Personal Injury FAQ

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Should I settle my injury claim while I'm still receiving medical treatment?

It may be tempting to want to settle a claim while you're still in treatment, but you must consider some things before you do.  Learn more here.

I was struck by a driver who was texting while driving.  What can/should I do?

This is, unfortunately, become more and more common. Here are five common questions and answers.

I was hit by someone as a pedestrian but was also issued a ticket. Can I still recover?

Pedestrians and cyclists often unintentionally violate one or more "rules of the road".  Does this prohibit recovery if they are struck by a car or truck?  Learn more here.

I was injured by a drunk driver.  What do I do now?

Despite massive education about the risks of alcohol impaired driving, this still accounts for nearly one-third of auto fatalities.  Learn what to do if you or a family member were struck by a drunk driver here.

I was recently involved in a car accident.  How do I know whether to settle with the insurance company or file a lawsuit?  

Despite what you may see on tv commercials, there is no cut and paste answer.  Each case and client are different.  Read some of the considerations here.

I was hit and injured by a large truck on the highway.  Who is responsible?

Large truck and bus accidents are increasing, despite the vehicles becoming more safe.  Learn about who may be held responsible for an accident here.

If I received a ticket following an accident with a truck or bus, can I still recover for my injuries?

Following a large truck or bus accident it is often the case that both parties are ticketed.  Generally speaking this does not mean that you have no right to recover for your injuries.  Learn more here.

How much is pain and suffering worth in New York?
 
The answer is that it depends upon several factors.  Learn more here.
 
I was hurt during a bicycle race - is there anything I can do?
 
Maybe - that all depends on what caused the injury, and whether you assumed the risk.
 
 
What is mediation?

Mediation is a non-binding process during which two sides or parties to a lawsuit or dispute sit down with a neutral third party in an effort to resolve their dispute. A mediator is usually a lawyer or retired judge, and is often someone who is familiar with the type of dispute that the parties are attempting to resolve. Mediation is not a trial, and does not ordinarily take place in a courtroom.

Mediation occurs both formally and informally. In the context of a lawsuit for employment discrimination, personal injury or medical malpractice mediation tends to be somewhat more formal, and is typically held at a lawyer's office.

Mediation is becoming increasingly popular as a way to resolve or settle cases. In Federal Court, mediation is now mandatory in nearly every civil case. This means that whenever a lawsuit is filed for employment discrimination, violation of civil rights or the Family and Medical Leave Act, for example, mediation is mandatory relatively early on in the case. The Federal courts require this because lawsuits are both expensive and unpredictable and by forcing parties to consider the relative strengths and weaknesses of their cases early the courts believe more resolutions are facilitated.

I've heard the terms State and Federal Court used? Is there a difference between the two?
 

Most people would have no reason to know the difference between the State Court process and the Federal court process, nor do they even recognize the difference when for example they hear about a case or see it on tv.

There are, however, some pretty significant differences between state and federal courts. Read More ->

What do I do if my child was bit by a dog?
 

You move to a new neighborhood and are invited to a barbecue at your new neighbor's house down the street. You know that they have a large dog, because you've seen it barking at the mailman on a daily basis. Nonetheless you decide to go and meet some neighbors, and you bring your two kids, both under the age of 8.

At the party your kids are running around with the other kids. The dog, you notice, has been allowed to mingle among the guests. Out of the corner of your eye you see, like a flash, the dog attempt to grab a hamburger from your 7 year old son's hand, only to miss and bite him in the eye.

18 months, countless doctor appointments and two surgeries later you're left with a child who has long term vision loss and a scar on his face. What can you do?

New York allows for recovery where an animal had previously shown “vicious propensities”

Under New York Law, a victim of a domestic animal attack (including dog bites) can recover against the owner of the animal only if the owner had notice that the animal had previously shown “vicious propensities.” The bad news is that the owner cannot be sued for simple negligence – for example for allowing the dog to run around a party with children present. The good news, however, is that the owner can be strictly liable (or, essentially, unable to present a defense to the case) if in fact the owner was aware that the dog had a tendency to do something vicious.

So what is a “vicious propensity”? Well, in some cases courts have found that constant aggressive barking at the mailman was vicious. More often, however, viciousness can be established by showing that the animal had previously bitten, or attempted to bite, another person. This can be shown through testimony of other neighbors, vet records, or other information that may be learned through a thorough investigation.

In an animal attack case a thorough investigation is key

If you or someone you know has been attacked by a family member it is very important to speak with an attorney quickly. In cases like these a thorough investigation is one of, if not the most important factors in determining whether the victim will receive compensation, or will be left with nothing.

I was injured in the parking lot of my job – what can I do?
 

This question raises a few issues. First, if you were acting within the scope of your employment the injury may fall within the context of worker's compensation, in which case you would need to contact a worker's compensation attorney.

