SUMMER 2019 • VOL. 45, NO. 2 VERMONT BAR JOURNAL DEPARTMENTS
5 FROM OUR EXECUTIVE DIRECTOR — VBA Advocacy at the Statehouse
8 PURSUITS OF HAPPINESS — Improv-able Duo
12 RUMINATIONS — Politics and the Court
20 WRITE ON — Judge for a Day
24 WHAT’S NEW — VBA Legislative Overview - 2019 “Forest Bathing” by Lisa M. Maxfield 27 WHAT’S NEW — Vermont’s New Electronic Filing System
30 BE WELL — Stressed Much?
40 BOOK REVIEW
41 IN MEMORIAM
42 CLASSIFIEDS
FEATURES 32 VBF Grantee Spotlight: Orleans County Restorative Justice Center Lila Shapero, Esq.
33 Password Insecurity - Lessons from a Personal Story Mark Bassingthwaighte, Esq.
35 VBF 2019 Grants Recipients, Programs and Service Areas
36 Decision-Making at Mediation Leo Bisson, Esq.
39 Scenes from our Solo & Small Firm Conference: #Smolo!
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Executive Director Therese M. Corsones, Esq.
Director of Education & Communication Jennifer Emens-Butler, Esq.
CFO / Member Benefits Lisa M. Maxfield
Programs Coordinator Laura Welcome
Lawyer Referral Service/Membership Michelle Abajian
Administrative Assistant Tami Baldwin
Legal Access Coordinator Mary C. Ashcroft, Esq.
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4 THE VERMONT BAR JOURNAL • SUMMER 2019 www.vtbar.org by Therese M. Corsones, Esq. FROM OUR EXECUTIVE DIRECTOR VBA Advocacy at the Statehouse
The Summer Edition of the VBA Journal and the resources available locally to meet typically includes a legislative overview of those challenges. The Legislators Days are the bills that became law during the last a great way for legislators to see first-hand legislative session that affect the courts how the courts and the legal system are im- and the bar. You can find this year’s legis- pacting their constituents, and for the VBA lative overview in the What’s New depart- to forge connections with legislators. ment of this issue. Early returns from our Once the legislative session starts, we VBA Membership Survey (there’s still time check the new bills introduced daily, and to take it if you haven’t already!) show alert affected sections about any bills that VBA advocacy as one of the highest val- might impact a specific legal field. Thanks ued benefits that the VBA offers its mem- to the relationships that have been cultivat- bers. I thought it might be helpful to ex- ed with many committee chairs, the chairs plain what VBA advocacy involves. Given may also alert the VBA of bills that are be- that the 2019 session was Bob Paolini’s last ing introduced in their committees and as the VBA Government Relations Coordi- may seek testimony about ramifications of nator, I wanted to take this opportunity to the bills. In those instances, we notify the thank Bob for all that he’s done to make sections and typically the section chair or VBA advocacy in the legislature the strong others in the section are very generous in force that it is today. their willingness to testify when asked. The work starts in the fall, when section During the session, we continue our out- chairs are asked to identify any legislation reach efforts to all legislators through a that they would like to see brought be- legislators’ reception in mid-January, when fore the Legislature. Examples include any- all legislators, section chairs, bar ambassa- thing from minor revisions to statutes that dors and VBA Board members are invited are ambiguous or inconsistent with other to a late afternoon social hour in the Cedar statutes, to full scale overhauls of areas of Creek Room, and a legislators’ breakfast the law that might need modernizing. The in mid-March, when the same groups are session. Informal working groups also col- most recent example was the probate bill invited to coffee, donuts and apple bread laborate on particular issues during the intending to update and modernize Ver- pudding (nine trays’ worth last March) in summer months. For example, this summer mont’s decades-old laws on trusts and es- the statehouse cafeteria. a working group including members of the tates. Sponsors are identified, depend- Except for Town Meeting Day week in bar, bankers, realtors, and municipal clerks ing on what committee would likely be as- March, when legislators take the week off and treasurers are meeting to identify best signed the bill given its subject matter and to attend Town Meeting Day events in their practices in town clerk recording practices. Legislative Counsel is contacted to assist home districts, we check the weekly House The same group of stakeholders worked with the drafting. Section members willing and Senate calendars for progress on bills together to bring about the “best practic- to testify about the bill are enlisted so they that we’ve introduced, or bills that we’re es” recently codified in Act 38. are “on call” when the committee sched- following. If one of those bills is scheduled With respect to the VBA taking a posi- ules time for the bill to be taken up. We also for testimony, we check with the commit- tion on a bill, there’s a “Legislative Advo- reach out to the committee chair to gauge tee chairs to see if additional testimony is cacy Policy” that Bob Paolini recommend- when testimony would best be scheduled. needed and check with affected section ed to section chairs in 2002 still followed Since the Legislature can change every two chairs to see if testimony is requested. The today. It provides that the VBA Board will years (sometimes significantly – there were goal is to make sure that committee mem- take one of four positions regarding Board 40 new members in 2019) identifying spon- bers have as much information as possible support of specific legislation: support, op- sors and key committee chairs is an ever- about the proposed legislation before they pose, information only, or no position. Be- changing challenge. cast their votes. fore taking a position, the Board is asked For the past three years the VBA has Other work involves seeking out and to answer three questions about the pro- jointly organized with the judiciary a “Leg- meeting with legislators outside of the posed bill: Does the bill affect the courts, islators Day” in each of the 14 counties in committee rooms, to answer questions and the practice of law or the administration of the fall. During the Legislators Days, all to get information about specific bills, es- justice? Is the subject matter of general in- of the county legislators are invited to sit pecially ones that we’ve proposed, to best terest to the members of the Bar? Would in on court hearings for whichever dock- facilitate their passage. Some bills are eas- there be a general consensus among the et most interests them. They’re also invit- ier than others to see through the process. Board supporting the position of the Asso- ed to a luncheon, attended by the judicial And oftentimes the legislative work con- ciation? If the answer to each question is officers in the county, and “bar ambassa- tinues through the summer months. Such yes, the Board can take a position on a bill - dors” representing each of the dockets, to work includes either summer study groups to support, oppose, offer information only give legislators a chance to ask questions or task forces that include a VBA appointee; on the bill, or take no official position. about what they observed in the hearings. this summer VBA appointee Jeffrey Nolan When Bob Paolini became Executive Di- It’s an excellent opportunity to discuss will work on a “Task Force on Campus Sex- rector of the Vermont Bar Association in challenges in the courts and legal system, ual Harm” that was created during the last 1996, he was a natural fit for legislative ad- www.vtbar.org THE VERMONT BAR JOURNAL • SUMMER 2019 5 vocacy, having served two terms as a state members of the VBA who made many representative from 1986 – 1990. Asked sacrifices to improve and modernize what his favorite part about the legislative our laws. Legislative advocacy on be- advocacy work he’s done has been, Bob re- half of our association only works be- plied: cause of members’ involvement.
I’d say my favorite part of the work has The VBA is happy to help our mem- been positioning the VBA in a place bers make a very positive difference at where legislators rely on the associa- the statehouse. Without members’ will- From Our Executive Director tion as they work on bills. Since 1996 ingness to share their expertise, and their we’ve become the “go to” resource generosity of time and effort in preparing for many issues, many of which didn’t and delivering testimony, legislators would even appear on our radar screen. But be at a distinct disadvantage when voting legislators have come to respect us on bills that impact members and their cli- and seek us out for advice and sug- ents. We are very grateful to all the lawyers gestions for how best to proceed who have answered the call to testify when even if the topic at hand wasn’t nec- asked, to propose legislation, and to other- essarily one that we’d identified. Earn- wise inform legislators about a wide variety ing that position of respect is one of of topics. And Bob, we are very grateful my proudest accomplishments. to you for the standard of excellence that you’ve brought to VBA legislative advo- And his least favorite part? cacy. We will do our best to maintain and build upon that standard! I’d say it’s the unpredictability of scheduling and the amount of down time involved. There’s certainly a lot of “hurry up and wait” as those of you who have traveled to Montpelier to testify certainly know. I can’t count how many times I or one of you was stymied by ongoing floor debate that kept committees from meeting as scheduled. My thanks go to all of the
6 THE VERMONT BAR JOURNAL • SUMMER 2019 www.vtbar.org
PURSUITS OF HAPPINESS Improv-able Duo
Jennifer Emens-Butler: I am here in Burl- ington, and I have the pleasure of interview- ing two people at the same time about a cer- tain passion that both Rick Hecht and Neil Groberg have. As our readers know Pursuits of Happiness is our column where I interview lawyers who have interests and talents out- side the law, which are sometimes tangen- tial to their practices and sometimes are just something entirely different altogether. How long have you two known each other? Rick Hecht: So, I think we first met at a Chittenden County mediation group, that Neil and some other folks were trying to start up as a mediator support group. I then found myself going to a meeting that Emily Gould had called for the DR Section and somehow as a result of that meeting I became assistant chair of that Section.
JEB: Ah, so this is all Emily Gould’s fault! JEB: Ok. this,” but where you bring in other ideas like She set up her co-chair before she left. Well RH: And so it sort of happened, and then maybe you want “X” in addition to that. So done Emily! fast forward however many years, I found you expand the field of possibilities and in- Neil Groberg: I remember us meeting be- that improv is good, I’ve seen it help me crease the circle within which you can come fore that. with the law, and I think there is even more together. RH: Before my “power?” [laughs] tie-in with mediation (where things come at NG: I remember the mediation folks try- you from out of left field) so Neil and I and a JEB: Right, creative solutions! Is there al- ing to help plan mediation week at Citizen’s couple of other folks, put together a work- ways somebody at improv like Michael Scott Cider and I think that was the first time I met shop that was co-sponsored by the VBA and in The Office, where in his improv class he Rick, and we were brainstorming at the time. Champlain College’s mediation program. always ends up saying he is a a secret agent The workshop had a bunch of the trainers with a gun and no matter what they are talk- JEB: Wait, you were planning the media- from what was to be the Comedy Club and it ing about, be it labor and delivery, aliens, tion week at Citizen’s Cider, or the mediation was a really good time. toddlers or what have you, somehow, he al- week was going to be at Citizen’s Cider?! ways seems to pull out the gun and says “Mi- NG: Ha, well it should have been! But no, JEB: So the mediation section went to this chael Scarn, FBI” or something. Do you have we were brainstorming what to do for medi- workshop? some people who are just one-track mind ation week over cider, and I think Rick came RH: Yes, it was probably 25-30 people who people? up with the suggestion of doing something all participated. RH: Yes, I think there is sort of a self-weed- with what was then under construction, the NG: It was a lot of fun and it was educa- ing process, because in level 1, you have Vermont Comedy Club. tional, and it was where I learned the underly- people who are all over the map. I think one RH: Yes, the Comedy Club at that time ing theory of improv, which is actually incred- of the most important lessons I learned in the was just starting up with Nathan Harwick and ibly helpful in mediation: instead of saying early classes is to stop trying to be funny, that Natalie Miller. It was in infancy, but I had tak- ‘yes BUT,’ when someone says something, you really sort of shoot yourself in the foot en a standup class from Nathan and I knew you say ‘yes AND,’ where you expand the when you come up with a plan for how the that they also did improv. thought as opposed to contract the thought. skit is going to go and how you are going to RH: So the way it plays out in improv is, be more clever than everyone else. JEB: You were already interested in im- let’s say someone will walk into the scene prov? and come up with an idea that you think is JEB: Right you must be open to alterna- RH: Right. I came to improv when I was a completely stupid, and flat, but you are mor- tives… first-year law student. When I was In Boston ally obliged not to say “no, we are not doing RH: Right you have to be open, you have they had this sort of continuing education that” but you have to say “Okay” and make to be mindful, and there is a lot of people thing that had all sorts of classes -- anything it work. who try it out that cannot do that and then from knitting to astrology -- and one of the you know, you don’t see them at level 3 or classes was improv comedy and I thought, JEB: Oh, so now I am an alien, or what- higher. Or they do a one off and say this was that’s what I need! ever. fun, but I am not interested in doing it any- JEB: Needed? RH: Exactly. It is one of the crucial things more. RH: Yeah. It really was, like this is the op- in negotiation and mediation, where you NG: Some people are better naturally and posite of drilling stuff into my head at law expand the threshold of what you are talk- some people are more persistent with train- school and being more free flowing. ing about so hopefully, not just saying, “oh I ing, kind of like me. I didn’t have any prior want that” and the other person says “I want experience or inspiration other than having
8 THE VERMONT BAR JOURNAL • SUMMER 2019 www.vtbar.org
what my family thinks is a terrible sense of JEB: You are going to improv right here. yeah sure. humor over the years, loving comedy and RH: Yes! So standup is more like trial work, NG: There are 5 people in our “senior” loving watching improv so I just thought, hey, you know, prepare, prepare, prepare. I start- group called Celine Dior (long story) and we this would be kind of fun. I was thinking my ed out with maybe 10 minutes of pretty lousy have been a great team. The coach has been kids are out of the house and in my practice material, and over the course of 5 weeks of terrific with us. I love it so much that these is now just mediation, so I had time at night classes, honed it down to maybe 4 minutes performances have been my continuity with
Pursuits of Happiness to do it. I thought it was going to be a one- of pretty good stuff. So, like trial work, it’s the club. I am not sure what my next things off, just to try it, but I loved it! the constant sitting with the material and is, because there was also a sketch comedy honing it down… class, which I took, and Rick took that too, JEB: And do you find you grew as you and the only class I haven’t taken is standup. were able to be more creative as you took JEB: And hoping you have a receptive ear. the course? RH: Yes, hoping you have a receptive ear, JEB: You don’t do trial work, so you don’t NG: Yes, I improved as I moved on to each and running it past as many people as pos- need it? level where in level three you can expand the sible to see who thinks it is funny. NG: I don’t do trial work, and I never liked story more. trial work. They did do something this win- RH: The courses at the Comedy Club are JEB: Are you going to give us one of those ter where they had improvers who had nev- really special. They have built up this real 4 minutes? er done standup, do standup, and standup community of improv learners, fans and in- RH: Not on the record. people who had never done improv do im- structors, and so even though sometimes I prov. feel pretty out of my league, they are all so JEB: Oh, bummer! Contains some f- friendly and fun that it doesn’t matter. bombs? JEB: And? RH: I suspect so, yeah. But improv, it’s NG: I thought, and modestly, that it was JEB: You said that the downfall of a lot of more like mediation, even just when you are funny even though I was nervous all week people is trying to be so funny and creative meeting with your client or meeting with op- and didn’t want my family to come. I didn’t in their own world that they cannot see what posing counsel for the story. And at the ses- want to tell them I was doing it. is going on, but it does end up being funny, sions, you have to be ready for anything and RH: So you told her you were having an right? you have to be creative and open. The train- affair? NG: Yes, it is absolutely funny. Once you ings definitely help. just let yourself be part of the flow of the big- NG: I continue to do trainings and perfor- JEB: [Laughs] Yeah, anything but standup! ger process, you kind of lose any pressure to mances because I love it so much. Rick is a NG: My wife came and said it was pretty be funny, you just add to the scene which little more occupied than me, because he has good and was startled by how poised I was. inevitably ends up being funny. I mean it is 3 children at home. A lot of independent im- , generally, I don’t think I could do the stand- hard not to think of funny things but still you prov groups have sprung up out of the club. I up class because it is too structured for me. shouldn’t try to be funny, you just go with it. joined one of them, the “old” people group, It never ceases to amaze me, the things that and it… JEB: Too prepared and designed? come to you. The value of it is that it ends RH: Over 40. RH: Yes, there is a rhythm to typical stand- up being incredibly funny and you just get a up, there is the setup, there’s the joke and rush with it. JEB: Oh, wow yikes. then you move on, but, like Neil, I am more NG: That’s to show you how young the of a story teller and so I found that structure JEB: Saying things that you thought of you usual demographic of the comic club is. And kind of hindered me. never would have…. almost every Wednesday night they have NG: Right, it was pretty shocking to my what’s called the “Smack Down” which is JEB: Question for both of you because the family because it is a safe space, where you where 3 independent improv groups com- thought of doing either improv or standup can go off and say things without violating pete against each other, the audience votes, scares the daylights out of me. Class clowns, social constraints, although, we do make a and the winner gets to go the next week. yes or no? big effort to make sure that the performanc- RH: No. es do not have discriminatory or sexist intent. JEB: Ok. NG: No. NG: So, the old age group has performed JEB: Because off-color tends to be funny, 4 or 5 times in the Smack Down. We won JEB: Shy? but you have to be pretty careful, since you once and we won the trophy and then we RH: Yes. never know what people are going to say, lost the following week. NG: Yes. right? RH: Well, I think, I was a class clown to a RH: It’s definitely hard to string five words JEB: Ok, sounds fun! Are these perfor- certain group of like 2 or 3 people. together on stage at a comedy club without mances at a bar? saying the f-word, for example. NG: No, it’s at the Comedy Club. But it’s a JEB: Ah, so they knew you were funny but full liquor licensed bar, with an inside section no one else knew you were funny! JEB: But that is allowed. with tables and chairs and the stage. NG: My 25-year-old self-looking at myself NG: Correct, there is no censorship. now, would be shocked. JEB: Ok, nice. JEB: So speaking of the f-word, I under- NG: Yes, they do have table servers, and JEB: Neither of you would imagine that stand you took the standup class too, Rick, actually pretty good snack foods and things, you would have done this? so that’s more pressure in trying to be as fun- my favorite is they warm up cookies … I RH: I don’t know, because even though I ny as possible and trying to think of creative should say we are not getting kickbacks. was shy about it, I have always liked humor things to say. and I have always liked doing funky things RH: Yes, so this may be a stupid analogy, JEB: I know, first you were saying how with words, so maybe I don’t think my teen- but it just popped into my head and I am go- awesome the Comedy Club is and now you age self would be surprised that I did it more ing to use it. are saying something about the cookies, than once. But I wouldn’t have done it then.
