Monday, February 28, 2011

Ventilator Blues


Arnold v. Palmer, 2011 VT 8 (mem.)

To understand this case, you need a brief background on workers’ compensation law.

Workers’ Compensation is the great compromise between capital and labor (take note, Governor Walker).  In the late 19th century, workers who were injured on the job had only one course of action—to sue the owner for creating a workspace or job that was negligently unsafe.  The problems with this system were multiple.  First of all, negligence can be difficult to prove.  You must establish that the owner owed the employee a duty of care, that the employer breached that duty of care, that the breach proximately caused injuries, and that the employee suffered actual damages.  You can see where the problems might arise.  What if the owner kept a safe workspace and the work was inherently dangerous under the best conditions?  What if another employee’s negligence caused the accident?  What if the accident was a cumulative injury caused by the employment over a number of years?  There were also practical considerations.  Negligence cases cost money, and injured workers often do not have the resources to mount such a case.  On the employer’s side, these cases were a nightmare that took large amounts of resources to defend and occasionally resulted in huge verdicts against the company. 

So the two sides came together, and they created workers’ compensation.  Under workers’ compensation laws, all employers must purchase insurance to cover their workers.  If a worker becomes injured during the course of her employment, she is entitled to workers’ compensation, which includes medical damages, lost wages, and compensation for any partial or total impairment the employee suffers as a result of the injury.  The trade-off is employees do not have to prove negligence—only that the injury occurred as a part of work—and employers cannot be sued for any additional damages in court.  It is a good system because employees know they will be covered if they get injured in the course of employment, and companies can limit the cost of doing business to a predictable annual insurance payment.

Do You Dare Enter . . . The Judgment Zone?


Zorn v. Smith, 2011 VT 10

What most people fail to realize is that litigation is a protracted series of skirmishes that, in the right case, can be prolonged almost indefinitely.  Our image of court, from popular culture, is the series of quick scenes leading, in rapid succession, from the beginning of the lawsuit to the parties’ day in court to the winner emerging on the steps in complete victory.  The game simply is not played that way.  Litigation is a series of steps that are both small and non-linear.  Process circles back on itself.  Victories are always partial.  Even great progress is accompanied by setbacks. 

No greater disappointment exists for a plaintiff than to win but be unable to collect judgment from the defendant.  Woe to the lawyer who fails to explain the nature of judgments to the client or pursues, at great cost, a judgment-proof defendant.  As a public service let me be clear about this quirk that few clients appear to understand.  When you win a civil case and are given a monetary award, there is no guarantee or mechanism to make the defendant pay automatically.  If the Defendant does not pay, you will have to pursue additional remedies such as trustee process or attachment, or even filing a judgment lien, just to secure payment.  You cannot, as some clients wish, call the sheriff and make the [explicative deleted] pay.  Even if you pursue the defendant with these tools, there is no guarantee that there will be anything to attach or seize.  You may just have a piece of paper that would probably be serving you better if it was lining the bottom of your parakeet’s cage. 

Saturday, February 26, 2011

Romeo Need Not Register as a Sex Offender


State v. Stamper, 2011 VT 18 (mem.)

A quick case of statutory interpretation for today’s SCOV decision.  In 1999, Defendant was convicted of lewd and lascivious conduct with a child.  At the time, Defendant was 17 and the object of his attention was 15.  Due to the conviction Defendant was registering as a sex offender until 2009.  At that time, he moved and did not update his information with the State.  Upon catching up with Defendant, State charged him with failure to comply with the sex-offender-registry statute.  The trial court agreed with the State that Defendant had failed to comply, and this appeal followed.

Defendant Gets the Moot


In re Unnamed Defendant, 2011 VT 25 (Mem.)

One of the important concepts in the law is the need for an active issue before a court can make a ruling.  Unlike comic books, parties cannot petition the court to resolve “What if?” cases.  But the multiverse’s loss is our gain as we do not have to pay the court to run through a bunch of hypotheticals or suffer a judgment “because we came up with it in a simulation.”  Courts decide cases one at a time, based on the facts on the ground and what is really at issue.

Wednesday, February 23, 2011

Sex, Drugs, and ‘Rock’ & Roll

State v. Memoli, 2011 VT 15.


A divided Court reverses the trial court’s evidentiary ruling regarding the complainant’s drug use in this appeal from an aggravated-sexual-assault-conviction, and defendant gets a do-over. 

On New Year’s Eve 2007, Complainant celebrated with some friends at a Winooski bar.  After catching a “buzz,” she caught a ride to a nearby house party, smoked some marijuana, and drank “a lot” of beer.  Shortly after midnight, her friends were driving her home, but she got into an argument with them over whether she was owed change from the earlier Indiana Ditchweed purchase.  You know how those crazy-you owe-me-for-the cheeba-and-my-initials-are-not-A-T-M arguments can be.  So next thing you know, Complainant is hoofing it down Mallets Bay Avenue while her buds speed away.

