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We would like to wish all themembers of the esteemed plain-tiffs’ personal injury bar a HappyNew Year. We expect this year tobe a banner year for personalinjury practice in New York. Why?I DON’T KNOW. Optimism is es-sential in our area of practice.Our firm had a decent year in2004, and we hope yours did too.We
learned 
a lot in 2004 as well,which made it even more profit-able.First, we learned that you can-not take any case for granted asbeing a winner, nor can you writeoff even the most difficult case untilyou’ve exhausted all witnesses.For instance, in labor law cases,it was thought by many lawyers,especially plaintiff’s counsel in theBlake case (not us), that a fall froma ladder resulted in obvious sum-mary judgment for failure to ade-quately secure the ladder. Welearned from the Court of Appealsthat you must still set forth theregulations of the New York StateIndustrial Code that were violated.So its not as easy as it seemed.A case which on its face was
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 Mr. Rodriguez was just 19when he lost 3 1/2 fingers ina machine accident. Thedefendant claimed it had nodocuments showing they ever  sold the machine. The owner  said they weren’t “100% sure” where they bought it.The Dutch manufacturer went bankrupt in 1983.Result: $4.9 million verdictfor the plaintiff. Screw ‘em.
Happy New Year! Let’s Review WhatWe Learned in The Old Year
Don’t Let A Drunk Plaintiff Deter You
We know that the plaintiff is90% of the case, and that adrunken plaintiff makes a veryunsympathetic accident victim. Butthat doesn’t mean you should giveup. Sometimes the drunkennessmerely creates the conditions un-derlying the accident, but is not thecause of the accident.We argued that a man witha .38% blood alcohol content at10 am on the morning of the acci-dent was, yes, part of the condi-tions presaging the accident. Hewas the reason that you neededthe fence around the stairs. Hewas like a child, or a blind man, ora pushed person, or a million othercharacters that could fall into theunguarded pit. If no one everstumbled or fell or misstepped ormiscalculated, you would never
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The Durst Law Firm, P.C.
January 2005Issue 11
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Special pointsof interest:
♦
Lessons from the OldYear, and optimismfor the New Year.
♦
Dutch Girl MakesPlaintiff’s Case
♦
Don’t Let a DrunkPlaintiff Deter You
♦
Nuisance Cases An-noy Us All
Inside this issue:
New Years Lessons
1
Drunken PlaintiffsAre People Too
1
Nuisance CasesWork Both Ways
2
 
impossible resulted in a $4.9million verdict, thanks to witnessescooperating on the side of justicefrom as far away as Holland.In Rodriguez v. NationalEquipment Company, the defen-dants had initially prevailed onsummary judgment, on thegrounds that there was no salesinvoice, computer record, orother document proving that theywere the seller of the product.
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We located the daughter in lawof the defunct manufacturer inHolland, though, and she wasable to testify that she knew herfather in law’s company onlydistributed the product in the USthrough the defendant’s com-pany. The Appellate Divisionreversed the lower court andheld that her testimony created aquestion of fact. Rodriguez v.National Equipment Corp., 2003N.Y. App. Div. LEXIS 4500, 304A.D.2d 494, 759 N.Y.S.2d 55(1st Dep’t 2003) At trial, theDutch woman was absolutelypersuasive, and after a fourweek trial, the jury had no trou-ble finding that the defendanthad distributed the product,based on her testimony.The jury returned a verdict of$4.9 million for this 19 year oldillegal Mexican immigrant, de-spite the fallacious arguments ofthe defendants that the machine
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to handle the case through trial,rather than settle for anything,because the case against us wasso clearly ridiculous that the at-torney had to suffer.Guillermo Gleizer, the attor-ney who brought the caseagainst us, ultimately brokeA few years ago we weresued for legal malpractice be-cause, although we sued thecorrect defendant, the tenant incharge of the floor of the build-ing where the plaintiff fell, asubsequent incoming attorneysaid we should have also suedthe building owner. We decideddown in tears after openings,after being reemed out by Jus-tice Eileen Bransten for bringingthe clearly meritless case. Hehad to agree to pay us $12,500before we’d let him drop thecase against us.
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$4.9 Million Verdict Reassuring for New Year
Don’t Sue for Nuisance Value
Drunken Plaintiffs Are People Too
defendant had placed the fencearound the stairs leading to thesidewalk-basement, the plaintiffwould have bumped his head whenhe fell, and maybe said “ouch”, butwould not have suffered the braininjuries he received from falling 10feet to the cement floor below.The defendant offered their $1million policy shortly after the trial
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need a fence around a drop off,or a guard over a moving blade,or a child seat for a car. Andwas he partially at fault? Sure,to the extent of the injuries hewould have received had theirbeen no negligence by the de-fendant. But that was all.We then argued that if the
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Page 2
>Legal News
When there is a serious injury and adeserving plaintiff,there must be away.
“Don’t Be Like the Iraqi Minister of Information
Be man enough to drop a cause,rather than stubbornly stand upfor injustice - just because youcan.” 
 