10 THE VERMONT BAR JOURNAL • SUMMER 2019 www.vtbar.org Pursuits of Happiness There was an improv group at college where what you are focusing on and then you are my hidden dream was to l join it, but I never focusing some more, but improv goes exact- felt like I would be good enough, so I nev- ly the other way. It’s like all of those circuits er did. that were so tightly honed on, for example, whether this piece of evidence can get in or JEB: I know our former VBA President, not, in improv you are suddenly free to go Dan Richardson has done improv and stand- anywhere and set your mind free in a creative up but maybe just in Boston. Have you seen space. him or other lawyers there? NG: And I wanted to add in terms of the NG: No, but there are lawyers doing it. I value of improv and comedy for people, not can’t recall any names. just lawyers. When we moved to Burling- ton, I became involved with a neighborhood JEB: Well I like the idea that improv is re- planning assembly and I was on the steering ally good for mediation, and thinking on your committee for 5 years which was quite ac- feet as lawyers, so at your suggestion for the tive. And I became filled with angst about bar, we are doing an improv CLE the Thurs- pressing issues and I got burned out. But day night of our Annual Meeting on Septem- then I focused a lot of my energy on improv, ber 26th. Maybe it will be more lawyers that and I think that in this very messed up world, are interested in doing improv after this. being able to have that escape of comedy RH: Oh, no. I don’t want the competition! and have people laugh and enjoy things, is really valuable, and not just to me, but I re- JEB: But then you could put together ally do feel it helps everyone to come and es- a group of 5 to compete, to be the lawyer cape and see humor. team, but what would the name be? NG: Of the lawyer team? JEB: Laughter is one of the most impor- tant things that keeps us all sane. JEB: Yeah. NG: Yes I even try in the right circumstanc- RH: We could think of a whole lot of off- es in the mediation to bring some humor into color suggestions I’m sure. the room. And I think it cuts the tension. RH: But the one thing that I wanted to add JEB: No improv? in keeping with your column goals, is that NG: I was thinking of the joke, what’s one there is an aspect to improv, that almost feels good lawyer on the bottom of the Hudson. like a meditative practice, kind of like yoga, for me. It’s the freeing of the mind, to get ab- JEB: Right, you could just call the team “A sorbed in the moment. Good Start” but of course I’m always in favor of something more positive to help with the JEB: Right, you have to be super mindful public perception of lawyers. Maybe “Jus- to get into the scene. If you let your mind tice Crusaders” or something. wander then you are not part of the team You both firmly believe that it has helped and you are not expanding on what they are your mediation practices, right? doing, but rather you are trying to be too NG: Oh, yes absolutely! It’s akin to media- clever. But you have to be paying attention tion training, a renewal of sorts, it is refresh- the whole time and be present to what is go- ing and it keeps your brain active. Here I am, ing on, right? this old guy, working with very young people RH: Yes, and I think that is the closest thing who are really vibrant, and who are coming to meditation or yoga, but a really good gig up with these incredible things and you have just feels so much better even. got to keep up with them. It keeps you fresh. JEB: Ah! Like yoga and meditation, humor JEB: Isn’t that funny, my interviewees seem and fun all wrapped into one, with the added to find polar opposite things to be refresh- benefit that it is helpful to your law practices ing. For example, I interviewed Mark Oet- too. Everybody should be doing this! tinger who plays high level duplicate bridge RH: Yes. and I said to him that most of the people I in- NG: Oh yes. terview want to do something physical, they want to do a sport or something with their JEB: I am sold! See everyone on Septem- hands, where they can shut their brain down ber 26th for an evening at the improv in Bur- entirely to relax. So I asked him “is this relax- lington. ing for you to have to use your brain so stren- ______uously?” He noted that using your brain in a Do you want to nominate yourself or a fel- very different way, where it can be taxing but low VBA member to be interviewed for Pur- also creative and fun, is extremely relaxing. suits of Happiness? Email me at jeb@vtbar. NG: Yes, it’s very energizing and relaxing org. in the same breath. RH: I think that is a really good point. I see legal work as something that you go in tighter and tighter, and it’s like you focus on www.vtbar.org THE VERMONT BAR JOURNAL • SUMMER 2019 1 1 by Paul S. Gillies, Esq. RUMINATIONS Politics and the Court
On November 18, 1944, President Frank- tion in the election of 1936 except Maine lin D. Roosevelt attended a cocktail party in and Vermont.5 He never won Vermont in Burlington. William Hassett, who traveled four presidential elections.6 with FDR for several years, reported that The Republican Party of the 1940s was Stella Pratt Moulton, the wife of Vermont’s not purely conservative. It was the first ma- Chief Justice, told the president, “although jor party to endorse an equal rights amend- her husband was a ‘morbid’ (new descrip- ment for women in its platform, in 1940. tive adjective) Republican, she had voted But it was opposed to the Democrats’ at- for the President; also to tell him that the tempts to concentrate power in the fed- wives of the old-line Republican members eral government, consequently limiting of the faculty of the University of Vermont the powers of states and interfering in pri- all had voted for him.”1 Hassett’s mem- vate commerce, setting minimum wages oirs were published in 1960. Chief Justice and hours, fixing prices, and regulating the Moulton died in 1949, and may never have workplace. known what his wife told the President. “Morbid” in this context is more chal- The private lives of justices are none of lenging. An online dictionary defines it as our business, but all the same it is hard not “characterized by or appealing to an ab- to focus on the idea of a “morbid Repub- normal and unhealthy interest in disturb- lican.” Did Mrs. Moulton reveal something ing and unpleasant subjects, especial- about the Chief? Would his political phi- ly death and disease.” Synonyms include losophy show in his decisions on the court? “ghoulish, macabre, gruesome, grotesque, There are plenty of decisions to choose ghastly,” and “unwholesome.”7 As applied from. Moulton served 30 years as a judge, to politics, the term has an obvious pejo- seven as a Superior Court Judge, 23 on the rative meaning. Arthur Schlesinger, Jr. la- Supreme Court, and nearly eleven of those beled Richard Nixon a morbid Republican, years as Chief Justice. He authored more in Kennedy or Nixon: Does It Make a Dif- than 100 decisions as Chief, more than 160 ference? (1960).8 The first use in a Vermont as an Associate Justice.2 Are his political paper came in 1886, when the editor of the opinions reflected in this body of work? Argus and Patriot, a Democratic newspa- Chief Justice John G. Roberts, Jr. said per published in Montpelier, commented, islature in reviewing acts for their constitu- recently, “There are no Obama judges or “This record of the administration for pay- tionality, and a consequent reluctance to Trump judges, Bush judges or Clinton judg- ing the debts of the government is a most exercise judicial review to undo what the es. What we have is an extraordinary group satisfactory and enviable one, and abun- legislature has enacted. “Activist” judges of dedicated judges doing their best to dantly demonstrates the economic ability are more likely to invalidate legislation on do equal right to those appearing before and tendency of a thoroughly Democratic such grounds.11 In criminal law, a conserva- them.”3 But some judges are conservative government. Those morbid Republicans, tive judge may be less likely to recognize and some are liberal and some are progres- ranters who have prophesized financial ruin the privacy rights of landowners in the in- sive. These biases are political, even if they to the government by a Democratic admin- vestigation of crime, less likely to extend are detached from any political party plat- istration, are invited to consider those facts constitutional protections against unlawful form. Let’s investigate.4 and figures.”9 search and seizure, less willing to dismiss Perhaps Mrs. Moulton intended it to prosecutions on the dividing line between Standard of Review mean “dedicated” or “determined” (but words taken down after Miranda warnings not “rabid”), connoting a political philoso- than before. To a conservative, “judicial We begin by defining terms. As a Re- phy that was unsusceptible to change. We legislation” is anathema. publican, Sherman Moulton was not alone. can only imagine the discussions that must Another issue is delegation. The laws Every Governor from 1854 to 1962, when have occurred at the Moulton home during must have standards to be enforceable; Phil Hoff became the first Democrat to be the era of the New Deal, the U.S. Supreme without them, whatever action is taken is elected to the high office, was a Republi- Court’s repudiation of its programs, and arbitrary and indefensible. This idea has de- can. Vermont was Republican. There were the threat of enlarging the highest court in feated many laws at the federal and state factions within the Republican Party, a con- the land to overcome that conservative op- levels, on separation of powers grounds, servative wing and a progressive wing, but position to FDR’s efforts to introduce “so- where the legislature has improperly ceded Vermont progressivism was very unlike the cialist” programs and expand the reach of to the executive the power to make quasi- progressivism of 2019. And the Republican the federal government.10 judicial decisions or quasi-legislative rules Party of the thirties and forties was not like “Morbid” wasn’t easy, but how about or ordinances, with undefined discretion. the party or its positions today. The natu- “conservative”? The political dividing line Conservative judges share a strong be- ral fiscal conservatism of state leaders was between conservative and liberal or pro- lief in precedents. What has been decid- hardened by the two world wars and the gressive judges is reflected in several ways, ed should not be easily overturned. They depression. FDR won every state in the na- including the relative deference to the leg- favor property rights, are likely to find un-
12 THE VERMONT BAR JOURNAL • SUMMER 2019 www.vtbar.org
constitutional takings, and prize Article 2 and the recovery were threatened. His an- tangible benefits like a greater sense (compensation for taking private property swer was to expand the court, which nearly of security on the part of inhabitants for public purposes) over Article 5 (police came to pass, had Justice Owen Roberts and sojourners, possibly tending to at- 22
Ruminations power). not changed his position and begun voting tract more business to the town? Categorizing judges and justices by with the court’s more liberal members (the these criteria is risky. Louis Peck was a con- “switch in time saved nine”).17 The court struck down provisions of the servative, as shown by his dissents. But try- During the mid to late 1930s, this judi- Gross Retail Sales Act in 1935, null and ing to classify other judges and justices of- cial crisis would have been a subject no jus- void for violating Articles 1, 7, and 9 of the ten defies us. Decisions are based on prec- tice or judge could ignore. It would have Vermont Constitution and the Fourteenth edent, statute, the constitution, and legal been talked about over a justice’s dinner Amendment to the U.S. Constitution, find- ideas, under specific facts, and there is usu- table and in the chambers of the court ing the law arbitrary, unequal, and unrea- ally little room for discretion.12 in every state, including Vermont. Every- sonable. Retail merchants were taxed on a How can we really know Sherman Rob- one watched as the Supreme Court of the graduated scale, increasing in proportion erts Moulton? We have his decisions, and United States struck down elements of the to the amount of sale, varying from one- we have a few other facts. We know he was New Deal, including acts for debtor relief, eighth of one percent to four percent.23 born in Burlington in the house that John a poultry code, a price fixing law for agri- The court also found a statute requiring Dewey lived in before him. His father was cultural products, a tax on coal, and a law those convicted of intoxication to disclose a banker who owned a stock farm in Ran- regulating the hours women and children the names of the sellers of the drinks violat- dolph that made “butter of great perfec- could work.18 ed Article 10 (self-incrimination).24 tion,” that won a gold medal at the Paris During Sherman Moulton’s years on the In eight cases during Moulton’s tenure, Exposition of 1889 and another at the 1893 Vermont Supreme Court (1926-1949), his the Vermont Supreme Court found laws or Chicago World’s Fair.13 We know Sherman court exercised judicial review seven times acts not unconstitutional, including a stat- Moulton promised 30 Revolutionary War to void acts or statutes, four of them based ute that imposed penalties on a decedent’s era drums to the Vermont Historical Soci- on Section 5 of the constitution, the sep- estate for failure to list intangibles for tax- ety in 1915.14 We have his book, The Boorn aration of powers clause. Struck were a ation (proportional contribution and equal Mystery (1937), a defense of the Vermont local ordinance requiring high fees for a protection not offended);25 a change in the Supreme Court’s actions in the murder junk dealer license that raised revenue law on gaming machines that revoked all convictions of two brothers accused of kill- and allowed trustees to grant licenses on existing licenses (authorized by the police ing another, notorious in Vermont judicial their sole discretion; a junk dealer’s ordi- power);26 a law that prohibited billboards history for the arrival of the victim short- nance that gave total discretion to the vil- on highways (a proper and constitutional ly before one of the brothers was to be lage trustees where a junk yard may be lo- exercise of the government’s right to regu- hanged.15 Moulton was a graduate of Har- cated;20 a statute requiring the Supreme late the use of highways; police power);27 vard Law School. In a book published to Court to give advisory opinions to the leg- the non-exemption of municipal electric honor the graduates of the school, he in- islature;21 and a law allowing the allocation plants located outside of the town (no of- cluded his score on the bar exam (95.28, to of flood control project funds. That wasVil - fense to the constitutional guarantee of Ar- be precise) in his biography.16 As Report- lage of Waterbury v. Melendy (1941), which ticle 9);28 an act that appropriates money er of Decisions, he was the one to remove left the apportionment decision to the not in the state treasury at the time the ap- the synopsis of attorneys’ arguments from Board of Public Works and the Public Ser- propriation is made (again, Article 9 not Vermont Reports, a long-standing prac- vice Commission. Justice John S. Buttles triggered);29 the acts of a town grand juror tice of the court. These details tell us noth- wrote the decision for the court, and fault- who also served as a referee in bankruptcy ing about his politics or his judicial views. ed the law for failing to include standards (although the constitution was violated by If there are revelations of a conservative for the apportionment of expenses. dual office holding, his acts are valid under temperament, they would appear in the the de facto officer rule);30 the price-fixing opinions of the court that he authored, and How are the benefits to the munici- provisions of milk regulation;31 and the stat- those he joined. palities to be determined? Shall it be ute appraising corporate stock for taxation Sherman Moulton’s years on the court only on the basis of probable flood (no usurpation of judicial power, no offense saw many changes and challenges for Ver- protection to riparian property own- to due process, nor a palpably arbitrary or monters and the world, including the 1927 ers, thus requiring assessment of the unreasonable classification of taxpayers).32 flood, the 1929 Wall Street Crash and the whole town for the direct benefit of In constitutional cases, the court sets a depression that followed, prohibition, and riparian owners only? Is riparian land high bar. Every presumption is to be made World War II. In his years as a judge or jus- alone to be considered, or land lia- in favor of the constitutionality of an act of tice, women were given the right to vote ble to flowage on a basis of frontage, the Legislature and it will not be declared and serve on juries, motor vehicles re- area, or value, or shall consideration unconstitutional without clear and irrefra- placed horses, radio became omnipresent, also be given to the personal prop- gable proof that it infringes the paramount and FDR brought on the New Deal. The erty of great value which is subject to law.33 An act is never to be construed as un- first federal laws that Roosevelt sponsored flood risk in some of the towns and constitutional if a reasonable construction to respond to the depression were struck cities? Or is the term “benefits” to be can be placed upon it which will render it down by the Supreme Court. These deci- restricted to benefits which the mu- valid.34 sions defined conservative judicial thinking. nicipality itself, apart from its citizens, Another fertile area for discerning a jus- may receive, such as protection to its tice’s views are dissenting opinions. Only Judicial Review highways and parks and public build- there will the individual justice’s voice be ings and any lands to which it may heard. FDR was frustrated by the rulings of the have title? Or is the term to be given a Supreme Court that threatened to undo wider application and held to include Dissents the work his administration had done to not only protection to property, but respond to the depression. The New Deal also to life of the inhabitants and in- Sherman Moulton dissented only four
14 THE VERMONT BAR JOURNAL • SUMMER 2019 www.vtbar.org Ruminations times in his nearly 23 years as a justice. The majority in State v. Baker (1947) held Although he did not live to appreciate it, that “only physical means for compelling three of the four cases were eventually re- a person to give evidence against himself versed on the grounds common to the in a criminal prosecution are forbidden by ideas raised in his dissents. Chapter I, Article 10 of the Vermont Consti- Sherman Moulton’s first dissent began tution.” Chief Justice Moulton dissented, with a confession of humility, in Universi- arguing that a moral compulsion is equal- ty of Vermont and State Agricultural Col- ly prohibited. “I construe this provision of lege v. Ward (1932).35 “I regret that I cannot our Constitution to forbid compulsion of agree with the majority in the disposition of any kind, moral as well as physical, which this case. It is with all diffidence that I find may cause a respondent against his will to myself unable to reconcile my views with give evidence as a witness in a prosecution those of my brethren, whose mature opin- against him for a criminal offense. Moral ion cannot fail to impress upon me the high compulsion can be just as strong and just respect which it deserves and the temerity as hard to resist as physical compulsion.”41 of a dissent from it. Yet my belief in the un- In 1957, Baker was overruled. Recogniz- soundness of their conclusion prompts me ing that the statute on which the holding to state the reasons for my objection.” was based had been amended in 1955, The justice could not agree with the ma- the high court in State v. Goyet (1955) ex- jority’s understanding of lease lands. “We plained, “It seems plain from the history of have here a conveyance which is valid un- the legislation and our decisions in connec- der the common law as regards private tion therewith, that it was the intention of lands and valid under the statute as regards the Legislature, by this amendment to re- public lands. If, in one case, the instrument move the dilemma to which we have re- conveys a conditional fee, it is difficult for ferred in which the respondent was placed me to understand why it does not do so in by the 1935 amendment. Referring to that the other; and why exactly the same lan- amendment, Chief Justice Moulton in his guage should be construed to mean one dissenting opinion in State v. Baker, supra, thing in one instance, and the opposite in 115 Vt. at pages 113–114, 53 A.2d at page the other.” 64 said, ‘Before its amendment P.L. § 2383 In 1946, the Supreme Court criticized the required that juries be instructed that the Ward decision in Colette v. Town of Char- refusal of a respondent to testify must not lotte.36 The court in Ward had ruled “that be considered by them as evidence against a possibility of reverter is incapable of him. It cannot be assumed that this admo- alienation or devise. The question at issue nition was not given due weight and atten- in that case was whether the instrument tion by those to whom it was addressed.’”42 through which the defendant claimed title Chief Justice Moulton also dissented in was a lease or a conveyance of a base or Kinsley v. Herald & Globe Ass’n (1943), a li- determinable fee. The alienability of a pos- bel case where the jury had awarded dam- sibility of reverter was not in issue or rele- ages for statements made in a newspaper vant to the issue presented, and the state- article, a judgment affirmed by the Court. ment above referred to is not to be consid- The Chief explained, “I would hold that the ered authoritative as to a possibility of re- article may be reasonably understood as verter resulting from the creation of a qual- an expression of the opinion of the writer ified or determinable fee.”37 The line was concerning tort actions, arising from au- dictum, and of no binding value, but paral- tomobile accidents, between near rela- leled Moulton’s criticism of Ward. tives, where the damages recovered must Partition was the subject of Billings v. be paid by liability insurance companies, Billings (1946). The majority concluded and, without the imputation of anything that when two parties own equal shares in wrong or illegal in the conduct of the plain- a piece of property and both wish to take tiff in the particular instance, calling atten- assignment of the other’s share, the stat- tion to the danger of collusion and fraud in utory scheme requires public sale of the proceedings of this nature.” “So long as a property.38 Chief Justice Moulton dissent- newspaper writer states his actual opinion, ed, saying the majority’s decision “savors on a matter of public concern, based upon altogether too strongly of judicial legisla- a true statement of facts, and without the tion.”39 sole purpose of causing harm to another, In 2002, the Supreme Court overruled he cannot be held liable for what he writes Billings and the Chief’s dissent finally found and causes to be published, although it a majority. In Wilk v. Wilk, the court held may be defamatory.”43 “that, under the statutory scheme, a trial court may consider the relative equities of Moulton’s greatest decisions multiple parties wishing to take assignment of an outstanding interest in a parcel and If there was a contest to name the great- assign that interest to one of the parties, est decisions of a justice, it’s only fair we instead of ordering a public sale.”40 should insist on criteria. This shouldn’t be www.vtbar.org THE VERMONT BAR JOURNAL • SUMMER 2019 1 5 discretionary. The choices would be nec- trol board to fix minimum and maximum presumed to continue thereafter until the essarily idiosyncratic even with some crite- retail prices. When Chief Justice Sher- contrary is shown.”48 ria by which to judge greatness. There are man Moulton reached the Articles 7 and 9 The court in Nelson v. Bacon dismissed
