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.

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”.

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.

Very few venues in our society can top the sports arena as sites of accidents resulting often in serious injuries.

The subject of the injury may be either a participant in the sport, or an observer of a sporting event :  The race car driver, the wide receiver, the baseball player sliding into third base, going for the lay up;  or being hit by a foul ball in the bleachers, injured by an out of control race car, slammed by a wild hockey puck into the stands.    More disturbing, the little leaguer injured in any of a wide variety of sports engaged in by youngsters, and supervised by well meaning volunteer adults.  Add to this the myriad sports engaged in by school teams at all levels of age and proficiency, and what emerges is a plethora of sources for voluminous potential litigation.  Just imagine, a lawsuit for every injury incurred in the sporting arena !

Enter the doctrine of “Assumption of Risk”!

What this doctrine essentially means is that a person may not recover for any injury which that person sustains, when that person voluntarily exposes him or herself to a known dangerous activity, event or possible consequence of such activity or event.   Being tackled, flying pucks, speeding baseballs, outfield collisions, race car crashes–all known and anticipated possibilities to anyone participating in, or watching the event..  Injured by one of these or literally scores of other “every day” sporting  mishaps,  and you want to sue–“fuggedaboudit”!!   “Assumption of Risk” – you knew, or darn well should have known, about the risks before you started.   The courts will not be sympathetic.
Of course, the doctrine of “Assumption of Risk” does not, by any means, eliminate each and every injury incurred during the course of a sporting event from being litigated.  Especially in the case of younger athletes and school age children, the courts will look to factors that may well overshadow the “Assumption of Risk” doctrine.
The child injured when sliding into third base?   Was the coaching “negligent”?  Was the child properly taught how to slide,  minimizing potential  injury to him/herself or the opposing team’s player?  Did all the equipment used meet the required safety standards?  Was the base movable and detachable?  And of course, these issues can, and are, raised by experienced attorneys, in every situation where a child in particular, but adults as well, are seriously injured in a sports accident.  While the doctrine of “Assumption of Risk” looms very large indeed, in the field of sports injuries, a close examination of legitimate additional reasons for the injury having occurred should be pursued in all such potential cases. If you feel that this includes you please contact one of our experienced New York City Personal Injury Attorneys to assess your situation.

Are Strip Searches Allowed in New York Schools?

Increasing violence and other illegal activity occurring in our schools has seen the proliferation of “ZERO TOLERANCE” policies in many New York schools and in entire school districts around our nation. These policies, of necessity, very often involve the search of a student by New York school officials who seek to find out if the prohibited item, whether a weapon or an illegal drug, is in the student’s possession.

The question arises as to when such a search is permissible and, even more seriously, how intrusive may that search become. In June, 2009, the United States Supreme Court decided a case involving a 13 year old school girl (Susan). Another student had accused Susan of giving her drugs. The suspicion was that Susan had brought prescription strength ibuprofen to school. School officials (two females) ordered Susan to strip to her underwear, and then pull her upper and lower undergarments away from her body to see if the suspected drug was on Susan’s person. The judge that wrote the opinion for the court called this search an “…embarrassing, frightening and humiliating search…..” The decision of the Court did not give school officials a clear cut guideline to determine if a strip search is permissible. It rather set forth some guidelines that may well continue to make it very difficult for school officials in the future to decide whether or not a strip search would run afoul of the law. The guidelines the Court seemed to establish as factors:
–the extent of the danger of the contraband in question (for example: ibuprofen vs. heroin);
–how well founded is the suspicion that the contraband is hidden in an intimate place.

As Justice Souter wrote in deciding that this particular search was Constitutionally ILLEGAL:: “The content of the suspicion failed to match the degree of the intrusion” especially in light of the “nature and limited threat of the specific drugs.”Some school districts, such as the New York City Department of Education, simplify matters and ban such strip searches under any and all circumstances. Do keep in mind that as far as searches in general (not just strip searches) are concerned, the Constitutional requirements to allow a search by school officials (“a moderate chance of finding evidence of wrongdoing”) are LESS demanding than those that must be followed by the police (“Probable Cause”). Even an attempt to simplify this area of law, as we tried to do here, indicates the potential complexity involved when dealing with searches of all kinds. The services of a well seasoned New York City attorney, knowledgeable through experience in this difficult area of law, at as early a stage as possible, is invaluable in protecting your rights.

As Reported by the New York Times, A construction worker died after falling 125 feet when a tall construction lift toppled and struck a downtown Philadelphia apartment building, the authorities said. The investigators are looking to see if the construction worker who fell, was properly harnessed and all safety procedures were followed.  According to witnesses the machine operated by the construction work toppled when a city sidewalk grate gave way.

A Notice of Claim has been filed.

Experienced construction accident attorneys should immediately begin to investigate the procedures that we in place, the safety equipment as well as the construction equipment, and immediately question all witnesses.

The recent horrific incident in which a young middle school boy was attacked and set on fire by five classmates brings to the fore the very real and prevalent problem of school violence and bullying. Who is responsible for the safety of your child in school if he or she is the victim of violence while attending school?

The answer is not always simple. As a general rule, school authorities stand in the place of parents during school hours and, as such, are responsible for the safety and well being of your children while under the school’s control, both on and off the grounds of the school (such as on a school trip).

An attorney, in determining whether a lawsuit against school authorities is viable, will have several questions: where did the incident take place; has there been any prior incident between this victim and the perpetrators, of which the authorities were aware; how common are incidents of this sort in this school; does the school have regular security protection such as guards or monitors, and were these security personnel at their posts at the time of the incident, etc.

It is very unlikely that the facts of any two cases are exactly alike. The difference between a viable case, or a matter that will not yield a basis for litigation, can be the ability of the attorney considering all the surrounding circumstances and simply knowing the correct questions to ask!

Visit our website http://www.OrlowLaw.com

Steve Orlow received his law degree from Cornell Law School in 1968. Prior to forming his practice in 1981, Steve was an Assistant District Attorney in Kings County, New York and then Counsel to the county executive of Queens County, New York.

Steven was elected to the City Council in 1980 to the then existing position of “Council Member-At-Large” representing the almost two million people of Queens County in the City Council. During the latter year of his Council membership, Mr. Orlow established his law practice and, soon after establishing the practice, left the City Council to concentrate on his private practice.

Steve is a civil rights and personal injury attorney in New York.