FAQs

FAQsBelow are some initial questions many clients have when they first contact Michaels & Smolak, P.C. The questions below may address many initial concerns you have. If you don't find the answers here, you should contact us for answers to questions specific to your case and to get a free consultation.

Can I really talk to you about my case for free?

Yes. Generally, it will take only ten to thirty minutes for us to decide whether we can help you. We are good listeners. Try us!

How much will you charge me if I sign up with you?

We charge on a "contingency fee" basis, meaning that you will not pay us anything at all unless we recover a settlement or a verdict in your favor. Typically the contingency fee is one-third (33.3%) of the net recovery (after deducting the costs and disbursements incurred in advancing your case). The fee can be less for medical malpractice cases and where the client is a minor (under 18 years old).

Do I need a lawyer to settle my injury case?

Almost always, yes! You need to at least seek the counsel of an honest, good one before you decide to proceed without one. We at Michaels & Smolak sometimes DO advise folks who call us to handle their own settlements without a lawyer. When? Usually when the case is quite small, or the insurance carrier has already made an offer that we feel is fair, or a combination of the two. Under those circumstances, you are sometimes better off taking the money and avoiding paying a 1/3 contingency fee to a lawyer. But those cases are rare. If your injury is at all significant, the insurance carrier is almost certain to “low ball” you if you proceed without an attorney. You will almost certainly do much better, even after the 1/3 fee is deducted, with a reputable attorney who can put the fear of a strong trial into the insurance agent’s bean-counter head! Moreover, a good attorney can BUILD your case. That’s right, his work can actually make your case WORTH MORE. How? He knows how to develop your medical records, send you to the right specialists to correctly understand and diagnose your injuries, and he knows how to package and present your case to the insurance carrier, and, if necessary, to a jury at trial. Lawyers are also called advocates for a reason: They advocate for you! Not only can an experienced attorney get you a lot more money in most cases, he or she can also tell you what is fair, and what you should refuse to accept. Remember, the insurance company’s goal is NOT to “be fair”; it is to make a profit. And how do they make a profit? By paying YOU, and every other unlucky injured person, AS LITTLE AS POSSIBLE. How do we know what your case is worth and how come you don’t? It’s simple: we have handled hundreds of cases like yours, we have tried cases like yours, and we religiously read the “Jury Verdict Reporter”, a publication that tells us what juries are giving for all types of cases in the State of New York. In other words, we have our finger on the pulse of jury verdicts. We know what juries are likely to give you. Unless, you have seen hundreds of these cases and have taken similar cases to a jury, you really have no idea if you are hitting a home run or if the insurance company is taking advantage of you. So don’t get screwed! At the very least, have a reputable attorney review your case. We at Michaels & Smolak will give you a free consultation; no strings attached, and advise you as to whether we feel you can proceed without an attorney, or whether you should hire one. The rest is up to you …. so contact us.

What are "costs and expenses"?

Costs and expenses are money we pay to others to advance your case. For example, when we write to your doctors for their medical records, they typically charge us 75 cents per page for copying costs. Another example: If we are forced to file a lawsuit because the defendant won't settle, the Court requires us to pay a "filing fee". Your case may also require "expert" testimony, in which case we need to pay an expert (such as a physician) to testify in court on your behalf. These costs and expenses are paid out of the gross recovery (settlement or verdict) at the end of the case. Our fee is generally 1/3 of the "net" recovered (i.e., after subtracting the costs and expenses). With some exceptions (call us to find out), you do not have to pay any up front costs or expenses.

What is a lawsuit and how does it work?

Essentially, if we cut through all of the fancy legal jargon, a lawsuit is really not difficult to understand. We have basically these phases: the start of the action, the middle or discovery of the action, and finally the trial phase.

We start the lawsuit by the service or delivery of summons. A summons is really nothing other than a formal document which puts a person or other party on notice that an action has been commenced. It allows a certain amount of time to respond. The summons is normally accompanied by a complaint. A complaint is nothing other than a longer document which, in summary form, tells the other side what the case is all about.

The response to a complaint is known as an answer. In this document, the party responding simply sets forth its position, usually denying the main allegations and perhaps setting forth some defenses.

With an answer, we usually expect to receive a demand for a bill of particulars. This is a request for further amplification of the claim, the injuries, damages, expenses, other losses, etc.

