Costly formal depositions that may deter litigants with limited resources, or even somewhat less formal and costly interviews attended by adversary counsel, are no substitute for such off-the-record private efforts to learn and assemble, rather than perpetuate, information.

The specific holding in Nieseg was that corporate employees, who were mere witnesses to an event about which the corporate employer was sued, may be interviewed informally by opposing counsel. After Nieseg, the question remained to what extent lawyers that represent corporate defendants could legally and ethically thwart informal discovery by identifying and offering to represent, often free of charge, likely corporate employee witnesses? Once these witnesses were represented by counsel, the opposing party’s only option was to resort to formal discovery (e.g. examinations before trial under oath or written interrogatories), which is time-consuming and more expensive.

Rivera v. Lutheran Medical Center

In Rivera v. Lutheran Medical Center, 2008 NY Slip Op 28406, 2008 NY Misc LEXIS 6060 (Ambrosio , J. dec. 10/16/08), the trial judge addressed this issue by disqualifying a large, New York City defense law firm from representing (at no charge) four employees of a hospital defendant that was being sued for employment discrimination. The judge noted that the employees were simply witnesses to the events in question and that there was no chance they would be subjected to any individual liability. This meant that the law firm solicited the employees as clients in order to gain tactical advantage for its hospital client by preventing plaintiff’s counsel from informal contact with the witnesses. Ruling that the law firm’s conduct was both a violation of the Code of Professional Responsibility and was contrary to the expressed policy of fostering rather than thwarting informal discovery as expressed in Nieseg, the trial judge granted plaintiff’s motion to disqualify the hospital’s law firm from representing the four employee witnesses.

The Rivera case presents a strong rebuke of the increasingly frequent tactic by corporate counsel of offering free representation to employee witnesses as a means of thwarting informal fact-finding in litigation involving the corporation. It remains to be seen whether the New York appellate courts will use the Rivera case to draw a brighter line between proper and improper conduct by corporate counsel. The Rivera court did not clarify under what circumstances counsel could properly represent both the corporation as well as its employees. It is almost certain that the hospital defendant in Rivera will appeal the trial judge’s decision. It is safe to presume that New York’s trial and appellate courts will continue to address this very important issue.

Under the old law, an injury victim had little recourse if the negligent party did not inform his or her insurance company about the claim in the time required by the insurance policy. The insurance company could deny the claim on the ground of late notice, even if the late notice had no effect on the company’s ability to defend the claim. Further, the injury victim could not challenge the denial of claim in court until after he or she obtained a judgment against the negligent party and the insurance company refused to pay. This forced the injured party to spend a considerable amount of time and money litigating the case with no way of knowing in advance whether there would be any insurance coverage to pay the verdict and expenses if he or she won the case at trial. 

The new law

 In July of this year, Governor Patterson signed into law a bill, effective January 17, 2009, that bars a liability insurance company from denying coverage based on late notice unless the company can show that it was prejudiced by the delay. In order to show prejudice, the insurance company would have to prove that the late notice “materially impairs the ability of the insurer to investigate or defend the claim.” Insurance Law §3420(c)(2)(C). This relaxation of the notice rules is not absolute. The law includes a rebuttable presumption that the company has been prejudiced if notice of the claim is given more than two years after the time required by the policy. In addition, prejudice is presumed if the insurance company is not notified until after the claim has already been settled or tried in court. Insurance Law §3420(c)(2)(B). 

The new law also gives an injury victim the right to challenge the insurance company’s denial of coverage at the beginning of his or her personal injury case rather than at the end. An injured party can now bring what is known as a declaratory judgment action to determine whether the insurance company can prove that it was prejudiced in any real way by the late notice of claim. Insurance Law §3420 (a)(6). 

All in all, the revisions to Insurance Law §3420 are beneficial and will help level the playing field between injury victims and the insurance industry in New York State.

Faraci Lange also continues to hold the #1 ranking in all of New York State for the Personal Injury Litigation category with 7 attorneys listed and in the Product Liability Litigation category with 6 attorneys listed. This means that no law firm of any size in the entire State of New York has more lawyers listed in these categories than Faraci Lange. Faraci Lange also continues to be the #1 ranked law firm in Rochester for 2009 in the Medical Malpractice Law, Personal Injury Litigation and Product Liability Litigation categories.