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The plaintiff, with a 0.38BAC, stumbled and fell through the police tape,which was a fence but wasremoved during renovation.
 
had been “cannibalized” in the40 years of its use prior to theaccident. Justice Norma Ruiz ofthe Bronx agreed that the de-fense of Robinson did not apply,which drove the esteemed de-fense counsel apoplectic. Natu-rally the defendants have ap-pealed on every imaginableground, but the 9% interest rateon a judgment is some solace.
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The case provided renewedreassurance and faith in ourjurors and judges. And that awitness would go to the troubleof coming from Holland to testifyon behalf of a total strangerfrom Mexico renewed our faith inwitnesses, to be sure. Whenasked why she did it, she simplysaid she thought it was a goodthing to agree to cooperate.Of course, we had alreadywithdrawn any claim of successorcorporation liability against hercompany, so she had nothing tolose.To read her testimony, andthe testimony of the many ex-perts, please visit our web site,www.durstlaw.com, where theentire trial transcript is availablein pdf format. It makes interest-ing reading, not only because of
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get out of the case. We argued,and believe, that you shoulddismiss defendants that reallydon’t belong in a case. To holdthem in to just squeeze anothergrand or two out of them is notonly unethical, but unjust.We members of the plaintiff’sbar should resolve to only fightI learned from this that youmust be man enough to drop acase that turns out to be merit-less. Gleizer argued that thecase against the building ownershould have been pursued, be-cause they would ultimatelythrow something in to the pot to
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for just causes, not pursue cases justbecause we can. We should evalu-ate our cases carefully, and bewilling to drop those that don’t fly.The plaintiff’s bar can be alucrative and satisfying field of law.We should be careful not to abusethe privilege, or we’ll lose it.
Witnesses Make or Break a Case
Nuisance Cases Work Both Ways
Preserving Evidence Saves the Day
defendant within a month afterstarting the case, so we couldpreserve the witness’s testimony.The witness did die before thetrial.We went to the site of theaccident within 2 weeks after itoccurred, took video tape andphotographs, and interviewedwitnesses. The defendant,though, had already replacedthe missing fence, so the photosdid not show the condition as itexisted at the time of the acci-dent.A substituted firm, Weitz &Luxembourg, had photographsshowing the site before the fencewas replaced, and their coop-eration in providing us the photo-graphs was an excellent exam-ple of plaintiffs’ attorneys help-ing other plaintiffs’ attorneys.
 
started, knowing that we wereright, and that their insured’snegligence was the cause of theadmittedly drunken plaintiff’sinjuries.We took the deposition of awitness who had been walkingwith the plaintiff at the time hefell. The witness was in his 80s,and so we served a notice on the
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Issue 11
George cheering for Legislation against Lawyers
 A Picture That Took Years toDevelopNew York Courtroom Evidenceis available in pdf format atwww.durstlaw.com
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