GOOD LAWYERS DON T CALL YOU FIRST

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1 GOOD LAWYERS DON T CALL YOU FIRST

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3 Good Lawyers Don t Call You First Gary E. Rosenberg nd Road Forest Hills, NY Telephone: (718)

4 Copyright 2006 by Gary E. Rosenberg All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without written permission of the author. Printed in the United States of America. ISBN 10: ISBN 13: Library of Congress Control Number: applied for Word Association Publishers 205 5th Avenue Tarentum, PA

5 Gary E. Rosenberg I wrote this book to help people make what could be the most important decision of their lives. Who you hire to represent you after an accident can have long-term effects. The stakes are high; especially if you can no longer work. As an injured accident victim, you are facing the might and wealth of the insurance industry, whose goal is to limit the amount of money you recover. There are too many lawyers fighting to represent you. How do you pick the right one? I have been practicing law since My firm, the Law Offices of Gary E. Rosenberg, P.C., mostly represents people injured in accidents. I have offices in Queens (Forest Hills) and Brooklyn, New York, and represent injured people throughout the Greater New York metropolitan area, including the five boroughs of the City of New York, Long Island (Nassau and Suffolk), Westchester, Rockland, and Duchess counties. I am devoted to getting justice for injured persons from insurance companies. 5

6 Good Lawyers Don t Call First Now what do I mean by that last sentence? It is my belief, and philosophy, that insurance companies exist to collect peoples premium dollars, but that they hate to pay claims. Every year insurance companies get stingier and stingier. They re always going to try to save money, or cut down on what they consider fraud, and so forth. There is never a year where insurance company claims departments are told to make generous payments to legitimately injured persons. Insurance company investigators are out there hiding behind rocks and bushes and conducting surveillance to try to catch injured claimants engaged in activities that they claim to be unable to do. There is no justice from insurance companies; they do not care about playing fair. Insurance companies increase profits by decreasing the amount of money they pay out in claims. 6

7 Gary E. Rosenberg Here are 8 things you should know about pursuing an injury claim 1. Never, ever lie not to your lawyer, your doctor, or the other side about your ability or inability to do physical activity after an accident, be it sports or work activities or whatever. The truth will come out. 2. Don t accept a check or sign a release from an insurance company unless you know exactly what it covers. Sometimes insurance companies will attempt to get you to release any and all claims including your injury claim and lead you to believe that you are only settling your claim for property damage. Check with an attorney if you re not certain. 3. Don t try to hide past accidents or injuries from your lawyer. It is almost certain that the other insurance company will find out about this, because all accident information is shared by insurance companies in a central computer 7

8 Good Lawyers Don t Call First database. The only person who may be surprised is your attorney, and this is never a good thing. 4. Keep a daily pain diary detailing how you feel, doctors and therapy appointments, medications taken and your inability to work. You can t count on remembering everything later, and a lawsuit can take years. 5. Don t try to tough it out. See a doctor immediately after your accident. Be 100% open with your doctor: about how the accident occurred, and reveal any past accidents or medical conditions that may affect your condition or healing. 6. In real life there are few can ts after an accident. In other words, most people recover the ability to perform most activities, unless they are bedridden. But generally, if they have limitations, it s because they can t do the activity as long, as hard, as strongly as they used to. And your limitations, presented correctly, may give you a valid injury claim. 8

9 Gary E. Rosenberg 7. Video cameras are teeny-tiny and you could be videotaped at anytime, in any place. I ve seen this many times. So know that you ll have a problem if you say that it hurts for you to walk or stand, but then get videotaped playing tennis. I had a client that claimed a serious back injury from a car accident but got videotaped at his vacation home in Florida, spending six hours resurfacing the asphalt on his driveway. Needless to say, this devastated his case. 8. Remember, never has an insurance company adopted a policy of paying fair, speedy and just compensation to persons injured through the fault of another (the insurance company s policyholder). The money is in the insurance company s pocket, earning interest in the bank, or profits from its investments. (Did you know that insurance companies generally make more money per year on invested insurance premiums in real estate and such than on new premium dollars received? ) 9

