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Suit 'winner' nets pocket change Lawyers' fees, expenses reimbursements leave her feeling cheated

When Justine Thompson was forced to retire from her state job after 28 years because of a nasty fall she took in an icy parking lot, she figured she had protected herself by hiring a personal injury attorney.

That was before the accounting of the $35,000 settlement arrived in the mail from Cellino & Barnes.

The lawyer's share was $10,000.

The law firm repaid itself another $3,600 in expenses.

New York took $21,000 to repay workers' compensation.

Justine Thompson's share?

A check for $6.60.

It's not the kind of settlement that television ads for The Barnes Firm boast about, claiming $150 million for auto injury clients alone over the last few years.

"That's not even enough to buy a Happy Meal," says Thompson, who found nothing at all happy about the experience.

Neither do two attorneys, one from Rochester, another from Syracuse, who filed a malpractice suit on her behalf against Cellino & Barnes, its successor, The Barnes Firm, and Michael J. Cooper, the Barnes Firm lawyer who represented Thompson.

"This lady is the poster girl for what's wrong with this profession," said S. Robert Williams, the Syracuse lawyer who filed the suit with Patrick J. Burke of Rochester.

More than just an example of a woman whose case they allege was mishandled, they say, this is a clash of philosophy on how to attract and satisfy clients in the controversial field of personal injury law.

It pits personal injury lawyers like Burke and Williams, who traditionally got their cases from referrals by other lawyers, against law firms like The Barnes Firm, which attract thousands of clients by spending millions of dollars in ads.

Burke and Williams teamed up in 2002 to win a $1.9 million malpractice suit against James "The Hammer" Shapiro, a notorious Rochester personal injury lawyer, after Shapiro accepted a $65,000 settlement for a client who suffered permanent injuries after a car accident.

Shapiro was later suspended from practice for misleading advertising and trying to solicit an accident victim in a coma.

The two attorneys claim lawyers for The Barnes Firm settle cases that should go to trial because its lawyers handle too many cases. Cooper, they say, boasted to fellow attorneys that in 2006, he settled 172 cases, or more than three a week.

Rather than settling Thompson's lawsuit for $35,000, they said, Cooper should have taken the case to trial. They said it was worth at least $500,000.

Nonsense, replies Gregory V. Pajak, a Barnes Firm attorney who is representing Cooper.

"This notion that it was a $400,000 or $500,000 case for a broken ankle with some surgery is ridiculous," Pajak said.

>Barnes is 'a big target'

Thompson's injury is what is known in the industry as a slip and fall case, Pajak said, and cases like this are difficult to win with a jury of Western New Yorkers who all have to deal with wintry conditions.

Thompson's lawyers are not telling the whole story, Pajak said, because they have an agenda. He thinks Thompson's lawyers are going after The Barnes Firm because, as the largest personal injury firm in the state, it's a big target.

Pajak said Burke and Thompson's suit is so without merit, he's going to ask a judge to dismiss it. "I think it's important to know that people can make any kind of allegation they want," Pajak said of their claims. "It doesn't mean it's true. And in this particular case it's not."

Pajak said Thompson's lawyers don't mention she was paid $89,000 in medical expenses and lost wages through state workers' compensation because she was injured at work.

That money had to be paid back, said Pajak, and Cooper was able to get the state to reduce that amount to $20,000, and that money came out of her $35,000 settlement.

That's a false issue, Burke said.

Thompson only had to repay the state because she got a settlement. Had she not sued, she would have owed nothing.

And had the case gone to trial and Thompson got the verdict Burke and Williams say she deserved, Burke said, she could have repaid the state and been left with far more than $6.60.

Thompson, Burke said, has a career-ending injury, is in constant pain, will forever limp and will have to take powerful painkillers the rest of her life.

>It began with a fall

Thompson's troubles began Nov. 29, 2000, when Thompson, then 50, who counseled job applicants for the state Labor Department, left a high-tech job fair her department had sponsored at 275 Oak St.

She slipped and fell in the parking lot as she was leaving.

"My foot was facing in the opposite direction," she said in an interview at her house, a well-kept home where she raised five children on her own. Their pictures cover her walls. A cane was perched nearby.

Doctors at Buffalo General Hospital found she broke her ankle in three places and performed surgery. Five months later, she returned to work.

"I couldn't do it," she said. "I couldn't sit, I couldn't work."

She filed for disability retirement, cutting her career short. She had already called Cellino & Barnes, after seeing ads, and Cooper was assigned to her case.

Cooper filed a lawsuit against the building owner and the snowplowing service hired to keep the lot clear.

On Jan. 19, 2005, Thompson said Cooper called her to his office, and told her the case was going to trial the next day.

Burke and Williams contend Cooper wasn't ready for trial, that he hadn't lined up all the witnesses he needed.

Pajak said that's not true and the case was ready for trial.
On the day of the trial, before jury selection began, Cooper and insurance company lawyers representing the property owner and snowplow service met with the judge.

"He told me they made an offer of $35,000 and it was up to me whether to accept," Thompson said of Cooper. "He said if I have to go to trial and I lose, I have to pay $18,000 in court costs.

"I didn't have that money," she said. "I asked him if I could lose my home. He said I could."

Pajak, Cooper's attorney, said there must have been a misunderstanding. He said the court costs would have been no more than $1,800, not $18,000, had she lost.

Thompson said she knows what she heard. She wouldn't have been worried about losing her house over $1,800.

Four months later, in April, an envelope arrived in the mail from Cellino & Barnes.

It was the settlement statement from Cooper. It showed the gross settlement of $35,000, minus $3,624.35 to Cellino & Barnes for expenses in the case, less $10,458.54 in Cellino & Barnes attorneys fees, and minus $20,910.48 to the New York State Insurance Fund for the workers' compensation.

"Net settlement to client," the form stated: "$6.60."

Enclosed was the check in that amount.

Thompson refused to cash the check and still has it.

"I called him and said 'What's this?' " she said of the check.

"He said 'This is your share,' " she said Cooper replied.

Thompson said she let Cooper know what she thought of him and the settlement. "I told him I felt I was used," she said.

"He told me, 'I thought you were better than that.' "

Williams, one of Thompson's new attorneys, said Cooper should have never accepted the $10,000 attorney fee.

"Whenever a case goes south, for whatever reason, it's our philosophy and that of any respected personal injury firm, that the client gets more money than we do," Williams said. "The client comes first."

Pajak called the claim self-serving.

"It was a complicated situation," he said. "Was it the best situation? No."

Williams and Burke say they're suing Cooper because he never gave Thompson or a jury a chance to see what kind of case it was.

e-mail: mbeebe@buffnews.com

***

Settlement by the numbers

Victim of fall "wins" $6.60; lawyers get $14,000

$35,000.00 Gross settlement

minus $3,624.35 Cellino & Barnes expenses

less $10,458.54 Cellino & Barnes fees

minus $20,910.48 Workers' comp repayment

$6.60 Net settlement to client

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