Tuesday, December 28, 2010
What’s an Ivy-league-educated pro se to do when Dartmouth comes knocking to get its Big Green back? Fight, fight, fight (against) Dartmouth! In this debt collection appeal, a Dartmouth College alum allegedly owed the institution $17,743 plus interest on three student loans. The aspiring young Daniel Webster, says Dartmouth “misrepresented” its financial aid package, but this young orator never got to make his closing speech to the jury. Instead, Dartmouth landed summary judgment when "Webster" failed to adequately respond not once, but twice, to Dartmouth’s requests to admit, and the trial court deemed them all admitted. On appeal, Webster put up a decent fight, latching onto some clever (and some not-so-clever) procedural-defect arguments. Ultimately, however, the Big Green prevailed and received $950 in attorney’s fees.
The opinion is a must-read for all Civil Procedure students daydreaming about ways to avoid paying back their student loans. We call it: The Pro Se’s Guide to Never, Ever, Ever Escaping Your Higher Education Debt. See also "No Bankruptcy Discharge, Either!" It is your standard three-act drama with a twist and apologies to Stephen Vincent Benet at the end.
Friday, December 24, 2010
In re M.E., 2010 VT 105.
While most six-year olds were playing with Power Rangers and Legos, P.L. was smoking marijuana. (I hesitate to do it, but I cannot help imagining that P.L. might have used something like this.)
By age nine, P.L. was drinking alcohol and using cocaine on the side. When he was twelve, on May 25, 2008, P.L. had an overdose. At that time, he had Xanax, cocaine, marijuana, and Benzodiazepine in his system. I suspect that the contents of this toxic cocktail might lead even Robert Downey, Sr., whose famous son also began smoking marijuana at age six, to blush.
Thursday, December 23, 2010
Babies on the Move
One of Thea's favorites - jolly pictures of chubby babies in strollers, papooses, backpacks, and sleds.
Star Wars - Anakin and the Clones
Liam loves this one even though it give him nightmares.
I have this memorized, and I'm not ashamed to admit it.
Gerry [Tarrant] and Hans [Hussey]'s ping-pong filings in the Beaver Wood Biomass Public Service Board Application.
Bound in book form, this tome is a real up-and-comer.
Corwin on The Constitution of the United States (1953 edition)
Friday, December 17, 2010
Friday, December 10, 2010
Tuesday, November 30, 2010
With the oncoming Christmas season, there are the inevitable firm parties, dinners, and social events. Though we pale behind Atlanta, D.C., and some of the more-sociable bar associations, there is still some sense of holiday decorum. And good cheer to be found in the form of an open bar manned by a surly fellow forced to wear a Kris Kringle hat. At these events, the young associate often "distinguishes" himself or herself by one of two maneuvers.
The first maneuver is to stick with the old familiar—the associate may choose a bottle of Long Trail, a Magic Hat, or if he is feeling brave, a can of PBR. He may feel confident in this choice of a standby and be able to judge his consumption quite well. Still, the primary impression left by a man in a suit holding a can of PBR is "Do you think TKE will ask us to pledge?"
Or, nervous about being in a professional gathering, the associate switches to red wine, usually a merlot. After all, isn't wine the classy alternative to beer? Being new to the perils of red wine (and somewhat thirsty) the associate quickly quaffs three glasses in a row and finds herself soused before the second wave of appetizers appears. When she makes her way to the senior partner, she is close to killing a bottle, and suggests that the partner accompany her snowboarding this winter because she was the snowboard team captain at the University of New Hampshire and they kicked Dartmouth's tail. Of course, this was long after the senior partner was captain of the Dartmouth ski team. Of course.
Monday, November 29, 2010
Tuesday, November 23, 2010
State v. Brown, 2010 VT 103
This opinion answers one question: is the fact that defendant used a paddle to discipline a child admissible at his trial for sexually assaulting her?
The state introduced the paddling evidence to rebut defendant’s contention that the child’s three-year delay in reporting the assault reflected her tendency to lie. The state countered that such delays are common in child sexual-assault cases, particularly when the perpetrator inflicts other violence on the victim. Among other things, the state elicited testimony from several witnesses that defendant had paddled the victim and her sister.
Tuesday, November 16, 2010
Thursday, November 11, 2010
By Elizabeth Catlin
We have here the third case in two weeks regarding the state child abuse and neglect registry. In terms of aiding the learning process, I believe the SCOV would have done better to issue this case first because it goes to an even more basic element of the process than “Child Abuse and Neglect Registry 101” (aka In re R.P. and B.P., 2010 VT 96) and “Child Abuse and Neglect Registry 202” (aka In re R.H., 2010 VT 95). Here in Child Abuse and Neglect Registry 001, the Human Services Board learns the same lesson that the SCOV taught the Department of PATH last week in In re McNally, 2010 VT 99: a recitation of the evidence presented by one of the parties is not the same thing as making your own findings of fact.