Faraci Lange is proud to be ranked #1 in New York State and in Rochester in all of these legal categories by its peers in the legal profession.

The American College of Trial Lawyers is composed of the best of the trial bar from the United States and Canada and is widely considered to be the premier professional trial organization in America. Founded in 1950, the College is dedicated to maintaining and improving the standards of trial practice, the administration of justice and the ethics of the profession. Through its Board of Regents, its general committees and its state and province committees, the College engages in a wide variety of activities to further those purposes.

Admission to the College is a rigorous process that involves intensive investigation of each candidate and is limited to a maximum of one percent of all attorneys in practice in a region.

Faraci Lange is proud to have three Fellows in the College, more than any firm of any type in upstate New York.

It was the intent of the Legislature to supplement the rights of nursing home patients under existing law. Subsection (4) of the statute specifically states that “[t]he remedies provided in this section are in addition to and cumulative with any other remedies available to a patient, at law or in equity or by administrative proceedings.” Public Health Law §2801-d(4). Moreover, unlike common law claims, the Legislature provided that the amount of any damages recovered by a patient under the statute “shall be exempt for purposes of determining initial or continuing eligibility for medical assistance [Medicaid]” and “shall neither be taken into consideration nor required to be applied toward the payment or part payment of the cost of medical care or services available under” Medicaid. Public Health Law §2801-d(5). Thus, any damages recovered by a patient under the statute do not affect Medicaid eligibility and are not subject to recoupment by Medicaid. This is not the case with damages recovered in ordinary negligence or medical malpractice claims.

Two cases from same court with different results

In 1995, the New York State Appellate Division Fourth Department held in Goldberg v. Plaza Nursing Home Comp., Inc., 222 AD2d 1082 (4^th Dept. 1995) that patients were not entitled to a remedy under §2801-d if they had a viable common law negligence claim arising out of the same injury. This result was followed by most other courts in the state for seven years until 2002, when the same court decided Doe v. Westfall Health Center, 303 AD3d 102 (4^th Dept. 2002). Doe was a notorious case in which a comatose nursing home patient was raped and impregnated by one of her care givers. The lower court had dismissed the plaintiff’s claim under Public Health Law §2801-d, relying on Goldberg. On appeal, the Fourth Department reversed the trial court and reinstated the plaintiff’s Public Health Law claim. In doing so, the Court specifically overruled Goldberg “insofar as we determined therein that summary judgment dismissing the Public Health Law cause of action was appropriate despite doubt concerning the efficacy of the remaining common law cause of action.”

Doe v. Westfall - Almost universally followed since 2002

Since 2002, when the Fourth Department decided Doe, the other three Judicial Departments of the New York State appellate court have all held - expressly or implicitly - that the private right of action granted to nursing home patients by Public Health Law §2801-d may be brought together with claims of negligence and/or medical malpractice arising out of the same injury. These cases are consistent with the apparent intent of the Legislature to provide remedies in §2801-d(4) that “are in addition to and cumulative with any other remedies available to a patient.” Zeides v. Hebrew Home for the Aged at Riverdale, Inc., 300 AD2d 178 (1^st Dept. 2002); Ward v. Eastchester Health Care Center, LLC, 34 AD3d 247 (1^st Dept. 2006); Young v. Patterson, 17 AD3d 667, 667-668 (2^nd Dept. 2005); Fleming v. Barnwell Nursing Home and Health Facilities, Inc., 309 AD2d 1132 (3^rd Dept. 2003).

In addition, there are at least nine published and unpublished lower court cases supporting this view. See Morisette v. Terence Cardinal Cooke Health Care Center, 8 Misc.3d 506 (NY Co 2005); Pasqua v. Bon Secours New York Health System, Inc., 13 Misc.3d 1036 (Bronx Co 2006); Sullivan v. Our Lady of Consolation Geriatric Care Ctr., 236 NYLJ 119 (Suffolk Co 2006); Washington v. Asfaw, 15 Misc.3d 1107A (NY Co 2007); Passet v. Menorah Nursing Home, Inc., 16 Misc.3d 1117A (Kings Co 2007); Marshall v. Leppard, 17 Misc.3d 1103A (Nassau Co 2007); Bush v. Cobble Hill Health Center, Inc., 17 Misc.3d 1135A (Kings Co 2007); Osborne v. Rivington House, 19 Misc.3d 1132A (NY Co 2008); and Yakkay v. Asher, 239 NYLJ 59 (NY Co 2008). The Morisette case, in particular, contains an outstanding discussion of the legislative history and intent behind §2801-d. Morisette, 8 Misc.3d at 509-514.

