Document Sample
  FIREFIGHTERS                                                                                                                           O

                                                                                                              FOR FIRO


               U                                                                                                    WORTH?
                                                                                                                     By Dana Cutting, Esq.

    One of the most curious aspects of           does provide some measure of justice,              Liability - No case has value sim-
 our legal system is the process of valuing      and eases the burden of living a life with    ply because the plaintiff was injured. In
 a personal-injury claim. On the one             pain. It certainly helps make up for the      order to recover, the plaintiff bears the
 hand, we understand that we cannot              economic loss sustained after a serious       burden of proving that the defendant
 put a price tag on human suffering. On          accident.                                     is legally responsible for the injuries,
 the other hand, this is precisely what the
                                                     So how is the value of your injury        that is to say, that the defendant was
 law requires us to do.
                                                  case determined? In every lawsuit, both      negligent, and the negligence led to the
      The law recognizes that a personal-        sides are trying to determine how a jury      injury. Without a finding of liability
 injury defendant cannot undo a plain-           will view the case. Even cases that do        against the defendant, the value of a case
 tiff's injury, pain and suffering. Money        not go to trial (and, most don't), are        is $0, no matter how severe the injuries.
 damages are intended to make the                viewed through this lens. Ultimately,         *->- Comparative negligence - Juries
                                   plaintiff     the value of any case is what the jury        are normally asked to apportion fault
                                    "whole."     says it is, or what the parties believe a    for the injuries between the plaintiff
                                    Of           jury would say if the case went to trial.    and defendant. A monetary award will
                                    course,      In order to settle the case, the plaintiff   usually be reduced in proportion to the
                                   money         (injured party) must be offered enough       percentage of fault that the jury assigns
                                   by            money to make it worthwhile to forego        to the plaintiff. For instance, in a typical
                                   itself will   a jury trial.                                car accident case, both drivers can be
                                   never re-
                                                 Factors that determine what your             found at fault. If our injured client is
                                   store the
                                                 case is worth                                found 25% at fault, and the jury awards
                                                                                              him $1 Million, the Judge will reduce
                                   tiff to          Here are some of the obvious, and         the award by $250,000. Fortunately,
                                   health,       less obvious factors that affect the value   comparative negligence does not apply
                                   but it        of a case:                                   to firefighters injured in the line of duty
Dana Cutting
                                                                                                                     continued on page 2	                                                        "You protect us... we protect you."
                              continuedfiom "How Much Money..." page 1

                             who bring             plaintiff require future surgery? If the      for the out-of-pocket costs they incur
                             suit under            answer is yes, the jury will likely award     for medical expenses. Sometimes the
                             General Mu-           more money.                                   amount is trivial; for example, most
                             nicipal Law §                                                       firefighters have their medical expenses
                                                   Loss of enjoyment of life - A
                                                                                                 paid by the Fire Department and pay
                             205-a; a jury   component of "pain and suffering",
is not permitted to assign any degree of                                                         very little money out of pocket. On the
                                             juries are instructed that they may                 other hand, where a plaintiff requires
fault to the injured firefighter in these    compensate personal injury plaintiffs
cases.                                                                                           lifelong intensive care, the cost will be
                                             for the loss of enjoyment of life that
                                             results from the injuries. This includes
Juries are also sometimes asked to apportion the ability to perform daily tasks, and             .4 Venue - Lawyers know all too
fault between multiple defendants, and       to participate in activities that were              well that oftentimes, the location of
sometimes non-parties. Generally, if         part of the injured person's life before            the courthouse can drastically change
the jury finds that a defendant's fault       the injury. For instance, if a firefighter         the value of the case. Historically, it has
is equal to or greater than 50%, the          loses his career due to a motor vehicle            been recognized that jurors in certain
defendant will be liable for the entire       accident, we would argue that he should            counties are more conservative when it
 amount of damages. If the defendant's        receive compensation for the loss of               comes to compensating injury vic-
 degree of fault is less than 50%, it will    his career. In some catastrophic injury            tims. Thus, for example, the very same
 only be responsible for its proportional     cases, we hire videographers to file "day          injury can be worth less in Nassau and
 share of the damages. In some types of                                                          Westchester Counties than in the Bronx
 cases, including automobile cases, this                                                         and Brooklyn.
 rule does not apply; the defendant must
 pay the entire award if it found to bear                                                        ln-►  Jury Verdict Reporters - A num-
                                                    Just because a jury                           ber of publishers compile jury verdicts
 at least 1% responsibility for causing the
 injuries.                                           awards millions of                           and settlements to assist lawyers in
                                                                                                  determining the value of an injury. In
in-► Proof of injury - Generally speak-                    dollars to the plaintiff               other words, lawyers can find out what
ing, more serious injuries are worth                       does not mean that the                 juries awarded in similar cases.
more money. Evidence of the severity
of an injury is gleaned from treating                      plaintiff will actually                It's not what you get - it's what you keep
and examining doctors, medical records                      receive that amount.                     Just because a jury awards millions of
(including prior medical records that                                                             dollars to the plaintiff, does not mean
prove that you were health before your                                                            that the plaintiff will actually receive
accident) and operative reports, results                                                          that amount. Courts routinely reduce
of diagnostic tests such as x-rays and              in the life" videos. A picture is worth a
                                                    thousand words, and videos can help           excessive jury awards (these reductions
 MRIs, from the testimony of friends                                                              don't make the headlines — only astro-
 and family, and from the testimony of              convince a jury to award the millions of
                                                    dollars that a case is worth.                 nomical verdicts make your favorite
 the injured person. The value of your                                                            tabloid's front page). If the court be
 case rests heavily on the strength of this         *.* Lost earnings - Injury victims are        lieves that the award is too high, it can
 evidence.                                          entitled to recover for both past and fu-     throw out the award and order a new
                                                    ture lost earnings incurred as a result of    trial on damages, unless the plaintiff
 *►   Permanence - Some plaintiffs
                                                    the injuries. This number varies greatly      accepts a lower amount. In arriving at
 make a full recovery from their injuries,
                                                    from case to case. Some plaintiffs lose       a settlement, both parties look not only
 and some do not. Plaintiffs who have
                                                    virtually no earnings; they are compen-       to what juries award, but to what courts
 not fully recovered are entitled to dam-
                                                    sated for their time out of work during        permit the plaintiff to keep.
 ages for future pain and suffering. The
                                                    the time it takes to convalesce. Others
 value of this will turn on the plaintiff's
                                                    are unable to return to work at all after
 age (i.e., is the plaintiff a young person
 who must now endure many decades of                an injury. We often hire economists to
                                                    compute and explain this loss to a jury.
 pain?); the severity of the injuries; and
 whether the condition is likely to im-              3"    Past and future medical expenses
 prove or worsen over time. If so, will the          - Plaintiffs are entitled to compensation                               continued on page 3