As usual, the facts of this case are the opposite of uplifting. The parents of a one-year-old and a three-year-old child got busted with all the makings of a meth and ecstasy lab in their basement. In addition to the drug bust, parents were investigated by the Department for Children and Families (DCF) for putting their children at risk of harm. Unsurprisingly, DCF concluded that the parents had put their children at such a risk and informed parents that their names would be added to the child abuse and neglect registry. Parents went through the various stages of appeal (refer to Child Abuse and Neglect Registry 202 if you want to know all about the registry and the appeals process—it is a long process, with many steps, and many bureaucrats—it might be like going through the 5 phases of grieving, or all 9 levels of hell, or even the 12 steps for addiction recovery).
Wednesday, November 10, 2010
Tuesday, November 9, 2010
Monday, November 8, 2010
As I sit here enjoying a lukewarm bowl of ramen noodles and a cold Fresca at ten in the evening, I am struck with a nagging thought: What the hell have I done with my life?
State v. Muntean, 2010 VT 88
From the dysfunctional-family-from-hell case files comes the Court’s latest ruling on when police custody begins and Miranda warnings are required. The Court affirms the trial court’s suppression order finding that defendant was in police custody during an interview. Buckle up folks—it’s going to be a bit of a bumpy ride.
In late 2007, State Police began investigating defendant for molesting his daughters when they were children, and more recently, for molesting his grandsons. Both defendant’s adult daughters told a detective that defendant had molested them when they were children, and two grandsons recounted recent sexual abuse. On January 2, 2008, the detective requested that defendant come into the Rutland State Police Barracks for an interview. No subject was mentioned, but the interview was arranged for the next day to accommodate defendant’s schedule, and defendant agreed to it.
Thursday, November 4, 2010
Wednesday, November 3, 2010
You are a young associate. You are trying to impress your partner. She comes in from a night at the Hopkins Center and starts in about the Chucho Valdes show. After a ten minute description where your comments are politely ignored or shut down, you understand the following:
(1) Chucho appears to be a Cuban Jazz Musician but not of the Ricky Ricardo school of Babalu.
(2) His style is elegant and rhythmic, but you are not clear whether he plays the piano or congas. You are 93% sure it is the piano.
(3) He quotes from several other musicians. This is apparently a good thing and something that jazz players do without forming big air quotes during the performance.
(4) No singing was done at this show.
(5) You may have dropped a few notches on that partnership track.
State v. Young, 2010 VT 97
You cannot make this up. Listen. One night last summer, Defendant was driving home after an evening of drinking when a car came up behind him rather quickly. Not wanting to raise his profile, Defendant took his first right onto a side street to lose the potential tailgater. The car followed him. Defendant took his next right. Still the car followed. Defendant turned into a driveway. And yes, the car followed him. Defendant rolls down his window to apologize for turning in what seems to be the other car’s driveway and discovers that he has pulled into the driveway of an off-duty police officer returning home with his cruiser who proceeds to process him for DUI.
Monday, November 1, 2010
Wednesday, October 27, 2010
Mayville v. Mayville, 2010 VT 94.
In what is likely a familiar scene in family courts around the country these days, an ex-husband, who was laid off from his job, sought to terminate the spousal maintenance payments he was obligated to make under a court order resolving his divorce. In this case, husband and wife had been married for twenty-seven years before their 2003 divorce. During the entire period of their marriage, wife suffered from a permanent disability that prevented her from working at all, and husband worked for IBM. The 2003 court order resolving the divorce split husband’s pension in half between husband and wife, and obligated husband to pay wife $3,000 per month in spousal maintenance until he turned sixty-five years old. When husband learned that he was losing his IBM job, he moved to terminate his spousal maintenance obligation.
Tuesday, October 26, 2010
Spooner v. Town of Topsham, 2010 VT 71.
From the foot-in-mouth case files comes the Town Selectboard of Topsham, which found itself in hot water in selecting a new road foreman. Following a public meeting at which the Board announced its decision, two out of the five members of the Selectboard spoke to a journalist covering the event to say that the Board made its decision based on age. One went so far as to say that the Board wanted to hire “someone young who would be around for awhile.”
At this time, we ask those members of the plaintiffs’ bar who are reading this entry to close their mouths and stop drooling on the keyboard.
Thus James Spooner, a candidate for the position who was not hired and who was older than the person hired, filed suit under the Vermont Fair Employment Practices Act for age discrimination.
