Limitations of Law and History

FALL 2020 • VOL. 46, NO. 3 VERMONT BAR JOURNAL

DEPARTMENTS

5 PRESIDENT’S COLUMN

PURSUITS OF HAPPINESS 8 — An Interview with Mike Donofrio, Bassist

RUMINATIONS 16 — Limitations of Law and History

WRITE ON 24 — Past Tense: The Legal Prose of Justice Robert Larrow

WHAT’S NEW 28 — Updates from the VBA “Barn, East Montpelier” by Jennifer Emens-Butler, Esq. BE WELL 35 — How to Feel in Control When Things are Out of Control

50 BOOK REVIEW

54 IN MEMORIAM

54 CLASSIFIEDS

FEATURES

36 VBF Grantee Spotlight: South Royalton Legal Clinic Teri Corsones, Esq.

38 Access to Justice Campaign

41 Invisible Bars: The Collateral Consequences of Criminal Conviction Records Kassie R. Tibbott, Esq.

42 Can Lawyers Add Surcharges to Their Bills? Mark Bassingthwaighte, Esq.

43 Vermont Paralegal Organization, Inc. Celebrates 30 Years! Lucia White, VPO President

44 Justice Delayed Is Reunification Denied Hon. Howard Kalfus

48 Pro Bono Award Winner: Thomas French Mary Ashcroft, Esq.

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4 THE VERMONT BAR JOURNAL • FALL 2020 www.vtbar.org PRESIDENT’S COLUMN Interview with Incoming VBA President, Elizabeth Kruska

TC: I’m meeting with VBA Board Pres- wanted to stay in Vermont. We made the ident-Elect Elizabeth Kruska, just before decision together to stay here. the VBA Annual Meeting where she will of- ficially take office. Elizabeth, on behalf of TC: I can relate! What law jobs have you Vermont Bar Journal readers everywhere, had during your career so far? thank you for taking time to meet with me EK: I did mostly public defender work in today. White River Junction from 2004-2016 and EK: My pleasure! then started my solo firm in early 2017. I have taught a criminal procedure course TC: First, can you tell us a bit about your (and now also evidence lab) at Vermont background. Where did you grow up and Law School since 2012. I also taught crim- where did you go to school? inal justice ethics at Norwich University in EK: I grew up near Kalamazoo, Michigan. 2017. Luckily, we have many really great public colleges and universities in Michigan, and I TC: Is there one case that stands out went to the University of Michigan (hooray from your years in practice, that you con- for in-state tuition!). I earned a BS in Natu- sider the most significant to you person- ral Resources and Environment. I took a lot ally? of policy classes, and also a lot of forestry EK: I represented a child in a juvenile classes. While my classmates were sitting in matter several years ago. I can’t say much, lecture halls, I was canoeing to soil pits and of course, because juvenile matters are con- gard! Second, what would you recommend measuring tree diameters. It’s one of the fidential. It was a really hard case because to new lawyers in terms of volunteer op- best decisions I’ve ever made. there were three possible outcomes, all of portunities for them? Since I seemed to be focused on envi- which would have been equally good for EK: I do think it’s important for new law- ronment and policy, I looked at law schools the child. But my client – a whip-smart 11- yers to get involved with opportunities with those focuses, and ultimately picked year old who was wise beyond her years – that interest them. I would suggest finding Vermont. Even though my focus changed had a really strong opinion. I learned to lis- things that seem interesting in your geo- while I was in school, I’m glad I ended up ten to her and to advocate very strongly for graphic area, and volunteering to partici- here! her position. Thankfully, the judge agreed pate. I didn’t do that as much as a young with us, and also was able to see the child’s lawyer – it felt like a lot to practice full time TC: A fellow Mid-westerner! What led point of view. That case also showed me and also to try taking on volunteer work. I you ultimately to consider law school as a the goodness in people; there were some also sometimes felt like events I wanted to path? participants in the case who really went out participate in were far away and at times EK: The OJ Simpson trial was fascinat- of their way to do what they thought was that were hard to get to. ing for me. It happened in the summer be- right for a little kid. They didn’t have to do It seems like some county bars are fair- tween my junior and senior year of high that, but they did. I’m very thankful to them ly active and have regular meetings. That school. I remember watching several days for just being good people. seems like a good way to get acquainted of Kato Kaelin’s testimony and thinking, with practitioners in your local area, and to “how does anyone possibly know what TC: Thank you for your work in the juve- get involved in the community. they did at 10:20 or 10:25 on a particular nile docket. What do you find most inter- day?” and also thinking that the lawyers esting about your work and what do you TC: When did you become interested in must have known why that was important. find the most challenging? serving on the VBA Board? That sort of gave me the idea about going EK: I’m currently in solo practice, and EK: I received a call from Dan Richardson to law school. sometimes it’s hard to be alone. I feel really in 2014 or so, asking if I would be interest- Then in college I took several policy lucky that our bar is as friendly and collegial ed in running for a seat. I thought it seemed classes, and an environmental law class. as it is. I have no hesitation about calling a like a great opportunity to meet more law- I found that I understood the method of fellow practitioner if I’m having trouble fig- yers around the state. Even though we’re a analysis and thought it was something that uring out something and if I need another small state and a small bar, it’s easy to feel might work for me. I’ve always been a fan set of eyes or ears. Others have called me like you’re in a silo with attorneys in your of puzzles and I like figuring out things – it with similar situations. I generally find we’re own practice area or your own geograph- seemed like kind of a natural fit. all happy to help one another. ic area. For example, I was elected in the In terms of what’s interesting, I often find same year as Lauri Fisher, who lived and TC: Did you consider practicing any- when an unusual, discrete issue pops up in practiced in northern Vermont, and who where else besides Vermont? a case that I become very curious about, I I would not otherwise have met. (She has EK: I had considered moving back home do a lot of research that ends up being fas- since moved away, and I miss her!) to Michigan. My parents still live there, and cinating. I enjoy that a lot. it’s hard to get to see them very often when TC: Lauri just renewed her VBA mem- I know I have to drive fourteen hours each TC: I know that you also regularly volun- bership – she’s very loyal! What did you way to do it. My husband, who I met in law teer on different boards and committees. think Board service was going to be like, school, is from New Jersey and felt like he First, thank you for your service in that re- and, what did it turn out to be? www.vtbar.org THE VERMONT BAR JOURNAL • FALL 2020 5 EK: I really didn’t have any preconceived been known to take business calls in odd ideas. It’s turned out to be a very positive locations, always with a promise to call experience, though. I don’t think I realized back. how incredibly involved the VBA is with the I love seeing live music. I’m a big Phish legislature until I joined the board. It’s def- fan – some of my good friends are people I initely helped me to be more attuned to know from parking lots at Phish shows. I en- President’s Column President’s legislative work. joy sports, especially thoroughbred horse racing. I’m a part owner of some race hors- TC: What has been the most satisfying es with a couple different partnerships. part about serving on the Board so far? I also really enjoy going to the races. I’ve EK: There is a very strong sense of coop- often compared going to the Kentucky eration on the Board. Sometimes individual Derby to going to church on Christmas – members disagree about details, but gen- it’s crowded and full of people who don’t erally the Board understands very well that usually go, and everyone wears their fin- our task is to work for the members of the est (and giant hats!), but there’s no way on VBA. I have also found the Board to be very earth I’d miss it. welcoming. If anyone’s considering running for an open board seat, I’d encourage it. TC: I see a “Pursuits of Happiness” article in your future! Elizabeth, what advice TC: Has there been a least satisfying would you give to a young person thinking part? about law as a profession? EK: Honestly, I’ve generally found the ex- EK: I would encourage them to think perience to be a positive one. I do think about why, and what they hope to achieve. it would be stronger if more people par- I’d also encourage them to spend some ticipated in bar events and committees. I time with real life lawyers to see how it sometimes feel like the VBA has a very reli- works. It’s also important to understand just able group of participants – section and di- how much work the job really entails. I told vision chairs/participants, county bar presi- my law students the other day that practic- dents, and others who are usually quick to ing law is like having homework for the rest volunteer. While that’s great, it also some- of your life. That’s the best description I can times feels like we often go to the same give for how much work it takes to get to people for help. I’d love to see us expand do the cool courtroom work we envision that group so more people participate. when we think of lawyers.

TC: Sometimes VBA Board presidents TC: Last question: What would you like have a focus or theme for their year in of- to be remembered for, as the 141st presi- fice. Do you have a particular focus in mind dent of the Vermont Bar Association? for your upcoming year in office? EK: This is an enormous question. I want EK: Let’s get through this year in one us to work together to make the practice piece! I’m kidding. Sort of. 2020 has been healthier. I’m not sure how we’re going to bizarre and challenging on so many fronts. do that, but we have this spectacular op- From the sounds of things, we may not fully portunity to completely re-create how we be back to “normal” for some time. To that practice. Let’s make it what we want it to end, I would like to see this year continue be, not what generations before us have to be cooperative and supportive for our given to us. membership so we all come through stronger on the other side. When I agreed to ac- TC: Thanks so much, Elizabeth. We’re all cept the nomination I immediately start- excited to have you at the helm! ed thinking about ways to make our association feel more inclusive for all attorneys statewide. I think we can still do that. CO- VID-19 has been a challenge, but has also started to teach us how to connect in different ways. I’d like to see us take the lessons we’re learning right now – because we have to – and figure out how to incorporate them into our practices and into our interactions for the future so we can be more effective advocates.

TC: What’s your favorite past time when you’re not working? EK: What is this “not working” you speak of? [Laughs]. As a solo practitioner I’m sort of always “on.” I always answer my phone, although people are generally pretty re- spectful of normal business hours. I have

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PURSUITS OF HAPPINESS An Interview with Mike Donofrio, Bassist

JEB: I’m at home, COVID-style, interviewing Mike Donofrio via phone. Mike, we interview people who have interests and talents outside the law. My understanding is that you have an interest and a talent. So I guess we should start with your interest in music. Were you always interested in music when you were a child? MD: I didn’t play music as a child. I had a short-lived attempt at piano lessons during elementary school. I was always interested in music though, as a listener. I have very early memories of going through my parents’ records and eight tracks and random things striking my fancy. The first record I remember being really excited to buy myself was Kiss Double Platinum when I was like eight years old.

JEB: That’s so funny, I guess I’m dating myself as older, but I remember the same thing, but it was a box of 45’s with oldies Saturnine, with Mike at the far right. like Tan Shoes and Pink Shoelaces and Beep Beep although the house was filled more often with slightly more recent music like The lege. One of my roommates showed up with left hand down on the wrong fret and just Beatles. a bass guitar he had just acquired. Neither of played the note pattern I had memorized! It MD: My parents had kind of a random us knew how to play it. He just liked the bass didn’t occur to me to, like, LISTEN to what it smattering of records. I remember really lik- because he was a big Rush fan. To my friend sounded like! ing their eight tracks of Beach Boys Endless Joe’s great credit, he was playing Geddy Summer and Stevie Wonder’s Songs in the Lee basslines by sophomore year! But in the JEB: Well, maybe it was a whole new ver- Key of Life. I wore them out! beginning, we would put on simple songs sion that sounded great. where you could really hear the bass—The MD: Well, it was a whole new version al- JEB: Oh my gosh, me too! Mine was an al- Police were a great source—and we’d sit right. One of my friends who was an actual bum but Songs in the Key of Life was my fa- there and try to figure out how to play. And musician, came up to the stage about half- vorite and I still like to listen to that. So you by sophomore year, we each ended up as way through yelling you’re sharp! didn’t play any musical instrument in high the bass player in “rival” campus bands! school? JEB: Too funny. Where did you go to col- MD: I was very into music in high school, JEB: Wow! Talk about self-taught! lege? And what was the name of the band? sitting around and listening and talking MD: Yup, I just kind of started playing MD: Williams College in Western Mas- about it with my friends. A lot of the hair without any real strong musical background sachusetts, and that band was called The metal bands came through Burlington in nor any particular talent. I was playing these Mules. And I’m still hoping that at one of our rapid succession during the mid-80s, like very dumbed down versions of recognizable reunions, we’ll be able to get it back togeth- Ratt and Twisted Sister, so we went to all songs, but the whole thing really spoke to er. I’ve tried a couple of times…. Maybe our those shows, which was really fun. By junior me and I was becoming just much more in- 30. year of high school, I was sort of gravitating terested in music all the time and feeling So then I went to law school at NYU and I more toward college radio, bands like REM, even more connected to music generally. I didn’t go in thinking about being in a band The Replacements and The Smiths. I used was also hanging around the college radio or anything. By happenstance, one of the to call WWPV, the St. Mike’s station, make station a lot and learning about both new first people I became friends with in my sec- requests, cue up a tape, and then sit there music and old stuff that was new to me. tion first year, Matt Galloway, was interested waiting to hit “record.” in starting a band. He had played in a band JEB: So how long did you play in that in college and was much more of a musi- JEB: Isn’t that funny? We used to wait for band? cian than me. We liked all the same music our favorite songs to come on and hit record MD: Well, that was college where I played at that time, so we were spending a lot of to make a mix tape-- kids don’t understand from sophomore year through the end of time going to all of the kind of indie rock these days! college. We got started by jumping into clubs clustered around NYU in the East Vil- MD: Exactly. And then it’s on a 90-minute an outdoor music fest sophomore year. We lage and Lower East Side. Great places like tape, so if you want to hear it, you have to only had about 5 songs, all covers, includ- Brownies, the original Knitting Factory, Mer- hunt and peck through the tape! So to con- ing the Stones’ Sympathy for the Devil. I was cury Lounge, Under Acme…. tinue, I didn’t have any clear plan to start so inept, I played almost the entire song, playing music until my freshman year of col- a full step too high, because I plopped my JEB: Why not? When in NYC…

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JEB: What was the most famous band Sat- urnine played with? MD: We had a very fun, very crowded East Coast tour where we were opening for a great band called Versus. Amaz-

Pursuits of Happiness ingly enough, Matt and I went to see Ver- sus when I was visiting NYC last December! We also did a show once in Boston, where we opened for Helium, a stellar band from Boston, and Scrawl, an amazing post-punk band from Columbus, Ohio. As I think about it, these bands all had women in prominent roles (Scrawl consisted of three women), which stands out, because the indie rock world at that time was still pretty male. MD: Right. So we were going to a lot of shows together and always talking about JEB: I’m from Columbus and sad to say music. Matt knew Jim Harwood, a drummer, I hadn’t heard of them…but I wasn’t very and had an apartment in Brooklyn where cool. he had the whole basement of the build- MD: They’re amazing. Actually, just a cou- ing, which we soundproofed. Then he met ple of weeks ago, I thought of them out of Jennifer Baron, a guitar player with compat- the blue, downloaded some albums and I’ve ible tastes, and the four of us formed a band been listening to them a lot lately. called Saturnine. It’s a word that means mel- ancholy. Matt saw it in an article and thought JEB: As historically a huge Throwing Mus- it worked for us. Our music was kind of con- es fan, I’ll have to check them out then for templative. Loud, but not hyper. Actual- sure. ly, our very first public performance was at MD: Definitely! While I was in Saturnine, a law school friend’s party--we called our- one of our favorite bands at the time was selves Learned Hand for that one! a band from Texas called Bedhead. We opened a show for them once and really JEB: Of course, a perfect law school band hit it off. One of the band’s two songwrit- name! ers (Matt Kadane; his brother Bubba is the MD: We switched to Saturnine after we other) was living in New York at the time, so got a gig at a club called Brownies in the Matt Gallaway, Matt Kadane and I started East Village on Avenue A and thought we Mike on the left at the hanging out a lot and playing together now should have a name that wasn’t so law ori- Whammy Bar with Anachronist. and again. Every time Bedhead would tour ented. They gave us a Monday night, to sort the east coast, Saturnine would open for of test us out. We did a good job getting our writers, and over time we really gelled as a them and supply amps and drums, because friends at law school and around the city to band and grew a lot as individual players. they were scattered around the country and turn out, so we had this huge crowd show up We started making records and touring and didn’t want to fly amps and gear all over the on a Monday night. We used to hand-make for a relatively unknown band had a really place. Bedhead eventually broke up and little paper fliers and hand them out—Jenni- good time. It helped that we were very easy the Kadanes started a new band called The fer had an awesome artistic flair for that. And to deal with. We were very functional and or- New Year, which I joined. It was amazing to she kept most of them! Anyway, the folks at ganized –we would show up when we were play music with those guys, since I admired Brownies were psyched that we packed the told and play without demands. It’s kind of them so much as songwriters. And they were place on a Monday. More importantly, they amazing thinking back to all the touring we a bit higher profile than Saturnine, so I got liked our music. They didn’t know us from did without a cell phone, using road atlases to travel to more places, play bigger venues a hole in the wall, but they liked us enough and pay phones! and play with some bigger bands. to start putting us on really good bills, usually with 3 or 4 more established indie rock JEB: Organizational skills definitely would JEB: And you were doing all this while you bands with compatible sounds which gave have been key then. So for Saturnine you were in law school? us a great chance to meet other bands and weren’t playing covers anymore? MD: Well, The New Year came about after make connections. MD: That’s right. We had a couple of cov- law school but Saturnine, yeah. ers but 95% were original songs. Matt was JEB: How often were you playing at the primary songwriter—he would bring JEB: Saturnine was all through law school Brownies while in law school? songs or parts he had written to practice, and you were able to actually go to class and MD: They were booking us pretty consis- and we would all work on it together, de- study for exams? tently, probably like every six weeks or so. veloping our own parts and changing things MD: Yes! And we managed to squeeze in a around. And there were a handful of songs tour during our winter break of my third year JEB: I think you are being modest about that developed spontaneously at practice. and we made two records during law school your ability then because you didn’t mention But probably for 90% of our own songs, the too. I was thinking I was lucky enough to be that you guys were that good. Sounds like core of the song was an idea that Matt had. at NYU law school, which pretty much means you had a following. He’s always been a super creative produc- if I do okay, I’m going to be fine, job wise. So MD: Well, people liked our music. I remain tive person—he’s published two outstand- rather than try for straight A’s (which I prob- proud of it and I think we were good song ing novels, in addition to his day job. ably wouldn’t have gotten anyway!), I decid-

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ed to put in the effort to do well enough and up and asked if they would be willing to give give myself time for music. Looking back, I’m me hourly work when I was around. And that really glad and grateful I was able to make worked out--whenever the band was home, that choice. I’d call them and say, I’m here for X amount of time and they’d kind of look around and JEB: And, on theme with this column, it see what they needed help with. So for a

Pursuits of Happiness enabled you to keep your sanity while you couple of years, that was my life. were in law school to be able to do something that you love at the same time. Did you JEB: Why would you ever stop?! find the breaks helped you focus more when MD: I know, right! Well, a couple of things you got to studying? happened. One, we had started touring at MD: Yes, I’m sure it kept me in a better the peak moment for the indie rock scene, a frame of mind than law school would have few years after bands like Nirvana had blown by itself. up. Major labels were pumping tons of money into small bands like ours (though not us, JEB: You were enjoying the music more specifically) which in turn was invigorating than the law? music scenes in smaller places. Our first cou- MD: When Matt and I were graduating ple tours, we tapped into that energy—play- from law school, the band was all set to ing to 100-200 people as an unknown band tour full-time, but I had done a summer as- in towns like Dayton, Ohio or Green Bay, sociate position at Proskauer Rose and had Wisconsin. But by our third tour, the labels an offer to return, so I was a little bit torn. had sort of moved on, crowds were shrink- I stewed on it for a while and realized that ing, venues were closing, and touring for a I’d have regrets if I let the band go, and I small band like us got a lot harder. Two, we didn’t think that was going to be true in the were getting older and needing money and opposite direction. Fortunately, Proskau- stability. So our respective work lives start- er was nice enough to give me a year and ed to pick up. I had teamed up with a part- said they’d hold a spot for me until the next ner named Jerry Bernstein at Wachtel, and I summer—like a rock clerkship! When the moved with him to a larger firm, Holland & deadline rolled around for me to get back Knight. Jerry and I had (and still have) a great to them, we were on the road couch surfing relationship. He was a true mentor, plus he’s from small show to smaller show. We were a longtime musician himself, he was really in Pensacola I think, after playing to maybe encouraging and supportive of my music. 12 people and sleeping in a VERY sketchy house with very questionable goings-on go- JEB: When did you move to Vermont? ing on. I felt like, again, I had plenty of time MD: I left the firm in 2002, taught at ahead for work and probably not as much Brooklyn Law School for two years and then time for odd, memorable experiences, so I moved to Montpelier. called the person at Proskauer and said, “I really appreciate your flexibility, but I’m go- JEB: When you were teaching full time, ing to keep doing this for a while.” were you still in a band? MD: Yes, both bands. And a small brag: JEB: So you really enjoyed the life of twice on the BLS campus, students who I sleeping on people’s floors and constantly didn’t know recognized me from the bands, touring? which was pretty awesome. MD: You know, yes, every single time where we had a bad show or a bad day, I JEB: Wow! Uber famous! would think if I weren’t doing this, I’d be MD: More importantly, both times I had a sitting in an office, probably feeling really witness! So I can prove it really happened! stressed out. And indeed, I had some years like that later! So I’m so grateful for all the JEB: I want to get to your present-day en- time I spent touring, especially as someone deavors, being a Vermont practicing attor- who didn’t grow up particularly musical—it ney and still having a band. So what was the always seemed like a surprising and awe- demise of Saturnine and The New Year, and some thing to be doing! then how did you get started up here? MD: When I moved up here Saturnine JEB: But financially? ended. We really relied on getting in a room MD: Basically, the first year after law together once a week to make our mu- school we toured on and off, coming back sic, and no one wanted to be a long-dis- for a couple of weeks at a time and we were tance band. Saying good-bye to them was making just enough to scrape by. I moved definitely one of the hardest things about into an apartment with a bunch of friends es- leaving New York. I’ve been able to con- sentially living in a corner of the place! I had tinue with The New Year because we’ve al- worked my first summer for a great small firm ways been a more centralized and episodic called Wachtel & Masyr (now Wachtel Miss- band—the Kadane brothers write the songs ry) and I had stayed friends with the people and send demos to Chris Brokaw (our drum- there. After our first long tour, I called them mer, but an absolute legend of a guitar play-

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er) and me, and the we’d get together every JEB: And it all started because your kids at the AG’s office, with young kids at home, so often for touring and recording. were friends. That’s how we’ve made so and couldn’t justify taking 3 months off for many of our connections, for sure. How a tour. JEB: I guess we skipped how you ended many kids do you have? up coming here. MD: We have two: 16 and 13. JEB: That makes sense. But it sounds like MD: I had mostly grown up in Vermont you’ve been able to have it all! You still do

Pursuits of Happiness and always wanted to move back. And my JEB: You’ve been in a full-time practice, in have several albums and you still get togeth- wife Kelly was on board because she loves it a band and raising two kids? er with your band. up here, and we didn’t want to either live in MD: Yeah well this band just fits into this MD: Yes, Anachronist is still a completely the suburbs of New York city and commute life, you know? We don’t play that many ongoing, but The New Year has gone into a or live in NYC proper but endure the [lack of] gigs. Before COVID we were probably play- dormant phase. We released a record a cou- work-life balance most law jobs there entail. ing four to six gigs a year. Keeping at that ple of years ago, but we haven’t toured for The first two years I was here, I clerked for kind of a mellow pace makes it thorough- quite a long time. Justice Skoglund and she, as you can imag- ly enjoyable. But we do get together every ine, was very supportive of the whole mu- other week. Anachronist now has 3 studio JEB: I can’t wait to come see a gig. I al- sic thing, as long as I was getting my work albums, so we always have new stuff in the most went to the Whammy Bar to see you a done. Then I went to the AG’s office and works. few months ago but life got in the way. Now they were extremely supportive and kind as with COVID who knows when you’re going well, letting me go off payroll a couple times JEB: Does the name have anything to do to be able to tour again. Right? to go on tour with The New Year. with your age combined with being in an in- MD: We actually played at the Whammy die band? Bar right before everything’s shut down. JEB: And then you started a Vermont MD: Ha! Not the intended effect, but band! there it is! JEB: I bet you are itching to get back out! MD: Yes, I started a band here with one of Perhaps a drive-in concert a la Grace Potter my best friends, Brian Clark, called Anach- JEB: I used to listen to Sonic Youth, Bob or one of those amazing zoom mixes. ronist. It’s great because it’s more like Sat- Mould, Galaxie 500, The Pixies, what have MD: I can’t imagine the technology that urnine in how it operates--we all live around you--bands like the ones referenced on your goes into those to make them sound good, here and get together every Wednesday page. But I feel like as I age, the heavy gui- so for now we are just hoping to get back night, so I have music built in as a regular tar can be a bit much, so the question is do out there soon. part of life again. I met Brian very shortly af- you think your style has mellowed over the ter moving here—we have kids around the years as sort of a natural progression of mu- JEB: Well, I’m excited that you took the same age who were in the same day care as sical taste with age or no? time to tell me about your bands, plural. I toddlers. He’s supremely talented and su- MD: I think it varies from person to per- was thinking one and didn’t even know premely modest, so for years we would talk son. I’ve seen a lot of friends for whom their you’re internationally famous. It was an hon- about music and while I was blabbing about style has mellowed, just like you said. But or to interview you. So back on theme, you touring and whatnot, Brian would say “yeah, that definitely hasn’t happened for me! I like agree that the music helped you with your I play a little guitar.” Years into our friend- to listen to a lot of different kinds of mu- balance through law school right on through ship, he played me some demos of some sic, but I probably listen to more loud, hard- to your busy private practice today. of his songs, which floored me.They were er music than I did at various points in the MD: Undoubtedly, it’s just a part of my life amazing, and very much in line with the stuff past. When you asked about big bands I’ve now. I can’t really imagine life without play- I like. He and I like a lot of the same mu- “opened for,” I forgot to mention that when ing music in some way. It would throw me sic, and at times his songwriting reminds me I did a tour with The New Year we played in way out of balance! of the other bands I’ve been in. The first in- a festival with, on a different stage and hours carnation of the band was Brian, Jay Ekis on before, but we technically played in a festi- JEB: Truly a Pursuit of Happiness. Thanks guitar and vocals, Phil Carr on drums, and val with Sonic Youth. And the big headlin- so much for your time. Want to drop some me. Phil is an amazing drummer and a joy er of that festival was Neil Young. Mind you, links here for your albums? to play with as a bass player. He’s extremely we played at like 4:00 p.m. on the smallest MD: Thank you so much for having me. musical and responds to stuff that’s going on stage at the festival, but still! And sure…. really naturally. JEB: Wow that’s so impressive! What fes- Saturnine: https://saturnine.bandcamp. JEB: Oh I know Jay! tival was this? com/ MD: Jay’s awesome! It was really fun to MD: It’s called Primavera. We played at The New Year: https://www.thenewyear. play with him. He left after a year or so, be- the original festival site in Barcelona about net/ cause he was getting much busier with his 10 or 12 years ago. It was incredible. The New Year, Mayday, on NPR: https:// own stuff. Right around the same time, our www.npr.org/2017/05/26/530139307/songs- friend Craig Jarvis—an esteemed member JEB: You are too modest. I didn’t realize we-love-the-new-year-mayday of the Vermont Bar!—who played classical you were internationally famous and going Anachronist: http://www.anachronist. guitar said he wanted to try being in a rock on world tours when we scheduled this in- band/ and roll band. Then Angela Paladino jumped terview. Was it just the one time you toured 7 Days review of Anachronist, Stay Late: in at some point after Craig had joined. She in Europe? https://www.sevendaysvt.com/vermont/ is an amazing vocalist and can play numer- MD: We went to Europe a few times. We anachronist-stay-late/Content?oid=30888145 ous instruments as well. The five of us had had a good friend in Italy, so we did an Italy ______a great run of several years and a couple re- tour that he arranged. We did that festival Do you want to nominate yourself or a fel- cordings. Two years ago, Craig moved to twice. We did a festival in England once and low VBA member to be interviewed for Pur- Hinesburg and couldn’t make the commute, the great thing about those gigs is the fes- suits of Happiness? Email me at jeb@vtbar. so we sadly said good-bye to him and we’ve tival pays all of your expenses like airfare. A org. soldiered on as a 4-piece since then. few we were invited for I couldn’t do as I was

