Justice Beth Robinson: a Paragon of Good Legal Writing

WINTER 2019 • VOL. 45, NO. 4 VERMONT BAR JOURNAL

DEPARTMENTS 5 PRESIDENT’S COLUMN

PURSUITS OF HAPPINESS 6 — Adventures in Cycling: An Interview with Ben Marks

RUMINATIONS 14 — Justice Robert Larrow and His Legacy

WRITE ON 24 — Justice Beth Robinson: A Paragon of Good Legal Writing

WHAT’S NEW 30 — An Interview with Carl Lisman, President of the ULC 33 — The Vermont Legal Food Hub “Montpelier Morning” by Jennifer Emens-Butler, Esq. BE WELL 37 — Is it Possible to Do Less to Achieve More?

51 BOOK REVIEWS

54 IN MEMORIAM

54 CLASSIFIEDS

FEATURES 39 Economic Impacts of Civil Legal Assistance Programs in Vermont Dan Richardson, Esq.

41 The Ins and Outs of Tail Coverage Mark Bassingthwaighte, Esq.

43 Civil Case Mediation: A Practical Guide James W. Spink, Esq.

46 Pro Bono Award Winner Anne Day, Esq. Mary Ashcroft, Esq.

47 Pro Bono Award Winner Ian Carleton, Esq. Mary Ashcroft, Esq.

49 Paralegal Licensure is a Solution Carie Tarte, RP®, Lucia White, CP, Corinne Deering, RP®

www.vtbar.org THE VERMONT BAR JOURNAL • WINTER 2019 3 Advertisers Index VERMONT BAR JOURNAL ALPS...... 12 Vol. 45, No. 4 Winter 2019 BCM Environmental & Land Law, PLLC...... 8 Berman & Simmons...... 34 The Vermont Bar Association Biggam Fox & Skinner...... 4 35-37 Court St, PO Box 100 Caffry Law, PLLC...... 36 Montpelier, Vermont 05601-0100 802-223-2020 • 1-800-639-7036 Cleary Shahi & Aicher, P.C...... 17 Fax: 802-223-1573 Dinse...... 13 E-Mail: [email protected] Economic & Policy Resources...... 27 On the Web: www.vtbar.org James A. Johnson, Jr...... 27 President Law Pay...... 7 Elizabeth Novotny Lawyers Assistance Program...... 23 Past President Leighton Detora...... 22 Gary L. Franklin Marks Powers LLP...... 21 National Academy of Distinguished Neutrals...... 11 Secretary Edward J. Tyler III Northeast Delta Dental...... 22 Preferred Properties...... 5 Treasurer Primmer Piper Eggleston & Cramer PC...... Inside Front Cover Matthew F. Valerio TCi Technology Consultants, Inc...... Inside Back Cover Board of Managers Teamswork...... 25 Katelyn Atwood Trust Company of Vermont...... Back Cover David Carpenter Amy E. Davis Unsworth LaPlante, PLLC...... 19 Joshua Diamond VBA Legal Connect...... 37 Judith L. Dillon Vermont Attorneys Title Corporation...... 9 Hon. Thomas S. Durkin Robert E. Fletcher Vermont Trial Lawyers...... 15 Elizabeth Kruska Andrew Manitsky To advertise in the Journal, call Lisa Maxfield at 802.223.2020 James Rodgers Charles Romeo Ben Traverse

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

Legal Access Coordinator Mary C. Ashcroft, Esq.

Layout/Design Alicia Anthony

Published four times a year by the Vermont Bar Association Subscription rates: 1 year $35. 2 years $65. Printed by L Brown & Sons Printing, Inc. VBA assumes no responsibility for claims arising in connection with products or services advertised in the Vermont Bar Journal.

4 THE VERMONT BAR JOURNAL • WINTER 2019 www.vtbar.org by Elizabeth Novotny, Esq. PRESIDENT’S COLUMN

In my remarks at the VBA annual meet- planning the 100 year anniversary of the ing in September, I committed to elevating 19th Amendment. our profession, connecting the VBA to our broader community and celebrating Ver- • The VBA contacted presidents of mont attorneys for their dedication to Ver- the county bar associations seek- monters and the cause of justice. I’d like to ing recommendations and input use this column to share our progress since on what social or business groups I that meeting. should meet with to discuss the vir- tue of our profession and Vermont • In 2020, the VBA will sponsor 4-5 re- lawyers. Please contact me if you gional public forums to discuss pro- have an organization in your composed amendments to the Vermont munity that you would like me to ad- Constitution. I will have the privi- dress. lege of facilitating a panel of legis- lators, constitutional legal experts, • To highlight your good deeds and and perhaps historians as they talk valuable contributions to the Ver- about the process and history of mont community, I plan to submit an amending the Vermont constitution article to the media about Vermont and their interpretation of the scope lawyers and their value. and effect of the amendments. We plan on recording this event where • In order to establish the VBA mem- a moment to consider something you did we will invite audience participation. bership as the resource for provid- that you are proud of or that made you The video will be posted on the VBA ing background on current events, feel good about yourself personally or pro- website for any member or member and at the same time showcase our fessionally. Taking the time to reflect on a of public who is unable to attend. membership’s legal acumen, the moment where you were your best self or VBA will maintain a “go to” list of performed some an act of kindness or ser- • In order to promote civics in our members the media can contact for vice to others is an easy wellness exercise schools, I have asked the VBA Board legal background on articles and to practice, yet one you likely practice the to create an annual VBA Civics stories. The VBA will also offer a CLE least. Do it just once and I guarantee you award and name the award in hon- on how to deal with media inquiries. will feel better as a result. or of a person whose work or deeds Please contact Communication Di- exemplify civic duty. This gives the rector Jennifer Emens-Butler if you With deep gratitude, VBA an opportunity to elevate val- are interested. ues inherent in civic duty while hon- Beth oring the deserving recipient of the I hope you are satisfied with the VBA ef- award. forts to date and thank you for the opportunity to serve your interests. None of our • In an effort to strengthen our con- efforts to date could be achieved without nection to the youth in our commu- the talented and hard- working VBA staff. nities, the VBA will collaborate on So, thank you Teri, Lisa, Jennifer, Michelle, an education/civics program that Mary and Laura. will help connect Vermont lawyers And as a final thought on this snowy with students in our Vermont class- December afternoon, during this upcom- rooms. VBA Executive Director, Teri ing year, as often as possible, please take Corsones, is reaching out to Ver- mont social studies teachers regarding legal and civics topics of interest. The VBA will provide the topic materials to VBA members interested in talking to a class. Our goal is to make it easy for interested lawyers to spend an hour in a Vermont classroom and, by doing so, promote our profession and generate an interest in civics.

• As part of our commitment to partner with non-legal community organizations, the VBA joined an alliance of Vermont organizations developing and

www.vtbar.org THE VERMONT BAR JOURNAL • WINTER 2019 5 PURSUITS OF HAPPINESS Adventures in Cycling: An Interview with Ben Marks

JEB: I’m here speaking with Ben Marks JEB: Funny, I can see that happening. who has been nominated by Paula McCann Whenever I’m somewhere with my hus- to be interviewed for our Pursuits of Happi- band and he sees a couple of cyclists with ness column. Ben, as you may know, I inter- all their gear, he is somehow compelled to view people for the journal who have pas- ask them where they are going or about sions and talents outside of the practice of their adventure. It must happen to you a law. Before we get to the meat of your ad- lot. venture last summer, let me find out where BM: Yes it does. One of my favorite parts your interest in cycling started. of doing these trips is getting a different BM: Well, I started bicycle touring at a look at the countryside and towns along young age. Instead of going to summer the way from a perspective you just can’t camps or other expensive adventures out get from a car or certainly from a plane, of state, I embarked on a New England ad- and how often I meet people without that venture with a couple of friends when I was barrier. I get more insight about the coun- 15. You know, it’s funny what we did un- try and the people as I travel. supervised when we were younger. I think For instance, I was riding through Flint, of my kids at 14 or 15 and I can’t imagine MI right past the picket lines in the middle them doing these things. of the summer’s General Motors strike. It is one thing to see a 40-second story about JEB: Yes, I always think about how I went a strike like this on the news. It is anoth- to an 8-week summer camp at age 9 and I er entirely to be able to talk to the strik- don’t think my son would have made one ers yourself. I didn’t plan the trip that way, week at that age let alone 8! JEB: That is incredible. I didn’t think but that’s what happened. Similarly, I went BM: [laughs] True. So I organized this about maps needing to show the hills! How into a small grocery store in a little town trip from Keene, NH to Martha’s Vineyard, long did that trip take you? off a rail spur in Michigan. Every item on MA with two friends, one of whom I’m still BM: About 2 months. It has been the the store shelves was a Mexican product – friends with to this day. only time in my life, especially now with guava candies, cidre (an apple cider soda), work and kids, that I could have taken two dulce de leche, etc. I had known, intel- JEB: Wait, you went on that long of a whole months off to unplug for that type of lectually, that Mexican farm workers were journey without any parental supervision? adventure. central to the Michigan farming communi- BM: That’s right. About 1/3 of the jour- ty. But I hadn’t really thought through that ney we camped, about 1/3 of the journey JEB: Being in college, were you able to those communities would have local stores we stayed in hostels and for about 1/3 we stay in hotels or did you camp the whole in a rural location. It was kind of like stum- stayed with friends or relatives, but we did time and carry all that gear? bling into Chinatown, or Little Italy, or the the whole thing on our own. BM: We did camp some and carried Lower East Side in New York City, if you gear, but every pound you carry definite- didn’t know the history of the place. Eye JEB: That’s amazing! So you are from ly affects your ability to survive the long opening. And by the way, you’d never see Keene, NH? haul. We often found places to stay, either this stuff if you were going between Min- BM: No, I’m from NYC, but we didn’t church basements when it was raining, or nesota and Vermont by car – the most effi- want to have to navigate out of the city on folks along the way you’d meet at a store cient way to travel between cities by car is bikes loaded up for camping. So we took a or somewhere who would let us stay in on an Interstate Highway. bus out of the city for the trip’s start. their homes or on their lawns, which I’ve done on my own since then as well. JEB: That’s definitely true. It’s the lit- JEB: Wow. Have you had a passion for tle experiences that make the trips special bicycle touring ever since? JEB: Wait a minute… You look quite for sure. Back to present trip and why you BM: Absolutely, I’ve been on many trips trustworthy, but I’m pretty sure if you came were nominated. Tell me a bit about the since then. When I was 19, I went on anoth- up to me at a store and asked for a place to trip you took last year. er long trip, with one of my buddies from say I’d be skeptical! BM: Well, my daughter was given a hand- that first trip. We started in San Francisco BM: It’s not exactly like that! Usually me-down car by her grandmother to use at and ended in New York City. We head- someone would strike up a conversation college. For her first year of school, the car ed north to Spokane, WA and made a big in a store or somewhere, seeing me in all sat in our driveway. After a year of insuring right turn to head towards the East Coast. my bike gear, and ask where I was going or it and watching it sit there, we decided that Just 3 of us. And back then, we didn’t have where I came from, and after a while, you it belonged in Minnesota with my daugh- the convenience of Google Maps or other might ask if they knew of a campground or ter. She wasn’t too versed in highway driv- aids so we just had to find places to stay place to stay. It never ceases to amaze me ing, so my wife and I thought why not drive and bike routes along the way. I think we the kindness of strangers that still exists all her out there and then I could cycle back! used the old AAA maps – funny, we discov- across the United States. Perhaps it’s not My wife knows how much I enjoy long cy- ered that they weren’t so good for figuring as frightening being a man traveling alone cling trips and encouraged me to do so. out a road’s grade/inclination. Then again, often as it would be for a woman, but I’ve they never ran out of batteries, if you know never felt afraid on the road and have al- JEB: So you cycled back from Minneso- what I mean. ways found great company along the way. ta?!

6 THE VERMONT BAR JOURNAL • WINTER 2019 www.vtbar.org

BM: My daughter and I had a great road part is much easier than it was when I did steel touring bike – no carbon fiber here! trip out, much more in the lap of luxury in the long trip in 1987. The bike is made by a company called Riv- that we stayed at hotels, took our time to endell, based out in California. They make see the sights, took the Michigan-Wiscon- JEB: Did you have to do a lot of physical old school bikes with plenty of wheel clear- sin ferry, ate out and then when we got to conditioning? ance for wide tires, fenders and racks. The college, I unhooked the bike and set off BM: Well given that it was the end of the machine has to carry me, plus around 30 back home. For what it’s worth, my daugh- summer, I had been cycling, and I did cycle pounds of gear, so it has to be sturdy. I Pursuits of Happiness ter’s college friends thought I was nuts. So from Vermont to Long Island earlier in the like steel bikes because if you ding a part, there was that. summer to meet family as a sort of proof- like a front fork, out in the boonies, you of-concept for the longer ride. After a long can bend things back into shape enough JEB: Then you must be doing something winter, you can’t just get up and bike 60 to get you back to civilization. I also have a right! I think I’d much prefer the trip out. miles on a fully loaded touring bike, or at front wheel with a small generator in it that How much planning would be involved in least I can’t. And I did some experiment- runs my lights. Never run out of batteries such an adventure? ing with how much gear I could carry, what again! And I did visit two bike shops along BM: Surprisingly it’s not too complicated bike seat would be best, how many miles I the way to deal with mechanical issues that now that Google Maps can give you bike could do back to back. Since the distance arose (a loose pedal that was “clicking” on routes and can display most of the motels you can cover is dictated by, among other each rotation in one case and a loose head- and campgrounds in the radius of a day’s things, the grade of the roads, the strength set in another). ride. In fact, there are rail-to-trail projects and direction of the wind, and the weather sponsored by many states that have con- generally, in addition to your own physical JEB: I was curious about the type of bike verted disused rail beds into recreation- capabilities, planning many days out can you used. How many days did the Long Is- al paths. They are graded almost flat and be difficult. land trial run take? I drove to Long Island are set apart from traffic. This makes them last weekend and it took me 6 hours! much safer than sharing the road shoul- JEB: So many things to think about. I BM: You figure an average of 9 miles an der with morning commuters still on their can’t sit on a bike seat for 1 hour let alone hour and maybe between 50 and 70 miles first cup of coffee and checking their e- days on end. Did you find the right seat? in a day depending upon the weather, to- mail while driving! In Minnesota, I just told BM: Funny, I did end up switching seats pography, or just how you are feeling. I Google Maps to get me home and hit the after the Long Island trial run. Despite the cheated a bit on the first day -- my wife “bike” icon. Google’s map function then promises of larger padded seats, I found agreed to drive me and my bike to Ludlow, linked each state’s rail-to-trail paths, and those did not give lasting comfort the which was just about the highest point of choose secondary roads to get me safely same way as a smaller seat that only sup- elevation on my trip. So I started a bit clos- between gaps in the states’ systems. That ports your “sit” bones. I ride a pretty beefy er to Brattleboro to avoid the larger moun-