When Vermont State Police officers George Badgely and Ruth Whitney reached age 55, they were involuntarily retired under 3 V.S.A. § 459(a)(2). They brought a claim against the Department of Public Safety in Windham Superior Court, arguing that their involuntary retirement violated the Common-Benefits Clause of the Vermont Constitution. The lower court initially found that sovereign immunity barred a damages claim, held a bench trial on the remaining claims, and found for the Department of Public Safety.
On appeal, Badgely and Whitney argued that the mandatory retirement age, as well as the public-safety-officers exception to Vermont’s Fair Employment Practices Act (21 V.S.A. § 495f), violates the Common-Benefits Clause of the Vermont Constitution.
Not so, sayeth the Court. It notes that “the primary justification for the mandatory retirement policy is maintaining public safety.” After a discussion of the parties’ respective expert witnesses’ testimony, we are treated to a short refresher course on rational-basis review under the United States Constitution. If you skipped reading Murgia or Vance in con law, here is a chance to catch up.
(2d Cir. Oct. 8, 2010)
Forget what you vaguely remember about free expression and recall the maxim that the law gravitates toward rational results (outside of ERISA and the Eleventh Amendment). Now read the following fact pattern and guess as to whether what is described complies with the First Amendment’s guarantee of free expression:
A state permits individuals to purchase vanity license plates for a fee. Vanity plate applicants must propose the seven-character number and letter combination that they wish to appear on their plate, but the combination may not touch upon certain subjects, including religion or any deity. Applicants must support their proposed combination with a signed statement attesting to the meaning that the proposed plate has to them; this statement and the gut instinct of line-level DMV clerks will be used to determine whether the plate references religion or a deity. Applicants who propose combinations that look religious, such as STJOHN, PSALM, SINNER, and BUDDHA, but who swear that the meaning is not religious, will receive their desired plates. Applicants who propose combinations that look meaningless – such as BVM22 and JMJ1 – but who swear that the meaning is religious, will not.
Monday, October 25, 2010
Kwon v. Eaton, 2010 VT 73 (mem.).
The Court was asked in this appeal to determine: (1) whether a party may obtain an award of attorney’s fees where the party satisfies its burden of proof but does not obtain an award of net damages and (2) whether an award of attorney’s fees is reasonable if it is greater than the award of damages.
In re Verizon Wireless Barton Permit, 2010 VT 62
Verizon applied for conditional use approval to install two telecommunications facilities in the town of Barton. A hearing on the applications was held on April 27, 2008, and no party other than Verizon appeared. The Barton Zoning Board of Adjustment (ZBA) unanimously approved the applications on May 29, and the zoning administrator issued the permit on June 5, 2008. That same day, neighbors opposed to the project, asserting that they had received no notice of the applications, sent a letter to the ZBA expressing opposition to it. On June 30, 2008, the neighbors attempted to appeal to the Environmental Court.
They were rebuffed. Verizon moved to dismiss the appeal on several grounds, including that the neighbors had not “participated” before the municipal panel. See 24 V.S.A. § 4471(a). The Environmental Court granted Verizon’s motion. Neighbors appealed, asserting first that their letter to the ZBA and a phone call to the zoning administrator satisfied § 4471(a), and second, that they had standing under the “procedural defect” and “manifest injustice” provisions of §8504(b) even if they failed to participate before the ZBA. Three Justices sided with Verizon. Judges Davenport and Crawford (sitting by designation) dissented.
The majority concluded, as to the first question, that § 4471(a) allows appeals only by those who “participate” while the town’s deliberative process is still ongoing. Because the neighbors “did not appear at the ZBA hearing and did not submit any information at that time,” they had not participated and could not appeal under that section. As to the second question, the majority affirmed—as a matter of discretion—the Environmental Court’s decision that the neighbors had failed to “affirmatively claim and satisfy the burden of establishing party status with a motion filed with the notice of appeal.”
The Superior Court Judges sitting by designation disagreed forcefully, averring that the court’s ruling was “plainly” not “reasonable from the perspective of fairness and consistent with our policy of protecting the rights of those who represent themselves in court.” The dissent was premised in large part on the undisputed fact that neighbors had not received written notice of the applications. “The trial court’s ruling here was the functional equivalent of a default judgment for applicant based upon what amounted to a harmless procedural omission,” Judge Davenport wrote.
Thursday, October 21, 2010
Tuesday, October 19, 2010
I distinctly remember that fall day as a first-year associate when I opened the closet for something to wear over the Brooks Brothers suit that I had purchased as a trophy of a successful job search. In my hall closet, there were several fleece vests and pull overs, a windbreaker, and a barn coat. I opted for the latter and left with the tails of my suit jacket peeping out from the bottom of a tan jacket originally purchased for and carrying the scars of a long-since abandoned career in landscaping. I looked like a farmer going out to bury his mother.
