Davey Numberlady's Top Ten Billable Hours Entries Your Client Does Not Want to See

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 that bane of private practice, the Billable Hour.  Each day, attorneys strive to fill their working days with productivity that can be billed to the client in discrete, easily summarized intervals.  This work is then invoiced to the client who after overcoming the shock of it, is usually grateful for the work that has been done on their behalf.  At the other end, attorneys are constantly second-guessing themselves as to what is and is not billable. "Did that phone call really advance the client's case or did I talk too long with Attorney X about my last vacation?"  As a helpful guide, Davey has drafted the following billable hour entries that are likely to fail either test.  Please add your own in the comment section.

1. "Researched past episodes of CSI: Miami for deposition questions: 6.5 hours"

2. "Victory dance choreography and performance following review of summary judgment order: 1.6 hours"

Riding the Healthcare Rollercoaster

By Cara Cookson

In re Jean Brett, 2011 VT 28

Sometimes, the “facts” of a case, as recited by us in the profession, and the “issues” as defined legal structures we’ve created, don’t quite give the impression of how the legal system might appear to a litigant.  Imagine this story . . .

You have a medical condition that leaves you homebound and requires long-term care.  Just picture what that would be like for a minute.  Since can no longer work and lack the benefit of great wealth, you go to the State for help and ask for in-home personal care five days a week, alongside some annual services like respite care.  Because she can, your adult daughter helps care for you the other two days of the week.  Let’s imagine that, like most of us, your daughter works full time during the week; so she’s only helping on her days off.  For two years, you owe nothing extra for the in-home and annual services. This is because your income ($2500 per month) is exempt.  It is exempt because the State determines that you can deduct the following monthly amounts $950 for your family’s upkeep, $185 for health insurance, and $1450 mostly as a credit to you for using your daughter for weekend care coverage.  Since no income remains after these deductions, no payments are due for the in-home care and services. 

Don’t Hold It Against Him

By Daniel Richardson

State v. Connor, 2011 VT 23 (mem.)

Vermont Rule of Evidence 404(b) stymies a lot of second year law students (and practitioners), but it is fairly straightforward.  Prior bad acts are not admissible to prove character.  If a defendant is on trial for murder, the State cannot put on evidence that she once robbed a bank or that she was a habitual jaywalker to show that she is the kind of person that would kill.  These prior bad acts might demonstrate that defendant is a bad or thoughtless person, but they do not necessarily make it more likely than not that she committed the murder for which she is being tried.

The exception to the rule—and this is a big one—is that prior bad acts are admissible for other purposes such as to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.  In some circles, this is known as the exception that threatens to swallow the rule.  But if you really think about it, it makes sense.  Basically, prior bad acts cannot be admitted to show that the defendant is a bad person, but they can be admitted to show that the defendant knew how to commit the crime; that the crime fits a pattern; that because of prior bad acts defendant had a reason to commit the current crime; that defendant had prepared for the current crime with the prior bad acts; or that defendant had planned it based on those prior acts. 

I Didn’t Notice You There

By Daniel Richardson

In re Soon Kwon, 2011 VT 26 (mem.)

There is one rule for landlords in Vermont at the end of a lease.  If you are going to withhold the security deposit, get into the property, catalog the damages, and send notice to the tenant within 14 days.  If the property is in Burlington, make sure the notice goes to all the tenants’ forwarding addresses via certified mail.

Landlord in the present case learned this lesson the hard way.  In June 2006, Landlord rented an apartment to six college students who provided a security deposit of $2970.  In 2007, the parties renewed, and apparently, Landlord sent a letter notifying Tenants that he intended to deduct a certain amount from the security deposit for damages to the apartment.  In 2008, the college students moved out, and Landlord wrote that out of the remaining security deposit, only $852.11 was left, and he was applying it to damages.  Landlord sent the 2008 letters to the various Tenants’ emergency contact addresses, but he only sent one of them by certified mail. 