8 THE VERMONT BAR JOURNAL • WINTER 2019 www.vtbar.org

tains and did it in about 4 days. The last day had taken a small laptop with me to check think it’s more of a mind-set that we law- I powered through 75 miles just to make it in on work, so I wanted to make sure I had yers get in where we think we simply can- there. places to check email, file motions if need- not take the time, but if we prioritize, we ed and recharge (literally). can. While I know people say that our tech- JEB: My trip to Long Island was mostly nology keeps us tethered 24/7 to our work, 4 lane highways. I assume you took much JEB: I was going to ask about work! How that same technology enabled me to check quieter routes? long did the trip take? and answer emails, and keep an eye on Pursuits of Happiness BM: Like I said, I found all my trips to be BM: I’d sound superhuman if I just said cases. Between my phone and my little lap- extremely safe as far as people are con- two weeks without explaining that I had to top, I could take care of most stuff. If a cli- cerned, the biggest risk is people texting stop around Rochester, NY as it was apparent matter had blown up while I was on the while driving! You also have to be comfort- ent I would miss some important commit- trip, though, I might have had to change able claiming a lane when you need it. I do ments if I kept going. So it took me two my plans. But that’s true no matter where run front and rear lights on my bike, regard- weeks to cycle from Minnesota to NY, av- you are. At least with the technology, you less of time of day, and I wear a Day-Glo eraging about 60-70 miles per day. You are neither helpless, nor out of the loop. jersey. But the rail-to-trail paths take a lot have to stay flexible in your planning. I had of automobile traffic out of the equation. stopped in Flint, MI, planning on taking a JEB: Yes and it’s about setting client ex- You can get from Amherst, MA to New Ha- ferry into Ontario and crossing into Canada pectations at the onset. Does it help or ven, CT almost entirely on bike trails these that way. Turns out that the ferry has been make it worse that you are a solo practi- days. out of commission for a year, and no one tioner? told Google! The approaches to the US- BM: I was a partner at Sheehey until JEB: That sounds much more relaxing! Canada border are all federal highways – about ten years ago and I loved the peo- BM: Yes, but there’s a trade-off. The fun- no bikes allowed. Rather than take an ex- ple there and the work. But the work-life ny part about those converted rail beds tra day and navigate Detroit, I just rented balance wasn’t there for me. Or at least I and paths is that you lose much of the va- a car in Flint and drove my bike to Buffalo. couldn’t make it happen. So 10 years ago, riety and sightseeing. A bike path in Con- That’s an option I never had when I was 19! when my kids were 7 and 12, I made the necticut looks pretty much the same as a decision to step back and spend more time bike path in Michigan. You have to leave JEB: I hadn’t even thought about the with them. I reasoned that the dad they the path to go to towns to find food, but border issue. That still sounds superhu- were going to get for the next 5 or so years other than that there are long, I dare say man to me. I wouldn’t make it one week. would be the one they took with them into relatively boring stretches. There is some- I do prefer the sound of staying in motels their own grown up lives. We refer to this thing to be said of the variety and the local over camping though. I think I’m done with as the “less money/more fun” business nature of the old “blue highways.” camping at this point. model around our house. BM: There were some interesting old JEB: Oh yes you can definitely say bor- motels along the way I have to say. You JEB: Ah, the Vermont state motto! ing if it’s anything like I-90 across New York. also aren’t sure from Google Maps just how BM: [laughs] Yes! But it was a critical and Talk about a long stretch of sameness! safe the area you choose is until you get healthy decision for me that I will never re- After your trip to Long Island, did you there! There are also these online apart- gret. I was able to spend more time with feel prepared for the trip from Minnesota? ments, like a motel/Airbnb combo where them, and pursue other activities that have Did you have any trepidations? you book online, get a code for the door been deeply meaningful. I chair the Corn- BM: Well the weather forecast called for and just get into a furnished apartment wall Select Board, serve on my town’s vol- some seasonably cold evenings in Wiscon- with a kitchen, etc. Those were quite unteer fire department, and joined a local sin and Michigan. Once the temps are be- handy. I found a couple along the way. community chorus. These activities really low 50*, it gets pretty tough on your hands What I haven’t tried, which also exist, are balance my time out more. and feet, if you are not prepared. As luck cycling groups who provide hot showers or would have it, it was unseasonably warm in beds for people on long cycle trips. JEB: It sounds like you are doing even the upper Mid-West this year and I didn’t more work, although we’ve heard time and need the warm gear I packed. JEB: Oh like those couch-surfing sites? again that volunteering your time as a law- BM: Yes but for cyclers. I think one of yer actually helps your wellness and work- JEB: But of course, if you didn’t bring it, them is actually called hot showers or life balance. it would be cold. something. Again, I have just found so BM: It really does. And given the divi- BM: Yes, it always seems to be that way. many decent people along the way in my sive times we are living in, where the recit- It was good to have it but I could have cycling travels; it’s definitely one of my fa- ed wisdom is that Americans can’t bridge gone without the extra weight. vorite parts of the adventure. the current divide of ‘us vs. them’, these activities serve as an effective antidote. My JEB: Did you camp mostly when you JEB: And I’m sure it’s a good respite town’s Select Board consists of five people were on your own this summer? from your daily work and stresses of work? who are united by their desire to solve lo- BM: No, as it turns out, I mostly stayed BM: You find yourself with immediate mi- cal problems. We don’t talk political par- in motels. My wife was a big proponent of nor worries, like how much water do I have ties, or presidential elections; instead, we doing the trip right and making sure it was left, how many calories do I have and need find solutions. In that way the Select Board a pleasant experience. She thought, if I’m before the next stop, where should I stop, is like the antidote to the current politi- going to take all this time off and do it, I but you aren’t worried about work or daily cal malaise. Similarly, the fire department should do it comfortably and successful- stressers. It’s quite freeing. has an informal ‘no politics’ rule. I mean, ly. I had wanted the flexibility that camp- your neighbor’s house is on fire, or some- ing gives you. But in Madison, WI, I realized JEB: Your clients were ok with the two- one needs urgent medical attention, none that I hadn’t spent a single night sleeping week hiatus or did you keep in touch? of that stuff really seems to matter. In both on the ground, cried “uncle” and mailed BM: For one, I picked two weeks that cases, we have a group of people, all com- home all my extra camping gear. Also, I I knew were less likely to be busy. I also mitted to solving specific problems to im-

10 THE VERMONT BAR JOURNAL • WINTER 2019 www.vtbar.org

prove their town no matter their political called scratching our heads about issue the next cycling adventure. leanings. It’s such a refreshing example that had popped for our own clients. I try of how small government can and should to do the same, when I can. JEB: Do you have plans for any upcom- work. ing adventures? JEB: Oh yes, thank you. We were always BM: My wife enjoys biking some, and JEB: That’s so true. And I’m sure your le- helping other attorneys but of course we we keep talking about taking an adven- gal talents are needed for those roles. never charged for it. It just seems like what ture when the kids are out of the house. Pursuits of Happiness BM: Absolutely, we have a great town at- we all should be doing. The work also helps We have thought about a tandem bike too, torney, Jim Carroll, who we can call upon with the intellectual stimulation, right? perhaps down the coast. The joke about when litigation is the direction, but mostly, Many of my interviewees combine a free- tandems is that “wherever your relation- people are willing and able to solve prob- ing physical or artistic passion with some ship is going, you’re going to get there lems together and do appreciate my sug- sort of intellectual passion which both aid faster riding a tandem bike.” gestions in terms of what the laws say or in wellness. what I think might work in an ordinance. It’s BM: Yes, it also can’t be understated that JEB: Too funny. Well, that sounds incred- extremely rewarding. cycling does wonders for physical wellness ibly beautiful and peaceful, I can’t wait to as well as mental clarity. hear about it! JEB: The sense of giving back is so re- ______warding. JEB: Do you bike in the winter or in- Do you want to nominate yourself or a BM: I don’t keep track of my volun- doors? fellow VBA member to be interviewed for teer hours, but I would not be surprised BM: No, I really enjoy cycling for the long Pursuits of Happiness? Email me at jeb@ if I didn’t give away about ½ of my time hauls, to see parts of the country from an- vtbar.org. these days. But I feel an obligation to do other perspective and to immerse in local so and it really does help with my wellness communities throughout. I also just don’t and balance. I remember when you were enjoy cycling in the cold. I’ve had some in- in practice, you were always generous with juries, so other than cycling, I’d say yoga or your bankruptcy advice to those of us who swimming in the winter gets me through to

12 THE VERMONT BAR JOURNAL • WINTER 2019 www.vtbar.org

by Paul S. Gillies, Esq. RUMINATIONS Justice Robert Larrow and His Legacy

It was the beginning of March 1974, self into a majority party, solidified by the the last time the legislature would elect a elections of William Meyer in 1958 as U.S. Justice of the Supreme Court. The 1974 Representative and Philip Hoff’s guberna- amendments to the Vermont Constitution torial victory in 1962.4 would soon require judges and justices to Larrow was the second Democrat to be be chosen by the Governor, after nomi- elected or appointed to the high court. nation by the new Judicial Nominating The first was Isaac Fletcher Redfield, who Board. But for one more time, the legisla- served on the court from 1835 to 1860, the ture would elect a Justice of the Supreme last twelve years as Chief Judge.5 Larrow Court. was a Roman Catholic of French descent. As Chief Superior Judge, the most se- His political affiliation and his religion were nior of the civil judges, William Hill expect- important components of his character. ed he would be elevated to the high court. Robert Larrow was born in Vergennes, With the exception of 1914-1915, that had on April 27, 1915, attended local schools, been the rule for many years.1 As vacancies later earned a B.A. from Holy Cross Col- occurred on the high court, they would be lege (1936) and an LL.B. from Harvard Law filled by the longest-serving trial judge, not (1939). His first political race was for- Bur because the constitution or the law dictat- lington City Attorney, won in 1944, beat- ed it, but because that was the order of ing Theodore F. Hopkins, a Republican who things. Vermont used to be ruled by many had held the post for 23 years.6 Larrow re- unwritten orders. mained City Attorney until 1963. He rep- The legislature had elected Hill to the Su- resented Burlington in the House (1949- perior bench in 1959. He had seven years tired April 1, 1987.3 1951) (as a Democrat) and was chair of the of seniority over Judge Robert Larrow, who Justice Larrow served a total of 15 years State Liquor Board (1964-1966). Elective had been appointed a Superior Judge in and three months as a judge or justice, in- office otherwise eluded him, but did not si- 1966 by Governor Philip Hoff, and then cluding seven years and six months on the lence him. elected to consecutive two-year terms by high court. Justices Larrow and Hill’s ten- Larrow had a sharp wit. In his race against the legislature. Franklin Billings, Jr. was the ures overlapped for five and a half years. Emerson in 1952, he criticized the Repub- third most senior Superior Court Judge, lican leadership for its allegiance to the appointed by Hoff to the civil trial bench in Inquiry Proctor Marble Company. “When the dog December of 1966. barks in Proctor,” he said, “the tail wags in Tradition did not hold in March of 1974. In the summer 2019 issue of the Vermont Montpelier.”7 He ran an ad that year in the Judge Robert Larrow won the race in the Bar Journal, an essay entitled “Politics and Free Press: “Why you should support the legislature. The vote was Larrow 89 to Hill the Court” attempted to define what con- candidacy of Robert W. Larrow for Gover- 82. The Burlington Free Press explained stitutes a conservative judge, and to in- nor of Vermont: He is young, progressive, that Larrow had the solid support of the vestigate whether the Chief Justice Sher- capable of providing the real leadership Democrats, joined by a “loose coalition of man Moulton’s Republican politics showed Vermont needs.” He lost that race, as well conservative Republicans, led by Speaker through in his published opinions. This as the 1962 contest for Attorney General, [Walter] Kennedy.”2 month, we look at the same question from and for Mayor of Burlington the following The Court in 1974 consisted of Chief the left, using the works of Justice Robert year. He came close to winning the race for Justice Albert Barney, Milford K. Smith. Larrow Could we lift the veil and see the Attorney General in 1962. F. Ray Keyser, Sr., Rudolph J. Daley, and political heart of this judge? In 1954, he publicly defended his party, newly-elected Robert Larrow. Justice Key- while giving an elbow to the Republicans. ser retired on June 1, 1975, and Franklin Politics He charged Republicans with “100 years” S. Billings, Jr. was appointed by Governor of “drifting and dreaming.” He agreed with Thomas Salmon to fill the vacancy, another Robert Larrow was not a Republican. He the criticism that Democrats were a “par- breach of tradition. Justice Smith retired on was a determined Democrat, with a long ty of malcontents.” He said, “Of course we April 30, 1976 and at last William Hill was history of involvement in statewide politi- are not content. We are discontented with appointed a Supreme Court Justice, a sec- cal campaigns both as a candidate and as decade after decade of state government ond Salmon appointment. a spokesman for the party. He had run for without leadership.” The court remained intact for more than Governor at the unripe age of 37 in 1952 Republicans, he said, were keeping Ver- four years until October 31, 1980, when against Republican Lee Emerson and won mont “at least one, and probably two, de- Justice Daley retired, and Governor Rich- nearly forty percent of the votes, more than cades behind the progress of its sister ard Snelling appointed Wynn Underwood any Democrat in Vermont history had ever states.” He predicted the end of Republi- to replace him on the high court. The next earned. He had run for other offices af- can rule. “The people of Vermont are Re- year, effective August 31, 1981, Justice Lar- ter that, never prevailing, but always mak- publicans not by prejudice or bias, but by row retired. Governor Snelling appointed ing the races competitive. His campaigns habit. That habit can be broken. Perhaps Louis P. Peck in his stead. Justice Hill re- helped inspire his minority party to turn it- not overnight, but it can be broken and we

14 THE VERMONT BAR JOURNAL • WINTER 2019 www.vtbar.org

will break it.”8 Dissenting and Concurring court, so far as I know, has ever held these In 1962, he said, “One-party rule leads items to be income to the depositor…. to nothing but stagnation.” He argued that A justice speaks personally through a Recognizing, as the Legislature appears to 106 years of “heel dragging and a reluc- dissenting or concurring opinion. There have done that even a large corporation Ruminations tance to institute needed measures of re- the first person singular is an accepted pro- may be the recipient of an injustice, I dis- form” was enough. 9 Of the office he noun.15 Justice Larrow dissented six times sent.”18 sought he said, “The [Attorney General’s] during his years on the high court. Just six The majority opinion in Orleans Village office was created to represent the state months in his seat, Larrow filed his first dis- v. Union. Mut. Fire Ins. Co. (1975) caused and its people and not simply to serve as sent in an appeal of a complicated income another Larrow dissent. He did not believe the agent and rubber stamp of the gover- tax issue. He didn’t dissent from the deci- that res judicata should prevent the court nor’s office. The office is perverted when sion itself, but felt strongly enough to ex- from deciding whether the village had impelled by executive pressure.”10 press his disappointment that the majority waived sovereign immunity by purchasing After he was appointed to the bench in had relied on an earlier decision that Lar- insurance, when the same issue had been 1966, Robert Larrow was not active in the row felt was plainly confusing and should addressed in a prior action brought by the Democratic Party. Becoming a judge meant be overturned. He also found fault with im- village against the insurer. “My analysis of being shorn of party politics, at least pub- perfection in the calculation of the money the course of this litigation would indicate licly. Upon his retirement, in the summer of at stake. “The findings and conclusions be- that the interests of the insured and the in- 1981, The Brattleboro Reformer reported low set forth the formula used by the Com- surer, at the first trial, were not identical, as Larrow was “noted for his intellectual con- missioner in making the computations re- held, but diverse. tributions to the high court.” Chief Justice quired by the previous opinion. I do not “I cannot conceive that substantially the Barney praised “his matchless intellectual agree to its accuracy, nor do I understand same Court which held res adjudicata to be contribution to the content of law, both in the majority opinion to expressly endorse inapplicable in Hill v. Grandey (1974), with his own opinions and in his comments on it. But its accuracy was not put in issue, ei- all essential facts found and all essential those of the rest of us.” The reporter wrote ther below or in this court, and is therefore parties joined in the first action, can hold in how some “have viewed Larrow as one of not for determination.”16 the situation here presented that the issue the most liberal members on the bench, A little sarcasm entered his next dissent, of coverage was truly ‘litigated’, when both but [the Chief Justice] said there is little dif- in Simpson v. State Mut. Life Assur. Co. of parties to the original action were basical- ference in political philosophy among the America (1977). He wrote, “I do not think ly interested in establishing it, and no one jurists.” Governor Snelling praised him, that the phrase ‘dental care or treatment’ presented the contrary view.”19 Larrow had saving, “He has compiled an impressive re- became unclear or ambiguous until the filed a concurring opinion in Grandey, in cord as a jurist both on the Superior and opinion was written.” An insurer had de- which the majority concluded that the issue Supreme court benches. All the people of nied coverage for dental services, express- of whether an insurer must represent the Vermont are indebted to him.”11 Phil Hoff ly excluded from the policy, on grounds insured was settled in favor of the compa- said there may have been better lawyers, they weren’t medical treatments, a judg- ny and did not preclude a subsequent suit trial judges and Supreme Court justices, ment the majority reversed. Larrow was un- against the insurer for breach of contract.20 “but I have not happened to meet them.” 12 persuaded. “Without the understandable Larrow’s dissent in Vermont State Em- At the time of his retirement, Justice Lar- promptings of sympathy, the bill in ques- ployees Association, Inc. v. State of Ver- row gave an interview with Professor Sam- tion here falls clearly within the quoted mont (1976), joined by Justice William Bill- uel Hand. He was asked why he ran for an exclusion. The services in question were ings, faulted the majority for disrespecting office in 1952, taking “the nomination in rendered by a dentist, within the careful- the union’s rights after the State unilater- the sense that you would not be merely a ly spelled out field of his statutory license. ally reduced the workweek and wages of token candidate but someone who would They were rendered after the patient was state employees once the contract had ex- campaign actively and apparently make a referred to him, for that purpose, by a doc- pired. While he agreed reluctantly that the genuine effort to win, although I suspect tor of medicine. The treatment was select- State had this power, he refused to accept you knew you weren’t going to win?” Lar- ed in preference to three other options that this action was anything other than an row answered, “Well, I guess one reason clearly within the medical field. The plain- unfair labor practice. “It is, in effect, a re- would be personal. That’s the way I do tiff’s present arguments that the policy was fusal to bargain collectively, and it cannot things generally. I get into them; I really ambiguous seem to me completely unten- be justified under the statute as a matter get in.”13 able, particularly where it does not appear of right, because the statutory procedure is In that interview, Justice Larrow de- that she sought any clarification prior to in- not followed.”21 fined what it meant to be a liberal, describ- curring the expense.”17 While specially assigned to sit in on the ing Harland Howe, a Democrat candidate That income tax question that irritated appeal of In re E.T.C. (1982), after his re- for Governor in 1912 and later a Superi- Larrow in his first dissent returned the fol- tirement, Justice Larrow filed a concurring or judge. Howe was a liberal, he said, “in lowing year, and he felt compelled to re- opinion, generally agreeing with the ma- the sense that he was completely devoted peat his concerns, in In re Goodyear Tire & jority on all points except “the implication to the cause of the little man, both on the Rubber Co., Corporate Income Tax 1966, that a person in the status of the director bench and off it.”14 1967, 1968 (1975). “Albeit vainly, I must re- here could ever be held to possess the in- Would that label apply to Justice Lar- iterate that an item never actually or con- dependence and impartiality which the ma- row? Let’s look at what he wrote. structively received is not income, even jority holding requires.” That was the direc- Justice Larrow wrote more than 250 de- though it may ‘confer an economic bene- tor of a group home, who had participated cisions in his seven years on the Court. In fit.’ Income must confer a benefit, but all in a juvenile’s decision to waive his rights to retirement, he returned (specially assigned) benefits are not income. The interest re- remain silent or have counsel present. The to sit on approximately a hundred more ceived by a bank from its mortgages con- majority found his presence in the interro- cases, the last of them in 1986, and wrote fers ‘an economic benefit’ on bank deposi- gation harmless, although it had ordered another half dozen opinions. There is no tors, in that it permits payment of interest the juvenile’s inculpatory statements sup- question about who wrote a Larrow deci- on their deposits. So do dividends received pressed. Larrow wrote, “No ‘director’ or sion. His voice is present in every opinion. by a bank on its owned securities. But no ‘houseparent’ employed by or under con-