The problem that many of us face at the beginning of our legal career is that we do not have the clothes. Sure there are a few of us, who like Gay Talese, had tailors for parents who left us with racks of hand-tailored suits. But the rest of us start at the bottom, slowly accumulating the shirts, suits, and matching ties or scarves and necklaces while ditching the crimson satin shirts and off-the-rack casual skirts that defined our undergraduate sense of elegance. We adopt the uniform of the attorney: dark suits of conservative cut, white or blue shirts and ties for men, a simple blouse for women. This is changing, but slowly. When asked most judges and older attorneys will point to the dress code above as the model and the aspirational norm.
Because it is one of the more expensive items and because most associates start in the late summer, the overcoat is often the last item added to the wardrobe. But two realities of practicing in Vermont always make this purchase inevitable: winter and rain. The aforementioned Brooks Brothers suit was almost ruined a month before the barn coat fiasco when a late-afternoon rainstorm coincided with a hearing at the courthouse down the street. Only the numerous alcoves along the way saved what is still a significant investment of wool and Canadian thread.
So what should we wear to not only cover ourselves and our suits, but to look less like a funereal farmer or soaked solicitor?
Let us start at the beginning. The overcoat is intended as the outermost garment in formal dress. A true overcoat extends past the knee. By definition, a Peacoat is not an overcoat. It is too short. A good overcoat is made of heavy material, like fur or wool. A good overcoat is a single color with black, blue, camel hair, and brown being the most common and traditionally acceptable. Very few of us can carry the fur coat look without being mistaken for a French–Canadian Fur Trapper. Although I have it on good authority from Middlebury that it can be done with panache.
Like most innovations, the overcoat owes a large debt to the military. Napoleon popularized the overcoat during his 19th century winter campaigns and the tradition carried through Europe until World War II with the introduction of the field coat and Denison Smock. This includes one of the few positive contributions of the first World War, the Trench Coat. That coat is one of the more difficult looks to pull off. Unless you occupy a smoky, black and white world or solve crime with batman, the trench coat may have to wait.
The modern overcoat is the descendent of several variations that have held sway over the past two hundred years of fashion. These including several caped versions known as the Great Coat, the Inverness Coat and the Ulster Coat. None of which are appropriate for court unless your opponent is Moriarty. Others include the Frock Overcoat, the Redingote, the Paletotcoat, the Paddockcoat, the Chesterfield Coat, and the Covert Coat. Only the last of these is really still worn by people outside of Carnaby Street or PBS dramas.
What should you look for in an overcoat? Fortunately, nearly every retailer of men and women's business wear carries a version of the modern overcoat. The rule of thumb is conservative. Dark colors are best, followed by the brown and tans. Elegant, simple cuts of good fabric with quality stitching will serve you better than a two-for-one deal. For everyone's sake, avoid tweed. An overcoat should last for years and if cared for, it becomes an heirloom that your children will eventually give to a thrift store where some unknown future hipster will revive it in the most ironic manner possible. But who cares? You will be dead by then.
The point is that an overcoat is an investment. A classic cut will weather time and fickle fashion better than a more-stylish cut. Just ask your mother to pull out her denim acid-washed jacket from her Def Leppard roadie days. A good overcoat is a purchase that you should only make once, which is a long time to live with regret.
But what about rain? A wool Overcoat is no greater protection from a downpour and highly impractical in a summer shower. The conventional wisdom is that a lightweight, water-resistant version of the overcoat is the appropriate option. But that is bunk. Formal raincoats, like trenchcoats, are creatures of the past—exercises in kitsch that look dated and are impractical, like rubbers over wingtips—Rod Stewart notwithstanding. The success that outdoor gear companies have had wedding technology to design means that the most practical raincoats—i.e., coats with hoods, waterproofing, and effective, zipper closures—are found at North Face, EMS, or similar outfitters. The comparison is not even close, and the culture reflects it. While most lawyers have an overcoat for the winter, most of those same lawyers have a Lowe Alpine shell or Mountain Hardware parka for the other three seasons. This is perfectly acceptable. They are stylish, practical, and in Vermont, where one is never far from the trailhead, ubiquitous.
For these reasons, it is better for a young lawyer to sink the wad on the winter overcoat, and then splurge on a high-tech shell that she can use on the weekends as well as the commute. Both are costly and both will last for years. One offers more gravitas, but the other gives us spirit and hope, perhaps a sign that we are not lean solicitors who exist only to break seals in empty rooms.
—the Cultured Barrister