Poor Richard on Courts

Posted by Cliff Tuttle

The following observations on the Courts appeared in Poor Richard’s Almanac in 1742. Remember that the Almanac was written in the persona of a fictional character, Richard Saunders, an astrologer/philosopher, who explained the existence of the Almanac in the Preface to the first, in 1733, thus:

“The plain Truth of the Matter is, I am excessive poor, and my Wife, good woman, is, I tell her, excessive proud; she cannot bear, she says, to sit spinning in her Shift of Tow, while I do nothing but gaze at the Stars; and has threatened more than once to burn all my Books and Rattling-Traps (as she calls my Instruments) if I do not make some profitable Use of them for the Good of my Family. The Printer has offer’d me some considerable share of the Profits, and I have thus begun to comply with my Dame’s desire.”

Bear in mind, the views expressed below are those of Richard Saunders, not necessarily Benjamin Franklin. Courts were rather unpopular among farmers, who were the Almanac’s target readers and it is not surprising that cutting criticism of courts and lawyers became a regular feature in Poor Richard’s Almanac. However, they are not necessarily not his views, either. Dr. Franklin was known to be coy that way.

COURTS

“Honest Men often go to Law for their Right; when Wise Men would sit down with the Wrong, supposing the first Loss least. In some Countries, the Course of the Courts is so tedious, and the Expence so high, that the Remedy, Justice is worse than Injustice, the Disease. In my Travels I once saw a Sign call’d The Two Men at Law. One of them was painted on one Side, in a melancholy posture, all in Rags, with this Scroll, I have lost my Cause. The other was drawn capering for Joy, on the other Side, with these Words, I have gained my Suit; but he was stark naked.”

Or consider this doggerel appearing in 1744:

“Two Travlin’ Beggars (I’ve forgot their name)
An Oister found to which they both laid Claim.
Warm the Dispute! At length to Law they’d go,
As richer Fools for Trifles often do.
The Cause two Petty-foggers undertake,
Resolving right or wrong some Gain to make,
They jangle till the Courts this Judgment gave,
Determining what everyone should have.
Blind Plaintiff, lame Defendant, share
The Friendly Law’s impartial Care;
A Shell for him, a Shell for thee;
The MIDDLE’s Bench and Lawyer’s Fee.”

Some cynics may say not much has changed since the days of Poor Richard.

CLT

Category: Uncategorized

Window on a World of Law: Pitt Law School’s Jurist.

Posted by Cliff Tuttle

University of Pittsburgh Law School, under the direction of Professor Bernard Hibbitts, publishes this continuously updating web site that covers world-wide legal news. This ambitious project is manned by an army of student editors who follow legal developments around the world, around the clock. Of course, courts are only open in any given jurisdiction for maybe 40 hours in a week, but legal news is happening somewhere in the world every hour of every day. If you decide to check out Jurist, be prepared to learn how large and complicated the world really is. We’ve added a link for ready reference on the sidebar to your right. You might consider reading about the two important cases that the United States Supreme Court just added to its calendar. Or, if you wish, find out what legislation Russia has just enacted to deal with DNA evidence.

Nevertheless, if a daily update is quick enough for you, Jurist has an on-line newsletter that you can receive free of charge by email every morning.

Jurist not only gives a succinct summary of any legal development, but provides links to primary sources. There are other interesting features, but rather than us spoiling everything, why not explore the world of law on your own? If you are intrigued, or merely curious, click here.

Category: Uncategorized

Back Talk Requested:The Bot Salesman Makes a Sales Call.

Posted by Cliff Tuttle

After I wrote a few responses to stupid zombie bot comments last week, I was visited by a bot named “angry” with a message that lived up to his name, its name. I knew exactly where it came from, since it was full of the key words that its fellow clones constantly repeat — especially a product name that rhymes with Niagara. I examined this one a little more carefully, like an exotic insect, and then: “Wham! Spam!”

So, by and by, here comes another bot who proclaims:

“Promote Your Website, Product or Services on Forums Worldwide. We can post your promotional message on millions of forums world wide. No, this isn’t spam email. Its penetrating online established communities relative to your website, products or services. Not only does this increase SEO and amp; Web Traffic, but by targeting forums relative to your online activity, you are able to increase potential sales.”

