Trial By Jury

I recently tried a civil jury case to verdict. Given the pressure for settlement of cases, most lawsuits filed never proceed to jury trial, much less a verdict. While we usually represent civil plaintiffs, in this case I represented a defendant. The trial itself was brief, 1 1/2 days. Our 12 person civil jury began deliberations at mid-day of the second day of trial. After about 2 hours, the jury returned with a question, asking the Judge to re-read the jury instructions as to how liability is defined and determined.

At the end of a jury trial, the trial judge “charges” the jury, that is the trial judge reads the points of law to the jury. This jury charge is the legal road map for the jury. The jury then determines the facts of the case and applies the law. In this case, the jury poses questions about fault, liability, and asked the trial judge to re-charge them, which the trial judge did.

Two hours later, at the end of the day, there was still no verdict. The jury sent a message to the trial judge informing him that despite four votes being taken, a ten person majority was not achieved. Civil verdicts in Pennsylvania courts require a 10 out of 12 vote for a verdict to be reached. The trial judge dismissed the jury for the day and ordered them to report the following morning.

The next morning, day three of the trial, the jury reported at 9:30 and deliberated until about 11:30 before returning a verdict. The jury had voted 10-2 for my client, the defendant.

After the trial, I had the opportunity to speak to three of the jurors. They were honest in their statements. The case did not turn upon the skill or eloquence of my well prepared adversary or me. The case turned on 12 people determining what the facts of the case were and applying the law.

Interestingly, the initial vote was 5 for the defendant and 7 for the plaintiff. Over the course of almost a full day of the jury deliberations, the 5 pro defense jurors convinced 5 of the 7 pro plaintiff jurors to see things their way, resulting in the 10-2 verdict. Upon learning this, I was in awe of the dynamic among 12 people who had never met before.

The take away from this case: this jury took their oath seriously and deliberated with all of the back and forth required under the circumstances. The jury took their time and applied their respective backgrounds to reach a verdict. The jurors (regardless of the outcome of the case) are applauded for their service. Our system of trial by jury functions properly only when jurors are open minded.

Should you be summoned for jury duty, please approach this experience seriously and impartially. Your legal claim could depend on a jury at some time.

– Allan Opsitnick

Wills and Why You Need One

Opsitnick & Associates recently partnered with Pittsburgh area investment and insurance broker Rick Smith to present a live program for millennials. An enthusiastic group gathered at the Full Pint Wild Side Pub in Lawrenceville for an evening of information and conversation, as well as Full Pint’s distinctive beers and food.

Margo and I spoke about Wills and why YOU need one. Here are the bullet points, that YOU should consider;

– YOU can DIY. That’s right, you can write your own will, stating what happens to your assets at your death, and sign at the bottom. This is a valid probatable will.  I don’t recommend this at all, but you can do it. No witnesses are needed.

– There is no right or wrong way to prepare your will. How do you want your assets to go and who you select to administer your estate should be your choice solely. Remember, no one need see your will until probate and you won’t be alive at that time.  Do not worry about offending anyone.

– YOU can make both specific gifts, of personal and real property and and money. You are limited to more general bequests, for example, my estate shall be divided evenly among…

– YOU have the power to name an executor, the person who has the legal obligation to handle your affairs after death. Name someone that you trust.

– YOU can appoint a guardian of the estate of any minors that would take under your will. Remember, you might now have children, but you may have children in the future and you have young friends, nieces and nephews whose assets need suprervision. If YOU already have a child, then you can appoint a guardian of their person, to act as a parent if both parents die while the child is still a minor.

– YOU can provide for pets, that is who gets a pet and, if desired, providing for pet care funding.

– YOU can eliminate someone in your will. For example, if you have three siblings and only want two siblings to take, the third sibling should be mentioned as not taking under your will. There can be no mistake of your intentions.

– YOU can make charitable gifts. You are not limited to individuals.

– YOU have more assets that you think and will aquire more. Preparing a will today avoids potential chaos in the future.

Should YOU have any questions about a will please contact us.

– Allan Opsitnick

If Voting Made Any Difference

“If voting made any difference, they wouldn’t let us do it.”

This quote is attributed to Mark Twain. While I don’t agree, let’s consider that in November’s presidential election. Hillary Clinton received over 2.8 million more votes than Donald Trump, however, Trump won the election.

As we all know, the Constitution provides for election of the president by the Electoral College; see both Article II and the Twelfth Amendment. So while Clinton received a large number of votes more than Trump, though neither candidate received 50% of the popular vote, Trump received significantly more electoral votes than Clinton, 306-232.

