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Kings American Inn of Court gathers Jan. 27 on Remsen St.

Chuck Otey's Pro Bono Barrister

January 22, 2015 By Charles F. Otey, Esq. Brooklyn Daily Eagle
Arthur Schack, Eagle file photo by Mario Belluomo
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The Kings County American Inn of Court will hold its next CLE-accredited presentation Jan. 27 at BBA headquarters, 123 Remsen St. Inn Administrator Lucy DiSalvo advises that a delicious buffet will be provided beforehand, starting at 5:30 p.m., followed by the program at 6 p.m.

Those who will be taking the stage that night to deliver a dramatic and illustrative performance titled “A Night at the Movies” are Justice Sylvia Ash, John Lonuzzi, Andrew Fallek, Andrew Leftt, Doron Leiby, Pawel T. Sabaj, Don Savatta, Scott Star, Hajin Suh and Alan C. Trachtman.

Inn officers are President Dave Chidekel, President-elect Justice Arthur Schack, Counselor Justice Miriam Cyrulnik and Treasurer Jon Besunder.

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Inn founders include Justice Marsha Steinhardt, retired Justices Gerard Rosenberg and Abraham Gerges and former Justice Edward Rappaport, who is now the president emeritus. Among those serving as inn masters are Justice Carl Landicino, Judge Joanne Quinones, Hon. Barry Kamins, Appellate Division Justices Cheryl Chambers and Sylvia Hinds-Radix, Hon. Gloria Cohen Aronin, Steve Harkavy and Steve Goolnick.

Inn executive director is Jeffrey Feldman.
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New Contingent Fee Rules to Get Close Scrutiny by Brooklyn Bar Association

Lawyers are very much aware that without the contingent fee system millions of Americans, especially accident victims, would be shut out of our courts. Big businesses and large institutions would be virtually freed of liability — in injury cases, for instance — if victims could not afford to engage competent counsel working on a contingent fee arrangement (i.e. for a portion of the outcome, usually in the range of 30 percent).

The same would hold true in many stock fraud cases, whistle-blower matters, all types of pollution violations and even in many civil rights matters. If there is one thing that “tort reformers” (insurance industry lobbyists) truly resent, it is the contingent fee system, which is under attack in a number of states and, of course, in Washington, D.C.

Just about every day in some Kings County courtroom, a single, solitary Court Street lawyer, whose client has sustained life-changing injuries, takes on a determined, billion-dollar conglomerate. This conglomerate of carriers spends hundreds of millions of dollars in advertising, telling potential jurors that only lawyers profit from a negligence case, often hinting that the plaintiff is left with nothing but a handful of medical bills.

Insurance publicity agents bombard news outlets whenever a controversial case is decided, often distorting the facts, as well as the outcome. Who can forget the elderly New Mexico lady’s multi-million-dollar award to compensate for severe burns in a delicate part of her body inflicted by an over-heated container of McDonald’s coffee?

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Insurance Industry Misled Public About McDonald’s Hot Water Case

The compensatory damage award was $200,000. But the jury — after being made aware that there had been 700 scalding water claims against McDonald’s in the prior decade — gave her $2.7 in punitive damages.

The punitive recovery was substantially reduced on appeal to $480,000 and the entire case was settled by McDonald’s attorneys, who insisted the settlement sum be kept confidential.

While every person may be legally entitled to his or her day in court, most injury victims could not afford to sue a deep-pocketed defendant if not for the rules permitting attorneys to lay out the costs of filings, research and preparation of “expert” testimony. Even in the most basic automobile negligence case, it’s not unusual these days for costs of preparation and review of medical records, then “time in court” by an expert, to exceed $10,000.

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Lawyers Look Closely at Any Contingent Fee Rule Change

In view of the above, lawyers for plaintiffs and defendants alike pay special attention whenever any legal authority modifies existing contingent fee rules. This means that when the Brooklyn Bar Association (BBA) holds a “critical update” of “New York’s Mandatory Contingent Fee Retainer Language” on Wednesday, Jan. 21, the speakers will hold the rapt attention of those attending the event at 123 Remsen St.

One task facing presenters Michael Ross and Clifford Robert that night will be the seeming complexity (and, some would say, inconsistency) of the actual amendment described as Sect. 691.20(e), “Contingent Fees in Claims and Actions for Personal Injury and Wrongful Death.” Additions in texts are indicated by the following:

“(3) Such percentage shall be computed by one of the following two methods, to be selected by the client in the retainer agreement or letter of engagement: (i) on the net sum recovered after deducting from the amount recovered expenses and disbursements for expert medical testimony and investigative or other services properly chargeable to the enforcement of the claim or prosecution of the action; or (ii) in the event that the attorney agrees to pay costs and expenses of the action pursuant to Judiciary Law Sect. 488(2)(d) on the gross sum recovered before deducting expenses and disbursements. The retainer agreement or letter of engagement shall describe the alternative methods, explain the financial consequences of each and clearly indicate the client’s selection. In computing the fee, the costs as taxed, including interest upon a judgment, shall be deemed part of the amount recovered. For the following, or similar items, there shall be no deduction in computing such percentages: Liens, assignments or claims in favor of hospitals, for medical care and treatment by doctors and nurses, or self-insurers or insurance carriers.”

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Do Clients Find New Rules Too Complex at Outset?

Experienced trial lawyers have already figured out the best way to present and execute retainers under the new rule. Newcomers may be more than a little puzzled by the language, which states that “… one of the following two methods, to be selected by the client in the retainer agreement or letter of engagement…”

Most likely, the retaining attorney would have to do a run-through of the potential costs and the advantages of selecting one of the two methods over the other. Once a client in a malpractice case is confronted with figures indicating potential costs and medical testimony fees far in excess of $25,000, could he/she have second thoughts? How can an attorney negotiate this new legal maze while being forthright and thorough of one approach instead of the other?

Fortunately, the answers to these and others will be reviewed in detail by attorney Ross and Robert in this CLE-accredited session, which will get underway at 5:30 p.m. for networking and refreshments. The presentation starts at 6 p.m., according to CLE Director Danielle A. Levine. The session’s sponsor is the New York State Academy of Trial Lawyers.

The BBA is led this year by charismatic President Rebecca Woodland, First Vice President Frank Seddio (Kings County Democratic leader) Second Vice President Aimee Richter, Secretary David Chidekel, Treasurer Hon. Frank Carone and the very steady Executive Director Avery Eli Okin.


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