Advice About Changing Your Legal Representation | New York Personal Injury Attorney

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 The Orlow Firm.

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Why Personal Injury Cases Take So Long: Part V – Settlement or Trial; B: Trials | New York Personal Injury Law

THE PERSONAL  INJURY  CASE
WHY PERSONAL INJURY CASES TAKE SO LONG
PART V: SETTLEMENTS AND TRIALS
B.  Trials

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 The Orlow Firm 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.

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Why Personal Injury Cases Take So Long: Part V – Settlement or Trial; A: Settlements | New York Personal Injury Law

Why Personal Injury Cases Take So Long

Part V: Settlement or Trial

A. Settlements

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 The Orlow Firm for more information.

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Why Personal Injury Cases Take So Long: Part IV – Discovery | NYC Personal Injury Attorney

WHY  PERSONAL  INJURY  CASES  TAKE  SO  LONG PART IV: DISCOVERY :

Once a case begins, there is a “pipeline” of events through which the case must pass.   This pipeline is meant to insure that the case moves along as expeditiously as possible and that the parties to the lawsuit, and in particular their attorneys, take the necessary measures in a timely fashion so that the case will reach a conclusion within a somewhat reasonable time.  What “reasonable” consists of is undoubtedly measured differently by the client, and those used to working in the court system.

There are requirements for the submission of certain documents triggered by the initiation of the lawsuit.   After the service of the “Complaint” upon the Defendant, the Defendant must serve an “Answer” upon the Plaintiff.  The Answer virtually always contains a “Demand for a Bill of Particulars” from the  Plaintiff ..   The “Bill of Particulars”, provided to the Defendant by the Plaintiff, is then given in response to the Defendant’s Demand.  The Bill of Particulars sets forth answers to questions posed by the Defendant in the Defendant’s Demand, and usually covers many items, including the way the accident occurred and the specific injuries sustained by the Plaintiff as a result of the accident.

This “pipeline” also consists of certain required conferences where the attorneys set dates for the exchange of information between the parties, and set the dates for depositions, (commonly known as Examinations Before Trial) of the parties–opportunities for all parties to question each other about the facts of the case.   The information to be exchanged consists of such items as medical records, repair and maintenance records, employment information, school records and other items that may bear directly on the issues being raised in the particular case.

There is a target date set for when ALL discovery must be completed–often a year or more in advance of the first conference depending on the county where the case is brought–which is influenced by the case load in that court.  At that point a Note of  Issue must be filed, which places the case on the trial calendar of the court.   Your case is then “on line” waiting for a trial.  Again, depending on the county, this wait can be anywhere from several months to more than a year–depending on how crowded the trial calendar is in that county !

Delays often occur when one party or the other, for a variety of reasons, fails to provide the demanded information to the opposing party.  In that event the recourse is for the party seeking the information to make a “motion” in court asking the court to intercede and force the recalcitrant party to produce the information sought.  The aim is to attempt to complete all “Discovery” by the time set by the court for filing the “Note of Issue”. Contact one of our New York Personal Injury Attorneys today.

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Why Personal Injury Cases Take So Long: Part III – Beginning Litigation

PART III : BEGINNING LITIGATION

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 The Orlow Firm before your opportunity to litigate disappears!

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Why Personal Injury Cases Take So Long: Part II – Intake | New York Personal Injury Attorney

THE PERSONAL  INJURY CASE – WHY PERSONAL INJURY CASES TAKE SO LONG, PART II : “THE INTAKE”

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 The Orlow Firm our New York City Personal Injury Attorneys can help you with your case. Call us today.

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Why Personal Injury Cases Take So Long: Part I – Pre-Intake Phase | NYC Personal Injury Attorney

THE PERSONAL INJURY CASE WHY PERSONAL INJURY CASES TAKE SO LONG: Part I – PRE-INTAKE PHASE

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 The Orlow Firm we have been handling personal injury cases in New York City for over 30 years.

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Why Do Personal Injury Cases Take So Long? Introduction

THE  PERSONAL  INJURY CASE: WHY PERSONAL INJURY CASES TAKE SO LONG: Introduction

One of the inevitable questions a new, or potentially new, client will ask is how long can he or she anticipate it will take until their case is finished.   The honest answer is seldom welcome: though cases have been known to finish in a matter of months, these are the very rare exceptions.  The client should realistically expect the case to last two to four years, with two and a half to three years being average!

It is fair for the client to wonder why a case should take so long.

The purpose of  the articles in this series is to make an attempt to explain why such a seemingly long time is needed to complete this task. At The Orlow Firm we want our clients to understand every aspect of their case. While the explanation may not alleviate the distress at the long haul involved, it will, hopefully, clarify the reasons and thereby give the client a basis for seeing at least some benefit to this lengthy time factor.

Our New York City Personal Injury Attorney series will begin with the “Pre-Intake” phase, followed by “The Intake”, “Beginning Litigation”, “Discovery” and then “Settlement or Trial”.

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Stunning Conclusion by a US Federal District Court Judge | False Arrest | NYC Personal Injury Attorney

FALSE ARREST | STUNNING CONCLUSION BY A UNITED STATES FEDERAL DISTRICT COURT JUDGE

One of the most erudite, intellectually gifted and respected judges on the federal bench, long time Eastern District Court Judge Jack Weinstein, stunningly admonished the New York City Police Department for “widespread falsification by arresting officers.”

What was particularly astonishing is that, in deciding against a motion by the New York City attorneys to have a federal case thrown out, on the basis that no evidence was presented to the court that police lying is tolerated by the NYPD, the judge relied not on evidence in the case before him. Rather, the judge stated that his decision that police lying may well be construed as an official policy of the NYPD, rests on “Informal inquiry…” among the judges of the Eastern District and other “…anecdotal evidence of repeated, widespread falsification by arresting officers…” of the NYPD.

The judge noted that while the vast majority of police officers are honest,

and in spite of the fact that training for recruits has improved and disciplinary action, when taken, is tough, there is evidence that an attitude, which condones lying among police officers, is sufficiently widespread to suggest that it amounts to a “custom or policy” by the City of New York. This, in turn, amounts to approval of illegal conduct by the City and the Police Department.

In practical terms, this decision certainly boosts the position of parties in their attempts to substantiate the grounds that must be demonstrated to succeed in Federal Courts, in cases based on violation of the Federal Civil Rights statute, usually relied upon in false arrest cases. For the lawyers representing clients falsely arrested, this decision will reverberate in a manner that should bring greater relief to those unjustly charged. If you have ever been unjustly charged of a crime you should call one of our NYC Personal Injury Attorneys at The Orlow Firm.

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