls Blvd.
Amherst, NY 14228 (716) 691-8181
The last day to pre-register online is May 30, 2012. Register online now
In Vasquez v. County of Nassau, 2012 NY Slip Op 00508 decided on January 24, 2012 The New York Appellate Division 2d Department affirmed a jury verdict of $3,025,000.00. The case was tried by our partner Howard Hershenhorn in Nassau County Supreme Court. Our partners, Rhonda Kay and Richard Steigman handled the appeal.
On Oct. 18, 2003, plaintiff’s decedent Maria Araujo, 34, was crossing Washington Street, at the corner of Jackson Street, in Hempstead. She was carrying her 3-year-old son, plaintiff Fernando Araujo. Glory Upke was driving a sport utility vehicle north on Washington Street, and a public bus, driven by William Malloy, was traveling on the westbound side of Jackson Street. The bus struck the right rear quarter panel of Upke’s vehicle. Upke’s vehicle spun in a counterclockwise direction and struck and killed Maria Araujo. Fernando was also hurt. The Appellate Division set forth the facts of the accident as follows;
“This case stems from an accident involving multiple vehicles and two pedestrians at the intersection of Jackson Street and Washington Street in Hempstead, which was governed by traffic light signals. The decedent was carrying the infant plaintiff, her three-year-old disabled son with Down Syndrome. As the decedent crossed Jackson Street on the north side of the intersection in the crosswalk, she was struck by a vehicle operated by the defendant Glory E. Upke, after that vehicle was struck by a bus operated by the defendant William Malloy and owned by the defendant Metropolitan Suburban Bus Authority. The force of the impact propelled the decedent into the air and caused her to let go of the infant plaintiff. Prior to the accident, the bus was traveling in a westerly direction on Jackson Street, and the Upke vehicle was traveling in a northerly direction on Washington Street.
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Ben B. Rubinowitz |
Our partner, Ben Rubinowitz, achieved one of the highest awards for an 83 year old man who suffered a fractured leg as a result of being struck by a car: $1,120,000.00. The injured man was an 83 year old pedestrian who was standing next to his car when struck. The man, who had suffered from heart problems and cancer prior to the accident, underwent surgery for a fractured femur. As a result of the accident he now has difficulty walking. “I am extremely pleased with this result” said Rubinowitz who explained that “often times insurance companies feel that because an injured individual happens to be in his 80’s or is elderly that the case has little or no value. That type of ugly age discrimination is simply not tolerated by our firm. If we agree to take a case it makes no difference to us if the injured person is 8 or 80. We give the same effort regardless of age.” Perhaps this is why the lawyers at Gair Gair Conason Steigman Mackauf Bloom and Rubinowitz have achieved the best results for victims of car accidents, construction accidents and medical malpractice cases over their 90 plus year history. “Simply put” said Rubinowitz “we have the talent and we have the resources — and we do one other thing — we give 100 percent effort at all times to ensure the best possible results for our clients.”
http://www.youtube.com/watch?v=QHTQ8y3c9AM
One of the best New York personal injury trial lawyers, Ben Rubinowitz, a partner at Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf , demonstrates the importance of a well prepared opening statement. The presentation was given to lawyers at a Trial Law seminar in 2009. The case involved a pedestrian who was struck by a car. The driver of the car claimed, in a misleading and improper manner, that the pedestrian was fully at fault for the happening of the accident. The medical proof told a very different story than the less than truthful statement of the driver.
In this new program, an outstanding faculty, including partners of many of New York State’s leading plaintiff and defendant personal injury law firms, will focus on specific types of cases frequently encountered in motor vehicle litigation. Open to both new and experienced attorneys, this practice-based program will present the “nuts & bolts” of handling these types of cases from the perspective of both the plaintiff and the defendant.
Topics Include:
Program Co-Chairs:
New York Personal Injury Attorneys Blog