10 Good Lawyers Don t Call First A philosophical note: I try to be selective in the cases that my firm accepts, because I want to give personal attention to my clients cases to the greatest extent possible. Every year I decline hundreds of cases. I concentrate my efforts on increasing the value of good cases, not finding and filing frivolous ones. I believe that good lawyers think this way. Another note: This book is not legal advice. I m trying to give you information to help you make informed decisions. But please do not consider the observations in this short, very subjective book, as legal advice. Be skeptical always. Investigate and check things out for yourself. Get legal advice in person; face-to-face. Another thought: If you want to check me out, take a look at my web sites. I have two, one for each of my practice specialties. By far the more interesting website is my personal injury site, This website is loaded with interesting material, including biographical 10

11 Gary E. Rosenberg material about me, some of my past accident cases and results complete with medical/legal exhibits in PDF format so that you can view medical drawings, accident investigation photographs, x- rays and other cool things. Also on the InjuryAtty site are all the back issues of my law firm newsletter, downloadable in PDF format, as well as my 30-second television commercials. You can click on the commercial and see and hear... me. Finally, I have a newsfeed accessed by clicking on the button for Latest Legal News, which contains interesting and topical articles that are constantly updated, to inform you and for your reading pleasure. I believe that you will find a lot of useful information on this web site. My other website is 11

12 Good Lawyers Don t Call First What to do when disaster strikes So you re in an accident; you re hurt. You re unprepared, you re frightened. Maybe you were in a car accident: the other car ran a stop sign; ran a red light; rear-ended your vehicle; made a left turn in front of you. Maybe you tripped on a broken sidewalk or staircase; slipped on snow and ice; or tripped on an object on the ground. Maybe you were hurt at work. There are an infinite number of ways to be hurt at work. Suddenly your world changes. You have been injured and suffered trauma of one sort or another. You may go into shock. You feel fear. You experience pain. Your first concern is getting medical care. Sometimes you go to a doctor, in a serious case you go to the hospital, maybe in an ambulance. Maybe you talk to the police. The shock starts to wear off. The fear starts to go away. Your pain begins to ease. You start to receive 12

13 Gary E. Rosenberg some kind of medical treatment, or surgery, or a program of physical therapy. Then you start to think. How do I pay the medical bills? Who will fix my car? Will I be able to return to work? To do the same job? Will I be able to sit or stand for a long time? Will I be able to walk or run, to carry, or climb stairs? What if I m disabled? What if I don t get better and can t work? How will I support my family? What do I do first? Second? Third? 13

14 Good Lawyers Don t Call First You need help. You have legal rights that need protecting. Particularly if someone else caused your injury. There are many variations on this theme. You instinctively know that you cannot trust an insurance company yours or someone else s even if an insurance claims representative shows up at your door with a checkbook. Put simply, hiring the right attorney to represent you may be the most important decision of your life. You shouldn t expect to get a fair settlement for your injuries on your own. My twenty-three years of practicing law have taught me that no one is ever prepared for an accident. No one anticipates being unable to work. Having their car smashed. Suffering pain that doesn t go away. Sometimes the pain eases. Sometimes it gets worse. I ve had clients come into my office after an accident and they seemed pain-free, able to twist and bend, and converse with me easily. Then they get worse and worse and may need surgery. I ve 14

15 Gary E. Rosenberg also had clients come in after an accident in great discomfort. Wearing one of those padded collars around their necks; having trouble sitting down in the chair in my office. Having trouble standing up. I ve accepted cases like that and seen people get all better. The point is that you never know if you re going to heal. I don t know if you re going to heal. Even the doctors don t really know if you re going to heal. Usually, only time will tell. What should you do? Unfortunately, in many cases, and particularly in the five boroughs of the City of New York, you don t have to do a thing. Lawyers business cards, and business cards for paralegals/legal assistants, intermediaries, legal or medical coordinators, selfstyled insurance managers and representatives of doctors offices and medical facilities will fly into your hands. Your telephone might ring. Someone may tell you that the hospital assigned you a doctor or lawyer. (This is never true.) You may find a business card in your door or mailbox. A tow truck 15