14 THE VERMONT BAR JOURNAL • FALL 2020 www.vtbar.org

by Paul S. Gillies, Esq. RUMINATIONS Limitations of Law and History

Time runs out on most things. Bread has its official expiration date, followed by in- edible mold. Fruit and radioactive waste decay. Life has death. Library books become overdue after two weeks, and threat- en fines. Iron erodes. Faces and other body parts sag. Recess is over with the bell. In law, there are statutes of limitations; in equity, there is laches. There comes a time when it’s too late—to prosecute most crimes or with civil or equitable claims to raise your objection to something that’s happened to you. Once the period tolls, whatever was wrong or unjust is beyond challenge. Justice must be timely sought; late-claimed rights wither and die. You’ve slept on your rights, and you may never have heard the alarm. Limitations exist for practical reasons. If a party could bring a claim at any time, the courts would be filled with cases for which evidence would have been lost, memo- Vermont legislature has decided that some adopted a one-year statute of limitations ries polluted, stories enhanced by retell- crimes have no limits and others have lon- for most crimes, except capital crimes.8 ings, and resources wasted. If you could ger terms. Those without limits include Capital crimes had no limitations. It treated be prosecuted for a crime no matter how “aggravated sexual assault, aggravated rape as a capital crime, with a type of stat- many years had passed since the date of sexual assault of a child, sexual assault, ute of limitations. The crime could be pros- the offense, there is a risk there would be sexual exploitation of a minor as defined ecuted at any time, “provided that, in time more innocent people convicted, based in subsection 3258(c) of [Title 13], human of distress,” the victim “did make an out- on false testimony. Limitations play a role trafficking, aggravated human traffick- cry on the occasion.”9 in redemption. They shrive our sins and ing, murder, manslaughter, arson causing The first civil statute of limitations came crimes, our bad behavior, allowing a reset, death, and kidnapping.”1 These crimes can eight years later, in 1787, when Vermont a cleansing of history that need not come be prosecuted at any time, no matter how first established a six-year limit to the fil- back to haunt us. long a time since the offenses were coming of most actions. That year the 15-year Lately, the statues of Confederate gen- mitted. Forty years is the limit for prosecu- period to prove adverse possession and erals and of those who promoted slavery tion of lewd and lascivious conduct with or prescriptive use was adopted. That act sus- have come down hard, toppled by protest- against a child, maiming, sexual exploita- pended the limitation periods for minors ers. Columbus has been decapitated and tion of a child, and sexual abuse of a vul- under the age of 21, femes covert, those thrown into the river. Military bases, sports nerable adult.2 Eleven years is the limit for who were non compos mentis or in prison teams, and even the UVM library are be- arson and first degree aggravated assault.3 or beyond the seas. The clock would restart ing renamed, as a way of condemning rac- Prosecutions for lewd and lascivious con- itself for minors, after coming of age, and ism and other wrongs, as a form of expia- duct, sexual abuse of a vulnerable adult others if they recovered their mental cation or atonement. These judgments alter- under subsection 1379(a), grand larceny, pacity, were released from imprisonment, ing our view of people and events know robbery, burglary, embezzlement, forgery, or returned from overseas.10 no time limit, and there is no due process, bribery offenses, false claims, fraud under The general law of statutes of limitation no appeal, no hearing beyond the chant- 33 V.S.A. § 131(d), and felony tax offens- changed little over the years, but the ex- ing of slogans. The sins and crimes of men es made after six years from the commis- ceptions increased. Legislation or rules nar- and women found to be lacking in last- sion of the crime are unactionable.4 Most rowed or expanded the usual period. The ing respect are unforgivable and swift- all other felonies and misdemeanors have a crime of profane cursing or swearing in ly punished, justified by revisionist histori- statute of limitations of three years.5 Most 1821 had to be prosecuted within ten days cal thinking and the mores of the present. civil actions have a six-year statute of limi- of the incident or there could be no fine.11 Time never runs out on them. tations.6 The Human Rights Commission must bring Still, there needs to be some process, According to William Blackstone, the charges against the State within six months even with an inquisition and sanctions that purpose of statutes of limitation is “to pre- of the end of the conciliation period.12 The know no temporal bounds. serve the peace of the kingdom, and to Uniform Commercial Code provides a four- prevent those innumerable perjuries which year statute of limitations for suing for a Statutes of Limitations might ensue if a man were allowed to bring breach of a contract for the sale of cattle.13 an action for any purpose at any distance When a crime is a continuing offense, such The law sets limits on how long most of time.”7 as escape, the period of limitation of pros- crimes can be prosecuted, although the Back at the beginning, in 1779, Vermont ecution begins only upon retaking of the

16 THE VERMONT BAR JOURNAL • FALL 2020 www.vtbar.org Ruminations escapee into custody.14 Easements of ne- issue of a statute of limitations is waived if cessity which are not clearly observable on not raised as an affirmative defense.22 But the ground are abandoned after 40 years if raised at trial, when court gives the par- if not renewed on the record, according to ties the opportunity to file written argu- the Marketable Title Act.15 ment on the issue, the claim has been al- The most dramatic change in the law of lowed to proceed.23 Even if not raised in statutes of limitation occurred in 1989, in a the pleadings, the trial court is authorized pair of cases that abandoned the tradition- to decide sua sponte that a statute of limi- al firm deadlines set in legislation. The high tations barred recovery of damages on a court decided the commencement date for motor vehicle retail installment sales con- calculating the limitation of civil actions was tract, and dismiss the case.24 the date of discovery, not necessarily the This year, late in the session, the legis- date of the act that had previously started lature passed an act providing that “[a]ll the stop clock. For some years the court statutes of limitations or statutes of repose had resisted adopting a discovery rule, but for commencing a civil action in Vermont in Lillicrap v. Martin and University of Ver- that would otherwise expire during the dumont v. W.R. Grace and Company, the Su- ration of any state of emergency declared preme Court finally reversed itself. The pe- by the Governor arising from the spread of riod of limitation begins when “the plain- Covid-19 are tolled until 60 days after the tiff has or should have discovered both the Governor terminates the state of emergen- injury and the fact that it may have been cy….”25 caused by the defendant’s negligence or In the civil law, there are limitations that other breach of duty.”16 The expansion come with the conduct of the case. Failing of this rule to cover any civil action was a to answer can amount to default.26 Failing bold move on the part of the high court, al- to provide evidence in discovery prevents though proving or arguing against discov- its use at trial. There’s a one year limit on erability is not an easy task in most cases. challenging a judgment for mistake, inad- There is a story behind every statute. vertence, surprise, or excusable neglect; There is a one-year statute of limitations newly-discovered evidence that was undis- for recovery for skiing injuries, adopted af- coverable in time to move for a new trial; or ter the Supreme Court’s ruling in Sunday fraud, intrinsic or extrinsic, misrepresenta- v. Stratton Corp. (1978), in which a novice tion, or other misconduct by opposing par- skier was injured after an accident caused ties.27 In the criminal law, there is the con- by loose snow on a novice trail. The case stitutional obligation for a speedy public shocked the ski industry and threatened trial.28 that large part of the Vermont economy, All the various moving parts of the law and the legislature’s decision to reduce the contain some restrictions, penalties, or statutory period for filing complaints was a risks associated with pleading, discovery, direct response to the decision.17 the trial, and the appeal, and before the Attempts to expand the general statute Supreme Court with deadlines for filings. of limitations, however, are difficult. The There are so many intrinsic and extrinsic high court has ruled that exemption for stops and catches, it’s a wonder as many lands belonging to the state from the six- cases make it to judgment. year limit does not apply to suits claiming injury to the State’s groundwater, which are Appeals barred by the general six-year statute of limitations. This is because the statute nev- An appeal deadline is as ruthless and un- er intended that groundwater be included forgiving as a statute of limitation. File now as an interest in land. The statute, enacted or accept what has happened is the rule. in 1785, was adopted to provide a remedy The old Justice of the Peace courts had a for settlers who had improved land without two-hour appeal deadline.29 Today, thirty legal title, who would be compensated for days is the default, unless a statute sets a their investments prior to any forfeiture by shorter or longer deadline. the true title holder.18 Appeals from local and state govern- Parties fight over when the period be- ment routinely require something in writing gins. The court has recently held that a filed with the proper office in 30 days after cause of unjust enrichment between un- decisions are made.30 Decisions of the zon- married inhabitants does not accrue until ing administrator must be appealed within the domestic partnership ends, because 15 days.31 only once the relationship ends is there There is an 18-month statute of limita- any loss or injury.19 Incarceration does not tions for claims against the State, before it toll the statute unless the plaintiff is impris- is too late to file in Small Claims Court. No oned at the time the cause of action ac- claim can be filed before the claimant has crues.20 In cases of fraudulent concealment, exhausted any administrative grievance the fraud must occur before the cause of procedure. There’s a 90-day deadline for action accrues.21 decisions to be made by departments or A rule of civil procedure explains that the agencies on such claims, and if none is is- www.vtbar.org THE VERMONT BAR JOURNAL • FALL 2020 17 sued by that time the grievance is deemed property—particularly in the face of public preserve the claim in the indefinite future. granted.32 policy determinations that conflict with the “Otherwise, parties in positions similar to The idea that government’s failure to assumptions in question.”36 VEC could always wait and see how the Commentary of Littleton

Ruminations act in a timely manner should result in the In his , Sir Ed- case developed, and then make procedur- grant of a claim or appeal is a feature of ward Coke explained that laches is “an old al claims as ‘trump cards.’”41 several statutes. When zoning administra- French word for slacknesses or negligence, The Supreme Court didn’t find laches in tors take more than 30 days to rule on per- or not doing.”37 As with the statute of limi- the appeal of the fight over Burlington’s mit applications, the permits are granted tation, laches is an affirmative equitable de- waterfront, where a railroad’s claim to own by operation of law.33 If the zoning board fense.38 Plaintiffs’ attorneys routinely add filled land was rebuffed. The railroad had or development review board takes more it to the list, along with statute of limita- argued that “prerevolutionary public trust than 45 days to render a decision on an ap- tions. It is frequently not used beyond the doctrine” had passed its due date, but the peal after the close of evidence, a condi- answer. court was unpersuaded.42 tional use permit, or a subdivision, it too is Laches once had more clout than it does Equity brings other stops. There are deemed approved.34 State permits are not today, when law and equity were separate claim and issue preclusion, barring not only treated that way in the law. systems. Laches is tough. Most Vermont de- issues actually litigated but those which cisions seem to hesitate even discussing it. should have been raised.43 Equitable es- Laches On appeal, the deference to the trial court toppel plays on the same team, preventing is a steeper hurdle to overcome.39 The evi- a party from “asserting rights which may Laches is to equity what statutes of limi- dence supporting the defense must show have existed against another party who in tation are to law, except there are funda- prejudice, actual or implied, resulting from good faith has changed” position in reli- mental differences. Laches has no time the delay, making it inequitable to enforce ance on earlier representations.44 Success limit. It requires proof of substantial mer- the right.40 Laches claimed as a shorter pe- in that claim is rare. it, and is more likely to be denied as a de- riod than a statute of limitations is bound The law and equity favor repose. Time fense to a claim than granted in Vermont. to fail. It’s where there is no applicable stat- passes, parties don’t act, without excuse, The purpose of laches is to forbid one to ute where laches can work. and the right to make a claim or defense speak against his own act, representations In 1986, a utility company wrote the Vil- is lost. or commitments to the injury of one to lage of Derby Line that it reserved the right whom they were directed and who reason- to challenge the village’s legal ability to Death as a Limitation ably relied thereon.35 Justice John Dool- condemn property of the electric coopera- ey has written, “Laches is not an elixir that tive. In 1994 it raised the issue before the Death terminates criminal charges. automatically relieves landowners of the Public Service Board. On Appeal the Su- There’s no point in pursuing the accused effects of any erroneous assumptions they preme Court found this supported a find- beyond the veil. Under the common law, may make as they use and develop their ing of laches. This ‘reservation’ could not

18 THE VERMONT BAR JOURNAL • FALL 2020 www.vtbar.org Ruminations in civil cases, when a party to a suit sound- and sound levels, charming or irritating, ing in defamation, malicious prosecution, signaling when the time is up. The law’s false imprisonment, or invasion of privacy deadlines come without such alarms, other died, the claims became null and void.45 than the shrieks and bellows that accom- In Vermont, statutes have largely changed pany the discovery that the end has arrived this rule, but the principle remains: unless or worse, past. The recent rule changes, al- a statute alters the common law, death lowing electronic filing up to midnight of usually means the end of civil litigation. the day things are due has saved many an In 1844, Chief Judge Charles K. Williams appeal and many a panic attack.54 But time ruled that a suit against a bank director’s creeps up on us, when we’re not paying at- bond does not survive his death. He reiter- tention. ated that only actions expressly exempted by statute from the common law survive.46 History Death of a party can terminate civil actions pending at the time of death in Fam- History is always vulnerable. There are ily Court. The Vermont Supreme Court has facts, but how we regard them is not lim- ruled that a death of a party during the ited by time. Every generation rewrites its nisi period abates the divorce, although it past, and often condemns the traditional doesn’t nullify the parties’ agreement di- conclusions about important persons and viding the marital property, as that con- events made by its predecessors. Time re- tract would be enforceable independently veals prejudices that color how we treat of the divorce order.47 Maintenance awards history. in divorce end with the death of the ob- First came the pandemic, then the height- ligor.48 The death of a principal automati- ened awareness of the killing of George cally revokes a power of attorney given by Floyd and others, and marches and dem- the principal.49 onstrations, and the pulling down (or the By statute, executors or administrators official removal) of statues. Marble, gran- may commence, prosecute, or defend “ac- ite, and bronze statuary erected to Con- tions which survive to the executor or ad- federal Generals of the Civil War, at a time ministrator and are necessary for the re- when their reputations were honored in covery and protection of the property or the southern states were particular targets. rights of the deceased and may prosecute The statue of Theodore Roosevelt with a or defend the actions commenced in the Black man and an Indian man walking on lifetime of the deceased,” in the name of either side of his horse is gone from front the deceased.50 Actions for the recovery of of the New York Museum of Natural Histo- damages for a bodily hurt or injury, occa- ry. Columbus has suffered rough treatment sioned to the plaintiff by the act or default by demonstrators. Andrew Jackson’s stat- of the defendant, if either party dies dur- ue on a rearing horse could not be budged, ing the pendency of the action, also sur- even though only the back legs hold it up, vive.51 These actions may be commenced because of a set of iron bars cast into the and prosecuted by or against the execu- bronze legs and trunk. But it might come tor or administrator, whether commenced down in time, if we are to punish all slave- in the decedent’s lifetime or after death.52 holders, all racists or other terrible charac- Violations of the Consumer Fraud Act ters in the long drama of history. and Act 250 survive the death of the devel- History is always open for reinterpreta- oper. In a case involving the violation of a tion, as new evidence arises or new chal- permit, the court substituted the develop- lenges to conventional wisdom come into er’s wife (executrix and distributee of de- fashion. That does not make the study of veloper’s estate) for her husband after his history unreliable. No science is so firm in death. Because the survival act was reme- its conclusions that resists rethinking. The dial in nature, the court looked past the revisionists refine (or upend) what we’ve al- limitations of the survival statute to justify ways accepted as true. continuing the case, even though the dam- One recent example is The Rebel and ages may be called penalties.53 the Tory, the new history by John J. Duffy, There are many ways to skid off the run- H. Nicholas Muller III, and Gary Shattuck. way of our lives because of how long we Their research into early New York court re- waited or the mistakes we’ve made along cords on the legal fights in the 1760s and the way. The stops are cold and hard; they 1770s over land titles proves that the tradi- show no sympathy for the valid claims that tional view of Vermont’s origins that relied are lost, the crimes that go unprosecuted. on what Ethan Allen said he did when he These are limits imposed by the law. Then returned from Albany was plainly wrong. there are the limits we impose upon our- The courts weren’t as partisan as Vermont selves. The egg timer, the microwave, the historians had held, or as committed to alarm clock, the Echo Dot (“Alexa, 10 min- driving settlers off their land. The failure of ute stop watch!”)—we can set limits, and the Vermonters’ claims belonged to Ethan when they are ripened, there’s a sound—a Allen himself, whose negligence in not pro- bing, a chime, a buzzer, in relative rhythms viding the necessary certified copies of es- www.vtbar.org THE VERMONT BAR JOURNAL • FALL 2020 19 sential documents (including copies of the was proof of what was told, beyond the zecki, Fisher’s name was struck from the New Hampshire titles) in time for the trials, words of their predecessors. He wrote, library award after evidence was present- left the court no alternative but to favor the “Critical statements and judgments about ed to the board of her writings disparag- New Yorker patent holders’ claims.

Ruminations events, movements and individuals in Ver- ing American Indians and French Canadi- When the first histories of Vermont were mont’s early heritage passed from one ans. The board also heard testimony from written, the myth became ‘fact.’ Historians generation to the next virtually unaltered, those who argued Fisher’s connections to from Samuel Williams to Walter Hill Crock- having accepted them as the foundation of eugenics were slim, and the final version of ett consequently wrote and “sustain[ed] their discussions of the Vermont of follow- the resolution contained no reference to it, the satisfying characterization of a Ver- ing years.”58 instead concluding that her name was “no mont David confronting and defeating a New sights into old myths are often re- longer relevant to today’s young people.”61 New York Goliath; of freedom-loving dem- freshing as an academic exercise. When Guy Bailey was UVM’s President from ocrats resisting autocratic New York tyrants it comes to pulling down statues, how- 1919 to 1940. He was Vermont Secretary skillfully manipulating a biased legal sys- ever, the process is rougher. This process of State from 1908-1917. As President tem.”55 Historians were complicit in repeat- doesn’t wait for scholarly analyses. The of- he supported the work of Professor Hen- ing the myth. Samuel Williams relied on Ira fensive object must be taken down, and ry Perkins, whose work included a chal- Allen for details of his first history of Ver- sometimes vandalized, to prove the depth lenge to Vermont couples to have chil- mont (1794).56 In letters to Allen, Williams of the feelings of the actors. dren “in sufficient numbers to keep up to revealed he was not above applying a lit- When there is deliberation, it often be- par the ‘good old Vermont stock.’” Per- tle cosmetic on the face of the founders. comes confused and complicated. Con- kins’ inspired Commission on Country Life, “I have inserted every thing that you men- sider two recent decisions, made after through its principal publication Rural Ver- tioned to me, and I believe it now stands hearings. The Vermont Board of Libraries mont: A Program for the Future (1931), in a light that cannot be construed unfa- changed the name of the Dorothy Can- supported practices to prevent the mar- vorable to any person who is concerned field Fisher Award. Guy Bailey’s name was riage and reproduction of “feeble-minded in it, and by the british in Canada or else- removed from the front of UVM. Eugen- persons.”62 Nearly 80 years after his death, where.”57 His candor condemns Williams ics was the culprit in both cases. Both Fish- Guy Bailey became the subject of embar- and leaves questions that undermine reli- er and Bailey supported the movement to rassment to the university, and now only ance on his story. sterilize what were called “dependent, de- the name of a generous donor remains on In a 1978, J. Kevin Graffagnino wrote an linquent, and deficient families.”59 the façade of the library. article tracing the major Vermont historians Dorothy Canfield Fisher was regard- If Bailey and Fisher are rejected, what from Williams to the present. He showed ed as one of Vermont’s great writers. Her should we do with Oliver Wendell Holmes, how often the authors relied on previous Vermont Tradition is a classic.60 According Jr., who is remembered for so many impor- works, without researching whether there to a Vermont Digger article by Luke Zar- tant opinions, but who also wrote, “Three

20 THE VERMONT BAR JOURNAL • FALL 2020 www.vtbar.org Ruminations generations of imbeciles are enough.” In pendent, and have certain natural, inher- his majority decision authorizing steriliza- ent, and unalienable rights, amongst which tion, he explained, are the enjoying and defending life and liberty, acquiring, possessing and protect- We have seen more than once that ing property, and pursuing and obtaining the public welfare may call upon the happiness and safety.” Excised from the best citizens for their lives. It would be wording adopted in 1777 are the words strange if it could not call upon those at the tail end of the above, which read, who already sap the strength of the “therefore no person born in this coun- State for these lesser sacrifices, often ty, or brought from over sea, ought to be not felt to be such by those concerned, holden by law, to serve any person as a ser- to prevent our being swamped with vant, slave or apprentice, after arriving to incompetence. It is better for all the the age of twenty-one years, unless bound world, if instead of waiting to execute by the person’s own consent, after arriving degenerate offspring for crime, or to to such age, or bound by law for the pay- let them starve for their imbecility, so- ment of debts, damages, fines, cost, or the ciety can prevent those who are mani- like.” Testimony before the legislature pro- festly unfit from continuing their kind. moting the amendment focused on the be- The principle that sustains compul- lief that the article actually authorized slav- sory vaccination is broad enough to ery.67 cover cutting the Fallopian tubes.63 What’s interesting about the proposal is the sensitivity of the movers of the amend- Where should this stop? Vermont Su- ment to the wording of the article, which preme Court Judge Stephen Jacob owned had remained essentially in place without a slave named Dinah. While he is heralded controversy for 243 years. for his defense of a claim by the Selectmen of Windsor to pay for her maintenance, af- Statues of Limitation ter she became a pauper, shielding himself by the Vermont Constitution’s express pro- There is no value in putting a limitation hibition against slavery, he was still a slave- on history. The very point of historical anal- owner.64 He bought Dinah at a slave auc- ysis is to enlighten, and it would be ridicu- tion. What punishment should he receive? lous to be bound to some former histori- Many Vermont officials and other citizens cal conclusion or honored writer because supported the return of slaves to Nigeria. too much time has passed since something They included Jonas Galusha, who had written became gospel. It isn’t asking too served as Governor 1809-1813 and 1815- much to insist that the judgments of the 1820; Cornelius Van Ness, who was Gov- present about the past that are based on ernor 1823-1826; Ezra Butler, Governor what we now believe is acceptable should 1826-1828; Samuel Prentiss, who served be done with greater caution. We need a on the Vermont Supreme Court, in the U.S. set of standards, and some attempt at due Senate, and as U.S. District Judge; Timothy process, ensuring a fair hearing before dis- Merrill, Supreme Court; and William Slade, interested decision-makers, rather than a Jr., Governor and Congressman. Vermont chant or a spray-painted slogan. abolitionists treated those favoring coloni- Unlike law, history is entirely retrospec- zation as racist, and so does history. How tive. You can’t be guilty of violating a stat- should our disgust with their position be ute that wasn’t in place when you com- memorialized?65 mitted the act it condemns. Realizing this, The possible candidates for purging are there ought to be some consideration giv- part of an ever-expanding list. The work en to the context of those acts. We should ahead, if every objectionable thought, pause before we sentence people for hold- word, or deed is punished, will take gen- ing opinions we now find disagreeable, erations. In that time, it is possible that the as if they should have known better. Pre- arc of history will bend in a different direc- sentism is just wrong. tion, and the actions taken this year seen as We ought to be sure of our history, rec- further indication of our own time’s preju- ognizing that what we believe today may dices. be rejected in the years to come. We must To what end is the sanitizing of the past? never forget that not all historians are cor- Is it for our own consciences that we seek rect in every detail, or even honest in re- to punish the reputations of no-longer- porting what they have found. The truths righteous citizens?66 of history are largely provisional. We need to sort out just how severe to be A Constitutional Amendment with the dead respondents we seek to hold liable for their sins and opinions. Washing- One of the proposed constitutional ton was a slave-owner. He was more than amendments adopted in this legislative that, of course, but should the slave-own- session is to alter Article 1 to read, “That ing part of his biography outweigh his oth- all persons are born equally free and inde- er accomplishments, enough to order the www.vtbar.org THE VERMONT BAR JOURNAL • FALL 2020 2 1 removal of the Washington Monument? (2018). phy,” 46 Vermont History No. 2, 77-99 (Spring 16 What about people who believed some- Lillicrap v. Martin, 156 Vt. 165, 176, 591 A.2d 1978). 41, 46 (1989); University of Vermont v. W.R. 59 Rural Vermont: A Program for the Future thing now regarded with horror and then Grace and Company, 152 Vt. 287, 290, 565 A.2d (1931); https://www.uvm.edu/uvmnews/news/ changed their minds? Suppose Guy Bai- Ruminations 1354, 1357 (1989). uvm-trustees-approve-removal-baileys-name- ley later recanted his support of eugenics 17 Sunday v. Stratton Corp., 136 Vt. 293, 390 bailey/howe-library; “We reached our recom- and persuaded the legislature to repeal A.2d 398 (1978). mendation based primarily on the fact that Bai- 18 State v. Atlantic Richfield Co., the sterilization law. Could his name be re- 202 Vt. 212, 148 ley’s active involvement as president of the Uni- A.2d 559 (2016); 12 V.S.A. § 462f. versity in supporting and promoting the Eugen- tained on the library wall? 19 McLaren v. Gabel, 2020 VT 8, ¶ 36. ics Survey of Vermont is fundamentally at odds We might adopt a bill of rights for dead 20 12 V.S.A. § 511(a). with the University’s mission. We also considered people. It would guarantee due process to 21 12 V.S.A. § 555; Jadallah v. Town of Fairfax, Bailey’s mismanagement of University financial them, the right to a fair hearing before a 207 Vt. 413, 186 A.3d 1111 (2018). resources,” said trustee and committee chair 22 V.R.C.P. 8(c). Ron Lumbra. disinterested decision-maker. It would re- 23 DBI/Coinvestor Fund III, LLC v. Cowles, not re- 60 Dorothy Canfield Fisher, Vermont Tradition: quire all charges be supported by verifi- ported, December 2, 2019. The Biography of an Outlook on Life (Boston: able facts. The dead would be entitled to 24 DaimlerChrysler Services North America, LLC Little, Brown & Co., 1953). representation. They would not be guar- v. Ouimette, 175 Vt. 316, 175 A.2d 38 (2003). 61 https://vtdigger.org/2019/03/31/15-months- 25 anteed a speedy trial, but at least they “An relating to the emergency judicial re- unanimous-vote-still-no-change-book-award- sponse to the COVID-19 public health emergen- name/. would have an opportunity to be heard be- cy,” No. 95, Laws of 2019-2020. 62 Two Hundred Vermonters, Rural Vermont A fore any judgment was rendered. In keep- 26 V.R.C.P. 55. Program for the Future (Burlington, Vt.: The Ver- ing with history’s lack of any limitations, the 27 V.R.C.P. 60(b). mont Commission on Country Life, 1931), 294- 28 dead would have a right to a new hearing Vt.Const. Chap.I, Art.10; State v. Brillon, 129 296. U.S. 81, 129 S.Ct. 1283, 173 L.Ed2d 231 (2009). 63 Buck v. Bell, 274 U.S. 200, 207, 47 S.Ct. 584, at any time, without having to prove excus- 29 Vermont Statutes Revision of 1947 (Montpe- 585 (1927). able neglect or defend against accusations lier, Vt.: Secretary of State, 1948), § 1507. 64 Selectmen of Windsor v. Jacob, 2 Tyl. 192 of claim or issue preclusion. No judgment 30 3 V.S.A. § 815(d); V.R.C.P. 74 & 75; 24 V.S.A. § (1802). would be final. The dead can never sleep 4447. 65 Abraham Lincoln also once embraced coloni- 31 on their rights. 24 V.S.A. § 4465. zation as a remedy for slavery, both before the 32 32 V.S.A. § 932(b). Civil War and as late as 1863. Phillip W. Mag- ______33 24 V.S.A. § 4448(d). ness and Sebastian N. Page, Colonization After Paul S. Gillies, Esq., is a partner in the 34 24 V.S.A. § 4464(b)(1). Emancipation: Lincoln and the Movement for Montpelier firm of Tarrant, Gillies & Rich- 35 Dutch Hill Inn, Inc. v. Patten, 131 Vt. 187, 193, Black Resettlement (Columbia, Mo., University ardson and is a regular contributor to the 303 A.2d 811, 815 (1973). of Missouri Press, 2011). 36 Chittenden v. Waterbury Center Community 66 Vermont Bar Journal. A collection of his One answer might be the creation of a Ver- Church, Inc., 168 Vt. 478, 494, 726 A.2d 20, 31 mont Historical Reckoning Commission, to try columns has been published under the ti- (1998). the officials who held opinions that are no longer tle of Uncommon Law, Ancient Roads, and 37 J.H. Thomas, ed., Systematic Arrangement of courant and respectable, and issue formal find- Other Ruminations on Vermont Legal His- Lord Coke’s First Institute of the Laws of England ings condemning the memory of these former tory by the Vermont Historical Society. Paul I (Philadephia: Alexander Towar, 1936), 143. worthies. 38 67 is also the author of V.R.C.P. 8(c). Imprisonment for debt was abolished in Ver- The Law of the Hills: A 39 Preston v. Chabot, 138 Vt. 170, 172, 412 A.2d mont in 1846, and the last 15 words of the sen- Judicial History of Vermont (© 2019, Ver- 930, 931 (1980) (observing that “a trial court’s tence became irrelevant that year. No one will mont Historical Society). determination on the issue of laches is a matter miss them, as they have no force or effect. But ______of much discretion”). the 40 words before them will be missed. The 40 Comings v. Powell 1 13 V.S.A. § 4501(a). The Vermont Supreme , 97 Vt. 286, 293, 122 A. only mention of abolishing slavery is among Wilder’s Ex’r v. Wilder Court has ruled that attorney misconduct prose- 591, 594 (1923); , 82 Vt. those words. A better change would be to re- cutions are not limited by the time that may have 123, 129, 72 A. 203 (1909). move everything after “apprentice,” so that the 41 Petition of Vermont Elec. Co-op., Inc. passed since the offensive conduct occurred. In , 165 Vt. article would read, “That all persons are born re McCarty, 194 Vt. 109, 75 A.2d 589 (2013). 634, 635, 687 A.2d 883, 885 (1994). equally free and independent, and have cer- 42 State v. Central Vermont Ry., 2 13 V.S.A. § 4501(c). 153 Vt. 337, 353, tain natural, inherent, and unalienable rights, 3 13 V.S.A. § 4501(d). 571 A.2d 1128, 1136 (1989). amongst which are the enjoying and defending 43 Berlin Convalescent Ctr., Inc. v. Stoneman 4 13 V.S.A. § 4501(b). , life and liberty, acquiring, possessing and pro- 5 13 V.S.A. § 4501(e). 159 Vt. 53, 56, 815 A.2d 141 (1992). tecting property, and pursuing and obtaining 44 Fisher v. Poole, 6 12 V.S.A. § 506. 142 Vt. 162, 168, 453 A.2d happiness and safety; therefore no person born 7 William Blackstone, Commentaries on the 408, 411 (1982). in this county, or brought from over sea, ought 45 Whitcomb’s Adm’r v. Cook Laws of England; in Four Books (Albany, N.Y.: , 38 Vt. 477 (1866). to be holden by law, to serve any person as a ser- 46 Treasurer of Vermont v. Raymond Banks & Company, 1902), 777. , 16 Vt. 364 vant, slave or apprentice.” 8 “An act for the limitation of prosecutions in (1844). 47 Estate of Lord v. Estate of Ladd diverse cases,” 12 February 1779, Laws of Ver- , 161 Vt. 270, mont 1779-1780, ed. Allen Soule, Vermont State 640 A.2d 29 (1994). 48 Justis v. Roy Papers XII (Montpelier, Vt.: Secretary of State, , 159 Vt. 240, 617 A.2d 148 (1992). 49 Davis v. Windsor Sav. Bank, 46 Vt. 728 (1874). 1964), 146. 50 9 14 V.S.A. § 1451. “An act for the prevention of rape,” ibid., 40. 51 10 14 V.S.A. § 1452. “An act for the limitation of actions,” March 52 10, 1787, Laws of Vermont 1785-1791, ed. John 14 V.S.A. § 1453, 53 State v. Therrien A. Williams, State Papers of Vermont XIV (Mont- , 161 Vt. 26, 32, 633 A.2d 272 (1993). pelier, Vt.: Secretary of State, 1966), 339-341. 54 11 V.R.C.P. 6. “An act for the punishment of certain inferi- 55 or crimes and misdemeanors,” November 15, John J. Duffy, H. Nicholas Muller III, and Gary The Rebel and the Tory 1821, Laws of Vermont of a Publick and Perma- G. Shattuck, (Montpelier, nent Nature (Windsor, Vt.: Gideon Ide, 1825), Vt.: Vermont Historical Society, 2020), 161. 56 The Natural and Civil Histo- 270. Samuel Williams, ry of Vermont 12 9 V.S.A. § 4554; Vermont Human Rights Com’n (Walpole, Ma.: Isaiah Thomas and v. State, Agency of Transportation David Carlisle, 1794). , 192 Vt. 552, 57 60 A. 702 (2012). Samuel Williams to Ira Allen, July 28, 1794, Ethan Allen and His Kin Corre- 13 9A V.S.A. § 2-725(1). John J. Duffy, spondence, 1772-1819 14 13 V.S.A. § 1501(b)(2); State v. Burns, 151 Vt. (Hanover, N.H.: Universi- ty Press of New England, Spring 1998), 423-424. 621, 151 A.2d 593 (1989). 58 15 Gray v. Trader, 209 Vt. 210, 204 A.3d 1117 J. Kevin Graffagnino, “The Vermont ‘Story’: Continuity and Change in Vermont Historiogra-