16 THE VERMONT BAR JOURNAL • WINTER 2019 www.vtbar.org tract with the state can, in my view, be con- because it was based on trust assets, on a Ruminations sidered either impartial or independent. He scale equal to that for decree of distribu- differs only in slight degree from the pris- tion, varying between one, two, or no per- on warden, and very few of them are, from centage of the estate.26 The following year, my observation, consulted by the prison in- Larrow authored the majority opinion in In mate working on his habeas corpus. re Webb’s Estate (1978), where the ruling “It should be made clear that the sta- of Eddy’s Estate was clarified to require re- tus of the ‘director,’ in itself, precludes any covery of the funds paid for the unconsti- finding by the trial court that minimum pro- tutional tax.27 tection standards have been met. Foxes Justice Larrow authorized three other de- should not be subject to individual evalua- cisions applying the Vermont Constitution tion; as a class they should be disqualified to issues on appeal, one involving a chal- as poultry custodians.”22 lenge to jury selection. The law gave broad Five years after he retired, Justice Lar- discretion to the trial court respecting the row, specially assigned to hear the appeal place of trial, and did not require jurors to in State v. Paquette (1985), dissented with- be drawn from all counties in the unit.28 In out comment to a majority decision written State v. Christman (1977), he dismissed a by Justice William Hill.23 claim that a criminal information was defec- tive, finding no violation of Article 10 and Leading Cases allowing an amendment to cure any lack of specificity. The claim, he wrote, was “an at- A justice’s majority opinions are not the tempt to reverse on an insubstantial techni- product of one mind. They reflect what cality rather than the presentation of a sub- other justices have concluded about how stantial constitutional question. The gen- an appeal should be addressed. Larrow’s eral principles enunciated in V.R.Cr.P. 2, of opinions are not, however, as stark and just determination, simplicity in procedure, bland as many more recent decisions. It fairness in administration, and elimination may have been the coincidence of rotation of unjustifiable expense and delay, are not of writing assignments, but Larrow wrote served thereby. Like their Federal counter- many cases involving workmen’s compen- parts, our Criminal Rules are designed to sation, municipal law, including zoning, and eliminate technicalities in criminal pleading unemployment compensation. It is tempt- and are to be construed to secure simplic- ing to conclude that the court arranged to ity in procedure.”29 have Larrow write on these subjects, given Larrow’s decisions include several that his background. have had lasting impact on local govern- At the time of his retirement, the jus- ment. Given his experience as Burlington’s tice was asked about his leading decisions, City Attorney, these decisions wed experi- and he named the Sunday case and a pro- ence and the state of the law in memorable bate fee appeal that awarded large sums ways. Smith v. Winhall Planning Commis- to the prevailing party, a law was declared sion (1981) established the minority rule as unconstitutional.24 In Sunday v. Stratton the law of Vermont, granting vested rights Corp. (1978), the court upheld a judgment to applicants to the zoning bylaws in effect of $1,500,000 for a skier who became en- at the time the plans were filed, and pro- tangled in brush and hit a tree trunk, con- hibiting the municipality from changing the cealed by loose snow, while skiing on the rules in the midst of a review. “The minority resort’s novice trail, and who suffered per- rule is, we feel, the more practical one to manent quadriplegia as a result of the ac- administer. It serves to avoid a great deal, cident. Larrow wrote, “While skiers fall, as at least, of extended litigation. It makes for a matter of common knowledge, that does greater certainty in the law and its admin- not make every fall a danger inherent in istration. It avoids much of the protracted the sport. If the fall is due to no breach of maneuvering which too often characteriz- duty on the part of the defendant, its risk es zoning controversies in our communi- is assumed in the primary sense, and there ties. It is, we feel, the more equitable rule can be no recovery. But where the evi- in long run application, especially where no dence indicates existence or assumption of amendment is pending at the time of the duty and its breach, that risk is not one ‘as- application, as here.” 30 sumed’ by the plaintiff. What he then ‘as- Sorg v. North Hero Zoning Board of Ad- sumes’ is not the risk of injury, but the use justment (1977) set the bar for the review of reasonable care on the part of the de- of zoning variances, requiring true hard- fendant.”25 ship, not just personal inconvenience or The probate case Larrow referred to was mere profitable use, underscoring the prin- In re Eddy’s Estate (1977), which found the ciple that a variance can only be granted graduated probate “distribution fee” tax when the applicant cannot build in strict violative of the proportional contribution conformity with the bylaws. Larrow wrote, clause of Article 9 of the Vermont Consti- “the Inn has been operated as such for tution. The “fee” was arbitrary and unrea- some 87 years; the present owners were sonable, according to Larrow’s decision, familiar with the operation, as guests, long www.vtbar.org THE VERMONT BAR JOURNAL • WINTER 2019 1 7 before they bought it. The development is The Cause of the Little Man the family unit, preserving it, where neces- present, and the use must be a reasonable sary, by financial and other support. There one, because enlargement of it is what is Larrow’s definition of a liberal judge was may well be a point where hope that the sought. This statutory criterion is also un- one who favored the individual over the ‘biological parent’ may resume her place Ruminations met.”31 government, the corporation, and the em- with her family disappears, and severance An applicant for a funeral home zoning ployer.36 In practice, the law narrows the of the last remaining ties is required. But it permit was not forthcoming about his plans opportunities for any court to lean in favor does not appear to be reached on the facts to offer crematory services, which was a of the “little man,” but where there is an here found.”41 nonconforming use. The decision in Town opening, some courts and some judges will In an appeal of a suit against the Cen- of Bennington v. Hanson-Walbridge Fu- revert to that philosophy. tral Vermont Hospital, Larrow’s opinion fo- neral Home, Inc. (1981) altered the gener- In Palucci v. Department of Employment cused on what constituted reasonable care. al rule that any permit is unassailable once Security (1977), Larrow refused to accept “We perceive nothing technical or beyond the appeal period has passed by recogniz- the argument of the State that no claimant the common knowledge of a lay person,” ing the town’s right to close it down.32 may refuse a referral within a labor market he wrote, “in the essential function of sup- Larrow’s decision in Hinesburg Sand & area because of a lack of transportation. plying a bedpan with reasonable expedi- Gravel Co. v. Town of Hinesburg (1977) Plaintiff was thrown out of the unemploy- tion to a bed patient in a hospital. Minis- found the town had operated the town ment compensation system for refusing to tering to the fundamental needs of such gravel pit as a private business, at a com- take a job outside of Rutland City. Larrow a patient is, as plaintiff argues, essentially petitive advantage over a local gravel busi- wrote, “It cannot reasonably be said that routine care, ministerial and not technical. ness, and awarded the company lost prof- one drawing $27.00 per week unemploy- It is well within the applicable rule requir- its as a consequence. The claim that only ment benefits must move, buy a car, or hire ing ‘such reasonable care as the patient’s “surplus” materials were sold was denied, a cab to reach a job outside the area, seven known (or should be known) condition may as the pit provided a nearly inexhaustible miles distant, paying $1.50 per hour plus require or demand.’ Here the evidence source of gravel and sand.33 tips for work as a breakfast waitress.”37 showed a patient relatively immobile, pre- Justice Larrow wrote the decision in In re When UVM objected to a trial court’s viously supplied with a bedpan, and under State Aid Highway No. 1, Peru (1974), set- finding of a continuing and disabling pain sedative medication. No special skill is re- ting a high standard for recusal when deci- in a workmen’s compensation case, based quired to supply a bedpan when needed; sion-makers have conflicts. The Chair and only on the testimony of the claimant, rath- no special expertise is required to foresee one member of the Environmental Board er than requiring expert testimony to justify the possibility of a fall resulting from the were members of the Vermont Natural Re- it, Larrow disagreed. “The continuing exis- patient’s attempt to supply the deficiency sources Council, and the chair had donated tence of that pain,” he wrote, is “a subjec- in care.” funds to the organization. Neither stepped tive matter peculiarly within the knowledge The hospital complained that it was “a aside from hearing a case where VNRC was of the claimant.”38 ‘target defendant’ because ‘the plaintiff is a party, and the high court ruled the partici- Larrow ruled that Montpelier could not an aged lady and the defendant is a hos- pation of both members was improper and oppose the organization of two unions pital, an institution that, according to the a justification for reversal. He wrote, “We within the fire department. There was no popular media, is growing more imperson- are in a field of almost complete first im- showing of overfragmentation or any ad- al all the time.’ The argument is unique, but pression. We are in a time situation where verse effect on the operation of the city, insofar as it calls for a special set of rules a right of removal became effective as to the city’s principal defense.39 governing the relationship of a hospital an appeal during the very interval in which He concluded that arguments with su- to its patients, an immunity total or par- a right of appeal existed. And we are con- pervisors, reprimands on the job, and justi- tial from the ordinary rules of responsibility fronted with other gross irregularities, fied criticism of performance do not alone for negligence, it should be addressed to hereinafter treated, which would, in sum, amount to good cause to quit a job and the legislative body. The accusation of im- make such ‘egregious error’ that we could obtain unemployment compensation, but personality, founded or unfounded, should not in conscience allow the ruling below to when an employer reaches outside the job, have no bearing on our decision; we can- stand. On the whole case, there is certain- bringing the “criticism to [the employee’s] not take for granted that it influenced the ly much more than ‘a reasonable basis’ for wife and to her conduct, involving at the jury.” 42 fear that an injustice has been done. same time the wife’s mother,” the resigna- In In re Southwestern Vermont Ed. Ass’n. “Environmental laws affect very substan- tion is justifiable.40 (1978), the justice concluded that a school tial rights, and it is vital that the procedures Justice Larrow also filed a concurring board had committed an unfair labor prac- under which they are enforced be scrupu- opinion in In re J. (1976), involving a case tice in firing its custodial staff and hiring in- lously observed and impartially adminis- terminating parental rights. He wrote, “The dependent contractors to perform janitori- tered. Any failure in this respect can quickly underlying philosophy of the trial court al services, at a time when the workers had rise to constitutional dimensions. The ‘rush seems to have been that even though the submitted a petition to form a union. The to judgment’ which characterized the pro- natural mother was making valiant and school board’s actions were found to be ceedings below, even though in part unob- fruitful efforts to regain her capacity to care “inherently destructive” of union employ- jected to, in our view is totally incompatible for her children, their overall good would ee rights.43 with the standards we have long sought to be promoted by adoption. I do not view enforce.”34 the statute as trying to create the best pos- Larrow and Hill In Punderson v. Town of Chittenden sible world. I do not think it intends to set (1978), Justice Larrow ruled that a board of up a mechanism for transferring parental Based on the record of decisions, the civil authority need only state its reasons in rights from those in temporary difficulty to competition between Larrow and Hill con- its appeal decisions, but was not required those more affluent and adjudged by the tinued after the 1974 legislative election. to make findings, overruling Harris v. Town social worker as more capable of educat- In Bolkum v. Staab (1975), Larrow wrote, of Waltham, which had held BCAs to the ing and rearing the progeny, if not of pro- “We are somewhat at a loss to understand same standard of decision-making as it rou- creating them. The result below does not what the trial court meant by ‘real control’, tinely requires of courts.35 accord with our social policy of bolstering a phrase it did not explain. We take it to be

18 THE VERMONT BAR JOURNAL • WINTER 2019 www.vtbar.org equated to actual control, as exercised by tended.”47 Ruminations master over servant, rather than the gener- In Appeal of Farrell & Desautels, Inc. al control exercised by an owner over an in- (1978), Larrow criticized Hill severely. “Al- dependent contractor. Whatever may have though several issues were presented to been intended, it was a not unusual situa- the trial court, and are briefed here, the tion presented by the findings. paucity of the findings below makes ad- “Plaintiffs’ claims of error with respect to judication of all of them in this Court im- the amounts of damage awarded, howev- possible. The findings and judgment order er, have more substance. They claim that of the superior court purporting to ‘affirm’ the court erred in its mathematical calcu- the action of the zoning board were ad- lations, on its own findings, and that it ex- dressed only to a single issue. And, were cluded without cause any compensation to not the parties in agreement with respect plaintiffs for the reasonable cost of expert to the zoning ordinance provisions relating inspection and advice, completely aside to this issue, even this point would escape from expert testimony and trial prepara- our adjudication, because none of the ap- tion. Both claims appear to have merit.”44 plicable provisions of the ordinance, or of Judge Hill had heard and decided Bolkum. the municipal plan, were found by the tri- Judge Hill’s decision in In re Lampman al court. No facts were found and no con- (1977) was reversed by the high court. Lar- clusions of law were stated with respect to row’s decision explained, “Relief was de- the claims of the Town that the proposed nied the appellant by the superior court, unit development (a) would not promote without citation, on the ground that ‘he the most appropriate use of the land, (b) would be in jail anyway and should not be would impair the natural and scenic quali- permitted to credit (sic) for the same time ties of open lands, (c) would conflict with spent in jail.’ We do not concur in this over- the town plan, and (d) would exceed the simplified conclusion, and reverse.” Lar- density requirements established by the row’s critique described Hill’s decision as zoning ordinance.” based on “reasons which must have ap- Larrow also stated, “Extensive review of pealed to the trial court though far from the evidence below is not required to dis- apparent here.”45 pose of the single issue which may fairly In Bassett v. Vermont Tax Department be said to be before us, because most of (1977), Larrow’s opinion faulted Hill’s deci- it never found its way into considered find- sion for “misconstruing the action as a pro- ings.”48 bate appeal,” where the Supreme Court Larrow’s opinion in University of Vermont ruled that settlement funds from a wrong- v. Town of Colchester (1978) continued ful death case were “not part of decedent’s his attack on Hill’s findings. Larrow wrote, estate or of the ‘residue’ therein for pur- “proper performance of the judicial func- poses of computing statutory decree fee” tion requires impartial patience and ade- and the dispute belonged within the juris- quate reflection, not demonstrated where diction of the Superior Court.46 findings are copied verbatim from the re- Larrow’s opinion in Green Mountain quests of the parties. Here 29 findings Power Corp. v. Commissioner of Labor and were made and filed, 17 taken word for Industry (1978) reversed Hill’s decision to word from the requests of the plaintiff and relieve the utility of liability for a VOSHA 12 from the requests of the defendant. The violation, concluding that “[u]nder the par- deficiency strikes even deeper upon analy- ticular facts of this case, we hold that GMP sis, because two of the findings, on what did not discharge its statutory obligation the parties have treated as a key factual is- by simply issuing adequate safety instruc- sue, are directly contradictory of each oth- tions and holding safety meetings. Dele- er. Finding No. 27 states that living in close gating the responsibility of implementing proximity with other married students is the company’s safety policies to rank and important, because interaction with others file employees, while under the immediate in the same social situation is important for supervision of managerial personnel, does academic as well as personal goals, while not comport with either the letter or the Finding No. 22 states that although this spirit of VOSHA. To hold otherwise would interaction may be desirable and may en- mean that once an employer provides its hance the learning process, the benefit is employees with safety equipment and is- remote and incidental. These findings are sues orders or instructions regarding the diametrically opposite, as may be expect- safe use of that equipment, the employer ed when culled from different sets of reis free to disregard the employee’s actual quests to find. compliance with those instructions. To say “Another defect apparent from the re- the company invokes disciplinary measures cord below is the casual manner in which for noncompliance with its safety rules is the matter was tried, with respect to the not enough. Although such after-the-fact presence or absence of a fully constituted measures are within the intendment of the court. The trial extended over a two day Act, actual supervision during the perfor- period, and on the first day the presiding mance of a job, where feasible, also is in- judge and one of the assistant judges sat. www.vtbar.org THE VERMONT BAR JOURNAL • WINTER 2019 1 9 On the second day, for unexplained rea- ment providing that a cause of action ac- the court and informed the justices the law- sons, the assistant judge was absent, and crues upon discovery, not at the time of yer was willing to continue, the court said the presiding judge sat alone, commenting injury. The dissenters agreed to the out- no, they had heard enough. Justice Billings that ‘it’s like a jury, if you miss one word come, but believed that the court did not then baptized Justice Larrow as “Knock- Ruminations you’re out.’ Notwithstanding this, the find- go far enough, by failing to overrule an ear- out” Larrow. Some mornings Billings would ings were signed by both, as was a sup- lier decision that established the date of in- greet his colleague with, “Here comes plemental finding. Later amended find- jury as the date of accrual. “If the discovery ‘Knockout.’” ings were signed by the presiding judge rule were applied to this case, as it should How Justice Larrow felt about this new alone. Conclusions of law were signed and be, the action would be allowed, since it sobriquet is unknown, but it would not be filed by all three judges, and the ultimate was commenced within three years from too presumptuous to conclude he took it in judgment order was signed by the presid- the discovery of the injury. I am unable to good humor. ing judge and the original assistant judge. hide behind the majority’s view that legis- Whatever the rationale behind this unpat- lative inertia before the 1976 amendment Crispness and Diligence terned procedure, it cannot stand.” 49 to the statute of limitations bars this Court Larrow affirmed Hill’s trial court decision from overruling its outdated, inequitable, In one of his first decisions, Justice Lar- in Peoples Trust Co. of St. Albans v. Trahan and unrealistic rule.”53 row faulted the lawyers for both parties for (1976).50 But that is the only time a Hill trial \Hill and Billings also dissented to Lar- failing to articulate the questions in the ap- decision was affirmed in a Larrow appeal row’s opinion in Preston v. Chabot (1980), peal, claiming they had “not crisply pre- decision. which imposed a constructive trust on an sented” them in their briefs or oral argu- Once Judge Hill joined the court, the undivided one-half interest in certain prop- ment. But Larrow’s opinion did. He wrote, two justices appear to have continued their erty, after the defendant had murdered his “The State flatly asserts in its brief that Ver- differences in dissenting and concurring wife. In dissent, Billings stated, “The slay- mont’s procedure is the orthodox rule. It opinions. er and his successor in interest should be cites no cases for this conclusion, and we Hill’s concurring opinion to Larrow’s deemed to have obtained legal title to the know of none which support it.” 56 majority opinion in State v. Cady (1978), entirety, but be held a constructive trustee In Woodmansee v. Stoneman (1975), Lar- agreeing to the result but not the court’s for the entire estate, subject to the slayer’s row’s opinion explained why the court was reasoning, is one example. Hill wrote, right to the value of the rents, profits and reversing the decision from below. “This “Even if it were necessary to a decision of income of one-half the estate for the slay- Court has long adhered to the view that this case for the Court to give content to er’s lifetime.”54 where evidence of guilt is entirely circum- the phrase ‘right to operate,’ the mean- There were far more decisions of the stantial the circumstances proved must ex- ing which the majority implicitly assigns court once Hill was appointed, where Lar- clude every reasonable hypothesis except the phrase permitted by law to drive on the row and Hill agreed to the outcome than the one that the defendant is guilty. And highways would not be a proper one. Such cases where they disagreed, but it is a this conclusion cannot be reached by bas- a meaning, although suggested by the fair conclusion that the two justices never ing one inference from established facts words standing alone, is unacceptable be- stopped treating each other as opponents, upon another inference. Under these tests cause it is contrary to the statutory scheme. stemming from their first encounter back in the evidence was indeed sparse, and can- The anomalous state in which this decision 1974. not support the verdict.” leaves the Motor Vehicles law could have There may have been other reasons as Later in the opinion, he wrote, “The been avoided had the majority paid heed well. Justice Hill was a liberal Republican; State argues to us, at length, that no er- to this elemental rule of statutory construc- Justice Larrow was a progressive Demo- ror appears because ‘the court should un- tion: crat. Just why the legislature elected Lar- derstand that psychiatry is wizardry and “The true rule for the construction of row over Hill in 1974 is impossible to annot science, and should not be permitted statutes is to look to the whole and every swer, but if politics played a role, the fact in the future.’ It also argues that presenting part of the statute, and the apparent inten- that conservative Republicans favored Lar- psychiatric testimony to a jury is ‘an ama- tion derived from the whole, to the sub- row seems counterintuitive. It may have teur’s voyage on the fog-enshrouded sea ject matter, to the effects and consequenc- been personal. of psychiatry.’ It makes this argument de- es, and to the reason and spirit of the law, spite the fact that it admittedly did not at- and thus ascertain the true meaning of the “Knockout” Larrow tack the qualifications of Dr. Woodruff. We legislature, though the meaning so ascer- Robert Larrow was a tough justice to cannot concur, and judicially notice that tained conflicts with the literal sense of the face on oral argument. Known for his ex- psychiatry is a recognized profession, with words.”51 haustive work habits, he was said to have its qualified practitioners entitled to recog- Larrow joined Justice William Billings in a practiced a “hot court,” where judges and nition as expert witnesses on the question concurring opinion in State v. Howe (1978), attorneys were expected to read all legal of competency. The profession itself does objecting in part to Justice Hill’s majority briefs and memoranda on a case before not, as we understand it, make any claim opinion, believing that Miranda warnings hearings were conducted.55 Those who ap- that it is an exact science.”57 should have been given the defendant, peared before the court were tested. Larrow was hard on attorneys. In Her- where “coercive elements are compelling- In one oral argument, after Larrow grilled bert v. Boardman (1975), “Defendants’ fi- ly present.” But Billings went on to state, a young lawyer about a point of law, the at- nal claim of error attacks the conclusion of “I would affirm the conviction, however, on torney passed out, ashen and unconscious, liability of the individual defendants. That the ground that the constitutional error is and fell forward on the lectern, both cas- liability, they claim, can attach only to the harmless beyond a reasonable doubt be- cading to the floor. The Court quickly left corporation because that is the only prom- cause of the “overwhelming evidence of the courtroom, and Richard Cassidy, Lar- issor referred to in the agreement. Without guilt” presented by the State.” 52 row’s clerk, helped the lawyer to his feet. citation of authority, they assert that the Hill and Billings dissented in part and It was the flu, the lawyer explained, that law does not make them individually liable. concurred in part in Capron v. Rogers caused the faint, and he agreed he could “Neither party cites us to authorities (1979), to the majority opinion by Larrow continue the argument. bearing on this issue. Both could, howev- that refused to apply a statutory amend- When Cassidy entered the chambers of er, discover authorities tending to support