16 Good Lawyers Don t Call First driver or ambulance attendant may hand you a business card. There are other variations of this scam, and it is a scam. Runners sometimes drive around with police scanners in their car. You may have an accident, look up, and there they are. Maybe they offer to drive you to a doctor or lawyer. I have heard of unscrupulous tow truck drivers or body shops that also do this. There are reports of runners walking hospital hallways and entering rooms, or striking up conversations in hospital waiting rooms, all the while passing out business cards. Runners may call themselves a Legal Referral Service or Medical Referral Service or something similar. Please, please, please don t be fooled. I know a person who broke a leg in an accident and had an ambulance attendant pass her a cell phone in the back of an ambulance, to speak to a lawyer. I know another person who got a ride to a lawyer s office from a tow truck driver, after dropping off his damaged car at a garage. 16

17 Gary E. Rosenberg YOU SHOULD KNOW: Hospitals don t give anyone an accident or injury lawyer and, as a patient, your hospital records and address and telephone number are supposed to be kept confidential and should never be given out without your permission. And if a hospital refers you to a doctor at all rather than tell you to see your family doctor it will usually give you a list of doctors, with several names to choose from. This, of course, is permissible. Wow! You say. This takes the work out of searching for a lawyer. Especially if you ve been admitted into the hospital and spent more than a day there. You re likely to leave with a fistful of business cards. YOU NEED TO ASK: Is this proper? Is this allowed, or is there something dirty going on? Are these people I want to trust with my case? Are these people I want to trust with my future? With my family s financial well-being if I can t work again? 17

18 Good Lawyers Don t Call First THERE ARE MORE THINGS YOU MUST KNOW: The people running around with business cards or calling you or trying to drive you to the doctor or lawyer (called runners ) are not doing so out of the goodness of their hearts. They are getting paid. Money is changing hands. And this is always improper. In the most outrageous cases, lawyers may offer money directly to you, the injured person. A TRUE STORY (reported in Newsday): On November 23, 2004 the Nassau County District Attorney reported the arrests of runners, attorneys and medical providers targeting patients in the Nassau University Medical Center, in New York. Employees of the hospital would sell the patients personal information to the runners, who in turn would contact the patients and steer the patients to medical providers and attorneys associated with the group of runners. The attorneys would pay the runners a fee for each patient referred to them that successfully underwent treatment and filed an 18

19 Gary E. Rosenberg insurance claim. The fees paid to the runners by attorneys reportedly varied, according to the length of time the patient underwent treatment, the strength of the patient s case, and the potential for a lucrative settlement. This was mostly done by Spanish-speaking employees of the hospital and, needless to say, most of the patients contacted had Spanish sur-names. But don t think for one second that these shenanigans are confined to any one ethnic group or the speakers of foreign languages. DEAR READER: This is illegal. You do not need or want an attorney or doctor that gets work this way. You want a team of professionals with a proven track record. Not a team whose members pay for cases. This is a terrible development; it is illegal. Any lawyer that would break the law and pay cash for a case can t be any good. The best lawyers act properly, legally and ethically. They do not have to break the law to get you to hire them. They do not call you first. 19

20 Good Lawyers Don t Call First Sometimes attorneys pay medical facilities for cases by overpaying for doctors reports. This is then added to your case expenses and taken out of your pocket at the end of your case. Many of the facilities my office works with provide reports free of charge. You may want to call anonymously and ask the place treating you what it charges lawyers for medical reports. Better yet, ask your attorney if he or she will be paying for medical reports, and how much they will cost. Working with a lawyer that pays you first will cost you money when your case comes to its conclusion. That lawyer only cares about a quick settlement, to earn back the money paid out with a quick fee. Remember there is no cash in accident cases. Settlements are paid by insurance company check. And, lawyers do not lend clients money. This is against the law because it gives the lawyer a personal interest in the case. If the dirty lawyers are willing to break that rule, what else might they do? How can you trust them? 20