22 THE VERMONT BAR JOURNAL • FALL 2020 www.vtbar.org

by Brian Porto, Esq. WRITE ON Past Tense: The Legal Prose of Justice Robert Larrow

Introduction tion whether” or just “whether” for “the fundamentally sound at the paragraph lev- question as to whether,” and “under” or el as well as at the sentence level. Para- In the Winter 2019 issue, Paul Gillies in- “by” for “pursuant to.”8 Replace “the fact graphs should be less than a page long, troduced readers to the prose, politics, and that” with the word or words for which the and sentences should vary in length to in- public career of Robert Larrow, who served bulky idiom is a poor substitute. If the first ject an engaging rhythm into the writing, on the Vermont Superior Court from 1966 draft stated: “The fact that she had died but they should not exceed twenty-five until 1974 and on the Vermont Supreme spawned litigation over her will,” the sub- words.17 The character in the sentence Court from 1974 until 1981.1 He was the ject of the sentence is the decedent’s death. (e.g., Judge Jones, the defendant, or the last justice to serve on the Supreme Court The redrafted sentence should state: “The Ways and Means Committee) should be the after being elected by the General Assem- decedent’s death spawned litigation over subject, and the verb should describe what bly.2 Soon after Larrow’s election, Vermont her will.”9 the character did, does, or should do.18 The moved to its current system of choosing Lawyers should omit fancy words, too, author should use the active voice, follow- justices: gubernatorial nomination followed especially when simple ones will make the ing a subject-verb-object sequence that ex- by senate confirmation.3 point equally well (e.g., use instead of uti- plains who did what to whom.19 For exam- But Larrow’s service on the Vermont Su- lize, house instead of residence, pay in- ple, write that the Ways and Means Com- preme Court was more interesting than stead of remuneration). And they should mittee amended the tax code, not that the the circumstances by which he joined the reject intensifiers, such as “clearly” and tax code was amended by the Ways and Court. Paul Gillies, in the concluding para- “certainly,” which do not clarify the unclear; Means Committee.20 graph of his article, wrote: like the other word crutches that lawyers Last, but not least, effective legal writ- use, intensifiers add words, but not meaning steers clear of “nominalizations,” which Robert Larrow was a brilliant jurist. He ing, to a sentence.10 convert assertive verbs to hesitant nouns, wrote crisp, articulate, strong decisions, But clarity and brevity are not merely draining the punch and persuasiveness and he held strong opinions. Clearly his functions of simple words and concise sen- from legal writing. So “contribute,” do not political principles influenced his legal tences; they are also the happy results of “make a contribution”; “decide,” do not decisions, but they were not always re- a well-constructed legal document. Such “make a decision; and “indemnify” some- vealed in his writings. Still, he could a document “leads from the top”; the first one, do not “make a provision for indem- not hide his character behind his robe.4 paragraph identifies the key background nification.”21 facts, the issue to be decided, and the writ- Legal writing need not be dull, though. Drawing on those words, this article will er’s view about the proper resolution of the Judicious use of several rhetorical tech- examine Justice Larrow’s legacy as a le- case.11 The first paragraph of each section niques can help lawyers to produce docu- gal writer. Before assessing that legacy, should make clear the author’s conclusion ments that are not only clear and concise, though, one must identify the standard on about the subject of that section.12 Simi- but also interesting and persuasive. One which the assessment will be based. A brief larly, the first sentence in each paragraph such technique is vivid imagery—what discussion of effective legal writing follows. should summarize the author’s conclusion the ancient Greeks who invented rhetoric about the subject of that paragraph, mean- called energeia—which can enliven color- Effective Legal Writing: A Short Primer ing that each paragraph should proceed less language.22 For example, in a state- from the general to the specific, with the ment of facts in a drunk-driving case, a The “twin pillars” of effective nonfiction last sentence stating the most narrowly fo- prosecutor could write: “On his way out the writing—including legal writing—are clarity cused idea or information in the sentence.13 door, Smith staggered against a serving ta- and brevity.5 To achieve both goals, lawyers And the author should not “tread water” by ble, knocking a bowl to the floor.”23 But the should shun wordy, vacuous expressions using words that fail to advance the argu- following, more vivid description, would such as “it is agreed that” and “herein set ment, making a follow-up sentence neces- suggest intoxication more dramatically: forth,” which add words, but not meaning, sary.14 For example the first sentence be- “On his way out the door, Smith staggered to a sentence. 6 Similarly, lawyers should low is unnecessary. against a serving table, knocking a bowl of omit “It is significant that …, “It is impor- guacamole dip to the floor and splattering tant to remember that …, “It should be This court has had to deal with the is- guacamole on the white shag carpet.”24 noted that …,” and “It is well established sue of a child’s suit for parental consor- Like vivid imagery, “figures of speech” that …” from sentences because these ex- tium. In a recent case, this court has can add drama and emphasis to a written pressions not only add words without add- held that the child has no cause of ac- text. Among the most familiar figures of ing meaning, but sometimes obscure a sen- tion.15 speech are metaphors and similes. Rhe- tence’s intended meaning.7 torical cousins, they nevertheless differ in Clarity and brevity require the omission A better alternative is one sentence that that metaphors make implicit comparisons, of wordy idioms, too, such as “the fact states: “Recently, this court has held that a whereas similes use “like” or “as” to make that,” “despite the fact that,” “at this point child has no cause of action for loss of pa- explicit comparisons.25 To use a simple ex- in time,” “the question as to whether,” and rental consortium.”16 Careful editing is the ample, “Bob is a pit bull in court” is a meta- “pursuant to.” The writer should substi- key to paring this thought down from two phor because the comparison between Bob tute “although” for “despite the fact that,” sentences to one. and the pit bull is implicit, whereas “Bob “now” for “at this point in time,” “the ques- A well-constructed legal document is acts like a pit bull in court” is a simile be-

24 THE VERMONT BAR JOURNAL • FALL 2020 www.vtbar.org Write On cause it uses “like” to make the compari- Class Four to Class Three. The trial court, es, he identified the parties, observed that son explicit. concluding that the Town had used discrim- both entities ran gravel pits and sold grav- Unlike metaphors and similes, which en- inatory standards to classify the two roads, el, and noted that between 1972 and 1975, hance language by assigning unfamiliar ordered their reclassification to Class Three, the Town’s earnings from gravel sales had meanings to familiar words, other figures of requiring the Town to maintain them in the increased dramatically, whereas the Com- speech rearrange the order in which words winter. pany’s earnings had declined. Stating the are customarily used. One familiar exam- Larrow’s majority opinion provided this issue on appeal, he wrote, “In its action be- ple is “parallelism,” which features a simi- information and more within its first four low plaintiff sought injunctive relief against lar structure in a pair or a series of related paragraphs. Curiously, though, it waited operation of the gravel pit by the Town as words, phrases, or clauses.26 It fosters word until the fifth paragraph to state the issue a private business and the sale of gravel economy while achieving a pleasing ca- at hand: “whether the [property owners] therefrom other than to the Town.”39 Alter- dence that aids reader comprehension. An can get the Town to keep their roads open natively, his opening sentence should have example is: “Attorney Smith spent Thurs- in winter.”34 This arrangement conflicts stated, “Hinesburg Sand & Gravel appeals day speaking to a client, writing a memo, with the earlier suggestion to “lead from from the trial court’s denial of its claim for and attending an afternoon seminar.”27 the top” by stating the issue at hand in the injunctive relief against the Town’s opera- A close relative of parallelism is “antith- first paragraph35 and with the idea that the tion of a gravel pit as a business and sale of esis, which juxtaposes contrasting ideas, of- reader should know “within thirty seconds” gravel to buyers other than the Town itself.” ten in parallel structure.”28 The following the nature of the dispute.36 Still, Hinesburg Sand & Gravel showed sentence illustrates antithesis: “The patent To be sure, Justice Larrow could encap- that Larrow could be forceful and direct in system rewards those who can and do, not sulate an issue by using parallelism and an- his writing, even when using “the fact that.” those who can but don’t.”29 The clauses tithesis to good effect. For example, his He acknowledged that the Town’s sales, “those who can and do” and “those who Gilbert opinion stated, “In all important re- even to nonresidents, could be permissible can but don’t” exhibit antithesis because spects these highways are indistinguishable if “incidental” or “subordinate” to its main- they present a direct contrast by juxtapos- from others which the Town has elected to tenance of Town roads. But, he observed, ing a word and its opposite twice in quick repair, maintain, and keep open during the “[n]o amount of good faith rationaliza- succession. “The juxtaposition of oppo- winter, yet it has sought to avoid its obligation can gloss over the fact [that] the prin- sites makes the sentence above more mem- tion with respect to them.”37 But he could cipal activity at the Hinesburg pit is a pri- orable than if it merely stated that ‘the pat- also write an unwieldy sentence made more vate business operation by the town, in di- ent system rewards action.’”30 confusing by its designation of the parties rect competition with the plaintiff.”40 Using Thus, clarity and brevity are the key in- by their legal status instead of their names. vivid words and parallelism, he added that gredients of effective legal writing, but rhe- It states: “[t]here is nothing “incidental” about pro- torical techniques, used sparingly, can add cessing eight times its own requirements spice to ordinary prose, enhancing compre- While we might proceed by reference of gravel, selling it in tax-free competi- hension and persuasion. The remaining dis- to determine what damages, if any, tion with the plaintiff, and realizing there- cussion will consider the writings of Justice were sustained by appellees by rea- from a $30,000 annual profit.”41 The Court Larrow according to these criteria. son of the appellant’s failure to timely reversed the trial court’s judgment and re- brief its appeal, it seems apparent that manded for an order enjoining the Town’s Justice Larrow as a Writer those damages would be in the nature offending activities and for a rehearing on of winter maintenance on the high- damages. Majority Opinions ways in question, occasioned by fail- In State v. Woodmansee, a criminal case, Robert Larrow wrote more than 250 opin- ure, if any, of the appellant to comply Larrow got right to the point in the open- ions in his seven years on the Court.31 He with the provisions of the interim order ing paragraph, stating, “Appellant Wood- often wrote majority opinions about work- at the trial level.38 mansee was charged below with violation ers’ compensation, municipal law—includ- of 13 V.S.A. s. 5, by assisting one Frank Be- ing zoning—and unemployment compen- A better strategy would have been to keep rard to avoid arrest and punishment for the sation, reflecting his professional back- the sentence under twenty-five words and crime of murder.”42 Later, Larrow provided ground, especially his nineteen years as the refer to the Appellees as “the property a clear, fairly concise statement of the perti- City Attorney for Burlington.32 Gilbert v. owners.” Writing issues aside, the Gilbert nent law, writing: Town of Brookfield illustrates the strengths Court found for the property owners and and the weaknesses of Justice Larrow’s remanded for a determination of damages. This Court has long adhered to the writing.33 Three Brookfield residents, who In Hinesburg Sand & Gravel Co. v. Town view that where evidence of guilt is en- owned property on two highways, peti- of Hinesburg, Larrow waited until the sev- tirely circumstantial the circumstances tioned the Orange Superior Court to re- enth sentence of his opinion to identify proved must exclude every reasonable quire the Town to reclassify the roads from the issue at hand. In the previous sentenc- hypothesis except the one that the de-

WANTED: LEGAL FICTION Fancy yourself a fiction writer? The next Grisham? The Vermont Bar Journal is not just for scholarly legal dissertations! Call it a fiction contest or an active solicitation for your works of fiction, either way, if we love it, we may print it! Submit your brief works of legal fiction (6,000 words or less) to [email protected]. Our next deadline is December 15, 2020. www.vtbar.org THE VERMONT BAR JOURNAL • FALL 2020 2 5 fendant is guilty. And this conclusion case, the skier assumes “not the risk of in- or an impasse in bargaining. 63 The State cannot be reached by basing one injury, but the use of reasonable care on the moved to set that order aside and for dis- 53

Write On ference from established fact upon an- part of the [ski operator].” Because Strat- missal of the complaint, but the trial court other inference. Under these tests the ton’s grooming did not live up to its adver- dismissed the State’s motion, and the State evidence was indeed sparse, and can- tisements of smooth, easy novice trails, the appealed.64 not support the verdict.43 Court affirmed the trial court’s judgment for The Vermont Supreme Court held that Mr. Sunday.54 the Board exceeded its authority by set- Thereafter, in applying the law to the Finally, in Palucci v. Dep’t. of Employment ting employment terms for an interim pe- facts, including the burning of the dece- Security,55 Larrow again wrote clearly, sim- riod and that the termination of bargaining dent’s car, Larrow noted: ply, and effectively. Ms. Palucci was an ex- is not an unfair labor practice because the perienced, but unemployed, waitress from governing statute recognizes it.65 Thus, the There was no evidence that Woodma- Rutland City to whom the Department de- Court dismissed the employees’ complaint. nsee burned the vehicle or was present nied unemployment benefits for “failure to In a two-paragraph dissent, Justice Lar- when it was burned. In fact, beyond apply for or accept suitable work when so row took issue with the second part of the testimony that the fire seemed to have directed, without just cause.”56 She had re- Court’s rationale. Using antithesis, he not- started in the passenger compartment, fused a referral to a waitressing job seven ed that [t]ermination is indeed recognized, there was no evidence of its cause. On miles from home because she lacked per- but termination in the manner here shown this state of the evidence, we agree sonal transportation and the employer reis not.”66 Because the State did not follow with [Woodmansee’s] contention that quired her to arrive at work early in the the proper interim process, administered there is at best established a conjectur- morning, when public transportation was under 3 V.S.A. s. 982(e) by the Secretary al theory of his activity, which falls far unavailable. The Department had conclud- of Administration, with gubernatorial ap- short of excluding every other reason- ed that Mendon, where the job was locat- proval, he observed, “the unilateral change able hypothesis.44 ed, was within the Rutland labor market made here in workweek and wages is an un- and that claimants who lived in that market fair labor practice.”67 “It is, in effect,” he Thus, Larrow concluded crisply that “[t]he should furnish their own transportation.57 added, “a refusal to bargain collectively, conviction must be set aside and the cause Larrow rejected that conclusion because and it cannot be justified under the statute remanded for a new trial.”45 the Department had extended Ms. Palucci’s as a matter of right, because the statuto- Larrow also got right to the point in Sun- “labor market area” beyond Rutland City, ry procedure was not followed.”68 Despite day v. Stratton Corporation, perhaps his to include Mendon, “without evidentiary Larrow’s brisk analysis, only Justice Franklin best known and most consequential deci- basis.”58 “Whatever the responsibility for Billings joined his dissent, so the dismissal sion because of its implications for the ski- furnishing transportation within the Rutland stood. ing industry, in Vermont and nationwide.46 City area,” he wrote, the [Department’s] Larrow filed a similarly brief and direct His opening sentence is clear and illumi- conclusion that claimant must supply it out- dissent in Simpson v. State Mutual Life As- nating, noting that Mr. Sunday, a young side that area is completely unsupport- surance Company of America, in which Ms. adult, was injured while skiing at Stratton. able.”59 Using parallelism and vivid imagery Simpson suffered hearing loss, earaches, The second sentence is powerful, stating again, he observed: “It cannot reasonably and discomfort in her jaw joint, consulted simply: “His injuries resulted in permanent be said that one drawing $27.00 per week a physician, and was referred to a dentist, quadriplegia.”47 The remainder of the first unemployment benefits must move, buy a who repositioned her jaw, using medica- paragraph explains that Sunday sued Strat- car, or hire a cab to reach a job outside the tion and oral prosthetic devices.69 She then ton for “negligently maintain[ing] its ski area, seven miles distant, paying $1.50 per sought reimbursement from the defendant trails and fail[ing] to give notice of hidden hour plus tips for work as a breakfast wait- insurer for the services of the doctor and dangers” and that he won a $1,500,000 ress.”60 The Court reversed and remanded the dentist and sued the insurer when it de- verdict, prompting Stratton’s appeal.48 for an award of benefits. nied her claim.70 The trial court found that Larrow’s reasoning in support of Mr. Sun- The discussion thus far has focused on the policy covered both treatments, and day is equally clear. Noting that ski areas majority opinions, in which Justice Larrow the Vermont Supreme Court affirmed.71 had greatly reduced the safety risks asso- may have felt constrained in his language The insurance policy denied coverage for ciated with alpine skiing, he turned on its by the need to build and maintain consen- dental care unless the care repaired dam- head Judge Cardozo’s famous aphorism sus among his colleagues.61 To gain a fuller age to natural teeth caused by an accident. about the assumption-of-risk doctrine— picture of his writing, the rest of the discus- At issue was whether the work of both the “the timorous should stay at home”49— sion will address two Larrow dissents and doctor and the dentist fit within that exclu- by countering that “the timorous no lon- one concurrence. sion.72 After reviewing the governing stat- ger need stay at home.”50 Indeed, ski areas ute, dictionary definitions of “dentist” and make a “concerted effort to attract [timo- Two Dissents and a Concurrence “dentistry,” and the parties’ contract, the rous skiers’] patronage and to provide nov- Justice Larrow’s dissents were infrequent Court concluded that the term “dental care ice trails suitable for their use.”51 Under and short, perhaps reflecting a wish to ex- and treatment” was ambiguous; hence, it these circumstances, if the small bush or press disagreement without calling undue should be construed in Ms. Simpson’s fa- clump of brush in which Mr. Sunday (a nov- attention to himself. In Vermont State Em- vor.73 Accordingly, the Court affirmed. ice skier) became entangled before he fell ployees Association, Inc. v. State, non-man- Exhibiting the dissenter’s freedom, Lar- was “a hidden danger,” known to Stratton agement-employees alleged unfair labor row indulged in a bit of sarcasm, writing, “I but not to him, Stratton had a duty to warn practices by the State, specifically, a refusal do not think that the phrase ‘dental care or him about it.52 to bargain collectively on guaranteed over- treatment’ became unclear or ambiguous Using antithesis, Larrow distinguished time-minimum-compensation under the until the opinion was written.”74 He add- between a fall by a skier not caused by a previous employment contract, now ex- ed, “I would give the phrase its plain, or- ski operator’s breach of duty, to which the pired.62 The Labor Relations Board (Board) dinary, and popular sense.”75 Consequent- assumption-of-risk doctrine applies, and ordered the parties to undertake good faith ly, he read the statutory definition of den- a fall caused by the ski area’s assumption bargaining and directed that the overtime tistry in 26 V.S.A. s. 721, which included and breach of a duty of care. In the latter pay be restored pending a new contract “correct[ing] malpositions [of the teeth] or

26 THE VERMONT BAR JOURNAL • FALL 2020 www.vtbar.org Write On of the jaws,” to encompass the treatment and slow to identify the issue at hand. He 33 134 Vt. 251, 356 A.2d 524 (1976). 34 Id. at 252, 356 A.2d at 525. Ms. Simpson received, which her insurance often overcame those tendencies, though, 35 76 BUCKLEY, THE LAWYER’S ESSENTIAL GUIDE policy excluded. to produce clear, concise, and direct opin- TO WRITING, supra note 11, at 6. Under these circumstances, Larrow con- ions. Occasionally, he even showed some 36 NOAH MESSING, THE ART OF ADVOCACY cluded, “I find no ambiguity or lack of clarity rhetorical flair in his prose. More - impor 193 (2013). in the policy exclusion”… “and would lim- tantly, his opinions reveal a jurist who un- 37 134 Vt. at 253, 356 A.2d at 526. 38 it recovery to the [medical doctor’s bill].”77 derstood the struggles of ordinary people Id. at 254, 356 A.2d at 526. 39 135 Vt. at 485, 380 A.2d at 65-66. But the Court required the insurer to reim- (e.g., Gilbert, Palucci, Vermont State Em- 40 Id. at 486, 380 A.2d at 66. burse Ms. Simpson for the dentist’s bill, too. ployees Ass’n.), and the importance of fair 41 Id. A single concurrence will complete our competition (Hinesburg Sand & Gravel Co.) 42 133 Vt. 449, 452, 344 A.2d 26, 28 (1975). In re 43 Id. at 455, 344 A.2d at 29. brief survey of Larrow opinions. In while respecting the rule of law, whether in 44 ETC Simp- Id., 344 A.2d at 29-30. , to which Larrow was specially assigned the context of statutory language ( 45 Id., 344 A.2d. at 30. after his retirement from the Court, a four- son) or constitutional rights (Woodmansee, 46 136 Vt. 293, 390 A.2d 398 (1978). teen-year-old boy appealed from a juve- ETC.). Any judge, whether a great literary 47 Id. at 297, 390 A.2d at 400. nile order that committed him to the custo- stylist or not, would be proud to leave that 48 Id. 49 dy of the Department of Corrections.78 The legacy. Murphy v. Steeplechase Amusement Co., 250 N.Y. 479, 483, 166 N.E. 173, 174 (1929). boy, who lived at a State-run group home in ______50 136 Vt. at 300, 390 A.2d at 402. Stowe, was suspected of breaking into two Brian Porto, Esq., is a Professor of Law 51 Id. residences located nearby.79 During ques- at Vermont Law School, where he teaches 52 Id. 53 tioning by a police officer, he made incrim- legal writing, sports law, and election law. Id. at 302, 390 A.2d at 403. 54 One commentary has noted that “[i]nsurers inating statements regarding the break-in, ______1 Ruminations: Justice Robert and ski mountain operators reacted to the Sun- which he later moved to suppress, saying Paul S. Gillies, Larrow and His Legacy, 45, no. 1 Vermont Bar day decision with “unmitigated panic,” predict- he was denied the right to consult with an Journal 14 (Winter 2019). ing “an avalanche of lawsuits.” Eric A. Feldman Assuming the Risk: Tort Law, “interested adult” before deciding whether 2 Id. and Alison Stein, Policy, and Politics on the Slippery Slopes to waive or assert his right to counsel and 3 Id. , 59 4 DePaul L. Rev. 259, 276 (2010). In the short run, privilege against self-incrimination.”80 The Id. 5 Brian Porto, Six Simple Steps to Improved ski areas experienced higher insurance premiums trial court denied the motion to suppress. Writing, 41, no. 2 Vermont Bar Journal 34, 34 in the wake of the Sunday decision, which they On appeal, the Court noted that it had (Summer 2015). passed along to their customers. Within a few previously approved the summoning of 6 Id. years, though, “most ski states had passed legis- 7 lation that imposed liability on skiers for the as- a juvenile’s representative before ques- Id. at 34-35. 8 sumed risk of skiing ….” Id. at 278. Id. 55 tioning and held that a minor accused of 9 135 Vt. 156, 376 A.2d 14 (1977). Id. 56 a crime could not waive counsel without 10 Reluctant Literati: Lawyers as Pro- Id. at 157, 376 A.2d at 15. Brian Porto, 57 having a guardian or a responsible advisor fessional Writers Id. , 39, no. 2 Vermont Bar journal 58 81 Id. at 158, 376 A.2d at 16. present. Then it added that although its 16, 18 (Summer 2013). 59 11 Id. at 16, citing MARIE BUCKLEY, THE LAW- Id. at 159, 376 A.2d at 17. prior cases applied only to waivers in court, 60 Id. YER’S ESSENTIAL GUIDE TO WRITING: PROV- 61 it now applied “the same principles … to EN TOOLS AND TECHNIQUES 6 (2011). Regarding the dissenter’s freedom, Justice 82 police interrogation of juvenile suspects.” 12 Porto, Reluctant Literati, supra note 10, at 18. Antonin Scalia noted in a 1994 lecture that writ- Moreover, the adult must be “not only gen- 13 Id. ing dissents was “fun” because “you just write See A Look Back: 14 Id. for yourself.” Antonin Scalia, erally interested in the welfare of the juve- 1994 William O. Douglas Lecture Series Tran- 15 HELENE S. SHAPO, MARILYN R. WALTER, & nile, but completely independent … of the script, 51 Gonzaga Law Review 598 (2016). 83 ELIZABETH FAJANS, WRITING AND ANALYSIS 62 prosecution ….” Because the director of th 134 Vt. 195, 357 A.2d 125 (1976). IN THE LAW 205 (6 ed., 2013). 63 the group home, although present, was nei- 16 Id. at 195-196, 357 A.2d at 126. Id. 64 17 Id. at 196, 357 A.2d at 126. ther independent of the prosecution nor at- Id. 65 18 Id. at 200, 357 A.2d at 129. Id. at 226. 66 tentive to the boy’s interests during ques- 19 Id. Id. at 230. 67 tioning, the trial court erred in denying the 20 Porto, Reluctant Literati, supra note 10, at 18. Id. 84 68 suppression motion. 21 Id. at 200-201, 357 A.2d at 129. Id. 69 Justice Larrow’s concurrence sought to 22 EDWARD P.J. CORBETT AND ROBERT J. 135 Vt. 554, 555, 382 A.2d 198, 199 (1977). 70 Id. expand the Court’s reasoning to hold that CONNORS, CLASSICAL RHETORIC FOR THE 71 th Id. MODERN STUDENT, 4 ed. 275 (1999). 72 the director of or a houseparent in a ju- 23 Id. LINDA H. EDWARDS, READINGS IN PERSUA- 73 venile home, when employed by or under SION: BRIEFS THAT CHANGED THE WORLD 70 Id. at 559, 382 A.2d at 201. contract with the State, cannot “possess 74 Id., 382 A.2d at 201. (2012). 75 24 Id. the independence and impartiality which Id. 76 85 25 MICHAEL R. SMITH, ADVANCED LEGAL Id. at 557, 382 A.2d at 200. the majority holding requires.” In a rare 77 Id. at 560, 382 A.2d at 202. WRITING: THEORIES AND STRATEGIES IN PER- 78 use of metaphor, he stated, “I am willing to nd 141 Vt. 375, 376, 449 A.2d 937, 938 (1982). SUASIVE WRITING 200 (2 ed. 2008). 79 invade the thicket into which we here ven- 26 Id. MICHAEL H. FROST, INTRODUCTION TO 80 ture. Fundamental fairness requires it.”86 CLASSICAL LEGAL RHETORIC: A LOST HERI- Id. at 377-378, 449 A.2d at 939. 81 Id. at 378, 449 A.2d at 939. Thus, despite joining the Court’s opinion, TAGE 463 (2005). 82 27 Rhetoric Revisited: A Second Look Id. Brian Porto, 83 Larrow would have barred employees of at How Rhetorical Techniques Improve Writing Id. at 379, 449 A.2d at 940. , 84 state-supervised group homes from playing 42, no. 2 Vermont Bar Journal 31, 31 (Summer Id. at 379-380, 449 A.2d at 940. the role of “interested adult” during police 85 Id. at 380, 449 A.2d at 940. 2016). 86 questioning of a juvenile. 28 Corbett and Connors, supra note 22, at 382- Id. 383. 29 Edwards, supra note 23, at 72. Conclusion 30 Brian Porto, Making It Sing: How Rhetorical Techniques Can Improve Writing, 40, no. 2 Ver- Lawyers would be wise to study Justice mont Bar Journal 36, 36 (Summer 2014). Larrow’s opinions. Like most of us, he was 31 Gillies, Ruminations, supra note 1, at 16. 32 not a gifted stylist, and he could be wordy Id. at 17. www.vtbar.org THE VERMONT BAR JOURNAL • FALL 2020 2 7 WHAT’S NEW Updates from the VBA