Tenants appealed to the Burlington Housing Board of Review to challenge this action.  The Board found that Landlord had not sent the notice to the proper addresses (Tenants’ last known addresses) and had not sent it certified mail as Burlington requires.  Therefore, the notice was ineffective, and he owed Tenants a full refund of their security deposit. 

The White Horse

Editor's Note: At SCOV Law, we focus our efforts on summarizing current SCOV cases as they are issued on a prospective basis.  Since our summaries only go back to July 1, 2010, there will always be over two hundred years of decisions that will never get the SCOV Law treatment.  Fortunately, Vermont Legal Historian Paul Gillies has volunteered from time-to-time to contribute summaries of some more noteworthy historical cases to our blog.  (This is kind of like Shelby Foote volunteering to narrate an amateur Civil War re-enactment.)  This is Paul's first entry, and what better place to begin than at the beginning.

by Paul Gillies

The first case heard by the SCOV was Griffin v. Galusha (1778).  The report of this case is found in Secretary of State William Slade's State Papers of Vermont (1823).  The location of the original paperwork is unknown.

 The court organized at Stephen Fay's Green Mountain Tavern (later known as the Catamount Tavern) in what is now Old Bennington, in December of 1778.  The judges took their oaths of office, appointed Stephen's son Jonas as the first clerk, and opened the court for the conduct of business.  If numbers were assigned, this was Docket No. 1.  The caseload of the first term was five cases in all. 

Project Bierce and One Hundred Posts

Greetings SCOV Law Reader(s):

This post marks an exciting milestone for us.  In less than six months, we have hit 100 posts!  Thanks to all of you who have read the blog and offered us feedback.  To date, we have reviewed and summarized every Vermont Supreme Court decision since July 1, 2010.  Not too shabby!

We are still improving things here at SCOV Law, and we welcome your feedback or input as to how we can make the blog better.

As part of our ongoing work, we have created Project Bierce, a page of definitions that aims to be pithy, witty, and informative.  Hopefully, we have managed at least one out of those three for each entry.  Please check it out, and let us know what is missing.

---the Staff of SCOV Law

Family Ties

By Andrew Delaney

In re K.M.M., 2011 VT 30  

K.M.M. has been her grandfather’s ward since 2001, when her parents entered a voluntary guardianship.  At that time, K.M.M. was eleven months old.  Although dad petitioned to terminate guardianship in 2002, and grandpa subsequently petitioned to terminate parental rights and adopt K.M.M., this “family drama” has remained unresolved for nine years.  In 2009, the Caledonia Superior Court considered the matter on appeal from the Caledonia Probate Court.  The superior court denied grandpa’s petition to terminate parental rights and dad’s petition to terminate the guardianship.  In essence, nothing changed.  The SCOV affirms denial of the petition to terminate parental rights, but reverses and remands on dad’s petition to terminate guardianship.

Here’s the background.  K.M.M. is now eleven years old.  Mom and dad initially agreed to the voluntary guardianship because they both had substance-abuse issues.  Dad was also in jail for various criminal violations, including a high-speed chase with police while K.M.M. was in the car.  So, uh, yeah—voluntary guardianship seemed like an all-around good idea at the time.

The Money Shuffle

By Andrew Delaney

Yustin v. Dept. Pub. Safety, 2011 VT 20 (mem.)

Claimant in this case was working as a Vermont State Trooper.  While prepping for his physical fitness exam, Claimant suffered a shoulder injury.  Ironic, huh?  He continued to work for about six months, and then underwent surgery for a partial rotator cuff tear.  This kept him out of work for about four months.  The Risk Management Division (the state agency that handles state employees’ workers’ comp claims) disputed whether the injury was work related and denied coverage.  So Claimant used his sick-leave to receive full wages during the time he was out of work, and challenged the workers’ compensation denial.  The Labor Department issued an interim finding that the injury was work related and ordered temporary total disability payments to Claimant for the time he was out of work.

