Pittsburgh Legal Back Talk

Legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus.

1423 Posts and Counting

What if all the world was against you except one person? Who would you want that person to be?

Posted by Cliff Tuttle| February 19, 2018 | © 2018

No. 1,423

That’s the situation that Nicholas Cruz finds himself facing.  Of course, it is of his own doing and he has already confessed.  Under our system of justice, however, he has a right to competent counsel, even if he cannot afford it — which he can’t. We do this, not to give him some undeserved chance, but to be as certain as we can that we have it right.

I heard some criticism that his court-appointed public defender hugged him on the shoulder at the moment they walked into the arraignment and the full force of what was happening must have washed over him like a tidal wave.  In that moment, she told him that she was on his side.

There is nothing wrong here.  That’s her job.  If you or I were dragged into court, wouldn’t we want to know that the lawyer representing us was diligently working for us?   I would.

Nicholas Cruz is not going to escape justice (or whatever modicum of it may be possible in a circumstance like this) because he is represented by counsel.  The system works best when both sides are properly represented.

Being a public defender is a mostly thankless and poorly compensated job.  But, for our criminal justice system to work properly, somebody must present whatever defense there may be and do it properly.

CLT

Why does anyone choose to live in a flood zone?

Posted by Cliff Tuttle| February 18, 2018 | © 2018

No. 1,422

Image: CBS local TV

Its not unpredictable and it won’t be long before it happens again.

There are many places, near rivers and streams where floods occur regularly, even though the properties are not in official flood zones.

Development on higher ground can cause flooding in the valley below.  This can be caused by the paving of new parking lots without adequate storm sewers. Unfortunately, there are many streets where there are no storm drains and sewers at all.  Water gushes down the street during a heavy rain. In addition, steep driveways or hillsides can pour water into garages and basements.

If you already own a house with a flooding problem, you have to deal with it. You have no choice. You may need french drains or a sump pump. Yet, even those solutions don’t always work.

On the other hand,  if you are looking for a new home, you still have a choice. But you have to look for the danger signs. Why buy somebody else’s problem? Look for conditions that make a property flood prone.  Seek the high ground.

CLT

Growing the Culture of Winning.

Posted by Cliff Tuttle| February 17, 2018 | © 2018

No. 1,421

Pirate third baseman David Freese arrived at spring training and gave a candid answer to the question of the hour. What’s wrong with the Pirates?  He is quoted extensively this morning in the Post Gazette.  Here’s some of it:

“My opinion is I don’t think we lost 87 games because [Starling] Marte wasn’t there or [Jung Ho] Kang wasn’t there,” Freese said. “We lost 87 games because our environment doesn’t allow  [winning more]. I think that’s something we have to work on. I think it’s important to focus on the foundational components of what it takes to have a winning culture. I think this place kind of gets ahead of itself.

“They try to keep up with the way analytical stuff and all that is working. But man, you’ve got to have urgency. You’ve got to have accountability. You’ve got to have all these things. I’ve been here for two years, and we just kind of lacked in that department a little bit. We’ve got to pick that up.”

Every organization has a culture. Some are winning cultures.  Some are poison.  So how do you foster the winning one?

How do the members of a team change a losing culture to a winning one?  Or a mediocre culture to a winning one?

First, you have to want it. Then, you have to talk about it.  Then, you have to do something as a team. Teams win and lose together, you know.

As Freese says, you have to have a sense of urgency.  It isn’t enough to say that it would be nice to be a winning team.  There’s also a component of pride. How dare they call us losers?

“The three hours, man, when you’re in that dugout and on that field, it has to be about kicking some ass,” Freese said. “When you’re losing 10-2 in the pouring rain against Joe Maddon and you’re laughing, that’s not good. That says a lot. It’s not that hard to understand. You go out there and you have a job to do.”

Yes, its attitude, too.  Its saying to yourself, “I’m better than that.” Its refusing to accept the current level of performance because it can be better. In groups, this kind of change requires someone to lead — to lead us out of the wilderness.

The leaders give the cues by both words and action.  When Grant stayed in Virginia after the bloody battle of the Wilderness, he signaled to the troops that they were going to see that campaign through no matter how long it took.  Prior Union invaders had returned North to regroup after sustaining heavy casualties. But this was Grant and he had come to finish the job.

We talk about a high level of morale in armies like Grant’s.  But in many cases, morale preceded success. Commitment and dedication can thrive in the midst of hardship and suffering. It happens.  It can happen again.

Maybe Freese has starting something.  Time will tell.

And as for us, you and me — let’s get out there today and kick ass!

CLT

 

Unfair Trade Practices Consumer Protection Law Can Be a Game Changer.

Posted by Cliff Tuttle| February 16, 2018 | © 2018

No. 1,420

Image:homerenovationwi.com
An estimate form, like the one pictured above, will rarely fulfill the requirements of the HICPA statute.

Cases by consumers against home remodeling contractors and other service providers often don’t involve a lot of money.  At first blush, it might not seem worthwhile to hire a lawyer.