Fourth Department should clarify this issue in Kash v. Jewish Home of Rochester

This issue will again be presented to the Appellate Division Fourth Department in Kash v. The Jewish Home of Rochester, which is scheduled for oral argument in early December of 2008. The Kash case involves claims for negligence and medical malpractice against the nursing home and its staff doctors who initially allowed a patient to fall twice and then failed to detect the spinal cord injury suffered by the patient as a result. The patient became permanently paralyzed before the spinal cord injury was finally diagnosed days after her second fall. The trial court denied plaintiff’s motion to amend the complaint on the ground that the Goldberg case bars claims under §2801-d where the plaintiff also has a viable claim for negligence. In so holding, the trial court implicitly found that the Doe case did not overrule Goldberg in all instances.

Limitations of a common law remedy due to the effect on Medicaid eligibility

Neither Goldberg nor Doe discussed the explicit benefit conferred by the Legislature in §2801-d that any damages recovered from the nursing home under the statute shall not be considered toward the patient’s future Medicaid eligibility. This is a major benefit of the §2801-d claim since without it, most plaintiffs who recover damages will lose their Medicaid eligibility and become private pay patients.

Plaintiff in Kash, represented by Faraci Lange, LLP of Rochester, New York, has focused on this aspect of the §2801-d claim in her appeal. Plaintiff is attempting to demonstrate that if nursing home patients are confined to bringing common law claims alone, they will be deprived of the benefit of those claims because of Medicaid eligibility rules. Such a result would be absurd. Any monetary damages recovered by a patient under a common law claim would in effect be paid right back to the same nursing home where the patient’s injury occurred, only at the higher private pay rate. Conceivably, nursing homes could benefit financially from their own neglect. According to plaintiff’s appeal in Kash, this is expressly why the Legislature enacted §2801-d - to encourage private rights of action by nursing home patients in order to discourage nursing home patient abuse. A vital component of that remedy is § 2801-d(5), which was meant to avoid the conceivably anomalus result of putting more money into the pockets of nursing home whose patients are neglected or abused.

The Rochester, New York law firm of Faraci Lange, LLP was recognized in the 2008 Upstate New York addition of Super Lawyers with five of its attorneys listed in this prestigious publication. Founders Angelo G. Faraci and Paul K. Lange were both listed in the personal injury section, while Joseph A. Regan, Brian M. Zorn and Stephen G. Schwarz were listed in the medical malpractice section. Faraci was also listed as one of the ten lawyers receiving the highest point totals (inclusive of all legal specialties) and Schwarz was listed as being in the top 50 for Upstate New York.

According to the Super Lawyers publication, only 5% of the lawyers in New York State are named to this list, which recognizes attorneys who have attained a high degree of peer recognition and professional achievement. The selection is made after a rigorous process that includes peer review and nomination, as well as extensive background checks and research into each prospective candidate.

Such peer recognition is nothing new for the attorneys at Faraci Lange, LLP. The firm also has six of its attorneys (Faraci, Lange, Schwarz, Zorn, Regan, and Matthew F. Belanger) listed in Best Lawyers in America, four members of the American Board of Trial Advocates (John A. Falk, Faraci, Zorn and Schwarz) and three members of the American College of Trial Lawyers (Faraci and Schwarz, and Zorn, who will be inducted on September 27, 2008 at the annual meeting of the ACTL in Toronto).

In the past, one of the most difficult aspects of bringing a lawsuit based on toxic chemical exposure has been proving a causal link between the exposure and cancer. Defendants in these cases often file countless motions challenging plaintiffs’ proof on the causation issue. With some regularity, defendants have succeeded in preventing certain cases from being decided by a jury. It has only been in cases involving rare malignancies, like mesothelioma, that establishing the necessary causal connection has been relatively straight-forward. That is because it has been proven that mesothelioma is caused only by exposure to asbestos.

When exposure a toxin causes a mutation that leads to a malignant change in a cell, and when that change eventually progresses to a tumor, there is no “eyewitness” to the event. In many instances, there are a number of possibilities besides the toxic exposure that defendants can claim caused or contributed to the mutation. One such possibility which often is difficult to discount is the possibility that a congenital defect, suggested by a family history of cancer, was a causative factor.