There is more, of course, but you get the idea. This slickster has an online video demonstration. Its on You Tube, of course. I watched some of it. Oh, well — Wham! Spam!

Then, the next day, one of Salesbot’s customers, the owner of a website who has been sending bot after bot to penetrate my online community, apparently comments in person. I can’t tell for sure, but I assume this one was live because the message was snide and not totally irrelevant. (Bots are usually shameless flatterers who can’t say anything substantive.)

Here’s some free advice: If you are starting up a blog and the first comment reads something like: “I was searching the web for excellent prices on v**gr* and somehow I came upon your site. Great stuff!” — SPAM IT!

CLT

Category: Uncategorized

Criminal Law: Is NYC handgun registration law unconstitutional?

Posted by Cliff Tuttle

A post in the Wall Street Journal Law Blog on the NYC ordinance that has the career of Plaxico Burress hanging in the balance is too good not to mention. Expect to hear more about constitutional attacks in court on gun control laws of various kinds in the future. Click here.

CLT

Category: Uncategorized

Criminal Law: Keeping Guns Off the Street — Guest Post by Philadelphia Lawyer and Blogger Brad V. Shuttleworth

Posted by Cliff Tuttle

The recent enactment of Pittsburgh City Council of an ordinance requiring gun owners to report stolen guns promptly or face a fine has kindled a robust discussion on the local radio talk circuit. While driving to the courthouse yesterday, I heard two successive callers arguing that such a measure is ineffective to curb gun crime. Instead, both callers advocated that Pittsburgh adopt the aggressive policy implemented in Philadelphia of frisking likely carriers of handguns on the street.

I hadn’t heard of Philadelphia adopting such a proposal. I searched for news items on the web without success. So, in frustration, I asked Philadelphia criminal defense lawyer Brad V. Shuttleworth to enlighten me. You can check out Brad’s latest post on his Philadelphia Criminal Justice Blog at any time you are reading PLBT by clicking the link in the right hand sidebar. Or, if you prefer, click the link at the end of this post.

Brad’s response:

What I believe the caller was talking about is the Stop and Frisk Program, as proposed by the current Mayor, Michael Nutter during his mayoral campaign.

Keep in mind that the tactic of “stop and frisk” is nothing new in the criminal law arena. It was first recognized by the United States Supreme Court in the famous case of Terry v. Ohio in 1968 in construing the protections afforded by the search and seizure provisions of the Fourth and Fourteenth Amendments to the United States Constitution. In order to stop a person, a law enforcement officer needs reasonable suspicion to believe that criminal activity is afoot. Then, to frisk a person while they are already stopped, a law enforcement officer must articulate facts, both subjective and objective, that demonstrates that he thought the suspect was possibly armed with a weapon during the stop.

The proposed Stop and Frisk Program, was, for the most part, a political response to the high homicide rate in Philadelphia over the past few years, with more than a homicide a day. It proposed emergency zones in the city, areas with very high levels of violent crime. In those emergency zones, it was proposed that police could stop and frisk people in those high-crime neighborhoods without articulable reasonable suspicion.

The fact is that such aggressive stop and frisk methods are unconstitutional, both under the Fourth and Fourteenth Amendments to the United States Constitution, and under Article 1, Section 8 of the Pennsylvania Constitution. As far as I know, the proposed Stop and Frisk Program has not been implemented because of the serious constitutional concerns. Indeed, random weapons searches of individuals is unconstitutional because there is no basis for the stop and frisk, which requires reasonable suspicion at a minimum.
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For additional posts by Brad V. Shuttleworth, Esq. click here.

Category: Uncategorized

Criminal Law: New Statute Facilitates Expungement of Criminal History for Summary Offenses

Posted by Cliff Tuttle

Word is that House Bill No. 1543 was signed by the Governor, amending the Crimes Code to authorize expungement of the criminal history of summary offenses, subject to conditions, exceptions, etc.

There are three basic ways to qualify:

1. Turn 70 and be free from arrest or prosecution for ten years since release from incarceration or supervision;

2. Die and stay dead for three years;

3. Petition the court after being free of arrest and prosecution for five years.

The first two avenues appear not to require a court order.

Expungement by court order is not available, however, to those who received ARD for rape and a long list of sex crimes where the victim was under age 18.