The bill of particulars is the response to this demand. When this bill of particulars is served, we have completed the initial phase of the lawsuit.

In the discovery phase of the lawsuit, there are various things that may or may not take place, depending upon the option of the lawyers involved. Most of them take place by agreement, stipulation, or notice. Sometimes, the lawyers can't agree, and motions in Court are used to resolve the dispute. Some of the information that we can obtain, normally, without a Court order, are the limits of all available insurance to cover the claim, the existence of and the review of photographs which the other side might have, the names and addresses of all known witnesses, the furnishing of copies of any statement made by our client if we have not previously seen it. The other side can obtain pretty much the same thing from us except, of course, insurance policy limits, since our clients’ insurance is not relevant.

The main portion of the discovery phase consists of the examination before trial also known as the deposition. This is where the parties, and their lawyers, sit down, usually at a law office, and each party’s lawyer asks the opposite party questions under oath. A stenographer, or court reporter, takes everything that is said down and then creates a transcript of what was said. If the parties change their testimony at trial, the lawyer representing the other party can use this transcript at trial to cross-examine them.

Normally, following the examination before trial and/or the physical, whichever comes last, the discovery phase is complete.

If, during any of these early phases, either party runs into a problem getting what he or she feels entitled to under the law, he or she can make a request to the Court for relief. This request is called a motion. Along with that motion the complaining party can file a request for judicial intervention. Once a Judge is assigned to hear any such motion, that Judge will usually stay with the case until its conclusion.

The trial phase begins by placing of the case on the calendar for trial. This is done by the filing of a note of issue which is really nothing other than a document which in effect says "I am ready to go to trial." The party that files this document, usually the plaintiff, attaches to it a certificate of readiness, which states that all of the initial and discovery phases have been completed or are waived. After the note of issue has been filed, the case is put on a calendar in order of its filing date. If a Judge has previously been involved in the case, then that Judge will usually be assigned to continue with the case until it is concluded.

If no Judge has been previously assigned, one will now be assigned.

Sometime after a Judge has been assigned, and it is really impossible to say when this will occur, the Judge will call a pre-trial conference. This will be attended by the attorneys for both sides and the Judge. At such a conference, the Judge tries to get the lawyers to reach a settlement or to get fairly close to a settlement.

If the pre-trial conference does not produce a settlement, in most situations, the Judge will then jury-order the case. This means that the case will be set down for trial.

On the day that the case is jury-ordered, the parties and the lawyers get together at the Court House to select a jury. Normally, following the jury selection, unless there is some unanticipated delay, the parties proceed directly with that jury to a trial.

If at any time during this process, if the parties work out a settlement, the plaintiff will sign a release of all claims. This will be delivered along with a stipulation of discontinuance to the defendant’s attorney.

Any questions? Contact us for a free consultation about your case.

How much is my case worth?

The "value" of your case depends on many factors, and each case is different. The factors considered are (1) the extent of the injury and how it has affected, or will affect your life, in the past, present and future (2) the amount of pain and suffering, past, present and future (3) the amount of other damages such as lost wages, medical bills (4) the ability of the defendant to pay (for example, whether there is a lot of insurance money, or just a poor defendant with no or little insurance coverage) (5) the likelihood of winning the case at trial (a "difficult" case to prove will be worth less in settlement value than a "slam dunk") (6) the amount of money juries have awarded to others with similar injuries in the area where your case will be tried.

Will I win my case?

We will not take your case unless we think it has a good chance of success. We do not take "frivolous" cases. But there are never guaranties. Even great lawyers lose cases, just like great football teams lose games. Keep in mind that, in today's world, most cases settle before trial, so the risk of a total "loss" is usually small.

My insurance agent says I don't need a lawyer, that I can settle this case with her on my own. Should I?

No, not without at least talking to us. Since a consultation with us is free, it won't hurt to ask us if we think we can help. Having worked as lawyers for many years, we know that insurance companies tend to "low ball" accident victims who do not have experienced, competent personal injury lawyers representing them. Remember, the insurance company makes its profit by paying you as little as it can in settlement. In most cases, you have to fight them for a fair settlement, and you need a good lawyer to fight with you. A good lawyer knows how to maximize the "value" of your case by arguing its merits based on current case law, by seeking every possible category of damages that applies to your case, by savvy negotiations, and, if necessary, by skillfully presenting your case at trial. Remember, the threat of a trial itself adds to your bargaining power, and the insurance adjuster knows that you cannot try the case without a lawyer.