Unique mutations tied to specific exposures

With the mapping of the human genome, there is promising new research to help establish the causal connection between exposure to a toxin and the development of a particular malignancy. For instance, as a result of numerous epidemiological studies, kidney cancer has long been suspected to be caused by the common solvent and groundwater pollutant trichloroethylene (TCE).

In one study, German researchers examined a cohort of workers with heavy occupational TCE exposures who later developed kidney cancer. The researchers found a specific and unique gene mutation in the vast majority of the workers who developed kidney cancer. As further research occurs, more specific mutations matched to particular types of cancer and toxic chemical exposures are likely to surface. Worldwide databases are being developed to help accumulate this evidence. The effort is growing exponentially because of the free-sharing paradigm followed for the human genome project.

Ruling out inherited cancers

In addition, genetic analysis of cancer cells can provide other important clues which will be helpful in establishing causation. For instance, by comparing the genetic code of a cancerous tumor cell with the code of a non-cancerous cell, the possibility of a congenital defect can definitively be ruled out. Since all cells derive from the initial combination of the egg and sperm, all DNA strands in all cells should contain the exact same genetic code. Thus, a congenital gene mutation will be found in the DNA of both cancerous and non-cancerous cells from the same person. When the mutation only appears in the cancerous cell, it definitively rules out congenital mutations and suggests that some toxic chemical exposure likely played a role.

Moreover, the frequency of mutations in cancer cells also helps point to toxic exposure as a cause of a malignancy. The genes of populations exposed to known and suspected carcinogens tend to contain multiple defects analogous to what one expert has termed “carpet bombing” of the DNA strand. When this is found, it strongly suggests that the patient was exposed to a strong mutagen.

As research continues, the mystery and the difficulty of proving the causal link between a known toxic chemical exposure to a mutagen and the development of particular types of cancer should steadily dissolve. This will benefit the thousands if not millions of cancer victims who now cannot establish the requisite causal link to a toxic chemcial exposure and therefore are deprived of any compensation.

Written by: Stephen G. Schwarz, Managing Partner, Faraci Lange, LLP

In recent years, however, the danger of vapor intrusion is finally getting the attention it deserves from regulators and legislators across the country. One of the largest vapor intrusion sites discovered to date is in Endicott, New York. A plume of TCE and other VOCs are contaminating the air in hundreds of Endicott homes, requiring the installation of hundreds of individual vapor intrusion remediation systems. Faraci Lange, LLP, a Rochester, New York law firm, is involved in toxic chemical exposure litigation commenced against IBM on behalf of the victims of this contamination.

What is vapor intrusion?

TCE and other VOCs are by definition volatile. What this means is that when dissolved into or mixed with groundwater, they do not tend to stay put. Instead, they tend to revert to a gaseous phase and drift upward through the soil toward the surface. Whether a particular VOC plume in the groundwater will present a vapor intrusion problem is a function of a number of variables.

First and foremost, the concentrations found in the plume are important. Obviously, the higher the concentrations, the more unstable the plume and the more likely vapor intrusion will occur. Second is the depth of the plume. Groundwater plumes can be shallow, meaning that they are contained in what is termed the “overburden” groundwater, or they can be found in deeper, more permanent groundwater layers. The more shallow the plume, the less distance vapors volatizing out of the plume have to travel before getting to the surface. Therefore, more shallow plumes present a greater likelihood of intrusion. The nature of the soil above the groundwater plume is also an important factor. Soils that are relatively impervious to gas transport are less likely to permit volatized vapors a path to the surface. Conversely, sandy and coarse soils with multiple air spaces present ideal conditions for vapor intrusion.

Even when vapor intrusion is present in a particular neighborhood, the risks to the residents will not be uniform. Homes with deeper and more porous basements will allow more intrusion than those with more sealed foundations and slabs. Other factors, such as the time of year and the circulation inside the house, will play important roles.

What can be done to protect residents from vapor intrusion?

Because of their volatile nature, attempts to remove TCE and most VOCs from groundwater typically involve what are referred to as pump and treat remediation systems. Contaminated groundwater is pumped to the surface to air strippers which permit the volatilization of VOCs into a tower. From the tower, the VOCs are discharged into the atmosphere or captured in various charcoal type filters for disposal. However, this process is neither fast nor highly efficient. Over many years, this type of technology can reduce the concentrations found in a particular plume. Unfortunately, the presence of the contaminant can never be eliminated completely.

