HomeColumnsLegal myths and reality: August 2023 edition

Legal myths and reality: August 2023 edition

Content provided by: Judge Joan Shkane

This is a continuing discussion of Legal Myths and Reality, because those informed are the most successful. 

MYTH: The law is set in stone and is rarely changed. 

REALITY: One of the most puzzling laws to me has always been New York States’ wrongful death law.  Under this law the only loss, other than pain and suffering, that can be compensated is economic loss.  The value of a deceased to the family, community, friends, etc. does not matter in setting compensation, only economic earning history, projected into the future after considering various circumstances such as age, future expected employment, gender, etc.  (Pain and suffering is separate and must be proven separately.  A sudden relatively pain-free death will bring little in the way of a pain and suffering award.) If a deceased person did not earn much money during a set period, the value award must be based on that amount, sometimes quite low.  47 other states have expanded the criteria for compensation by also adding emotional anguish caused to the survivors as well as economic loss.   

The New York State Legislature has now written a new law more in conformity with the other states.  Only Governor Hochul and her aides know if she will sign it into law or veto it.  The new law offers a shorter statute of limitations than the current law, so that a harmed person must make the decision to sue earlier than under the current law.  It also clarifies who can sue and expands the group of people who could do so.   

Those who support the proposed new law say that the new law would be fairer to people of color, women, children, seniors and New Yorkers with disabilities.   

Those who oppose the new law say that the new law would raise insurance premiums.  Among those who oppose the new proposed law are medical organizations, local governments, business groups and those who generally oppose law reform.  Some medical professionals believe that the new law will cost hundreds of millions of dollars in new costs to the healthcare system.  Every sector of the economy, both large and small businesses, want the bill defeated.  They believe that the real victors would be plaintiff’s lawyers who typically earn one-third of every settlement or verdict amount and therefore could potentially increase their fees under this law.  Stay tuned for the Governor’s decision. 


MYTH: Town and village justices are licensed lawyers. 

REALITY: The New York State Senate has sent a new law to the Assembly for approval.  This law would reform the Uniform justice Court Act.  The proposed law would make it mandatory that town justices in the 100 highest volume town and village courts must have been licensed to practice law in New York for at least five years as of the date they would assume office. (Judges in higher trial courts must have been licensed attorneys for ten years before being eligible to serve as a judge).  Currently a town justice need not be a licensed lawyer to preside over those higher volume town and village courts.  Those judges currently sitting who are not lawyers would remain in the seat until the beginning of their next judicial term of office.  The new proposed law recognizes that a licensed lawyer with experience has greater potential to understand complex laws and legal principles than a lay person, while also recognizing that smaller localities do not have the resources to attract lawyers to their town or village justice seats. Therefore, only the 100 highest volume town and village courts are subject to this new law, if passed. 

Attention to legal myths can be important.  They can be a starting point for developing an interest in the law.  However, if specific legal issues are important in your life, for instance, regarding custody of children or money payable for any reason, it is wise to consult a lawyer who can advise you on the truth of legal myths.  This discussion is not intended to give legal advice on specific cases or to express an opinion on any specific case. 

Guest Contributor
Guest Contributor
Guest contributors are community members who have generously shared their time, talent, and thoughts with The Utica Phoenix/Phoenix Media. The staff would like to thank our valued guest writer for this content.

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