Ruminations seven of Moulton’s majority opinions that claims, he dismissed them quickly with the the abandonment claim by ruling that “In stand out, because they state the leading comment that he saw no arbitrary or irra- order to establish an abandonment there principles for certain species of cases, be- tional legislative classification in the facts of must be in addition to nonuser, acts by the cause they are often cited as authorities by the case, although the legislation treated owner of the dominant tenement conclu- successor courts, and because they have producers’ cooperatives and charitable or- sively and unequivocally manifesting either attained a certain cachet in the history of ganizations differently from other milk pro- a present intent to relinquish the easement the development of Vermont law. ducers.45 or a purpose inconsistent with its future ex- Of course a written decision by a jus- “The statute itself negatives any idea of istence.” In 1989, the Supreme Court re- tice is not necessarily a reflection of the arbitrary action by the board in this regard, versed this position, finally establishing judge’s own personal opinion, but an opin- for in sec. 5 the elements of costs of pro- that “reliance by the owner of the servient ion of the majority, and the resultant deci- duction, transportation, processing, distri- estate is not required to establish an aban- sions are not made on the basis of political bution and other services, the balance be- donment of an easement,” overruling Nel- philosophy, but on the law, precedent, and tween production and consumption and son.49 rule. But the justice is the author of the de- the purchasing power of the public, which Three other of Moulton’s decisions were cision, and it must be fair to conclude the the board is required to take into consid- overruled by subsequent courts. In 1941 choices of words and principles are owned eration in fixing just and reasonable pric- his decision in Gero v. John Hancock Mut. by the writer. At some point in many cases, es, are carefully enumerated.” The act had Life Ins. Co. held that the “only inferences the law is piled up on one side of the road standards. of fact which the law recognizes are imme- and the facts are piled up on the other, and The 1941 decision in Schirmer v. Myrick diate inferences from the facts proved,” the court walks down the middle, usual- is remembered for forcing the Communist and not inferences drawn from other in- ly allowing the facts to stand and, at least Party candidate for U.S. Representative off ferences. But he also concluded that par- in Moulton’s time on the court, allowing the 1940 General Election ballot. The can- allel inferences—several inferences built the trial court’s decision on the law to re- didate had served as a notary in adminis- on the same facts—were proper. In 2010, main unchanged as well. Affirmances were tering oaths to those who signed his pe- the high court abrogated Gero in State v. more common than reversals in the years titions, and the Secretary of State had re- Godfrey, abandoning what it called an un- Moulton served (1926-1949). fused to accept them for that reason. Chief workable distinction, a distraction from the Moulton’s decision in Village of St. John- Justice Moulton agreed with the Secre- basic question whether the evidence suffi- sbury v. Aron (1930) declared a village ordi- tary. “[P]ublic policy forbids . . . one with ciently and fairly supports a finding of guilt nance repugnant to Articles 1, 4, and 7 and a financial or beneficial interest in the pro- beyond a reasonable doubt.50 the Fourteenth Amendment, as it gave to- ceeding” to perform even a ministerial Charging “gross” error in judgment as tal discretion to the trustees on where junk function.”46 Schirmer may be evidence of a condition for recovery in a medical mal- yards could be sited. a political bias against a renegade party; practice case was held to be essential in however tempting that thought is, there is Domina v. Pratt (1940), a case express- No rules are laid down for the guid- no direct evidence of a discriminatory im- ly overruled by Deyo v. Kinley (1989), af- ance of the trustees; they are not re- pulse, and the need for clarity on whether ter calling the charge “at best misleading quired to consider the personal fitness there is a conflict of interest even with min- and confusing,” suggesting a “standard of of the applicant, the propriety and isterial duties is welcome. care higher than ordinary care.”51 In 2014, convenience of his location or prem- That year Chief Justice Moulton wrote in Demag v. Better Power Equipment, Inc., ises, or any other thing in granting or the majority decision in Trybulski v. Bellows the Supreme Court reversed the holding withholding permission to carry on Falls Hydro-Electric Corporation. Plaintiff in Watterlund v. Billings (1942). A business the business. No regulations are pre- had been damaged by the operation of the owes a driver a duly of reasonable care re- scribed, the compliance with which dam. The law governing the Public Utilities gardless of the driver’s status as an invitee will entitle the applicant to receive a Commission granted that body the authori- or licensee.52 license. The requirement of a fence ty to assess damages. The Commission dis- A major public trust decision was issued does not so entitle him. Whether or missed the petition, for lack of jurisdiction. by Chief Justice Moulton in 1944. In State not the license is to be granted lies Moulton agreed, concluding that power v. Malquist, his opinion denied a landown- wholly in the discretion of the trustees was purely judicial, and not “incidental to er’s claim to the right to lower the water and the discretion they may exercise the general supervisory power of the Com- of Lake Fairlee, finding it a public nuisance. arbitrarily and for personal and private mission.” It violated Section 5 of the con- The lake was boatable. “The artificial lake reasons. stitution.47 has become the natural lake, the artificial At the business block on Merchants Row level has become the natural level, and the This reasoning would come back again in Rutland, a passageway on the second entire body of water has become subject as a powerful weapon against arbitrary de- floor linked two buildings, after the walls to the common rights of fishing and navi- cision-making in several dozen cases.44 were removed. One tenant of one of the gation and to all other incidents of public In State v. Auclair (1939), the Supreme buildings blocked the door. The owner water.”53 Court affirmed the lower court’s decision of the other building sued to have it re- Finally, the Moulton decision in Town of finding a man named Auclair guilty of sell- opened, claiming a right-of-way. The ten- Springfield v. Newton (1947) is memorable ing milk without a license. Auclair’s de- ant argued the easement had been aban- for its ruling on the principle of dedication fense cited Articles 2, 5, 6, 7, and 9 of the doned. On appeal, the Supreme Court, in and acceptance in highway law. The accep- Vermont Constitution claiming the act on the voice of the Chief Justice, upheld the tance was lacking, even though the road which the prosecution was based was dis- easement in Nelson v. Bacon (1943). He commissioner maintained the road, when criminatory and a denial of due process, in explained, “The existence of a thing, per- the selectboard had never explicitly autho- particular because it authorized a milk con- manent in its character, once established is rized it.54
16 THE VERMONT BAR JOURNAL • SUMMER 2019 www.vtbar.org Ruminations What have we learned? in politics, but his fitness for the position was so generally acknowledged that he was elected to the place by a legislature overwhelmingly repub- Was Sherman Moulton a morbid, Repub- lican, and against numerous competitors.” B.F. lican justice? The cases do not show it. He Fifield, “Timothy Parker Redfield,” Abby Maria may well have been a partisan in politics Hemenway, The History of Washington County at home, across the dinner table, but his (Montpelier, Vt.: Vermont Watchman and State decisions show no infection of politics into Journal Press, 1882), 540. Politics comes into courtrooms through his work on the court. He was certainly a challenges to nominating processes and elec- conservative. This is seen in his constitu- tion challenges. See Judd v. State, unreported tional decisions, which focused largely on (2012). Defamation is another entry point. In separation of powers issues. He punished 1901, E.M. Sutton was indicted for defaming the Supreme Court. The report of the decision in- acts of discretion without standards. Where cluded the offensive language: “There is no use government action was challenged, he was for a Democrat to bring anything to the supreme more likely than not to affirm what officials court of Vermont where politics is involved, and have done than second-guess them in their there is an unbroken line of just such procedure State v. Sutton duties. for the last forty years.” , 74 Vt. 12 (1901). The indictment was upheld on appeal. Lucky for us we do not insist on our judg- 5 “As goes Maine, so goes Vermont,” quipped es leaving their moral compasses at the FDR’s campaign manager James Farley, mock- door of the courthouse. We do not want ing the axiom that “As goes Maine, so goes the men and women on the bench with no in- nation,” popular in earlier elections. Columbia Daily Spectator, 5 November 1936. terest in politics. We don’t want politics to 6 See Samuel B. Hand, The Star That Set: The affect their reasoning, but far worse than a Vermont Republican Party, 1854-1974 (Lanham, judge with a conservative or liberal philos- Ma.: Lexington Books, 2002). ophy is a judge with a blank mind, with no 7 www.dictionary.com/browse/morbid. 8 Democracy’s Muse: How interest in how the world works. Andrew Burstein, Thomas Jefferson Became an FDR Liberal (Char- ______lottesville, Va.: University of Virginia Press, 2015). Paul S. Gillies, Esq., is a partner in the 9 “Various Editorial Notes,” Argus and Patriot, Montpelier firm of Tarrant, Gillies & Rich- 6 October 1886, 6. ardson and is a regular contributor to the 10 The term “morbid” when associated with “Re- A collection of his publican” is an epithet that appeared in newspa- Vermont Bar Journal. pers as early as 1868, although the phrase rare- columns has been published under the ti- ly appears in print in other sources. “We merely tle of Uncommon Law, Ancient Roads, and commented upon a statement in the World that Other Ruminations on Vermont Legal His- a large amount of money was about to be sub- tory by the Vermont Historical Society. Paul scribed to compel the President’s acquittal, and upon the current rumors that there were men is also the author of The Law of the Hills: A clamoring to be Republicans who were morbid Judicial History of Vermont (© 2019, Ver- and sick with dissatisfied ambition.” “The States- mont Historical Society). manship of Impeachment,” Daily Ohio states- ______man, 13 May 1868, 2. 1 William Hassett, Off the Record with FDR: “The Albany Argus (dem.), reciting ‘the is- 1942-1945 (Rutgers, NJ: Rutgers University sues before the county,’ asserts that the ‘whole Press, 2016), 236. republican policy is merely a morbid method of 2 Sherman R. Moulton was born in New York governmental action. The natural action is to City on June 10, 1876, and moved to Ran- be attained by a return to healthy democratic dolph in 1890. He was educated at Randolph principles. The real issue before the county is, High School, Dartmouth College (A.B., 1898), whether these morbid and unhealthy republi- and Harvard Law School (LL.B., 1901). He was can processes shall continue, to the exhaustion admitted to the Vermont bar in October 1901, and destruction of the vital forces, or whether and located in Burlington in 1903. He served as the government shall discharge its functions as City Grand Juror, executive clerk to Governor it founders designed.” “Personal Intelligence,” Charles W. Gates, reporter of decisions (1916- The New York Herald, 15 February 1876, 4. 1919), and was elected Chittenden County Sen- “And Thomas Sullivan, too, if it had been left ator. Shortly after taking office, he was elected to the Sixth District it would never have been Superior Judge on February 1, 1919. He held patent to the citizens of New York that there that office until appointment as Chief Superior was such a thing as the morbid Republicans, the Judge on April 2, 1926. Governor Franklin Bill- canting fusion abomination and the so-called re- ings appointed him Associate Justice of the Su- former.” Howard Craig, “Manhattan and Bronx preme Court on November 1, 1926 upon the News,” The Tammany Times, v. 18-19 1901- resignation of Fred Butler. On September 23, 1902, 9. 1938, following the death of George M. Powers, Political membership was not a permanent Moulton was appointed Chief Justice by Gover- characteristic of judges. Asahel Peck was origi- nor George D. Aiken. He retired April 1, 1949. nally a Democrat but changed his mind after be- He died on June 16, 1949. coming “strongly aroused by the aggressions of 3 “Chief Justice Defends Judicial Independence the slave power, and after the formation of the After Trump Attacks ‘Obama Judge,’” New York Free Democracy or Liberty party, he identified Times, November 21, 2018. himself with that, and was its candidate for Con- 4 This essay is not interested in politics in the gress in this district.” Later, he became a Repub- selection of judges, which is a subject for anoth- lican. Burlington Free Press, 23 May 1879, 3. er day. Politics were involved in the elections of 11 Justice Louis Peck is the only member of the judges in 1798 (called the Vergennes Slaughter- Supreme Court to call its decisions “activist.” house), 1801, 1813, and 1815. Later, the politics He condemned the “runaway liberalism” of the of a judge mattered less. “In 1870, a vacancy oc- court. State v. Oakes, 157 Vt. 171, 184 (1991) curred on the supreme court bench. Mr. [Timo- (“The majority opinion is additional evidence, if thy Parker] Redfield had always been a democrat any is needed at this point in time, that within www.vtbar.org THE VERMONT BAR JOURNAL • SUMMER 2019 1 7 the boundaries of the law of search and seizure, ject of the legislation is to restore the purchasing bury, 113 Vt. 341 (1943). the only individuals enjoying any constitution- power of agricultural products to a parity with 21 In re Opinion of the Justices, 115 Vt. 524 al rights recognized by this Court are the crimi- that prevailing in an earlier day; to take money (1949). nals”); State v. Kirchoff, 156 Vt. 1, 22 (1991). from the processor and bestow it upon farmers 22 Village of Waterbury v. Melendy, 109 Vt. 441, 12 Ruminations Perhaps the best definition of a conserva- who will reduce their acreage for the accom- 446-447 (1938). tive is found in how an individual feels about plishment of the proposed end, and, meanwhile, 23 Great Atlantic & Pacific Tea Co. v. Harvey, 107 the past. E.J. Phelps was regarded by his peers to aid these farmers during the period required Vt. 215 (1935). as the greatest lawyer of the second half of the to bring the prices of their crops to the desired 24 State v. O’Brien, 106 Vt. 97 (1934). nineteenth century. His biographer said of him, level.” This was an improper use of the taxing 25 Town of Hartland v. Damon’s Estate, 103 Vt. “He would not hesitate to say that he loved power, and the high court struck down, conclud- 519 (1931). some things simply because they were old and ing it was not constitutional, as it did not provide 26 Sowma v. Parker, 112 Vt. 241 (1941). because the things that were old and had sur- for the general welfare. 27 Kelbro, Inc. v. Myrick, 113 Vt. 64 (1943). vived are likely to be the best. He loved to find Justice Owen Roberts wrote the Butler deci- 28 Village of Hardwick v. Town of Wolcott, 98 Vt. the good in ancient institutions and laws. He sion for the majority. He explained his view of ju- 343 (1925). loved the old-time manners, old courtesies and dicial review: 29 City of Montpelier v. Gates, 106 Vt. 116 reverences.” Matthew Henry Buckham, “Life and There should be no misunderstanding as to (1934). Public Services of the Hon. Edward J. Phelps,” the function of this court in such a case. It 30 State v. Levy, 113 Vt. 374 (1943). Proceedings of the Vermont Historical Society, is sometimes said that the court assumes 31 State v. Auclair, 110 Vt. 147, 156 (1939). October 16 and November 7, 1900 (Burlington, a power to overrule or control the action 32 Clark v. City of Burlington, 101 Vt. 391 (1928). Vt.: The Free Press Association, 1901), 151. of the people’s representatives. This is a 33 State v. Auclair, 110 Vt. at 156. 13 Redfield Proctor, Charles H. Davenport, Levi misconception. The Constitution is the su- 34 In re Cornell, 111 Vt. 454, 460 (1941). Knight Fuller, Men of Vermont (Brattleboro, Vt.: preme law of the land ordained and estab- 35 University of Vermont and State Agricultural Transcript Publishing Company, 1894), 283; Jay lished by the people. All legislation must College v. Ward, 104 Vt. 239 (1932). Read Pember, “Randolph,” The Illustrated His- conform to the principles it lays down. 36 Collette v. Town of Charlotte, 114 Vt. 357 torical Souvenir of Randolph, Vermont (Ran- When an act of Congress is appropriately (1946). dolph, Vt: Nickerson & Cox, 1895), 76. challenged in the courts as not conform- 37 Id. At 363. 14 Vermont Historical Society, Proceedings ing to the constitutional mandate, the ju- 38 Billings v. Billings, 114 Vt. 512, 517 (1946). (Montpelier, Vt.: Vermont Historical Society, dicial branch of the government has only 39 Ibid. at 519-520. 1913-1914), 44. one duty; to lay the article of the Consti- 40 Wilk v. Wilk, 174 Vt. 343, 345 (2002). 15 Sherman Roberts Moulton, The Boorn Mys- tution which is invoked beside the statute 41 State v. Baker, 114 Vt. 94, 113 (1947). tery (Montpelier: The Vermont Historical Soci- which is challenged and to decide whether 42 State v. Goyet, 120 Vt. 12. 69-70 (1957). ety, 1937). See State v. Woolley, 109 Vt. 53, 57 the latter squares with the former. All the 43 Kinsley v. Herald & Globe Ass’n, 113 Vt. 272, (1937), a case where the Chief Justice ruled that court does, or can do, is to announce its 279-280 (1943). circumstantial evidence was sufficient to convict considered judgment upon the question. 44 For example, In re Miserocchi, 170 Vt. 320 a person of perjury, the same argument used in The only power it has, if such it may be (2000); In re Handy, 171 Vt. 336 (2000); In re Ap- his Boorn book to justify the brothers’ convic- called, is the power of judgment. This court peal of JAM Golf, LLC, 185 Vt. 201 (2008). tions without direct evidence of a killing, as no neither approves nor condemns any legis- 45 State v. Auclair, 110 Vt. 147 (1939) body had been found. lative policy. Its delicate and difficult office 46 Schirmer v. Myrick, 111 Vt. 255, 257-258 16 Charles Warren, History of the Harvard Law is to ascertain and declare whether the leg- (1941). School and of Early Legal Conditions in America islation is in accordance with, or in contra- 47 Trybulski v. Bellows Falls Hydro-Electric Cor- (New York: Lewis Publishing Company, 1908) III, vention of, the provisions of the Constitu- poration, 112 Vt. 1 (1941). 1913), 292. tion; and, having done that, its duty ends. 48 Nelson v. Bacon, 113 Vt. 161, 167-168 (1943). 