Despite the need once again to go virtual, we had over 200 people attend one or more of our Annual Meeting programs this year. One thing that is new, unfortunately, is no networking pictures! We are so looking forward to the day where we can see you all again in person. But we want to thank all of our loyal members, sponsors and presenters for supporting the VBA and partici- pating in this year’s virtual Annual Meeting, making it a success. Our small staff brought over 22 credits of CLE’s to our members via webinar for this year’s Annual Meeting. Survey results have been very positive, with two of our favorite comments being: (1) I really do believe that the topics and panelists you set up for this meeting were the best substantive topics I’ve ever attended at ANY conference or bar meeting to date and I’m more than happy to complete the questionnaire. That you could do this in the midst of a pandemic is stunning; Emily Davis, Justice Ruth Bader Ginsburg and Wendy Morgan. and (2) I also attended the ABA meeting. The VBA meeting was far better. Technol- ogy was better. Speaker’s use of technology was better. Well done VBA! Not to say that our meeting was tech-glitch free, but we were fortunate to have very little disrup- tion by the way of technological glitches. As we go forward this winter with more virtual programming such as Real Estate Law Day, Elder Law Day, Bankruptcy An- nual Holiday CLE, Family Law Series, Tech Week and the like, we wanted to respond to one common feedback theme about the meeting format. Some commented that the meetings with no participant list felt imper- sonal or lonely. Rest assured, if you attend a VBA virtual meeting and it looked like no one else was there, chances are that meant there were 50 or more participants, and we utilized the standard webinar format rather than the zoom meeting-type format. Just like any large national webinars you may have attended, with over 50 participants, in order to run the meeting smooth- ly, a webinar format is preferred, with the Anna Saxman, Justice Ruth Bader Ginsburg and Hon. Amy Davenport. focus being on the presenter. In a meeting setting, we’ve had participants repeat- edly unmute themselves to say things like “can you see me?” or to ask about their ruptions add personality and humor but al Section-Chair report, as we do every Fall own computer audio issues, unmute them- can’t be tolerated on a large scale in qual- edition, but before then, we will share these selves by mistake and interrupt the meet- ity educational programming. We did have pictures from Justice Ruth Bader Ginsburg’s ing with dogs barking or cell-phone calls or some requests for more break-out sessions visit to Vermont in 1998 to honor her pass- our favorite, start sharing their own screen and small group discussions, so we hope to ing. The VBA mourns the loss of a true leg- by mistake and steal the powerpoint pre- fulfil those wishes in our upcoming meet- end and champion of equal justice under sentation from the presenter! In meeting- ings. Thanks to everyone who provided the law. interruption bingo, our card is quite full, feedback—we hear you. and interruptions simply cannot be man- We’ll close out our What’s New section aged well with over 50 participants. Inter- with our VBA Annual Report and our Annu-

28 THE VERMONT BAR JOURNAL • FALL 2020 www.vtbar.org WHAT’S NEW 2019-2020 Sections and Divisions Annual Report

APPELLATE LAW SECTION seminars aimed at informing the legal, fi- continue to meet monthly, and formalized Chairs: Benjamin Battles and Bridget nancial and extended farm and agricultural our free public service program called Di- Asay, Esqs. communities on the advantages of Chapter vorce Options, on the third Thursday of ev- Amidst all of this year’s disruptions, ap- 12 as a tool in estate and succession plan- ery month, using zoom. This event informs pellate practice in Vermont has continued ning, tax accounting and debt structur- the public about their divorce options-liti- at a steady pace. Both the Vermont Su- ing. These seminars will be offered in two gation, mediation and Collaborative Di- preme Court and the U.S. Court of Appeals separate sessions – October 21, 2020, pri- vorce. Like everyone else this year, we had for the Second Circuit have been holding marily for attorneys and accounting pro- to pivot away from our in person plans for oral arguments remotely since April and fessionals; and November 6, 2020, focus- an Introductory training, but the Interna- appear likely to continue doing so for the ing more on the broader farm community tional Academy of Collaborative Profession- foreseeable future. Appellate practitioners and agencies servicing those communities. als is now offering numerous opportunities should also be aware that although the Ver- Both will be offered remotely. Another ses- for introductory trainings, on line. Please mont Supreme Court will not be using elec- sion is planned for March 26, 2021 and will check them out and do the training so you tronic filing for some time, the Court has al- a follow-up to the previous sessions as well can bring this innovative and healthy ap- ready begun to see appeals in cases from as a primer for bankruptcy attorneys who proach to divorce, separation, or probate trial courts where there is electronic filing. might want to learn more about a Chapter issues. Any dispute where the relationships Under recent amendments to the Vermont 12 practice. still matter, after the dispute is resolved. Rules of Appellate Procedure, parties in ap- Due to COVID-19, the bankruptcy bar We also held our 2nd Annual New Eng- peals taken from e-filing courts may not file will not be able to host its annual Holiday land Collaborative Project Event on ine on a printed case and instead must cite to the CLE in the usual fashion. Instead, there will September 25, 2020 on the topic: How to “appeal volume” created by the e-filing sys- be three separate days of seminars, offered Grow Your Collaborative Practice. Attor- tem. See V.R.A.P. 28(d)(3), 30(a), (b). In other over three weeks: December 3, December ney members who are interested in joining news, Appellate Section co-chair Ben Bat- 10, and December 17. Along with the yearly the CPVT practice group are encouraged to tles presented this past July as part of a CLE reviews of case law, ethics seminar, and the contact Nanci at [email protected]. program on the U.S. Supreme Court’s re- Court’s report, the bar will offer a seminar cent Bostock decision. The program, which on Small Business Subchapter V reorganiza- CRIMINAL LAW SECTION was moderated by attorney Steve Ellis, also tion. This is a new section to the Bankrupt- Chair: Katelyn Atwood, Esq. featured Vermont Supreme Court Justice cy Code and one that could greatly benefit There was a Criminal Law Year in Review Beth Robinson, and attorneys Emily Adams business adversely effected by COVID. presentation with presenters from both the and Lisa Rae. At the VBA’s annual meeting, prosecutorial and defense sides at the VBA Ben’s co-chair Bridget Asay will be present- BUSINESS ASSOCIATION LAW SECTION Annual Meeting, which had positive re- ing on the U.S. Supreme Court’s recent de- Chair: Tom Moody, Esq. views. cisions concerning the electoral college, It was an unusually quiet year for the along with attorneys Mike Donofrio, Jason Business Associations Section. After sever- DISPUTE RESOLUTION SECTION Harrow, Peter Langrock, and Carl Lisman. al years of active involvement with the Ver- Chairs: Neil Groberg and Richard Hecht, mont Legislature, there were no business- Esqs. BANKRUPTCY LAW SECTION law related bills that required the particu- Like the rest of the world, the Dispute Chairs: Nancy Geise and Donald Hayes, lar attention of the Business Associations Resolution Section confronted the world Esqs. Section, although some were related. Tom pandamic and strived to meet its chal- The bankruptcy bar section held its an- Moody and Jon Eggleston presented at the lenges. Members of the DR section quickly nual Holiday CLE on December 6, 2019 at VBA virtual Mid-Year Meeting on “Business seized the advantages of cyber technology the Killington Grand Hotel. It was a snowy, Law: Incentive Equity” which was well-re- to transition to “zoom” mediations and ar- stormy evening but despite the weather ceived. We also plan on adding a half or bitrations. there was impressive attendance. Along full day webinar on business law basics to The Section aimed its focus on inform- with the annual Year in Review of bankrupt- be recorded and added to the VBA digital ing members of the availability of practi- cy case law, Judge Colleen Brown’s report library. cal training and strategies for transitioning on the State of the Court, and Mike Kenne- their practices on-line. This was done pri- dy’s ethics seminar, topics included an over- COLLABORATIVE LAW SECTION marily through outreach on VBA connect. view of Chapter 12 bankruptcy and its ben- Chair: Nanci Smith, Esq. The Bar, itself, jumped in with a CLE webi- efits for family farmers; the intersection of The Collaborative Law Section invites nar on Best Practices and Ethical Consider- Vermont’s burgeoning cannabis and hemp members from the larger VBA membership ations in Mediating Online. industries and the Bankruptcy Code; and who are interested in Collaborative Prac- Even during these unprecedented times, another follow-up to the previously-offered tice to reach out and create your own local with over 120 members strong, the mem- CLE on student loan management in and practice group or join an existing practice bers of the Dispute Resolution Section con- outside of bankruptcy. group, such as CPVT (Collaborative Prac- tinues to strive to make mediation, arbitra- There have been important changes to tice Vermont). This past year, CPVT has ex- tion and facilitation more utilized, accepted Chapter 12 bankruptcy law this year and panded to welcome 3 attorneys and a men- and publicized in Vermont’s legal communi- the bankruptcy bar section, along with Ver- tal health professional, all of whom recently ty. The Section welcome suggestions from mont Law School and the Vermont Bank- completed the IACP introductory Interdisci- all Bar members regardless of Section on ruptcy Court, will be hosting a series of plinary training online. We are doing cases, opportunities for Dispute Resolution and www.vtbar.org THE VERMONT BAR JOURNAL • FALL 2020 2 9 for consideration at a future bar meeting.

INTERNATIONAL LAW &

What’s New What’s PRACTICE SECTION Chair: Mark Oettinger, Esq. The VBA’s International Law & Practice Section has approximately 50 members. We engage in informal member-to-member resource sharing and cross-referral. During the current year, Section members have collaborated regarding changes in US policy around international trade and immigration, among many other topics. We regularly exchange information with the VBA’s Labor & Employment Section, and its Im- migration Section, due to the relatedness of our subjects. We collaborate on the representation of clients in need of guidance interaction with the DR Section. amine the issues of environmental justice in on inbound and outbound immigration, in- the United States and Vermont. ternational trade, foreign direct investment, ELDER LAW SECTION transnational contracting, cross-border en- Chair: Glenn Jarrett, Esq. FAMILY LAW SECTION forcement, and much more. The Elder Law Section will sponsor Elder Chair: Patricia “Penny” Benelli, Esq. In the field of public international law, Law Day as a two-day webinar series on No- The Family Law Section has been busy Section Chair Mark Oettinger continues vember 9 and 10, 2020, with speakers dis- this year, but not in the usual way. Like the efforts to realize a World Court of Human cussing capacity planning and end of life rest of the bar, we have been dealing with Rights (WCHR), a supra-national court that issues, long-term care and Medicaid plan- the COVID-19 restrictions and trying to would unify the jurisprudence and proce- ning, asset preservation, post-eligibility is- keep our and our clients’ heads above wa- dure of the growing body of public interna- sues for Medicaid recipients, special needs ter. Members contributed substantially to tional human rights law. For further details trusts and ethics. Mark your calendars! the Odyssey Court Users Study Group. This on this project, please see www.worldcour- was a group of Section Chairs and other tofhumanrights.net. In the past year, Mark ENVIRONMENTAL LAW SECTION representatives of the bar and other court met with former United Nations General Chair: Gerald R. Tarrant, Esq. users which was commissioned to report to Counsel Larry Johnson to discuss strategies This has been an active year for our sec- the legislature on how the Odyssey e-filing for treaty development through the appro- tion, with Act 250 legislation requiring system has been working in the three coun- priate United Nations mechanisms. Section much of our attention. We also began dis- ties in which it was originally rolled out- members have also reopened collaboration cussions concerning the employment of the -Windham, Windsor, and Orange. Believe with Karelian colleagues, and are participat- new Odyssey case management system me, family practitioners had a great deal ing in a series of seminars on the expansion and e-filing, the implementation of which to say about our experiences with this proof jury trials in the Russian Federation. has been recently delayed. Partly due to gram and many recommendations for im- During the past year, we learned of the COVID-19, and in part due to apparent dis- provements to offer. The section also re- death of long-term Section member John agreement on how best to proceed, no cently presented a remote CLE on Family Newman. He was a national expert in comprehensive Act 250 bill has emerged Law in Review as part of the virtual fall VBA French law, who practiced there for a num- from the Legislature. We suspect Act 250 meeting, and more remote CLEs are in the ber of years, before relocating to Rutland. will be high on the list of Legislative goals in works. Stay well, everyone! He wrote the ALI-ABA loose-leaf service 2021. With Climate Change still impacting on French law, and his contributions to the regulatory and judicial action the practice of GOVERNMENT & NON-PROFIT Section’s work will be missed. Members environmental law will continue to evolve at SECTION are encouraged to post comments, ques- virtually all levels. This October 8th our Sec- Chair: James Porter, Esq. tions or international legal developments tion will be presenting via webinar a CLE on Not surprisingly, the VBA staff showed its of note through VBA Connect. new developments in several areas, includ- extraordinary competence and dedication ing: i.) new developments on the “waters of in its early and comprehensive response JUVENILE LAW SECTION the U.S.” regulation, comprising an update to the COVID-19 pandemic. The Govern- Chairs: Linda Aylesworth Reis and Sarah on the U.S. Supreme Court’s decision in Ha- ment and Non-Profit Section was pleased Star, Esqs. waii Wildlife Fund, and developments relat- to participate in weekly calls of the Section In the past year the Vermont Supreme ed to the Clean Water Act Section 401 state and Division Chairs and County Bar Presi- Court has issued a number of decisions im- water quality certification authority; ii.) the dents and the weekly COVID-19 Commit- pacting juvenile law practice, including re- regulatory and judicial response to the toxic tee calls. Our section provided informa- quirements for courts accepting voluntary chemical known as PFAS that continues to tion about broadband/cable line extension relinquishments of parental rights. In re be a rapidly emerging area of the law, and grants for lawyers and clients – and provid- A.W. 2020 VT 34. The Court has addressed iii.) the passage by the Vermont Legislature ed information about money made avail- the extensive delays in the juvenile system, of the Global Warming Solutions Act, that, able by the Vermont General Assembly to as well as the party status of non-custodial if signed by the Governor, would provide help Vermonters pay utility bill arrearages. parents in CHINS cases. In re H.T., 2020 VT new greenhouse gas reduction targets and As always, members of the Government 3 and In Re C.L.S., 2020 VT1 respectively. new accountability mechanisms. In addi- and Non-Profit Section are encouraged to In overlapping family law matters, the Court tion, the Director of the Environmental Jus- please submit requests or recommenda- has clarified that the parent (s) with physical tice Clinic at Vermont Law School will ex- tions for new CLE’s, to Jim or to the VBA rights and responsibilities are the custodial

30 THE VERMONT BAR JOURNAL • FALL 2020 www.vtbar.org What’s New parents in CHINS cases. Barrows v. Easton, 2020 VT 2. It has also ruled that a juvenile court is not authorized to order child support or allocate travel expenses. In re A.M. 2019 VT 79. In other news, the Addison County Bar Association has received a VBF grant to provide low-bono legal support to pregnant women facing child welfare inter- vention who do not yet qualify for a public defender. Zoom trainings on this topic will be forthcoming, and VBA members outside Addison are welcome to join.

LABOR AND EMPLOYMENT SECTION Chair: Stephen Ellis, Esq. Your Labor and Employment Law Section presented two well-attended and well-received webinars in June and July. The June webinar focused on surprising and recur- duction CLEs during the Virtual Mid-Year down this year as folks adjusted to the real- ring issues in recruitment, hiring and reten- Meeting in June and the Annual Meeting ities of practice and life in the advent of Co- tion, and the July webinar focused on the in October. In the Spring of 2019 this Sec- vid-19. As Chair I participated and a mem- landmark Bostock decision. A number of tion kicked off a “Be Well” section in the ber of the Covid-19 Committee and the Section members, including your Chair, par- Vermont Bar Journal and then subsequent- Section Chairs/County Bar Presidents Com- ticipated in the 21-day Racial Equity Chal- ly published articles on the topics of: Good mittee on COvid-19. Each group looked to lenge, sponsored by the ABA LEL Sec- Stress vs. Bad Stress; Lower Your Stress, In- ways of assisting with lawyer wellness, prac- tion. Your Section Chair has been very ac- crease Your Resiliency; Is it Possible to Do tice issues and the reopening of the courts. tive with two VBA-sponsored COVID-re- Less to Achieve More?; Time for Holistic I’m hopeful that as life returns to “normal” lated committees, and with the VBA study Spring Cleaning; and Happiness Hacks for over the coming months that the Practice group devoted to making recommenda- the Summer. We are so excited to contin- and Procedure Committee can contribute tions relating to the fee structure for the ue to provide wellness tools to find inner more in the way of seminars and articles for new Odyssey e-filing system. We’re plan- calm and peace amidst the turmoil that is the bar at large. ning a program for the near future focus- swirling around not only the legal profes- ing on imagining the post-pandemic work- sion, but the entire World as we navigate an PROBATE AND TRUST SECTION place: What will return to “normal”, and uncertain future. Chairs: Bob Pratt and Mark Langan, Esqs. what will never be the same? Stay tuned Statutes: The Probate and Trust Section and stay well! PARALEGAL SECTION was active in the passage of two statutes: Chair: Carie Tarte, RP®, AIC The Probate and Trust Section promoted LAWYER WELL-BEING SECTION The focus for the Paralegal Section has S. 316 – An Act Relating to the Execution Chairs: Samara D. Anderson and Micaela been and continues to be twofold: explor- of Wills during an Emergency; signed by Tucker, Esqs. ing the prospect of paralegal licensure in Governor Scott on April 28, 2020; effective The Lawyer Well-Being Section was excit- Vermont, and returning paralegal program- upon passage. The bill allows for remote ed to kick off our first year supporting Ver- ming and education to Vermont. To those witnessing of Wills pursuant to 14 V.S.A. § mont’s attorneys during increasing amounts ends, the Paralegal Section submitted a 5 in accordance with Emergency Adminis- of stress as the year progressed. We shared two-part series in the VBA Journal (winter trative Rules for Remote Notarial Acts ad- our stories of hope and resilience of attor- 2019 and spring 2020) regarding paralegal opted by the Secretary of State. Remote ney wellness to kick off the Mid-Winter licensure in Vermont, specifically, whether witnessing is allowed while the Emergency Thaw in Montreal, also providing morn- paralegal licensure could bridge the access Administrative Rule is in effect. ing therapeutic yoga to erase some of the to justice gap for Vermonters. In follow up, The Probate and Trust Section promoted stress in our physical bodies, and conclud- as part of the VBA Mid-Year virtual meeting, S. 114, section 2 to amend 14 V.S.A. § 3505 ed with a 2-hour experiential CLE on Mind- I, as Section Chair, participated in a well-at- to allow remote witnessing of Powers of At- fulness for Stressed Professionals, where tended roundtable WebEx panel with Dan- torney in accordance with the Emergency attorneys learned various mindful tools to iel Richardson and Michael Kennedy for a Administrative Rules for Remote Notarial create calm and ease amidst stressful situa- discussion on “Re-aligning the Profession: Acts adopted by the Secretary of State. Re- tions. Then, in immediate response to the Paralegal Licensure and Independence.” mote witnessing is allowed while the Emer- COVID-19 Pandemic in March, this Sec- Regarding paralegal education and pro- gency Administrative Rule is in effect. tion kicked off bimonthly Mindful Moments gramming, I, along with Paralegal Sec- The Vermont Legislature passed H. 837 for Wellness where every 30-minute ses- tion member, Tina Wiles, have been work- regarding Enhanced Life Estate Deeds by sion was FREE of charge and the 60-min- ing with James Knapp and Marni Leikin, adding new Chapter 6 to Title 27 giving ute sessions required only payment for the Assistant Director for Adult Education at some clarity to the requirements of the En- first session, with all subsequent sessions Burlington Technical Center, to develop a hanced Life Estate Deed (sometimes re- FREE of charge! These sessions continue paralegal education program to be taught ferred to as a “Lady Bird Johnson Deed”). to this day and have increased in number through partnership with one of Vermont’s In an “enhanced” life estate deed, the to almost 50 attorneys all mindfully prac- higher education institutions. grantor retains the right to revise, revoke ticing how to de-stress and support each and reconvey the premises. other during this unprecedentedly stress- PRACTICE AND PROCEDURE SECTION Probate Rules: The Probate and Trust ful time. This Section has also supported Chair: Gregory A. Weimer, Esq. Section was active in passage of various attorneys with Mindfulness and Stress Re- Unfortunately, Committee activity was Rules of Probate: www.vtbar.org THE VERMONT BAR JOURNAL • FALL 2020 31 An amendment to Rule 77(e) deletes governing small estates, 14 V.S.A. §§ 1901- WOMEN’S DIVISION paragraphs (1)-(5) and instead incorporates 1903, as amended by 2019, No. 36, § 1, ef- Chair: Samantha v. Lednicky, Esq. the amended Vermont Rules for Public Ac- fective July 1, 2019. This year we started off strong with a Ver-

What’s New What’s cess to Court Records, promulgated effec- Rule 40(d) (4) of the Vermont Rules of mont Law School round table discussion on tive July 1, 2019, as the source of excep- Probate Procedure was amended to update September 19, 2019 and the inaugural year tions to the general rule of public access to the cross references to the Code of Judicial of the VLS/VBA Women’s Mentorship Pro- probate division records. The Public Access Conduct 2019 which became effective on gram. VBA President Beth Novotny spear- Rules support the implementation of the October 7, 2019. headed a Gender Survey which was closed electronic case management system in all An amendment to V.R.P.P. 5 was made and reported on in December, 2019. Unfor- dockets in all courts. to conform the rule to the 2020 Vermont tunately, due to COVID-19 we had to can- An amendment to Rule 3.1 eliminates Rules for Electronic Filing. The amendment cel our plans for an end of year celebration ambiguous, inconsistent, or obsolete lan- explains the certificate of service require- for the VLS Students. Likewise, we had to guage, including the time-honored but ments when documents are filed under the put on hold our plans for a 19th Amendment unspecific label “in forma pauperis.” The new e-filing rules. The amendment clarifies 100th Anniversary celebration that had been amendment also simplifies the process, when references are to the 2010 Vermont in the works. This week, we are all mourn- consistent with the simultaneous amend- Rules of Electronic Filing. ing the loss of the notorious Justice Ruth ments to V.R.C.P. 3.1 and V.R.A.P. 24. The amendment removes V.R.P.P. 79 Bader Ginsburg and hope to find a way to New Rules 80.9-80.11 incorporate, with (c) because the custodian of records is as celebrate her legacy and start a discussion appropriate modifications, provisions of specified in V.R.P.A.C.R. 3 (c), effective July about sex and gender discrimination. Rules 6, 6.1, 7, and 7.1 of the Rules for Fam- 1, 2019. ily Proceedings regarding appointment of a Amendments to Vermont Rules of Pro- WORKERS’ COMPENSATION guardian ad litem or an attorney. bate Procedure 4 and 79.1 are designed Chair: Keith Kasper, Esq. New Rule 80.9 regarding representation to conform the rules to the adoption of Similar to everyone else, COVID disrupt- of minors by guardians ad litem incorpo- the new case management system and the ed the WC Section’s plans. We did not have rates many provisions of V.R.F.P. 6. Through- 2020 Vermont Rules for Electronic Filing. our annual Bench Bar Meeting between out Rule 80.9, “minor” is substituted for The new case management will be rolled WC Lawyers and the VT DOL lawyers and “ward,” “proposed ward,” “person under out across the state in phases. ALJs, but we will continue the tradition next guardianship,” or “child” for uniformity and year. Early on in the COVID situation WC lit- simplicity of usage. REAL ESTATE SECTION igators and the DOL had a conference call New Rule 80.10 relates to representa- Chairs: Jim Knapp and Benjamin to discuss suggested changes in the pro- tion by attorneys and guardians ad litem of Deppman, Esqs. cess and procedures utilized by the Depart- adults in specified proceedings. It is adapt- The Real Estate Section offered the an- ment in COVID claims. ed from V.R.F.P. 6.1. nual Real Estate Law Day program on No- Both before and after the passage of New Rule 80.11 concerns representation vember 14, 2019 that was attended by emergency COVID legislation the VT DOL by guardians ad litem and attorneys of child nearly 200 of our colleagues. Co-Chair Benj did make certain changes in their processes witnesses. It is adapted from V.R.F.P. 7.1. Deppman participated as the Bar Associ- and procedures to adapt to this new CO- The amendments to Rule 66 clarify its ation designated member of the Adviso- VID world. provisions in light of the Vermont Trust ry Board for Notaries Public convened by On the good news front, VT appears to Code, 14A V.S.A. §§ 101-1204. The amend- the Secretary of State’s Office. As a result be doing well as far as COVID WC cases ments clarify that its requirements do not of the Covid-19 pandemic, representatives with a relatively low number of such cases apply to a trustee, consistent with 14A from the real estate section participated in and the vast majority of confirmed COVID V.S.A. § 201. The amendment adds a re- the drafting and adoption of the Emergen- employment-related claims having relative- quirement to file a supplemental inventory cy Rules for Remote Notarial Acts issued ly low severity. We hope that trend contin- for omitted or newly discovered assets or by the Vermont Secretary of State. Mem- ues through the end of the pandemic. information in Rule 66 (a) (2) to implement bers of the real estate section also partic- 14 V.S.A. § 1053 (a) as added by 2017, No. ipated in the committee formed by Sena- YOUNG LAWYERS DIVISION 195 (Adj. Sess.), § 6, effective July 1, 2018. tor Jeanette White (Senate Government Chair: Amy Davis, Esq New Rule 66 (c) (4), requiring a sworn state- Operations Committee) to address access The YLD held another successful Mid- ment by the fiduciary that there are no out- to the land records during the pandemic Winter Thaw in January at the Omni Hotel. standing expenses or unpaid debts or other and as a result of that participation, $2 mil- Topics included cannabis law, Facebook and claims against the estate, is added to pro- lion was allocated to a program to begin metadata, navigating difficult conversations vide assurance that the estate will not be the process of digitizing the land records and more. We have made the difficult deci- reopened after compliance with Rules 66 (c) throughout the State. A number of mu- sion to hold the Thaw virtually for 2021, but (3) (final inventory) and 60.1 (a) (2), (3) (clo- nicipalities were able to apply for grants to we are excited to offer “Thaw Week” Janu- sure of estate upon submission and court pay for equipment and services related to ary 11-15, 2021. Due to the pandemic, we approval of fiduciary’s report). converting more municipal land records to have been unable to hold our popular mix- Amended Rule 74 implements the pro- digital records, accessible through various ers, but have worked closely with the VBA’s visions of 14 V.S.A. §§ 1851-1854, enacted internet portals. In October, the Title Stan- COVID19 committee to help our group by 2017, No. 195 (Adj. Sess.), § 12. The dards Subcommittee reported the 2020 Ti- navigate the difficult challenges of the pan- statute provides a process for the court to tle Standards to the Board of Managers for demic. We distributed information to the waive further administration for all estates, approval including several new standards bar about the impact of the CARES Act on other than small estates opened under 14 on easements, partnerships and mobile student loans, and many members are tak- V.S.A. §§ 1901-1903. The provisions of the homes. ing advantage of those benefits while work- rule track the statute with some variations ing from home.We hope to see you all in in language and a few additional features. person very soon! An amendment to Rule 80.3 makes it consistent with the statutory provisions