The Presidential election marks the fifth time in American history that a presidential candidate won the popular vote but lost the Electoral College vote and therefore the presidency:

1.) 1824: John Quincy Adams was elected President over Andrew Jackson despite losing the popular vote by over 38,000.

2.) 1876: Rutherford B. Hayes was elected President over Samuel J. Tilden despite losing the popular vote by over 250,000.

3.) 1888: Benjamin Harrison was elected President over Grover Cleveland despite losing the popular vote by over 94,000.

The fourth and fifth times the popular vote winner did not become president has been in this century:

4.) 2000: George W. Bush was elected President over Al Gore despite losing the popular vote by over 540,000.

5.) 2016: Donald Trump wins the Electoral College vote over Hillary Clinton despite losing the popular vote by over 2.8 million.

What does this mean? Should the process change? These are questions that should be considered and debated by us all. In fact there is a movement, entitled the National Popular Vote. The National Popular Vote bill would guarantee the Presidency to the candidate who receives the most popular votes in all 50 states and the District of Columbia. Eleven jurisdictions, ten states and the District of Columbia have already passed this bill. The National Popular Vote bill supposedly is consistent with the Constitution, so no Constitutional amendment is required. The National Popular Vote website is: http://www.nationalpopularvote.com/

According to this website, the National Popular Vote movement has bipartisan support, including support from President Elect Trump in a 2012 statement, though he recently recanted that statement in the wake of his Electoral College victory.

So, let’s ask ourselves two things:

1.) Is it time to change how our President is elected; and

2.) Is Mark Twain correct?

– Allan Opsitnick

Election 2016

In October, I was asked by Professor Joseph Mistick of the Duquesne University School of Law, to lecture to his Election Law class, something that I have done before. This was a privilege, both since Professor Mistick also invites judges and elected officials to speak and as the law students were an attentive group.

My remarks covered some historical background, from distributing and discussing a Pittsburgh Press headline from a September, 1931 primary election reporting about riots in the Pittsburgh area, claims of voting machine malfunctions and a shooting incident between a constable and a police officer in the Scranton, Pennsylvania area. Additionally we reviewed Presidential Election voter turnout percentages through the years. The high water mark was in 1960 with an 87.9% voter turnout. Nine out of ten registered voters voted! Compare that with 2016 voter turnout of 70%.  While there might be more registered voters on the rolls, clearly fewer people vote, both in a presidential election, as well as local elections.

I discussed current election procedures including absentee and provisional ballots, and potential election day issues, such as voter intimidation, firearms at the polls (which is permitted except in schools or court buildings) and the rights and limitations of poll watchers (observe but not to electioneer or affect the voting.)

Concluding my remarks was my statement that there is no voter fraud in Allegheny County. That is, the people that vote are who they are and that they are properly registered and qualified to vote, where they vote.

Election Day 2016 bore my statement out. I have been the attorney for the Allegheny County Division of Elections and the Allegheny County Board of Elections for almost three decades. My task on Election Day is to represent the County, along with other County attorneys, in “Election Court.” A judge is on duty the entire time that the polls are open. Attorneys field hundreds of phone calls from polling places and political groups. Each party and presidential candidate sends legal representation to Election Court. While there were frequent disputes, some of which required a judge to issue an order of court, none of those disputes were unusual and none of those disputes and complaints were regarding “voter fraud.”

Our system of voting works and is fair and honest. There can be human errors and a precious few technical glitches, but those permitted to vote can vote. Those not permitted to vote, do not vote. Every vote is tabulated, both on election night, when unofficial results are publicized, and upon official tabulation by the County Return Board.

While perhaps I have been part of the election system for too long, I ask that you all consider and accept that the voting system works properly.

– Allan Opsitnick

The Power of Your Single Vote

I have been practicing Election Law for most of my practice. As a result, I’ve witnessed many, many instances where a single vote has made a difference in the outcome of an election. Here are just 3 examples:

1) In 2003, the race for a seat on the Pennsylvania Superior Court, came down to these totals:

Ms. Gantman: 1,125,543
Mr. Driscoll: 1,125,515

Yes, a statewide election was decided by 28 votes! 28 votes out of 2.5 million votes cast for these two candidates.

2) In the 2015 primary, an Indiana County Auditor candidate finished in a dead heat, only to lose the nomination in a “casting of lots” tiebreaker.

3) In Allegheny County, municipal elections, those involving City, Borough, Township and School District offices, result in a dozen plus ties each election. Those ties are broken by the drawing of number “pills” from a generations old leather bottle.

How different would these elections have been if just a few people voted? The answer is clear. Your vote does count.

To register to vote in the Presidential Election in Pennsylvania, you must register on or before Tuesday, October 11. Mailed voter registration forms must be postmarked by October 11.

