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.

How Bankruptcy Affects the Ability to Sue for Injury in New York

It is absolutely essential that an individual contemplating a lawsuit for an injury inform his or her lawyer of any bankruptcies, past or present. If there is a pending bankruptcy, then any potential lawsuit becomes an asset of the bankrupt person. As such, the Bankruptcy Court must be appropriately notified and permission must be obtained to pursue the case. If, for any reason, a lawsuit proceeds while there is a pending bankruptcy, and this is done without the permission of the Bankruptcy Court, then upon notification of the bankruptcy proceeding, the court in which the injury lawsuit is pending will automatically dismiss the lawsuit.

This could have dire consequences since the time within which the lawsuit could be started may already have passed so that there might be no chance to bring that suit again once the situation with the Bankruptcy Court is rectified.

At The Orlow Firm you will be dealing with an attorney knowledgeable in personal injury law and the numerous rules, regulations and laws specifically associated with personal injury lawsuits is vital because of highly technical matters such as bankruptcies. Your personal injury lawyer will also work in close consultation with the attorney handling your bankruptcy.

LAWSUITS BY PUBLIC EMPLOYEES vs. LAWSUITS BY

EMPLOYEES OF PRIVATE EMPLOYERS

In every lawsuit based on a party’s “negligence“, in addition to a recovery for “pain and suffering”, the injured party is entitled to recover for the amount the injured party paid for medical costs and for the loss of future earnings. A person with such a lawsuit who is in the PRIVATE sector has any eventual award they win reduced by any reimbursement they have received, or will receive, through such vehicles as medical insurance, disability payments or disability pensions. This stands to reason: the law does not allow a windfall to the injured party by permitting “double dipping”.

This was not so with New York PUBLIC sector employees.

Until just November, 2009 any New York PUBLIC sector employee, suing any municipality or subdivision, could recover for medical costs and future earnings regardless of the fact they already received, or would receive in the future, reimbursement for those items from some other source, such as a union disability pension or fund. A true “double dipping” windfall. This situation has ended by act of the New York Sate legislature. The situation for the Public sector employee is now the same as for the Private sector employee (and likewise, for the Private sector employer and the Governmental employer) “double dipping” is over, for everyone! In this time of deep cuts in all governmental budgets, New York City alone stands to save about fifteen million dollars this year because of this new legislation. Small wonder this legislation passed almost unanimously in both houses of the New York State legislature.

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!

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