But consider this:  there are a group of consumer statutes in Pennsylvania that provide for enhanced damages. One such statute is the Home Improvement Consumer Protection Act — HICPA.  This statute requires home improvement contractors to register with the Attorney General’s Office and to utilize written contracts with a list of mandatory provisions.  These include establishing a definite start date and completion date, listing information about subcontractors, limiting the amount of down payments and numerous other provisions.  Oddly, eight years after enactment, many small home improvement contractors are unaware or only vaguely aware of what they are required to do under this law.

Many home improvement contractors still give hand written estimates on forms that make less-than-readable copies.  That is satisfactory for a preliminary work-up, but rarely fulfills the numerous requirements of a contract under HICPA.

This and several other consumer statutes are tied to the Unfair Trade Practices Consumer Protection Act (UTPCPL) which provides for the potential of treble damages and attorneys fees, as well as court costs.  Such an award is not automatic, but must be awarded by the judge.  Moreover, a smaller case that starts before a Magistrate or Arbitration Panel will almost certainly have to be appealed to a Judge to obtain an award treble damages and attorney’s fees.

However, the prospect of treble damages and attorney’s fees eventually being awarded by a judge is a great incentive for the defendant to settle the case before it gets to that point.

It is a good idea to consult a lawyer about the applicability of such a consumer protection statute to your case.  There are some complexities that may need to be addressed and the defendant may have certain defenses that can turn the case around. Using such a provision effectively requires knowledge and experience.

CLT

Old Movies, Old Books and Changing Times

Posted by Cliff Tuttle| February 15, 2018 | © 2018

No. 1,419

We watched my all-time favorite sappy love story movie for Valentine’s Day last night,a 1999 classic, the “Love Letter.”  It is a light-hearted comedy about complications that befall the owner of a bookstore in a beach resort when she finds a love letter which she, erroneously it turns out, thought was written to her.  Then, she carelessly leaves it lying around, where it is found by other characters in the story, all of whom make the same assumption and then try to figure out who their secret admirer might be.  The mystery of the origin of the letter is not revealed until the end, of course.  Its a great story, but it never really became a big hit.  So it remains a personal favorite, one that I’ll have to watch a few more times on a few more Valentine’s Days.

While this plot is timeless, reminiscent in some ways of a Shakespearean Comedy, seeing it again makes me sad for a vanishing era that has almost disappeared during our lifetime.

Bookstores were wonderful places to spend a few hours, browsing in the stacks.  Like a honey bee, you could buzz from flower to flower, landing in territories you would never have visited on purpose.  You never knew whether, at the end of this voyage of discovery, you might emerge with a completely uncharacteristic armload of books.

This era ended rather abruptly, but not too long ago.  All seemed well when we  went to Border’s midnight celebration of the last Harry Potter Book, where kids were lounging around the store, devouring the latest offering on the spot like a pride of lions on a newly-fallen zebra.  Just like at Hogwarts, there was magic in the air that night.

But some months later, I was present at the end of our local Border’s.  The temporary employees of the liquidating  company were trying to push us out the door, so they could close it forever. I bought something near at hand as a memento. Sentimental perhaps, but that’s what I did.

Oh yes, there are still a few small bookstores around, but they are getting as rare as first editions of Dickens. These survivor book nooks are dying with their owners. I must admit, I’ve helped speed the demise.  Everything I buy is electronic now.  They don’t require storage and they are cheap.  I carry my whole library around in a cell phone. And it is no longer required for publishers and booksellers to take risks by ordering large quantities of an anticipated best seller.  Supply is endless and there is no waste.

The old-fashioned bookstore was a place where love could take root and bloom.  No chance of that at the Amazon website.  Too bad, progress.

CLT

 

Contemplating Ashes to Ashes on Valentines Day.

Posted by Cliff Tuttle| February 14, 2018 | © 2018

No. 1,418

This is not a homily, but only an unoriginal thought. Ash Wednesday rarely falls on Valentines Day, but it does today. Hopefully, the people we care about most are still with us.  If so, we are lucky. And while we still can, we need to tell those important people how much we love them.  Life is precious because there is no guaranty. Today, Ash Wednesday/Valentines Day, is the perfect day to do what we should be doing every day.

CLT

 

“Resulting” — How We Think Good Decisions Were Bad and Vice Versa.

Posted by Cliff Tuttle| February 14, 2018 | © 2018

No. 1,417

When our team wins, how often do we admit it was luck?  Almost never.

But we are guilty of thinking that a decision is good or bad, depending upon the outcome.  That phenomenon is called resulting.

Professional Poker Player Annie Duke has developed a social science approach to decision-making.  She points out that high probability events sometimes don’t happen and sometimes low probability events do.  If the odds of success are 80 – 20, we must expect that the 20% probability might happen in a single trial.  Does that mean that we should decide to do it again?  Probably not.

One example she uses — if you get home safely after driving drunk, does not indicate that it is safe to drive drunk.  While none of us actually believes this if we think it over, a person who has driven drunk without consequences may decide that it worked before.  And of course,eventually the real odds catch up.