When vapor intrusion is discovered, individual remediation systems must be installed on a house by house basis. This process involves drilling into the foundation and installing a suction system that pulls vapors from beneath the subslab and vents them out above the roof of the house. In order to be effective, these systems need to run 24 hours per day, 7 days per week. They also require effective sealing of all points of entry into the home, including basement floor cracks and utility service entries, to prevent vapor intrusion.

Communities in which there had been confidence that a groundwater problem was harmless are being reinvestigated now by authorities who are looking for the insidious hazard of vapor intrusion. Given the thousands of known TCE plumes throughout the United States, it is extremely likely that vapor intrusion similar to that discovered in Endicott, New York is occurring in numerous other communities and causing potential future illness to thousands.

Written by: Stephen G. Schwarz, Managing Partner, Faraci Lange, LLP

Introduction and background

The rules followed in this system are based upon a combination of statutory law (laws passed by the legislature) and what is referred to as common law, the law we inherited from the judicial precedents of English law, which have evolved through the judicial decisions of judges in the State of New York over the past few hundred years.

As compared to the criminal justice system, which is designed to punish and deter criminal conduct, the civil justice system is designed to compensate victims of negligence and to resolve other private disputes between citizens or corporations. Although there are rare cases in which a court can order that a defendant do something or stop doing something, referred to as injunctive relief, the vast majority of civil cases request payment of money damages for injuries suffered to person or property or to settle some other type of dispute, e.g. a breach of contract.

Commencing the law suit

In New York when an injured person retains a lawyer to start a law suit, the act that the lawyer performs to accomplish this is to file a summons and complaint in the appropriate county clerk’s office (usually in the county where the incident occurred, but occasionally in some other county where either the injured person or the person that caused the injury resides). This act of filing the summons and complaint stops the legal clock established by the applicable statute of limitations, which is window of time after the incident that the legislature has adopted for the filing of the case. This is a very important deadline because it cannot be extended by a court. The filing of this summons and complaint tolls (stops the clock on) this statute of limitations as long as the summons and complaint is served (personally or otherwise delivered) to the defendant within 120 days of the filing. Once this is accomplished and the case has started, the statute of limitations is satisfied and is no longer relevant.

In a civil lawsuit, the person who makes the claim and files the complaint is referred to as the plaintiff. The person or entity sued for causing the injury is referred to as the defendant. The complaint filed to start the case generally describes the claim: what the defendant did, why it was wrong, and what general damages it caused. This document is intended to provide notice to the defendant of the claim. Notice in this context means only a general idea of what occurred and when, not all of the specific facts that will eventually be proven at trial. Other devices used later in the discovery phase of the case provide the additional specifics that are required and not contained in the original complaint. The summons is a short document that identifies the parties and summons the defendant to respond to (answer) the complaint within a certain period of time (20 or 30 days, depending on the method of service).

The answer is the document the defendant serves upon the plaintiff’s attorney to respond to the complaint. The answer admits, denies or states that the defendant does not have enough information to admit or deny, the allegations made in the complaint. The answer also contains what are referred to as affirmative defenses, which are defenses that if established by the defendant can limit the amount the defendant would have to pay or even require the complete dismissal of the case. Once the answer is served and filed by the defendant, the discovery phase of the case begins.

The pre-trial discovery phase

The discovery phase, also referred to in New York as the disclosure phase, as the names suggest, is the part of the case where the parties are required to exchange certain information relevant to the case to allow the other side to properly prepare for trial. There are a number of discovery devices that are used for this purpose. With the answer to the complaint defendants will typically serve demands for further written information. These demands can take the form of something called a bill of particulars, or in other cases, a list of questions called written interrogatories. These devices both require written answers sworn to by the plaintiff to certain questions posed about the allegations of how the injury occurred and what the extent of the injury is and is expected to be. Defendants also commonly serve demands for the production of documents, including tax returns, accident reports and other documents the plaintiff might have that are relevant to the claim. In cases alleging that a plaintiff has suffered an injury, such as an auto accident case, medical malpractice case or product liability case, the plaintiff must also provide the defendant with medical records authorizations to allow him to obtain from treating doctors and hospitals all relevant medical records to the case. In the discovery phase the courts interpret what is relevant very broadly. This means that when you bring a personal injury case you must understand that your medical history will likely be opened up for inspection by the defendant, except under limited circumstances where the medical history is clearly irrelevant to the claim.