The other issue, however, is whether there is potential third party liability for the injuries that you sustained as a result of the fall. If, for example, the fall was caused by the failure of a property owner to maintain the parking lot (during winter, etc.), there may be a potential third-party claim against the owner as a result of that failure. It is often the case that companies lease office space, and as a result have no responsibility for maintaining the parking lot or other “common areas” on a property.

Things get a bit more complicated when you consider whether the property owner may have contracted out the maintenance work, but an experienced New York personal injury attorney will be able to ascertain who is ultimately responsible for the accident.  For more information check out our page on premises liability.

Are settlement proceeds taxable?
 
Clients often ask us whether or what part of his or her settlement proceeds is taxable. Although we do not give tax advice and always advise our clients to consult with a tax professional, there are some guidelines to be aware of. Personal injury proceeds are generally not taxable and can be excluded from income. This also applies to emotional damages that stem from personal injuries. An exception may apply when the client has already claimed deductions and received a tax benefit from medical expenses. In this case, it may be required that the client include payment for medical expenses in a personal injury award as income.
What does it mean to take a case “on contingency”?

Contingency means that we only recover a fee in those cases if we obtain a recovery for the client. The typical fee in a contingency case is 1/3 (33%) of any recovery, less expenses. The majority of our cases are taken on contingency.

A lot of firms seem to be charging for initial consultations, do you?

We charge a flat fee of $150 for an employment law consultation.  In the event that we accept your case on a contingency fee basis we will credit that $150 back to you against any expenses.

We charge a flat fee because in the vast majority of employment situations we are able to provide assistance to the individual during the course of an initial meeting/consultation after hearing about their situation.  We are happy to dispense this advise, however as Abraham Lincoln famously said, “A Lawyer's time is his (or her) stock in trade.”

Our consultations in personal injury matters are free.

I see lots of attorneys on TV and other places. Shouldn't I be going to them?

The most important things to keep in mind in selecting a lawyer or law firm are not how often you have seen an ad or commercial, but your feel for the lawyer. You should ask many questions, determine the lawyer's level of experience and competence and, importantly, determine your level of trust that the lawyer or firm will take the time to nurture your case. Find out who will handle the majority of your work, whether it will be the lawyer you meet initially or someone else. Ask about the lawyer/law firm caseload. Are they a high volume practice? Does it make a difference?

If I pay a retainer, does that mean that I will not receive any of the money back?

Not necessarily. When you pay us a retainer on a billable hour case, we place the funds into an attorney trust, or escrow, account. As we perform work on the case we deduct from the retainer. If there are unused funds at the end of the case we will issue you a check for the remaining balance.

Do you require an initial retainer on your cases?

That depends. Many of our cases, particularly employment discrimination and serious personal injury cases, are taken on contingency. Others are taken on a “flat fee” basis, and finally some are taken on a traditional “billable hour” basis. In some flat fee cases payment is required up front, and in others payment is made at the conclusion of the matter. In traditional billable hour cases we usually have the client pay us some type of initial retainer. As a small firm, however, we are able to work with our clients towards a mutually acceptable payment method.

Some firms promise quick results. How long can I expect my case to take?

No one can predict how long a case will take, and we will never promise a quick result. The reason for this is that our job is to get the best possible outcome for our New York personal injury clients. If that takes one month or three years, we will do what is necessary to ensure maximum recovery for the client. We consult our clients each step of the way, and we will not settle a case early if we believe we will be able to obtain a better recovery for a client down the road.

Will I have to go to court, or answer questions?

Odds are that you will, at some point, have to give an examination before trial, or deposition, where you explain what happened in your case. We will sit with you and prepare so that you are comfortable in this situation long before the day comes. We cannot predict whether your case will ultimately go to a trial, however we prepare all cases as though they would end up in court.

How long do I have to file a claim following an injury?

It depends upon the specific facts of a case, however the general statute of limitations in New York for Personal Injury matters is three years, while the statute is 2 1/2 years for medial malpractice and two years for wrongful death. These timelines, however, can be subject to certain extensions in some cases, which is why it is critical to contact an New York Personal Injury lawyer to review the facts of your case.

Personal Injury

Have you been injured at a job site, or in a vehicle? D’Orazio Peterson is an experienced Personal Injury law firm. If you have experienced serious injury due to negligence or malice, be sure to contact us to see what we can do to help you receive the justice you deserve.

Employment Law

If you were recently laid off during maternity leave or you’re having trouble at work and think discrimination is to blame, you have the right to fight back against your employer’s poor behavior. D’Orazio Peterson handles employment law cases involving FMLA violations and incidents of discrimination based on age, gender, race or disability.

Medical Errors

Medical errors are a leading cause of death, and many are preventable. We work towards eliminating those errors.

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