However, expungement doesn’t mean that the police and prosecutors can’t keep files and share the information with one another. They can. It simply means that the public cannot access the expunged information through the on line database maintained statewide by the Pennsylvania courts.

Rep. Tim Solobay, the principal sponsor of the bill says that it will speed the existing expungement procedure.

CLT

Category: Uncategorized

Recession Comes to Biglaw. But What about Littlelaw?

Posted by Cliff Tuttle

So, its official. We have a recession. Or more correctly, we’ve had a recession for a year and didn’t know it. Was your first thought upon hearing this news like mine? “Oh good, if its a year old maybe it will be over in the Spring.” That’s a true optimist!

National Law Blogs, called blawgs by some, have been reporting layoffs at big law firms for some time. There was one about Reed Smith not too long ago and another about Buchanan Ingersoll & Rooney, too. Actually, if you look around the net, you can find a report of layoffs at a large law firm just about any day of the week. Firms employ a variety of strategies and the youngest associates have not always proven to be the most vulnerable. I could spread a few links here or here, but frankly, layoff stories are pretty much the same and are starting to become very boring.

Any law school grad who has done job hunting in Pittsburgh will tell you that this has not been a boomtown for lawyers for a very long time. When the baby boomers started to hit law school in the sixties, class sizes exploded and the two resident law schools have ever after been pouring out more lawyers than the Pittsburgh economy can comfortably absorb. For four decades, the market for law grads in Pittsburgh has varied from mild recession at the top to deep depression at the bottom. Yet, somehow, most of us seem to find a niche and many grow and prosper.

The scoop on law jobs in recent years, big and small but mostly big, has been a national on line subscription service called Law Crossing. This outfit is very aggressive. They not only read every publication where an ad to hire a lawyer might appear, but they telephone the personnel departments of biglaw firms and corporations with a sizable legal staff daily. About a year and a half ago, readers of Law Crossing started to notice that the Pittsburgh listings were drying up. The good, interesting ones went away first. Then the mid-sized firms vanished. Soon, on most days there were only perennials, the kind that never leave because that firm is always interested in collecting more resumes. Two years ago, 20 or more Pittsburgh listings might appear on a good day. A good day in 2008? Two.

Yes, recessions are bad news for biglaw and the lawyers that work there. But are they bad for everybody? Not necessarily.

There are always opportunities developing, even during a recession. Even during, God protect us, a depression. Change is accelerating at this very moment. That means something new is making an appearance.

For example, a lot of people are losing homes who shouldn’t be. In the past, they would make deals with easily accessible community bankers and get back on the wagon. Now they have mortgages with national lenders who are not set up to fix what went wrong. Until very lately, too many of these cases ended up with sheriff sales that didn’t have to be. But the tide is turning. Moratoria are being declared around the Country (Florida did it today) to facilitate conciliation between lenders and borrowers. And how are these borrowers going to make deals and rescue their homes? They need lawyers, affordable ones.

As Carolyn Elefant said about this very type of opportunity, this is a chance to do good and do well. If you are a refugee from biglaw, wondering where to go next, read Carolyn’s excellent blog, My Shingle. You can find it in our blog roll on the right sidebar or you can click here.

There are other types of law practice that typically do well in a recession: landlord-tenant, bankruptcy, personal injury and domestic relations come to mind. This is not simply because they are unaffected by an economic downturn (Carolyn points out that sometimes they are), but because bad times may actually increase the demand for such services. And who is in a position to serve this need? Not biglaw.

CLT

Category: Uncategorized

Real Estate: A Tale of Two Citadels; the fall of Guaranty Title and Trust and the Shoring up of Commonwealth and Lawyers Title.

Posted by Cliff Tuttle

“We just learned that all of our title policies issued by Guaranty and Trust are now void,” wrote Nancy Sparrow, General Counsel of Farm Credit Services of Mid-America in DIRT, a Real Estate Lawyers Listserv, in an email posted on Wednesday November 26 at 9:32 AM.

Meanwhile, the news of the LandAmerica bankruptcy and sale of title insurance giants Commonwealth Title and Lawyers Title was just beginning to break. It was going to be a very big news day for real estate lawyers. [See the related article below on the LandAmerica Bankruptcy and sale of Commonwealth Title and Lawyer’s Title.]