How long will my case take?

The short answer: it depends. It depends first and foremost on how long it takes until you are either completely recovered or you have reached a "plateau" where you will never get any better. A competent lawyer will never suggest that you settle your case before that happens, because doing so reduces the value of your case. Where a significant injury is involved, this may take up to a year or more. And it is well worth the wait. Settling early means selling yourself short. If the case cannot be settled and must go to trial, the process to get there can take a year or more. But most cases do settle out of court. Be patient. In the meantime, we are working hard for you, collecting and analyzing your medical records, researching the law relevant to your case, keeping in touch with the insurance adjuster, etc. Remember, you can call us any time to discuss the status of your case. We will be happy to hear from you.

Will I be taxed on the settlement amount I receive?

Usually not, at least where the settlement includes compensation for your pain and suffering. This is generally considered “tax free” because the monies received are meant to “make you whole”, that is, to put you back in the same position you were in before the accident. The compensation is not meant to put you in a better position than before the accident, and therefore it is not deemed “income” at all.

How soon will my claim be settled?

Well, first of all, your claim might not settle. If the insurance company does not offer you a fair settlement, Michaels & Smolak will advise you to go to trial. The decision as to whether to do so, however, is yours. You may decide you would rather settle than go to trial, even though we tell you the settlement offer is less than fair. Most cases do settle, in part because we are good at getting insurance companies to offer fair settlements. should not be settled until your doctor either releases you from treatment or indicates you are not going to get any better ever. At that point, the doctor can give us your “prognosis” and a “permanency rating”. It is important to get this prognosis or permanency rating before settling so that we can ask for compensation not only for your past pain, suffering medical expenses, lost wages, etc., but also for your future pain and suffering and other losses. We can’t know what to ask for to compensate your future losses until we know what your doctor says about your future, i.e., your prognosis or permanency rating. Depending on your injury, and how fast you heal, this could be a matter of months or even more than a year.

Can the insurance adjuster record our telephone conversation?

Generally, he/she can. It is best not to discuss your case without the advice of a lawyer. A lawyer is more experienced with these matters and it may be best to have a lawyer speak on your behalf.

Can an insurance company “spy” on me?

Yes, they can. Insurance companies claim that they do video surveillance to prevent fraudulent claims. However, even legitimately injured people may find themselves the subject of a video surveillance camera.

Can I sue my employer if I got injured on the job?

Usually not. Under the “workers’ compensation bar” an injured worker may not sue his or her own employer for injuries he or she sustains on the job if the worker’s compensation is made available to him. If workers’ compensation is available, it is generally considered the exclusive remedy the employee has against the employer. But workers’ compensation usually isn’t enough to truly compensate an injured worker, especially when the injury is serious and prevents him from working. Even though you can’t directly sue your employer for your on-the-job injuries, you can sometimes sue other parties who may have contributed to causing your injuries on the job. For example, if you were injured on a construction site because of unsafe scaffolding or defective equipment, the law permits you to sue the owner of the construction project, the general contractor, the manufacturers of the defective equipment and others who were on the job who may have contributed to the problem.

My insurance company has told me I must go to an “IME” to get examined by a doctor. What is an “IME”?

First, an “IME” is a misnomer. It stands for “Independent Medical Examination,” but there is nothing “independent” about the examination. If you are being sent to an “IME” by your workers’ compensation or no-fault insurance carrier, chances are they are looking for a way to either reduce the money they have to pay you, or cut you off completely. To do this, they need to have a doctor write an opinion that either: (1) you are faking; (2) you are exaggerating; (3) the injury was not caused by the accident the insurance company covered, but pre-existed the accident; or (4) you are all better now so you should get back to work and stop getting medical treatment. Of course, they might try a combination of any of these things. Insurance companies want us all to believe that the “IME” is truly an “INDEPENDENT medical examination,” but nothing could be further from the truth. The doctor who will examine you is paid by the insurance company to examine many of their insured like you. The IME doctor usually makes all, or a significant part, of his living, doing IME’s for insurance carriers and testifying for them in court. These doctors know who butters their bread, and they are not about to be “independent” when it comes time to write a report about their examination of you. They know what the insurer wants to hear (see the four numbered options above) and they usually deliver. That is why personal injury lawyers insist on calling IME’s “Insurance medical exams” rather than “independent medical exams.” And that’s why you need a good lawyer on your side who can, when the time comes, effectively cross-examine the IME doctor and make him look like what he is --- a hired gun of the insurance company paid to knock you off of the insurer’s payee list.

