Friday, May 27, 2011

The Case of the Phantom Tenant

By Jeffrey Thomson

Downtown Barre Development v. GU Markets of Barre, 2011 VT 45 (mem.).

Today’s case arises out of a long-term lease, a tenant’s series of corporate shell games, and a landlord attempting to end a lease with a shadowy corporation.  Does that sound familiar Governor Shumlin?  No, I am not talking about the State’s dispute over Vermont Yankee.  Unlike the State’s relationship with its most infamous tenant, the landlord in this case (Downtown Barre Development) doesn’t seem to trust that its tenant (GU Markets of Barre) is even real enough to keep its end of the lease agreement.

Wednesday, May 25, 2011

The Good, the Bad, and the Unpreserved

State v. Lampman, 2011 VT 50 (mem.)

Defending a criminal trial is one of the more difficult tasks in the law.  More so than any other area, the defense attorney must be prepared to head off challenges from the State’s Attorney, unruly witnesses, and the judge when he grows tired of a witness who takes the opportunity to perjure himself on the witness stand.  Yet, the system requires a defense attorney to rise to the occasion throughout the trial time and again, and not only make strategic decisions to win over the jury, but to preserve all objections for the appeal to the SCOV.  It is a moiling task that is akin to reciting the Declaration of Independence while patting your head and rubbing your stomach. 

Monday, May 23, 2011

Montpelier Mix Up

May brings many things to Vermont, but to Montpelier, it brings drinks and appetizers to attorneys from the Vermont Bar Association's Young Lawyers Division.  

This year's event will be held in the soon-to-be reopened Black Door Bistro.  It is the spring event in the busy Vermont Bar social season (third only to Lawyer Prom and SCOV Cotillion).  This event, like all other YLD events, is open to all members of the Vermont Bar.  Come network and enjoy the company of peers and  friends.

What:        YLD May Mixer
Who:         Sponsored by the Young Lawyers Division (All attorneys welcome)
When:       Thursday, May 26, 57pm
Where:      The NEW Black Door Bistro, 44 Main Street, Montpelier

No R.S.V.P. needed.  See You There!

Burning Down the House (The Roof Is Not on Fire)

State v. Sanville, 2011 VT 34 (mem.)

            Telling your landlord that you’re going to burn down the trailer you’ve rented from her does not constitute “violent or threatening behavior” sufficient to warrant a probation violation under the standard conditions.  Can you imagine the online Comments section to this decision if WCAX or the Free Press had picked up this headline?  Here we have a case that will cause non-lawyers to scratch their heads while the attorneys all stand around and nod.  Enter the Doctrine of Vagueness and Overbreadth.

Friday, May 20, 2011

Davey Numberlady's Top Ten Worst Ways to Break the Bad News to a Client

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 the inevitable bad news phone call that we as attorneys sometimes have to make to our clients.  There is almost never a good way to break bad news to a client who has placed her faith and fortune in our success, but there are a number of bad ways.  Here are ten that Davey would consider to be the worst.  Please add your own in the comment section.

10.  "Remember when I said we couldn't possibly lose?  Well, you will never believe it, but the funniest thing just happened . . ."

9.  "Here is a copy of the decision.  Let me be perfectly honest.  I have a 4:15 tee time.  Let me know how it came out."

8.  "Hello, Mr. Loser?---Jones, Jones, Jones!  I meant Jones!"

7.  "Well, sure, in hindsight the court's threat of sanctions should've keyed me into the problem."

6.  "Dear Client,  You have lost.  Your case is very important to us. If you want to appeal this decision, please dial 102 now.  If you do not want to appeal, please dial 108 now.  If you are considering a malpractice action against your attorney, please stay on the line, and the next available attorney will try to talk you out of it. . . ."

5.  "Let's just say, hypothetically, that the judge ruled against each and everyone of our claims.  Just hypothetically now."

4.  "I don't see what you're crying about.  I'm the one the judge called an incompetent hack."

3.  "It's really not a big deal---I've lost a dozen cases just like yours."

2.  "I just hate to lose!  So do not think that I am happy right now."

1.  "Uh, yeah, so---this is a surprise, really---seems that our position went completely against about a dozen prior Vermont cases.  Guess I should've read 'em, huh, Slugger?"

Wednesday, May 18, 2011

A Gentleman’s Primer . . .

State v. Russell, 2011 VT 36 (mem.)

An aspiring gentleman should cultivate certain traits.  One should know how to dress well, how to choose beverages, how to shine one’s shoes, something about women’s clothing, and something about sports.  One should also be aware of certain social conventions.  For example, on a date, the aspiring gentleman should hold doors for his date, pull out his date’s chair, offer his date his coat if it is cold, not linger too long with the goodnight kiss, listen well, and otherwise be cognizant of his date’s needs.  In a word, the aspiring gentleman should strive to be chivalrous.  

Chivalry, of course, is a most-admirable trait but aspiring gentlemen take note—chivalry does not include stabbing a man who’s made a boorish comment directed at your chap’s lady-friend.  That kind of “chivalry” will get you charged with several serious offenses, and you may even be convicted of one—like aggravated assault.  Such was the case with our protagonist here.

The Road Worrier

Ketchum v. Town of Dorset, 2011 VT 49 (mem.)