20 THE VERMONT BAR JOURNAL • WINTER 2019 www.vtbar.org their respective claims. Cf. 18 Am.Jur.2d nothing to do with that decision. It was en- Ruminations Corporations s 127; Annot., 21 A.L.R.2d tirely personal!’ Snelling stomped off in dis- 483 et seq. (1952).”58 gust. In Gilbert v. Town of Brookfield (1976), “In the long run, Snelling took no last- Larrow faulted the selectman for discrimi- ing offense. I was his seat mate at an in- natory standards of highway classification. dustry dinner when he was in his second in- He wrote, “We cannot construe the perti- carnation as Governor. I told him that I had nent statutes as giving the selectmen ar- clerked for Larrow, and he was effusive in bitrary authority to grant and to withhold his praise for him. Then he told me his ver- Class 3 classification. To do so would ren- sion of the story, which except for describ- der the enactments unconstitutional. The ing the grin, did not differ from the Larrow record strongly suggests that personal ele- version.” ments may well have influenced a decision which should be one of policy, with a quot- What to Think ed statement by one selectman that they wanted no more teachers living in far cor- Perhaps the proper conclusion of a study ners of the town. One of the petitioners is of Justice Robert Larrow is that his opinions a college teacher.”59 were more personal than political, just as Larrow often faulted parties and trial he himself described his liquor board deci- courts for missing important issues. In State sion. This is reflected in his interview with v. Powers (1978), he wrote, “Unnoticed by Virginia Downs, prepared for the Bar for counsel and, apparently, by the court itself, the celebration of the bicentennial of Ver- is a defect in the record fatal to the judg- mont in 1977 and published in 2004. He is ment below. The complaint alleged the tak- quoted there as saying: ing of a wild deer by artificial light, in viola- “The law as I have observed it over the tion of 10 V.S.A. § 4747. Trial was by court, years is getting bigger, more complicated with many stipulations in lieu of direct ev- and too impersonal. I think that the person- idence, and findings of fact were made, al touch between lawyer and client is tend- with a conclusionary finding that the appel- ing to disappear for several reasons.” With lant ‘took a wild deer in closed season with- bigger firms with many lawyers, clients did in the meaning of 10 V.S.A. § 4747.’ The not choose a lawyer, but are assigned to judgment order, when eventually entered, one. Lawyers “really have no direct rela- followed the form of the complaint. Even tion with the client.” He said, “A lot of the though this error was not raised by the re- personal element is gone…. Clients are be- spondent, we deem it grounds for reversal coming cases rather than people.”61 under the rule of ‘plain’ or ‘egregious’ er- Robert Larrow was a brilliant jurist. He ror.”60 wrote crisp, articulate, strong decisions, and he held strong opinions. Clearly his “It’s Personal” political principles influenced his legal decisions, but they were not always revealed One Larrow story has been repeated in his writings. Still, he could not hide his from time to time, in various versions. Rich character behind his robe. Cassidy has the best claim to an accurate ______rendering, as he heard it from both parties Paul S. Gillies, Esq., is a partner in the involved. In his words, it goes this way: Montpelier firm of Tarrant, Gillies & Rich- “Hoff appointed Larrow to be Chair of ardson and is a regular contributor to the the State Liquor Control Board. Snelling Vermont Bar Journal. A collection of his was a brash young man and he ran against columns has been published under the ti- Hoff in 1966. Hoff was reelected. Shortly tle of Uncommon Law, Ancient Roads, and thereafter, the Liquor Board voted not to Other Ruminations on Vermont Legal His- renew it lease for a liquor store on a prop- tory by the Vermont Historical Society. Paul erty owned by Snelling. is also the author of The Law of the Hills: A “Larrow was half-time Burlington City Judicial History of Vermont (© 2019, Ver- Attorney and as he crossed Church Street mont Historical Society). on his way to City Hall, Snelling saw him ______1 and accosted him about the decision. The 1914 constitutional amendments, failing to account for a lapse in terms when the legis- The thrust of his remarks was that he had lative session moved from October to January, thought that Larrow was a man of integri- caused the Supreme Court to resign, and al- ty and he was shocked and disappointed lowed the Governor to appoint his own choic- that Larrow would hold politics against him es for two positions on the court, irrespective of custom. William C. Hill, “Vermont’s Judicial Crisis in making a business decision on behalf of of 1914-1915,” Vermont History 38 (1970): 124- the State. 138. “According to Snelling, Larrow got a 2 Burlington Free Press, 7 March 1974, 1. big ‘shit-eating grin’ (in my mind’s eye, I 3 For a full description of the crisis that arose can see what he was describing as it was from allegations of judicial misconduct of three justices, and Justice Hill’s retirement, see James characteristic mischievous Larrow) and said Dunn, Breach of Trust (Burlington, Vt.: Onion ‘Dick, I want you to know that politics had River Press, 2018). www.vtbar.org THE VERMONT BAR JOURNAL • WINTER 2019 2 1 4 Samuel B. Hand, The Star That Set: The Ver- 39 International Ass’n of Firefighters Local No. mont Republican Party 1854-1974 (Lanham, 2287, Montpelier v. City of Montpelier, 133 Vt. Md.: Lexington Books, 2002), 201-202, 225-227, 175, 332 A.2d 795 (1975). 260. 40 Schneider v. Vermont Employment Sec. Bd., 5 Paul S. Gillies, “Moralizing Justice: Isaac 133 Vt. 187, 333 A.2d 104 (1975). Ruminations Fletcher Redfield and the Weight of Responsibil- 41 In re J., 134 Vt. 480, 485-486, 365 A.2d 521, ity,” 39 Vermont Bar Journal 9 (Summer 2004). 525 (1976). 6 Burlington Free Press, June 6, 1944. 42 Newhall v. Vermont Central Hospital, Inc., 133 7 Rutland Daily Herald, 9 August 1981, 16. Vt. 572, 573-574, 349 A.2 890, 891 (1975). 8 Burlington Free Press, 20 October 1954, 13. 43 In re Southwestern Vermont Ed. Ass’n, 136 Vt. 9 Rutland Daily Herald, 25 October 1962, 4. 490, 396 A.2d 123 (1978). 10 Burlington Free Press, 19 July 1962, 1. 44 Bolkum v. Staab, 133 Vt. 467, 346 A.2d 210 11 Brattleboro Reformer, 10 July 1981, 2. (1975). 12 Burlington Free Press, 3 August 1991, 5. 45 In re Lampman, 135 Vt. 226, 228, 373 A.2d 13 Justice Robert Larrow, “Interview,” May 19, 547, 548 (1977). 1981, UVM Archives of Folklore and Oral History. 46 Bassett v. Vermont Tax Department, 135 Vt. 14 Ibid. 257, 376 A.2d 731 (1977) 15 While “I” is rare in majority decisions of the 47 Green Mountain Power Corp. v. Commission- Vermont Supreme Court since the late nine- er of Labor and Industry, 136 Vt. 15, 383 A.2d teenth century, there are 20 three-judge panel 1046 (1978). decisions that end with either “I affirm” or “I re- 48 Appeal of Farrell & Desautels, Inc., 135 Vt. verse,” as early as 1991 and as recently as 2014, 614, 614-615, 383 A.2d 619, 620 (1978). signed by various justices including John Dool- 49 University of Vermont v. Town of Colchester, ey, Denise Johnson, Marilyn Skoglund, and Chief 136 Vt. 403, 404-405, 392 A.2d 413, 414-415 Justice Paul Reiber. (1978). 16 F.W. Woolworth Co. v. Commissioner of Taxes, 50 Peoples Trust Co. of St. Albans v. Trahan, 134 133 Vt. 93, 100, 328 A.2 402, 407 (1974). Vt. 136, 353 A.2d 357 (1976). 17 Simpson v. State Mut. Life Assur. Co. of Amer- 51 State v. Cady, 136 Vt. 29, 31-32, 383 A.2d 607, ica, 135 Vt. 554, 560, 382 A.2d 198, 201 (1977). 608-609 (1978). 18 In re Goodyear Tire & Rubber Co., Corporate 52 State v. Howe, 136 Vt. 53, 68-69, 386 A.2d Income Tax 1966, 1967, 1968, 133 Vt. 132, 139, 1125, 1134 (1978). 335 A.2d 310, 314 (1975). 53 Capron v. Romeyn, 137 Vt. 553, 556, 409 A.2d 19 Orleans Village v. Union Mut. Fire Ins. Co., 133 565, 566-567 (1979). Vt. 217, 222-223, 335 A.2d 315, 319-321 (1975). 54 Preston v. Chabot, 138 Vt. 170, 185, 412 A.2d 20 Hill v. Grandey, 132 Vt. 460, 470-471, 321 930, 938 (1980). A.2d 28, 34-35 (1974). 55 Burlington Free Press, 3 August 1991, 5. 21 Vermont State Employees Association, Inc. 56 State v. Harbaugh, 132 Vt. 569, 573, 326 A.2d v. State of Vermont, 134 Vt. 195, 200, 357 A.2d 821, 823 (1974). 125, 129 (1976). 57 Woodmansee v. Stoneman, 133 Vt. 449, 455, 22 In re E.T.C., 141 Vt. 375, 380-381, 449 A.2d 458-459. 344 A.2d 26, 29, 31 (1975). 937, 940 (1982). 58 Herbert v. Boardman, 134 Vt. 78, 85, 349 A.2d 23 State v. Paquette, 146 Vt. 1, 6, 497 A.2d 358. 710, 714 (1975). 362 (1985). 59 Gilbert v. Town of Brookfield, 134 Vt. 251, 24 Brattleboro Reformer, 10 July 1981, 2. 253, 356 A.2d 524, 526 (1976). 25 Sunday v. Stratton Corp., 136 Vt. 293, 302, 60 In re Fuller, 135 Vt. 575, 381 A.2d 1056 (1977). 390 A.2d 398, 403 (1978). The legislative reac- 61 Virginia Downs, “Robert Larrow: Vermont’s tion to the decision led to the enactment of 12 Last Elected Supreme Court Justice,” Vermont V.S.A. § 513, setting a one year statute of limita- Bar Journal 30 (Spring 2004): 17-21. tions after the cause of action accrues. 26 In re Eddy’s Estate, 135 Vt. 468, 380 A.2d 530 (1977). 27 In re Webb’s Estate, 136 Vt. 582, 397 A.2d 81 (1978). 28 State v. Murphy, 134 Vt. 106, 353 A.2d 346 (1976). 29 State v. Christman, 135 Vt. 59, 370 A.2d 624 (1977). 30 Smith v. Winhall Planning Commission, 140 Vt. 178, 436 A.2d 760 (1981). 31 Sorg v. North Hero Zoning Board of Adjust- ment, 135 Vt. 423, 378 A.2d 96 (1977). 32 Town of Bennington v. Hanson-Walbridge Funeral Home, Inc., 139 Vt. 288, 427 A.2d 365 (1981). 33 Hinesburg Sand & Gravel Co. v. Town of Hinesburg, 135 Vt. 484, 380 A.2d 64 (1977). 34 In re State Aid Highway No. 1, Peru, 133 Vt. 4, 10, 328 A.2d 667, 671 (1974). 35 Punderson v. Town of Chittenden, 136 Vt. 221, 388 A.2d 373 (1978), overruling Harris v. Town of Waltham, 158 Vt. 477, 613 A.2d 696 (1992). N.B., superseded by Guntlow v. Board of Abatement, Town of Pownal, 198 Vt. 174, 112 A.3d 118 (2014), which recognized the lighter standard for tax appeals had not been extended to abatement decisions. 36 Justice Robert Larrow, “Interview,” May 19, 1981. 37 Palucci v. Department of Employment Secu- rity, 135 Vt. 156, 376 A.2d 14 (1977). 38 Merrill v. University of Vermont, 133 Vt. 101, 106, 329 A.2d 635, 638 (1974).

