FAQ’s

How do I know if I have a personal injury case?

You won’t necessarily know and you shouldn’t try to figure it out on your own, but if you’re injured in any form of accident, come speak with an attorney immediately, namely us.

How does a personal injury lawyer assess a case?

Always boils down to both liability and damages; liability refers to who’s potentially at fault and/or to blame for a particular accident; damages refers to the injuries suffered pain/suffering and/or property damage.

How soon after I am injured do I have to file a lawsuit?

Not a one-word answer…there are different statutes of limitations for particular injuries and there are different time constraints based on who/what caused the injury etc. In addition, there are certain situations when a statute of limitations can be “tolled” (extended) depending upon who was injured and the manner in which they were injured. Lastly there are certain notice requirements that a prerequisites to bringing a lawsuit against any municipality in New York State.

How do you figure out how much to charge a client for a case?

In personally injury cases not involving medical malpractice we always have 1/3 contingency fee agreement, unless it’s a medical male practice action in which case there is a staggered contingency based on certain percentages of the amount recovered. Basically, we get 1/3 of whatever it is we recover for our client via settlement and/or jury verdict and if we don’t recover anything, the client doesn’t owe us anything. Same thing with medical malpractice actions in principle, only the fee is not a set 1/3, it is based on percentages of the money recovered.

What should I bring with me for my meeting with a lawyer?

Depends on what your issue is. If it is a personally injury case, preferably any/all information regarding the accident/malpractice including, but not limited to, police incident report, any incident report, medical records, insurance information, pictures of the accident location, pictures of the defective condition of a slip/fall, pictures of the injuries etc etc. – basically any/all facts pertaining to the accident – names/addresses/contact information of witnesses and/or parties involved or potentially involved in the incident etc.

What is a counterclaim?

A counterclaim is a claim that is made by the responding party—usually the defendant in a traditional lawsuit—against the complainant or plaintiff. In New York, CPLR § 3019(a) provides that a counterclaim “may be any cause of action in favor of one or more defendants or a person whom a defendant represents against one or more plaintiffs, a person whom a plaintiff represents or a plaintiff and other persons alleged to be liable. CPLR § 3019(a).

What if a person dies before bringing a personal injury lawsuit?

Depending on the situation of course, in general the administrator of his/her estate can bring and action on behalf of the decedent.

What is “negligence?”

Basically, the failure to use reasonable care doing something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do under like circumstances.

A departure from what an ordinary reasonable member of the community would do in the same community. In order to bring a cause of action based on negligence you have to prove that someone had a particular duty of care; that individual breached that duty of care; and as a direct result of said breach it caused some damage to you.

In a nutshell: Duty/Breach/Causation/Loss.

What if I can’t prove someone’s negligence caused my injury? Is there any other basis for personal injury liability besides negligence?

Yes, there can be liability based on violations of specific federal/state/city/local codes/statutes/ordinances etc.

How much are personal injury cases worth generally?

They vary greatly, depending largely on the severity/permanency of the injury suffered and the amount of insurance available.

How much time do lawyers devote to each case?

Again, it varies greatly depending on the particular facts/complexity of each case – some cases last a month, some go on for years.

Will the person who caused my injury be punished?

Potentially. However, the relief sought in the majority of civil causes is monetary compensation – no criminal penalty.

What does it mean to “file suit,” and why do lawyers do it?

It’s basically the process of suing someone/something/entity; a person goes to the courthouse and gives an accusatory instrument (usually in the form of a Summons/Complaint) against one or more people/entities to the filing clerk; pays a filing fee to purchase an index number(usually $210); that index number is unique to that particular instrument filed and is used to identify every document filed/served throughout the lawsuit; and receives a stamped copy of the lawsuit back from the clerk (the original stays with the court). Then you have a certain time limit to serve the named defendant(s) in the lawsuit with a copy of the lawsuit and there are various ways in which one can serve a defendant.

Lawyers do it when their client(s) suffer(s) some form of personal injury due to the fault of some other individual/entity and there was no way to resolve the matter without the Court’s involvement.

How do you estimate how long a case will last?

You don’t, however you can guess based on the complexity and/or lack thereof.

How do the lawyer and client make money off cases?

As explained previously in this blog space, it is contingency fee agreement; based on the money award from a jury and/or settlement depending on the severity/permanency of an injury and the liability accessed to each party – and the insurance policy available.

What is mediation?

It is when both parties to a lawsuit (ie Plaintiff/Defendant) decide to sit down in an attempt to settle a lawsuit with a impartial third party mediator (usually another attorney and/or judge); both parties explain the facts/injuries etc. and their positions to the mediator and the mediator makes a determination of liability/damages; Mediations can vary, some can be binding, in which both parties agree in advance to settle the suit based on the mediators determination after review of the facts regardless of the outcome; and nonbinding in which case if one/both parties don’t agree with the final determination of liability/damages of the mediator they can proceed with the lawsuit etc.