32 THE VERMONT BAR JOURNAL • FALL 2020 www.vtbar.org WHAT’S NEW VBA Annual Report 2019-2020

The VBA Annual Reports cover VBA ac- ed a number of the recommendations in friendly” design—just update your default tivities during the September 1 – August the Committee’s Report in H.951, includ- choice to Casemaker 4. Now the jurisdic- 31 time frame. Who would have imagined ing requiring the Judiciary to meet with tion selection menu is on every page and the challenges we faced together during court users to review their experience with results can be searched by court level. All the second six-months of this reporting the system, and to examine alternatives to personalization options have been expand- period? Thanks to so many members and the per-use e-filing fee charge. The Judi- ed, including billing folders and annota- staff who selflessly dedicated their time ciary is required to report on the results of tions. The website includes detailed infor- and talents to meet those challenges, we the meetings by October 30; in the mean- mation about the latest enhancements, and are proud to include in this report the dif- time, the Legislative Committee on Judicial benefits of Casemaker for your research. ferent ways your VBA was able to help le- Rules has urged the Judiciary to postpone The tutorial videos in the “help” section of gal professionals in weathering the pan- expansion of the system until the current e- the Casemaker website are concise and in- demic storm. filing issues are addressed. formative, or you can call or email Jenni- Immediately after Governor Scott’s dec- The Commission on the Well-Being of fer Emens-Butler for personal Casemaker laration of a state-wide emergency on the Legal Profession issued its First An- training! March 13, we established the “Lawyers’ nual Report on July 1, detailing what each VBA membership includes unlimited ac- COVID-19 Resource Page” on the VBA committee on the Commission has accom- cess to section activity through our on-line website to provide a continually updated plished since the CWBLP State Action Plan communication platform “VBA Connect.” go-to resource for our members. The Re- was submitted to the Vermont Supreme Developed in response to members’ resource Page has links to Governor Scott’s Court on December 31, 2018. Included in quests for the ability to archive and to Executive Orders, the Agency of Com- the Report are recommendations regard- search the invaluable information shared merce & Community Development (ACCD) ing important next steps in enhancing the among section members, VBA Connect Guidance materials, Judiciary Emergency Lawyers Assistance Program. allows members to control the frequen- Orders, Emergency Rules and Legislation, Thanks to the generosity of so many law- cy of received posts, and to easily search and numerous employer, tech, wellness yers and judges who are willing to share and retrieve whatever information has and general COVID-19 resources. their expertise, the VBA was able to offer been shared in all communities to date. The VBA COVID-19 Committee sprang a full smorgasbord of CLE Programs cov- VBA Connect has been an especially con- into action to meet weekly to ensure that ering the gamut of legal topics, including venient way for members to stay abreast the interests of lawyers, law office staff and in-person programs during the first half of of the ever-changing legal landscape dur- law students were well-represented during the reporting period and remote programs ing the COVID-19 era. You can join any sec- the development of the ACCD professional since March. Over 3,600 total registra- tion with the click of a button, and easily office re-opening phases, during the Judi- tions show how many of you took advan- set delivery preferences. If you haven’t yet ciary’s development of its Ramp Up Report tage of VBA CLE offerings, including 746 experienced the benefits of VBA Connect, and Jury Restart Plan, and during the Leg- registrations for in person programs, 2,102 please call or e-mail the VBA office at any islature’s passage of emergency legislation for webinars, 737 for digital programs and time for personal training. impacting remote wills, deeds, powers of 60 for teleseminars this past year. Many We’re honored to work closely with all attorney and advance directives, as well as thanks to the amazing VBA section chairs three branches of the Vermont Govern- enhanced life estate deeds. The Commit- who organized at least one CLE during the ment, to ensure that your and your clients’ tee also worked to develop numerous CO- year at the Annual Meeting in September, interests are well-represented. The VBA VID-19 related volunteer opportunities for at the Mid-Winter Thaw in January, at the serves as a resource to the Legislature, lawyers as well as opportunities for bar ex- Mid-Year Meeting (originally scheduled in government agencies and the Judiciary aminees faced with the challenge of a de- March and re-scheduled and held virtually which helps insure our members’ needs are layed and remote bar exam. in June), and during the numerous stand- considered. The VBA monitors the legis- We also organized weekly Section/Di- alone programs held throughout the year. lative sessions for any proposals affecting vision Chairs and County Bar Presidents Please don’t hesitate to let us know what our members and helps coordinate tes- Conference Calls, whose participants pro- CLE offerings you’d like to see offered, or timony from section chairs and members vided invaluable input for the ACCD guid- if you’d like to present! when needed. Towards that end, we were ance, the Judiciary’s emergency orders, We were pleased to offer the Fourth An- pleased to co-host “Legislators’ Days” with the Legislature’s emergency legislation and nual VBA Trial Academy in a modified for- the Judiciary in each of the fourteen coun- critical information for the weekly phone mat due to the pandemic restrictions in ties throughout the Fall. County legisla- conferences that VBA President Beth No- place in July. Five trial judges and partic- tive delegations were invited to their local votny and I had the privilege of holding ipating veteran trial practitioners offered state courthouses to observe court hear- over the last six months with Chief Justice individual webinars geared to different as- ings, and to meet with judicial officers and Reiber, Chief Superior Judge Brian Grear- pects of trial practice. Stay tuned for the lawyer “ambassadors” from each division. son, CAO Pat Gabel and other members of Fifth Annual Trial Academy in the Summer Those events were followed by a VBA Leg- the Judiciary leadership team. of 2021! islators’ Reception in January at the state- Also unique to this reporting period VBA Members have automatic access to house (the annual Legislators’ Breakfast in was the formation of an E-File Fees Study Casemaker, a leading legal research ser- March was cancelled due to the statehouse Committee that was created following the vices provider with intuitive search capa- closure just before the scheduled event.) initial roll out of the Odyssey e-filing sys- bilities. Casemaker 4 is available with fast- Many thanks also to the ambassadors, to tem in April 2020. The Legislature adopt- er searching capabilities and a new “user the section chairs, and to many other mem- www.vtbar.org THE VERMONT BAR JOURNAL • FALL 2020 33 grant, our low bono lawyers represent 2021 MLK, Jr. Poster-Essay Contest are go- crime victims in legal matters arising from ing out soon! their victimization. We received 143 re- The VBA continues to partner with Ver-

What’s New What’s quests for help last year but were not able mont Law School in the VBA/VLS Incuba- to place them all with low bono attorneys. tor Project. The project provides support In all of our low bono projects, private at- for new lawyers starting solo practices in torneys helped over 300 clients. Coun- underserved legal and geographic areas of sel not only worked for a greatly reduced Vermont. The VBA/VLS team provides day hourly fee, but also finished many cases pro to day mentoring, review of business plans, bono. Our lawyers donated a total of 487 small start-up grants, referral of pro bono pro bono hours to help disadvantaged Ver- and low bono cases, and weekly check- monters. Thank you, all! Please consider ins. This year, our incubator lawyers set helping out; contact Mary Ashcroft, Esq., up practices in Burlington, Fair Haven and VBA’s Legal Access Coordinator, at mash- Bethel. [email protected]. Since 2012, the VBA has offered training Our Vermont Lawyer Referral Service for and has coordinated the Foreclosure continues to work well for clients in need of Mediation Program where interested law- Vermont counsel, and for the 151 LRS panel yers receive specialized training to be fore- members who earned more than $1.2 mil- closure mediators and agree to be part of lion in LRS revenue this past year! The VBA a state-wide pool that is offered to eligi- fielded 6,119 LRS requests, averaging 510 ble litigants who opt for mediation in their requests per month. We printed and dis- foreclosure cases. In the past year, courts tributed VBA business cards with the LRS referred 116 foreclosure cases to the VBA 800 number, the VT Free Legal Answers for mediators, and 58 foreclosure media- website, and the “Modest Means” website tors were agreed upon by the parties and to all of the Vermont state courthouses, nu- assigned. merous public libraries, and many veteran As always, we strive to bring you the lat- centers throughout Vermont. If you’re not est membership products and services, as already an LRS member, consider joining evidenced by the numerous sponsors and for the low cost of $70.00 per year. Your exhibitors at our major meetings, and as next big case could be an LRS referral! detailed in the “Affinity Partners” section A continuing focus in the arena of pub- on the website. Be sure to take advantage lic education was to encourage lawyer pre- of the substantial discounts available for sentations in conjunction with Constitution consulting, credit card processing, practice Day in September. The VBA has now pro- management, health insurance, personal vided over 5,000 copies of “Pocket Con- insurances, retirement programs, market- bers who offered invaluable testimony dur- stitutions” for lawyers and judges to dis- ing software, professional liability insur- ing the initial and then the special legisla- tribute at presentations they give to school ance, rental cars, and shipping services. tive session, when needed. and civic groups throughout the state. We Our newest partners include EasySoft, Inc., VBA Access to Justice initiatives have were pleased to organize a fifth annual TurboLaw, Red Cave Consulting, healthi- proved invaluable to disadvantaged Ver- Constitution Day Panel Presentation, with estyou, and Smith.ai Virtual Receptionist. monters this past fiscal year. Our projects an esteemed panel including a justice, tri- We are currently in conversations with oth- use grant funds to pay private attorneys al judges and a Vermont Law School Con- er providers of service and will be bringing a stipend of $60 per hour with a capped stitution Law Professor, moderated by VBA more options to our members soon. number of hours per case to represent low President Elizabeth Novotny. The panel None of the above accomplishments income Vermonters and crime victims. We presented a “virtual” one-hour basic over- would have been possible without the hard now have 142 attorneys on our low bono view of the Constitution, with a focus on work and complete dedication of the in- referral panels, an increase due to recruit- “Your Voice, Your Vote, Our Democracy”, credible VBA team, whether working at the ing efforts by the Young Lawyers Division in conjunction with a celebration of the VBA office, or remotely since March 17! I and our own foreclosure defense outreach. Centennial Anniversary of the passage of am deeply indebted to them, as well as to The Vermont Bar Foundation funds our the 19th Amendment. Links to the videos the VBA Board of Managers for providing county low bono projects statewide. Case of each Constitution Day presentation are excellent leadership for your Vermont Bar referrals—mostly landlord/tenant matters-- on the VBA website. The VBA is happy to Association. Please know that we are all at slowed due to COVID-19 court closures, provide this and other resources to whom- your service (to meet whatever challeng- but we still received 39 cases. The VBA ever would like to make a presentation in es the next reporting period may have in also funds our foreclosure defense project; their community this year. store) and appreciate whatever recommen- with this grant, the VBA offered a 3-part The Young Lawyers Division and the VBA dations you have to bring even more value webinar on foreclosure defense and me- Diversity Section organized a Martin Lu- to your VBA membership. diation in April and doubled the number ther King, Jr. Poster-Essay Contest for Ver- of low bono foreclosure defense lawyers. mont middle-school students in the Fall. Teri Corsones We expect a jump in foreclosure cases as Governor Phil Scott presented awards to VBA Executive Director our courts slowly reopen. The Vermont Su- the winners at the statehouse in January; preme Court funds our statewide low bono the students and their families also toured projects for representation in adult involun- the statehouse and the Vermont Supreme tary guardianships and for PACA negotia- Court Building, where their winning post- tions. We paid lawyers in 167 of these cas- ers and essays were on public display for es last year. Finally, with our DOJ VOCA the month of January. Materials for the

34 THE VERMONT BAR JOURNAL • FALL 2020 www.vtbar.org by Amy Wood, Psy.D BE WELL How to Feel in Control When Things are Out of Control

One of my favorite quotes goes Take excellent care of yourself. To step others be who they are, allow for our up something like, “You can’t stop the waves away from the ever-evolving cacophony and down, all over the place world order; but you can learn to surf.” This is perfect of what can’t be controlled and make consider your responses, and you will be in advice when it comes to feeling in control pragmatic decisions about how to achieve the best position possible to stand tall and when things are out of control around you. a stature of calm stability despite it, you ride out all sorts of crazy conditions. The Attempting to alter what may not be in your need to be genuinely rested and awake more you build your life around steadying power to change will only exhaust you, but with a hardy constitution and clear head. habits rather than just resist and react when becoming resilient – learning to flex and This means making sure that you get those waves kick up, the more calm amid adapt, in other words, with unpredictability enough sleep, eat relatively well, exercise the storm you will find. -- will allow you to ride the inevitable waves sufficiently, protect yourself from people Through executive coaching and training, more easily. and environments that drain you, and keep Portland, Maine-based psychologist Amy These suggestions will show you the way: your mind adequately nourished. This also Wood helps attorneys to reach greater Stop trying to control what you can’t means breaking away from work whenever levels of achievement and fulfillment. control: There is so much we have no necessary to take the edge off, have fun, She created the research-based attorney command over -- traffic, the weather, the and recharge yourself. The advantage of wellness system Law and the Good Life court system, to name just some things taking full responsibility for your physical and is the author of Life Your Way: Refresh from a very long list. And yet all of us waste and mental health is that you’ll be in a Your Approach to Success and Breathe time and energy worrying about and acting better state of mind to discern between Easier in a Fast-paced World. She recently on circumstances outside our jurisdiction. what can’t be controlled and what can. presented at the VBA’s Mid-Year and We lie awake at night hoping that we’ll And you’ll be well-anchored with your wits Annual Meetings. pass a particular test, get a certain job, about you when particularly threatening attract an object of our affection, sidestep out-of-control situations trigger the all-too- a contagious illness. We tense ourselves up human misleading impulse to try and make trying to beat the competition, win over the madness stop. others, prevent loss and heartache, slow Focus on what’s certain. One sure way the fast pace of America, corral global to feel centered when wayward happenings movements that are much bigger than us. are challenging your sense of security is Even though we’re old enough to know to swivel your attention from what’s up in better, we get caught up in the belief that the air to what’s definite. This translates we can will or force outcomes, avoiding to recognizing your existing strengths the unpreventable realities of life, if we just and resources, counting your blessings, push hard enough. Noticing every time recalling the loved ones you know are here that the more we try to control what we for you, remembering the coping skills can’t control, the more out of control we you’ve learned from weathering past out become, we start to see that those things of control periods. It’s about zeroing in we can’t control are best left to do what on what you know to be true, regardless they’re going to do anyway. of unsteadying developments, putting Strive to control what you can control: your mind on what’s working and what While it’s impossible to control what we you actually have currently. Even if your have no control over, it’s actually quite health or home or income or family may be possible to feel more in control when we seriously at stake, reminding yourself that focus on what we actually do have control you are okay right now, regardless of what over: our responses. No matter what is may happen next, will encourage peace of going on around you, you and you alone mind. get to decide what attitude to take, how Make letting go a regular practice. It’s to prepare, what to say, how to greet bad most obvious amid a crisis that we don’t news, how to treat yourself and others, have control over much, but the fact of how to cope. All of which adds up to our limited influence is a reality every your character -- who you are. The more single day. Even when things are going just your character is based on even-keeled, the way we want them to, anything can reasonable responses to all that you can’t happen at any instant to thwart our sense control, the more solid you feel and the of constancy. And that’s why it’s critical, more likely it is, because you’re not feeling if you want to ride the big waves deftly anxious and spent trying to fight a battle rather than get toppled by them, that you you can’t win, that circumstances will go build up a regular practice of balancing more your way. And that of course is the what you can’t control with what you can. irony of this control issue: it’s when we let Make it your intention every day, not just go of what we can’t change that the sense when you’re utterly stressed by uncertainty, of control we’re after begins to emerge. to fortify your mind, body and spirit; let www.vtbar.org THE VERMONT BAR JOURNAL • FALL 2020 35 by Teri Corsones, Esq. VBF GRANTEE SPOTLIGHT South Royalton Legal Clinic

Continuing the tradition of highlighting sent more than 3,500 individuals and have reliable, consistent, wholehearted support a different Vermont Bar Foundation grant- offered significant legal consultation and the VBF provides. This is especially true in ee in each Vermont Bar Journal edition, this resources to thousands more. Areas of rep- economic downturns, such as the one we edition will feature the South Royalton Le- resentation and consultation originally in- face now, where we contend with increased gal Clinic at Vermont Law School in South cluded tenant rights, consumer protection, demands for legal representation and bleak Royalton, Vermont. The South Royalton Le- divorce, bankruptcy and civil rights and funding forecasts. Knowing that we can gal Clinic offers no-cost legal representa- liberties, as well as public benefits includ- rely on VBF support, as we have for near- tion to low-income Vermonters in a wide ing public assistance, Social Security ben- ly twenty years now, is absolutely critical, variety of civil legal proceedings, while pro- efits and unemployment compensation. As and something for which we are immensely viding the opportunity for meaningful and the Clinic has grown over the years, addi- grateful.” comprehensive training to law student cli- tional practice areas have been offered in nicians. The Vermont Bar Foundation grant the wake of increased needs in the areas of The Children First! specifically helps fund the Children First! family law, veterans’ law and immigration. Legal Assistance Project Legal Advocacy Project and the Vermont The Vermont Bar Foundation has provid- Immigration Assistance (VIA) Project. ed funding for the Clinic every year since Now in its 20th year, the Children First! 2002. Clinic Director Erin Jacobsen de- Legal Assistance Project was launched in History of the scribes what the Vermont Bar Foundation July 2000 in response to an increasing need South Royalton Legal Clinic funding has meant to the Clinic: “The VBF’s for attorneys to represent children in con- steadfast support of the Clinic has allowed tentious family court cases. The vast ma- The South Royalton Legal Clinic first us to help thousands of vulnerable Ver- jority of Children First! cases come direct- opened its doors in January 1979, with monters in high-stakes legal proceedings. ly from court appointments from the Fam- a desire to give students at Vermont Law Funding from the VBF goes directly to our ily and Probate Divisions in the Washington, School practical experience through super- representation of children in the middle of Windsor and Orange Units. vised training while providing much-need- contentious divorces; people seeking pro- In the past 20 years, Children First! has ed legal representation for low-income Ver- tection from domestic violence; and fami- provided civil legal representation to 556 monters. Since 1979 experienced attorneys lies fighting deportation. I cannot under- minor children in 446 cases in guardian- have assisted law student clinicians repre- state how crucial it is to have the kind of ship, divorce, parentage, relief from abuse,

36 THE VERMONT BAR JOURNAL • FALL 2020 www.vtbar.org VBF Grantee Spotlight emancipation and juvenile cases. The law citizens seeking legal status in the United VIA attorneys and student clinicians col- student clinicians and supervising attorneys States and also assists abuse survivors, ju- laborate with a number of immigration ad- have spent thousands of hours meeting veniles, and asylum seekers. Thanks to Bank vocates and stakeholders state-wide, in- with the children, interviewing their prima- of America Settlement Funds, VIA was re- cluding other immigration attorneys, vic- ry care providers and other adults involved cently able to open a satellite office in Bur- tim advocates, congressional staff, and at- in their welfare, speaking with school offi- lington, where a majority of immigrants re- torneys in the Vermont Attorney General’s cials and treatment providers, and obtain- sides. VIA Director Erin Jacobsen explains Office, the Vermont Defender General’s ing needed medical, school and other re- what opening the new satellite office means Office, Vermont Legal Aid, the ACLU and cords for the courts to make informed deci- to the project: “I love having the Burling- immigration non-profits throughout the re- sions in the cases. ton office! I’ve wanted to have a VIA office gion. VIA also enjoys a close collaboration Each semester up to 24 students partici- in Burlington since 2014 when the very first with the University of Vermont’s Behavioral pate as clinicians under the supervision of immigration office I worked in, then located Therapy and Psychotherapy Center, which Children First! Project Lead Attorney Mi- on North Winooski Avenue, had to shut its offers free counseling, social work servic- chelle Donnelly. Another experienced fam- doors for lack of funding. COVID has cur- es and forensic evaluations to help support ily law attorney, Margaret York, joined the tailed some of the community-based work VIA clients’ asylum cases. Clinic in January 2020. Attorney Donnelly I envision for our new space on St. Paul VIA Staff Attorney Jill Rudge, the new- describes what a difference Children First! Street, but once things go back to more- est member of the VIA Team and fresh off has made for Children First! clients and for normal, I look forward to working with cli- her tenure as the 2018-2020 Poverty Law the court system: “Children First! focuses ents and students in the office, as well as Fellow, offered these views about the Proj- on ensuring positive outcomes for the fami- hosting events such as naturalization clin- ect: “I am honored to join VIA at this criti- lies involved and ensuring that children are ics, pro bono attorney trainings, and edu- cal juncture in pandemic response and re- not only safe in their family environment, cational events, such as Know-Your-Rights covery. Non-citizen Vermonters face com- but have the opportunity to have a voice workshops.” pounded barriers to accessing COVID-19 and agency during contentious family liti- During the July 1, 2019 – June 30, supports, which can include limited English gation. Through our program we strive to 2020 timeframe, VIA and 15 student clini- proficiency and fear of immigration con- make sure our children clients know that cians represented 57 clients in 52 formal- sequences. I look forward to working with someone is listening to their wants and ly-opened cases. Those cases included fil- student clinicians, Clinic colleagues, and my needs and advocating for their best results. ings with the United States Citizenship and former Vermont Legal Aid colleagues to im- I have seen families finally resolve years of Immigration Services (USCIS), removal pro- prove access to COVID-19 relief as well as litigation and fighting once the parents re- ceedings, assistance with benefits eligibility avenues to regularized and permanent im- alize and acknowledge what their children (including COVID relief benefits) and hous- migration status.” really desire.” ing issues. VIA also handled 58 significant Many thanks to all of the Vermont law- Allison Ramelson-Kert, a student cli- requests for legal information, which re- yers whose IOLTA accounts make possible nician who has participated at the Clinic, quests generally involve research and provi- the monies that fund the Vermont Bar Foun- had this to say: “The Children First! proj- sion of information, assistance in filling out dation grants, including the grant awarded ect is an extremely rewarding yet challeng- immigration forms, and helping collect sup- to the South Royalton Legal Clinic in South ing program. The best thing about working porting documentation. Royalton, Vermont. Not only do hundreds as a child advocate is the endless gratifica- VIA Student Clinician Margaret Kelly of Children First! and Vermont Immigration tion of working with today’s youth and the shares what her VIA student clinician expe- Assistance Project clients directly benefit positive impacts this program can bring. I rience means to her: “Working in the VIA from the grant, but dozens of law students am continuously surprised and impressed project gave me the opportunity to expand receive invaluable training and experience at the resilience, bravery and strength my knowledge of substantive immigration in the process. these children manifest on a daily basis law. Being able to communicate with real- ______in the face of adversity. In sum, Children world clients is an invaluable experience. Teri Corsones, Esq., is the VBA Executive First! is a life changing initiative! It ignites If not for the clinic, I would not have had Director and a member of the VBF promo- the power and potential of our youth by an opportunity for hands-on experience in tions committee. giving them a voice in our legal system!” the field while also completing classes. The Clinic is a perfect complement to the law Vermont Immigrant Assistance Project school’s curriculum. Erin Jacobsen is a fan- tastic facilitator who works hard to ensure Founded in 2003, the Vermont Immi- that students have a great experience while grant Assistance (VIA) project provides civil also performing exemplary legal work for and administrative legal assistance to Ver- her clients.” mont’s growing community of noncitizens. The number of foreign-born Vermont residents has increased from 17,500 in 1990 to 30,000 today. With the assistance of student clinicians, VIA Project Attorney and Coordinator Erin Jacobsen, joined recently by Attorney Jill Rudge (who just completed her fellowship as Vermont’s Poverty Law Fellow for 2018-2020) work to represent clients from 13 of Vermont’s 14 counties, who originally hailed from all over the world. In fact, since 2003 VIA has represented clients from 72 countries. Share Collective Wisdom Today! VIA provides legal assistance to non- www.vtbar.org THE VERMONT BAR JOURNAL • FALL 2020 37 Access to Justice Campaign

Since 2008 the Vermont Bar Foundation contact Deborah, Fritz or Bonnie. CALEDONIA has funded a Poverty Law Fellow for a two- This year’s campaign has just begun, and Adler & McCabe, PLC year term. Thanks to all of you who support we’re counting on members of Vermont Bar this important work by contributing to last to help us continue our mission and make Amy E. Davis, Esq. year’s campaign. You can find a list of all the this year our best ever. We’d love to be James C. Gallagher, Esq. and Susan Poverty Law Fellows, and a description of able to add your name to list of donors who William P. Neylon, Esq. each of their projects on the VBF’s website. helped make this year’s campaign a success. Zarina O’Hagin, Esq. Throughout the twelve years of the Ac- Please text GIVE to 802-231-3101 to donate cess to Justice campaign, over 1,000 Ver- via text, or donate online at vtbarfounda- Zuccaro & Willis, P.C. monters have benefited from direct legal tion.org/donate. services and thousands more have seen CHITTENDEN their lives improve through the advocacy LEADERSHIP DONORS Anonymous (2) work the Fellows have done. This will only ($7,500 - $10,000) continue as all the Fellows have chosen to Sam Abel-Palmer, Esq. Dinse remain in Vermont to continue the work Gretchen S. Bailey, Esq. they began during their Fellowship. Downs Rachlin Martin PLLC Amber Barber, Esq. The 2018-2020 Law Fellow, Jill Rudge, Langrock Sperry & Wool, LLP pivoted her work from mental health issues Barber & Waxman Vermont Attorneys Title Corporation surrounding housing to immediate Covid is- Jessa and Justin Barnard, Esqs. sues that low-income Vermonters were fac- Bauer Gravel Farnham, LLP ing. Initially, no one knew quite what to ex- 2019/2020 Campaign David Borsykowsky, Esq. pect when the pandemic began, but inter- Contributions estingly, the Covid work and support Jill Rich Cassidy Law, P.C. provided to clients with Covid-related hous- Mark F. Chadurjian, Esq. ADDISON ing issues still found mental health at the Daly & Daly, P.C. forefront of this challenging time. Jill has Elijah Bergman, Esq. Beth Danon, Esq. worked tirelessly during her Fellowship to Kathleen M. Boe, Esq. increase access to housing, prevent eviction George Demas, Esq. James F. Carroll, Esq. and and afford clients greater access to mental Nancy Deppman Law PLC Jeff Dickson, Esq. health services. Jill has also just accepted a Judith L. Dillon, Esq. position at Vermont Law School where she James A. Dumont, Law Ofc. of will be an Assistant Professor/Staff Attorney Andrew Jackson, Esq. Dinse with the Vermont Immigration Assistance Fritz Langrock, Esq. Timothy Doherty, Esq. project of the South Royalton Legal Clinic. Langrock Sperry & Wool, LLP Downs Rachlin Martin PLLC This year the new Fellow, Emily Kenyon Arline Duffy, Esq. begins her work. She’ll be housed at Ver- Erin Ruble, Esq. mont Legal Aid and will be focusing on is- James Runcie, Esq. Tim Eustace, Esq. sues and challenges surrounding Vermont’s John Evers, Esq. low-wage workers. In this time of Covid, James Gelber, Esq. these are the people who are most at risk BENNINGTON for eviction, safety issues at work and oth- Gary Ameden, Esq. Michael Green, Esq. and Sarah Muyskens er forms of discrimination. Emily, an eighth- Raymond Bolton, Esq. Richard Hecht, Esq. generation Vermonter, is thrilled to come Jonathan M. Cohen, Law Ofc of Erin and Jaimesen Heins, Esqs. home to help the Vermonters who need it Robert Hemley, Esq. most. Robert Cummings, Esq. The Vermont Bar Foundation’s Access to Danielle Fogarty, Esq. Lindsey M. Huddle, Esq. Justice Campaign has completed its 2019- John B. Lamson, Esq. Glenn A. Jarrett, Esq. 2020 fundraising. We thank Deborah Bai- Katherine M. Lamson, Esq. Erika Johnson, Esq. ley for her dedication and hard work on Eric Johnson, Esq. the Campaign. We’re also thankful to Cam- Peter M. Lawrence, Esq. paign Co-Chairs Fritz Langrock and Bonnie McClintock Law Office, PC Jeffrey P. Johnson, Esq. and Mary P. Kehoe, Esq. Badgewick, and all of the attorneys on the Men’s Adventure Book Club Campaign committee for their good work. Gary Karnedy, Esq. Matthew Samuelson, Esq. We also thank the Rutland, and Windham Keith Kasper, Esq. County Bar Associations for their continuing Samuelson Law Offices Michael Kennedy, Esq. support, Vermont Attorneys Title Corpora- Amelia W. Silver, Esq. tion which continued its match for first-time F. L. Kochman, Inc. Welford & Sawyer, P.C. donor’s contributions and our Judges who W. David Koeninger, Esq. met their own challenge of raising $10,000. Whalen, Hand & Gilmour, PLC Pamela Kraynak, Esq. Fritz Langrock and Bonnie Badgewick will John H. Williams, II, Law Ofc. Of Marjorie Lipson be co-chairing the 2020-2021 Campaign. If Sarah E. Wilson, Esq. you are interested in volunteering please Ryan Long, Esq. D. Patrick Winburn, Esq.

