New York Accident Lawyer: Non Party Witnesses NOT Entitled to Counsel At Deposition

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As a Plaintiff’s Attorney who conducts depositions on a regular basis, one of the more frustrating issues I encounter is the non-party witness (NPW) who is represented by counsel.  Sometimes the NPW brings in their own outside counsel to represent them.  More commonly, the NPW has some loose affiliation with the interests of the Defendants in the case, and defense counsel tries to claim that they are also representing the NPW.  Defense counsel then obstructs objects and delays, hoping to prevent me from obtaining damaging information from the NPW.  These kinds of tactics usually end up in the deposition being adjourned, or a call to the judge to determine the extent to which the defense attorney will be allowed to participate, with wildly varying decisions froom the judges who have addressed the issue.

Thankfully, the Appellate Division has finally ruled on the issue.  In Thompson v. Mather, the NYS Appellate Division, Fourth Department recently ruled that while an NPW is certainly entitled to whatever counsel they want, the NPW’s attorney IS NOT entitled to participate in the deposition.  So they can’t object or obstruct or delay or do any of the many other things that slow, and sometimes stop a deposition dead in its tracks.

This is a boon for not just plaintiffs attorneys, but for every attorney who handles depositions.  The trial judges who have to field phone calls from attorneys complaining of these tactics will be happy to hear of this decision as well.  Many thanks to our good friend Eric Turkewitz, who wrote about the topic here.  It seems that the scales of justice may be tipping toward common sense!

Thanks for reading,

_______________________________
Adam M. Gee, Esq.

NY and PA Personal Injury and Malpractice Attorney
The Ziff Law Firm, LLP
303 William Street
Elmira, NY  14901
Phone: (607)733-8866
Fax: (607)732-6062
Email: [email protected]
www.zifflaw.com
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The National Institute for Trial Advocacy — a Worthwhile Investment

Shortly after I joined Ziff Law, Jim Reed, the firm’s managing partner (and frequent poster on this blog,) told me to sign myself up for the two-week National Session on Building Trial Skills offered by the National Institute for Trial Advocacy (NITA). “And by the way,” he remarked, “the program is located just outside Boulder, Colorado.”

‘Nuff said. As a former resident of Denver and Missoula, Montana, I am a true lover of the mountains and was ecstatic about the chance to spend some time savoring mountain life. Oh, NITA looked pretty cool as well.

I had no idea at the time that I was about to embark upon a career changing — if not life changing — voyage. Seriously. Two weeks at NITA equaled, for me and I suspect most of my classmates, at least five years of real world trial experience. Unfortunately, as most practitioners recognize, cases are not tried nearly as often today as they were fifty years ago. Increased pressures to settle matters quickly or engage in Alternative Dispute Resolution — such as mediation or arbitration — has created a professional atmosphere in which young attorneys wait years or even decades before ever getting a chance to see a case through to verdict. (The one notable exception is in the area of criminal law, where cases are tried on a somewhat more frequent basis.) (Watch an interview with The Honorable Jim R. Carrigan, one if NITA’s founders.)

I was fortunate to have tried a number of cases as a prosecutor before participating in NITA’s National Session. However, the skills and confidence I gained from NITA are unparalleled. I had an opportunity to test myself against some of the best up-and-coming attorneys in the country — and even the world! The faculty was comprised of seasoned practioners with practical, focused advice on how to become the very best trial lawyer possible, and the lecturers offered insight into cutting edge legal trends and technology emerging from all ends of the globe. (Read NITA’s Blog.) Continue reading


Alternative Dispute Resolution and the Personal Injury Case

Alternative dispute resolution (or ADR for short) is being increasingly pushed by the judiciary and insurance companies involved in civil litigation. The Federal courts even have pilot programs where ADR is mandated before a case can proceed to trial. The question for the personal injury attorney and client is whether ADR is a good thing.