As she began to walk home, Defendant pulled up in an SUV.  According to the complainant, Defendant asked Complainant if she was okay.  He introduced himself as “Rico” and his female companion as “Sam.”  Complainant gave a false name too because she suspected they were undercover cops, but accepted Rico’s offer of a ride home.  She also accepted Rico’s offer to stop at his house and have a couple drinks.  When they got to Rico’s house, Rico had Sam grab a big bag of crack and they all went inside—for a crack party.  Sam and Rico went in the bedroom and closed the door while Complainant sat in the living room and drank a beer.  She, quite logically, assumed that Sam and Rico were smoking crack.

Miranda Algebra


State v. Barron, 2011 VT 2

Custody + Interrogation + No Miranda + No Waiver + Remedy = Successful Miranda Challenge. 
Or for the high school calculus student preparing for those AP tests next month: C + I + -M + -W + R = M (which can be restated as C + I +R = 2M +W and for some strange reason eventually reduces to -32.  Go figure!) 

Anyway, the SCOV’s latest word on constitutional criminal procedure is a reminder of the many ducks a defendant must queue up before a Miranda violation becomes a viable claim on appeal and how a missing integer can spoil the claim. 

Talk to Me (Out of Court)


State v. Hoch, 2011 VT 4 (mem.).


This case warrants only a very short blog post.  The decision’s utility is in its affirmation that videotaped interviews of a child victim are admissible and its application of Crawford v. Washington, 541 U.S. 36 (2004), which held that a witness must be available for cross-examination on any prior statement introduced, which is also testimonial.

Snow Habitability?



The SCOV says that the implied warranty of habitability will not cover a tenant's car destroyed by heavy snow and ice falling off of the roof of the landlord’s building.

Ah, the joys of living in Vermont.

Sunday, February 20, 2011

The Private-School Blues and Child-Support Dues

Kelly-Whitney v. Kelly-Whitney, 2011 VT 12 (mem.)


This appeal turns on whether a tuition benefit is gross income for purposes of determining child support.  The Court says it is not because the tuition benefit does not decrease living expenses.  That’s really all you need to know, but we’ll give you the rundown anyway—‘cause that’s what we do here at SCOV Law.

Christina and Marie Kelly-Whitney are the unmarried parents of two kids who are litigating a separation agreement in family court.  Christina is a licensed teacher who voluntarily works as a paraprofessional and custodian at the kids’ private school.  By virtue of this position, she gets a tuition benefit worth a little over $20K a year.  When child support was established, a magistrate counted that benefit as gross income, and Marie’s child-support contribution was set at $4.85 a month.  Christina appealed that decision to the Superior Court (family division), which found that the tuition benefit did not count as gross income, and reversed and remanded the magistrate’s decision.  Marie’s child support obligation without the tuition benefit rose to $315.06 a month plus arrearages.  Naturally, Marie appealed that decision to the SCOV. 

No harm, no Foul—and no Attorneys’ Fees Either

Anderson v. Johnson, 2011 VT 17 (mem.)


In this entry order, the SCOV says that if you don’t really “win,” you don’t get attorneys’ fees.  It might be more nuanced than that, but I’m a simple guy.  If you have a problem with that, take it up with management.  I can obfuscate with the best of ‘em if that’s what you really want.

Basically, the plaintiffs below claimed that they thought they were buying a single-family home on a 4.24-acre lot, but they were really buying a 2.38-acre parcel, which, interestingly enough, was listed as a 2.34-acre parcel.  (The confusion stems from the fact that the seller had subdivided the original 4.24-acre lot.)  Supposedly, the plaintiffs’ offer to buy the property was based on their belief that the property was larger than it was.  The real-estate company provided some confusing documentation.  The plaintiffs found out the actual size of the parcel before closing, but went ahead with the purchase anyway.  Then they sued everybody involved, including their own realtor. 

Friday, February 18, 2011

Don't Kill Bill

State v. Miles, 2011 VT 6 (mem.)


Defendant Jesse Miles appeals the District Court’s order revoking his probation and imposing the underlying sentence of three to nine years in prison for aggravated domestic assault, retail theft, and petit larceny.  The basis for revoking probation was a violation of probation (VOP) charge that the State brought because Mr. Miles allegedly engaged in “violent or threatening behavior.”  For those of you who thought that the State has sufficient and well-run systems in place for the mentally ill, the facts of this case may surprise you.

Tuesday, February 15, 2011

SOL Practitioner

Campbell v. Stafford, 2011 VT 11.