               BARAS‘MRY SALZMAN & PENSON                                                    Line-of-Duty Injuries/Pension Matters
                   We Handle All Types of Accident Cases                                  FREE CONSULTATION/CALL TOLL FREE:
                    1(888) FIRELAW 1(888) 347-3529                                           
  continued from "How Much Money..." page 2

     Available insurance You can't get             ing our clients to purchase additional        understand the "law of damages" a little

  blood from a stone. If a defendant is            uninsured motorist insurance. You must        better. Feel free to call our office hotline
  uninsured, or inadequately insured,              protect yourself and your family in case      anytime 1-888 FIRELAW (1-888-

  a plaintiff may never be adequately              you are injured in a car accident due to      347-3529) for a free consultation to
  compensated. Sadly, some of the most             the negligence of an uninsured driver.        discuss your potential injury claim. We
  worst offenders are the very ones
                                                                   * *	            *             are also happy to give you a free "second
  that lack assets and insurance. This is
                                                                                                 opinion" if you or your friend already
  one reason why we are always remind-             We hope that this article has helped you      have a lawyer. Stay Safe!

  By Dom Penson, Esq.
    One of the most widespread perceptions about personal injury lawsuits is that they
 can take a long time to conclude, sometimes many years. As a lawyer who represents
 victims of personal injury, Lunt:den asked why.-
    In fact, cases move through the legal system today far faster than they did 20 years
 ago. That is because the courts have instituted numerous reforms to minimize delays
 and speed the process of getting to trial. Still, New York State courts hear more than 3
 million cases each year. Even today, some cases may take years to resolve, especially in
 the busiest counties.
    Some cases are more complicated than others, requiring more time and work to
 resolve. In our firm, we handle all sorts of personal-injury cases, from simple cases,
 involving a trip and fall, or an intersection accident with two cars, to complex cases in-
 volving medical malpractice, or a massive fire where numerous firefighters are injured,
 and multiple governmental agencies conduct investigations.
     Whereas the simple cases may be ready for trial just a few months after they are started, the complex cases may take several years
 because they require the exchange of a blizzard of documents, a dozen or more depositions, extensive motion practice, and repeated pre-
 trial court appearances.
     The "X Factor" - Your Doctor
     Finally, there is also the "X-factor" presented by your treating doctor. When will he be able to write a comprehensive report that de-
 finitively describes your prognosis? Will you need future surgery? If so, when? What permanent physical restrictions does he believe you
will have? If your surgery is scheduled within the near future, your lawyers should wait until your doctor does the surgery and see how
well you come through it. It would be irresponsible for a lawyer to settle any case until your doctor lets us know whether or not you are
permanently disabled. Another factor may be whether your doctor believes you will need even more surgery in 10 years.
- --For instancermany knee surgeries are deemed "successful" if they permit a firefighter to return to work. Nevertheless„ the surgeon-may-- _
feel that, notwithstanding the short-term success, your knee is close to being "bone on bone". He may tell you that you are a candidate
for total knee replacement in the future. This is a huge factor in determining the value of your case. No lawyer should ever settle a case or
push it to trial until he gets a prognosis like this in writing from your doctor, and exchanges it with the defendants.
    Unfortunately, getting your doctor to write his report can sometimes take months. Sometimes we find out that your treating doctor
refuses to come to court. We then need you to see another doctor who is willing to review all your medical records, examine you, write a
report, and agree to testify. All this can delay your case even longer.
    For you, as clients, what's most important is to be sure that your attorneys are communicating the reasons for delays. Your attorneys
must also reassure you that they are working hard to resolve your case as
successfully as possible, whether that takes three months or three years.
Whatever attorney is handling your case, it's. YOUR case, whether simple
or complex, and you have the right to know what's happening, and what
to expect as the case progresses. Don't be shy. If you have questions, call
your attorney. Get informed. The better you understand the legal process
as it applies to your case, the better you will understand what to expect
and how long it will take.