There are three different methods of ADR presently in use in New York. They are mediation, arbitration and summary jury trials. Mediation and arbitration are by far the two most common, but summary jury trials are also increasing in frequency. Mediation is a process by which all parties agree to meet with a mediator. The mediator does not have authority to determine any issues, but merely tries to foster agreement among the parties and broker a settlement. The mediator has no interest in the outcome of the case, and acts as a neutral third party who looks at the potential evidence with the clear eye of someone not personally involved in the litigation. A skilled mediator can help each side to see their potential problem areas, and arrive at a reasonable settlement figure in light of the strengths and weaknesses of their case. If at the end of the mediation no agreement is reached, the case proceeds to trial.

Continue reading


A Brief Introduction from the Newbie

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As the newest addition to Ziff Law’s personal injury and malpractice litigation team, I would like to take this opportunity to introduce myself to the firm’s blogosphere community. Without going into too many details about my so-called “pedigree” and educational background – information about which can be found on Ziff Law’s website at www.zifflaw.com or a recent Star Gazette article at http://www.stargazettenews.com/apps/pbcs.dll/article?AID=/20080322/BUSINESS/803220302 I want to provide you, the interested personal injury blog connoisseur, with some interesting (though not directly relevant to my practice) facts about me.

I was born and raised in the Twin Tiers and come from a long line of folks – going all the way back to my Continue reading


The Importance of Telling Your Attorney the Truth

As an attorney, I have to rely on what my clients tell me. Absent the rare case where there is an impartial witness, that’s all I have. I never want to think that a client might be dishonest, and I believe that my trust is well placed. Every so often, though, a client makes the mistake of not being completely honest. Trust me, that is a BIG mistake. In my years of practice, I have heard almost everything. Nothing a client could possibly tell me surprises me, shocks me or causes me to think less of anyone else. If I know about whatever it is a client may want to withhold, I can almost always adapt my theory of the case to encompass that fact. But when a client withholds crucial facts from me, disaster could be the result.

In a recent case I handled, that’s exactly what happened. For the three years preceding trial, this client was feeding us incorrect information about how his injury occurred. All through the discovery process we were using incomplete information. Our client testified to this incomplete information at deposition. He even testified to the incomplete information at the trial! It was not until after I was done presenting our case at trial and the jury was about to start deliberating that the full truth was finally revealed to me. At this point, it was too late to undo the damage.

The worst part is that the whole truth made the case stronger. If the whole truth had been provided from the very beginning, this case never would have gone to trial, as the insurance company would have settled the case before it was even put in suit. This client screwed himself out of a substantial sum of money that he justly deserved because he couldn’t see fit to tell his attorney the whole truth.

There is a lesson to be learned here: Always tell your attorney the WHOLE truth! Don’t be scared or embarrased, we have heard it all before. Don’t forget that your private discussions with your attorney are confidential, and also protected by the attorney-client privilege. And always remember that what you DON’T tell your attorney could end up costing you a significant sum of money!!

Thanks for reading,

Adam M. Gee, Esq.
Personal Injury and Malpractice Attorney
Ziff, Weiermiller, Hayden & Mustico, LLP
303 William Street
Elmira, NY 14901
Phone: (607)733-8866
Fax: (607)732-6062
Email: [email protected]
www.zifflaw.com


New York’s Court Of Claims, A Court Like No Other!

What do you think of when someone says “trial”? A brief and unofficial survey of some non-lawyer friends resulted in the word “jury” cropping up just over 80% of the time. A trial by jury is one of the most time honored traditions of our system of jurisprudence. Our right to a trial by a jury of our peers before our liberty or property can be taken from us is a cornerstone of our constitution, born out of secret tribunals in England’s medieval times, where courts established by and for the ruling class were used to keep the masses in their place. Trials by a jury are meant to be the great equalizer, to ensure that everyone, no matter their place in society, can obtain a fair and impartial verdict. So why is it, then, that we lose this indelible constitutional right when we sue the State of New York?

Under New York State law, any claim against the State of New York can only be brought in a special court called the Court of Claims. The Court of Claims is a court of limited jurisdiction, which only presides over cases against the State. In order to preserve your right to sue, a Notice of Intent to make a claim must be filed with the Court of Claims within 90 days of the act or occurence which forms the basis of the claim. Failure to timely file this Notice of Intent likely means that you will forever be barred from bringing your claim, even though many people may not realize they had a claim to bring until well after the 90 days has passed. There are circumtances where a Notice of Intent can be filed late, however, so prompt consultation with an attorney experienced in bringing claims against the State is HIGHLY recommended.