22 THE VERMONT BAR JOURNAL • WINTER 2019 www.vtbar.org

by Greg Johnson, Esq. WRITE ON Justice Beth Robinson: A Paragon of Good Legal Writing

In my last two columns for Write On, I an- (or, in this case, a judicial opinion), should guage prong of the disorderly-con- alyzed the legal writing styles of Neil Gor- “orient readers and frame the dispute.”1 duct statute, and reverse his convic- such and Brett Kavanaugh. For this column, The reader should know “within thirty section.4 I thought I would bring it closer to home onds” what the dispute is about.2 Justice by analyzing the legal writing style of Ver- Robinson’s opinions pass this exacting test In legal writing, brevity is the soul of mont Supreme Court Justice Beth Robin- time and time again. Space will only allow clarity, to wit: son. Beth Robinson graduated from Dart- me to quote the openings of five of Justice mouth College in 1986 and the University Robinson’s opinions, but these are merely This case raises a facial challenge to of Chicago Law School in 1989. She came representative of Justice Robinson’s style Vermont’s statute banning disclosure to fame in Vermont as the lead attorney in throughout her jurisprudence. of nonconsensual pornography. 13 Baker v. State, Vermont’s same-sex mar- V.S.A. § 2606. We conclude that the riage case, and as the long-time chair of Defendant appeals from his conviction statute is constitutional on its face and the Vermont Freedom to Marry Task Force. of involuntary manslaughter following grant the State’s petition for extraordi- Governor Peter Shumlin appointed her to a jury trial. Defendant set up a dan- nary relief.5 the Vermont Supreme Court in October gerous shooting range on his proper- 2011. The Vermont Senate confirmed the ty and invited others to join him in fir- Justice Robinson’s introductions serve as appointment by a unanimous vote in Feb- ing weapons at the site. An errant bul- a kind of executive summary for the busy ruary 2012. let struck and killed a neighbor in his reader, capturing the entire case in a para- Since 2012, Justice Robinson has pub- nearby home. Defendant argues that: graph: lished over 180 opinions and dozens of (1) a jury view of the scene presented concurrences and dissents. For this column, misleading and prejudicial evidence Neighbors of a proposed solar elec- I read 25 of Justice Robinson’s opinions, 10 and was not conducted with neces- tric-generation facility appeal a deci- concurrences, and 15 dissents. Immersing sary procedural and evidentiary safe- sion of the Public Utility Commission myself in Justice Robinson’s jurisprudence guards; (2) the trial judge impermissi- (PUC) approving the issuance of a cer- has been a delight. She nails every impor- bly assumed the roles of an advocate tificate of public good for the project. tant rule of good legal writing. This column and witness in reviewing the jury view; At the heart of their appeal is a chal- will explain why Justice Robinson is a para- (3) the court erred by failing to excuse lenge to the PUC’s conclusions that gon of good legal writing. It will first focus one of the jurors; and (4) his conviction this project—called the Apple Hill proj- on Justice Robinson’s practice of opening is not supported by the evidence. We ect—would not unduly interfere with with a succinct and clear statement of the affirm.3 the orderly development of the region issue in each opinion. Next, the column will and would not have an undue adverse list the key principles of good legal writing Justice Robinson’s writing style is no- effect on aesthetics. Both of these as described in Plain English for Lawyers, nonsense, in contrast to the showier styles conclusions rest in substantial part on a leading legal writing text for decades. I of judges like Neil Gorsuch or Richard Pos- the PUC’s conclusions that the select- will then apply these principles to Justice ner. This next opening issue statement is board of the Town of Bennington took Robinson’s writing. The column will con- another typical example of that style: the position that the Apple Hill proj- clude by highlighting the somewhat more ect complied with the applicable Town dramatic writing style in Justice Robin- Defendant David Tracy was convict- Plan, and that the 2010 Town Plan did son’s concurrences and dissents. All of this ed of disorderly conduct by “abusive not establish a clear, written standard. should convince you that every lawyer can . . . language,” 13 V.S.A. § 1026(a)(3), Because the evidence and the PUC’s benefit from emulating the writing style of following a heated exchange with his findings to not support these conclu- the esteemed Justice Beth Robinson. daughter’s basketball coach. The tri- sions, we reverse and remand.6 al court, following a bench trial, con- I. Clear Issue Statements cluded that the defendant’s language My final example of Justice Robinson’s was not protected by the First Amend- introductions comes from a case in which Justice Robinson excels at opening her ment to the United States Constitu- the Court held that emotional distress opinions with clear and succinct statements tion because it constituted “fighting damages are not available in legal malprac- of the issue in the case. In my last column, I words.” On appeal, defendant argues tice claims: praised Justice Kavanaugh for opening his that the “abusive language” prong of opinions with attention-grabbing images Vermont’s disorderly-conduct statute This case involves a jury award of emo- or stories that draw the reader in immedi- is overbroad and impermissibly chills tional distress and economic damages ately. Justice Robinson chooses a different speech without serving a compelling in a legal malpractice action. Defen- approach, equally commendable. She opts interest. He further argues that, even if dant challenges the damages award for a more straightforward style, explain- the statute is constitutional on its face, on the grounds that emotional distress ing the claims at issue with a remarkable the speech for which he was convict- damages are not available in a legal brevity of words. This practice follows the ed in this case is constitutionally pro- malpractice case and that the award advice of many legal writing experts. Yale tected. We agree that the speech of economic damages equal to the Law School Professor Noah Messing, for for which defendant was convicted is amount plaintiff paid to settle the un- example, says that the opening of a brief beyond the reach of the abusive-lan- derlying case was improper because

24 THE VERMONT BAR JOURNAL • WINTER 2019 www.vtbar.org plaintiff failed to establish that the un- • Write in the Active Voice sues.”10 Simply by eliminating glue words, Write On derlying settlement was reasonable. • Use Short Sentences they turned a 24-word sentence into a 15- We reverse as to the award of emo- • Avoid Wide Gaps Between the Sub- word sentence. The rewritten sentence is tional distress damages and affirm as ject, the Verb, and the Object clearer and livelier. Shortening and enliven- to the economic damages award.7 • Use Strong Nouns and Verbs to Per- ing one sentence in isolation may not seem suade8 that impressive, but cutting and entire doc- Justice Robinson consistently opens her ument down by 30% or 40% will unques- opinions with a concise issue statement. Af- I will next show how Justice Robinson con- tionably improve clarity and make your ter reading just a few sentences, the reader sistently follows these principles. writing more dynamic. has been briefed on the dispute and ready Let’s try this with Justice Robinson. Here to tackle the legal issues in greater detail. Omit Surplus Words. Every text cautions is the start of her statement of facts in a against verbosity, but Wydick and Sloan of- DUI case where the defendant sought to II. Key Principles of Good Legal Writing fer a number of constructive ways to omit suppress statements she made to police surplus words. First, they distinguish be- officers at her home after an accident. In her introductions and in the body of tween “working words” and “glue words” her opinions, Justice Robinson follows all and suggest the balance should be weight- On a cold January night, a Depart- the key principles of good legal writing. ed in favor of working words. Working ment of Corrections (DOC) officer was Though there are many competing legal words carry the meaning of the sentence, traveling in his vehicle down Christian writing guides on the market, they all fo- while glue words hold the sentence togeth- Street in the Town of Hartford when he cus on best practices for creating dynamic er. Glue words are necessary, Wydick and encountered defendant walking up the legal writing by using vivid verbs in the ac- Sloan are quick to point out, for proper road about 100 feet from a motor vehi- tive voice and streamlined sentences with grammar, but a preponderance of prepo- cle stuck in a snow bank. The back half little to no wordiness. I use Plain English sitions, conjunctions, and other glue words of the vehicle was encroaching on the for Lawyers by Richard Wydick and Amy “add unnecessary bulk and bog down your traveled roadway, and both the rear Sloan in my Legal Writing I class because writing.”9 Here is one of their examples, reverse lights and dash lights were on. it explains these key principles in a concise with the working words underlined: “The The DOC officer offered defendant a text (just 162 pages) with helpful examples, ruling by the trial judge was prejudicial er- ride home. During the brief trip, de- practice exercises, and a sprinkling of hu- ror for the reason that it cut off cross-ex- fendant identified herself and told the mor to keep the reader engaged. Here are amination with respect to issues that were DOC officer that she had driven off the main lessons of the book: vital.” And this is their rewrite: “The trial the road because she was upset by a • Omit Surplus Words judge’s ruling was prejudicial error because fight with her boyfriend. The DOC of- • Avoid Nominalizations it cut off cross-examination on vital is- ficer dropped her off at an apartment

www.vtbar.org THE VERMONT BAR JOURNAL • WINTER 2019 2 5 less than a mile away and reported the ing sentences of life. One advantage of graph, and this is due in part to the vivid vehicle to the Hartford Police Depart- Plain English for Lawyers is that it offers verbs. This principle is closely related to ment. Officer Muldoon responded, ar- common word endings for nominalizations. the next one, so let’s move on to the all-im- Write On riving at the vehicle within six to ten You might not know you are using a nomi- portant advice to avoid the passive voice. minutes. He found documents in the nalization, but if you look for these word Write in the Active Voice. Verbs have vehicle listing defendant’s name and endings you might find a lively verb hidden five “characteristics”: Number (singular, address. The DOC officer, who had re- inside. So, look for words ending with -al, plural); Person (first, second, third); Voice turned to the scene, told Officer Mul- -ance, -ancy, -ant, -ence, -ency, -ent, -ion, (active, passive); Mood (indicative, impera- doon that he had driven the defendant -ity, -ment.13 tive, subjunctive); and Tense (past, present, home. Officer Muldoon drove to de- future, etc.).17 I make this rather fine gram- fendant’s apartment and knocked on Let’s see how Justice Robinson does with matical point for one reason—to stress that the door. Defendant’s grandmoth- nominalizations v. vivid verbs. Here’s a sam- the passive voice has nothing to do with er answered. After Office Muldoon pler. In the first, the Court addressed de- verb tense. Legal writers often confuse asked to speak with defendant, grand- fendant’s claim that the weapon he used the two, and that can lead to trouble. Plain mother invited him in and called for to slash a victim’s face at the Tunbridge English for Lawyers makes this point clear- defendant to come out of her room.11 World’s Fair was not a prohibited “brass ly: “No matter what the verb tense—past, knuckles.” present, future, or something more com- By my count, here is the proportion of plicated—the key difference between the working words to glue words in these elev- We conclude that § 4001 applies to active and passive voice remains the same: en sentences: the weapon here. The statute does in the active voice, the subject of the sen- 30/13 not define “brass knuckles,” and the tence does the acting, but in the passive 12/10 legislative history of its enactment is voice, the subject of the sentence is being 6/2 scant. Our conclusion is, however, sup- acted upon.”18 The book keeps its example 24/5 ported by common understandings of simple to emphasize this central lesson of 15/8 the term “brass knuckles.” Defendant active/passive voice. “Active: John kicked 9/3 points to, and the trial court cited, nu- the ball. Passive: The ball was kicked by 8/3 merous dictionary definitions of “brass John.”19 My advice to students distills this 17/7 knuckles” to determine its “plain, or- lesson into an even simpler rule: Keep the 7/4 dinary meaning.” These definitions subject of the sentence on the left side 3/0 (Nirvana!) illustrate, although not exhaustively, of the verb and you will be writing in the 14/8 the core elements of brass knuckles: active voice. Another approach is to ask a device designed to be gripped in a with each sentence, “Who is doing what Working words predominate in every sen- clenched fist, that fits over the knuck- to whom?” If you write your sentences in tence. Notice how Justice Robinson es- les, and that is designed to increase this order, you will be writing in the active tablishes “flow” by using the “dovetailing” the damage caused from a strike of voice. technique I have spoken of in this column. the fist.14 Justice Robinson excels at writing in the Each sentence is linked to the last by some active voice. Here is an example: brief reference (“The DOC officer offered Each of these sentences uses descriptive defendant a ride home. During the brief verbs to explain the Court’s holding and Some courts have held that person- trip . . . “). Remember that this technique none of them contains a bulky nominaliza- al jurisdiction is a necessary prerequi- of coupling the sentences does not have to tion. The same is true for this second ex- site to issuing an abuse-prevention or- appear at the start of the sentence. You can ample, where the Court reversed a defen- der against a nonresident, and have achieve coherence and variety by moving dant’s conviction for disorderly conduct. concluded that they did not have per- the substantive transition around (as Jus- sonal jurisdiction over the defendants. tice Robinson does with the link, “who had A person commits the offense of disor- For example, a Florida appeals court returned to the scene,” in the ninth sen- derly conduct by “engag[ing] in fight- vacated a final injunction against do- tence). ing or in violent, tumultuous, or threat- mestic violence issued against an es- Avoid Nominalizations. The verb is the ing behavior” with an “intent to cause tranged husband in Maryland after most important word in any sentence of le- public inconvenience or annoyance, or the wife fled from Maryland to Florida gal writing. Verbs express action. The law is recklessly creat[ing] a risk thereof.” 13 following husband’s violent acts and all about action. Cars collide. Plaintiffs sue. V.S.A. § 1026(a)(1). While attempting threats. Becker v. Johnson, 937 So.2d Jurors deliberate. Yet lawyers like to bury to collide with a police officer could in 1128, 1132 (Fla. Dist. Ct. App.2006). the action of a sentence in the noun, miss- some circumstances constitute disor- Explaining that “[t]he constitutional ing the opportunity for clarity that a vivid derly conduct, the evidence here is in- touchstone remains whether the de- verb offers. Lawyers tend to write “The De- sufficient to fairly and reasonably tend fendant purposefully established ‘min- fendant was in violation of the law,” instead to show beyond a reasonable doubt imum contacts’ in the forum State,” of “The Defendant violated the law.” Turn- that, by walking toward Officer Hodg- the court concluded that the hus- ing a verb into a noun is called a nominal- es, defendant engaged in fighting or band’s calls and text messages to the ization. Noted grammarian and New York violent, tumultuous, or threatening be- wife’s cell phone, when her phone Times contributor Helen Sword calls nomi- havior.15 number was a Maryland number and nalizations “zombie nouns.” She uses this he had no knowledge that she was in metaphor for nominalizations “because The paragraph comes alive through de- Florida at the time, were insufficient to they cannibalize active verbs.”12 The nom- scriptive verbs that drive the story forward confer jurisdiction on Florida’s courts. inalization example I just used is easy to without any nominalizations. Now, Justice Id. at 1131 (quotations omitted). The spot, but subtler ones can sneak into our Robinson commits a bad split infinitive,16 court noted that its decision did not writing, stumbling ashen through our texts, but otherwise the reader can glean the leave the wife without an enforceable gobbling up descriptive verbs, and drain- meaning of the entire case from one para- remedy in Florida; if she got an order