17 Jeff Shesol, Supreme Power: Franklin Roo- The Bituminous Coal Conservation Act im- 49 Lague, Inc. v. Royea, 152 Vt. 499 (1989). sevelt vs. the Supreme Court (New York: W.W. posed a tax of 15 percent on the sale price of 50 Gero v. John Hancock Mut. Life Ins. Co., 111 Norton & Company, 2010), 434. coal at the mine and 13.5 percent for captive Vt. 462 (1941)’ State v. Godfrey, 187 Vt. 495 18 The leading cases frustrating the New Deal in- coal. The Supreme Court, finding that as the pur- (2010). ¶ 19. cluded Louisville Joint Stock Land Bank v. Rad- pose of the tax was to compel compliance with 51 Domina v. Pratt, 111 Vt. 166 (1940); Deyo v. ford, 295 U.S. 555, 581 (1935) (the law compel- the act, held it was not a tax but a penalty, and Kinley, 152 Vt. 196, 208-209 (1989). ling a bank to surrender either the possession of an attempt to regulate beyond the authority of 52 Watterlund v. Billings, 112 Vt. 256 (1942); or the title to mortgaged property to the bank- the commerce clause of the federal constitution. Demag v. Better Power Equipment, Inc, 195 Vt. rupt mortgagor, so long as any part of the debt It struck down the tax, as well the act’s prefixing 176 (2014). remained unpaid, in order to “relieve the honest and regulations of wages and hours by delegat- 53 State v. Malmquist, 114 Vt. 96, 101 (1944). debtor from the weight of oppressive indebted- ing authority to producers, and a denial of due 54 Town of Springfield v. Newton, 115 Vt. 39 ness, and permit him to start afresh free from process. Carter v. Carter Coal Co., 298 U.S. 238 (1947). the obligations and responsibilities consequent (1936). The Supreme Court held that New York’s upon business misfortunes” was a taking with- minimum wage law for women and minors, that out just compensation, in violation of the Fifth forbade wages which were “less than fair and Amendment); Humphrey’s Ex’r v. U.S., 295 U.S. reasonable value of services and less than suf- 602, 631-632 (1935) (the President’s removal of ficient to meet minimum cost of living necessary one of the commissioners of the Federal Trade for health,” violated the due process clause of Commission, giving no reasons other than a dif- the Fourteenth Amendment protecting freedom ference of opinion on federal trade policy, was of contract. Morehead v. People of the State of a violation of the separation of powers for not New York ex rel. Tipaldo, 298 U.S. 587 (1936). reciting the grounds for the removal; A.L.A. Justice Roberts later changed his mind, and Schechter Poultry Corporation v. U.S. 295 U.S. in so doing brought on a fundamental shift in 495 (1935)(A poultry code enacted by an indus- the court’s decisions. The change became clear try association and approved by the President in 1937. The minimum wage law for women un- was challenged after a company was convicted der Washington State was upheld and forced a of violating the code and the Supreme Court reexamination of the federal rulings on the sub- struck down the law after concluding this a too ject. “What can be closer to the public interest “sweeping delegation of legislative power,” as than the health of women and their protection the legislation contained no standards or rules of from unscrupulous and overreaching employers? conduct, leaving too much discretion in the Pres- And if the protection of women is a legitimate ident’s authority, and because it was an attempt end of the exercise of state power, how can it to regulate intrastate commerce, without con- be said that the requirement of the payment of stitutional authority; U.S. v. Butler, 297 U.S. 1, a minimum wage fairly fixed in order to meet the 58-59 (1936) (the Agricultural Adjustment Act of very necessities of existence is not an admissi- 1933 authorized the government to set the pric- ble means to that end?” West Coast Hotel Co. v. es of farm commodities to ensure farmers ob- Parrish, 300 U.S. 379, 398 (1937). tained a fair price for their goods. A cotton man- 19 Village of St. Johnsbury v. Aron, 103 Vt. 22 ufacturer challenged the law, and the Supreme (1930). Court agreed that “[b]eyond cavil the sole ob- 20 Vermont Salvage Corp. v. Village of St. Johns-
18 THE VERMONT BAR JOURNAL • SUMMER 2019 www.vtbar.org
by Catherine Fregosi, Esq. WRITE ON Judge for a Day
Legal writing faculty at Vermont Law Second, students have to put all of that re- third semester, before many of them partici- School contribute to the Write On depart- search together to form a coherent and log- pate in clinics or semester-in-practice intern- ment for every issue of this Journal. We ical legal argument. This is the hard part. ships. And for students, the experience of generally write about some aspect of le- Just as legal writing professors give students presenting an oral argument before practic- gal writing that is meant to help you in your a few cases as research prompts, we also ing attorneys and judges is without parallel. practice, such as citation,1 the use of rhet- give students a strong nudge in the direc- Formal argument teaches students to talk oric,2 or drafting policy analysis.3 This time tion of the best arguments for both petition- about the law in an organized and thought- around, I am writing to ask for your help and er and respondent. But students need to ful way, which is just as important as being to share an opportunity to meaningfully con- work out the intricacies of those arguments able to write about the law. The prepara- tribute to legal education and earn a couple on their own. For almost all students, this is tion for argument requires students to think of CLE credits along the way. the first time they have had to independent- through the holes in their arguments, the First, some background on the legal writ- ly determine the correct analytic path to the strengths of the argument on the other side, ing program at Vermont Law School. Most result that they are seeking from the Court. and the practical consequences of the deci- law schools require students to take two se- And then they still need to draft that argu- sion they are asking the Court to reach. By mesters of legal writing courses. We require ment in a persuasive, but not over the top, the time my students get to their final argu- three semesters of legal writing. Each se- voice with perfect citations. Finally, students ments, they have heard all of my questions mester focuses on a different kind of legal need to present a twenty-minute oral argu- and know exactly how to deal with them. writing. In the first semester of law school, ment on their brief. Arguing before new judges pushes students students learn IRAC, how to cite cases and Appellate Advocacy has become some- to go deeper in thinking through their legal statutes, and work on drafting objective thing of a rite of passage for Vermont Law arguments. memoranda. Assignments in the first se- School students. A student recently told me Volunteer judges can earn two CLE cred- mester are closed universe, allowing stu- that in this class he started to think that he its in a given reporting period for judging a dents to focus on mastering the basics of might, actually, one day become an attor- two-hour block of student arguments. We writing. The second semester of legal writ- ney. Students, of course, learn a great deal hold arguments twice a year, in late July ing introduces persuasive writing, different of substantive law in their other classes. But and again in late November. July argu- organizational structures, and different Blue- Appellate Advocacy challenges them to be ments take place over a few weekdays and book rules. Second semester assignments self-directed and thoughtful in a way that on a Saturday. Arguments are held during are open universe. Students start devel- doctrinal classes do not always require. It the day and in the evening. This year, argu- oping their legal analysis skills by working is that aspect of this course that my student ments are scheduled for July 26, 27, 29, and through more complex fact patterns and le- was commenting on—after writing a brief 30. November arguments have traditional- gal arguments. They learn how to synthe- and presenting an oral argument, he started ly been held on Monday through Thursday size rules and work on sorting out relevant to believe that he might have the skills and evenings over the course of three weeks. from tangential authority. Students do this aptitude to become an attorney. We may add arguments during the day on through drafting trial court filings and short I suggest that, even more than writing a a couple of Saturdays this year. We sched- academic works. At the end of the semes- brief, it is the oral argument component of ule arguments in two-hour blocks, and ask ter, students present a ten-minute argument this class that pushes students into believ- that judges sign up for at least one two-hour as an introduction to oral advocacy. ing they can succeed. And this is why I am block. Judges are invited to join us for an In the third semester at Vermont Law asking for your help on behalf of Vermont informal reception and meal before each School, students are required to take Appel- Law School’s legal writing department and block of arguments. We send judges the late Advocacy. The premise of this class is students. opinion on appeal, a short memo about the simple: Students write a full-length brief in As mentioned above, students pres- case, and the students’ briefs about a week a case pending before the United States Su- ent oral argument before a panel of judg- before arguments. Judges need to be fa- preme Court and then present a twenty-min- es. That panel is comprised of practicing at- miliar enough with the case to ask students ute oral argument before a panel of judges. torneys and judges who generously volun- questions during argument, but we do not The skills required in this class are a leap be- teer their time to help Appellate Advocacy expect judges to have mastered the minuti- yond those required in the first two semes- students. Many attorneys and judges have ae of each student brief, nor do we ask judg- ters of legal writing. First, while professors made the trek to South Royalton every year es to give students any feedback on their give students a small handful of cases as re- for years and even decades to ask students briefs. search prompts, students must conduct a questions and give students feedback. We Legal writing professors pick a range of great deal of independent research to sup- are grateful for each of these volunteers. cases each year, and judges can choose the port their legal arguments. For many stu- But for those of you who have not heard of case that they want to hear. Last Novem- dents, this is their first exposure to working this opportunity, please consider this a for- ber, the cases selected addressed retalia- with not just cases and statutes, but also sec- mal invitation to join us. tory arrests,4 sentence enhancement under ondary sources like treatises and law review Law schools are increasingly moving in the Armed Career Criminal Act,5 and inef- articles. And since the cases are pending the direction of experiential learning. Ev- fective assistance of counsel claims.6 Profes- before the U.S. Supreme Court, they often ery law school has its share of clinical and sors choose single-issue appeals, and typi- implicate federal constitutional issues. Thus, semester-in-practice opportunities, includ- cally pick cases that will be reasonably ac- students may need to work with at least sev- ing Vermont Law School. Appellate Advo- cessible to second-year law students. Some- eral decades of jurisprudence on particular cacy oral arguments offer the same kind of times the cases selected for Appellate Ad- constitutional provisions. experiential opportunity for students in their vocacy even touch on the decisions of the
20 THE VERMONT BAR JOURNAL • SUMMER 2019 www.vtbar.org Write On Vermont Supreme Court. preme court decisions, including the Ver- For example, students this summer are mont Supreme Court’s decision in Edmonds, working on Kansas v. Glover,7 an appeal from to reach its eventual holding. As the Kan- a decision of the Kansas Supreme Court that sas appeals court explained, every state su- considered, and ultimately rejected, the Ver- preme court to have considered the issue mont Supreme Court’s reasoning in State v. has held an officer has reasonable suspicion Edmonds.8 Glover arises from a traffic stop to initiate a traffic stop where “(1) the officer and asks whether there is reasonable suspi- knows that the registered owner of a vehicle cion for a traffic stop when a law enforce- has a suspended license and (2) the officer ment officer knows that the registered own- is unaware of any evidence or circumstanc- er of a vehicle does not have a valid license es which indicate that the owner is not the but does not have any information support- driver of the vehicle.”17 But the Kansas ap- ing the inference that the owner of the vehi- peals court relied on the Vermont Supreme cle is in fact driving the vehicle.9 Court’s decision in Edmonds for a point that The facts of the case are straightforward. appears to have been directly addressed One day in 2016, a deputy sheriff spotted a only in Vermont, that requiring an officer to 1995 Chevy pickup truck driving down the gather evidence confirming the owner-as- road. The sheriff could not see the driver driver presumption, “essentially raises the and did not see any traffic violations, but evidentiary standard from one of reasonable nonetheless decided to run the truck’s li- suspicion to the more demanding standard cense plate. The sheriff was able to deter- of probable cause.”18 The Kansas appeals mine that the truck was properly registered court found this persuasive and rested its in Charles Glover, Jr.’s name and that the decision in part on this reasoning. State of Kansas had revoked Glover’s driv- The decision in Edmonds arose from facts er’s license. The sheriff “assumed” Glover similar, but not identical, to the facts in Glov- was driving the truck and initiated a traffic er and presented essentially the same ques- stop.10 Finding that Glover was, in fact, driv- tion that is now before the United States Su- ing, the sheriff issued Glover a summons to preme Court. Like the Kansas appeals court, appear and then allowed Glover to drive the Vermont Court relied on the weight of away. The State of Kansas subsequent- authority from other state courts to reach its ly charged Glover with driving as a habitu- decision.19 And as the Kansas appeals court al offender. Glover filed a motion to sup- recognized, the Vermont Supreme Court press the evidence from the traffic stop, and reached the same decision as those other Glover and the State stipulated to the facts courts: An officer has reasonable suspicion described above.11 Glover argued evidence when the officer knows that the owner of a that the owner of a car did not have a val- car does not have a valid operator’s license, id operator’s license was insufficient to sup- unless the officer knows additional facts re- port the inference that the owner of the car butting this presumption.20 was driving and, therefore, the sheriff lacked The Kansas Supreme Court rejected this reasonable suspicion to support the stop in rule and reversed the Kansas appeals court’s violation of the Fourth Amendment.12 The decision for two reasons.21 First, the Kansas State argued there is reasonable suspicion Supreme Court concluded that the owner- to support a traffic stop where an officer as-driver presumption rested on impermis- knows the owner of a car does not have a sible assumption stacking.22 That is, to get valid operator’s license unless the officer has to the owner-as-driver presumption a law information rebutting the presumption that enforcement officer has to assume that the the owner is the driver.13 registered owner of a vehicle is most likely The Kansas district court granted Glover’s the driver of that vehicle.23 But, as the dis- motion to suppress in a decision issued from trict court pointed out, this assumption is the bench, concluding “it was not reason- not necessarily supported by practical ex- able for an officer to infer that the registered perience. And this assumption rests on the owner of a vehicle is also the driver of the second assumption that someone without vehicle absent any information to the con- a valid operator’s license is likely to violate trary.”14 The district court judge based her their suspension or revocation and contin- decision in part on her personal experience. ue to drive.24 As the Kansas Supreme Court She explained three cars were registered stated: “This assumption is flawed because it in her name, she drove one every day, her presumes a broad and general criminal incli- husband drove the second, and her daugh- nation on the part of suspended drivers.”25 ter drove the third.15 She concluded that The Kansas Supreme Court explained this she believed her experience was like that is problematic because “officers cannot as- of many other families, and, therefore, the sume criminal conduct is taking place and sheriff’s assumption that Glover was driving detain someone without ‘specific and artic- the truck registered in his name was not a ulable facts which, taken together with ra- reasonable inference that could validate the tional inferences from those facts, reason- traffic stop.16 The State then filed an inter- ably warrant that intrusion.’ ”26 The Kansas locutory appeal. Supreme Court took this standard to mean The Kansas Court of Appeals reversed. “officers and courts should presume that That court relied on a litany of state su- citizens are engaged in lawful activities and www.vtbar.org THE VERMONT BAR JOURNAL • SUMMER 2019 2 1 have a right to remain free from police in- or with the lack of evidence being produced ______terference.”27 Because the owner-as-driver by the State.”31 The Court read these deci- 1 Beth McCormack, Making Your Writing Out of Cite: Using the Bluebook to Improve Your Writing
Write On presumption necessarily depends on an as- sions to rest on an assumption about com- and Credibility, 41 Vt. B. J. 30 (Winter 2016). sumption that the owner of a car is engag- mon experience—that the owner of a vehi- 2 Brian Porto, Rhetoric Revisited: A Second Look ing in criminal activity, despite the fact that cle is most likely to drive the vehicle—with- at How Rhetorical Techniques Improve Writing, 42 there is nothing criminal in the simple fact out considering whether that assumption is Vt. B. J. 31 (Summer 2016). that a car owned by someone without a valid either valid or sufficient to support the legal 3 Jared K. Carter, Strengthening Our Legal Anal- ysis, 45 Vt. B. J. 20 (Spring 2019). license is being driven, the Kansas Supreme conclusion that there is reasonable suspicion 4 32 Nieves v. Bartlett, 139 S. Ct. 1715 (2019). Court concluded it is flawed in its inception to support a traffic stop. 5 United States v. Stitt, 139 S. Ct. 399 (2018). and cannot support reasonable suspicion. What will the United States Supreme 6 Garza v. Idaho, 139 S. Ct. 738 (2019). The Kansas Supreme Court also rejected Court do with this issue? That remains to 7 422 P.3d 64 (Kan. 2018), cert. granted, 139 S. the rule adopted by the Vermont Supreme be seen, but Appellate Advocacy students Ct. 1445 (2019) (mem.). 8 Court and other state supreme courts be- have been wrestling with this for several 2012 VT 81, 192 Vt. 400, 58 A.3d 961. 9 Glover, 422 P.3d at 66. cause the Court concluded that rule imper- weeks. Students will argue this case in late 10 Id. at 67. missibly shifts the burden of proof from the July. They may argue that the Kansas Su- 11 Id. State to a defendant.28 The Court reasoned preme Court’s decision would elevate the 12 Kansas v. Glover, 400 P.3d 182, 184 (Kan. Ct. that a rule permitting officers to presume evidentiary burden for reasonable suspicion App. 2017). 13 Id. that the owner of a vehicle is also its driver to that necessary for probable cause, in line 14 Glover Edmonds , 422 P.3d at 67 (quotation omitted). “relieves the State of its burden by eliminat- with the reasoning. 15 Id. ing the officer’s need to develop specific and On behalf of students and the Vermont 16 Id. articulable facts to satisfy the State’s burden Law School legal writing faculty, I invite you 17 Glover, 400 P.3d at 186. on the determinative issue of whether the to join us for what promises to be several 18 Id. at 187 (citing State v. Edmonds, 2012 VT 81, ¶ 9, 192 Vt. 400, 58 A.3d 961)). registered owner is driving the vehicle, not days of interesting oral arguments. Feel free 19 29 Edmonds, 2012 VT 81, ¶ 9. whether the vehicle is being driven.” The to contact me at [email protected] 20 Id. ¶ 11. Kansas Supreme Court called the rule’s re- or Sandy Johnston at sjohnston@vermont- 21 Glover, 422 P.3d at 68-69. liance on an absence of information rebut- law.edu for more information or to volun- 22 Id. at 69-70. ting the owner-as-driver presumption a kind teer to help us make students practice-ready 23 Id. at 69. 24 Id. of “judicial gap-filling” that cannot be used through intensive oral argument and to re- at 70. 25 Id. to convert an unfounded assumption into a ceive two CLE credits for your contribution 26 Id. (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)). logical inference.30 And all of those state su- to legal education. 27 Id. preme court decisions that, like Edmonds, ______28 Id. at 70. reach the contrary result? The Kansas Su- Catherine Fregosi, Esq. is admitted to 29 Id. 30 Id. preme Court dismissed them all, stating: “In practice in Vermont. She clerked for the at 71. 31 Id. our reading of these decisions, none of them Hon. Justice John A. Dooley and the Hon. 32 Id. discuss the underlying assumptions that the Justice Karen R. Carroll of the Vermont Su- district court needed to make. . . nor do they preme Court before joining the VLS legal discuss the problems with inference stacking writing faculty.