How long will a lawsuit against an insurance company take?

Depends on the facts…and you usually don’t file suit against the insurance company, it’s usually against the insured.

Should one continue to pay an insurance premium even after the company has denied my claim?

Again, depends on the facts.

Why does someone not get compensated even when he or she has full insurance coverage?

It depends on the facts in each particular situation.

What is a contingency fee?

A contingency fee is an agreement whereby an attorney is being hired on the basis that he or she will receive a legal fee from the client only in the event that the claim is successful and the client was awarded monetary relief.

The contingent fee agreement also lays out the other details such as who is responsible for the costs of the case and how any money collected for the client is to be distributed. Case costs include such things as court fees, copies, expert witness fees, deposition fees, mailing costs, travel etc.

Spar & Bernstein charges neither a consultation fee nor a retainer fee for personal injury cases. Personal Injury cases, unlike most other legal matters, are handled on a contingency basis. If Spar & Bernstein takes your personal injury case, it pays all expenses necessary to process your case in order to seek large money awards on your behalf. Only if Spar & Bernstein obtains a settlement or judgment for you would Spar & Bernstein receive any money on your personal injury case. From such settlement of judgment, Spar & Bernstein, gets paid back its expenses plus 1/3 of the total money received for you. In the unlikely circumstance where there is no recovery on your behalf, there is no charge to you. Therefore, personal injury cases are essentially risk-free.

What is summary judgment?

Summary judgment is when a court finds, as a matter of law, that there are no genuine issues of material fact that need to be submitted to a fact finder—be it judge or jury.

For instance, think about an automobile accident where the defendant hits the plaintiff’s vehicle in the rear while the plaintiff is lawfully stopped at a traffic light causing plaintiff to sustain serious injuries.

This fact pattern—on its face—is sufficient for plaintiff to meet his burden in moving for summary judgment. In fact, a hit-in-the-rear with a stopped vehicle creates a rebuttable presumption of negligence on the part of the defendant.

The burden then shifts to the defendant to come forward with some non-negligent excuse for the happening of this event. If he cannot do so, plaintiff wins the issue of liability and the only issue left is how much money the defendant owes.

Filing for summary judgment is a great way to narrow the issues and focus attention on what matters, i.e. the damages.

When the only issue you have before you is how much your damages are worth, you are in the driver’s seat!

Legal Definition: What is discovery and what is its purpose?

Discovery is the phase of litigation in which both sides request information from one another. The purpose is to learn about each position taken by each side, and to get as much information as possible to be used at trial.

In Federal Courts the parties are required pursuant to the Federal Rules of Civil Procedure: Rule 26 to provide basic information, such as witness information, information on whether documentary evidence exists, and if so where it exists, as well as a preliminary computation on damages. After an initial conference the parties are permitted to serve certain discovery demands for information, depending upon the Local Rules and the Judge’s specific rules.

Depositions also take place during discovery. A deposition is question/answer styled inquiry in a room with attorneys for each party and a court reporter taking down every word that is uttered. Your attorney will prepare you on how to listen to the questions and answer only the question that is asked. It is adversarial and not a time to let your guard down.

Despite the polite demeanor of the attorney for the other party, he/she is not your friend and is there to represent his/her client zealously.

During depositions in cases pending in the United States District Courts, attorneys know their boundaries and rarely refuse to allow clients to answer questions—except for the rare occasions which call for an answer that would divulge some attorney-client privilege. Federal practice is very efficient and should be practiced in the NY State Court system…but unfortunately it is not.

In New York State courts, the rules are not set up in the same way.

Parties make demands on one another and the defendants typically stall in the production of responses. There is generally no movement by defendants until you have an initial discovery conference in which the Judge issues a scheduling order with deadlines.

Even at that point, the deadlines have no more significance than a greeting card as defendants typically disregard the order. When this happens, plaintiffs make motion after motion seeking the very discovery which the Court deemed ought to have been disclosed.

When the defendants violate 2-3 court orders (after a couple of conferences and maybe one or two motions), the Judge may issue an order precluding the defendant from offering certain evidence at trial, or even better—striking their answer. When this happens, the defendant cannot contest the liability portion of the case, and can only defendant the damages portion of the case.

Depositions in NY State cases are supposed to be getting better with “new rules” which prohibit attorneys from blocking certain questions, but this is not the case. It is commonplace for attorneys to make speaking objections—giving clues to their clients as to how they want them to respond to a question. Over-zealous defense attorney who block their clients’ answers do so for strategic reasons, and unfortunately often times get away with it.

Despite the shenanigans pulled by many attorneys hired by the insurance company to defend cases like car accidents cases, medical malpractice or labor law cases, a good plaintiff attorney will push ahead and get the information needed to spark a good settlement or have a trial on the issues.