Friday, July 26, 2013

Mid-Life Crisis: Gideon Turns 50

By David Rangaviz

In re Kimmick, 2013 VT 43

Today’s case is about the scope of the right to counsel.

This year marks the fiftieth anniversary of the Supreme Court’s opinion in Gideon v. Wainwright, in which the Court decided that indigent criminal defendants have a right to counsel in state courts when they are unable to afford their own attorney.  This anniversary provides a moment for reflection.

Today, the public defender system in this country is broken.  For many defendants, the “right” rings hollow, legitimating an era of mass incarceration in which public defenders are spread increasingly thin by exploding caseloads and shrinking budgets.  At the federal level, the sequestration’s recent budget cuts have greatly exacerbated the problem, triggering mass layoffs in federal defenders’ offices across the country.  And every dollar cut from public defender budgets offers only illusory savings—it requires the use of more private attorneys, who cost more and get worse outcomes.  The likely result, higher sentences, just shifts the problem onto the ballooning corrections budget.  The cuts are penny wise and pound foolish.

(If you have HBO and 90 minutes to spare, watch this documentary.)

Monday, July 22, 2013

“Roughly Right” vs. “Totally Wrong” about Injured Workers


Lydy v. Trustaff, Inc./Wausau Insurance Company, 2013 VT 44

Civilization as we know it came to Vermont in 1915.  That’s when Vermont joined the cavalcade of states adopting workers’ compensation statutes.

Let’s say you were a young single mother working in a textile mill and, one day, your long hair got caught in the fundamentally unsafe machinery of your employer and you were literally scalped.  Before workers’ comp, courts everywhere applied the common law “assumption of the risk” doctrine to hold that such a worker (or her surviving kids) could not sue her employer for negligence.

Workers compensation—now the law in every state—replaced this harsh principle with a grand bargain of sorts.  Injured employees became entitled to recover for work-related injuries, but only pursuant to a carefully limited scheme of benefits so that employers would not be subject to wheel-of-fortune jury verdicts of the sort that were allegedly common in garden variety negligence actions.

Friday, July 5, 2013

Whatever Works . . . .

Brown v. W.T. Martin Plumbing & Heating, Inc., 2013 VT 38

The holding of this case boils down to doctors don’t necessarily have to follow “the book” when making diagnoses in workers’ compensation cases.  This one’s for the workers.    

Oh, of course it’s more specific than that.  This case deals with Complex Regional Pain Syndrome or “CRPS” for short and the criteria for diagnosis under the American Medical Association (AMA) Guides.  More specifically the question is whether an expert can diagnose CRPS under alternate criteria, which still meets the reasonable-medical-certainty test, and which in turn supports a permanent-partial-disability award, even if this does not follow the AMA standards.  The SCOV majority gives this approach a favorable nod.

Here’s the lowdown.  Claimant was injured on the job and applied for workers’ compensation.  Plaintiff claimed CRPS and was diagnosed with such.  CRPS is characterized by pain that can seem disproportionate to the actual injury.  In this case, Claimant tore his rotator cuff, had surgery, and had a complicated recovery.  He showed symptoms of, and was diagnosed with, CRPS by a treating physician.  Employer’s medical expert agreed with the diagnosis, and Claimant received temporary disability payments.

Take This Job (and Give It Back to Me)


Turnley v. Town of Vernon, 2013 VT 42

Two issues animate today’s decision from the SCOV.  The first concerns how a municipality conducts a quasi-adjudicative hearing.  The second deals with the broad, but elevated standard for terminating a police officer. 

The facts of this case are simple.  Police Chief received an e-mail from the State Police in August notifying him that a low-level sex offender was moving into town.  Chief handed the e-mail off to an administrator to file and apparently thought nothing further of it.  Chief was not required by law to report this new resident to the public or to the rest of the town administration. 

In October, Chief received another e-mail from the state about the Town’s newest resident.  Soon after, the Chief was asked twice by local officials about the offender, and twice the Chief stated that the first he had heard of this was through the October e-mail.  Once the members of the Selectboard learned of the August e-mail, they were not happy and brought charges to have Chief terminated for lying to them.  A hearing before the Selectboard was called.  The Board called witnesses who reported the discrepancy between Chief’s August notification and his October statements.  The Selectboard, which acted as prosecutor and judge found the Chief guilty of giving “false testimony” and voted to terminate him from his position under 24 V.S.A. § 1932. 

Jane, Get Me Off This Crazy Thing


Ayers v. Hemmingway, 2013 VT 37

Let us, for once cut to the chase of the case.  The central issue before the SCOV today concerns the life of a judgment. 

What, you say.  Judgments have life spans?  A judgment can die?  I thought a judgment was the end.  You know, the judge bangs the gavel, orders defendant to pay.  Defense counsel hangs her head low, and that’s it.

Come on you didn’t think it would be that easy.  A judgment, despite what television teaches us, is just a piece of paper.  Mind you, it is a piece of paper that carries the force of law behind it, but like all paper, it is not self-actualizing.  It still requires the holder to seek what the paper says is owed.

Monday, July 1, 2013

Discovery and the Undisclosed


Stella v. Spaulding, 2013 VT 8

There is always that scene in any courtroom movie.  You know the scene.  Atticus asks the sheriff to describe the injuries on the throat of Mayella.  “They were made by a left-handed man.”  Tom, stand up and catch this ball in your left hand.  “I can’t do that, sir.”  Why not?  “I can’t move my left arm since I got it caught in a cotton gin.”


This kind of thing makes for great drama.  It also has nothing to do with law as it is practiced.  Step into a courtroom today, there are no surprise witnesses, surprise theories, or surprise testimony.  The only surprise most civilians have is how boring the whole thing is.  When the lawyers enter at the start of trial, they know what the other side is going to argue and what the witnesses are going to say (more or less).  In court, there are no surprises, only well (and not-so-well) choreographed executions of planned testimony, exhibits, and reports.