22 THE VERMONT BAR JOURNAL • SUMMER 2019 www.vtbar.org
by Therese M. Corsones, Esq. WHAT’S NEW VBA Legislative Overview — 2019
The VBA followed a number of bills af- • Letters of administration effective for • A person with active Vermont law li- fecting the bar and the courts this legisla- one year cense and in good standing is autho- tive session. Below is a brief summary of • Spells out process if small estate insol- rized person those that have been enacted to date in bill vent number order; please note that a number https://legislature.vermont.gov/Doc- of them have July 1, 2019 effective dates. https://legislature.vermont.gov/ uments/2020/Docs/ACTS/ACT011/ The summary includes the bill designation, Documents/2020/Docs/BILLS/H- ACT011%20As%20Enacted.pdf act number (if assigned), title, date signed 0287/H-0287%20As%20Passed%20by%20 by Governor Scott, effective date, and an Both%20House%20and%20Senate%20Un- H. 460 – Act 32 “Sealing and Expunge- indication of any VBA Connect Communi- official.pdf ment” bill (an act relating to sealing and ex- ties where information about the bill was pungement of criminal history); signed by posted during the legislative session. A link H. 330 – Act 37 “Repeal of Statute of Governor Scott on May 23, 2019; effective to each bill is included with each summary. Limitations” bill (an act relating to repeal- on July 1, 2019 except Sec. 3 (expunge- Many thanks to VBA Government Rela- ing the statute of limitations for civil actions ment and sealing procedure) shall take ef- tions Coordinator Bob Paolini for so ably based on childhood sexual abuse); signed fect on October 1, 2019. tracking these and a variety of other bills by Governor Scott on May 28, 2019; effec- affecting the bar, and for making sure that tive on July 1, 2019 (VBA Practice and Pro- • Expansion of nonviolent crimes that testimony was provided when needed. cedure Community) qualify for sealing or expungement pe- Many thanks, also, to the numerous law- titions, including possession of certain yers who testified so capably, when need- • Repeal of statute of limitations for civ- controlled substances, driving under ed. Please contact Teri Corsones at tcor- il actions based on childhood sexual the influence (first offense) in certain in- [email protected] if you have any questions abuse stances and burglary in certain instanc- about this overview. • Felony sexual exploitation of a minor es added to definition of childhood sexu- • Definition of predicate offenses mod- H. 278 – Act 24 “Parentage” bill (an act al abuse ified to exclude possession of acon- relating to acknowledgment or denial of • Repeal applies retroactively to abuse trolled substance in certain instances parentage); signed by Governor Scott on that occurred prior to July 1, 2019 May 16, 2019; Sections 1–3 and 7 are ef- • Damages against an entity for actions https://legislature.vermont.gov/Doc- fective on passage, remaining sections are based on abuse that would have been uments/2020/Docs/ACTS/ACT032/ effective on July 1, 2019. (VBA Family Law barred by statute of limitations on June ACT032%20As%20Enacted.pdf Community) 30, 2019 only if there is a finding of gross negligence H. 512 – Act 40 “Miscellaneous Judiciary • Clarification of timing for rescission of Amendments” bill (an act relating to miscel- denial or acknowledgement of parent- https://legislature.vermont.gov/ laneous court and Judiciary related amend- age Documents/2020/Docs/BILLS/H- ments) signed by Governor Scott on May • Clarification of circumstances regard- 0330/H-0330%20As%20Passed%20by%20 30, 2019. Effective date July 1, 2019, but ing the release of parentage informa- Both%20House%20and%20Senate%20Un- “notwithstanding 1 V.S.A. § 214, Sec. 6, 15 tion official.pdf V.S.A. § 752(b)(9) (maintenance guidelines), • Clarification of certain details of par- shall apply to actions filed on or after Janu- entage forms and parentage orders H. 436 – Act 11 “International Wills” bill ary 1, 2019”. (VBA Family Law Community) (an act relating to international wills); signed https://legislature.vermont.gov/Doc- by Governor Scott on April 30, 2019; ef- • Option to waive use of commissioners uments/2020/Docs/ACTS/ACT024/ fective on July 1, 2019. (VBA Probate Law in partition actions ACT024%20As%20Enacted.pdf Community) • Probate divisions to maintain electron- ic databases of notices of intent to re- H. 287 – Act 36 “Small probate estates” • Based on Uniform Law on the Form of tain parental rights bill (an act relating to small probate es- an International Will • Confidentiality parameters for use of tates); signed by Governor Scott on May • International will in compliance with juvenile records in probate cases 28, 2019; effective on July 1, 2019. (VBA statute is valid with regard to form, ir- • Records of subjects of delinquency pe- Probate Law Community) respective of place where made, loca- titions filed after 7/1/06 sealed if case tion of assets or nationality, domicile or dismissed • Small estate limit raised from $10,000 residence of testator • Modifications of maintenance provi- to $45,000 • Spells out requirements of process for sions (“long term” instead of “perma- • Estate must consist entirely of personal validating international wills nent”; retirement benefits provisions; property; time share property may be • Certificate by authorized person re- alimony guidelines updated in light of allowed garding requirements must be at- Tax Reform bill) • Listing of what needs to be filed tached to will • Various revisions to marijuana/cannabi- • Interested parties have 14 days to ob- • Template for certificate of authorized noids provisions ject person included in statute • Creation of Task Force on Campus
24 THE VERMONT BAR JOURNAL • SUMMER 2019 www.vtbar.org
Sexual Harm – VBA appointee on Task cense to convey real estate or personal conscionable in certain standard form Force property contracts • Filing fee of $100 to obtain a birth or- • Contract terms include inconvenient
What’s New What’s https://legislature.vermont.gov/ der forums, waiver of a right to a jury tri- Documents/2020/Docs/BILLS/H- • Filing fee of $150 to appeal the denial al, waiver of a right to seek punitive 0512/H-0512%20As%20Passed%20by%20 of an application to amend a birth or damages, modification of limitation of Both%20House%20and%20Senate%20Un- death certificate action periods, and excessive fees or official.pdf costs to bring an action https://legislature.vermont.gov/Docu- • Exclusions for financial institutions, H. 526 – Act 38 “Town Clerk Recording ments/2020/Docs/JOURNAL/hj190523.pdf credit unions, contracts regulated by Fees” (an act relating to town clerk record- (judiciary fees on pp. 1985-1986) DFR, contracts for recreational activi- ing fees and town restoration and preser- ties, sports or competitions, and motor vation reserve funds); signed by Governor H. 541 – “Revenue” bill (an act relating vehicle retail installment contracts Scott on May 28, 2019; sections 1-2 (town to changes that affect the revenue of the clerk fees; town fee report), 6 (recording of State); signed by Governor Scott on June https://legislature.vermont.gov/Docu- tax liens); 7-9 (recording procedures) effec- 18, 2019; act takes effect on passage, ex- ments/2020/Docs/JOURNAL/sj190523.pdf tive on July 1, 2019; sections 3-5 (survey cept for: (1) Sec. 1 (capital gains exclusion) (unconscionable terms on pp. 1615-1617) plats) effective on Jan. 1. 2020. (VBA Prop- shall take effect on July 1, 2019 and apply erty Law and Municipal Law Communities). to the sales of assets on or after that date; S. 131 – Act 57 “Insurance” bill (an act (2) Notwithstanding 1 V.S.A. § 214, Sec. 2 relating to insurance and securities); signed • Recording cost per page increase from (medical deduction) shall take effect ret- by Governor Scott on June 10, 2019; effec- $10 to $15 for deeds, foreclosure com- roactively on January 1, 2019 and apply tive date of July 1, 2019. plaints, document that is to be a matter to taxable year 2019 and after; (3) Secs. of public record, and property transfer 4 (downtown and village center tax cred- • Outline of “innovation waivers” with tax returns it), 7–8 (rooms tax), 9–15 (property trans- respect to specific requirements of in- • Recording cost per survey sheet in- fer tax), and 18 (fuel tax) shall take effect surance laws, regulations or bulletins crease from $15 to $25 on July 1, 2019; (4) Sec. 5 (estate tax ex- • New domestic surplus lines insurance • Examination of record cost per hour in- clusion at $4,250,000.00) shall take effect provisions crease from $2 to $4 on January 1, 2020 and apply to estates of • New HIV-related test requirements • If land subdivided or boundaries decedents with a date of death on or after • Parameters of Vermont Financial Ser- changed after Jan. 1, 2020, the deed that date; (5) Sec. 6 (estate tax exclusion at vices Education and Victim Restitution shall be accompanied by a survey plat $5,000,000.00) shall take effect on January Special Fund that shows new boundaries and cite 1, 2021 and apply to estates of decedents • Modification of definition of “credit re- book and page of previous deed – fail- with a date of death on or after that date; port” ure to do so does not void the deed or (6) Secs. 16–17 (land gains tax) shall take ef- render the title unmarketable, however fect on January 1, 2020 and apply to gains https://legislature.vermont.gov/ • Vermont tax lien is deemed filed when from sales made on or after that date. Documents/2020/Docs/BILLS/S- the clerk indorses a certificate on the 0131/S-0131%20As%20Passed%20by%20 lien • Capital gains tax exclusion shall not ex- Both%20House%20and%20Senate%20Un- • Clerks shall bear the cost of returning ceed 40% of federal taxable income or official.pdf the original copy of a recorded instru- $350,000, whichever is less ment to the filer • Land gains tax modified to only cov- Other bills that did not make it through • Clerk shall enter the names of parties, er land, whether or not improved, that this session but may be back next session type and date of instrument, and date has been purchased and subdivided by and time of recording in a searchable the transferor within 6 years previous H. 1 - Non-compete provisions (H Comm index open to public inspection within to the sale or exchange of the land Econ Dev) likely to come back next session three days following the date an instru- • New property transfer tax trigger for (Employment and Intellectual Property Sec- ment is indorsed (time for entering the the transfer or acquisition of a control- tions) information may be extended for good ling interest in a property H. 412 – P R & R (H Jud) possibly back cause shown such as illness or absence • Estate tax limit increased from next session (Family Law Section) of clerk) $2,750,000 to $4,250,000 in 2020 and S. 99 – Alimony reform (Sen Jud) very $5,000,000 in 2021 likely to come back next session (Family https://legislature.vermont.gov/ Law Section) Documents/2020/Docs/BILLS/H- https://legislature.vermont.gov/Docu- Act 250 Commission – the House Judi- 0526/H-0526%20As%20Passed%20by%20 ments/2020/Docs/JOURNAL/hj190524. ciary Committee will likely be asked to re- Both%20House%20and%20Senate%20Un- pdf (capital gains tax on pp. 2009-2012; view a proposal that jurisdiction over Act official.pdf land gains tax on pp. 2025-2026; property 250 appeals be transferred from the Envi- transfer tax on pp. 2021-2025; estate tax ronmental Division to a lay Environmental H. 527 – “Judicial Branch Fees” bill (an on pp. 2019-2020) Review Board. The Environmental Law Sec- act relating to Executive Branch and Judi- tion will discuss the proposal during a pro- cial Branch fees) signed by Governor Scott S. 18 – “Unconscionable Terms”” bill (an gram at the VBA Annual Meeting on Sep- on June 18, 2019; effective date of Judicia- act relating to consumer justice enforce- tember 27 in Burlington. ry Branch filing fees is July 1, 2019. ment) delivered to Governor Scott on June ______13, 2019. Effective on October 1, 2020. Teri Corsones, Esq., is the Executive Di- • No filing fee for motions to confirm the rector of the Vermont Bar Association. sale of property in foreclosure • Rebuttable presumption that certain • Filing fee of $100 for petitions for li- contract terms are substantively un-
26 THE VERMONT BAR JOURNAL • SUMMER 2019 www.vtbar.org by Andy Stone WHAT’S NEW Vermont’s New Electronic Filing System
The times they are a-changing. For the technologies in our courts. Tyler is a Texas- Superior Court unit to another when venue Vermont legal community, they will soon be based company specializing in software solu- is changed, without needing to assign a new a-changing fast. Preparations are well un- tions for the public sector. The Odyssey sys- docket number or wait for a physical file to be derway for the Vermont Judiciary to roll out tem is currently in use in dozens of states, delivered. Case parties and counsel will be a new modern electronic case management municipalities and other jurisdictions around able to access most case information, includ- system that promises to have a transforma- the country and internationally. It has a prov- ing documents online, rather than needing to tive impact on the practice of law and the ad- en track record of success and adaptability to request copies from the court. And all court ministration of justice in this state. For some, a wide range of legal and business processes, users, including self-represented litigants, will the change will be welcomed and long over- and it will offer Vermont the essential tools it have access to universal electronic filing in all due, while others may feel more challenged needs to move our court system forward. units and all divisions. by some aspects of the transition, but all will One of the key pillars in the Judiciary’s vi- The new electronic filing system, Odyssey feel its impacts in a myriad of ways. This arti- sion for change is a transition to electronic File & Serve (OFS), will replace the existing cle is intended to provide members of the bar document management rather than the tradi- system, known as eCabinet, that is currently and other interested readers with a brief proj- tional paper-based processes on which courts in use in several Superior Court units. OFS is ect overview and some specific details about have relied. Paper files are prone to loss and a web-based platform that will be available what to expect, when to expect it, and how it damage, require laborious archiving, must 24/7 for filing all court pleadings in all units will affect you. be physically transported and can only be and divisions. Users may register as individu- The Vermont Judiciary has a pressing need viewed in one place at one time. These limi- als or as firm members and file documents by to retire its legacy case management system tations have all-too-often dictated the speed uploading them in PDF format. For agency which has served it well for three decades, at which the wheels of justice turn in Ver- attorneys and others with a specialized prac- but which is now antiquated, unsupported mont. The integrated electronic document tice who frequently submit one standard type and poorly suited for the way the world and management functions of the Odyssey sys- of filing, OFS will offer some useful efficien- the courts do business in the 21st century. To tem, on the other hand, will create opportu- cies such as user-defined templates that save address this, Vermont has contracted with Ty- nities for improvements and efficiencies with preconfigured filing settings to minimize du- ler Technologies to implement its Odyssey many of our processes. For instance, cases plicative efforts. Registered users retain on- Case Management System and associated may now be instantly transferred from one line access to all documents that they them-
www.vtbar.org THE VERMONT BAR JOURNAL • SUMMER 2019 2 7 preme Court, in Spring 2021. These timelines are subject to ongoing review and revision as the project progresses; the State Court Ad-
What’s New What’s ministrator will provide the final approval of exact rollout dates for each region. Although efforts are focused on provid- ing as smooth a transition as possible for all stakeholders, members of the Vermont legal community should, nonetheless, be prepared for some inevitable transitional challenges during the next two years while the Judiciary operates on two separate and largely uncon- nected case management systems. Checking for attorney scheduling conflicts, for instance, presents a new level of complexity when scheduling is being done in two separate sys- tems, and a variety of complications are like- ly during this period while cases are being transferred back and forth between Odyssey (electronic) and non-Odyssey (paper) courts. Those are just several examples, and there are sure to be some other challenges that are not so clearly foreseen. It will be a period of adjustment while the Judiciary redefines and refines its internal processes, and while all us- ers of the court system re-orient themselves toward new ways of interacting with it. It will be a collective effort that will involve the en- tire Vermont legal community, and the Judi- ciary is asking all members of that community to join with it in a large-scale collaborative ef- fort to help make the system really work. 360-degree communication with all stake- holders throughout the process is a funda- selves have filed; and, where rules allow, may tronic judicial workbench for easy review of mental part of the plan. In coming months, also electronically serve documents on other all case documents and events and for orga- the Judiciary will be ramping up its commu- registered users who have elected to receive nizing and managing daily hearing calendars. nications with the bar and initiating a variety service that way. Documents filed electroni- Judicial officers will have instant access to a of other outreach efforts designed to actively cally will be subject to a clerk review and ac- statewide database of case and party records engage with stakeholders across the board. ceptance process before officially becoming and may coordinate actions taken on multiple There will also be expanded FAQ sections a part of the case record. Once accepted, cases at once. on the court’s website, as well as opportuni- the electronically filed document will be con- The first Vermont court to go live with the ties for online training and orientation to the sidered the original and there will generally Odyssey system will be the Judicial Bureau, new system. Odyssey project leaders are also be no obligation for the filer or the court to which is a court of statewide jurisdiction that more than happy to field questions any time submit or retain a hard copy of any case doc- primarily handles civil violations such as traffic from interested parties. Contact information uments. and municipal complaints. The Judicial Bu- is on the Judiciary’s website. Feedback and Under the new proposed Rules for Elec- reau is scheduled to begin using Odyssey fol- suggestions for process improvements will be tronic Filing, attorneys will be mandated to lowing final testing and training in late Spring not only welcomed but will be actively sought file documents electronically, while self-rep- 2019. Like other courts, it will be adopting out throughout the entire transition. Get resented litigants may elect to file documents largely paperless business processes, 24/7 ready and get excited Vermont. The next either electronically or on paper. Electronic online payment options, and will also feature two years are going to bring some big chang- filings will be accepted not only for new cas- a range of data integrations with other jus- es. It will be uncharted territory for all of us, es, but also for subsequent filings on exist- tice partners improving interagency commu- but there is great confidence that in the end ing and closed cases, which will all be load- nication. the project will have achieved its most essen- ed through a data conversion process and For the units of the Superior Court, there tial purpose: to deliver a transformed mod- will be searchable in the new system. Case will be a phased regional rollout in four stag- ern justice system that is more efficient, fair, documents that now exist only in paper form es over the next two years. First will be the responsive and accessible for all Vermonters. will remain that way initially; existing paper Southeast Region of Windham, Windsor Stay tuned… files for pending cases may still be viewed at and Orange Units in Fall 2019, followed by ______courthouses, though all ongoing activity, fil- the Southwest Region of Bennington, Addi- Andy Stone is a Project Team Leader for ing and docketing will take place in the new son and Rutland Units in Spring 2020. The the Vermont Judiciary’s Next Generation system. third rollout will include Chittenden, Franklin, Case Management System Project and a for- The benefits of going paperless will be felt Grand Isle and Lamoille Units as well as the mer Court Operation Manager from Windsor not only in the law office and the clerk’s of- Environmental Division in Fall 2020, and the County.‑ fice, but also on the bench. Judges will be fourth and final phase will include the North- utilizing Odyssey Judge Edition, another in- east Region of Orleans, Essex, Caledonia and tegrated Tyler product that offers an elec- Washington Units, as well as the Vermont Su-
28 THE VERMONT BAR JOURNAL • SUMMER 2019 www.vtbar.org
by Samara Anderson, Esq. BE WELL Stressed Much?