38 THE VERMONT BAR JOURNAL • FALL 2020 www.vtbar.org Access to Justice Campaign John P. Maley, Esq. and Lynn Mary C. Ashcroft, Esq. Kevin Kelly,Esq. Christopher McVeigh, Esq. Francesca Bove, Esq. Bernard D. Lambek, Esq. Andy Mikell, Esq. Raymundo Cardenas, Esq. Sandra Levine, Esq. Suzanna Miller, Esq. John A. Facey, III, Esq. Lisa Maxfield Renee Mobbs, Esq. Mark E. Furlan, Esq. John J. McCullough, III, Esq. Murdoch Hughes Twarog Tarnelli Alan George, Esq. Wendy Morgan, Esq. Attys at Law PC Matthew Getty, Esq. Susan M. Palmer, Esq. and Susan Murray, Esq. Antonietta A. Girardi, Esq. Christopher Jeffrey Elizabeth Novotny, Esq. Kenny & Gatos, LLP Sandra Paritz, Esq. Mairead O’Reilly, Esq. Allan R. Keyes, Esq. Nick Persampieri, Esq. Paul Frank + Collins PC Zachary Manganello, Esq. William J. Reedy, Esq. Fred Peet, Esq. John McCamley, Esq. Stephen Reynes, Law Ofc of David Rath, Esq. McClallen & Associates, P.C. Daniel P. Richardson, Esq. Todd Schlossberg, Esq. and Chris Bullard Meub Associates, PLC Lila M. Richardson, Esq. and Allen Gilbert Nadine L. Scibek, Esq. Glenn Morgan, Esq. and Betsy Alan Rome, Esq. Mark Scribner, Esq. Ogden Law Offices, P.C. Phyllis Rubenstein, Esq. Lila Shapero, Esq. Daron Raleigh, Esq. Ken Schatz, Esq. & Trinka Kerr Sheehey Furlong & Behm P.C. Readnour Associates, P.C. David Scherr, Esq. Tom Sherrer, Esq. Barbara Richter, Esq. Mary Just Skinner, Esq. Nanci Smith, Esq. Rutland County Bar Association Theriault & Joslin P.C. Jan Spitzen, Esq. Morris Silver, Esq. and Tobi Rory Thibault, Esq. Laura J. Stiller, Esq. and David P. Mark Werle, Esq. Oliver L. Twombly, Esq. Stitzel, Page & Fletcher, PC Alfonso Villegas, Esq. M. Kate Thomas, Esq. WASHINGTON Thomas A. Waldman, Esq. Benjamin Traverse, Esq. Anonymous Wilschek Iarrapino Law Office, PLLC Vermont Attorneys Title Corporation Brian M. Amones, PC Sophie Zdatny, Esq. Bessie Weiss, Esq. E. Sebastian Arduengo, Esq. Bridget C. Asay, Esq. WINDHAM FRANKLIN/GRAND ISLE Deborah Bailey Buehler & Annis, PLC Kissane Associates John Beling, Esq. Wendy Collins, Esq. Josephine Leavitt Patrick L. Biggam, Esq. Costello Valente & Gentry, P.C. Ruth Lippincott, Esq. Gavin Boyles, Esq. Jeremy Dworkin, Esq. Edward J. Tyler, III, Esq. Malachi T. Brennan, Esq. Fitts, Olson & Giddings, P.L.C. Scott Cameron, Esq. Samuel Griffis, Esq. LAMOILLE Danforth Cardozo, Esq. Patricia A. Killigrew, Esq. Julia J. Compagna, Esq. Charity Clark, Esq. Massucco & Stern, P.C. Sidney Collier, Esq. Jennifer Rowe, Esq. ORANGE Therese Corsones, Esq. Rowell Law Office, PLC M. Robin Barone, Esq. and Sydney Lea Maguire and Lauren Curran, Esqs. Margaret Shugart, Esq. Gay & Lesbian Fund of Vermont, Inc. Todd Daloz, Esq. Windham County Bar Association Henry Vogt, Esq. Mark DiStefano, Esq. Wynona I. Ward, Esq. Susan M. Ellwood, Esq. WINDSOR Jennifer Emens-Butler, Esq. Anonymous ORLEANS Geoffrey M. FitzGerald, Esq. Bonnie Badgewick, Esq. Robert B. Chimileski, Esq. Jordan Gonda, Esq. Patricia G. Benelli, Esq. Vincent J. Dotoli, Esq. Elizabeth Hannon, Esq. David Farnsworth, Esq. Gregory Howe, Law Ofc. of Nate Hausman, Esq. Kathleen A. Hassey, Esq. Sarah Hofmann, Esq. Hayes Windish & Badgewick, PC RUTLAND John Hollar, Esq. Elizabeth Kruska, Esq. Anonymous Zachary Hozid, Esq. C. Robert Manby, Jr., PC Carolyn B Anderson, Esq. Jacqueline A. Hughes, Esq. Marsicovetere & Levine Law Group, P.C. James Anderson, Esq. Sarah Katz, Esq. Scott McGee, Esq. and Cathy Karl C. Anderson, Esq. www.vtbar.org THE VERMONT BAR JOURNAL • FALL 2020 39 Dean Thomas JP McHenry Hon. Christine Hoyt In Memory of George Floyd Brian Porto, Esq. Hon. Howard Kalfus Scott McGee, Esq. and Cathy Barbara Rodgers, Esq. Hon. Ronald F. Kilburn In Memory of Ralph A. Foote, Esq. Kinvin and Deborah Wroth Hon. Michael Kupersmith D. Michael Mathes, Esq. and Marcia Hon. Stephen B. Martin and Nancy OUT OF STATE Hon. Robert A. Mello In Memory of Thomas H. Jacobs, Esq. Ned Andrews, Esq. Hon. Walter Morris McClintock Law Office, PC Access to Justice Campaign Lisa Birmingham, Esq. Chief Justice Reiber and Sandi In Memory of Harry Kochman Travis Cote, Esq. Hon. Christina Reiss F. L. Kochman, Inc. Matthew Dendinger, Esq. Hon. Beth Robinson and Kym Boyman Will Irwin, Esq. and Fran Hon. D. Justine Scanlon In Memory of Professor Gil Kujovich Raymond James, Esq. Hon. Kirstin Schoonover and M. Robin Barone, Esq. and Sydney Lea Zachary Manganello, Esq. Christopher Johnson, Esq. Hon. Brian Valentine Hon. Eleanor W. Smith Pamela P. Little, PLLC, Law Ofc. of In Memory of Laurie LeClair, Esq. Martin, Harding and Mazzotti, LLP Hon. Mary Miles Teachout Judith L. Dillon, Esq. D. Michael Mathes, Esq. and Marcia Hon. Timothy B. Tomasi Jesse Mautner, Esq. Hon. Helen M. Toor In Memory of Larry Mandell Alan Rome, Esq. Thomas Melone, Esq. Polivy, Lowry & Clayton, LLC TRIBUTE GIFTS In Memory of Judge McCaffrey In Honor of Pat Barr and Rolf Sternberg Anne Siarnacki, Esq. Hon. Cortland Corsones and Therese Peter M. Lawrence, Esq. David Sime, Esq. Hon. David Howard Hon. Michael Kupersmith Andrew V. Urbanowicz, Esq. In memory of Frank F. Berk, Esq. C. Robert Manby, Jr., PC Dedicated to Northfield Savings Bank First JUDICIARY Quality Customer Service Hon. David A. Barra and Barbara Gay & Lesbian Fund of Vermont, Inc. Travis Cote, Esq. Directed by Eileen Blackwood & Hon. Lawrence H. Bruce Lynn Goyette Dedicated to Past, Present & Hon. Tom Carlson and Nancy Future Poverty Law Fellows Hon. Karen R. Carroll and Rich In Memory of James Burton Mairead O’Reilly, Esq. Hon. Cortland T. Corsones and Therese John B. and Katherine M. Lamson, Esqs. Hon. Geoffrey Crawford In Memory of Paul R. Rexford In Memory of Charlie Capriola Hon. Thomas J. Devine Robert B. Chimileski, Esq. D. Patrick Winburn, Esq. Hon. John Dooley and Sandra In Honor of Justice Beth Robinson Hon. David Fenster Dedicated to Ruth Eileen Collins Susan Murray, Esq. Hon. Susan L. Fowler Wendy Collins, Esq. Hon. Michael Harris In Memory of Zander Rubin, Esq. In Memory of Jane Gans, Esq. Hon. Sam Hoar and Eve Hon. Walter Morris Nanci Smith, Esq. Hon. David Howard Dedicated to Robert P. Scanlon Hon. David Fenster

In Memory of Scott Skinner, Esq. Phyllis Rubenstein, Esq.

Dedicated to Sierra and Michael Sowa (Jr.) Jordan Gonda, Esq.

In Honor of James Spink Arline Duffy, Esq.

In Honor of Wynona Ward, Esq. Patricia A. Killigrew, Esq.

Dedicated to Environmental & Social Justice in Climate Action David Farnsworth, Esq.

40 THE VERMONT BAR JOURNAL • FALL 2020 www.vtbar.org by Kassie R. Tibbott, Esq. Invisible Bars: The Collateral Consequences of Criminal Conviction Records

One in three Vermonters has some type of a 19th place for overall restorative rights. As a Vermonters. If a petition is successfully filed for criminal record.1 Many Vermonters are unaware state with a policy that requires that restorative an eligible offense and is denied for financial that old convictions and non-convictions remain justice principles be used to shape response to reasons, an individual may remain unemployed, on their record until they are denied access crime, we must hold ourselves accountable and without stable housing, and unlikely to contin- to opportunities such as employment, hous- do better. ue their rehabilitation. Disadvantaged petition- ing, licensing, and loans. This discovery occurs Most felonies and most predicate offenses – ers will have their disadvantage heightened. when they are told that they cannot coach their whether classified as a felony or a misdemeanor Additionally, time frames for eligibility must child’s soccer team or chaperone their grand- – can never be expunged. Individuals with this be shortened. For the average individual, child’s field trip; after they graduate from cos- type of conviction on their record are not even the expungement process can take up to six metology school but are denied a professional allowed to inquire about an expungement, re- months from the initial point of contact for as- license; when they cannot purchase a hunting gardless of how old the conviction is. All con- sistance to the record being erased from all da- rifle to share a generational pastime with loved victions must meet multiple statutory require- tabases. For petitioners personally, this time ones; when they are told that unless they move ments to be eligible for expungement, and frame can come at another price, one that isn’t out of their home, their fiancé’s in-home day- the process is complex and expensive. The ex- monetary - six months is a missed child’s soc- care cannot operate. pungement process requires access to the indi- cer season, semester of trade school, or youth The collateral consequences of old convic- vidual’s up-to-date criminal record; they must hunting trip. It expands the employment his- tions create barriers that most individuals can- pay for that information. They can visit the crim- tory gap and creates homelessness. It makes not overcome, resulting in a second sentence, inal court where they were charged or convict- a trade certificate useless, works against goals where every opportunity to improve one’s cir- ed and pay per page for a copy of their docket of financial independence, and creates stigma. cumstance is just out of reach, and poverty is sheets; for people with interactions with mul- Coupled with the 5 – 10 years that an individ- the inevitable consequence. tiple courts, this would necessitate contacting ual must wait before they are even eligible to When Vermonters with past convictions are multiple county courts for those documents. Al- petition for an expungement (and possibly lon- provided the opportunity to get a job and make ternatively, individuals can contact the Vermont ger with current proposed legislation), our ex- higher wages, they are able to better support Crime Information Center (VCIC) and purchase pungement process is inefficient and counter- their families and can afford to pay for the ser- a copy of their criminal record for $30. Many intuitive at best. At worst, it’s bad for society, a vices that they once relied on the state to pro- Vermonters with old convictions do not get waste of resources, and prejudicial to petition- vide. To get to this place we must remove the past this first step. Eliminating this financial hur- ers. Changes to Vermont’s expungement law, barrier that a criminal record creates between dle so individuals can find out if expungement such as shortening these time frames, would an individual and affordable housing, gainful is even an option for them will help many on the ultimately have positive impacts for the entire employment, educational programs, and state path toward reintegration and social success. community and would help shift our criminal services. Previously incarcerated individuals are Assuming an individual has the resources to justice approach to one that is more restorative already at a disadvantage due to gaps in work get a copy of their record, other cost prohibi- than punitive. history, and often a conviction on an individu- tive steps in the process follow, despite recent Similar to Vermont’s motor vehicle point sys- al’s record has no relevance to the work they improvements in Vermont’s expungement laws. tem, once a conviction becomes eligible for apply for. When an individual completes their Usually they will need an attorney to read the expungement, there should be a petitionless criminal sentence, they deserve to have their docket sheets, review the applicable law, and process that eliminates the obstacle course of rights and privileges restored in order to help determine if a particular conviction is eligible. If paywalls and sand traps that currently stands them move forward with their lives. Additional- eligible, a petition to expunge must be drafted between rehabilitated individuals and the op- ly, the individual will be more equipped to pay and filed in each court where there is an eligi- portunity to improve their circumstances. The restitution that in turn supports crime victims ble conviction. Last year, the petition filing fee burden should not be on the individual, as they through Vermont’s Center for Crime Victim Ser- was eliminated, and the list of expungement el- have already paid their debt to society. Rather, vices (CCVS). igible items was expanded in Act 167.2 This is a it is our responsibility as neighbors and com- In Vermont, after someone is convicted significant access to justice measure enacted by munity members to make it our mission to hear of a crime, their record often cannot be ex- Vermont’s legislature. more individuals matter-of-factly state, “I got punged from their criminal history. Expunge- Yet, expungement of a criminal record in Ver- my life back!” ment means all the records related to a criminal mont is still conditioned on a person’s financial ______charge are physically destroyed by court order. status. Until last month’s passage of Act 147, Kassie R. Tibbott, Esq. is a Staff Attorney for This includes all information documenting one’s the full payment of court surcharges (adminis- the Access to Justice Expungement Project at contact with the criminal justice system such as trative fees of $147 levied on every conviction), Vermont Legal Aid and a Research Assistant for police reports, records in the prosecutor’s of- fines, and restitution were required before the Center for Justice Reform at Vermont Law fice, and court records. Currently, all non-con- the court would grant an expungement. Now, School. She has been practicing Vermont ex- victions are automatically expunged after a cer- judges have been given the discretion to waive pungement law since she was admitted to the tain period unless there is an interests of justice the surcharge balance owed, but how will this bar in 2018 and is enrolled in the VBA/VLS Incu- objection made by the prosecution to maintain be interpreted? If Vermont is to make progress bator Lawyer Project. that record. But in a 50-state report published on achieving its restorative justice ideals, judg- ______last month by the Collateral Consequences Re- es must seize this as an opportunity to make ex- 1 Goggins, Becki R. & Dennis A. DeBacco, Survey source Center (CCRC), Vermont received a let- pungement easier for petitioners. of State Criminal History Information Systems, 2016: A Criminal Justice Information Policy Report (Wash- ter grade of “D” for expungement, sealing, and Continued reform, such as allowing a judge ington, DC: 2018), page 17. https://www.ncjrs.gov/pdf- set-aside of convictions for felonies and a “C” who will not waive the balance owed, to grant files1/bjs/grants/251516.pdf for misdemeanors. Vermont received a “C” in an expungement before the balance is paid, in- 2 https://legislature.vermont.gov/Documents/2020/ fair employment law and an “F” in licensing. stead allowing installments after expungement, Docs/ACTS/ACT167/ACT167%20As%20Enacted.pdf Along with other grades, Vermont is tied for is necessary to provide access to justice for all www.vtbar.org THE VERMONT BAR JOURNAL • FALL 2020 41 by Mark C.S. Bassingthwaighte, Esq. Can Lawyers Add Surcharges to Their Bills?

Two quick stories. Years ago, I had a it the extreme. She decided to let all her let me know? I’d sure appreciate it because plumbing emergency. The short version is I clients know she surcharged for time spent the guy who helped me out that Thanksgiv- discovered a broken water line in my kitch- working evenings and on weekends and ing years ago was a real piece of work. He en on a Thanksgiving eve. That line need- then she made sure the evenings and week- even left with a few of my own tools and I’m ed to be repaired immediately or Thanks- ends were the only time she worked! not kidding. giving was going to be a bust. Trust me, Don’t go there. Just because you have a Hopefully you get this last takeaway. Cli- that service call cost me. My second story day that spins out of control or agreed to ent memories can be long, and they often is about packages. Now that all of our kids take on more work than you can handle be- share their stories, just like I have here, only are grown and living throughout the US, my tween the hours of 8 and 5 doesn’t mean they will name names. You really don’t want wife sends more packages than she used you get to surcharge a client whose work to be known as that lawyer who always tries to. I’m often tasked with the responsibil- you couldn’t get to until the weekend. Stat- to take his clients to the cleaners. Here’s a ity of boxing things up and getting them ed another way, a surcharge for an emer- thought. A good business practice might shipped off. Unfortunately, I’m not always gency that was of your own making is an un- be to always keep the eight factors of Rule as prompt with that as I should be, which reasonable surcharge. Long days come with 1.5 in mind whenever you are reviewing and means I sometimes must pay a premium to a decision to practice law. This too is just setting fees for any and all clients. Seems make sure those packages get to wherever the way it is. like a no brainer if you ask me. they’re going on time. Heaven forbid some- Of course, if a current or new client comes ______thing arrives a day or so late. to you with a true legal emergency that re- ALPS Risk Manager Mark Bassingth- These two stories describe common sit- quires you to drop everything and this client waighte, Esq. has conducted over 1,000 uations where we all know going in that understands that he is asking for expedit- law firm risk management assessment vis- we’re going to have to pay a little more ed and prioritized service, well that’s a dif- its, presented numerous continuing legal than we would under normal circumstanc- ferent matter entirely. Here a surcharge may education seminars throughout the United es. A plumber’s rates are higher for holiday very well be reasonable and appropriate. States, and written extensively on risk man- emergencies and shipping rates are higher Sometimes clients truly do have a need to agement and technology. Check out Mark’s for expedited service. That’s just the way it be moved to the front of the line and they recent seminars to assist you with your solo is. Given this reality, I’m led to ask this ques- are willing to pay for the service. Does this practice by visiting our on-demand CLE li- tion. Is it ethically permissible for a lawyer mean the surcharge can be whatever you brary at alps.inreachce.com. Mark can be to add a surcharge to a client bill for hav- can get the client to agree to and the sky’s contacted at: [email protected]. ing to respond to an emergency or agree- the limit? Absolutely not! Again, remember Disclaimer: ALPS presents this publica- ing to provide an expedited legal service? that Rule 1.5 (a) sets forth a total of eight tion or document as general information As with so many things in life, the answer is factors to be considered in the determina- only. While ALPS strives to provide accu- it depends. tion of what reasonable is and none of them rate information, ALPS expressly disclaims To understand why, we need to start by say anything along the lines of if some fool any guarantee or assurance that this pub- looking at ABA Model Rule 1.5 Fees. Most agrees to a ridiculously high fee, that fact lication or document is complete or accu- lawyers know that, in general, this rule alone will make the fee reasonable. Think rate. Therefore, in providing this publica- states a lawyer’s fee is to be reasonable and about it. If your fees are ever questioned, tion or document, ALPS expressly disclaims the basis or rate of the fee and expenses discipline counsel is going to review your any warranty of any kind, whether express are to be communicated to the client. So, fee practices from his or her objective belief or implied, including, but not limited to, if you tell your clients in advance that your as to what the eight factors of reasonable- the implied warranties of merchantability, practice is to add a 10% surcharge to your ness means. Consider yourself forewarned. fitness for a particular purpose, or non-in- fee for work you have to do on weekends, Here’s where I come out on this topic. fringement. is that reasonable? Perhaps; but here’s the It would seem it is reasonable for a law- Further, by making this publication or problem. Where’s the line? If 10% is rea- yer to add a surcharge to a fee if the cli- document available, ALPS is not render- sonable, is 50%? How about 200%? ent is made aware of the circumstances that ing legal or other professional advice or Rule 1.5 also sets forth factors a lawyer could or already has given rise to the need services and this publication or document is to consider when trying to determine for a surcharge and the client agrees to the should not be relied upon as a substitute whether a particular fee is reasonable. Take surcharge in advance. Further, the circum- for such legal or other professional advice note that section (a)(5) under Rule 1.5 states stances giving rise to the surcharge must or services. ALPS warns that this publication that “the time limitations imposed by the be something beyond the circumstances or document should not be used or relied client or by the circumstances” is one of that ordinarily come into play in any type of upon as a basis for any decision or action the factors set forth. Given this language it legal matter, and nothing about these cir- that may affect your professional practice, would appear that a surcharge might be ap- cumstances can be of the lawyer’s own mak- business or personal affairs. Instead, ALPS propriate in certain circumstances, as long ing. Finally, I have no idea where to draw highly recommends that you consult an at- as the other seven factors listed aren’t over- the line in terms of saying a 20% surcharge torney or other professional before making looked, which leads me to another story. is reasonable, but a 200% surcharge isn’t. any decisions regarding the subject matter From time to time I still come across situ- All I can say is there may be a circumstance of this publication or document. ALPS Cor- ations where lawyers have played fast and where 20% isn’t and a different circum- poration and its subsidiaries, affiliates and loose with Rule 1.5. One memorable story stance where 200% is. related entities shall not be responsible for concerns a lawyer who apparently found the Now, one last item. If any of you happen any loss or damage sustained by any per- idea of surcharges as an opportunity not to to know a good plumber who charges a reason who uses or relies upon the publication be missed. Unfortunately for her, she took sonable rate for after-hours work, can you or document presented herein.

42 THE VERMONT BAR JOURNAL • FALL 2020 www.vtbar.org by Lucia White, VPO President Vermont Paralegal Organization, Inc. Celebrates 30 Years!

Thirty years ago, the role of a parale- ing the paralegal profession by offering its gal in Vermont law firms and corporations members networking opportunities, con- began to grow and expand. Trudy See- tinuing legal education (CLE), pro bono op- ley, a paralegal at that time, and a found- portunities, leadership training, and a quar- ing member of the Vermont Paralegal Or- terly newsletter filled with information to ganization (VPO), reached out to other le- keep paralegals up to date on legal issues. gal professionals around the state and The VPO maintains a code of conduct, pro- asked if they would be interested in form- motes high standards of integrity among ing a group to share information and sup- paralegals, and fosters relationships with port one another in their expanding roles. local and state bar associations. The VPO’s This effort lead to a small group of enter- Annual Meeting and Conference includes prising paralegals forming what would be- seminars presented by generous and sup- come the VPO. In November of 1990, the portive members of the Vermont Bar Asso- group had their first meeting at the- Ver ciation and individuals who specialize in re- mont Law School. It was an informal 5 hour lated fields. All VPO members are afforded dle School; Maley and Maley, PLLC; bring-your-own lunch event held on a Sat- membership in NFPA. Through affiliation Marathon Health; Martin, Harding urday. In 1992, the VPO became a mem- with NFPA, VPO members stay current on and Mazzotti; McClintock Law Office, ber of the National Federation of Paralegal paralegal issues on a national level as well P.C.; McCormick, Fitzpatrick, Kasper & Associations (NFPA) in an effort to have a as contribute to the development of NFPA Burchard; Nanci A. Smith, Esq. PLLC; presence and voice on the national level. In policy. The VPO offers an annual scholar- Northern Vermont Paralegal Servic- 2016, paralegals from all over the country ship and guidance in the process of earn- es, LLC; Numbers Matter; Oliver L. convened in Burlington for the NFPA Annu- ing certification through the NFPA Parale- Twombly Law Office, P.C.; Paul Frank al Convention, hosted by the VPO. A small gal Advanced Competency Exam (PACE®) + Collins P.C.; Pease Mountain Law, but mighty group of VPO volunteers coor- and/or the Paralegal CORE Competency PLLC; Pinto MacAskill PLLC; Primmer dinated and managed the four-day event Exam (PCCE), which involves educational Piper Eggleston & Cramer PC; Ryan that included a day of seminars, and two or experiential prerequisites and passing a Smith & Carbine, Ltd.; Sheehey Fur- full days of policy meetings. The VPO offi- standardized exam. long & Behm P.C.; Stackpole & French cially incorporated in 2019. The VPO owes much of its current suc- Law Offices; Stark Law, PLLC; State of After Champlain College discontinued cess to the many past and present mem- Vermont; The Law Office of William its Paralegal program, members of the bers, and the attorneys, law firms and cor- J. Fisk, PLC; Unsworth LaPlante, PLC; VPO sought another higher education in- porations who have supported its mission Vermont Attorney General›s Office; stitution to take on the program. In Janu- since 1990. The VPO is fortunate to have Vermont Attorneys Title Corporation; ary of this year, two VPO board members attorneys who present seminars on a regu- Vermont Department of Labor; Ver- met with Marni Leikin at the ACE Academy lar basis and the list of supporting present- mont Energy Investment Corporation; at Burlington Tech Center to discuss how ers continues to grow every year. The VPO Vermont Land Trust, Inc.; Vermont Law to bring a paralegal program back to Ver- would also like to thank the following firms School; VOSHA Review Board; VT Of- mont. As of today, we are on a path to and attorneys with VPO members: fice of the State Judge Advocate; VT creating such a program with a partnership Army National Guard; and Zalinger of the VPO, ACE Academy at Burlington Atlas Legal Services, LLP; Barber & Cameron & Lambek PC. Tech Center, and a state higher education Waxman; Behrens Venman & Suss- institution. It is expected that the Parale- man, PLLC; Cleary Shahi & Aicher; The all-volunteer Board of the VPO be- gal Certificate Program will roll out in Janu- Darby Thorndike Kolter & Nordle, gan planning a dinner event to celebrate ary of 2021. We owe a very special thank LLP; Dinse P.C.; Downs Rachlin Martin its 30th anniversary. Unfortunately, as with you to Marni Leikin for embracing our ideas PLLC; Dunkiel Saunders Elliott Raub- so many similar events restricted by COV- for the program and making it happen in a vogel & Hand, PLLC; Facey Goss & ID-19, the event has been cancelled. The short 8 months, and to James Knapp, Esq., McPhee P.C.; Green Mountain Power; VPO hopes to hold its celebratory event in of First American Title Insurance Compa- Hehir Law Office, PLLC; Heilmann, Ek- 2021. ny, who from the day Champlain College man, Cooley & Gagnon, Inc.; Joseph If you are interested in more informa- announced the discontinuance of the only Greenbaum; Lab Partners Associates, tion about the VPO, becoming a member, paralegal program in Vermont, has been Inc.; Langrock Sperry & Wool, LLP; membership benefits, or its history, please our biggest supporter and partner to find- Law Office of David I. Schoen; Law Of- visit the VPO website at www.vtparalegal. ing another institution to carry on a Parale- fice of Ruth Kinney, Esq.; Law Offices org. gal Program and who will be one of the in- of Fred V. Peet; Law Offices of Steven ______structors when the program rolls out. We A. Bredice PLC; Law Offices of F.J. von Lucia White is VPO President and is a are very excited to celebrate this undertak- Turkovich, P.C.; Liberty Mutual; Lisman paralegal with Nanci A. Smith, Esq., PLLC. ing as part of our 30-year celebration. Leckerling, P.C.; Little & Cicchetti, P.C.; The VPO is proud to be a statewide non- Lynch & Foley, P.C.; Lynn, Lynn, Black- profit organization dedicated to advanc- man & Manitsky, P.C.; Main Street Mid- www.vtbar.org THE VERMONT BAR JOURNAL • FALL 2020 43 by Hon. Howard Kalfus Justice Delayed is Reunification Denied