26 THE VERMONT BAR JOURNAL • WINTER 2019 www.vtbar.org in Maryland that was compliant with prose, clarifies your points, keeps readers Write On the federal Violence Against Women interested, and makes it easier for you to Act, 18 U.S.C. § 2265 (2005), that or- spot problems in your legal analysis.”24 On der would be enforceable in Florida.20 short sentences, I offer my students this as- pirational aphorism from Antoine de Saint- 100% active voice. So too here: Exupery: “Perfection is finally attained not when there is no longer anything to add, On May 26, 2009, a group of teenagers but when there is no longer anything to gathered at a vacation house owned take away.”25 by the Flanagans and located near Some of Justice Robinson’s sentences the Okemo Mountain Resort in Lud- are on the long side in her analysis sec- low. . . . The gathering began around tions, but she consistently keeps her sen- 7:00 p.m. Defendants Kevin Spear and tences short in the fact sections, to great Nicholas Sweet went to the property dramatic effect. Listen to this creepy story: to smoke marijuana. Sometime after arriving, Sweet called other teenagers Complainant and defendant met and and invited them to join him and Spear began a romantic relationship in De- at the property. At some point, defen- cember 2006. In May or June 2007, af- dant Nathan Gritman heard about the ter a heated argument, complainant gathering and called [Dylan] Stinson. considered their courtship over. Short- Stinson got a ride there from Jessica ly thereafter, complainant encountered Francis, who was accompanied by de- defendant in a store. Upon seeing her, fendants Elizabeth Plude and Austin defendant called out that “she is a dif- Lawson. They picked Stinson up some- ficult one.” Complainant ignored de- time after 7:40 p.m. and arrived at the fendant, paid for her food, and left. property around 8:00 p.m. Gritman ar- Defendant was waiting outside of the rived around dusk, having walked to store. Complainant explained to him the property by himself. Shortly after that she wanted their relationship to dropping off Stinson, Francis left the be finished, and she then turned to property. After Francis left, the teens walk up the street to her home. De- mulled around in the driveway, drink- fendant followed complainant, and ing beer and chatting. Stinson was the two got into a loud exchange, with among the individuals who drank beer. complainant eventually going inside As the night progressed, it became her home. Subsequently, in June 2007, chilly. Having spotted an outdoor fire- defendant emailed complainant and place, or chiminea, on the Flanagans’ invited her to be his guest at a wed- deck, the teens decided to build a ding that was to occur that September. fire.21 Complainant declined. In August 2007, defendant emailed complainant and You can guess what happened next. The “berat[ed]” her. On the night of the house burned to the ground. But back wedding, defendant called complain- to my point—every sentence is in the ac- ant “sound[ing] intoxicated” and in- tive voice. This paragraph succeeds as an vited her to a friend’s party, and again example of good legal writing for a num- complainant declined. Later that same ber of other reasons as well, including flow night, complainant was driving in Win- and, as a bridge to the next topic, effective ooski when she received an incoming use of short sentences. Here are the num- call from defendant’s phone, which she ber of words in each sentence: 26, 29, 6, did not answer. Complainant looked in 13, 18, 13, 18, 16, 11, 9, 14, 8, 7, and 18. the rearview mirror and saw defendant Plain English for Lawyers recommends an on the phone driving “directly behind” average sentence length of 25 words (I tell her. Defendant followed complainant my students to average between 17-20).22 to her home in Burlington.26 This excerpt easily meets this test. More, I am a big fan of the short sentence for It gets worse, but this excerpt of the dis- dramatic impact. This excerpt has several turbing fact pattern illustrates my point. short sentences that move the story along This paragraph summarizes every point I descriptively and concisely. “As the night have made so far about good legal writing. progressed, it became chilly.” What a nice, Justice Robinson draws the reader right in tight set-up for what happened next! to this unsettling story by weighting every Use Short Sentences. Writing shorter sen- sentence heavily toward working words. tences is an essential aspect of good legal She uses vivid verbs instead of nominaliza- writing. Legal writing guru Bryan Garner tions. She writes in the active voice (passive places it at the top of the list: “As much as voice: 0%). And she writes short sentenc- any other quality, sentence length will de- es (average sentence length: 13.9 words). termine the readability of your writing.”23 “Complainant declined.” That power- Professor Messing agrees: “The simple act ful sentence summarizes the case in two of shortening your sentences hones your words! www.vtbar.org THE VERMONT BAR JOURNAL • WINTER 2019 2 7 Avoid Wide Gaps Between the Subject, tence as well. Plus a clever use of metaphor I have time for one more. Here is an excerpt Verb, and Object. A better way to describe with headwinds—the image captures the from Justice Robinson’s damning dissent this principle is to phrase it in the affirma- plaintiffs challenge well. in a case where the Court held a motorist Write On tive. I tell my students the single most im- had no negligence claim against a property portant rule in legal writing is this: Keep III. Justice Robinson’s owner when the motorist hit a horse that the subject, verb, and object close togeth- Concurrences and Dissents had broken free from land owned by the er at or near the start of the sentence. Long defendant but leased to a tenant. gaps between the S-V-O can cause confu- Justice Robinson’s opinions for the Court sion as the reader waits to see, to use the are a model of judicial temperance. Justice I spill so much ink on this analysis be- phrase again, who has done what to whom. Robinson’s goal is to explain a dispute and cause of the troubling implications of Other problems can occur as well. For ex- the Court’s resolution of it with objective, the majority’s suggestion that only the ample, the longer the gap between the even-handed language, with no showiness owner of a farm animal can be liable subject and verb, the greater the risk of or grandstanding. I often say that, in the in tort to a driver injured on a public errors with subject/verb agreement. Prob- best legal writing, the writer disappears. highway when the animal escapes. In lems with parallel structure can also arise The reader focuses on the argument, not so holding, the majority does far more with wide gaps. Yet lawyers create wide the author. This is certainly true of Justice than merely shield landlords from li- gaps between the S-V-O all the time. Plain Robinson’s opinions. As with most jurists, ability for inadequate fencing of live- English for Lawyers uses this typical exam- though, Justice Robinson can be a bit more stock by their tenants. Wholly apart ple: “A claim, which in the case of neg- searing and dramatic in her concurrences from the landowner-tenant context, ligent misconduct shall not exceed $500, and dissents. A few examples of this more the majority’s apparent holding would and in the case of intentional misconduct acerbic language will be a fitting end to shield property owners who do not shall not exceed $1,000, may be filed with this column. own the animals on their property from the Office of the Administrator by any in- Here’s an example from a 2016 case in any duty to maintain adequate enclo- jured party.”27 I hope you caught the pas- which the plaintiff alleged Senators Ted sures—or any enclosures at all—when sive voice. The irony with this poorly con- Cruz and Marco Rubio were not constitu- they permit the pasturing of animals structed sentence is that it ends where it tionally qualified to run for President. The on their land, even if they retain ex- should begin. “Any injured party may file a Court dismissed the claim as moot because clusive possession and control of that claim with the Office of the Administrator. Cruz and Rubio had dropped out of the land. This position would leave Ver- The injured party’s claim may not exceed race by the time the Court heard the ap- mont’s common law relating to such $500 for negligent misconduct or $1,000 peal. Justice Robinson disagreed with this cases far outside of the national main- for intentional misconduct.” conclusion: stream. And, it could severely limit the Most every block quote I have used from remedies available to individuals who Justice Robinson’s opinions follows this fi- The majority holds that the “capable suffer grievous injuries as a result of nal rule (check back and see for yourself). I of repetition” prong of an exception the negligence of landowners or other will only add one more as representative of to the mootness doctrine is not sat- possessors of land who fail to take rea- Justice Robinson’s practice of keeping the isfied in this case because the pros- sonable care in managing the pastur- S-V-O close together. This is a case in which pect of Senator Marco Rubio or Sena- ing of animals on their land.31 plaintiffs challenged a Town’s use of federal tor Ted Cruz running for United States funds to repair an aging church. President in 2020 is a mere theoretical I have one quibble with Justice Robin- possibility unsupported by any state- son’s concurrences and dissents. She con- Applying these standards, we first ments or legal filings by either indicat- sistently refers to the Court’s opinions by conclude that the trial court overstat- ing an intent to run in 2020. This hold- referencing “the majority.” We see this all ed the extent to which plaintiffs estab- ing distorts the applicable legal stan- the time, of course, in concurrences and lished a likelihood of success on the dard and defies common experience.29 dissents, so Justice Robinson is certain- merits. Our analysis is framed by the ly not alone in this practice. The phrase Compelled Support Clause of Chapter Here is an excerpt from Justice Robin- carries some subtle suggestion that the I, Article Three of the Vermont Con- son’s stinging dissent in a case where the Court’s holding is undermined because stitution and our caselaw thereunder, Court reversed the disorderly conduct not every justice agrees with it. Yet it is this limitations arising from the Free Exer- charges against a defendant who distrib- very challenge to the institutional author- cise Clause of the First Amendment uted Ku Klux Klan recruitment flyers at the ity of the Court that troubles me. In this, to the U.S. Constitution, and the re- homes of a Mexican American woman and I was deeply influenced by the late, great cord in this case. In light of these con- an African American woman. Justice Allen Compton of the Alaska Su- siderations, plaintiffs’ path to success preme Court. I clerked for him in 1995- on the merits is narrow. Plaintiffs face [T]he majority’s approach—focusing 96. He wrote a number of dissents that strong headwinds in arguing that the on the presence or absence of physi- year, and he was adamant that they refer Compelled Support Clause embodies cal movement—hones in on the wrong to “the Court” and not “the majority.” He a categorical prohibition against any factor. The public harm from threaten- felt this was an important point. Chief Jus- public funding for physical repairs to ing behavior does not arise from a de- tice Compton said no case is bigger than a place of worship, and plaintiffs have fendant’s gesticulating while engaging the Court’s reputation. Any justice in dis- not yet presented sufficient evidence in a threatening tirade; it flows from sent seeking to gain some rhetorical points to demonstrate a high likelihood of the threatening tirade itself. Exclud- by referring the “the majority” in the hope success on a narrower claim.28 ing from the statute’s reach those pub- of undermining the holding actually under- lic threats that are communicated in mines the court they serve on. Some short transitional phrases to help words without the accompanying ges- Struck by Chief Justice Compton’s po- with flow, but otherwise S-V-O close to- ticulations would frustrate the purpose sition, I have paid attention to the terms gether near the start of every sentence. of the statute.30 used by dissenters for the past 25 years. Nice parallel structure in the second sen- The results might surprise you. Justice An-

28 THE VERMONT BAR JOURNAL • WINTER 2019 www.vtbar.org tonin Scalia, for example, was famous for Justice Robinson’s 7+ years of jurispru- 13 Wydick and Sloan, supra note 8, at 24. Write On his take-no-prisoners dissents, yet he con- dence is an impressive achievement in le- 14 State v. Brunner, 2014 VT 62, ¶ 12, 196 Vt. 571, 576, 99 A.3d 1019, 1023. sistently referred to “the Court,” not “the gal writing. Her writing style is approach- 15 32 33 State v. McEachin, 2019 VT 37, ¶ 14, 213 A.3d majority.” Go back to the block quotes able and even humble, yet erudite. She 1094, 1098. above from Justice Robinson’s concurrenc- applies all the key principles of good legal 16 See Greg Johnson, Sweat the Small Stuff, 40 es and dissents. Wherever you read “the writing and therefore serves as a role mod- Vermont Bar J. 37 (2014). 17 majority,” substitute “the Court.” I think el of everyone desiring to improve their le- See, e.g., http://ilmii.com/verb-functions- verb-characteristics-verbs-kinds-verbs-exam- you will see what I mean—Justice Robin- gal writing. I encourage all of you to take ples-exercises/ son’s arguments are just as strong, but the your own journey through Justice Robin- 18 Wydick and Sloan, supra note 8, at 28. Court’s power to create precedent and is- son’s jurisprudence. You will find that legal 19 Id. at 27. sue mandates as one unified Court is re-af- writing treasures abound! 20 Fox v. Fox, 2014 VT 100, ¶ 11, 197 Vt. 466, firmed. ______472, 106 A.3d 919, 923. 21 Concord Gen. Mut. Ins. v. Gritman, 2016 VT Greg Johnson is Professor of Law and Di- 45, ¶¶ 3-5 (footnote omitted), 202 Vt. 155, 158- Conclusion rector of the Legal Writing Program at Ver- 59, 146 A.3d 882, 885. mont Law School. 22 Wydick and Sloan, supra note 8, at 36. 23 I have more praise for Justice Robin- ______Bryan Garner, Legal Writing in Plain English 27 1 (2d ed. 2013). son’s legal writing on the macro-level, Noah Messing, The Art of Advocacy 193 (2013). 24 Messing, supra note 1, at 247. something harder to show in a single block 2 Id. 25 See https://www.brainyquote.com/quotes/ quote. Justice Robinson helps readers nav- 3 State v. McCarthy, 2012 VT 34, ¶ 1, 191 Vt. antoine_de_saintexupery_401881 igate lengthy opinions by saying where she 498, 501, 48 A.3d 616, 620. 26 State v. Noll, 2018 VT 106, ¶¶ 2-4, 199 A.3d 4 will go in an opening roadmap paragraph, State v. Tracy, 2015 VT 111, ¶ 1, 200 Vt. 216, 1054, 1056-57. 219020, 130 A.3d 196197. 27 Wydick and Sloan, supra note 8, at 40. and then sticking to the that roadmap with 5 State v. VanBuren, 2018 VT 95, ¶ 1, 214 A.3d 28 Taylor v. Town of Cabot, 2017 VT 92, ¶ 21, 205 headings or topic sentences that mirror the 791, 794. Vt. 586, 596-97, 178 A.3d. 313, 320. language of the roadmap. Justice Robinson 6 In Re Petition of Apple Hill Solar LLC, 2019 VT 29 Paige v. State, 2017 VT 54, ¶ 18 (Robinson, has a healthy habit of surveying thoroughly 64, ¶ 1. J., concurring in the mandate only), 205 Vt. 287, 7 295-96, 171 A.3d 1011, 1017. the jurisprudence from other states—espe- Vincent v. Devries, 2013 VT 34, ¶ 1, 193 Vt. 574, 575, 72 A.3d 886, 888. 30 State v. Schenk, 2018 VT 45, ¶ 49 (Robinson, cially other states in New England—when 8 Richard C. Wydick and Amy E. Sloan, Plain J., dissenting), 207 Vt. 423, 450, 190 A.3d 820, the Court is facing an issue of first impres- English for Lawyers (6th ed. 2019). The book con- 839. sion. She is a master at the “topic sentence tains more rules than these that I highlight, but I 31 Deveneau v. Wielt, 2016 VT 21, ¶ 55 (Robin- outline” approach to legal writing (some- will focus on these to meet the constraints of this son, J., dissenting), 210 Vt. 396, 424, 144 A.3d column. 324, 343. thing I discussed in my column on Brett Ka- 9 Id. at 8. 32 See, for e.g., Obergefell v. Hodges, 135 S.Ct. vanaugh’s legal writing style). For many of 10 Id. at 9. 2584 (2015) (Scalia, J., dissenting). Justice Robinson’s opinions, you can pull 11 State v. Sullivan, 2013 VT 71, ¶¶ 2-5, 194 Vt. 33 See Greg Johnson, Credibility in Advocacy: the topic sentences out of lengthy text, put 361, 364-65, 80 A.3d 67, 70-71. Humility as the First Step, 39 Vermont Bar J. 22 12 (2013). them in an outline, and understand Justice Helen Sword, Zombie Nouns, New York Times, July 23, 2012, available at https://opin- Robinson’s argument without reference to ionator.blogs.nytimes.com/2012/07/23/zombie- anything else. nouns/.

Welcome VBA President Beth Novotny

www.vtbar.org THE VERMONT BAR JOURNAL • WINTER 2019 2 9 by Therese M. Corsones, Esq. WHAT’S NEW An Interview with Carl Lisman, President of the ULC

TERI CORSONES: Today I’m interview- and all of the appointees from the state will ing Attorney Carl Lisman at Lisman Lecker- be purged across the board and new ap- ling PC in Burlington. Carl, thank you very pointees from the governor’s political par- much for taking the time to visit with me to- ty will be substituted. It’s unfortunate when day. First, congratulations on being elected that happens because the ULC is non-polit- President of the Uniform Law Commission! ical and non-partisan. CARL LISMAN: Thank you. TC: Well, I’m glad that it’s worked out TC: That is quite an honor, and I imagine well in Vermont to have experienced prac- quite an obligation. Before we talk in more titioners filling the role of commissioner. detail about your presidency, I wondered I think most lawyers were probably intro- if you could tell us a bit about where you duced to the Uniform Law Commission in grew up, where you went to school, and law school studying the Uniform Commer- how you decided on law for a career. cial Code. Is the UCC the most well-known CL: I grew up in Burlington and went to product of the Uniform Law Commission? Burlington public schools. I went to UVM, CL: Probably but there are others. The and then law school at Harvard. I knew Uniform Anatomical Gift Act is a close sec- from a very early age that I wanted to be a working with the ULC. So when Governor ond. And then perhaps the Uniform Pro- lawyer because my dad and my uncle were Salmon asked me if there was a position in bate Code, much of which is the law in Ver- lawyers. state government that I might be interest- mont, and the Uniform Trust Code substan- ed in, it was the first one that I thought of. tially all of which is the law in Vermont. The TC: Did you go right to work in Burling- Common Interest Ownership Act, which ton after law school? TC: What year were you first appointed? we have in Vermont, is probably not quite CL: No, I had the privilege of clerking for CL: 1976. as well known as the UCC, but is up there Sterry Waterman at the U.S. Court of Ap- with the UCC. And then there are many peals for the Second Circuit in New York. TC: Does the governor in each state typ- others that are widely adopted that aren’t Then I spent time working for a large law ically appoint the commissioners? as well known. firm in Manhattan and was there until the CL: Yes, typically it’s a gubernatorial ap- time came to move back to Vermont with a pointment in every state. In a few states, TC: Do you know how many uniform young child and spouse in tow. though, the president of the Senate, the law commission laws have been adopted in speaker of the house or the chief justice Vermont? TC: You wanted to raise your family in might have an appointment. And the ap- CL: The ULC credits us with 93 enact- Vermont? pointments are commonly for fixed terms. ments. CL: Yes, well it was pretty clear to me that I was making too much money to be TC: What is the usual term? TC: Wow. Is that fairly typical for a state poor and too little money to be rich. It was CL: Five years. to have that many? not a good time to raise a child in New York CL: Some states have more than we do, City. TC: How many commissioners are there and some states have fewer; it depends on in Vermont? the state and the willingness of legislatures TC: Well, your family in Vermont must CL: There are six. Peter Langrock from to rely on the ULC’s expertise and product have been thrilled that you relocated back Middlebury is officially a life member. Rich quality. home. Cassidy from Burlington, Ted Kramer from CL: I think so. But I was out-negotiated Brattleboro and Stephanie Willbanks from TC: I’m going to assume it’s a very exact- by my dad and my uncle; they came to me South Royalton are Commissioners. And ing and time-consuming process, but from and said, ‘if you don’t think you’re going Luke Martland from the Legislative Coun- start to finish how is a uniform law devel- to come back to Vermont to take over the sel is also a member. oped? firm, we’re going to shut it down…We’re CL: Good question. We start with sug- both ready to retire.’ They won me over, TC: It’s nice that there’s such a geo- gestions that come from current and for- and of course they each continued their graphic and practice area variety to the mer commissioners, law professors, law- practice for many years after that! commissioners. yers in public and private practice, the ju- CL: Yes. Our governors have looked at diciary, the general public. We have had TC: It’s my understanding that you geography as well as other factors when suggestions from outside the country. In first became a Uniform Law Commission- they make their appointments. We’ve also each instance someone is saying that per- er more than 40 years ago. How did that been quite lucky in Vermont that it hasn’t haps there ought to be a law on a topic. come about? become politicized. CL: Tom Salmon was the governor who TC: Is it as simple as somebody going to first appointed me. Judge Waterman had TC: Does that happen? the ULC website and posting a suggestion, been a Uniform Law Commissioner and had CL: It does. From time to time we’ll see or is there a formal process? expressed that he really enjoyed his time that a new governor will come into office CL: There is no formal process. So some-