Black Hawk Can’t Come Down

Coutu v. Town of Cavendish, 2011 VT 27

By Elizabeth Catlin

This decision comes as a blessing to all of us with clients who own a helicopter, want to build a landing pad for it at their Vermont house, and come to us for permitting assistance.  (I think that’s pretty much all of us, right?)  Helicopter landing pads, as it turns out, are subject to a special permitting procedure governed by the Vermont Transportation Board.  In order to build a helipad, the developer must obtain approval from the Board under 5 V.S.A. § 207.  And in order to gain Board approval, the developer must submit an application that is “supported by documentation that the proposed facility has received municipal approval.”  5 V.S.A. § 207(d).  Municipal approval may be achieved in one of two ways: first, by being in conformance with municipal requirements with respect to land use (zoning), or, second, by obtaining the approval of the local governing body.  Our unlucky Plaintiff in this case had the misfortune of living in a town that did not have a zoning ordinance concerning helicopters and a selectboard that was unwilling to grant its approval to a helipad.  What is a poor helicopter pilot or M*A*S*H enthusiast to do?

Where the Rubber Meets the Road

State v. Rutter, 2011 VT 13 (mem.)

By Cara Cookson

Nothing says 2 a.m. on a Saturday night in a Vermont town like the sound of squealing tires.  Apparently for Vermont police officers, nothing says “potential DUI” like the sound of squealing tires, either.  SCOV might decline to characterize its opinion in this DUI appeal as creating any “bright-line rule,” but let’s all go ahead and say that DUI defendants aren’t going to have much luck from now on arguing that police lack reasonable suspicion to stop a vehicle that peels out.  The more important take-away is that SCOV slammed the car door on “pretext” arguments for traffic stops. Opting for the federal approach, SCOV ruled for at least the second time this year that an officer’s subjective intent is irrelevant to “reasonable suspicion” analysis under the Vermont Constitution.

SCOV Takes on Sentencing in Three-Part Disharmony

State v. Rooney, 2011 VT 14

By Elizabeth Catlin

This case is Defendant Brian Rooney’s appeal from his conviction for aggravated murder and life sentence to prison for the sexual assault and killing of Michelle Gardner-Quinn.  The events that led to this case were very much in the news during the fall of 2006, when the murder took place.  The victim was a University of Vermont student, whose disappearance after spending the evening with friends in downtown Burlington shocked the community, and whose story became tragic when her body was later found. 

On appeal, Defendant raised two issues.  First, he argued that his due process rights were violated by the State’s failure to disclose internal validation studies of the Vermont Forensic Laboratory’s DNA testing procedures.  Second, that his equal protection rights were violated by the sentencing schemes under Vermont’s first-degree murder and aggravated murder statutes. 

Judge Me

By Daniel Richardson

In re Hodgdon, 2011 VT 19

You have not made it in the practice of law in Vermont until you have a trial or hearing in Guildhall, Vermont—the county seat of Essex.  Perched atop the state, hard against Quebec and New Hampshire, Essex is a quiet, rugged, and defiantly rural spot where one can visualize the world primeval.  Guildhall lies along the Connecticut River when it is still a young stream, bouncing over its rocky bed toward its greater, southern glory.  The Town is not much more than a scattering of houses, a library, a sleepy general store, a cemetery, and courthouse buildings.  If you blink, you will have missed not only Guildhall but the next town as well. 

This is nothing new.  My partner relates a story about a multiple-day criminal trial held in the 19th century in Guildhall.  Each night, the parties—prosecution, defense, prisoner, and judge—would retire to the closest accommodations, which were across the river in Lancaster, New Hampshire.  After a few days of particularly damning testimony, the parties were heading back to Vermont after lunch at the hotel when Defendant stopped and refused to return.  With no authority in New Hampshire, the Vermont deputies holding the prisoner had to let him go, and the prosecution shifted to extradition proceedings. 

Watching the Bloggers

Mike Abadi is a great guy who has a wonderful show on central Vermont's community access television called VtBlogospheretv.  Each month, Mike interviewers a Vermont blogger, and lets him or her tell about themselves.  While the idea sounds a bit like a photo spread entitled The Faces of Radio, it is in practice a fun and informative show that has featured an astounding number of Vermont notables, newsmakers, and interesting figures.  It is well-worth your time and attention.