– Allan J. Opsitnick

Heck Yes I Want a Receipt!

Every time any of us uses an ATM, fuel pump or similar device and transaction, we are asked if we want a receipt. I urge you to answer YES, every time.

Here’s why, from my own experience. Twice, in the last six months, our office has made a bank deposit at our local branch where, “upon further review”, our account was not credited with the deposit. Twice! While the vast majority of our deposits were processed correctly, one error is excessive, much less two, in a short time period. We discovered this error by checking our account on line and matching the deposit receipt. As a result, apparently because of human error (on the part of the same bank employee both times) we corrected the errors by taking the receipt to the bank.

For the same reason, we should all take a receipt for such transactions, electronic or otherwise. It bears checking to see that your ATM deposit was the amount that you selected and matches the cash dispensed. Likewise with a fuel, food, or any other purchase. I advise you to, when safely able to, check the ATM withdrawal by counting your cash against the receipt.

We become trusting and complacent when it comes to our business dealings, perhaps because there is some computer or electronic system involved. But errors occur; some device caused and some human caused and one must be diligent to protect one’s assets.

So when the device or a person asks if you want a receipt, say YES, loud enough for our office to hear you!

Allan Opsitnick

The Lawyer Gets Schooled

I’m a fan of electronic gadgets and everything Bluetooth. I recently purchased Bluetooth headphones that have an excellent sound quality, especially for the modest price that they were. They’re large and unsightly, but when I wear them which is around the house or in the car, I’m not really bothered by the appearance, as they dramatically enhance my listening pleasure.

Recently I carried the headphones into the office and mentioned to our assistant Kaitlin that I use them in the car (because they have a built in microphone for helping to make telephone calls), she asked me whether or not driving with headphones on was prohibited. Not knowing the answer off the top of my head, I asked her to research the Pennsylvania Motor Vehicle Code for the answer, which she promptly went off to do.

Much to my dismay, when she came back with her findings, it appears that headphone and earbud use while operating a vehicle is prohibited under Section 3314 of the Motor Vehicle Code which states:

‘No driver shall operate a vehicle while wearing or using one or more headphones or earphones.’

There is, naturally, an exception for hearing aids and for a cell phone headset “… that provides sound through one ear and allows surrounding sounds to be heard with the other ear…”

Even if a driver is only using one earbud of a set that’s designed for both ear usage, this is a violation of the Motor Vehicle Code. While there are no license points involved currently, the violation is a summary offense which can result in a fine of up to $300 plus costs.

Consider this when driving. I know I for one will be leaving my headphones at home. If you have any questions or concerns, please feel free to e-mail or call us.

Allan Opsitnick

Free Credit Report: Fact or Fiction?

We have received inquiries from clients about how to get a “Free Credit Report.” Let’s clear that up.

There is only one way to obtain a Free Credit Report, that is truly free, and this is through a system established by the Federal Trade Commission (FTC) under the Fair Credit Reporting Act (FCRA.)

Everyone has a legal right to one free credit report per 12 month period from each of the “big three” credit reporting agencies: Equifax, TransUnion and Experian. The reports can be ordered at one time or staggered. Here’s how to get them:

  1. By internet. This should permit you to print your report or reports on the spot. Go to www.annualcreditreport.com. You will have to provide personal information, that is confidential, and you will receive your report;
  2. By telephone. Call 1-877-322-8228 and give your information to the intake person. You should receive your free credit report within 15 days;
  3. By mail. You can complete a form that you can obtain from the FTC web site at: www.ftc.gov/credit. The form can be mailed to: Annual Credit Reporting Service, PO Box 105281, Atlanta GA 30348-5281. Again, your mailed request should take about 15 days.

Do not contact the credit reporting agencies directly! The only method to obtain your free report is one of the three options above.

While you can get a Free Credit Report, you cannot get a Free Credit Score.

Allan Opsitnick

Motor Vehicle Point System

Recently, we have had many client questions about motor vehicle points, so we’ve taken the liberty of posting the Pennsylvania Motor Vehicle Points document for your reference.

Especially now with the holiday time, it’s always good to be prepared if anything comes up. If you have any additional questions or concerns, please contact the office and we’ll be glad to assist you in any way possible

The link is posted below. Opens in a new tab.

Allan Opsitnick

Pennsylvania DMV Point Sheet.

Welcome!

Greetings everyone, and welcome to the legal blog of Opsitnick & Associates, Attorneys at Law.

Over the coming weeks and months you’ll find a myriad of helpful and useful tidbits and pieces of legal information that might be of interest to you.

If you have any questions or comments, please feel free to contact us. The link to our website is in the upper right hand corner and our contact information is to the left.

– Allan Opsitnick