Plaintiffs own property and a house on Upper Kirby Road in Dorset.  Their segment of the road serves their seasonal residence, as well as open-lands conserved for the use and enjoyment of the public.  For decades, the Town plowed and maintained Upper Kirby Road.  In 2008, the Town, through a public hearing process, decided to reclassify this segment of the road from class 3 to class 4.  For those non-road law junkies out there, this means that the Town would no longer have to plow or maintain the road, tasks that would now fall upon Plaintiffs.  The Town based this decision on the facts that plowing the narrow road was difficult, that the plows could not turn around but had to back down, that the steep incline of the road had caused the plow to slide off the road on several occasions, and the costs to improve the road were prohibitive. 

Tuesday, May 17, 2011

Unanticipatable Consequences

Herring v. Herring, 2011 VT 38

If you commit a heinous crime against your child that (1) leads to your divorce and (2) lands you in jail, can you get out of your spousal maintenance and child support obligations by arguing that your incarceration (and resulting lack of income) is an unanticipated change in circumstances?  Surprisingly, yes you can. 

This despite that divorce, prosecution, and incarceration are all outcomes that one could anticipate resulting from repeated sexual abuse of a minor.      

Friday, May 13, 2011

When is Litigation Not Your Best Option?

Trinder v. Connecticut Attorneys Title Insurance Company, 2011 VT 46

This case seems to be a lesson in how to waste the maximum amount of money possible on litigation over what amounts to a non-dispute over property boundaries.  After Homeowners purchased their house, they were notified that their septic system encroached on their neighbor’s property.  Their first step was to ignore the initial overtures of a neighboring landowner to settle the dispute.  Instead, homeowners contacted their real estate closing attorney and their title insurance company to demand defense against the neighbor’s non-threats.  Their second step—after the insurer denied coverage and while still ignoring the neighbor’s offers to discuss the matter—was to file suit against the insurer and the neighbors.   For the third step, Homeowners—after reaching a settlement with the neighbor—continued their lawsuit against the insurer, and appealed their trial court loss as a fourth step to the SCOV.  After losing at the SCOV, Homeowners are unlikely to be satisfied but are now devoid of forums where they can pour their money into litigation.  Lesson (hopefully) learned.

Tuesday, May 10, 2011

Not Her BFF's Keeper

By Jeffrey Thomson

Lenoci v. Leonard, 2011 VT 47 (mem.)

It is easy to argue that we owe a moral duty to guide and protect our friends when we recognize that they are acting self-destructively, but does the law require that we give care and support to troubled friends?  In general the answer is no. There is no legal duty to help—unless a relationship or an action draws you in and makes you liable for failing to stop the subsequent action or chain of actions.  In today’s case, the SCOV gives guidance on what legal duties exist or don’t exist between teenaged friends when one exhibits self-destructive behavior. 

Two nights before Alex Brown (age 15) took her life, she and Defendant (age 18) lied to their parents and headed out to a party at a friend’s house.  Defendant picked Alex up at her home and drove them to the party where they drank alcohol and danced.  Defendant was concerned that some of the young men at the party might “take advantage” of Alex, and at one point she stopped Alex from dancing altogether.  The girls ended the night by crashing at the apartment of a 19-year old man who shared his room with them.  Without Defendant’s awareness, Alex and the man had sexual intercourse during the night.

Come to the Sunshine

Price v. Town of Fairlee, 2011 VT 48

Let us take a moment to praise the legal system in Vermont.  For all the inherent difficulty and imposed procedure that goes into litigating a case, the court system still remains friendly and open (although not indulgent) to citizens seeking to clarify their rights and obtain relief.  The little guy can still get his day in court, and yes, Virginia— sometimes Mr. Smith will prevail.

Playing the role of David in today’s passion play is Timothy Price.  In 2008, Mr. Price sought access to the ballots cast in the Town of Fairlee from the 2006 election.  Mr. Price’s stated purpose was to review these documents for discrepancies and to draw attention to any problems he discovered with how the Town’s Board of Civil Authority had conducted that prior year’s election.  Admittedly, the election and its initial count were far from perfect.  As the court-ordered statewide recount in the state auditor’s race demonstrated, the Town’s election count for this office changed significantly—with one candidate receiving 11 additional votes that were not included in the initial count. 

Thursday, May 5, 2011

Wave Him Through

by Daniel Richardson

State v. Sheperd, 2011 VT 44 (mem.)

Today's case is brief, procedural footnote that belies a longer, complicated, and seamy back story. 

Defendant was working as a nanny when he was arrested and charged with molesting a ten-year-old boy under his care.  Defendant's transgressions went deeper than just this incident.  Police found hundreds of child pornography pictures on his computer and evidence indicating that Defendant was a known pedophile with a national track record.  Defendant’s modus operandi involved using the internet and Facebook to obtain nanny jobs that brought him into contact with children. 

You are not the only one who got a chill down the spine.

Tuesday, May 3, 2011

This Sporting Life

The Cultured Barrister is a SCOV Law Column that is an ongoing miscellany cataloging the matters that young attorneys are likely to be confronting as they begin their professional ascent.  The CB is meant to begin a conversation and rarely will claim the final word.  If you agree or disagree, the Cultured Barrister and the other reader(s) of this blog want to hear from you.

The term “Country Club Lawyer” is often used in a derogatory manner, the legal synonym for a Babbitt.  We think of the pompous glad-hander who takes greater interest in his handicap and “making deals,” than the serious study of the law or the careful drafting of motions.  Though many of us see ourselves as Atticus Finch, too many of us appear to others as the rosy-cheeked chuckler at the “Nineteenth Hole,” swapping war stories between drinks with our chums.