Thursday, June 27, 2013

M. Avoué’s Holiday

Coles v. Coles, 2013 VT 36

One can imagine a derivative Seinfeld routine emerging from today’s case, which would work over the magic phrase: “excusable neglect.”

What is it about excusable neglect?  Is it excusable or is it neglect?  Because to me it’s one or the other.  It’s either excusable, or it’s neglect.  It can’t be both.  It would be like a babysitter saying, “I’m sorry I didn’t watch the kid . . . Who knew that much jewelry could be flushed down a toilet.”  It just doesn’t make sense.  C’mon, you neglected him, and there is no excuse for that.

Funny thing, the SCOV totally agrees with Jerry. 

Monday, June 24, 2013

Constitutional Rights vs. Happy Babies, or: How I Learned to Stop Worrying and Love New Jersey

By David Rangaviz

In re K.F., 2013 VT 39

Family law cases are almost invariably heartwrenching.  They involve intensely private matters playing out on an aggressively public stage: parental rights, the best interests of children, the division of assets, living arrangements, etc.  Matters that most of us decide in the privacy of our own homes are brought to the fore, and the ultimate decision is taken out of private hands and placed into those of a judicial officer.

With such high stakes, these cases are also pugnaciously litigated.  Where other private litigants might occasionally concede or stipulate to a certain fact, plaintiffs and defendants in family law matters really go to the mat.  Private antagonisms are given public stage, and the result is long, drawn-out litigation over the most personal matters in the litigants’ lives.  As a result, the litigation process itself can be punishment enough; victories are pyrrhic while losses are absolute.

Exacerbating the tension is the reality that these cases rarely lend themselves to Solomonic decision-making.  Though in a bitter custody case, a threat to split the baby may very well be supported by the biological mother.

Emotionally Damaged?

Vincent v. DeVries, 2013 VT 34

Today’s edition of “Ask the SCOV” is about damages in legal malpractice cases.

A reader asks, “SCOV . . . can a jury award damages for emotional distress in a legal malpractice action?”

“It depends,” says the SCOV, “But not in this case.”    

This ain’t the first time the underlying case has been to the SCOV.  The SCOV begins its analysis noting three previous unpublished decisions regarding the underlying case.

Street (and Domicile) Fighter

Roberts v UVM, 2013 VT 30.

Like many in my profession, I question my financial future on a daily basis in light of the soul-crushing load of debt that I casually picked up in exchange for a fancy law degree.  This, in part, is why I sympathize with today’s plaintiff and respect his dedication to the cause of “stickin’ it to the tuition man.” 

If you have experienced the vagaries of modern-day educational funding, particularly at state-funded university, then you may also find today’s student-plaintiff to be your personal hero, however amusingly flawed.

Vermont Split

Felis v. Felis, 2013 VT 32

Today’s case demonstrates that the notion of “fairness” is all relative.  In some circumstances, it’s difficult to tell who is the “winner” and who is the “loser” we ordinarily expect in an adversarial legal system.

This appeal arises from a final order of divorce, by which the trial court endeavored to divide a substantial marital estate and determine the parental rights of the parties with respect to the youngest of their five children (the other children being over the age of 18).  Husband, a successful businessman and entrepreneur, amassed a great fortune during the nearly three decades before the parties separated.  As a full-time homemaker, wife had been the children’s primary caregiver during the marriage.

Raising the Bar

By David Rangaviz

In re Russo, 2013 VT 35

Prisoners file a lot of cases.

This is both self-evident and a little confusing.  For most criminal cases, the process starts with an arraignment where the charges are heard followed by a courtroom trial (unless the Defendant accepted a plea agreement—which most do).  If found guilty the Defendant then appeals to the SCOV.  If the SCOV affirms, the appeal is over. 

The end, right? 


Criminal cases rarely end with the direct appeal from conviction.  In Vermont state court, prisoners who lose on appeal can file petitions for post-conviction relief (“PCR”).  And, if all else fails, any prisoner (both state and federal) can file a petition for a writ of habeas corpus in federal court.  In 2012, prisoner petitions made up about 20% of all civil cases filed in federal courts—54,300 petitions in total.