Weisfuse & Weisfuse, LLP — Frequently Asked Questions
What is my case worth?
That depends on the severity of the injury, the liability, whether you were partially at fault, and the economic loss (medical expenses, loss of earnings, etc.). Your spouse has a claim for loss to the marital relationship, and inability to perform household chores.
If the verdict is unreasonably high or low the court has the power to set the verdict aside. In determining the value of a case, we draw on our extensive experience, analysis of reported verdicts and settlements in similar cases, and awards upheld by the appellate courts.
How long will it take for me to get my money?
Litigation is time-consuming. From the filing of the lawsuit to conclusion our resolution time is typically two to three years. It takes longer if there is an appeal. This time varies with the complexity of the case, number of parties involved, and whether the case settles before trial.
Cases against the City of New York or New York City Transit Authority generally take longer. Once a settlement is made, the defendant must pay it within 21 days from when his/her lawyer receives the settlement papers.
The city has a longer time to pay. If payment is not made in a timely manner judgment can be entered with interest and costs.
How does the contingent fee work?
Court rules permit attorneys to receive a percentage of the recovery upon the successful conclusion of the case.
In negligence cases, that percentage is one third, after the attorney's litigation expenses are deducted off the top of the settlement. These expenses are then reimbursed to the attorney.
In medical malpractice cases, the fee is 30 percent of the first $250,000 recovered; 25 percent of the second $250,000 recovered; 20 percent of the next $500,000 recovered; 15 percent of the next $250,000 recovered and 10 percent of the balance.
Explain the litigation expenses
Lawyers typically advance the expenses on the case. Their expenses include filing fees, cost of service of process, reporter fees for depositions, court reporter fees for trial transcripts, doctor's fees for medical records, report and court appearance, expert witness fees, preparation of demonstrative evidence, etc.
On cases which go to trial with expert witnesses their expenses could be substantial. At the conclusion of the case they are deducted from the recovery and reimbursed to us. The fee is computed off the balance.
What role does the client play in the case?
Clients are often surprised by the amount of work and effort that is involved in the preparation and trial of a case. There must be a close working relationship between the client and the attorney.
Much time is spent in preparing the client for examination before trial. The attorneys for the parties have the right to question the other parties with their attorneys present, under oath before a reporter who transcribes the questions and answers.
This is usually done in the lawyer's office. The defendant has the right to have his/her own doctor examine the injured party to evaluate the injury. The client and attorney prepare together for trial.
What happens when I file a lawsuit?
Before the lawsuit starts the facts are carefully investigated, witnesses are interviewed and statements are obtained.
In cases involving experts, the expert would have reviewed the cased and informed us it has merit. A summons and complaint is then prepared, filed with the court and served on the party sued, the defendant. The party who sues is known as the plaintiff. The defendant must serve its answer within 20-30 days depending on the mode of service.
The parties serve each other with discovery demands and examinations before trial is scheduled. Court conferences are also attended by the attorney. Once all pretrial discovery is completed the case goes on the trial calendar.
New York courts have a large volume of cases, and it can take well over a year to be reached for trial after the case is on the trial calendar. There are pretrial conferences where the court attempts to mediate settlement of the case. If that fails, the court gives a trial date and the parties must be prepared to start trial.
The trial begins with jury selection. Each party is given three pre emptory challenges which can be used to excuse a prospective juror without cause. If the prospective juror is employed by a party, or has a close relationship with a party, or cannot be fair for any reason, the court will excuse that juror for cause.
After the jury is selected, the trial begins with opening statements where each side sets forth what it expects the proof to show and the respective claims. Plaintiff presents his/her proof first. After plaintiff's proof is completed, defendant may submit proof if he/she desires.
After all proof is complete attorneys will make their final argument called a summation. This time the defendant goes first and the plaintiff last. The court will then tell the jury what the law is. The jury will apply this law to the facts as it determines them to be, and decides the case. That decision is known as the verdict.
Either side can appeal a verdict. The grounds for appeal can be error by the court, either in its charge to the jury or ruling on admissibility of evidence. If the jury's verdict is contrary to the weight of the credible evidence or if the amount of damages is excessively high, or unreasonably low, the court can set the verdict aside.
How do I know if I have a good case?
If you are injured due to the carelessness or wrongful conduct of another you have a right to recover money damages for economic loss and pain and suffering.
Sometimes fault is obvious and no expert is necessary to prove your case. There are certain types of cases that require an expert since the negligence is beyond the expertise of a lay person to determine. Those cases include medical malpractice and legal malpractice, and cases involving defective products.
In those cases, it is necessary to hire an expert with special expertise in the medicine or the product involved in the claim. It is important that the best expert be hired early in the case and even before the lawsuit is brought.
Litigation is very expensive and time-consuming. It is important that cases are carefully investigated and evaluated to make sure they are meritorious.
How does no-fault automobile insurance work?
Anyone who owns a motor vehicle in New York is obligated to have personal injury protection (PIP), otherwise known as no-fault coverage. This coverage will pay your medical, hospital, and medication expenses if you are injured in an automobile accident in New York.
In addition, if you are disabled you are entitled to lost earnings to a maximum of $2,000 a month, for a maximum of two years. You may also get reimbursement for transportation expense (maximum $25/day) and housekeeper expense (maximum $25/day). You recover this from your own insurance company without regard to fault.
If you own a motor vehicle, you can recover PIP benefits from your insurance carrier. If you do not own a motor vehicle, you can recover PIP benefits from the insurer of the vehicle in which you were a passenger, or which struck you as a pedestrian.
Can I get PIP benefits and also sue?
It depends. If you are seriously injured you can sue; if not, you cannot sue.
Serious injury is either death; death to a fetus; fracture; serious cosmetic disfigurement; an injury which disables you for 90 days out of the first 180 days after the accident; an injury which causes significant loss of use of a body member, function, system or organ; or permanent loss of use of a body member, function, system or organ.
The injury and consequences must be verifiable and courts require object tests to establish "serious injury." The law was designed to remove the typical "whiplash" cases from the court system.
What is medical malpractice?
Medical malpractice is when a doctor deviates from accepted standards of medical care resulting in injury. This can happen if he/she fails to act as a reasonably prudent doctor. The doctor is not expected to have exceptional ability — only the ability of the average doctor.
If a doctor is a specialist or undertakes the work of a specialist, the doctor is held to the standard of that specialty.
If the doctor chooses a course of treatment which was reasonable, but results in injury, there is no malpractice.
An error in judgment is not malpractice, if the judgment was reasonable at the time.
There are risks to surgery. The doctor has the duty to inform the patient of those risks. If the patient had been so informed, and suffers injury as a result of the surgery, that may not be malpractice if it was part of the risk of surgery. However, if the doctor is careless in performing the surgery, then the doctor is liable.
Before a medical malpractice case can be brought it must be reviewed by a physician to determine whether it has merit.