21 Gary E. Rosenberg When you hire a dirty lawyer, you have a lawyer that s eager to get repaid. Whom will that lawyer be looking out for? Whose interest will that lawyer put first? Not yours, the client s. And that lawyer can t be any good. You will lose out in the long run, when your case settles too cheaply or too quickly or both. Or maybe that dishonest lawyer has bought too many cases and can t handle them all competently. I ve heard of young lawyers that bought so many cases they started missing case deadlines. Their clients lawsuits were thrown out of court and dismissed. PUT SIMPLY: You are trusting your financial future to a crook. Is this a good idea? YET ANOTHER THING YOU SHOULD CONSIDER: Insurance companies know who the dishonest lawyers are. They have departments staffed by retired law enforcement agents whose only job is to root out fraud. Even if your case is legitimate and your injuries are real, if your lawyer is known to be dirty, or got your case improperly, 21

22 Good Lawyers Don t Call First or both, you may be investigated and checked out and videotaped and watched. And this will hurt your dealings with those insurance companies and hurt the dirty lawyer s ability to negotiate a settlement. Make no mistake, the insurance companies know who the dirty lawyers are, and those lawyers have a stain on their reputations that stays with them. And what happens to your case if your lawyer is arrested in the middle of it? Another thing to consider: Sometimes accidents are staged. There are several ways that this is done. Sometimes two or more cars plan the accident ahead of time, with or without the connivance of dirty lawyers and/or doctors. Sometimes a car hits yours on purpose. In either case, the vehicle(s) intentionally causing the event may be full of people who claim injuries. Sometimes, people have appeared at the crash scene right after the collision, and piled into the cars involved and claimed to have been injured. 22

23 Gary E. Rosenberg Unfortunately, if you are the innocent victim of a staged accident, you may be denied insurance coverage because, under New York law, a staged accident does not count as an accident under most automobile insurance policies. So you could be hurt and end up with zero. This is very tricky stuff, so don t even try to help yourself under these circumstances without competent legal representation. ANOTHER TRUE STORY: The case of Manhattan attorney Fredric Zarkin, a partner in a well known personal injury law firm. Admitted to the practice of law in 1979, in 2003 Zarkin was charged with bribery, corruption and several related charges for paying hospital workers or runners to obtain the medical records of potential clients for personal injury lawsuits. 23

24 Good Lawyers Don t Call First As reported in the New York Post: At its height, the scheme involved a half-dozen personal-injury lawyers and a network of crooked emergency-room workers at Elmhurst, New York Presbyterian and Lincoln hospitals. The workers collected $200 each time they found an accident victim with good lawsuit potential. They would turn the victim s confidential records over to one of six runners, who would then deliver them to the lawyers. The lawyers could then phone the victims and sell them on the idea of suing with the runners sharing a cut in any settlement or jury award. On November 22, 2005 Fredric Zarkin and his law firm were convicted by a Manhattan jury of some of the charges against them. As a result, Zarkin automatically lost his law license and his morethan-twenty-five-year legal career came screeching to a halt. Now Zarkin s firm was well known, and 24

25 Gary E. Rosenberg it s fair to assume that he made a good living and could have made a good living without utilizing the services of runners. So did greed get the better of him? Stupidity? Your guess is as good as mine, dear reader. More importantly: What happened to his clients when he was arrested, and forced out of the legal profession by his conviction? Could his legitimate clients have any credibility? Could their cases survive? Likely not. What do you know about the attorney you ve hired? What do you need to know? Whom are you hiring? 25

26 Good Lawyers Don t Call First Here s a terrific dishonest attorney story. Attorney Mason Pimsler graduated law school in He got a job as a first year associate at a highpressure plaintiff s personal injury firm in Flushing (Queens County), New York. Fearing he might be fired if he did not bring in accident cases for his firm to work on (also, he received 50% of the attorney s fee for every case that he brought in), he hit on a novel and creative approach to gathering clients. On almost every weekend between March 1998 and May 1999, he called the answering service of another plaintiff s personal injury law firm, and pretended to be a partner from that firm. Stealing the messages of that firm s potential clients, Pimsler would send a car service to pick them up and bring them to the firm where he was employed. This scheme was foiled when one of the stolen clients called the firm he had been intending to hire to complain that a car service vehicle had stood him up. Of course, this car service had really been dispatched by Pimsler. The firm that was being 26