We’ve had this maxim drilled into our patterns were sought in comparing time in living arrangement).6 Prior to ASFA’s enact- heads since probably even before we en- substitute care and factoring in the num- ment, it was not at all uncommon for a child tered law school: justice delayed is jus- ber of continuances being mindful that the to spend many years in foster care without tice denied. That concept is rooted in the age of the child may have a confounding much concern on the part of the child wel- notion of fundamental fairness that is the impact on trends and being mindful of the fare system, including the courts. Although backbone of our legal system. But delays reasons for the continuances and the types ASFA has led to significant improvements often have a more pragmatic, scarring im- of hearings continued. It was expected in reunification rates, children still spend pact than just being left with the feeling that a correlation would be found between more time out of the home prior to reuni- that one was treated unfairly. I believe that the number of continuances and the length fication than is desirable even where great the most tragic example of this impact oc- of time that a child remains in substitute progress is being made by the family. De- curs in our child abuse and neglect dockets care. Indeed, such a correlation does ex- lays in juvenile court proceedings contrib- where delays in court proceedings mean ist although no patterns emerged to sug- ute to this as do other factors such as ad- delays in, and sometimes denials of, fam- gest that certain hearing types or reasons diction, incarceration and lack of treatment ily reunification. for continuances resulted in more time in resources. Each continuance of a hearing in When children are removed from their substitute care than others. a juvenile case where a child has been re- home because they cannot safely remain The findings of the study indicate that moved from the home may well result in there, the court process often dictates there is room for improvement in avoid- the reunification of that child with his or her when they will be reunified with their fami- ing delays in Vermont’s juvenile court pro- parents being delayed. At some point, the lies or find new, permanent homes. Delays cess. Even where all parties jointly request delays may result in the child never return- in court proceedings can, therefore, delay a continuance, judges must be vigilant in ing home. this resolution. Myriad causes of delay in- guarding against avoidable delays as often If there exists a correlation between the clude overloaded dockets, lack of commu- a continuance believed to be necessary to number of continuances and the rates/tim- nity resources, overburdened family servic- advance a more swift reunification (such as ing of reunification, then the juvenile court es workers, attorney scheduling conflicts parties working toward a settlement which can theoretically reunify children and fami- and inability to locate or even identify par- would obviate the need for a conten- lies more quickly by adjusting practices to ents. Some of these factors are beyond the tious hearing) simply postpones the hear- reduce the number of continuances. This control of the court system. Others are not. ing rather than eliminate it. Where there assumes, of course, that other delays do In many cases, judges are called upon to were no continuances, children in the study not result from the reduction of continu- exercise discretion in either granting or de- remained out of the home an average of ances and that other factors in a case are nying requests for continuances. What may 273.5 days. Where there was one continu- not negatively impacted by the reduction seem like a trivial decision, particularly con- ance, the average was 510 days. Aware- in continuances. Equally important, per- sidering the many other decisions being ness of such statistics by attorneys, family haps, to the number of continuances are made every day, may very well have a pro- services workers, guardians ad litem, court the reasons for the continuances. Failure to found impact on the life of a child. Some staff and, most especially, judges is critical timely file required reports, lack of clarity continuances are necessary, but others are to ensuring timely permanency for all chil- in expectations and lack of preparedness not. It must be determined whether the de- dren. are quite common but also avoidable. Oth- lay is acceptable because of a better out- In addition to the trauma suffered by er reasons such as lack of community re- come such as a greater assurance that the child victims at the hands of abusive or ne- sources for mental health, substance abuse child will remain safely in the home. glectful parents, guardians or custodians, or sex offender assessments or treatment Research was done last year to deter- removal from parental figures, even those are often unavoidable and can cause signif- mine if there is any correlation between who are abusive or neglectful, often cre- icant delays in the progress of a case. continuances in CHINS1 cases and the ates an additional trauma for these chil- length of time that children remain out of dren.2 The risk of trauma from removal is Explanation of Terms the home. The study also examined wheth- almost always, we assume, outweighed by er a correlation exists between the number the risk of leaving a child in an abusive or The following terms are used through- of continuances and whether reunification neglectful setting. This is the cornerstone out the article for the sake of clarity and occurs at all. of child welfare systems and the justifica- efficiency. They generally encompass oth- Each year between 2011 and 2015, tion for state interference with the fun- er terms found in statute although these there were, on average, approximately damental right to parent.3 Particularly for terms do not necessarily appear in statute 720 children removed from their parents or younger children, as the length of remov- or have the same meaning in this article as guardians’ custody in Vermont. 100 cases, al increases, so may the detrimental impact they do in statute. weighted by county, were randomly select- on the child’s wellbeing.4 CHINS- Juvenile cases include children ed for each of those five years. Data col- Passed by the United States Congress alleged to be in need of care or supervision lected from these cases include the age of and effective on November 19, 1997, the (abused, neglected, truant and unmanage- the child at the time of removal, the num- Adoption and Safe Families Act of 1997 able), delinquent or youthful offenders.7 It ber of continuances granted, the length of (ASFA)5 vmandates that if a child is reis unusual for a child in a delinquency or each continuance , the reasons for the con- moved from his or her home for at least 15 youthful offender case to be removed from tinuances, the types of hearings continued, of 22 consecutive months, that child should the home absent a companion CHINS case. the disposition of the case and the length be freed for adoption absent a compelling When that does happen, the circumstances of time from removal to permanency. Us- reason for continuing the child in substitute are generally so extraordinary that the re- ing both quantitative and content analyses, care (foster care or another non-permanent moval tends to be for a very long time be-

44 THE VERMONT BAR JOURNAL • FALL 2020 www.vtbar.org Justice Delayed cause significant out-of-home treatments tions as the court may deem necessary or other services are needed. Unmanage- and sufficient; (2) an order transferring able youth tend to also require significant temporary legal custody of the child services that keep them removed from to a noncustodial parent or to a rela- their parents’ custody for much longer than tive; (3) an order transferring tempo- other children in need of care or supervi- rary legal custody of the child to a per- sion. They often remain out of the home for son with a significant relationship with years regardless of how efficient or ineffi- the child; or (4) an order transferring cient the court process might be. Thus, the temporary legal custody of the child to data from those cases would likely skew [DCF].10 the analysis. For those reasons, delinquency, youthful offender and unmanageable As used in this article, “removal order” cases were excluded from this study. The refers to any of the aforementioned orders, study consequently focuses on abuse, ne- except for a conditional custody order to glect and truancy cases. For ease of read- the child’s parent, whether that person was ing, the remainder of the article will refer the custodial parent or a noncustodial par- to abuse, neglect and truancy cases collec- ent at the time the petition was filed. It in- tively as CHINS cases. cludes TCO’s transferring custody to DCF Continuance- Continuance requests must even if the child is placed with a parent for be made in writing unless made orally dur- two reasons. First, because the TCO itself ing a hearing.8 Written motions are easily divests the parent of significant rights.11 tracked through review of court files. Oral Second, because, on a more practical level, motions, on the other hand, may or may it is impossible to determine when a child not be noted in the file. The court may also was placed with or removed from his or her reschedule a hearing on its own initiative to parent using solely the review of court files. resolve a scheduling conflict, because of ill- As custodian, DCF may move children be- ness or foul weather. Additionally, hearings tween foster homes and parents or other may commence on the date scheduled but family members without an order or even run out of time to conclude testimony and the knowledge of the court. Such moves need to be scheduled for additional hear- can and sometimes do occur daily. ing time. As used in the study and this arti- The analysis does not distinguish be- cle, “continuance” refers to any incident of tween TCO’s to DCF and CCO’s to a fam- a hearing being scheduled for a given date ily member. This is because the research and not concluding on that date. There are conducted could not reasonably determine exceptions as follows. Where a hearing is whether the nature of the custodial rela- scheduled to take place over several days, tionship created by the CCO fostered or in- of age; one through two-years old; three whether or not those dates are consecu- hibited reunification. While it may seem in- through five-years old; six through tentive, a continuance was not noted unless tuitive that placing a child with kin is more years old; eleven through fourteen-years the hearing went beyond the last, original- likely to lead to a faster and more success- old; and fifteen through seventeen-years ly-scheduled date. Furthermore, there are ful reunification, that is hardly true all of old. These age groups were determined circumstances where a continuance will un- the time and perhaps not even most of the based upon child development and the questionably have no impact on the length time. needs of children as they grow, bond with of time that the case is pending or that a caregivers, enter school etc. child remains away from his or her parents. Correlation Between the Number of CHINS cases average 2.53 continuances An example of this is where there is a pre- Continuances and the Length of Removal per case. The average length of time that trial conference scheduled to be held two a child will be removed from her parents’ weeks before the hearing on the merits and The study revealed that the more con- custody where there are no continuances is the pre-trial is continued for two days. This tinuances granted in a juvenile case in Ver- 273.5 days. On average, each continuance did not cause a delay in the merits hearing mont, the longer the subject child will re- correlates with 94.5 days added to the av- so it was not tracked as a continuance. main out of the home and at some point erage length of the removal. That increase Removal order- There are several types the child will never return home. This may is more indicative for children up through of orders pursuant to which a child may be seem intuitive, but at least one other study, five years of age. Continuances correlate removed from his or her parents or guard- from Baltimore, Maryland, reached a dif- with the greatest increase in length of re- ians by the juvenile court. An ex parte ferent conclusion.12 The question for juve- moval for children ages six through ten emergency care order (ECO) may be issued nile court practitioners in Vermont is what, with an average of 215.4 days of removal transferring custody to the Vermont De- if anything, can be done to mitigate the added for each continuance.13, 14 Thus, for partment for Children and Families (DCF).9 problem. First, we must look to the actual children up to eleven years old, each con- After a hearing with notice, the court may impact. In other words, how much time in tinuance will mean that she will likely re- issue a temporary care order (TCO) in the the custody of another does each continu- main out of her parents’ custody for an ad- form of ance add and does it vary by age group? If ditional three to seven months. Additional (1) a conditional custody order [(CCO)] the impact is significant, we must next look continuances seem to have a lesser impact returning or granting legal custo- to the reasons for the continuances to de- on the length of removal for older children dy of the child to the custodial par- termine if they are avoidable. with each continuance adding an average ent, guardian, custodian, noncustodi- For the purposes of this study, children of 25.4 days for 11- through 14-year-olds al parent, relative, or a person with a were divided into age groups based upon and an average of 52.5 days for children significant relationship with the child, their age at the time of the first removal or- ages fifteen through seventeen. subject to such conditions and limita- der. The age groups are: under one year The problem is even worse, howev- www.vtbar.org THE VERMONT BAR JOURNAL • FALL 2020 45 er, than the statistics above may suggest. Even when a case does not result in a to the child. An example of this is a con- Those numbers assume a consistent in- TPR, we know that children experience tinuance of a disposition, post-disposition, crease with each continuance. That is not emotional harm when removed from their permanency or conditional custody review the case. In reality, the first two continu- parents’ custody. While we assume that hearing so that a parent can complete a ances correlate with an alarming increase Justice Delayed this harm is outweighed by the harm or risk substance abuse assessment so DCF can in the length of a child’s removal. As in- of harm if left in the home, we also know include treatment recommendations in a dicated above, the average length of re- that additional time out of the home takes case plan. Ideally, the assessment would moval without a continuance is 273.5 days. its toll on children’s emotional and psycho- be done as early in the case as possible, Where there was one continuance, the av- logical wellbeing particularly for younger but limited number of licensed substance erage length of removal increased by 237 children. This leads to the next question: abuse assessors and scarce funding often days to a total of 510 days. Where there are some of the continuances, and, conse- delay assessments. Going forward with one were two continuances, the average re- quently, delays in reunification avoidable? of these hearings without that information moval was 672 day, almost two years. Af- is likely to be counterproductive as sub- ter that, there is little change in the aver- Types of Hearings Continued stance abuse is often the central issue in age length of removal until the sixth and CHINS cases. subsequent continuances where the up- For the cases studied, a total of 1,221 Four reasons for continuance were iden- ward trend resumes at a significant degree: continuances were granted. Before we can tified as being presumably beneficial: com- 224 days per continuance. Where there are determine whether they were avoidable, pletion of treatment by a parent or child; eleven continuances, the average length of we need to know what types of hearings the completion of an assessment or test; removal is 1977 days, almost five and half were continued and the reasons for the parties negotiating a settlement; and the years. It is safe to say that where a child continuances. Following is a list of hearings need to provide updated information be- is removed for five years, the continuances continued and the percentage of the to- cause of recent, unanticipated changes in are not a significant factor in the length of tal continuances constituted by each hear- circumstances. The hypothesis had been removal. Arguably, the challenges in those ing type: status conference (26%); disposi- that continuing hearings for these reasons cases are so severe that continuances may tion (24%); permanency (12%); merits (9%); would, in fact, shorten the time to perma- have no impact at all on the length of re- temporary care (8%); post-disposition (8%); nency. The lengths of time that children moval. termination of parental rights (8%); motion were removed from their parents’ custody (5%); conditional custody review (<1%); in cases where hearings were continued for Correlation Between the Number of and permanent guardianship (<1%). these four reasons were compared to the Continuances and Rates of Reunification Average lengths of removal were deter- length of removal time in all cases with the mined for all cases where a specific type same number of continuances. After analyzing the data, we now know of hearing was continued. Most cases, of There were ten cases in which at least that children removed from their parents’ course, had multiple types of hearings con- one hearing was continued because a par- custody remain in the custody of anoth- tinued. It is difficult to determine, there- ent (nine cases) or child (one case) was in er for an average of nine months without fore, which continuance had a greater im- residential treatment. There were twenty- any continuances, for seventeen months pact. However, the data does show that, in six cases in which at least one hearing was with one continuance and for twenty-two cases where permanency hearings and TPR continued because a test or assessment months with two continuances. ASFA man- hearings are continued, the average length needed to be completed. In twenty-eight dates that a child removed from his par- of removal is greater than the overall aver- cases, at least one hearing was continued ents’ custody for fifteen of twenty-two con- age regardless of how many continuances because updated information was needed. secutive months should presumably be were granted. Finally, there were one-hundred, forty-sev- freed for adoption. That means that we There were some cases where all contin- en cases in which at least one hearing was should expect that in most cases where at uances were for the same type of hearing. continued to allow the parties to continue least one continuance is granted, there will Logically, this was the situation for all cases negotiating an agreement. be a TPR petition filed. Of the 480 cases with only one continuance, but there were There were a few outliers because only subject to this study, 366 had at least one cases with two, three and four continuanc- one case fell into a given category. For ex- continuance. This means that, in theory, es all for the same type of hearing. Interest- ample, there was only one case where a just over 75% of juvenile cases should see ingly, among cases where only one type of hearing was continued because a parent a TPR petition being filed. That is not the hearing was continued, where two or more was in treatment and the case was contin- case nor would we reasonably expect for continuances of temporary care, merits, ued a total of six times. That child was re- that to be the case. In fact, only about 26% disposition, post-disposition review hear- moved from the home for a total of 1,944 of CHINS cases in Vermont result in a TPR ings and status conferences were grant- days. The average length of removal for all petition being filed.15 ed, the average length of removal was less children whose cases were continued six As indicated above, there is an expec- than the overall average for the same num- times was 728 days. Disregarding those tation of TPR where a child has been re- ber of continuances. Only motion hear- outliers, the trends in lengths of continu- moved for fifteen of twenty-two consecu- ings and termination of parental rights saw ances for each of the four bases for con- tive months. Not surprisingly, as the num- greater removal lengths where only that tinuances identified was virtually identical ber of continuances increases, so does the one type of hearing was continued. to the trends for the larger sample of cas- likelihood that the child will not be reuni- After considerable analysis, no discern- es for each category of cases distinguished fied with his parents. Of the cases studied, able pattern exists to suggest that the con- by the number of continuances. Thus, it ap- ten had eight or more continuances and tinuances of certain types of hearings may pears that the assumption that those four had been disposed of at the time of review. lead to increased removal lengths. bases of continuances lead to faster reunifi- Of those ten cases, only one child was re- cations is disproved by the data analysis. It unified with parents. Seven cases resulted Reasons for Continuances is also worthy of note that for all instances in TPR, one in a permanent guardianship where an evidentiary hearing was contin- and one child turned 18 before any other We now turn to the reasons for continued because the parties were negotiating form of permanency could be achieved. uances. Some continuances are beneficial an agreement, approximately 70 percent

46 THE VERMONT BAR JOURNAL • FALL 2020 www.vtbar.org Justice Delayed still required the evidentiary hearing be- determination elsewhere. Whether there is supervision (CHINS)” defined). 2 cause the parties failed to reach an agree- good cause is left to individual judges to American Academy of Pediatrics’ Committee on Early Childhood, Adoption and Dependent ment on at least one issue. This may well decide. Beyond V.R.F.P. 2(b)(3), which does Care (2000), Developmental Issues for Young be the case across all dockets, but that re- not establish an objective standard and, as Children in Foster Care, Pediatrics, Volume 106, search is left for another day. to continuances, is limited to merits and Number 5. disposition hearings, neither the Vermont 3 Santosky v. Kramer, 455 U.S. 745 (1982); Las- Conclusion Supreme Court nor the Vermont Legisla- siter v. Department of Social Services of Durham County, N. C., 452 U.S. 18 (1981). ture has adopted a policy regarding con- 4 Developmental Issues for Young Children in Children who are alleged to be without tinuances. One might argue that setting Foster Care, supra. proper parental care often need to be re- the bar as high as a “no-continuance” pol- 5 Pub. L. 105-89. 6 moved from their parents’ custody. Such re- icy is appropriate and perhaps even nec- 42 U.S.C. 675(5)(E). 7 See generally 33 V.S.A., Part 4. moval is a necessary evil; the harm that we essary. Many more would argue that the 8 V.R.C.P. 7(b)(1) made applicable through know to be created by the removal is, we CHINS docket is the least appropriate ven- V.R.F.P. 2(a)(1). believe, outweighed by the benefit of pro- ue for the tying of judges’ hands. Even if 9 33 V.S.A. § 5305(a). tecting the children from whatever abuse such a policy were enacted as an adviso- 10 33 V.S.A. § 5308(b). 11 or neglect they were suffering at the hands ry directive, it creates an unrealistic expec- 33 V.S.A. § 5102(16)(A). 12 “One Family, One Judge, No Continuances,” of those parents. State and federal laws as tation likely to lead to mistrust or at least Alicia Summers and Corey Shdaimah (2013) well as common sense mandate that the re- skepticism. 13 It is noteworthy that of the 56 cases where six moval be as short as possible and that chil- The Vermont Supreme Court could, or more continuances were granted, 19 were for dren removed should achieve some form however, develop guidelines for continu- children ages six through ten. These figures suggest that there may be other factors to consider of permanency as quickly as possible. ances in juvenile cases if not all cases. The for this age group. There are many obstacles to permanen- guidelines could address specific stages in 14 It is also important to note that there were cy in CHINS cases. Those include addic- CHINS proceedings with or without tak- two cases involving children in the six through tion, incarceration and lack of treatment ing into consideration such factors as the ten age group who were removed from the resources. However, delays in the court age of the child and the length of time that home for seven years or more at the time of the study. This undoubtedly impacted the averages process also impede timely permanency. child has been removed from the home. for that age group. Crowded dockets and attorneys whose The struggle, of course, is that the decision 15 Statistics from the Vermont Court Administra- presence are required in multiple courts at to grant or deny a continuance is not made tor’s Office for Fiscal Years 2011 through 2015. 16 the same time are significant contributors in a vacuum. Judges need to be mindful Studies have shown that “children with a history of maltreatment, such as neglect, who ad- to that delay. There is little if anything that of other cases that will necessarily be im- ditionally endure the trauma of being separat- can reasonably be done about that. But pacted by scheduling decisions in the case ed from parents and experience feelings, for ex- continuances of scheduled hearings are an- at bar. As CHINS dockets increase, so too ample of fear and confusion, are vulnerable and other significant source of that delay and does the effect that a single continuance susceptible to posttraumatic stress disorders there is opportunity for improvement here. has on all pending cases. Guidelines will (PTSD).” “Children in Foster Care: A Vulnerable Population at Risk,” Delilah Bruskas (2008) (cit- We have learned from this study that, in only be as effective as the crushing impact ing Dubner & Motta, 1999; Racusin, Maerlender, Vermont, neither the reason for the con- of the docket’s volume allows. Sengupta, Isquith & Straus, 2005). tinuance nor the type of hearing contin- The dilemma around continuances is not 17 Developmental Issues for Young Children in ued impacts the length of time that a child unique to the CHINS docket and is not Foster Care, supra. 18 It is asserted that settlement is beneficial be- is removed from his or her parents’ custo- unique to Vermont. But at stake here is the cause a contested, evidentiary hearing will al- dy. At the same time, we need to be aware welfare of the state’s most vulnerable pop- most always involve the testimony of the DCF that each continuance correlates with, on ulation and its future. We must continual- worker or other service provider who must work average, about three months added to a ly strive for shorter removal lengths while with the family for as long as the case remains child’s removal. Some continuances are ensuring the safety and wellbeing of every open. Necessarily-negative statements about the family tend to corrode the working relation- unavoidable while others are not. Practitio- child whose circumstances and fate are at ship between the DCF worker and/or other ser- ners including attorneys, DCF family servic- the mercy of a court system that often nev- vice provider and the parents and even, in some es workers, guardians ad litem and court er sees their face. cases, the child. 19 staff need to be mindful that continuanc- ______Vermont Rules for Family Proceedings 2(b)(3). es may delay permanency and to be mind- Howard Kalfus is the Presiding Hearing ful of the impact that delays in permanen- Officer for the Vermont Judicial Bureau and cy have on children. Judges, however, bear has been specially assigned to preside over the greatest responsibility for ensuring that numerous juvenile dockets throughout the only those continuances that are unavoid- state since his appointment in 2011. He able are granted. A change in the juvenile was formerly a public defender, where he court culture is needed as this study shows handled both criminal and juvenile case- an appalling trend. That change must start loads, and an assistant attorney general, with judges being willing to make difficult, where he represented DCF. The research unpopular decisions on continuance re- that informed this article was undertak- quests even if the decision is contrary to en for his master’s thesis: When Can I Go the wishes of all parties. Home? The Impact of Continuances on The Vermont Supreme Court has adopt- Rates and Timing of Reunification in -Ver ed a rule indicating that, in CHINS cases, mont’s Child Abuse and Neglect Dockets, merits hearings and disposition hearings ProQuest Publishing, December of 2019. “shall be continued only for good cause A version of that work is scheduled to be shown and found by the court.” “Good published in the Volume 45 of the Vermont cause” is not defined in the rule and the Law Review. Court has not established criteria for the ______1 33 V.S.A. § 5102(3) (“Child in need of care or www.vtbar.org THE VERMONT BAR JOURNAL • FALL 2020 47 by Mary Ashcroft, Esq. Pro Bono Award Winner: Thomas French

The ABA challenges retiring lawyers to lections and divorces, real estate, immigra- included judges and lawyers, law professors consider a ‘second season of service’ do- tion, bankruptcy and intellectual property. and politicians, and economists including ing legal work for the disadvantaged. Brat- Part of his practice dealt with negligence former White House Counsel Abner Mikva, tleboro lawyer Thomas French has done one law--personal injury cases, some worker’s civil rights champion Alan Dershewitz, and better—now completing his third season of compensation law and even a bit of Social constitutional scholar Laurence Tribe. Attor- service, French helps veterans win disabili- Security work. Throughout it all, French gave ney Tom French was tapped to MC a sym- ty benefits. He was honored with the VBA’s his time pro bono to help elderly and impov- posium on constitutional law with four Rus- 2020 Pro Bono Service Award for his out- erished clients, and willingly served when sian legal experts on one panel, and Tribe, standing efforts on their behalf. courts needed his help. Dershewitz, Chief Judge Joseph Campbell Attorney Tom French’s first season of ser- With his German wife’s connections, of the 1st Circuit Court of Appeals, and Mik- vice was when he served as a Judge Advo- French also started getting German clients. va on the other. “Not that I was an expert in cate in the US Air Force. After graduating That expanded to several European com- Constitutional law” admitted French. “I felt from the University of Michigan with a BA panies, and his international work grew. He like a tractor in a Cadillac factory.” in economics, he attended the University of represented a dairy importer of milk from Thomas French was instrumental in form- Wisconsin Law School, graduating in 1961 Egypt and worked on an estate for client ing the San Francisco World Trade Associ- and winning admission to Wisconsin Bar. Lat- who had an interest in a Brazilian estate. He ates, a small and nimble organization that er in 1961, after graduating from the USAF had connections with 85 out of the 86 re- helped foster commerce between the US Chaplain’s School at Lackland AFB Texas, gions in Russia. “I had clients from every and international entities. He chaired the Lieutenant French was first assigned to Hunt- continent except Antarctica—and I’m wait- SFWTA until it was disbanded in 2002 a few er Air Force Base in Savannah, Georgia, then ing for the penguins there to bring a class years after Vladimir Putin came to power in promoted to Captain and transferred as a action suit,” French quipped. Russia. “All of the contacts we had formed in Judge Advocate to Wiesbaden AFB in Wies- And then there was his advocacy which Russia were suddenly out of power,” French baden, Germany. There he met and married resulted in the export of the first electronic explained of the SFWTA’s demise. But his wife Cecilie, and there their two children scoreboard to China. Zhou Enlai, first pre- French’s work with SFWTA brought more were born. miere of the People’s Republic of China, had international service and recognition—and Captain French’s work in the military re- seen an electronic scoreboard while in Eu- answered a question that had long puzzled sembled a small general practice. He rope for talks that would eventually settle the him: why had he been chosen as part of the worked with four other attorneys, repre- Vietnam War and open up China. Zhou want- US delegation to Russia in 1989? sented officers and enlisted men, and ap- ed this unique electronic scoreboard for the The answer came at a conference con- peared in court martials and administrative racetrack near Beijing. French’s wife, Ceci- vened by the U.S. State Department to pro- board hearings. He also assisted both civil lie, knew the spouse of the inventor of the mote a software program developed by RH- and military personnel assigned to the US scoreboard. Enter Tom French, who became TOP, a Russian chemical weapons manufac- forces in Europe, was a claims officer, de- the lawyer to break down the barriers to al- turer specializing in poison gas. RHTOP opt- fended clients against charges ranging from low the import of the electronic devices into ed to participate in a program which subsi- petty theft to AWOL to murder, and acted as China. dized by the US Government to develop al- counsel to the USAF hospital in Wiesbaden. It was no mean feat. In the mid-1970’s, US ternative products to chemical weapons as a After completing his military service in late law severely restricted the export of tech- part of the Nunn Lugar act. In exchange for 1965, French contemplated his second sea- nologies to communist countries. Attorney the subsidies, RHTOP agreed to leave the son of legal service. He and his wife were in- French battled more than two years with US chemical weapons program entirely and to trigued with New England, and Tom looked Defense Department bureaucrats in its ex- develop alternative products. at law firms in Connecticut and the Boston port licensing department to get the permis- One program it developed was a software suburbs. Then he responded to an invita- sion needed to send his client-inventor’s de- program that could identify any unknown tion to interview with Osmer Fitts in Brattle- vices to China. Then they got a very high-lev- chemical causing any injury to a person and boro—“he was persuasive,” French recalls. el break. Future US President George H.W. the identity of the curative antidote. RHTOP He accepted the offer to join Fitts and Ol- Bush, then US Ambassador to China, sat also had worked closely with the Lawrence son and was admitted to the Vermont bar next to Zhou Enlai at a banquet in Beijing, Livermore Laboratories. The State Depart- in 1966. French quietly boasts that he never where Bush got an earful about the score- ment conference and the Lawrence Liver- took a bar exam. He was admitted in Wis- board. Ambassador Bush leaned on Henry more Laboratories requested RHTOP for a consin on motion because he had success- Kissinger, President Ford’s National Securi- demonstration of this software. A delega- fully completed a practice course prior to ty Advisor, who spoke to then Secretary of tion was convened at the State Department graduating from law school there, then was Defense Donald Rumsfeld. Shortly thereafter in Washington, D.C. Representatives from a JAG with its national accrediting, then was Attorney French got the word--two electron- the Defense Department, the Energy De- admitted in Vermont, Massachusetts and be- ic scoreboards were headed to China. partment, and the Environmental Protection fore the US District Court for Vermont—all With that case successfully concluded, at- Agency represented the public sector. The on motion. torney Tom French’s international reputation private sector representatives included ex- Attorney French wanted more challenge was secured. ecutives from RHTOP, the Lawrence Liver- than working as a junior lawyer at Fitts Ol- In 1989, Tom was invited to Russia as part more Laboratories and SFWTA. son, so it wasn’t long before he set up his of a 750-person legal and economic team Tom French couldn’t be present. He sent own solo practice in Brattleboro. “I was a charged with helping the soon-to-be-former SFWTA Vice Chairman Peter Caldwell to this true generalist” he recalls. He represented Soviet republic reconstruct legal and eco- conference as the representative represent- individuals and corporations; he did bill col- nomic systems. The distinguished gathering ing SFWTA’s American officers. Mr. Caldwell

