Friday, May 31, 2013

Blood Draw Debacle

O’Brien v. Synnott, 2013 VT 33

At its most basic level, summary judgment is a way for a trial court to say, “So what?”  If the facts of a case don’t support a claim or defense, then the trial court can dispose of the matter without trial or further fanfare.  One of my favorite college professors used to say: “There are two correct answers when it comes to law: ‘it depends’ and ‘judicial economy.’”  The concept of summary judgment is intimately related to the latter “correct answer.” 

Summary judgment is granted when there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law.  That’s the kind of phrase we memorize when we’re fresh-hatched baby lawyers; a phrase that you’d incorporate into a Chatty Cathy—Lawyer Edition. 

But what does it really mean?  Simply put, “no genuine dispute of material fact” means that neither party disputes the significant facts of the case.  It doesn’t mean there are no factual disputes; it just means that all the facts on which the parties agree (or have conceded to) support or don’t support a claim or defense, and therefore require the court to rule only one way (that’s the matter of law piece).   

Bueller? ... Bueller? ... Bueller?

By David Rangaviz

In re J.H., 2013 VT 31

When I was in grade school, I hinged a lot of my actions on the difference between the Rules and the Laws.

Rules—school rules, house rules, any rules really—were made to be broken.  I walked the halls during free period.  I went to gym during other people’s gym classes.  I skipped the occasional school day.  I was a rebel, and flouting rules was my cause.

Laws were different.  You didn’t mess with laws.  Breaking rules might earn me some punishment, but it was punishment I could understand.  I didn’t even know how one was punished when a law was broken.  I just knew it was bad and that I wanted no part of it.

Thankfully, when I was younger I didn’t know anything about juvenile law or Vermont state truancy laws.  It would’ve thrown my entire values system out of whack—school rules with the potential to have the force of law.  How can that be??

I’ll tell you.

Tuesday, May 21, 2013

I Fought the Law (and the Law Won)



Marsh Inter Vivos Trust v. McGillvray et al., 2013 VT 6

Plaintiff in today’s case tried to beat the establishment. 

Unfortunately for her, the “establishment” here was the property rights of others, which are protected by another establishment: the SCOV.

The Clash between the parties arises from Plaintiff’s attempt to develop a lot within the Quechee Lakes subdivision in the Town of Hartford.  In 1971, the Plaintiff purchased a “farmstead” parcel from the Quechee Lakes Corporation, comprised of two contiguous building lots.  The larger of the two lots consisted of 5.73 acres, and the smaller, “saleable” lot consisted of one acre.

The deed conveying the parcel referred to certain restrictive covenants, which, among other things, limited use of the subdivided lots to residential occupancy by a single family.  It also prohibited the construction of guest houses on the so-called farmstead parcels which, by definition, already had a separate lot upon which accessory structures might be erected.  A separate deed restriction contained setback requirements for both the larger and smaller lots.  The Plaintiff’s lots were also subject to the Town of Hartford’s zoning regulations as well as the Town’s “Master Plan.”

Does It Ring a Bell?


In re Investigation into Regulation of Voice over Internet Protocol (VoIP) Services, 2013 VT 23

Here’re a few things we’re willing to wager you don’t think about every day—is your phone service classified as a telecommunications service or an information service?  What’s the difference?  What is Voice over Internet Protocol (VoIP) service?  The answers to these questions are explored in this appeal from the Public Service Board (PSB). 

Stay tuned . . . .   

SCOV: A Unanimous, Divided Court


By David Rangaviz

State v. Turner, 2013 VT 26

Today’s case fractures the SCOV over the meaning of the Sixth Amendment right to a speedy trial, and the proper method that courts should use to assess whether that right has been violated.

Defendant was arraigned on September 3, 2008.  [Start your clock.]

Wednesday, May 8, 2013

May Mixer!

It is May!

Spring has sprung!  Birds are building nests!  Squirrels are scampering on the wires!  And Lawyers are once more heading to Montpelier to partake in that annual rite of the season:

The Young Lawyer's Division Montpelier May Mixer


Here are the details to get yourself there for a swell round of socializing, consumption, and chaste companionship:



Wednesday, May 15, 2013

4:30p.m. until the Roof is on Fire (approximately 6:30 p.m.)

Capitol Plaza in Montpelier

Ethan Allen Room
(the best furnished room in the Plaza)

Hors d’oeuvres & Cash Bar



Questions?  Concerns?  Anticipatory Feedback?

Contact this man:

Austin Gray, President,  Young Lawyers Division

A Modifiable Feast



OCS/Pappas v. O’Brien, 2013 VT 11.

Nothing explodes into a festering cauldron of prolonged litigation quite like a jurisdictional battle over children.  Unless, that is, the battle is over unpaid child support.  Today’s case is a tangled web anchored in two enforcement actions, three states, and some four or five independent questions of law.  Hold on, folks—this interstate highway is unpaved.

Wednesday, May 1, 2013

Math Magic



State v. Carpenter, 2013 VT 28

This is a sentencing case, which the majority disposes of in ten paragraphs.  Put on your hardhats and let’s get to work.

Defendant was charged with three felonies (assault and two violations-of-abuse-prevention-orders) and six misdemeanors (resisting arrest, unlawful mischief, etc.).  He agreed to a plea bargain where he would plead guilty to one felony and five misdemeanors.  In return, the State would be able to ask for enhanced sentencing under the Habitual Offender Act.  Both parties agreed to let the court determine the sentence. 

The Habitual Offender Act states that after three felony convictions, the courts can raise the sentence imposed for any future felonies anywhere from a few years above the statutory allowance to life.  In this case, the maximum sentence for the felony was three years and the maximum for the five various misdemeanors were two years, one year, one year, six months, and six months.

Derivative Explorations



LaMothe v. LeBlanc, 2013 VT 21

As complicated as family law can get, the core principles are pretty straight forward.  When it comes to the husband and wife, the courts are trying to be fair.  When it comes to the children, the question always goes to their best interest.

Do the right thing and take care of the kids.  Sounds simple, right? 

If you learn nothing else from reading this blog, know this: the simple is rarely easy, and cases by their specific, complex nature almost never lend themselves to straightforward applications.

Why then do we have these core principles?  Why tease us with simplicity when the whole endeavor is going to spiral into a maze of arguments and brambles?

We can see from the cases that there are really two schools of thought as to how such principles and central purposes inform a case and function within the context of the dispute. 

Law Schooled



Hanson-Metayer v. Hanson-Metayer, 2013 Vt. 29 

Let’s talk about learning by doing. 

As with any profession, many of us who choose the legal path come, at some point, to seriously second-guess the wisdom of that decision.  For some, the existential crisis occurs in the throes of a difficult exam period.  While for others it might not happen until they lose their first case. 

—Note, the first rule of being a lawyer is:  Do not cry in court; neither the client nor the judge will appreciate your sensitivity.   

Who knows, your first crisis might even occur when you observe an unjust result from bad law or unfortunate facts. 

Then, of course, there is the first time you see your final loan calculation.