VtBlogospheretv hit a recent nadir for its 30th episode, for which Mike generously asked the editorial board of SCOV to come by for a chat.  Although this clip does not show it, Mike had to endure a great deal of patter between takes and general monkey business from two people who were far too excited at the chance to be on tv.  Nevertheless, thanks to the power of editing, Mike was able to put together the following that not only did the show credit but made us look smarter than we were that day.  You can watch the clip here.

Enjoy,

Dan Richardson

Fun with Free Speech

State v. Albarelli, 2011 VT 24.

By Andrew Delaney

Stop the presses.  No, really, the SCOV overturned a conviction for disorderly conduct based on sufficiency of the evidence—this kind of thing happens only rarely.

About a month before the 2008 election, Defendant approached a “Vermonters for Obama” table on the Church Street Mall in Burlington.  Defendant, sheepish at first, claimed that he was confused and unsure of who to vote for, but this was just a ruse as Defendant soon came into his own and began to loudly decry the evils that Obama represented as a candidate.  He accused Obama of being a terrorist and accused anyone who approached the table of being terrorists.  He was there about 20 minutes.  The cops came; Defendant left. 

A couple of days later, Defendant returned with another young man and approached the table, acting “sort of intense, angry, and strange.”  One of the volunteers called the police.  When they came, Defendant said he was expressing his freedom of speech and did not have to give his name. Persisting in that position won Defendant a citation for disorderly conduct. 

During Defendant's first "protest" scene, one of the volunteers on the other side of the table felt threatened because Defendant was yelling, angry, persistent, and “a little too close for comfort.”  She didn’t think he was going to hit her, but she did feel threatened and afraid.

Discussion Point: Women and the Law

Discussion Point is a new SCOV Law column focusing on an issue or subject that generates some amount of controversy and strong feelings.  The purpose of this column is to introduce the topic and then step aside to allow YOU, the reader, to weigh in on the subject.  The subjects or opinions up for discussion here do not necessarily reflect the views of the SCOV Law blog or any of its contributors.  




A unnamed partner of ours recently recommended that we read The Art of Cross Examination by Francis L. Wellman (1903).  We will let the book's jacket speak for itself:

For sixty years this work has reigned supreme in its field.  It has instructed generations of budding attorneys, renewed the resources of courtroom veterans, sharpened the skills of interviewers, social workers, psychologists, and other professionals who use questioning in their day-to-day work.


No doubt, we thought, we were in for a good read.  Then we came upon the following passage at pages 148-49:

Much depends  also, as will be readily appreciated, upon the age and sex of the witness.  In fact, it may be said that the truly great trial lawyer is he who while knowing perfectly well the established rules of his art, appreciates when they should be broken.  If the witness happens to be a woman, and at the close of her testimony-in-chief it seems that she will be more than a match for the cross-examiner, it often works like a charm with the jury to practise [sic] upon her what may be styled the silent cross-examination.  Rise suddenly, as if you intended to cross-examine.  The witness will turn a determined face toward you, preparatory to demolishing you with her first answer.  This is the signal for you to hesitate a moment.  Look her over good-naturedly and as if you were in doubt whether it would be worth while to question her---and sit down.  It can be done by a good actor in such a manner as to be the equivalent to saying to the jury, "What's the use? she is only a woman."

Oedipus Wrecks (AKA the Brady Bunch Breakup)

By Daniel Richardson

Samis v. Samis, 2011 VT 21

This seems straightforward.  Husband appeals a divorce decree giving his wife their Vermont house, $250,000 in support, $20,000 in attorney’s fees, and $20,000 in past-due maintenance.  Nothing out of the ordinary until we look closer at the facts. 

In this case, Husband and Wife are in their eighties.  This was a second marriage for both of them.  Husband, who is Canadian, always lived in Montreal, and Wife, who is American, has always lived in Vermont.  Oh, and Wife is suffering from dementia, and this divorce proceeding was brought and prosecuted on her behalf by the son from her first marriage who was also her guardian.