How does this stress affect your body and how can being mindful reduce these negative effects? Read below to find out... The alarm goes off in the morning and despite feeling sheer exhaustion, you rise to quickly start your day so you can fit in a cardio workout before the rest of the house awakes and it is a flurry of break- fast-eating-preparing-lunches-commuting- to-school/work. Of course, there was con- struction, which delayed your trip to work and caused you to be late for your first morning meeting with a demanding cli- ent, who is now even more upset and anx- ious about the status of their case with the late start to your meeting. This seemingly minor delay has now caused a waterfall of morning problems: this meeting runs late and now you are late for a status interview with a judge that has not been favorable to your cases and is a stickler for timeliness. Opposing counsel will use this to their ad- vantage and you will continue to dig your- self out of the judicial hole that has been • “Bad Stress” occurs when there is tiger, which means you need to activate dug even deeper. All of this “stress” and chronic or ongoing situations in your your survival system and marshal the im- you are only 3 hours into your day. Does life that do not provide you with time mediate support of your stress hormones any part of this schedule resonate for you to return to a resting or relaxing state. within seconds: adrenaline (heartbeat in- as an attorney? If so, the negative effects This chronic stress can be activated for creases, breath rate increases, surge of en- of chronic stress may be occurring in your days, weeks, months and even years. ergy, start sweating, focuses your atten- body and life… In this case, the norepinephrine and tion) and norepinephrine (backup to adren- I believe there is “Good Stress” and adrenalin levels may lower, but the lev- alin, more awake and focused, shifts blood “Bad Stress” els of cortisol may remain in the body flow from non-crucial areas - skin and brain • “Good Stress” is part of our funda- and start to wreak havoc, as outlined – to essential areas - muscles - so you can mental survival system and is an auto- further below. run or fight with superhuman skills and can matic biological stress response that last). Then in a few minutes cortisol hor- can save our lives. Your fight/flight/ Both “Good Stress” and “Bad Stress” mones are released to sustain the stress re- freeze responses are for “acute” or start with a stressful trigger (traffic, late for sponse into the indefinite future, as long as “short-term” stress and last minutes to a meeting, upset client, deadlines, heavy the stressor is present (maintains fluid bal- hours until you return to a resting or workload, challenging judge or opposing ance and blood pressure, regulates non- relaxed state. So, the norepinephrine, counsel) and your body reacts as though crucial body functions, suppresses the im- adrenalin and cortisol stress hormone you are being chased by a saber-toothed mune system, increases blood pressure, in- levels rise and then disappear. creases blood sugar levels, decreases libi- do, increases acne and decreases metab- olism). And for many of us as lawyers, the stress- or never ends, it just takes a different form. It has been reported that chronic stress is the #1 cause of disease in Americans.
“Bad Stress” or “Chronic Stress” affects us in varied ways, including:
• Physical Effects on our Body: • Negatively affects all of your phys- ical systems, especially your “weak health spots;” • Increased respiration and breath- lessness;
30 THE VERMONT BAR JOURNAL • SUMMER 2019 www.vtbar.org Be Well • Due to energy being mobilized to 1. Numb the pain caused by the Stress; muscles there may be pain, tension 2. Tolerate the stressor until it passes or and spasms in neck and back as well becomes less troublesome; as jaw pain from teeth grinding; 3. Change the source of the stress (quit • Narrows arteries in the heart, which the job, leave the relationship, move, increases heart rate and the risk of etc.); and developing cardiovascular disease; 4. Change your perspective of the situa- • Lowers metabolism, which leads to tion by practicing being mindful. weight gain; • Lowers immunity, which increases ill- I have tried all coping mechanisms and nesses and infections; have had the most lasting reduction in my • Increases overall inflammation and stress levels by practicing mindfulness. oxidative damage; Mindfulness has been defined by Jon Ka- • Skin irritations and acne; bat-Zinn as “Paying attention in a particular • Decrease in collagen, which keeps way: on purpose, in the present moment, your skin elastic; and non-judgmentally.” Essentially, you • Gastrointestinal effects, such as in- are choosing to be in the present moment testinal pain, gas or diarrhea, as the instead of allowing your mind to wander. gut bacteria is changed; The best part about being mindful is that it • Overall body fatigue: and is completely free, doesn’t require any spe- • Increases blood sugar levels, which cial clothing or equipment and can occur feels like: at any moment. The hard part about be- • Headaches and other aches/ ing mindful is that despite its simplicity, it is pains; perhaps the most challenging thing you will • Hard to concentrate; ever do in a disciplined routine way. There • Thirsty or hungry; are many paths to practicing mindfulness, • Drowsy or tired; including meditation, mindful movement • Blurred vision; or yoga, awareness of the breath, being in • Dry mouth; nature, mountain biking, trail running, rock • Bloating; and climbing or any activity that requires your • Frequent urination. complete and utter focused attention.
• Mental Effects on our Mind: So, why should you even attempt being • Unable to focus, looking for distrac- mindful in a disciplined and routine man- tions; ner? Because, in my opinion, the docu- Muddled thinking; mented benefits of being mindful can low- • • Being More Creative and able to en- • Impaired judgment; er or eliminate the negative effects of “Bad gage in deeper thinking because it is • Negative; Stress” or “Chronic Stress” in some really the space in our minds that allows us • Make hasty decisions; and powerful ways, including: to be creative and imaginative; Damage to short term memory due • • Enhanced Clarity with the ability to ac- Peace of Mind to a reduction in gray matter. • by increasing the levels tually see what is occurring without of dopamine, serotonin and oxytocin, judgment; and Emotional Effects: which are naturally produced during • • Increased Compassion and empathy • Loss of confidence; the relaxed state of your parasympa- as you increase your ability to have a • More Fussy; thetic nervous system; deep understanding and kindness to- Better Focus • Irritable; • to have an enhanced abil- wards yourself and others. • Depressed; ity to sustain your attention despite ______• Anxious; distractions and with your increased Mica Tucker and Samara Anderson are • Apathetic; concentration there is a substantial in- co-chairs of the VBA Attorney Well-Being • Alienated; crease in productivity; Section. Please consider joining the online • Apprehension; and • Less Stressed, so you are able to cope community so we can share experiences • Feeling overwhelmed by life. with challenges, changes and obsta- and support each other. If you are ready to cles in your life and work; dive into the mindfulness pool and need • Behavioral Effects: • Improvement in Immunity, so you can someone to help support you, please con- • More accident prone; avoid illness and stay healthier; tact Samara Anderson at thehappyhuman- • Loss of appetite or overeating; • Less Reactive during conflicts; [email protected] to discuss opportuni- • Loss of sex drive; • More Present during conversations, so ties to incorporate mindfulness and well- • Drinking more alcohol; you miss less critical information and ness into your stressful lives as attorneys • Smoking more – tobacco or mari- data; through workshops, courses or coaching. juana; • Better Memory; • Insomnia; and • Increased Self-Awareness, so you can • Restlessness. see destructive habits within yourself and change them; There are many different ways to cope • Better Work-Life Integration, as you with stress, including: are mindfully creating a schedule that makes time for the things you love the most in life; www.vtbar.org THE VERMONT BAR JOURNAL • SUMMER 2019 3 1 by Lila Shapero, Esq. Vermont Bar Foundation Grantee Spotlight Orleans County Restorative Justice Center
The Orleans County Restorative Justice ulation is 27,076. Labor force participa- resolution to their clinics. Morrow notes Center receives a competitive grant from tion is 58.4% (second lowest county in Ver- that sometimes hearing what the law can the Vermont Bar Foundation (VBF) to help mont) and the median household income is and cannot do enables a person to think support its legal clinics. $41,437 (second lowest county in Vermont) differently about a conflict. This is especially This article is part of the VBF Vermont while the poverty level is 16.7% (second true in matters when the attorney explains Bar Journal series that highlights different highest county in Vermont). that there is not a legal case to bring. This grantees who receive funding through the Adding a civil clinic has been a way of information can help the person let go of VBF. The VBF is able to support those non- addressing equal access to justice accord- the conflict or dampen strong emotions. In profit organizations providing legal advice ing to Morrow. She explains many are con- addition, Morrow explains both sides may or representation to low-income Vermont- fused as to how the law works and what it share in the cause or escalation of a dispute ers through IOLTA funds and contributions. can do. and the attorney can help the person find The Orleans County Restorative Justice Their understanding may come from a resolution. Center (OCRJC) started over 20 years ago word on the street, a sometimes “creative” Sometimes a telephone call from the at- as part of the restorative justice movement explanation of the law and courts. torney can solve the issue. In one case, a in the United States. Every Vermont County VBF funds enable OCRJC to screen po- person had moved to a different town and has a restorative justice program focusing tential clients, schedule clients, and sup- ran into protracted difficulties trying to reg- on conflict resolution between an offend- port the operation of the clinic. Morrow ister to vote. A telephone call solved the er and victim and/or community and focus- states that they field about 20 telephone problem. ing on offender reentry into the communi- calls each month for screening. The fund- Morrow would like to see more clinics ty. Restorative justice programs focus on ing provides the space and a laptop. and more education. By the time this arti- accountability and healing. Once the calls are screened and sched- cle appears, an Expungement Clinic spon- Barbara Morrow is the Executive Direc- uled, a pro bono attorney sees 6 to 8 cli- sored by Vermont Legal Aid will have oc- tor of the OCRJC, a 501(c)(3) non-profit ents monthly at the clinic. Each appoint- curred in Orleans County with the help of agency located in Newport. Morrow has ment is slated for 30 minutes, but clients OCRJC. For this, Orleans County residents been Executive Director for 7 years. are able to return to follow up on their legal will be able to access help without the diffi- According to Barbara Morrow, OCRJC issues. The majority of cases are family law culty and cost of traveling to Burlington or was the first community justice center in related. Cases also include employment, other sites in the State. Vermont and the first program in the Unit- small claims, housing and other matters. Morrow describes one of OCRJS’s goals ed States to hear a documented, restor- Another pro bono attorney sees 6 to 8 as building upon its coordination efforts ative panel case. OCRJC presently has clients quarterly at a second clinic dedicat- with their community partners to broaden 25 trained volunteers. About 5 years ago, ed to elder law issues including probate access to justice for Orleans residents. The OCRJC expanded it focus and started a law, wills, financial issues and bankrupt- OCRJS also seeks to expand restorative civil legal clinic. cy. In some of these cases, the legal issue services in a broad array of settings. It con- In talking to Morrow, it is clear that she is may stem from conflicts within families. tinues to narrow the access to justice gap committed to her community and to bring- Morrow explains that an in-person con- in Orleans County by providing these clin- ing the underlying principles of conflict res- ference rather than a telephone conference ics and other services with the assistance olution to disputes and problems. Orleans makes communication easier for clients, es- of the VBF and others, through your con- County is part of the Northeast Kingdom, pecially elders. Moreover, she meets with tributions. a beautiful but struggling area of Vermont. the local Council on Aging and St. Johns- ______Orleans County is profiled in Vermont’s bury office of Vermont Legal Aid to brain- Lila Shapero is a pro bono emeritus at- Northeast Kingdom: A Community Profile storm projects, including ways to produce torney and a member of the Vermont Bar by Vermont State Data Center at UVM’s educational materials to disseminate. Foundation. Center for Rural Studies (2018). The pop- OCRJC brings the principles of conflict
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32 THE VERMONT BAR JOURNAL • SUMMER 2019 www.vtbar.org by Mark Bassingthwaighte, Esq. Password Insecurity - Lessons from a Personal Story
Sometimes married couples see things ramifications of that for the rest of our lives. dresses. This kind of information just isn’t differently and the only way to resolve the Hopefully, it’s over; but only time will tell. as confidential as you think due to events tension is by finally deciding to agree to Today things are different around here. like the Equifax breach and widespread disagree. That’s how things played out in My focus on computer security is viewed participation in the social media space. our home for a number of years on the is- in a much different light by my wife, and Knowing the common missteps, howev- sue of passwords. My wife viewed my fo- I no longer worry about any unsightly tat- er, isn’t enough. Such practices should be cus on computer security and passwords as toos on her forehead. Our state of mar- prohibited in a formal firmwide password something approaching mild paranoia. I, ital bliss has been restored because this policy that everyone at the firm must abide on the other hand, viewed her insistence time around we’re both on the same page. by. There can be no exceptions, period. on using one easily remembered password Trust me, she gets it now. What’s more im- Of course, policy provisions must also de- for everything in her life the equivalent of portant, however, is do you? Again, under- tail what to do. The most important provi- tattooing the phrase “victim here” on her stand this entire saga started with some- sion of a password policy would be to man- forehead. The only way for us to move for- one managing to figure out a password, a date the use of strong passwords defined ward was to reach an accord. We agreed password that, unfortunately for my wife as follows. A password is strong if it is long, to disagree, and things were good, at least and me, opened all kinds of doors that a minimum of 15 characters, and it should for a while. would have remained locked had she not include a few numbers, special characters, A few years later, after receiving an email used one password for everything. and upper and lower-case letters if the de- from one of our sons, our accord began I chose to share this story because I vice or application you wish to secure with to crumble. I was informed that my wife’s wanted to put a real-world spin on the a password will accept it. Additional pro- email account had been hacked and was problems that can arise when too little at- visions worth including would be requiring actively being used to send out spam email. tention is given to the importance of pass- that every application and device in use Of course, I did what one normally does to words. Every one of us in our personal and have its own unique password, requiring remedy that situation and hoped all would professional lives needs to abide by some that passwords in use with mission critical be good. Sadly, it wasn’t to be. Our accord sort of password policy, formal or informal, devices and applications (e.g. banking log- abruptly ended a few months later after we in order to try and avoid becoming yet an- in credentials, firm VPN login) be changed received written notice from a credit union other victim of identity theft. And heaven every 6 months, forbidding the reuse of old on the opposite side of the country telling help you if an identity theft occurs and it passwords, and prohibiting the sharing of us that they were most displeased with my turns out to be the identity of one or more user ids and passwords with anyone. Final- wife. Apparently, credit unions don’t like of your clients because someone got into ly, make enabling two-factor authentication it when someone gets a new credit card, your office network. So not good. for any device or application that allows it immediately maxes it out, and then fails to With this tale of woe now told, it’s time compulsory. make any payments. Unfortunately, given to talk about how to avoid becoming a vic- Of course, a password policy like this cre- that my wife wasn’t the one who applied tim. I’ll start by identifying typical missteps. ates a new problem, which is trying to keep for and received that credit card, we had a Here is a list of things no one should ever track of all the complex passwords now new problem. do. 1) Use the same password on multiple mandated. I can share that between us, While this tale took a number of inter- devices, apps, and websites. 2) Write down my wife and I have over 250 different pass- esting twists and turns over the next few passwords on easily found sticky notes. words we need to keep track of in our per- years, in the interest of time I will simply 3) Believe that passwords like “qwerty”, sonal and professional lives. I don’t know share that as a result of the initial identi- “password”, “1234567”, or “letmein” are about you, but I sure can’t remember all of ty theft a federal and an out-of-state tax clever and acceptable. They aren’t. 4) Al- that information. return were also fraudulently filed in my low computer browsers to remember pass- Fortunately, this problem can be easi- wife’s name. I spent over three years work- words. 5) Choose passwords based upon ly managed by using a password manager ing to get everything cleaned up; but the easily remembered information such as such as RoboForm, LastPass, or Dashlane. one thing I can’t do, and honestly no one birth dates, anniversary dates, Social Se- (My wife agreed to commit to learning how can, is ever get her identity back. That’s curity numbers, phone numbers, names of to use a password manager shortly after been taken and we’ll have to deal with the family members, pet names, and street ad- her kerfuffle with the credit union and it has
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 September 1, 2019.