27 Gary E. Rosenberg victimized contacted the District Attorney s office and nabbed Pimsler through a sting operation. A detective left messages with the answering service and heard back from have you guessed yet? Pimsler. Pimsler and his employer were sued and a jury delivered a verdict against both of them. The jury thought it odd that Pimsler s employer was not suspicious when its brand new associate attorney brought in over 100 cases to the firm in his first year of employment. Needless to say, Pimsler lost his law license (was disbarred), on October 1, A promising legal career stopped in its tracks. What s the moral of this story? Make sure the attorney you hire is the attorney you telephoned. Another of my favorite naughty lawyer stories is the case of Seth Bykofsky. Bykofsky was an associate attorney at the law firm of famous plaintiff s personal injury attorney Harry Lipsig (now deceased). Apparently, Harry Lipsig would rotate the firm s younger attorneys as telephone answerers at night and on weekends. Bykofsky 27

28 Good Lawyers Don t Call First began rejecting these cases, telling callers that their cases were too small for the great Harry Lipsig, and referring the callers, instead, to his friends personal injury law firm. Harry Lipsig was not amused. Seth Bykofsky automatically lost his law license (was disbarred) on February 22, 1999, when he plead guilty in criminal court to a felony: grand larceny in the third degree. So How Might You Find a Lawyer? This may seem obvious, but first you should make sure the person you ve hired or that you re thinking of hiring is, in fact, an attorney. In New York this is easy. You can check on-line at the official website of The New York State Unified Court System, Click on Attorneys in the right-hand column. Then click on Attorney Directory in the left-hand column. Then click on Attorney Search in the middle of your screen. Then enter the attorney s name. If the attorney is not confirmed by the website, alarm bells should start ringing in your head. 28

29 Gary E. Rosenberg Now there is nothing wrong with a helpful friend or relative trying to refer you to an attorney or physician that he or she trusts. The recommendation of family or friends maybe of a lawyer dealt with in the past is okay. But please remember what your mother taught you, Don t talk to strangers. You can also visit lawyer web sites and compare. 29

30 Good Lawyers Don t Call First 10 Questions you need to ask a lawyer you are considering hiring for your personal injury case Or pick several lawyers, interview them, and ask questions. Such as: 1. Who will actually work on my case? You? Someone in your office? Or someone I ve never met? 2. How will I be kept informed about the progress of my case? 3. Can I call you? When? 4. Can I meet with you? 5. Are you a full-time practicing attorney? 6. Have you handled other cases like mine? With what results? 30

31 Gary E. Rosenberg 7. Are you trial-ready? 8. What happens if you can t settle my case? Does it go to trial? 9. Will you handle the trial? 10. Do you carry legal malpractice insurance? (There is no requirement that attorneys have this insurance, but it s nice to have this protection and the knowledge that your attorney is accountable.) DID YOU KNOW THAT THERE IS A CLIENT BILL OF RIGHTS? Every New York attorney is required to hang this list of rights in his or her office where clients can read it: 31

32 Good Lawyers Don t Call First STATEMENT OF CLIENT'S RIGHTS 1. You are entitled to be treated with courtesy and consideration at all times by your lawyer and the other lawyers and personnel in your lawyers office. 2. You are entitled to an attorney capable of handling your legal matter competently and diligently, in accordance with the highest standards of the profession. If you are not satisfied with how your matter is being handled, you have the right to withdraw from the attorney-client relationship at any time (court approval may be required in some matters and your attorney may have a claim against you for the value of services rendered to you up to the point of discharge). 3. You are entitled to your lawyer's independent professional judgment and undivided loyalty uncompromised by conflicts of interest. 32

33 Gary E. Rosenberg 4. You are entitled to be charged a reasonable fee and to have your lawyer explain at the outset how the fee will be computed and the manner and frequency of billing. You are entitled to request and receive a written itemized bill from your attorney at reasonable intervals. You may refuse to enter into any fee arrangement that you find unsatisfactory. In the event of a fee dispute, you may have the right to seek arbitration: your attorney will provide you with the necessary information regarding arbitration in the event of a fee dispute, or upon your request. 5. You are entitled to have your questions and concerns addressed in a prompt manner and to have your telephone calls returned promptly. 6. You are entitled to be kept informed as to the status of your matter and to request and receive copies of papers. You are entitled to sufficient information to allow you to participate meaningfully in the development of your matter. 33