Bad puns aside, before I went to law school, “SOL” indicated something a bit cruder than “statute of limitations”—this case illustrates that the underlying meaning of the acronym is largely the same. This appeal from the trial court’s denial of plaintiff’s motion for reconsideration and motion to amend stems (factually speaking) from a series of treatment at the Berlin Health Center.

Of Mice and Miranda

In re M.A., 2011 VT 9


This case could be subtitled: Everybody Loses.

In 2004, Defendant was a thirty-year old man with mild mental retardation (IQ of 65) who had a close relationship with a nine-year old girl.  Police, alerted that there might be sexual abuse, began to investigate Defendant. 

The police investigation culminated in a four-hour interview of the Defendant by a detective, during which Defendant admitted to molesting the nine-year old and at least two other girls.  Defendant’s statements, however, were couched in a series of child-like responses that included the Defendant’s production of a love letter to the nine-year old covered in hand-drawn hearts. 

Naturally, the open-ended conversation ended with Defendant cuffed, stuffed, and booked for sexual abuse. 

Friday, February 4, 2011

Davey Numberlady's Top Ten Words and Phrases That Make People Scowl at Lawyers

Davey Numberlady is a regular SCOV Law column dedicated to cataloging the small bits of trivia that populate the practice of law.  Today's list focuses on those words and phrases that lawyers accumulate like germs through either contact with law school or immersion in  practice.  These are the phrases that cause people to groan or attractive men or women at a bar to say, "Oh, so you're a lawyer."  Just as the loon has its trill and the skunk its scent, so does the common American Lawyericus Litigaticonia have its own identifying call.  Practice a few in the backyard, but be careful, if you use improper phrasing you might be inviting a lawsuit.

1. "Stipulate"
2. "Litany"
3. "Inapposite"
4. "Neither here nor there"

Permit Me to Introduce My House

In re Barry, 2011 VT 7


For the past seventy years, a house on a half-acre has stood in the Town of Orwell on the shores of Lake Champlain.  Built in 1941, the house was—in those wild and wooly days before zoning—built 12 feet from the lakeshore.  In 1971, Applicants’ parents bought the house and began using it as a fishing camp and vacation house.  In 2006, the Applicants inherited the house from mom and dad, and put it into an LLC, named Clyde’s Place.

Now the fun begins.  After 65 years sitting practically in the lake, the house is a little worse for the wear and needs rehab.  Scratch that.  It needs to be rebuilt.  So Applicants meet with the first in a rotating cast of interim zoning administrators from the Town.  Zoning Administrator #1 visits the site and agrees that the family can rebuild on the site and, in a little bit of zoning-on-the-fly, reviews a sketch plan that the Applicant literally draws at the meeting.  Zoning Administrator #1 gives the thumbs up to the new house to be built on the old footprint, but he suggests that they should remove the proposed giant stick figure next to the “me” and the arrow sign. 

Thursday, February 3, 2011

The Street Lawyer: I Come to Bury, Not Praise Professionalism

The Street Lawyer is the Cultured Barrister’s necessary counterpart. Offering a viewpoint sometimes at odds with CB’s, the Street Lawyer takes a no-nonsense approach to the realities of law practice. Sometimes cynical, usually irreverent, and occasionally serious, the Street Lawyer welcomes your feedback. 

How does one maintain one’s poise and decorum when writing about the beginning of the end of the professionalism requirement? 

I guess we’ll never (be required to) know. 

This week, the Board of Continuing Legal Education announced a proposed amendment to Rule 3(b), which would eliminate the much belly-ached and bally-hooed 2-hour, “live” professionalism CLE requirement—effective July 1, 2011.  Could you hear the collective sighs ringing from courtroom to courtroom?  That’s right . . . it was only a dream.  You don’t have to talk about feelings anymore, okay?  You don’t have to “participate.”

Tuesday, February 1, 2011

Will It Go Round in Circles?: SCOV Affirms Basis for DUI Stop

State v. Santaw, 2010 VT 111 (mem.).


For neither the first nor the last time, the SCOV has effectively walled off another area of potential DUI defense.  For regular readers of this blog, the case will be familiar in what appears to be the SCOV’s long-term project to tighten up the standards governing DUI stops and initial processing and force the analysis to follow the actions of the Officer rather than any subjective expectations of the driver. 

Defendant in this case was leading his buddy back home when the two cars passed a state Trooper.  The ever-alert Trooper noticed the second car swerve onto the shoulder and stay there long enough to raise Trooper’s suspicion that distilled shenanigans were afoot.  Turning around, Trooper noticed that the lead car, driven by Defendant, was also weaving and slightly crossing the divided yellow-line.  Trooper decided to turn on his lights and pull the cars over.  Both cars turned right into Defendant’s driveway and Trooper parked behind them. 

By the time Trooper approached the second car, Defendant was out of his car and standing by his buddy’s driver’s side window.  Trooper was overwhelmed by that old familiar scent of alcohol emanating.