30 THE VERMONT BAR JOURNAL • WINTER 2019 www.vtbar.org What’s New times we’ll get an email from somebody TC: So the drafting is a two-year pro- a business person or consumer, to take the who says, ‘don’t you think there ought cess? lead. Either way, you need to find some- to be a uniform law on this subject?’ And CL: Correct. It’s unusual for us to start body in the legislature who shares an inter- that’s all they give us. At the other extreme and complete a uniform law in less than est in the bill. we might get a 300-page law review article two years. or a white paper on a particular issue. TC: And do you publicize what laws are TC: Well, I know from having worked approved? TC: Interesting. What happens next? somewhat on the notary public law that we CL: We send a letter every year to the CL: Our standing Committee on Scope relied heavily on the drafters’ comments, governor and the chairs of various House and Program vets suggestions and may rec- and I remember being very surprised at and Senate committees. We should add ommend to our Executive Committee that how detailed the comments were. It’s obvi- the VBA to the list. we undertake a drafting project on that ous that a lot of work goes into the drafting subject, or it may refer it to a study com- and the comments. TC: Thank you! I think it would be of mittee of commissioners or to one of our CL: Commissioners serve without com- great interest to the membership. I know affiliated joint editorial boards further vet pensation. Our reporters are paid a very certainly the probate section worked very the subject and bring it back to the Scope nominal amount to do the heavy lifting, long and hard on the uniform probate and Program Committee for it to make a and our advisers and observers fund their code. Now that I have a whole new un- recommendation. own participation. People don’t generally derstanding of the process, what is your do what we do unless it’s a labor of love. schedule as president? TC: I saw from looking at the ULC web- And that’s how you get people to spend CL: It’s busy. We have drafting com- site that you served as chair of the Com- the time creating these laws and then writ- mittee meetings in the fall and the spring. mittee on Scope and Program in the past. ing the official commentary to help explain They typically are weekend meetings How many suggestions does that commit- why the provision that you’re looking at where the committee meets Friday, Satur- tee get each year? says what it says, and what thoughts were day and sometimes Sunday morning. So, CL: It will vary. The committee meets in evaluated and discarded or accepted. I’ve attended, since the middle of Septem- person in January of every year and then ber, nine of those weekends. In addition, I again at our annual meeting in July of every TC: What incredible dedication the com- attend the ABA House of Delegates meet- year. At these meetings, typically we’ll have missioners must all have. ings, I meet with people in Washington to anywhere from 20 to 60 suggestions, some CL: Indeed. Of course, if you take a step ensure the relationship between the states of which we can deal with quickly and some back and think for instance, about the com- and the federal government. I have week- of which take a fair amount of time. mercial code, around five trillion dollars are ly telephone conferences with our Chicago transferred by wire every day. If the law isn’t staff and others in our leadership. We have TC: So that must be a big job in and of precise or accurate you have a potential di- executive committee meetings month- itself, just reviewing the suggestions. saster on your hands. Making sure that our ly by video conference. And sometimes I CL: It is. And, as people become more laws are well-written and well-thought-out will have to deal with budget issues or per- savvy, by gathering information from the is really important. sonnel issues in the Chicago office and go internet, the supporting materials that we there. Plus, we have our week-long meet- get grows exponentially. TC: I read where the Uniform Law Com- ing in the summer every year. mission was first established in 1892. Has TC: How many commissioners are there the process worked the same from the be- TC: That’s an incredible schedule! I re- nation-wide? ginning? member that when Rich Cassidy was presi- CL: There are approximately 400 uni- CL: The first commissioners knew that dent, he had one of the meetings in Ver- form law commissioners, including life they wanted to promote uniformity in the mont. Do you have plans along those lines members. law, but struggled about which subjects during your tenure? to start with. They made the decision to CL: Not another annual meeting. This TC: So, that’s a good number of people start with what we now have the General summer’s meeting will be in Madison, Wis- to help with the work load. Partnership Act and the Negotiable Instru- consin and the following summer we’ll CL: Right. Once the executive commit- ments Law, both of which were enacted be in New York City. But we’ll hoping to tee decides that we should go forward here. These were done in the early part of schedule drafting meetings in Vermont with drafting a uniform law, the president the 20th century. In the late 40s and into next year. One of the privileges of being appoints a committee of commissioners to the 50s, the ULC committed itself to the the president is that you get to figure out undertake that process. The committee in- commercial code and devoted meeting af- where these meetings happen. vites stakeholders--individuals and organi- ter meeting to it, working through the var- zations who have an interest in the subject ious articles. Since then we’ve been less TC: Is another privilege that you get to matter of the proposed law--to participate focused on specific areas of the law and have a focus or a goal for your term? at the table with us in the writing and re- are willing to take on subjects that cover a CL: Yes. My primary goal for these two vising of the law. We hire a reporter who broad scope of categories. years is to see if we can come up with a will actually do the writing of the act and law on the collection, distribution and use the official comments. We’ll meet typically TC: Once the Uniform Law Commission of personally identifiable data in electronic at least four times over a two-year period approves a uniform law, how would it typi- transactions. in person, and much more often by video cally become law in Vermont? conference or teleconference to finish the CL: That happens one of two ways. One TC: Interesting and very timely! drafting. We have a requirement that an way is for commissioners to come back to CL: Exactly. It doesn’t look like Congress act be considered at two or more annual their states and say, ‘here’s a really good is in any position to act on this subject. Cal- meetings; that review is undertaken by all law that would be beneficial here in our ifornia and a couple of other states have of the commissioners. state.’ The other is for someone who has an tried to write comprehensive laws on that interest in that subject matter, whether it’s subject. California’s law will go into effect www.vtbar.org THE VERMONT BAR JOURNAL • WINTER 2019 3 1 soon and they’re struggling to revise it al- CL: I would say that promoting laws for law and if we go in that direction, they can ready as it is not really workable. So, we’re the states to adopt that are uniform in ar- be an active participant at the national lev- going to be working on that. eas generally where Congress doesn’t leg- el in drafting the law. They can also work islate, such as family law, real estate law, with the Vermont commissioners when we What’s New What’s TC: Did you read the VT Digger article criminal law, trust and probate, business go to the Legislature. about the DMV’s sale of information? entity law matters. It was all quite a hodge- If they want to be a commissioner, then CL: Absolutely. I also heard on VPR this podge until the ULC came along and we’ve they need to get the ear of the governor morning about a television viewing service made it easier for people to function in and when a vacancy arises, apply for the that makes more money selling advertis- business and in their private lives. When opening. I became a commissioner when ing than it does on customer subscriptions, you go from state to state, there’s no good I was six years out of law school. In some which means that it is selling information reason in general why the laws should be ways the Uniform Law Commission shaped about what its customers are watching. The different. my practice. internet has grown so fast that it matured as an industry before government could TC: What has been the most satisfying TC: Well, that’s another advantage to see whether it should be regulated and if part about your work with the Uniform Law working on the ULC! Carl, we’re so hon- so, how and who should do the regulation. Commission? ored that you’re the President of the Uni- CL: I would say that it has been work- form Law Commission. Your dedication to TC: Seems like that’s what Congress is ing with intellectual giants whether they be the profession is awe-inspiring, especial- grappling with right now. commissioners, observers, advisers, or rely considering the thousands of hours that CL: It’s trying. It wasn’t so long ago, that porters. Over the years I’ve met and have you’ve devoted to helping ensure that laws our biggest concern was government intru- had the privilege to get to know some of are fair and uniform. sion into our privacy. But now we will be the greatest legal minds in this country. Thank you for sharing your insights into looking at privacy protections from indus- And it’s been fascinating. the very interesting and important work of try. the Uniform Law Commission. TC: The last question: are there ways for CL: Thank you, Teri; it’s been a pleasure. TC: It sounds like you’ve selected an Vermont lawyers, including young lawyers, ______incredibly useful topic to focus on. What to get involved in the work of the Uniform Teri Corsones, Esq., is the Executive Di- would you say has been the ULC’s most im- Law Commission? rector of the Vermont Bar Association. portant contribution during its now nearly CL: For sure. Certainly, anybody can 130-year history? make a recommendation that we draft a

32 THE VERMONT BAR JOURNAL • WINTER 2019 www.vtbar.org by Sophia Kruszewski, Esq. WHAT’S NEW The Vermont Legal Food Hub: Supporting Vermont’s Agricultural Economy with Pro Bono Legal Assistance

In January, Vermont Law School’s Center entrepreneurs often have trouble affording Through the Vermont Legal Food Hub, for Agriculture and Food Systems is launch- legal services.9 The cost of legal services we hope to address some of these barri- ing Vermont’s first Legal Food Hub. This and the thin profit margins associated with ers and help bridge the gap between the new pro bono legal assistance program will farming compounds this problem. As a re- agricultural and legal sectors. As we see it, offer key support to our state’s farmers and sult, many farmers with businesses of the success is not only good for these farmers, food producers, while also opening new size and scale commonly found in Vermont food entrepreneurs, and their families, but doors for legal professionals. may be reluctant or unable to obtain legal also for the health and wellbeing of com- services. munities across our state. Why Vermont Needs a Legal Food Hub Farms in Vermont are predominantly small, family farms.10 The average Vermont What is the Legal Food Hub? Vermont prides itself on a vibrant local farm is 175 acres, a two percent increase food culture and strong farm economy, and from the 2012 Census,11 but still significant- The Legal Food Hub is a regional pro- with good reason. Over 20 percent, or ap- ly smaller than the national average of 441 gram created by Conservation Law Foun- proximately 1.2 million acres, of Vermont’s acres.12 In Vermont, approximately 90 per- dation (CLF) designed to help grow a vi- landmass is in agriculture.1 Home to 6,808 cent of farms meet the USDA definition brant regional food system by connecting farms, Vermont leads the nation in maple of small (less than $250,000 in gross an- farmers, food entrepreneurs, and related syrup production2 and ranks among the nual sales), and the vast majority of these organizations with pro bono legal servic- top 10 states for certified organic farms are family farms.13 In fact, of Vermont’s es.17 Jennifer Rushlow, who now serves as (in terms of both acreage and number of 6,808 farms, 72 percent bring in less than Director of the Environmental Law Center farms)3 and for local food sales.4 According $25,000 in average annual sales; only 16 at Vermont Law School (VLS), established to U.S. Department of Agriculture (USDA) percent have $100,000 or more in sales.14 the first Hub in Massachusetts in 2014 data, sales from Vermont producers direct- While the average net cash farm income in when she was Director of CLF’s Food & ly to consumers, retailers, institutions, and Vermont increased modestly from $20,772 Farm Program. Since then, the Legal Food local distributors like food hubs totaled in 2012 to $26,215 in 2017, it remains well Hub has expanded to Maine, Rhode Island, $250 million in 2016 alone.5 below the national average of $43,053.15 and Connecticut, and has assisted more These trends are not accidental. In 2010, Although farm and food clients share than 450 farmers, food entrepreneurs, and the Vermont legislature authorized the es- much in common with other clients seek- organizations with a range of transactional tablishment of the Vermont Farm to Plate ing business and legal advice, their distinc- and business law matters, leveraging over Investment Program and directed it to tive characteristics present the legal com- $2.5 million in pro bono legal services.18 create a statewide food system strategic munity with new challenges and opportu- Some examples of this assistance include: plan.6 The plan aimed for 10% of all food nities. Similarly, many small-scale farmers - Helping a beginning farmer and butch- purchases in the state to be local by 2020. and food entrepreneurs may be unfamil- er form an LLC for their farm, desig- A 2018 report found that Vermont had al- iar with attorneys and the practice of law. nate ownership of the LLC’s property, ready exceeded that goal, with local food Even when transactional legal counseling and create waivers necessary to host purchases totaling 12.9% (or $289 million) could significantly benefit farmers and their workshops; of total food purchases in 2017.7 The same businesses, they often do not seek out such - Assisting a dairy farmer in entering report found that, since 2010, Vermont’s services. Farmers may not believe that at- into a lease-to-own agreement with a food sector has seen the addition of 6,559 torneys understand their unique legal is- farmland investor who planned to pur- new jobs and the creation of 742 new busi- sues enough to be of service to them, or to chase a currently operating dairy farm nesses.8 be worth the investment.16 and then lease it to the new farmer; These successes are worthy of recogni- tion and celebration. However, agriculture is an economically risky industry, and Ver- Legal Food Hub Eligibility Criteria mont’s food and farm community faces significant challenges. Farmers make sub- To be eligible for pro bono legal services through the Legal Food Hub, a farmer or stantial financial investments in their opera- food entrepreneur must meet all of the following income criteria: tions, yet returns are dependent on factors p the farm or food enterprise’s net annual sales must not exceed $30,000; outside of their control, such as weather, and natural disasters, and fluctuating local and p the farmer or food entrepreneur’s annual household income must not ex- global markets. This inherent vulnerability ceed 400 percent of federal poverty guidelines; and can have direct and often adverse effects p the farm or food enterprise must have had an annual revenue of at least on the income of many farmers. Moreover, $5,000 in the prior tax year or have started operating within the last three years. farmers and food entrepreneurs face a variety of laws, regulations, and business chal- Nonprofits and community groups in Vermont whose primary purpose is either to lenges in establishing and maintaining via- support farmers and food entrepreneurs or to address social justice issues related to ble businesses. At the same time, many be- the food system are also eligible. ginning and small-scale farmers and food www.vtbar.org THE VERMONT BAR JOURNAL • WINTER 2019 33 ed States were intra-family.27 These data indicate that, while there will be significant farmland turnover in the coming years, a new generation of farmers is poised to step What’s New What’s in. However, the data also point to a growing need for specialists in this area, including attorneys, to help exiting and entering farmers maintain the strength and vibrancy of Vermont’s agricultural economy. “To know you are providing needed legal services to a com- Attorney Benefits munity that nourishes us all is reason alone to get involved and The Legal Food Hub provides a unique sign up as a volunteer lawyer.” opportunity for the legal community to - Elizabeth (Beth) Bo- help farmers, food entrepreneurs, and food epple system organizations build strong businesses and healthy communities. Providing - Working with a diversified, certified- vice; legal assistance on transactional matters to organic farm to review and negotiate - Advising on employee status, includ- these food and farm clients also contributes the terms of a new operating agreeing independent contractors versus real value to our economy. Indeed, accord- ment when the land they leased was employees, interns and volunteers, ing to the most recent USDA Local Foods sold to new owners; and immigration; Marketing Survey, the local food sector has - Addressing the intellectual proper- - Establishing a trademark for a small climbed to an $8.7 billion industry nation- ty needs of an artisanal cheesemak- food business’s name and logo along wide.28 Working with individuals in the lo- er seeking to protect her brand and with handling with other intellectual cal food sector to help them become viable products as she expanded into whole- property matters; also provides the opportunity for law firms sale markets; and - Carrying out successful real estate and solo practitioners to get more involved - Filing for 501(c)(3) nonprofit status for transactions to purchase or lease land; in this growing practice area. a farmers market federation.19 - Negotiating commercial real estate Indeed, a recent survey of attorneys par- leases; and ticipating in the Legal Food Hub in oth- Expanding the Legal Food Hub - Ensuring compliance with local land er states affirms this notion, finding that: to Vermont use regulations, state and federal food safety requirements, product labeling, • 80% of attorney respondents report- VLS is delighted to partner with CLF to and other regulatory matters. ed that they are likely to work with pro establish a Hub in Vermont. Starting in Jan- bono food systems clients in the fu- uary 2020, the Vermont Hub will official- Farmland Transfer: ture; ly begin matching eligible applicants with A Major Area of Need • 46% of attorneys reported a continued skilled attorneys willing to provide their le- relationship with the client, as paying gal services pro bono on discrete, transac- Attorneys are needed in Vermont to help clients as the farm or food business tional business matters. Unlike the Hubs in transition farmland from retiring to incom- grows, or on a pro bono basis; and other states, which CLF administers, VLS’ ing farmers. A 2010 report projected that • 64% of attorneys believe that their Center for Agriculture and Food Systems 70% of agricultural land nationwide would time spent with the Legal Food Hub (CAFS) serves as the primary administrator change hands over the next 20 years.20 A made a positive impact on the local of the Vermont Hub and conducts client 2016 report found that 28 percent of Ver- food system. intake (screening for both income and is- mont farmers were over the age of 65 and sue eligibility), placement, and monitoring. collectively owned 300,000 acres of land.21 “To know you are providing Some matters that come in through the Le- As of 2017, the average age of Vermont needed legal services to a commu- gal Food Hub may be placed with CAFS’ farmers was just shy of 56, and the number nity that nourishes us all is reason Food and Agriculture Clinic. However, we of farmers over 65 increased to 30 percent, alone to get involved and sign up hope to place most matters with participat- further supporting the need for farmland as a volunteer lawyer.” ing attorneys throughout the state. There is transfer assistance as these farmers consid- - Elizabeth (Beth) Boepple no obligation to take a particular number er retirement.22 of pro bono matters; however, our hope is Importantly, Vermont is also seeing an Elizabeth Boepple is an attorney licensed in that participating attorneys will accept at increasing trend among younger genera- Vermont, New Hampshire and Maine who least one each year. tions looking to become farmers. To qual- has assisted food and farm clients through In Vermont, we expect many of the mat- ify as a “beginning farmer” according to the Maine Hub. Beth shared the following ters to mirror those placed through other the USDA, the farmer must have operated about her experience: Hubs in New England, including: a farm for 10 consecutive years or fewer.23 When CLF first launched the Legal - Drafting and reviewing contracts, such In 2017, 30 percent of Vermont producers Food Hub in 2014 in Maine, I was al- as an animal purchase agreement or a identified as new and beginning farmers,24 ready exploring ways to assist farmers membership agreement for a food co- and nearly the same percentage of Ver- and food producers in my law practice. operative; mont farms identified a beginning farmer Being a recent transplant from Ver- - Drafting and filing articles of incorpo- as the principal producer.25 Notably, these mont where, prior to becoming a law- ration for corporations and coopera- new farmers are increasingly coming from yer, I co-owned a restaurant where we tives; outside of farm families or with non-farming sourced local before it was common, - Filing applications to obtain 501(c)(3) backgrounds.26 In 2010, for example, only assisting farm and food clients was a status with the Internal Revenue Ser- half of farmland transfers across the Unit- natural fit. So, volunteering and help-