Simultaneous with the discovery demands served by defense counsel on plaintiff’s counsel, plaintiff’s counsel will also serve discovery demands on the defense counsel asking for specific information about any defenses raised by the defendant in the answer, the names and addresses of witnesses, the amount of insurance available to cover the claim, the production of relevant documents and other information. In product liability cases such as defective drugs or products, extensive requests are made for the design documents relating to the product including all testing reports, blueprints and internal memoranda of the company about the product. In these types of cases this phase can be lengthy as there is typically a great deal of documentation involved in the design and marketing of a product alleged by the plaintiff to be defective and to cause injury.

After the written discovery requests by each side are exchanged and responded to, the next phase is the scheduling of depositions also referred to in New York as examinations before trial (EBTs). The deposition occurs typically in one of the lawyers’ offices. The party is asked questions to answer under oath while a stenographer records what is said. A transcript of this testimony is produced which can then be used later to contradict any contrary testimony given at trial. Your attorney is present for your deposition and can object to questions that are asked if they are improper, but otherwise cannot coach you or advise you how to answer specific questions, except in the limited circumstance where the answer involves disclosure of legally privileged information (e.g. discussions between you and your attorney). The deposition of the defendant or in the case of a corporation, representatives of a defendant, are also scheduled and completed during this stage. In some cases witnesses who are not available to attend the trial will also be deposed and their testimony preserved, frequently on videotape. Many times treating doctors are given the option of giving testimony this way instead of having to appear at the trial.

Once the depositions are completed, frequently an injured plaintiff will have to submit to an examination by a physician of the defendant’s choosing, referred to as an independent medical examination (IME). This is a bit of a misnomer, as the physician chosen is frequently an advocate for the defendant’s position and far from independent. However, the law requires that an injured plaintiff submit to the examination nonetheless and plaintiffs must be careful to understand the purpose of the exam and not consider the physician as someone who is out to help them.

Getting the case on the trial calendar

When all discovery is completed the plaintiff in New York files what is called the note of issue, which states that the case is ready for trial and requests that a trial be scheduled. If a specific judge has not been previously assigned to the case then one will be assigned with the filing of the note of issue and that judge will then be responsible for scheduling the case for trial. A judge may already be assigned at this point if some court intervention was necessary due, for instance, to a failure of one party to properly respond to demands for discovery made by the other or if a motion to dismiss the case was made. In medical malpractice case judges are always assigned early on as part of a special package of procedures that apply only to this class of cases.

The length of the discovery phase varies from case to case based upon many factors, some in the lawyer’s control, but most not. For the majority of cases the discovery phase measured from after the answer is filed or served takes about six months to two years. In complex product liability or medical malpractice cases, the period can be longer. Moreover, if the judge makes a ruling during the discovery phase that is appealed by one party to the appellate court, referred to in New York as the Appellate Division of the Supreme Court, then this process can take considerably longer.

Once the case is assigned to a specific judge the decision of when it will be tried is based upon a number of factors including: the type of case, judge’s backlog of other cases to be tried, other previously scheduled trials for the lawyers, availability of witnesses and others. Some cases are given a date certain for trial while others are put on a calendar and called for trial when they reach the top of that list. Typically more complex trials requiring medical and professional witness testimony such as medical malpractice and toxic tort cases will receive dates certain because of the difficulty arranging testimony from such witnesses on short notice.

The trial

The first phase of the trial is when the jury is selected. This is referred to as jury selection or sometimes as voir dire. In civil cases in New York this is typically a phase of trial that is conducted by the lawyers under the supervision of a clerk without the trial judge present. During this phase each side’s attorney is permitted to question prospective jurors on their knowledge of the case, parties and witnesses, and also on areas of potential bias for or against a party or a type of lawsuit. Civil juries consist of six jurors as opposed to twelve for a criminal jury. Depending on the length of the trial there will also be one or more alternate jurors chosen in case one of the six primary jurors becomes ill or is otherwise unable to complete the trial. During jury selection each side gets to excuse jurors whose answers to the questions posed provide cause to dismiss them as not likely to be impartial. Each side is also permitted to dismiss any three other potential jurors it chooses without stating any reason why. The dismissal of a juror in this fashion is referred to as a peremptory challenge, while dismissing a juror for cause is referred to as a challenge for cause.