www.vtbar.org THE VERMONT BAR JOURNAL • SUMMER 2019 33 made a world of difference!) Such tools are an Excel or Word file. But here’s the real fore, in providing this publication or docu- often cloud-based software applications value. The use of a password manager pro- ment, ALPS expressly disclaims any warranty that allow users to conveniently store and vides robust security when compared to of any kind, whether express or implied, in- manage all of their passwords. The data is relying on easily remembered weak pass- cluding, but not limited to, the implied war- encrypted and can only be accessed once words, using the same password on mul- ranties of merchantability, fitness for a par- a master password has been entered. Yes, tiple devices or websites, allowing brows- ticular purpose, or non-infringement. Password Insecurity users will still need to remember a long ers to remember passwords, not changing Further, by making this publication or and difficult to guess master password; but passwords and re-using old passwords, all document available, ALPS is not rendering having to remember one is going to be far of which is what so many do by default. legal or other professional advice or servic- easier than trying to remember 250. And ______es and this publication or document should again, no one should ever write down their ALPS Risk Manager Mark Bassingth- not be relied upon as a substitute for such master password. Everyone really must waighte, Esq. has conducted over 1,000 law legal or other professional advice or servic- commit the master password to memory or firm risk management assessment visits, pre- es. ALPS warns that this publication or docu- find a way to store it in some other secure sented numerous continuing legal education ment should not be used or relied upon as a manner. seminars throughout the United States, and basis for any decision or action that may af- One side note here because lawyers are written extensively on risk management and fect your professional practice, business or sometimes hesitant to place passwords in technology. Check out Mark’s recent semi- personal affairs. Instead, ALPS highly recom- the cloud. Try to avoid allowing such a con- nars to assist you with your solo practice by mends that you consult an attorney or oth- cern to become an excuse for not making visiting our on-demand CLE library at alps. er professional before making any decisions any changes at all. As I see it, those of us inreachce.com. Mark can be contacted at: regarding the subject matter of this publi- who use password managers are far more [email protected]. cation or document. ALPS Corporation and secure than those who simply write every- Disclaimer: ALPS presents this publication its subsidiaries, affiliates and related entities thing down on a piece of paper or on sticky or document as general information only. shall not be responsible for any loss or dam- notes that are always close at hand. Further, While ALPS strives to provide accurate infor- age sustained by any person who uses or re- given the robust encryption in use, these mation, ALPS expressly disclaims any guar- lies upon the publication or document pre- applications are also going to also be more antee or assurance that this publication or sented herein. secure than keeping a list of passwords in document is complete or accurate. There-
SURVEY SAYS?! We’ve received 381 survey responses for our broad membership demographic survey! Thank you to all of you who have participated so far. If you haven’t, please do so, it’s not too late. What do we know so far? Well, 26% of respondents earn between $91,000-$130,000 per year, which is an improvement over our last survey! We also learned that CLE’s and Government Rela- tions are two of the most important services that the VBA can provide for you (followed by on- line research and networking). Based on the responses, we are already working on training ses- sions for Casemaker Beta and other improvements suggested by you, our members. So keep the responses coming, please and please also take the time to answer our gender bias exploration survey coming to your inboxes soon. Thank you for helping us serve you better!
34 THE VERMONT BAR JOURNAL • SUMMER 2019 www.vtbar.org Vermont Bar Foundation 2019 Grants Recipients, Programs, and Service Areas
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Recipient/Program Service Area Hon. John A. Dooley Competitive Grants Program: Association of Africans Living in Vermont, Inc. Chittenden County Immigration Project New Story Rutland County Legal Assistance Project Orleans County Restorative Justice Center Orleans and Northern Essex Counties Pro Bono Legal Clinics Steps to End Domestic Violence Chittenden County Legal Clinic The Community Restorative Justice Center Caledonia County Pro Bono Legal Clinic Vermont Bar Association Statewide County Low Bono Projects Women’s Freedom Center Windham County Legal Representation WomenSafe Addison County Legal Representation Non-Competitive Grants: New Story Statewide Legal Assistance Project Orleans County Restorative Justice Center Statewide Pro Bono Legal Clinics Steps to End Domestic Violence Addison Legal Clinic Chittenden Franklin, Lamoille Orange Rutland Washington Windham Windsor Counties The Community Restorative Justice Center Statewide Pro Bono Legal Clinic
www.vtbar.org THE VERMONT BAR JOURNAL • SUMMER 2019 35 by Leo Bisson, Esq. Decision-Making at Mediation Psychological Factors Influencing Outcomes
We recently saw the 100-year anniver- discuss some of the commonly encoun- ristics impact the course of mediations in sary of the war to end all wars. Sadly, the tered psychological factors.2 many ways. stream of wars has never ended, and prob- In Michael Lewis’ novel, “The Undoing Anticipation. It is normal at mediation ably never will. All one must do is hear the Project,” he explores the life-long work of for each party to anticipate the claim re- daily news to realize how fun≠damentally two Israeli psychologists, Amos Tversky and sulting in a gain or loss. But whether an fortunate we are to have a rule of law allow- Daniel Kahneman.3 Working together and amount of money either paid or received ing peaceful resolution of disputes. And to employing numerous surveys, they dem- is viewed as a true gain or loss depends on have alternative dispute resolution process- onstrated that people in every social and each party’s reference point. And a party’s es to minimize the inefficiencies of litiga- economic stratum make decisions about reference point will surely include anticipa- tion. Mediation and arbitration have sup- a wide variety of things based on subcon- tion of some level of gain or loss from the plemented traditional methods of negoti- scious rules of thumb they labeled “heuris- matter. The claimant likely anticipates re- ation to enable those involved in disputes tics.” They categorized heuristics as certain couping some level of financial gain to com- to have some decision-making control over ingrained principals which define the be- pensate from their perceived loss, and the the outcome. havioral contours of human decision-mak- defendant anticipates some loss in order to As a mediator of civil claims seeking re- ing. Contrary to utilitarian economic theory, resolve the claim. Anticipated gain or loss dress for personal and financial losses (most which posits that decisions are based on a informs that party’s status quo which in turn commonly tort cases seeking a sum of mon- rational analysis of what is in a person’s best forms the reference point from which a par- ey), I have often pondered the factors trig- interest, they demonstrated that people ty will view a potential settlement as being gering acceptance or rejection of settle- often do not make decisions in their own a true gain or loss. ment opportunities arising during sessions. best financial interest. For example, most Claimant’s anticipation of gain is un- Over the course of about 1,000 mediations people decide to take a sure $2,000 over a doubtedly influenced by their counsel, but in the last 20 years one observation stands 50% chance to get $5,000, the statistically also by factors unrelated to the merits of out as the most curious – parties sometimes best choice. Conversely, those same peo- the claim, such as anecdotal information reach agreements they all would have re- ple asked to choose between a sure loss about other cases, and personal needs. jected coming into the process. How could of $2,000 or 50% chance of losing $5,000 For institutional clients and those repre- that be? What changes to make a “no” a chose the latter. In the first case most opt- sented by claims professionals, like insur- “yes”? ed for the sure thing over an even chance to ers, a more regimented hierarchical system I am not so naive as to credit the role of do 2.5 times better, whereas in the second for anticipating status post resolution is in the neutral alone for success at mediation, case they chose to chance a 2.5 times big- place. In both cases, pre-determined an- nor fault one or both parties for failure. A ger loss rather than accept a smaller sure ticipated outcomes limit the flexibility of good and knowledgeable neutral certain- loss. What Tversky and Kahneman came to the mediation process and require consid- ly can provide information about multiple realize is most of us are risk averse when it erable effort by the neutral to understand issues parties may consider, ranging from comes to a decision about a potential gain, when a proposal will be viewed as a true the litigation process to points of evidence but risk taking when deciding about a loss gain by a claimant who is unlikely to forfeit and substantive law potentially applicable avoidance.4 This trait forms the basis for for a chance of doing better at trial, or a to the dispute. In addition to providing in- what they labeled as Prospect Theory. loss by a defendant who is willing to take a formation, a neutral may influence decision- Prospect Theory holds that financial de- chance to avoid. making, either intentionally or accidentally. cisions must be viewed in relation to a per- Learning what each party anticipates A mediator savvy in the science of Motiva- son’s reference point. For example, if of- from the outcome of the dispute is criti- tional Interviewing may be able to direct- fered a raise of $5/hour one may consid- cal to understanding each party’s reference ly influence a party’s decision about set- er that satisfactory until learning that a co- point from which proposed settlements will tlement.1 Through empathetic listening, worker is offered a $10/hour raise for the be viewed. It is further instrumental in mea- open-ended questioning and restatement same work. Learning of the co-worker’s suring any discrepancy between a party’s of a party’s position, a motivational inter- raise creates an anticipation that one is en- position and anticipated outcome. And it viewer can demonstrate discrepancies be- titled to the same, thus changing the point is the starting point from which the medi- tween a party’s objectives and current po- of reference from which the offer of $5 is ator can begin to address the reasonable- sition such that a change of position and measured. Prospect Theory also recogniz- ness of a party’s ultimate goal for dispute movement towards compromise becomes es certain other human characteristics that resolution. possible. factor into decision-making. Loss aversion Anchoring. The uncertainty of a ver- Naturally, counsel for the parties and oth- is a strong influence. Studies show most dict or judgment in any given case affords er claims professionals involved in the pro- people are willing to take greater risks to considerable room for both disagreement cess influence the decision-making of the avoid a loss than to realize a gain. Opti- among parties and influence by a skilled parties. Again, this may be intentional or mism is another influential bias most share. neutral. When a sum cannot be calculated accidental. Family and friends likewise may Kahneman describes how optimism creates mathematically and is subject to variables have a bearing on a party’s view of case val- an “illusion of validity.” These and many and imprecision, it has repeatedly been ue and thus the position taken at media- more behaviors routinely appearing in fi- shown that a suggested amount will affect tion. The quest to understand how and why nancial decision-making influence the me- the opinion of value decided on by an indi- decision-making at mediations is influenced diation process, whether consciously or vidual. An example used by Kahneman is to leads down an interesting path. Here I will subconsciously. Prospect Theory and heu- ask: “Do you think the average life expec-
36 THE VERMONT BAR JOURNAL • SUMMER 2019 www.vtbar.org Decision-Making at Mediation tancy in Chile is 100 and if not, what do you set to avoid regulatory displeasure resulting think it is?” Of those who don’t happen to from settlements or judgments exceeding know the actual answer the average guess them. It is unlikely the true reserve will be will be a larger number than if the question shared with the neutral, though common- were simply “What do you think the aver- ly we are told the authority level has been age life expectancy in Chile is?” Likewise, if reached. The discrepancy between the re- the question is asked using the number 60 serve and authority figures allows for some the average guess will be lower than that flexibility at mediation, and that is where an for an open-ended question. The influence anchoring effect may influence how far into of a suggested figure is called anchoring. that gap the defense is willing to go. Studies show that people are reluctant to Contrast and Reciprocity. I often hear stray too far from the suggested number if parties complain at mediation that they they do not know the actual number.5 have moved much more than the other side. Anchoring occurs in mediations at vari- Neutrals typically will respond to such com- ous levels. Pre-mediation it happens when plaints by pointing out that starting points counsel advises a decision maker of her or are often unrealistically high or low and the his opinion about the value of a claim. I am relative size of ensuing moves is unimport- grateful for those instances when counsel ant compared to the ultimate amount the has not tried to lock in a value by anchoring opponent is willing to pay or accept to re- her or his client to a set figure. This is espe- solve the dispute. But I have come to un- cially important to the flexibility of parties derstand that this response lacks an appre- in cases with multiple moving parts. An- ciation of two related psychological princi- choring can happen inadvertently when a pals – the contrast principal and the reci- neutral solicits counsel’s view of case value procity rule. in the presence of her or his client. And it The contrast principal is well understood happens when the neutral states an opinion and utilized by claims professionals, even if of value, or even value range, especially if not by name. It holds that something larg- done early in the session. A neutral has an er following a smaller similar item will ap- opportunity to suggest value ranges that a pear even larger than if it was not preceded party should consider on target with what by the smaller item, and vice versa.7 Thus, an eventual trial might bring. But it is best an offer to pay a sum following an offer of for a neutral to avoid rendering an opinion a much smaller sum may be perceived as of value unless deemed necessary to avoid more significant than if made without the failure and continue progress towards reso- prior move. Conventional negotiating wis- lution. 6 dom says never make a move larger than It often happens that a claimant’s counsel preceding moves, but the contrast principal will have a strong opinion of case value and says there may well be a marginal benefit in minimum acceptable settlement amount. doing just the opposite. In most cases the lay claimant will defer al- The reciprocity rule offers a power- most completely to the views of his or her ful tool commonly used by marketers and counsel, especially in non-quantifiable dam- salespeople. Reciprocity holds that by giv- ages cases like personal injury. In such situ- ing a person something a deep-rooted psy- ations the neutral must explore the basis for chological sense of obligation to re-pay is counsel’s views without becoming seen as created.8 We see examples of this rule at an advocate for the other side. The stron- work when a charitable organization sends ger the reasoning, the more talking point unsolicited free items, like address stick- the neutral has to work with in the other ers, pens, T shirts etc., along with a request room; the weaker the basis, the more in- for a donation. Time and again it has been roads the neutral can make in suggesting demonstrated that the success rate for rais- flexibility. ing donations increases significantly when In cases involving an insurer for the de- the request is accompanied by a gift. The fense, anchoring has been methodically life insurance salesman who delivered my completed before most mediation sessions. free atlas when I was in college made good Not only are value figures pre-determined, use of the gift to leverage at least tolerance often by superiors not present at the ses- for listening to a pitch I would have rejected sion, but regulatorily mandated reserves out of hand otherwise. are set in advance. Insurance claims pro- Likewise, a concession made at a media- fessionals are generally not allowed to set- tion which is perceived as genuine may in- tle claims for an amount beyond the reserve still a sense of obligation to reciprocate, without first going through an internal pro- especially if the concession is made when cess to adjust the reserve. So, what can a not required by the process. Astute coun- mediator hope to do other than elicit the sel and parties have made good progress full authority posted on a given claim? towards resolution by making concessions It turns out that insurance claims profes- at critical times in the mediation to avoid sionals’ settlement authority on a claim is impasse and demonstrate a willingness to normally substantially lower than the case compromise deserving of reciprocity by the reserve. Reserves are usually generously opponent. www.vtbar.org THE VERMONT BAR JOURNAL • SUMMER 2019 3 7 The effect of the reciprocity rule may be firmation bias causes a party to latch onto party is in a better position to make. compounded by what has been described evidence consistent with their view and ig- Each of these factors is in play in varying as the compliance factor. Compliance rec- nore evidence to the contrary. Not uncom- degrees at any session. Parties making de- ognizes that a party is more likely to attain monly, a party will discount the points of- cisions about claims resolution at media- their objective if offered as a concession to fered by the opposition simply based on tion employ the same heuristics as they do an earlier demand.9 So a request to pay their source.13 in making other decisions. Understanding an amount to settle followed by a reduc- The mediator or attorney facing a strong some of the common psychological factors tion in an earlier demand, as a concession illusion of validity has several tools to im- influencing decision-making can be helpful to the position of the other party, can cre- part a more objective view. All parties must to neutrals and counsel alike. It is especially