34 Good Lawyers Don t Call First 7. You are entitled to have your legitimate objectives respected by your attorney, including whether or not to settle your matter (court approval of a settlement is required in some matters). 8. You have the right to privacy in your dealings with your lawyer and to have your secrets and confidences preserved to the extent permitted by law. 9. You are entitled to have your attorney conduct himself or herself ethically in accordance with the Code of Professional Responsibility. 10. You may not be refused representation on the basis of race, creed, color, religion, sex, sexual orientation, age, national origin or disability. 34

35 Gary E. Rosenberg Things that lawyers may advertise that don t make a ding dong bit of difference I. We get quick settlements. Now any lawyer might make a telephone call to try to negotiate a settlement. And settlements are usually good things: a compromise between opposing parties to the mutual benefit of each. But it is a mistake to hire a law firm that advertises that its goal is to settle cases. You see, there are few secrets in this business. Many lawyers know each other or each other s firms or each other s reputations. And this quick settlement advertisement is out there just to attract new clients. It says nothing good about the quality of that law firm s services. In reality, a firm known for settling cases is a firm that won t fight. 35

36 Good Lawyers Don t Call First I would rather hire the lawyer who has a reputation for being tough on defendants and their insurance carriers who strikes fear in their hearts than hire a lawyer who is known as a quick or easy settler. Because the insurance companies know who these lawyers and law firms are. And there is no way quick settlers can get top dollar for your case, because the bad guys know that these law firms want to settle and are afraid to go to court. Such firms need to settle, to live up to their advertising. Is that who you really want to handle your accident case? Remember, you don t get a second chance to get top dollar. II. [Fill in the number] years combined experience. Now I have 23 years of experience practicing law. Would that really be equal to four attorneys with five years experience and one with three years experience? No. 36

37 Gary E. Rosenberg III. Free consultation. All personal injury attorneys give one. IV. No fee unless successful. Most personal injury attorneys utilize this type of fee called a contingent or contingency fee and based on a percentage of the money recovered, typically, one-third. YOU NEED TO KNOW that you, the client, remains responsible for case expenses and disbursements, such as: court filing fees, fees for medical and hospital records, expenses of investigation, court reporter fees, and the like. And your lawyer is supposed to tell you this, that costs and disbursements remain the client s responsibility. Advancing case expenses is like an interest-free loan that the attorney makes on every accident case. This is a loan that the client must repay when his or her case settles. This is not the same as a lawyer lending cash directly to the client, 37

38 Good Lawyers Don t Call First which is not permitted. Now advancing case expenses is not a terrible problem because attorneys generally won t advance a lot of money on questionable cases that they feel might not win. But that accident attorneys advance case expenses that are repayable by the client is something you should know. V. Home/hospital visits available: we come to you. Most personal injury attorneys do this. And it s not a big deal, as long as you ve called that attorney and asked for the visit. VI. Telephone # s that spell things, like HurtInAnAccident. A very strong, memorable marketing tool. Usually used by services that refer cases to member law firms. So the question becomes: whom is your attorney going to be? Does the referral service tell you? Does it even know whom it is sending your telephone call to? And 38

39 Gary E. Rosenberg this again raises all of the previously discussed questions about your attorney s qualifications and ability. VII. Call 24 hours/7 days a week. What, you hired an attorney that doesn t sleep? VIII. Slogans like: We fight hard for you; we care for you; we kick insurance company butt; we provide aggressive representation. (This is a partial list.) This is meaningless drivel. If you think about it carefully, the things that most attorneys advertise, such as the numbered items above, are the same as every other attorney advertises. Worse yet, they do not address the important questions, such as the ten items listed above, at pages 30 and 31. So read what I ve written carefully, then read it again. Otherwise, you may not even know the questions to ask, let alone what the answers 39

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