Rumors began to fly. Would claims under Commonwealth and Lawyers policies be honored? LandAmerica moved to reassure its customers with bulletins stating that its claims would be paid. Fidelity National which acquired Commonwealth and Lawyers, announced a reinsurance agreement covering all outstanding Commonwealth and Lawyers policies until the conclusion of the acquisition.

In response to Nancy Sparrow, a DIRT contributor posted a copy of a Final Order of the Court of Common Pleas of Franklin County, Ohio that had been entered on October 27, 2008 (a month ago) appointing a liquidator of Guaranty Title and Trust. By virtue of its Ohio domicile, the company was regulated by the Ohio Department of Insurance with jurisdiction in the Common Pleas Court of Franklin County. After protracted proceedings, which began in the summer, the Ohio Department of Insurance had shut down Guarantee Title and Trust and its assets were to be marshaled for distribution. However, several states had already revoked GTT’s right to issue policies and the handwriting had clearly been on the wall for some time. Proofs of claim will be accepted until October 27, 2009.

Under the Order, title policies issued by GTT throughout the United States (not just in Ohio) were rescinded, effective in 30 days. So, Guaranty sent a notice to policy holders that arrived just as the policies were terminating. Quite a shock for a lender who, to remain in compliance with its underwriting guidelines, must purchase replacement coverage for every GTT title policy.

GTT was also licensed to write title insurance in Pennsylvania and there will undoubtedly be some disappointed policyholders here. Perhaps the impact here will be modest — GTT is a smaller company and its presence in Pennsylvania is probably not very great. But is this a harbinger of future troubles elsewhere?

Commonwealth and Lawyers, it turns out, are both domiciled in the State of Nebraska. The Nebraska Department of Insurance announced that the two companies are solvent and will continue to write insurance. However, while the sale agreement is pending, the Department has obtained an Order of Court placing both companies into rehabilitation under state law. This will not inhibit operation of the companies, except that there will be enhanced oversight.

So, Citadel GTT has fallen. Citadel LandAmerica is holding. However, if the purchase by FNF does not happen, there is speculation that Nebraska may take further action. The fact that LandAmerica lost $599.6 million in the third quarter cannot have escaped the attention of the Nebraska Insurance Commission. What happens in Nebraska could have a massive impact in Pennsylvania where there are millions of Commonwealth and Lawyers policies in force.

CLT

Category: Uncategorized

BACK TALK REQUESTED: THE CHUTZPAH OF SOME PEOPLE’S ZOMBIE BOTS!

Posted by Cliff Tuttle

Two very entertaining bots recently wandered into my site. I thought I’d tell you about them before spamming them.

Anton Egorov says:

“Hello, excuse, I can bad speak on English . . . I have found yours blog through search google, I was interested with your texts, I could translate them on Russian, for the in the small edition of our company? I would be grateful to you. Thanks.”

Dear Anton:

Why would I want someone who can speak bad on English to translate my blog posts? Get lost somewhere else in cyberspace!

CLT

Then, there is Comment Poster. This one comes from a real website that tries to sell us software so that we can send out bots day and night posting inane comments. Comment Poster says:

“Post comments on websites automatically using automated comments posting software. Get thousands of backlinks per day, increasing your sales and earnings. Automated comments poster is the best way to build backlinks and promote websites automatically.”

Dear Comment Poster:

I am seriously thinking about suing you. You are harassing me personally and equipping others to do the same.

CLT

Category: Uncategorized

Real Estate: LandAmerica Bankruptcy — No, Not Over Claims or Market Decline; Its All About Like Kind Exchanges under IRS Code Section 1031!

Posted by Cliff Tuttle

On November 7, Fidelity National Financial, Inc. announced acquisition of its competitor LandAmerica Financial Group. Fidelity is the holding company for two of the largest title insurance companies in the nation and LandAmerica the parent of three others. A merged Fidelity and LandAm would control almost half of the title insurance market in the nation. LandAm was rumored to be having financial troubles, which its CEO ascribed to “the unprecedented credit freeze and depressed real estate market.”

Then, last Friday, FNF announced that it had exercised a “contractual due dilligence termination right.” Translation: They looked at the books and didn’t like the deal.