Decision-Making at Mediation ate a sense of obligation to comply with the be confronted with the reality that verdict important for a mediator to understand the reduced request as a fair quid pro quo. Par- values are subjective and speculative, not roles of anticipation and framing in estab- ties seeking a just resolution of a dispute lending themselves to the level of certain- lishing reference points from which settle- will respond in fairness if they believe the ty a confident party may try to impose on ment opportunities will be measured. It is opponent is being fair. them. The confirmation bias may be less- equally essential to recognize the effects of Framing. A lesson from surveys of partic- ened by asking parties to focus attention anchoring and to be prepared to work with ipants in psychological studies is that oppo- on contrary facts previously discounted or parties who may demonstrate over-con- site answers to essentially the same ques- ignored. At least this exercise will force a fidence or a strong confirmation bias. All tion may result from how the question is rational party to confront and provide a co- parties to a mediation should consider us- framed. Thus, the same responders who gent explanation why alternative views are ing the influence of the reciprocity rule and would gladly pay $X for treatment of a con- insubstantial. To the extent the party fails the value of making concessions aimed at dition would not opt to make the same pay- this task, it weakens the illusion of validi- triggering compliance with a compromise, ment to prevent the condition. In the me- ty. To the extent the party succeeds, it pro- as well as being wary of manipulation via diation context a party who is asked: 1. Are vides the neutral better points with which the contrast principal. In the final analy- you willing to settle for a sure $X, or will you to confront illusions of validity by the other sis, the role of the mediator is to move par- take a chance to recover 130% of $X at tri- party. Either way, the process moves for- ties closer to an objectively rational view of al? [Yes, case settled for $X] versus 2. Giv- ward with a new sense of appreciation for their prospects at trial in order to accurately en you are anticipating recovery a verdict all of the parties with less rigidity. understand the relative merit of any settle- of 130% of $X, are you willing to take $X to Overconfidence affords resilience and re- ment opportunity. settle now? [No, case not settled]. solve to continue, though at the cost of self- ______There are many examples of framing deception and ultimate disappointment. Following over 40 years of civil litigation used to focus a party’s analysis on what As Kahneman observes: “An unbiased ap- practice, Leo Bisson now operates ADR, they are risking by seeking to attain a re- preciation of uncertainty is a cornerstone of LLC providing mediation and arbitration covery matching their anticipation of gain rationality-but it is not what people and or- services. from the claim. Conversely, the defensive ganizations want.”14 A mediator must ap- ______1 Making Your Writing Out of party may be asked to consider if they are preciate the tension between a party’s dis- Beth McCormack, Cite: Using the Bluebook to Improve Your Writ1 willing to spend $Z in future costs and as- appointment at reaching a settlement fall- See, Saunders, Merriam, The Application of Mo- sume the risk of being wrong about verdict ing short of anticipated results as contrast- tivational Interviewing In A Mediation Caucus. value in order to avoid adding some sum ed with the regret of losing an opportunity Mediate.com (Sept. 2009). 2 beyond their anticipated loss. for a sure thing. A helpful tool is to ask a A thorough discussion of the psychology of decision-making in tort mediations is beyond Parties should be wary of framing by neu- party who may be over-confident to identify the ability of this author and would require more trals because of the effect it may have on the reasons for a bad result, assuming one space than this journal allows. decision-making. Even when motivated by should occur following trial. To the extent 3 Lewis, Michael, The Undoing Project, (W. W. a legitimate desire to focus attention of the the party is unable to imagine such a result Norton and Company 2017). 4 Prospect Theo- consequences of alternative settlement de- the neutral can be helpful. Tversky A. and Kahneman, D. ry: An Analysis of Decision Under Risk. Econo- cisions, the effects of framing can be ma- Overconfidence should not be confused metrica, Vol. 47, No. 2. (Mar., 1979), pp. 263-292. nipulative. As observed in the American with an injured party’s view that justice re- 5 Kahneman, D. Thinking Fast and Slow, Ch. 11 Psychologist about the effects of framing: quires a certain level of recovery for the (Farrar, Straus and Giroux 2011). 6 “They can also be exploited deliberately loss. Especially in severe trauma and death Jim Spink is most effective in describing sce- narios supported by varying views of the evi- to manipulate the relative attractiveness of cases, it is not uncommon for the aggrieved dence which lead to relatively larger and smaller 10 options.” party to set a minimum level of recovery re- verdicts, thus affording the parties an opportu- Confidence and Confirmation: Kahn- quired to dignify the extent of loss. This nity to measure how their case may end without eman discusses what he labels as an illu- party is not overconfident but rather righ- suggesting a particular figure. 7 Influence sion of validity supporting human decision- teous in seeking justice. Neutrals com- Cialdini, Robert B. , Harper Collins e- books (Business Essentials edition 2009) at 11. making. One or all parties to a mediation monly respond by saying all the civil justice 8 Influence at 17. commonly espouse high confidence in their system can deliver is an amount of money, 9 Influence at 36. view of likely case outcome. As Kahneman which no one would accept for the loss. A 10 American Psychologist v. 34 Choices, Values observed: good discussion to have is about the pro- and Frames (1984). 11 Kahneman, D. Thinking Fast and Slow p. 212 Declarations of high confidence mainly cess a jury will employ in reaching a deci- (Farrar, Straus and Giroux, 2011). tells you that an individual has constructed sion, including following the judge’s in- 12 Yagoda, B. The Cognitive Biases Tricking Your a coherent story in his mind, not necessarily structions and ultimately making a subjec- Brain (Science, Sept. 2018). that the story is true. 11 tive determination of the amount of money 13 The polarization in this country today is fueled Feeding the illusion of validity is what has to award for an unquantifiable loss. If the by the confirmation bias – depending on your views there is a ready source of confirming in- been called the strongest cognitive bias we party has set an unrealistic amount as rep- formation, be it from Rush Limbaugh or Rachel share, the confirmation bias. This bias is resenting justice, then it can be pointed out Maddow. manifest when people look for evidence that they are asking a group of strangers to 14 Thinking Fast and Slow at 263. supporting their viewpoint and discount or make a difficult decision that the aggrieved ignore evidence to the contrary.12 The con-
38 THE VERMONT BAR JOURNAL • SUMMER 2019 www.vtbar.org “Excellent conference. One of the best I've ever attended. Everyone who worked on Scenes from our this should be commended.” Solo & Small Firm Conference: #Smolo!
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www.vtbar.org THE VERMONT BAR JOURNAL • SUMMER 2019 3 9 BOOK REVIEW
ited familiarity, will find helpful content. and State ethics advisory committees on Section II of the book contains informa- technology and cybersecurity issues, mak- tion that any attorney using technology in ing it easier to find guidance from around their practice should understand. Through the country. the course of three chapters, the authors The seventh chapter introduces a top- and contributors explain in detail an attor- ic that is not often considered by most at- ney’s legal obligations to manage cyberse- torneys practicing in Vermont: “Occasions curity issues in their practice and the eth- When Counsel Should Consider Initiating a ical obligations regarding protection of Conversation about Cybersecurity with the data in the attorney’s custody. The chap- Client.” The chapter provides an introduc- ters on legal obligations and ethical obliga- tion to a number of situations when tech- tions should be read by every attorney who nology and cybersecurity will impact a cli- has any responsibility for management of a ent’s interests. The authors also provide law firm, whether a solo, small firm or large suggestions to help the practicing attorney firm. The risks of failing to understand the think about certain cybersecurity and tech- scope of the duties regarding data in the nology topics to discuss with clients. The The ABA Cybersecurity Handbook possession of law firms are too great to discussion points are organized by subject (2nd Edition, 2018) leave to a general concept gleaned from a matter, for example, there is a subsection By Jill D. Rhodes & Robert S. Litt one or two-hour seminar. providing discussion points for use with cli- Reviewed by James Knapp, Esq. Section II, Chapter 4 addresses the le- ents when litigation is threatened or be- gal basis for the obligation to secure data comes a possibility. Every attorney, not just This well-organized book creates a good derived from statutory law, common law, litigators, should have enough knowledge balance between describing the current and touching on the ethical requirements. to give clients clear instructions on their state of cybersecurity risks while simulta- Within that discussion the authors of the obligations regarding preservation of digi- neously reminding readers that the nature Chapter helpfully point out the kinds of tal information in the case of potential liti- and scope of cyber incidents is always ex- data that are covered and more important- gation. The talking points in that section of- panding and changing. The information ly discuss the legal standards for what con- fer up a primer for the non-litigator and a provided in the book is sufficiently gener- stitutes “reasonable security” in the con- good reminder for the occasional litigator. ally applicable so as not to risk becoming text of the practice of law. Section III of the book switches focus obsolete as the landscape of cybersecurity Section II, Chapter 5 provides a basic ex- from cybersecurity and technology com- shifts and changes with time. planation of the international framework petence generally to offering guidance to The ABA Cybersecurity Handbook is or- imposing obligations for securing data in several types of practices. There is chap- ganized in four sections, beginning with the possession of a law practice. Gener- ter dedicated to each category of large the basic concepts of cybersecurity and ally, local law firms may not think about firm, small firm, in-house counsel, govern- proceeding through the basis for attor- the international impacts of their prac- ment attorneys and public interest attor- neys’ legal and ethical obligations regard- tice, though many Vermont firms have cli- neys. Each chapter focuses on aspects of ing cybersecurity. The middle section in- ents who live and work in other countries. the practice type and how the general top- cludes chapters on when and how to dis- It is wise to consider what impact, if any, ics offered up in the first part of the books cuss cybersecurity with clients, with discus- that laws and treaties may have when deal- would apply in the practice setting. sion addressed to different types of prac- ing with people living and working in other Section III ends with “Get SMART on tices including small firms, in-house coun- countries. That is particularly so, given the Data Protection Training and How to Cre- sel, government attorneys, and public in- ease with which communications can cross ate a Culture of Awareness.” As the au- terest attorneys. There is an entire chap- national boundaries when conducted in cy- thors and contributors regularly point out ter on insurance aspects of cybersecurity as berspace. throughout the book, being aware of the well. The substantial appendices include Section II, Chapter 6 examines the spec- risks and creating an awareness in every- relevant federal and state statutes and case trum of ethics opinions addressing attor- one in the firm, department or division, law, and a collection of ethics opinions re- neys’ obligations related to data security. about the types of cybersecurity risks is lated to cybersecurity. Section I of the book At the beginning of the Chapter, the au- the start of limiting exposure. One of the includes three chapters, one of which pro- thors examine ABA Formal Opinion 477R most difficult challenges for the average vides a primer on cybersecurity risks. That addressing data security. The remainder Vermont law firm or small corporate de- chapter discusses the general nature of of the chapter includes commentary on the partment is finding the resources to cre- common cybersecurity risks that might text of the ABA Model rules as those rules ate a viable training program. Chapter 13 confront an attorney in whatever area she apply to technology and data security, ref- provides a framework within which a firm or he might practice. The material is ad- erencing a mix of State and ABA opinions. manager or department head can develop dressed in language that a person with a The chapter also discusses favorite topics a program for the individuals in their firm basic grasp of technology will understand, such as encryption of email, the duty to or department. making the material accessible to those warn clients about potential third party ac- For all the useful information presented who may feel that they do not have enough cess to shared computers, cloud comput- in Sections I, II and III of the book, there knowledge to understand the scope of the ing and social media. The final section con- is significant value for any attorney practic- cybersecurity issues. The third chapter in tains an interesting list of 10 points regard- ing law in any setting without a dedicated Section I speaks to the concepts of net- ing the intersection of ethical obligations information security department in Section working, both locally and on the internet. and technology. The appendices collect IV of this book. The final chapter of Sec- Those with an interest in the topic, but lim- references to ethics opinions from the ABA tion III and the two chapters in Section IV
40 THE VERMONT BAR JOURNAL • SUMMER 2019 www.vtbar.org Book Review address three key topics by aggregating divisions because no plan encapsulated in pals of the firm do not understand what ideas and best practices that would re- a single chapter would address every situa- events are covered by the policy and what quire significant additional effort to assem- tion. Instead the Chapter points the read- kinds of coverage are provided. It is impor- ble without the book. In fact, these three er to resources from which the appropriate tant to be able to identify the likely risks to chapters alone would justify the purchase elements can be drawn to formulate a be- yourself, or your firm, and then determine of the book. spoke plan for a specific firm, department if you have the appropriate coverage. The Based on this reviewer’s experience at or division. materials in Chapter 15 will help with that several recent technology programs spon- The final chapter of Section IV address- analysis. sored by the Vermont Bar Association, es the basics of cyber insurance. There is Generally speaking, the information in many Vermont attorneys would benefit also a brief discussion of potential cover- this book is presented in a well-organized from the information contained in Chap- age for some cyber events under malprac- format and is written in language that law- ter 14. Almost everyone will have heard tice policies. Several pages explore the yers and law office administrators can un- by now the statement: “It isn’t whether you benefits of cyber insurance but with a sec- derstand. The authors and contributors will be hacked (or be subjected to a ran- tion that points out potential issues with provide examples of cyber incidents and somware attack), but when, and will you the language in a cyber insurance poli- their consequences which are helpful in il- know when it happens.” Chapter 14, with cy. The chapter also includes an interest- lustrating the points being addressed. the related Appendix, helps attorneys be- ing matrix assessing the insurance cover- ______gin the formation of an incident response age for various cyber events, using the na- Jim Knapp, Esq. is the State Counsel for plan. Bear in mind that the incident re- ture of the damage and nature of the loss First American Title Insurance Company in sponse plan is one element of a business as the elements against which to compare Vermont and co-chair of the VBA Property continuity plan, that every attorney, law the coverage. Every solo practitioner and Law Section. He has generally concentrat- firm, legal department, and legal division law firm should have cyber insurance, but ed his practice in real estate and property within an agency or department should simply buying the policy offered as an add- law, with a strong secondary interest in the have. Chapter 14 does not provide a pre- on by a malpractice carrier or other busi- application of technology to the practice of prepared plan for law firms departments or ness partner is not sufficient if the princi- all areas of the law. IN MEMORIAM
Laurie Ann LeClair Samuel Crawford Fitzpatrick Allen Martin
Laurie Ann LeClair, 57, passed away on Samuel Crawford Fitzpatrick passed Allen Martin, 81, died peacefully on June April 4, 2019. Born in Burlington, Laurie away on April 22, 2019 at the age of 83. 19, 2019 surrounded by the enduring love graduated summa cum laude from UVM Samuel was born in Norfolk, VA and grad- of his wife Bonnie. Allen received his BA, and magna cum laude from the Vermont uated from Montpelier High School, Yale cum laude, from Williams College, where Law School in 1990. She also attended the University and Cornell Law School. He also he lettered in football and lacrosse, and re- University of Nice Sophia Antipolis in Nice, served as an officer in the Navy. Sam was a ceived a scholarship to attend Oxford Uni- France for opera and the Institute for Euro- real estate practitioner in Montpelier and versity in England. He graduated from Ox- pean Studies in Vienna, Austria for opera was active in the community, volunteer- ford with a first class honours degree in Phi- and Lieder performance. Laurie devoted ing as both a baseball and hockey coach losophy, Politics and Economics, playing on her legal practice to helping young peo- and serving proudly as a board member of the Oxford lacrosse team as well. Allen re- ple and fighting for social justice and was a Northfield Savings Bank for many years. He ceived his LL.B. cum laude from Harvard longtime board member of Vermont Den- enjoyed duck hunting, sailing and going to Law School and served on the Harvard Law tal Care. She was a vivacious, gifted, kind camp and was known for his zest for life, Review for two years, as the articles editor and intelligent woman. Laurie was the Pro- honest and strong opinions and a sense of in his final year. Upon graduation he moved grams and Publications Director of the Ver- humor. Sam leaves behind three children to St. Johnsbury, clerked for the Honorable mont Bar Association for a few years and and three grandchildren and was prede- Sterry Waterman of the Second Circuit was a member of the VBA. Laurie was pre- ceased by his brother. Court of Appeals and practiced at Foley deceased by her parents and sister and Hoag and Eliot in Boston for several years. brother-in-law and is survived by her son, Allen then joined a small firm in St. John- Julien LeClair Katims, her nephew, her be- sbury which later became Downs Rachlin loved cat Glinda and many friends. Martin, the largest firm in Vermont, practic- ing for 33 years there before he retired in 2002. Allen specialized in public utility law, mergers & acquisitions and health care law. Allen served as Vice Chairman of the Ver- mont Judicial Responsibility Board and was the Chair of the Vermont Board of Educa- tion. He served on many corporate boards and as trustee at Vermont Law School. Al- len is survived by his wife of 40 years, his son, daughter-in-law and their children and his sister, brother-in-law and nephews.
www.vtbar.org THE VERMONT BAR JOURNAL • SUMMER 2019 4 1 CLASSIFIEDS
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42 THE VERMONT BAR JOURNAL • SUMMER 2019 www.vtbar.org