Actually, there are some IME’s that are not quite so malicious. Occasionally these exams are for the purpose of determining if requested medical treatment is necessary.

A “liability” IME is slightly different. This kind of IME takes place during litigation, that is, after you have brought a lawsuit seeking damages for your injuries. In these IME’s, the liability insurance carrier is not looking to cut you off or minimize your insurance coverage (they are not paying you any insurance benefits, and will only be liable to you if you beat them in court) --- but rather to torpedo your case! The IME doctor who examines you will later testify in court for the defendant (really for the defendant’s insurance carrier), and will likely state that (1) you are faking it; (2) you are exaggerating it; (3) the injury was not caused by the accident, but pre-existed the accident; or (4) you are all better now so you should get back to work. Sound familiar?

No matter what kind of IME it is, you are generally required to submit yourself to it. If it is a no-fault or workers’ comp IME, and you refuse, your no-fault or workers’ comp benefits will be cut off. If it is a liability IME and you refuse, your case can be dismissed by the judge. So you have no choice; you must go.

What if the date I am scheduled for the IME conflicts with other appointments or work?

The date can be changed. If you need to change the date of the IME, you should do so as soon as you know. Call your lawyer first, and he or she will tell you whether you can call to talk to the insurance company yourself, or whether he or she will do it for you.

Is there anything I can do to make my IME go well?

First, keep in mind that the IME doctor is NOT YOUR DOCTOR. He is not there to help you. He is there to HURT your case, or your insurance benefits. Don’t help him hurt you. Protect yourself by applying the do’s and don’ts of an IME exam:

  • Don’t exaggerate your symptoms or pain (the IME doctors love to write in their reports that you were clearly exaggerating -- and they can tell --- they have tests that can show that you are exaggerating). Don’t groan, moan or wince in pain in an exaggerated manner. Don’t say something hurts if it doesn’t. Just be natural. If the doctor asks you if something hurts, tell him the truth.
  • On the other hand, don’t try to be stoic or under-report your pain. Don’t jump up onto or off the examining table or make other such movements which the doctor can interpret as you being pain free.
  • Don’t offer any information. Answer only the questions the doctor asks you. If he asks you how the accident happened, give a very brief narrative, without a lot of details (example: If the doctor asks, “how did you injure your back?” Good answer: “Lifting a big machine at work.” Bad answer: “I had to lift a big machine because my co-worker was out sick and my boss really wanted that machine moved” etc., etc.)
  • Don’t lie. A lie can almost always be detected eventually, and if you are caught lying once, the jury will have a hard time believing anything else you say.
  • Don’t talk about your case or injury anywhere in the elevators or waiting rooms --- you may be overheard, and whoever overhears you might later show up in court and distort what you said.
  • Be careful when you walk in and out of the building --- some IME doctors actually watch you and love to write in their reports that you walked normally on the way in and out, but walked in apparent pain when you were in his presence. Don’t give the doctor a chance to write this in his report --- walk the same way, a natural way for you, no matter where you are.
  • Don’t wear inappropriate clothing or jewelry. Dress neatly and be clean and (men) shaven.
  • Be polite. If the doctor asks you questions that are inappropriate and not related to your injury (for example, about your marital status, or your outside interests), just tell him politely that you are here because the insurance company wants him to examine you but you were not told that you had to give him any information unrelated to the injury.
  • Never discuss your case, your lawyer, or any money you expect to get from your case.
  • It is a good idea to have someone drive you to the IME and back home.
  • If your lawyer has not sent a professional nurse or doctor to the IME with you (at Michaels & Smolak, we often send a medical doctor to accompany you to liability IME’s), try to keep track of how long the doctor spent with you and the tests he did on you. Write it all down when you get home and report it to your lawyer.
What if I have other questions?

Contact us today and we will answer your questions and discuss your case for free.