But it wasn’t until Wednesday, November 26, that the real reason became public information. In a press release clearly written by securities lawyers, LandAm announced the deal with FNF was on again, but with a twist. Fidelity had entered an agreement to purchase LandAm’s title insurance subsidiaries, Lawyers Title, Commonwealth and United Capital. Quoting the press release: “In order to facilitate the closing of the transactions under the Stock Purchase Agreement and protect the Company’s remaining assets following the recent announcement of the termination of its 1031 exchange business, the Company and its subsidiary LandAmerica 1031 Exchange Services, Inc. (“1031 Exchange Company”) have filed voluntary petitions for relief under Chapter 11 of the United States Bankruptcy Code in the United States Bankruptcy Court for the Eastern District of Virginia (“Bankruptcy Court”) in Richmond Virginia. In conjunction with the filings, the Company is seeking a motion for expedited approval of the transactions contemplated by the Stock Purchase Agreement. None of the other many businesses of Land America are seeking bankruptcy protection.”

This cryptic pronouncement appears to have caused a lot of turmoil among customers. One title agent reported receiving numerous calls. He recommended that orders with LandAm be cancelled and placed with First American. By mid-afternoon, LandAmerica was circulating a memorandum to customers reassuring them that their underwriters’ claims reserves are backed by over $1.1 billion in cash and investments. “If we are liable for a claim,” it stated, “we can pay it.”

As far as it went, the customer memorandum was correct. Title insurance and claims were not the problem. The problem was the LandAm subsidary mentioned in the press release. LandAmerica’s 1031 exchange company terminated business on Monday and notified its customers that it would have problems meeting its customers’ withdrawals.

Section 1031 of the Internal Revenue Code permits “like kind exchanges” of real estate to be conducted tax free if the requirements set forth in the regulations were strictly followed. Instead of selling a piece of commercial real estate, realizing a taxable capital gain, followed by another purchase, the IRC permits the “exchange” of one piece of real estate for another through a “qualified intermediary.”

The qualified intermediary (known as a “QI”) collects the money from the sale, keeps it for a while, and brings it to purchase the new property. Like other title companies, LandAm operated a side business handling 1031 exchanges as a QI. Compared to its large and lucrative title insurance business, the 1031 business was lunch money.

If LandAm’s 1031 Company had just deposited the money in a bank account, I wouldn’t be telling the story and you wouldn’t be reading it. Instead, the 1031 customers’ money was invested in securities that had to be sold at auction to be liquidated. And guess what? Because of the current economic situation, there was a serious shortage of bidders. So, LandAm 1031 couldn’t bring funds to the closing table on the second leg of 1031 exchange transactions.

But Chapter 11 offered a way out. The bankruptcy trustee would declare the obligations to the 1031 creditors (both current ones and those transacted in the past 90 days) to be “preferences” under the Bankruptcy Act and “avoid” them. With the 1031 creditors reduced to the level of the other general creditors of the 1031 company, the trustee can pay them off at the same rate on the dollar as he/she pays everybody else. Meanwhile, FNF purchases LandAm’s title insurance subsidiaries and LandAm emerges as a healthy company with other healthy subdiaries. Everyone makes out pretty well, except the poor customers who trusted LandAm 1031.

Now, armed with the foregoing information, read the LandAm bulletin to its customers about the dangers of trusting a QI who might become insolvant in the next 90 days here. I guess, LandAm’s customers can’t say that they were never warned.

CLT

Category: Uncategorized

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Welcome

CLIFF TUTTLE has been a Pennsylvania lawyer for over 45 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.

Pittsburgh Legal Back Talk

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

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Poor Richard on Courts

Window on a World of Law: Pitt Law School’s Jurist.

Back Talk Requested:The Bot Salesman Makes a Sales Call.

Criminal Law: Is NYC handgun registration law unconstitutional?

Criminal Law: Keeping Guns Off the Street — Guest Post by Philadelphia Lawyer and Blogger Brad V. Shuttleworth

Criminal Law: New Statute Facilitates Expungement of Criminal History for Summary Offenses

Recession Comes to Biglaw. But What about Littlelaw?

Real Estate: A Tale of Two Citadels; the fall of Guaranty Title and Trust and the Shoring up of Commonwealth and Lawyers Title.

BACK TALK REQUESTED: THE CHUTZPAH OF SOME PEOPLE’S ZOMBIE BOTS!

Real Estate: LandAmerica Bankruptcy — No, Not Over Claims or Market Decline; Its All About Like Kind Exchanges under IRS Code Section 1031!

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