                                   WHEN YOU SHOULDN'T SUE
         Believe it or not, for every ten calls                       to bringing a lawsuit. There has to be         A full recovery doesn't mean it's not
     we take from prospective clients, we ac-                         the potential for a real recovery to the       worth it
     cept just one case. In other words, more                         client, otherwise, it is simply a waste of        All of this is not to say that it's never
     often than not, we advise people not                             your time.                                     worthwhile to bring a lawsuit for small-
     to sue. Why would a lawyer turn down                             Sometimes, you have to think long              er injuries. Sometimes factors weigh in
     cases? Because not every wrong should                            term                                           favor of bringing suit, even when the
     be redressed through the legal system,                                                                          injuries heal quickly and completely.
     and it is our job to let you know when                                Firefighters routinely get hurt on the    For example, some fractures heal very
     it's in your interest to forego a lawsuit.                       job. But if a firefighter filed suit every     well; the plaintiff may make a complete
                                                                      time he got hurt, he'd have trouble            recovery, without surgery, in just a few
     Sometimes, it's just not worth it                                convincing a jury that any single ac-          months. But the nature of the injury, a
         Litigation isn't cheap. In fact, done                        cident was solely responsible for his          fractured bone, may make it worthwhile
     right, it can be inordinately expensive.                         injuries. Here is a hypothetical example:      to bring the lawsuit, especially when
     It costs money to obtain medical re-                              firefighter "A" sprains his knee while        liability is clear. The same goes for an
     cords, hire investigators, retain experts,                        fighting a fire. He is out of work for         injury that requires a long period of
     and depose witnesses. And the longer                              several weeks and requires physical            convalescence and treatment.
     litigation drags on, the more expensive                           therapy, after which he feels fine and
                                                                       returns to work. He decides to sue,              Sometimes it's clear that a person's
     it gets.
                                                                       and he ultimately gets a small recovery.      injuries are severe enough to warrant
         Ultimately, at least some portion of                          Later, he has another accident and this
                                                                                                                     a lawsuit. But sometimes it isn't. It
     these expenses are deducted from your                             time, the injuries are worse. He needs        always makes sense to talk to a lawyer if
     award. But it's not only the expenses                             surgery to the same knee. If he brings a      you have questions about whether you
     that add up. Personal-injury attorneys                            lawsuit again, the defendant will surely      should bring a lawsuit for your injuries.
     work on a contingency-fee basis; usually                           point to the previous lawsuit and at-
      1/3 of any settlement or verdict will go                          tribute at least some of the damage to           Please don't hesitate to call us at
     to the attorney handling the case. With                            the old injury. After all, the firefighter       1 888 FIRELAW (1-888-347-3529)
                                                                                                                          -    -

     minor injuries, especially when there is                           thought it was bad enough to warrant a           for a free consultation whenever you
     a chance that litigation will drag on for                          lawsuit.                                         get hurt. Know Your Rights!
      a long time, there is often little upside

                                                                                                                                                     "Nd.   r".	    N
       nrwnwe	    .10	

                                                                                                          This is the THIRTY-NINTH edition of the
                                    ---------                                                              "BARASCH McGARRY SALZMAN &
                                                                                                                 PENSON NEWSLETTER"...
                                        ,1\c,c1 43.''`(-\                                             attorney advertising which presents topics

                                                                                                       of interest to firefighters. For questions,
                     SYS% doCieCS
                                                           NIN00\\         0.0                           additional copies, or more information
                     \AN1 	 	                        I0
                                           00.(:\`'.‘\\02, 1 0
                                           	    ‘4\2, AS
                                                         'CI                                             about topics raised in this newsletter,
                 ,y,cO \43,	                                                                                            call or write:
                                  \1\1\\\\6(c\ 6`0(:)\(\ei q .'(\
                                               s                                                             BARASCH McGARRY SALZMAN
                         Pg\                              t?           vvok
                                       ei'(\)c ‘° , '0 \o `i (Sc\I".. . - ,

                                                                sede,\                                                   & PENSON
                          \''s 		      	 -s\so
                                                 o ,v.S.,	

                                     	           _.\(.\    .                                                   11 PARK PLACE SUITE 1801
                            14\0 A         ,

                                                          6 'C°                                               NEW YORK, NEW YORK 10007
                                          SYPU	                                                                Toll Free No. 1-888-FIRELAW
                                                   \.0    12         's
                                                                                                                     (1-888-347-3529) or
                               \1\1W°	           1°                                                                     212-385-8000