Duke says that in order to make better decisions, we must not rely upon a single trial.  Or, as Eleanor Roosevelt said: “Learn from the mistakes of others. You can’t live long enough to make them all yourself.”

THINKING IN BETS: MAKING SMARTER DECISIONS WHEN YOU DON’T HAVE ALL THE FACTS, by Annie Duke.  Portfolio Penguin, New York, 2018.

Being the top lobster, start by standing up straight.

Posted by Cliff Tuttle| February 11, 2018 | © 2018

No. 1,416

Image: dreamstime.com

A fascinating new book by Jordan B. Peterson, a Canadian psychologist, combines ancient truth with modern science. “Twelve Rules for Life” subtitled “An Antidote for Chaos” is an illuminating, but sometime disturbing read.  Actually, I’m listening to the book, read by the author, on Audible. I also recommend a You Tube presentation of a speech where he summarizes most of the 12 Rules.

I’m only about 3 chapters in, so I’ll tell you about Rule No. 1. today. Other Rules will follow in later posts.

Rule 1: Stand up Straight.

Great idea.  People form first impressions partly on whether you stand erect or slouch.  Peterson takes this simple concept to a whole new plain.  He takes note of research that suggests that posture gives us, and other living beings, cues regarding dominance.  He says that posture in lobsters has been correlated with their social hierarchy. A lobster which stands most erect is recognized as top lobster by the others.  After losing a battle for dominance, the loser slinks away and the winner struts.

Don’t discount the importance of this observation, Peterson says.  Lobsters are a very ancient life form and have been around for a third of a billion years.  Their behavioral patterns have been passed down (or maybe up) the genetic pathway over millions of years, culminating in us.  Standing up straight has been correlated with higher levels serotonin, too.  Depressed loser lobsters have lower levels of serotonin.  Moreover, by giving a loser lobster a dose of serotonin, you can send him confidently back into battle.

This chapter brought to mind the example of Franklin D. Roosevelt. Cut down by polio as a young man, he taught himself to hold his upper body erect with his head up, ever smiling, teeth clenched on an upraised cigarette holder.  It must have been exhausting for a man with his disabilities to get through a day. But FDR knew that everyone was looking. In the combative world of politics, he couldn’t show any weakness. Instead, he communicated strength he probably didn’t feel.

In the Ken Burns/PBS series “the Roosevelts” the story is told how someone surprised FDR near his summer residence, sitting on a rock in the woods, with his head in his hands, looking dejected and exhausted.  As soon as Roosevelt became aware that another person was present, he instantly straightened up and became the smiling energetic figure he always wanted to project.

I’ve noticed that if there is a ledge, podium or rail (or any convenient place to lean) in front of the judge’s bench, some litigants and lawyers will lounge all over it.  And how do you think they come across to the judge and other onlookers?  Weak, lazy, stupid?  Certainly not anything positive.  If you want to be listened to respectfully, don’t do any of that!

If FDR could hold his body erect, why can’t we? If we want to project power, energy and competence, we must start with posture.  Of course, it will take a little effort and persistence. But keep it up for a while. Maybe it will become a habit.

CLT

Is it dumb-smart or smart-dumb?

Posted by Cliff Tuttle| February 11, 2018 | © 2018

No. 1,415

I could link the story from the Post Gazette very easily, but I won’t.  It seems that a new City Magistrate (who incidentally is a lawyer) had a rough day last week.  He tried to handle 70 cases at City Court and ran way over on time.  Somebody called Judge Manning, who sent a more experienced Magistrate to finish up the day.

But that wasn’t the only humiliation endure by the poor new jurist.  Several lawyers told the PG that the magistrate didn’t know that under the rules he couldn’t hold counsel or anyone else in contempt.  Plus, they pointed out a few more rookie errors.

Not a good idea, talking to the newspaper about this stuff. When a lawyer tries to tell everybody that he/she is smart and the judge is dumb, guess who turns out to be the dummy?

Judges, especially young judges, have long memories.  Maybe you’ll be back before him before you know it.  Of course, the client you represented today won’t suffer.  It will be the poor bastard you are representing some other fine day. And bear in mind that Magisterial District Judges are sometimes elected or appointed to Common Pleas Court.  More than one even made it to the Supreme Court not long ago.

When your day of reckoning comes and you face this same judge (better educated and battle seasoned)  maybe I’ll get lucky and be on the other side.

CLT

Commonwealth Court holds that hospital employee who quit on religious grounds because she was assigned to a job involving utilization of fetal tissue from abortions was not justified because she could have been reassigned.

Posted by Cliff Tuttle| February 10, 2018 | © 2018

No. 1,414

[Click on case heading for opinion]

Lori A. Kelly, Petitioner,
v.
Unemployment Compensation Board of Review, Respondent.

No. 286 C.D. 2017.
Commonwealth Court of Pennsylvania.
Argued: September 11, 2017.
Filed: October 17, 2017.

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Welcome

CLIFF TUTTLE has been a Pennsylvania lawyer for over 40 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.

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