Once the jury is selected, the trial begins in earnest and from that point forward the trial judge is in charge. After the judge provides some initial instructions to the jury, the opening statements are given by each side, with the plaintiff’s attorney always going first. The opening statement is a preview of what the proof is going to be in the case, to set a context for the jury for what they are about to hear. The judge instructs the jury that the opening statements are not evidence, meaning that the jury cannot decide the case based on facts stated by the attorneys, but rather, can only decide the case based upon facts stated by witnesses or found in documents and other physical evidence admitted into evidence.

After the opening statements, the plaintiff presents all of his or her proof. Once this is done, the plaintiff rests his or her case, and it is the defendant’s turn to present proof. Plaintiffs have the burden of proof on all matters alleged in their complaint. This means that they have to prove that each allegation they have made is more likely to be true, than not. This is a different burden of proof than the beyond a reasonable doubt standard in a criminal case. The civil standard, called proof by a preponderance of the evidence, is meant to require the plaintiff’s proof of a given point to outweigh, even slightly, the proof presented opposing that point. Where a defendant has alleged an affirmative defense in his answer, then he must bear the same burden of proof on that defense.

When proof is completed the both sides are permitted to make a closing statement or summation, summarizing the evidence presented and what they think the outcome should be on each issue. In this instance, the defendant goes first and the plaintiff goes last. After the closing statements are made to the jury, the judge then instructs the jury as to the rules of law they must apply to the facts they find. The jury is the ultimate finder of the facts, but the jury must accept the rules of law that that the judge provides to them and apply those rules to the facts that they find to come to an outcome.

Appeals

The losing side has the right to appeal an adverse verdict to the Appellate Division. Appeals can be based upon a particular ruling that went against the losing party during the case, or upon the evidence as a whole if the verdict was against the weight of that evidence. An appeal can also be based upon the amount awarded being too high or too low. Appellate courts try not to reverse jury verdicts, so to have a jury verdict reversed requires a strong showing that something went wrong at the trial. If the plaintiff succeeds in convincing the jury and receives a verdict in a personal injury case and the defendant does take an appeal, one saving grace is that the defendant must pay statutory interest dating back to the date of the judgment if the appeal is unsuccessful. Because the statutory interest rate is 9% straight interest (not compounded) this can provide a deterrent to frivolous appeals by the losing defendant. The law, however, does not permit the plaintiff to receive interest on the amount awarded back to the date of the injury. Thus, the defendant does not have the same incentive to avoid delay during discovery as it has to avoid unnecessary delay during the appeal.

Settlements

Settlement can happen any time from before the case is started to after the verdict and before an appeal is heard. Frequently settlements occur just before trial and sometimes just before the jury is about to announce its verdict. Whether or not a personal injury case will settle at an early time is dependent upon numerous factors including the type of case, the number of defendants and the strength of the defenses raised. Auto accident cases have a higher rate of pre-litigation settlement than do other types of personal injury cases, although that rate has dropped in recent years since many insurance companies have hired salaried lawyers to represent insured auto accident defendants rather than paying outside firms by the hour to do so. Medical malpractice claims have the lowest settlement rate due to their complexity and the high rate of success the insurers have in defending them at trial. Some statistics suggest that well over 90% of all medical malpractice cases tried result in defense verdicts. However, many of the strongest cases are not tried but settled, so this does not mean that only 10% of medical malpractice victims are successful.

Settlements are usually advantageous because they provide a definite outcome and avoid the risk of an unfavorable jury verdict. However, experience has shown that firms that are prepared to try a case to conclusion have a better record of settlement for higher amounts than firms that have a history of settling all cases. This only makes sense when considered from the perspective of insurance companies. If the insurance company knows that the attorney has rarely tried a case then it also knows that as the deadline of trial approaches he is likely to try and convince his client to accept less to settle. Firms like Faraci Lange which have seasoned trial lawyers with years of experience and the respect of their peers and insurance companies alike will frequently be offered much higher amounts to settle than will firms without this experience and reputation. That is why choosing the right personal injury attorney is very important to the outcome of your case.