The biggest difference between the Court of Claims and traditional courts, however, is that there is no right to a jury trial in the Court of Claims. It isn’t even an option. Instead, trials are conducted before a judge appointed by the State (yes the same State that is the defendant in the case) and defended by the Attorney General’s Office. The Judge presides over the discovery process, determines motions that will limit the admissable evidence at trial, and then serves as the finder of fact at trial, where they are expected to disregard the knowledge of the case they have acquired over the preceding years, and base their verdict solely on the admissable evidence. In a strange twist, the judge who presides over the trial doesn’t have the last say on the verdict. Once the trial judge writes a proposed decision, that decision is submitted to a secret panel that reviews the evidence and testimony and approves the final version of the decision. That process takes place in secret, without the right of the Claimant’s attorney to argue the evidence or be heard.

So how can this happen? That is a very good question with a very convoluted answer. In general, the states and the federal government enjoy what is called Sovereign Immunity. Sovereign Immunity is founded upon the ancient principle that “the King can do no wrong”. In the present day, this principle bars holding the government or its political subdivisions liable for the torts of its officers or agents unless immunity is waived. The federal government has waived its immunity, and permits suits against it pursuant to the Federal Tort Claims Act. New York, as well as most every other state, has also waived their Soveregn Immunity to one extent or another.

Since every state is free to determine how and to what extent they will waive their immunity, we are left with the Court of Claims in New York. While it may be little more than a modern day Star Chamber, it is the only way to even attempt to hold the State of New York liable for its actions.

Thanks for reading,

Adam M. Gee, Esq.


$1,200,000 Settlement in Chemung County Supreme Court

I was honored to be selected as local trial counsel by Buffalo attorney Mark Cantor for a Chemung County Supreme Court jury trial conducted this week before Judge Robert Mulvey. The case did not settle until the end of the first day of trial when the jury had been selected and after opening statements by both the plaintiff and defense lawyers.

This was a very interesting case involving a young man from Gillett, PA who was severely injured when he was caused to fall 12 feet on to a concrete floor when a defective wooden railing collapsed.

As we all know, railings are there for a reason– they are supposed to keep people from falling from elevated areas. In fact, railings are so important that OSHA regulations require railings to be able to withstand 200 pounds of lateral force. Well guess what? A railing cobbled together with 2X4’s and plain nails is NOT sufficient and does NOT properly protect a worker who is required to work at an elevated height.

In this case, a couple simple carriage bolts costing less than a dollar each would have made all the difference between a healthy young man and a crippled young man who has endured 7 surgeries in an unsuccessful attempt to repair his back, neck, shoulder and knee injuries.

Jury selection took the better part of the day and the jurors represented a wide spectrum of folks from Chemung County: a young school teacher from Elmira, a Burger King Manager who lives in Chemung County but works in Pennsylvania, a young woman who works in the Chemung County Family Court, etc.

As a trial lawyer, I am always impressed and appreciative of the willingness of folks to serve on a jury. I know most folks groan loudly when receiving the Jury Summons and they all hope and pray that they do NOT get selected to sit on the jury. However, I have noticed that during the process of jury selection, a subtle transformation begins to occur– people start to understand the importance of our right to a jury trial and they take their job as jurors very seriously. Jurors hate being dragged away from their jobs and families but they respect the power and privilege of their role in peacefully resolving a dispute between two parties.

The trial was expected to last at least two weeks and many witnesses were scheduled to testify including several doctors from Elmira, NY, and Buffalo, NY, a vocational rehabilitation expert from Syracuse, NY, an OSHA expert from Buffalo. Plaintiff’s medical proof would have established that the injured worker’s lifetime medical care and lost wages (he is totally disabled from his former work as a truck driver) would have exceeded $2M. The defense intended to call its own safety expert and a doctor from Binghamton, NY.

Prior to trial, the parties were nowhere close to settling the case but Judge Mulvey, working with the lawyers and the insurance company representatives, was finally able to get the parties to agree on a settlement for $1,200,000.

Thanks for reading,

Jim Reed
NY and PA Accident Lawyer
[email protected]