48 THE VERMONT BAR JOURNAL • FALL 2020 www.vtbar.org Thomas French had been recently a legislative assistant to tial part of the work, he notes, and the only stead by exposure to the drinking water at U.S. Senator James Jeffords (VT). Vladimir charge allowed is 20% of a lump sum recov- Camp Lejeune, NC, where the marine had Tchernov, an officer of the Russian chemical ery from the veteran’s back only once the once been stationed. Tom was able to even- weapons company was also a SFWTA vice veteran starts receiving benefits. But as a tually win 100% disability rating for his client. president. pro bono emeritus attorney, Tom is licensed --Another Camp Lejeune marine who also When Anne Harrington, a high-level em- to work without fee for his clients. fought in Vietnam suffers from another form ployee at the State Department and the It didn’t take long for word to get out of cancer which is recognized to be causally chairwoman of the conference recognized about this pro bono lawyer who helped vet- related to the chemicals in the drinking water SFWTA’s involvement in the conference, af- erans. Tom has had clients in Vermont, New also received a 100% disability rating, thanks ter seeing the two SFWTA business cards, Hampshire and Massachusetts, as well as in to Tom’s efforts. she asked Mr. Caldwell and Mr. Tchernov if Washington State, Iowa, New Jersey, Virginia Over the 4 years he has been helping vet- SFWTA was Tom French’s brainchild. She and even Cambodia. Attorney French’s work erans, Attorney French has been tremen- asked Caldwell and Tchernov: “Does Mr. is all done with paper, from the comfort of dously successful. Statistics compiled by At- French know how he became involved in his home. “I could opt for a hearing,” French torney Thomas Costello, current Command- Russia?” They both said that he had always observes, “but they take a long time to occur er of American Legion Post #5, tell the story. wondered why he had been selected. She and it slows things down to a snail’s pace.” “He has brought 15 actions and succeeded then related the story of Tom’s work on the Veterans who have turned to Tom for le- in 14 of them, resulting in more than $1 Mil- export of the electronic scoreboards to Chi- gal help have served through 75+ years of lion awarded to those who served our coun- na and confirmed that Tom’s invitation to US military history, from WW II through the try and didn’t receive benefits to which they Russia was a reward for his role in the suc- Persian Gulf Wars. were entitled.” Costello, who with fellow cess to open up China. Twenty-three years --The oldest client, a much-decorated lawyer James Valente, nominated French had elapsed from the time Tom started ne- WWII Army Air Corps veteran with PTSD, for the VBA’s 2020 Pro Bono Service Award, gotiating for export permits allowing the was helped by Tom to win a 100% disability called French’s work for his clients “life- scoreboards to enter China to the date of rating and monthly benefit of $3,057 which changing.” Costello wrote “most of the re- this conversation. was finally awarded in 2018. This man served cipients are of limited means, on fixed in- After 50 years of a rich and varied law many bombing missions over Germany, and comes, and suffer from lasting mental and practice, Tom French closed his solo law on one was required to climb through bom- physical consequences of war.” practice in 2016. But he wasn’t through with bay doors to pry loose two bombs which had The award of increased benefits to these the practice of law—he was entering his failed to release. He was the only war sur- veterans can indeed change their lives for third season of service. vivor out of the 100 people he had trained the better. Tom has won 100% disability rat- A USAF Veteran himself, French became with. ing decisions in nine cases, which resulted intrigued with the notion of helping fellow --A Persian Gulf War veteran who served in average monthly awards of $3,400 for the veterans obtain disability benefits to which two tours of duty in Iraq was suffering from veterans, and increased benefits for their they were legally entitled. He attended a the effects of exploding roadside IEDs and survivors. seminar taught by Poverty Law Fellow Kate- from parachute jumps and other horrif- Attorney Tom French is about to close his lyn Atwood, then dove into the 2000-page ic experiences. His injuries included trau- third season of service. Some health chal- Veterans’ Benefits Manual while pursuing ad- matic brain injury, amnesia, PTSD, respi- lenges have prompted him to wrap up his ditional training through the National Orga- ratory problems, spinal compression frac- work and turn his remaining files over to At- nization of Veterans Advocates—NOVA. Al- ture, migraines, knee and leg damage, and torney John Pritchard who practices with though the field of veterans’ disability law more—so much so that if all disability rat- Costello, Valente and Gentry in Brattleboro. was new to him, he did have two solid cre- ings were added together (as opposed to Tom’s assistant, a 22-year US Army veteran dentials for the work. He was conversant with using VA math) Tom estimates that they and trained psychologist, (and also a veteran medical causation due to his prior legal work would amount to a total of 450% disability. with a 100% rating) will work with Pritchard in negligence, personal injury and workers’ Attorney French helped this veteran get the to continue his support and claims work. compensation law. And he has an infinite $3,106 per month 100% disability to which And the work will continue because the amount of patience, necessary, he says, “be- he was entitled. need remains. The US Census Bureau esti- cause the VA does not follow its own rules --A US Navy enlisted man was exposed mates that there were 38,625 veterans living and sometimes fails to agree with generally continually to asbestos while repairing as- in Vermont as of 2018. According to the US accepted medical principles,” he notes, and bestos- clad pipes in engines rooms of US Bureau of Labor statistics, 25% of all veter- only after an appeal has been filed. Navy ships. He did this work for 13 years ans have a disability, and that number jumps In 2016, Attorney Tom French set up a without masks or protective gear, and was to 41% among gulf war era veterans. Tom new law office—this time in Post #5 Ameri- diagnosed with asbestosis, pulmonary fibro- French hopes that lawyers in or nearing re- can Legion Hall on Linden Street in Brattle- sis and chronic bronchiectasis, from which he tirement, “who still have gas in their tanks”, boro. Every Thursday for nearly the next four eventually died. Attorney French was able to will take on this pro bono challenge of help- years, French held office hours at a table in a help the man receive a 60% disability rating ing veterans capture the disability benefits small office off the back of the Legion’s din- in early 2017, which was increased a year to which they are entitled. ing hall, and saw every veteran who wanted later to 100% disability rating. The sailor’s Attorney Tom French has done his part. As to talk with him. John Hagan, the Legion’s widow now receives a benefit of $1,300 per noted by Thomas Costello: “We in Windham Commander when French began his work, month due to her spouse’s military service. County are grateful for French, who exem- commented that French’s “knowledge and --A marine who fought in Vietnam re- plifies all of the good things about our pro- understanding of veteran benefits, and how ceived a 30% disability rating due to service- fession and elevates us all.” the system works, has been almost as amaz- related PTSD. He also was diagnosed with ing as his dedication.” hepatic cellular carcinoma which he believed Attorney French concedes that it is “vir- was due to exposure to Agent Orange. tually impossible” for private practitioners When his disability from that cause was de- to make money on veterans’ benefits cases. nied, Tom French dug deeper to learn that It is illegal to charge a veteran for the ini- his client’s particular cancer was caused in- www.vtbar.org THE VERMONT BAR JOURNAL • FALL 2020 49 BOOK REVIEWS

CV, including clerking for Justice Scalia. Here Lessig turns to Jesse Eisinger’s He is well prepared to raise ethical ques- book “The Chickenshit Club – Why the tions about how the practice of Law in ac- Justice Department Fails to Prosecute Ex- cordance with our attorney Rules of Pro- ecutives” to incorporate Jesse’s argument fessional Conduct interferes at times with of corruption of outcomes within the Jus- achieving justice. tice Department. Eisinger is a Pulitzer Prize His book begins with a story. While Les- winning senior reporter at ProPublica. His sig, an expert on internet law, was at Stan- work has appeared in the New York Times, ford Law School, he accepted a side-gig to the Atlantic, and the Washington Post. In work “of counsel” at a major San Francisco 2009, Eisinger began work on a series of law firm on issues related to his expertise. stories, “The Wall Street Money Machine,” Within a week there was a problem. that revealed how Wall Street’s morally In a meeting with partners, the manag- questionable practices had led to the worst ing partner explained that a client had told financial crisis since the Great Depression. the firm either the client or Lessig had to It was co-authored with Jake Bernstein and go. It seems the client was upset by Les- was awarded the Pulitzer Prize for National sig’s writing in Wired magazine and oth- Reporting in 2011. er popular and broadly read publications Eisinger’s book opens with a story about about how aspects of internet law worked a new U.S. Attorney for the Southern Dis- against certain public interests. The man- trict of Manhattan giving his first speech to aging partner proposed a solution, that staff of the criminal division. These lawyers Lessig restrict his writing to legal publica- were the nation’s elite. tions like the Stanford Law Review. A sec- The speaker opened with: “We have a ond partner explained that the firm had an saying around here: We do the right things ethical issue since lawyers for the firm had for the right reasons in the right ways.” He an ethical duty to advance the business in- then asked the seated prosecutors a ques- terests of their clients, and a third partner tion: “Who here has never had an acquit- added that Lessig had an obligation not to tal or a hung jury? Please raise your hand.” act or write in a way that threatens those Hands shot up from those in the office interests. who thought themselves to be the best trial In response to Lessig’s assertion that lawyers in the country. “Me and my friends “America Compromised” what he wrote in Wired and other popular have a name for you guys.” the speaker by Lawrence Lessig magazines was true, the partner stated that said. “You are members of what we like to (2018) truth was not the issue. call the Chickenshit Club.”5 and Lessig briefly reflected on the nice retain- That speaker was James Comey in 2002. er check he’d just deposited, and how easy Eisinger then goes on to explain Comey’s “The Chickenshit Club - Why this extra money was going to be, before subsequent comments to his trial attor- the Justice Department Fails to he replied: “I do think there’s an ethical is- neys. “I don’t want any of you to make an Prosecute Executives” sue here. It is my ethical obligation to my- argument you don’t believe in.” Prosecu- by Jesse Eisinger self. I’m sorry this didn’t work out.” With tors – unlike other lawyers – are not simply (2017) that, the meeting was over and Lessig’s job advocates for one side. They are required Reviewed by Rick Hubbard, Esq. “of counsel” was ended.1 to bring Justice. They should seek to right Lessig comments: “There’s no clear rule the biggest injustices, not go after the easi- Do our rules of professional conduct that that guides the conflict I was alleged to est targets. Victory in the courtroom should require us to act in our clients’ best inter- have created. A lawyer has a fiduciary ob- be a secondary concern, meaning that gov- est combine with wage inequality to actu- ligation to her clients and from using infor- ernment lawyers should neither seek to win ally prevent us from achieving justice? Both mation acquired in the course of represen- at all costs nor duck a valid case out of fear of these books raise troubling questions tation to the client’s disadvantage.2 That of losing.6 about whether the way we attorneys prac- duty is not unlimited. It does not trump a Lessig then incorporates the argument tice law fails to regularly deliver the justice lawyer’s obligations to her profession. But Jesse makes in his book that white col- our legal system is supposed to deliver. the rule does create ample opportunity for lar prosecution in America has changed in As stated in the book jacket description a firm to bend the independence of the more recent years. Both authors then dig of America Compromised, “through case lawyers toward better service toward the into why this has changed and how these studies of Congress, finance, the academy, clients.”3 changes work against delivering justice. the media, and the law, Lessig shows how “But when an ethical rule tells the lawyer In earlier times, our government prose- institutions are drawn away from higher that her views should be at least consistent cuted white collar criminals while prosecut- purposes and toward money, power, quick with the “business interests” of her client, ing white collar crime. It prosecuted more rewards - the first steps to corruption.” This then she’s not free to do what’s right. If her than 1000 people in the 1980s after the review is limited to only his thinking about view conflicts with those business interests, savings and loan crisis, and subsequent- our legal profession. then the rule of ethics comprises her obli- ly aggressively pursued the leaders of the Lawrence “Larry” Lessig is the Roy L. gation as a lawyer to the profession. She junk bond crisis in the late 1980s, and af- Furman Professor of Law and Leadership can choose to do what’s right, or choose to ter the tech bubble burst in the late 1990s at Harvard Law School with a formidable obey the rule. She can’t do both.”4 and early 2000s it pursued fraud again, in-

50 THE VERMONT BAR JOURNAL • FALL 2020 www.vtbar.org Book Reviews cluding fraud within major telecommuni- and expectations. At a certain point, when Law and the Department of Justice.’ cation and energy firms like World Com, in law school, all aspiring attorneys are ‘The business had become much more Qwest Communications, Adelphia and En- equal. But after graduating, all scramble in commercial and more mercenary.15 ron, with many ending up in prison.7 different directions based on our expecta- …Those needs are consistent with These prosecutions were not political, tions as set by our families, friends and our the changing practice of criminal pros- they were important for both Republi- own dreams. Some go to big firms, others ecution in America today. As Eising- cans and Democrats.8 But as Eisinger tells to small firms, and some become prosecu- er says, more and more, prosecution it, this all changed. “After the 2008 finan- tors, and more. is not against individuals. It is against cial crisis, the government failed. In re- Lessig goes on to say that: corporations. And more and more, sponse to the worst calamity to hit capital Thirty years ago, that choice was those corporations settle the prose- markets and the global economy since the less significant than it is today, at least cution without admitting guilt, with Great Depression, the government did not financially. Thirty years ago, a prosecu- something called a ‘deferred prosecu- charge any top bankers. The public was fu- tor in New York could “afford” to be tion agreement,’ and by paying a tiny rious.”9 a prosecutor for his (and it was mainly fine. Criminal prosecution becomes, As Eisinger relates it – “While a Repub- his) or her whole life. ‘Afford’ not in the as Eisinger has described it, a simple lican president had presided over the cri- sense that they would starve on a pros- cost of doing business.’16 And corpora- sis and a Democratic one had saved the ecutor’s salary. Obviously, even today, tions become repeat offenders, taking financial system, Hillary Clinton, Obama, the top prosecutors with the most ex- the profits from the crime, and using a and the Democrats could not claim to be perience get paid $160,000. But “af- small part of those profits to buy the the protectors of the working class and the ford” relative to others – their con- ability to commit those crimes again.17 scourges of investment bankers. That was temporaries, their friends, and their due, in large measure, to the lack of corpo- colleagues in private practice. And Although there are exceptions, Lessig rate prosecutions.”10 Lessig then poses the ‘afford’ relative to what relative sacri- notes that “the rule is not set by the ex- question, “Why?”11 fice they could expect their families to ception.’ ‘More and more, the expectation Lessig writes that while many experts bear. No doubt there has always been is that great lawyers will ‘subsidize’ their have written in answer to this question, and a gap. But the gap was tolerable. No practice by practicing privately for at least while no doubt the causes are many, he fo- one was going to get rich, but no one some time. And who could think that sub- cuses on the incentives affecting the many need feel poor. sidies have no effect on the subsidized?”18 great trial attorneys in our Justice Depart- In the past thirty years, that gap has Lessig names dependency as “the lens ment because, in that one dynamic, we can grown. While the top pay-scale for through which this example fits the mod- see the pattern that is the subject of Les- federal prosecutors increased by as el of institutional corruption. The purpose sig’s entire book: institutional corruption. much as 60%, the average salary at the of prosecution is to do justice. That means Perhaps the book jacket cover states it top firms increased by almost 160%. never prosecuting anyone believed to be best: As the gap has grown, the ability to innocent; it means never declining to pros- And it’s our fault. What Lessig shows, be a prosecutor for life has changed. ecute just because the case might be dif- brilliantly and persuasively is that we Again, not in an absolute sense – a ficult. It also means not bending the pros- can’t blame the problems of contem- New York US Attorney gets paid three ecution to make the lawyers defending porary American life on bad people, times the median income in America. the alleged criminals happy. Yet in a world as the pundits all too often tend to But changed in a relative sense. Ear- where prosecutors depend upon jobs from do.” Rather, he explains, ‘We have al- lier, the choice was not difficult. If you the lawyers defending the alleged crimi- lowed core institutions of America’s liked the work, you could stay. Today, it nals, the temptation to that bending is en- economic, social, and political life to has become increasingly difficult. The demic. It is unavoidable. And the history of become corrupted. Not by evil souls, sacrifice feels real, not just to the law- the change of practice by prosecutors over but by good souls. Not through crime, yers, but to their families. And more the past decades is consistent with the but through compromise.’ Every one and more are beginning to think about consequence one might expect; from such of us, every day, making the modest how they can make the law work bet- an influence.”19 compromises that seem necessary to ter for them, or at least, better for their However, Lessig is careful to say that keep moving along, is contributing to families.13 corruption is not the only cause, and he the rot at the core of American civic cites Eisinger as doing “an admirable job life. Through case studies of Congress, Lessig continues: of highlighting the bizarre activism of the finance, the academy, the media, and To revolve (as in the revolving door) judges carving back on prosecutions and the law, Lessig shows how institutions successfully, the prosecutors need to discovering all sorts of new rights that hap- are drawn away from higher purposes be hirable. Which means they need pen to apply to white-collar criminals but and toward money, power, quick re- to do their job in a way that lawyers in not so clearly to the rest.”20 wards – the first steps to corruption.12 the white-collar defense firms respect. Lessig goes on to make the point that Which means they need to prosecute “prosecuting individuals is costly – espe- With respect to our legal profession, Les- in ways that lawyers in white-collar de- cially when their corporations pay the le- sig’s critical analysis is so central, and so im- fense firms agree with. Which means gal fees. It takes time. One mistake on portant to the way we practice law, to our they need to prosecute in a way that appeal can start the whole process over reputation as a profession, and to its rela- doesn’t get the clients of the white- again. It takes a real commitment by the tion to the core of American civic life, that collar defense firms too upset. ‘The Justice Department to see these prosecu- I hope each of us will carefully consider his revolving door was not just a way for tions through. And, more importantly, to argument and think about its implications, government employees to cash in,’ convince the potential white-collar crimi- as well as what we should be doing in re- Eisinger says. ‘Both sides were chang- nals that breaking the law is not costless.”21 sponse, if anything. ing the other – ultimately to the ben- But, as Lessig says: Lessig begins with an analysis of prose- efit of corporations.’14 …A symbiotic If there is a reason for laws against cutors, who are simply people with families relationship developed between Big fraud, or insider trading, or manipu- www.vtbar.org THE VERMONT BAR JOURNAL • FALL 2020 51 lation of the market, then we ought Lessig doesn’t believe this balance was Lessig ends his Chapter 5 with the ob- to have a Justice Department that selected self-consciously. “It is the product servation that “what drives the distortion enforces those laws enough to con- of pressures that manifest incentives not in the culture of prosecution is much more vince the criminals not to violate them. properly aligned – or, more simply, institu- than lawyers.” Indeed. It may well have

Book Reviews For these are not street-level crimes. tional corruption, given the clear purpose much to do with the dramatic rise in in- They impose real costs on society. No of prosecution in a rule of law system.”23 equality as well as the increasing dysfunc- doubt, crime doesn’t explain 100% of Within his book America Compromised, tion of our federal political system over the the cause of the financial crisis. But it Lessig has at this point described two past forty years. does explain a significant slice of it. causes that contributed to the absence There is much in these two books for at- Had the law been enforced fully and of prosecutions after the financial crisis of torneys as well as the entire American pub- reliably, there is a significant chance 2008. In Chapter 2-Of Finance, which is lic to consider. When a real estate mogul, that these crimes would not have been not covered in this review, Lessig “mapped as a business strategy, stiffs many build- committed. And that means that the a political cause, grounded in the reality ing subcontractors and successfully works millions who actually suffered from that the Democratic Party simply could not through attorneys to use the legal process that crisis – not so much the individu- afford to alienate its funders on Wall Street to either avoid payment altogether, or sub- als in companies that received massive any more.”24 However, in Chapter 5-The stantially underpay, is justice being served? government bailouts, but the home- Law, which is being reviewed, Lessig de- Most of us know of instances where attor- owner who lost her home, or job, or scribed a more internal cause. For lawyers neys, to serve the interests of their clients, future – have a fair complaint against protecting their future, aggressive prose- use the legal process in ways that do not this culture of corruption. cution of Wall Street made no sense. Les- line up well with justice. …Indeed, when you think about sig maintains he has no way of reckoning The issues raised in these two books cry where criminal law is severe and where which of these causes was more significant. out for consideration, discussion and de- it is lax, it’s pretty clear the law has However, to the extent the corruption bate. I maintain: who better in Vermont to it exactly backwards. The law is very of justice was driven by dependence on lead this process than the leaders of our ju- harsh against the individuals who are Wall Street’s money in political campaigns, diciary system, the Vermont Bar Associa- least likely to make calculations based Lessig is convinced that problem could tion, and Vermont Law School? But will this on the expected value of their behav- be solved relatively cheaply, and that “we happen? Or will the issues raised by Lessig ior. Not because they’re stupid, but could fund political campaigns publicly for and Eisinger simply pass us by as we con- because when you’re desperate, you a fraction of the cost that we spend on bi- tinue on our way as before? do what you can. But corporations zarrely expensive weapons of the military ______are the perfect machines for track- each year.”25 But to the extent that the cor- Rick Hubbard Esq. is a native Vermonter, ing the expected cost of their behav- ruption of justice comes from the culture retired attorney and former economic con- ior. Make the cost of violating the law of prosecution, Lessig finds it extremely sultant now living in South Burlington. high enough, and corporations won’t hard to imagine the cost of solving that be- ______1 America Compromised violate the law. That’s especially true ing borne by anyone. “We’re not going to Lessig, , 161. And See ABA Model Code of Professional Responsibility, if the CEO realizes that violating the see government lawyers being paid more EC 4-1, 4-5, American Bar Association, adopt- law means he goes to jail. Here the law than the president.”26 I could well imagine ed August 12, 1969, last amended August 1980; treats with a rational actor. Yet the law changing the way campaigns are funded; I “Restatement Third of the Law Governing Law- yers,” Sec. 16, 49 (3rd 2000) is lax here with the rational, and ex- can’t begin to imagine changing the way 2 22 27 Lessig, America Compromised, 161. treme with the non-rational. government lawyers are paid.” 3 Lessig, America Compromised, 162. 4 Lessig, America Compromised, 164, citing Jesse Eisinger, The Chickenshit Club: Why the Justice Department Fails to Prosecute Execu- Many of you will remember tives (New York: Simon & Schuster, 2017), xiv. 5 Lessig, America Compromised, 164, citing Meri Nielsen, a long-time Eisinger, The Chickenshit Club, xv-xvi. employee of the Vermont Bar 6 Lessig, America Compromised, 165, citing Eisinger, The Chickenshit Club, xv-xvi. Association from 1993-2004. 7 Lessig, America Compromised, 165. 8 Eisinger, The Chickenshit Club, xvi Meri was the “face” of the VBA 9 Eisinger, The Chickenshit Club, xvi as Administrative Assistant, the 10 Lessig, America Compromised, 165 11 Lessig, America Compromised, jacket cover. person who warmly greeted you 12 Lessig, America Compromised, 166, citing Eisinger, The Chickenshit Club, 201. on the phone or made your visit 13 Ibid. to the VBA office welcoming. 14 Lessig, America Compromised, 167, citing Eisinger, The Chickenshit Club, 192. Meri’s exuberant personality and 15 Lessig, America Compromised, 167, citing Eisinger, The Chickenshit Club, 44-45. dedication to her job and those 16 Lessig, America Compromised, 167. she served was simply amazing. 17 Id at 169. 18 Ibid. She was a true friend and co- 19 Id at 169-170. 20 Id at 170. worker who deeply cared and loved all around her. 21 Id at 170-171. Meri died unexpectedly at her home on November 4, 2020. 22 Id at 171. 23 Ibid. We will all miss her friendship and warm smile. 24 Id at 172. 25 Ibid. Rest in Peace beautiful soul. 26 Ibid. 27 Ibid.

52 THE VERMONT BAR JOURNAL • FALL 2020 www.vtbar.org Upcoming VBA Programs Watch our website for our virtual offerings and save these dates!

Bankruptcy Holiday CLE webinars Now online with 7 credits available: December 3, December 10 and December 17, from year in review cases to ethics to technology to small businesses issues and more!

Mindful Moments for Wellness Every other week: upcoming dates December 3 and 17

YLD Mid-Winter Thaw Week January 11 week, Save the Dates!

VBA Tech Show Week MOVED to January 25th week, Save the Dates!

REAL ESTATE LAW DAY MOVED to February 10-12 for a 3-day smattering of webinars

VBA Mid-Year Meeting March 25 (Equinox Resort in Manchester or virtually…TBD)

And don’t forget to check our website for the LIVE webinar and webcast options as well as the latest titles in our digital library!

Do you have an idea for a CLE? Let us know or connect with your Section or Division Chair. Join any of our Sections or Divisions through VBA Connect on our website and customize your sharing experience!

2020/2021 VBA Section and Division Chairs

Appellate Bridget Asay & Ben Battles Intellectual Property Andrew Manitsky Bankruptcy Nancy Geise & Don Hayes International Law & Practice Mark Oettinger Business Association Tom Moody Juvenile Linda Reis & Sarah Star Collaborative Nanci Smith Labor & Employment Steve Ellis Consumer Jean Murray Lawyer Well-Being Samara Anderson & Criminal Katelyn Atwood Micaela Tucker Disability Marilyn Mahusky Municipal Brian Monaghan Dispute Resolution Richard Hecht & Neil Groberg Paralegals Carie Tarte Diversity Alycia Sanders Practice & Procedure Greg Weimer Elder Law Glenn Jarrett Probate & Trust Mark Langan & Bob Pratt Environmental Gerry Tarrant Property Law/IPR-Realtors Jim Knapp & Benj Deppman Family Penny Benelli Solo & Small Firms Mike Caccavo Federal Practice Tim Doherty Tax Law & Accountants Will Baker Govt & Non-Profit Division Jim Porter Veteran’s Katelyn Atwood Health Law/IPR-Doctors Drew Kervick & Elizabeth Wohl Women’s Division Samantha Lednicky Immigration Sidney Collier Worker’s Comp Keith Kasper Insurance Paul Perkins Young Lawyers Division Amy Davis www.vtbar.org THE VERMONT BAR JOURNAL • FALL 2020 53 IN MEMORIAM

Anthony Edward Riva Otis ny was passionate about buying local and of Virginia, after which he worked as a pub- supporting the arts. He was an active and lic defender and lawyer in private practice Anthony Edward Riva Otis of Mont- dedicated member of the Montpelier Heri- in Alexandria, VA, Washington, DC, and pelier died peacefully from dementia on tage Group, Montpelier Historical Society, the Upper Valley. A highlight of his early July 13, 2020, at the age of 71. Anthony Montpelier Historic Preservation Commis- career came when a Fourth Amendment was born Dec. 24, 1948, in New York City, sion and Trash Tramps. Anthony is survived case he tried was brought to the US Su- but grew up in Vermont graduating from by his wife, Trudy McBride Otis of Montpe- preme Court. In addition to his law career, Montpelier High School in 1966, the Uni- lier; two children and grandchildren. John was an artist. In Washington, DC, he versity of Vermont in 1970 and Willamette published his poetry in magazines and in a University College of Law in 1976. He re- personal book collection, Northern Lights. turned to Montpelier as a clerk and admin- William John McNally, III During this time, he co-founded the Wash- istrator of the Vermont Supreme Court. In ington Writers Publishing House and co- 1982, Anthony opened his first law office William John McNally, III, 76, passed developed a program in Virginia schools to and practiced law until 2016. He represent- away on Tuesday, August 25, 2020. John teach grade school students how to write ed local and national businesses and orga- was born on July 24, 1944 and grew up in poetry. He was most accomplished as a vi- nizations with legislative matters and pub- Hawaii, Japan, Arizona, and Virginia, as a sual artist, spending decades working in oil lic policy. He was often found at the State child of an army officer. After graduating painting, watercolor, and digital art, which House in Montpelier with his office a few from Duke University, he served for four included several gallery exhibitions in the doors down. He had a very diverse legal years as a Lieutenant in the US Navy. After Upper Valley. He was most content in his career culminating with Concurrent Reso- a year at sea, he deployed in 1968 to Viet- beloved home in Thetford, helping others lution #401 from Vermont House of Rep- nam, where he served in combat on a riv- to see beauty in the world through his art, resentatives honoring him for “outstand- er boat and advised the South Vietnamese his poetry, and his music. John is survived ing legal career and his community leader- Navy. During this time, he was a co-found- by his three children. ship.” Anthony was accomplished as a 1st er of the Concerned Officers Movement, Dan Taekwondo Black belt and loved mu- a group of military officers who spoke out sic, dancing, nature photography and do- against US involvement in the war. John ing artwork with colored pencils. Antho- then attended law school at the University

CLASSIFIEDS

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54 THE VERMONT BAR JOURNAL • FALL 2020 www.vtbar.org