34 THE VERMONT BAR JOURNAL • WINTER 2019 www.vtbar.org “To know you are providing needed legal services to a community that nourishes us all is reason alone to get involved and sign up as a volunteer lawyer.” - Elizabeth (Beth) Bo- epple

- Working with a diversified, certified- organic farm to review and negotiate the terms of a new operating agreement when the land they leased was sold to new owners; - Addressing the intellectual property needs of an artisanal cheesemak- er seeking to protect her brand and products as she expanded into whole- sale markets; and - Filing for 501(c)(3) nonprofit status for a farmers market federation.19

Expanding the Legal Food Hub to Vermont

VLS is delighted to partner with CLF to establish a Hub in Vermont. Starting in Jan- uary 2020, the Vermont Hub will officially begin matching eligible applicants with skilled attorneys willing to provide their legal services pro bono on discrete, transactional business matters. Unlike the Hubs in other states, which CLF administers, VLS’ Center for Agriculture and Food Systems (CAFS) serves as the primary administrator of the Vermont Hub and conducts client intake (screening for both income and issue eligibility), placement, and monitoring. Some matters that come in through the Le- gal Food Hub may be placed with CAFS’ Food and Agriculture Clinic. However, we hope to place most matters with participating attorneys throughout the state. There is no obligation to take a particular number of pro bono matters; however, our hope is that participating attorneys will accept at least one each year. In Vermont, we expect many of the matters to mirror those placed through other Hubs in New England, including: - Drafting and reviewing contracts, such as an animal purchase agreement or a membership agreement for a food co- operative; - Drafting and filing articles of incorpo- ration for corporations and cooperatives; - Filing applications to obtain 501(c)(3) status with the Internal Revenue Ser- the region. As we officially launch the Ver- usda.gov/family-farms (last visited Dec. 7, 2019). mont Hub, we are seeking additional attor- 11 VERMONT AG CENSUS DATA, supra note 1, neys to join our growing network of par- at 1. 12 U.S. DEP’T OF AGRIC., NAT’L AGRIC. STATIS- ticipating Vermont firms. We are also de- TICS SERV., 2017 CENSUS OF AGRICULTURE, What’s New What’s veloping educational resources for both at- NATIONAL LEVEL DATA, TABLE 1. HISTORI- torneys and food and farm stakeholders on CAL HIGHLIGHTS: 2017 AND EARLIER CENSUS a variety of food and agriculture law top- YEARS 1. 13 VERMONT AG CENSUS DATA, supra note 1, ics, including Agriculture Law Day at VLS at 1. on May 28, 2020, co-hosted with VBA. We 14 Id. hope you will join us. 15 U.S. DEP’T OF AGRIC., NAT’L AGRIC. STATIS- ______TICS SERV., 2017 CENSUS OF AGRICULTURE, NATIONAL LEVEL DATA, TABLE 5. NET CASH Sophia Kruszewski is an Assistant Profes- FARM INCOME OF THE sor of Law and directs the Food and Agri- OPERATORS AND PRODUCERS: 2017 AND culture Clinic at Vermont Law School. For 2012. more information about the Vermont Legal 16 See Rachel Armstrong, supra note 9. 17 Food Hub, please contact us at LegalHub@ LEGAL FOOD HUB, https://www.legalfoodhub.org/ (last visited Dec. 7, 2019). vermontlaw.edu, or contact the author di- 18 LEGAL FOOD HUB, YEAR IN REVIEW: 2018, rectly at [email protected]. https://annualreport.legalfoodhub.org/ (last vis- ______ited Dec. 7, 2019). 1 Approximately half of that acreage is wood- 19 Id. land and half is cropland. U.S. DEP’T OF AGRIC., 20 THE FARMLASTS PROJECT: FARM LAND AC- NAT’L AGRIC. STATISTICS SERV., 2017 CENSUS CESS, SUCCESSION, TENURE, AND STEWARD- OF AGRICULTURE, VERMONT STATE DATA, TA- SHIP, EXECUTIVE SUMMARY AND RECOM- BLE 1. HISTORICAL HIGHLIGHTS: 2017 AND MENDATIONS FROM THE FARMLASTS PROJ- EARLIER CENSUS YEARS [Hereinafter “VER- ECT RESEARCH REPORT i (2010), http://www. MONT AG CENSUS DATA”]. uvm.edu/farmlasts/projectexecutivesummary. 2 Id.; U.S. DEP’T OF AGRIC., NAT’L AGRIC. pdf. STATISTICS SERV., NEWS RELEASE: MAPLE 21 AM. FARMLAND TRUST & LAND FOR GOOD, SYRUP PRODUCTION UP 7 PERCENT IN VER- KEEPING FARMERS ON THE LAND: NEW RE- MONT (June 12, 2019) (Vermont produced near- SEARCH UNDERSCORES NEED TO ADDRESS ly half of the country’s syrup and exceeded two FARM TRANSITION IN VERMONT 2 (January million gallons in production in 2019). 2016), http://landforgood.org/wp-content/up- 3 U.S. DEP’T OF AGRIC., NAT’L AGRIC. STA- loads/Vermont-Gaining-Insights-AFT-LFG.pdf. TISTICS SERV., NASS HIGHLIGHTS NO. 2017-6, 22 VERMONT AG CENSUS DATA, supra note 1, 2016 CERTIFIED ORGANIC SURVEY, SALES UP at 1. 23 PERCENT (October 2017). 23 NATURAL RES. CONSERVATION SERV., His- 4 U.S. DEP’T OF AGRIC., NAT’L AGRIC. STA- torically Underserved Farmers and Ranchers, TISTICS SERV., DIRECT FARM SALES OF FOOD: https://www.nrcs.usda.gov/wps/portal/nrcs/ ing spread the word about the Legal RESULTS FROM THE 2015 LOCAL FOOD MAR- main/national/people/outreach/slbfr/ (last visit- Food Hub was an easy extension for KETING PRACTICES SURVEY (December 2016). ed Dec. 7, 2019). 5 Id. 24 U.S. DEP’T OF AGRIC., NAT’L AGRIC. STATIS- me. What better way to give back to 6 VT. STAT. ANN. tit. 10 § 330(c)(1) (directing TICS SERV., 2017 CENSUS OF AGRICULTURE the community with my pro bono ser- the Vermont Farm-to-Plate Investment Program STATE PROFILE: VERMONT 2, vice than by helping farmers and food to “create a strategic plan for agricultural and https://www.nass.usda.gov/Publications/Ag- producers in need? To know you are food system development”). Census/2017/Online_Resources/County_Pro- 7 VERMONT FARM TO PLATE, 2018 ANNUAL providing needed legal services to a files/Vermont/cp99050.pdf. REPORT 2, https://www.vtfarmtoplate.com/as- 25 VERMONT AG CENSUS DATA, supra note 1, community that nourishes us all is rea- sets/resource/files/VTFarmtoPlate_AnnualRe- at Table 69. New and Beginning Producers – Se- son alone to get involved and sign up port_2018_FINAL.pdf. lected Farm Characteristics: 2017. as a volunteer lawyer. And if you don’t 8 Id. at 1. 26 NAT’L YOUNG FARMERS COAL., BUILDING 9 think you know the first thing about See Rachel Armstrong, Business as Unusu- A FUTURE WITH FARMERS II: RESULTS AND al: Building the New Food Movement with how to serve a farmer’s legal needs, RECOMMENDATIONS FROM THE NATIONAL Business Law, YALE CTR. FOR ENVTL. LAW & YOUNG FARMER SURVEY 23 sign up for one of the Legal Food POL’Y (Nov. 20, 2013), available at http://vimeo. (November 2017), https://www.youngfarmers. Hub’s CLE seminars. I look forward to com/80411482. org/wp-content/uploads/2019/03/NYFC-Re- 10 seeing you there! USDA defines a family farm as “any farm or- port-2017_LoRes_Revised.pdf. ganized as a sole proprietorship, partnership, or 27 THE FARMLASTS PROJECT, supra note 20, at family corporation” and excludes from the def- 1. Looking Ahead inition farms “organized as nonfamily corpora- 28 LOCAL FOOD MARKETING SURVEY, supra tions or cooperatives, as well as farms with hired note 4. There are currently more than 160 firms managers.” U.S. DEP’T OF AGRIC., NAT’L INST. participating in the Legal Food Hub across OF FOOD & AGRIC., Family Farms, https://nifa.

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 March 1, 2020.

36 THE VERMONT BAR JOURNAL • WINTER 2019 www.vtbar.org by Samara D. Anderson, Esq. BE WELL Is it Possible to Do Less to Achieve More?

Prioritizing Doing and didn’t have time for! Getting Things Done Clearly, my path of obsessive doing was not sustainable and only changed when I As a perfectionist and Type-A over- realized that I needed to change my cur- achiever, I find it extremely challenging to rent professional path. I desperately want- just “be.” To carve time out of my life to do ed to leave the stress. Do something else, what appears to be nothing, just doesn’t anything where I wouldn’t be so stressed make any rational sense. I still recall the and feel so out of control. first yoga class I ever attended in 2003 just after graduating from law school and start- Prioritizing Saying “No” ing my legal career while training to run and Embody “Being” the New York City marathon as my first attempt at 26.2 miles running non-stop. As It was a drastic shift to consider leaving the yoga teacher told all of us to “find our my current schedule, which started at 4:30 breath” once we found a comfortable posi- am to fit 10-mile runs in before being the tion, I could hear this rather loud voice in- first person working in the law office and side my head saying “What, I am supposed then working until I was the last person to to just sit here and find my breath? This leave around 9:00 pm, averaging about 6 is ridiculous. I have so many things to do hours of sleep every night. It was 2007 and right now. Sitting here just focusing on my I was still a stressed litigator, but now was breath seems like a massive waste of my also an injured triathlete and after trying all time. And time is money.” I left the class perception of stress differently and indi- modalities of healing, including: primary as soon as the last Om vibration ended vidual manifestation of stress can also vary care physician, physical therapist, acupunc- and vowed never to waste my time doing widely. My coping mechanisms were to try ture, chiropractor and a massage therapist, “nothing” again! to squeeze more and more out of every someone said, “Have you tried yoga?” This It was early in my litigation career and I minute, so I could achieve more so I could question immediately triggered me back to was just starting to integrate the mental- make more money and thus, be more suc- that first yoga class that I didn’t have time ity that there may never be any “free” time cessful. The only way I could do that was for and wasn’t flexible enough to do com- in my life. One of my partners had pulled to numb the stress with alcohol after in- fortably. I responded: “I haven’t wanted to me aside when I started and gave me some tense days of triathlon training and litiga- do yoga in a group class because I think it words of advice: “Now Samara, the biggest tion tasks. I actually became a triathlete as is a waste of my time, but I would be open mistake new lawyers do is not adequately a “break” from working so hard at the law to 1:1 therapeutic sessions.” And my path capturing their billable time. For example, firm. So, outwardly I appeared healthy and towards physical healing began with 1:1 if you are in the shower and you are think- happy, but inside the long-term effects of therapeutic yoga sessions, where we still ing about your legal analysis or a client’s chronic stress were wreaking havoc with focused on our breath, but now I was mov- legal issue, you need to capture that time. my health. Every 6-8 weeks I would suffer a ing in ways that brought both awareness If you are out running and outlining your horrible health setback from walking pneu- and healing to my physical body. But then legal memorandum, you need to capture monia, tonsillitis, mononucleosis and bron- I started to realize something even strang- that time. This will be the best way for you chitis. These illnesses were severe and lit- er, I felt happier and less stressed. I was to achieve the 2700-hour billable time re- erally stopped me in my tracks…despite less reactive and just a better human. Kind- quirement.” I took these words of advice my resistance to do so. I still recall having er and more compassionate to myself and to heart in a very intense way, which led to a 103-degree fever and making an error in others. This was a MAJOR shift for me! billing 3,000 hours/year for a few years in judgment by contacting a former work col- When I told my counseling therapist a row, until I started to feel the effects of league, which led to some negative super- this news, she excitedly asked me if I had BURN OUT. visor feedback and made me feel that be- ever heard of Eckhart Tolle’s book, “A New I truly believe everyone handles their ing sick was also a waste of time that I just Earth. I responded I had not, but purchased

Share Collective Wisdom Today!

www.vtbar.org THE VERMONT BAR JOURNAL • WINTER 2019 3 7 it and upon listening to it on my daily com- the time? But, after I have completed my to get both the body and the mind to slow mute my mindfulness awareness exploded. activities of doing nothing, I feel so much down, but then I started seeing the results

Be Well I started to see my existence in the world more spacious and open. I look at my tasks in my training outcomes. My body was able in an exciting and multi-dimensional way and just complete them in a timely man- to recover from harder workouts faster. I and I wanted to share that with everyone ner without any anxiety or stress. It is as wasn’t injured as much or at all. I was more around me. Also, I started to see the value though time extends and expands to allow flexible. I was able to sleep through the of just making space in my life to “Be” be- me to complete my tasks with more effi- night without my calves and arches cramp- cause that is where you can realize all of the ciency and clarity than if I hadn’t taken the ing. And I found I had more fun and was magic that is around you. In every moment. time to do less. It has been my experience more relaxed when I did my workouts and I started to yearn for a less stressful life. that the work product is of a higher quality races. Another win-win! One where I could spend more time in na- as a result of my mindfulness practice. So With my journey in mind, my advice is to ture as well as teaching, which has always it is truly a win-win: accomplish all tasks in a start small. Take 5 minutes each day to just been something I am passionate about. timely manner with less anxiety and higher “be” with no agenda or plan. Find time to So, in 2009 I left the litigation job and dove quality results! When I am under stress the take a conscious breath. One where you into aligning with my passions around prac- converse seems to occur – I NEVER have pay attention to the inhale and the exhale. ticing yoga and embodying a more mindful enough time to do what I need to accom- Just once. Even though it sounds silly. Try path. I made space for the people I cared plish and feel horrible during the entire it. Find a yoga class that isn’t described as about and activities that brought me joy. I task or activity! vigorous and try to do less than you nor- spent more time in nature. I moved to Ver- With regard to my athletic endeavors, mally do. Take time to stretch after a work- mont to teach at the law school and started the power of doing less or nothing has had out or a race. Slow down. Notice what aris- my path towards becoming a yoga teacher. a profound impact on my ability to stay in es when you shift your focus from “do- One of the largest aspects of my yoga better shape while doing less. I was initially ing.” Just observe your reactions as I did teacher training was implementing a disci- resistant to attend yoga classes titled “gen- and still do. Without judgment. Just aware- plined practice of yoga, breath control or tle,” “yin,” or “restorative” because the ness. That is the first step in cultivating your pranayama and meditation on a daily ba- descriptions didn’t involve enough vigor- self-awareness, which is so critical in mov- sis. I was forced to carve out time to just ous action. They were actually described as ing away from a stressed out human to one “be” in these activities as there is no goal slow and easy with an emphasis on either that is relaxed, happy and focused. to attain or end product to create. It was doing less or nothing at all. I observed my really hard in the beginning. I would be ly- initial cardio-obsessed reaction of “what And now, I am really pushing my own ing if I didn’t still have pangs of tension a waste of time” but then forced myself personal “Being” envelope as I close this when I tried to do less instead of attend- to grab a bolster, an excessive number of decade of mindfulness evolution with a ing to my long To Do list. When would I blankets and other props and do as little 9-day silent retreat (from December 26 – get these items done? Where would I find as possible for up to 2 hours. It wasn’t easy January 5) at the Vipassana Retreat Cen- ter in Shelburne, MA where I cannot speak, read, write or make eye contact. Then, I will be staying at the Kripalu Center in Lenox, Massachusetts for 4-days to re-enter life through a Reflect and Renew Retreat, full of yoga, meditation, nourishing food, jour- naling and integrating such an intense “Be- ing” experience into “Doing” as I plan my next year and decade! I truly believe that I could lose my mind during this intense period, which may be the point of spending that much time alone with your mind? I look forward to sharing my experience with stressed professionals and athletes in Janu- ary 2020, so stay tuned! Contact me to be included in my monthly newsletter to learn more ([email protected]). ______Samara Anderson is a Legal and Policy Advisor for the State of Vermont, Agency of Human Services, a Registered Yoga Medi- cineTM Yoga Teacher and a social entrepreneur teaching mindfulness to stressed professionals and creating a non-profit community farm in Vermont to use farm animals, nature and mindfulness to heal people. She co-chairs the VBA Lawyer Well-Be- ing Section.

38 THE VERMONT BAR JOURNAL • WINTER 2019 www.vtbar.org Executive Summary by Dan Richardson, Esq. Economic Impacts of Civil Legal Assistance Programs in Vermont

A Study Commissioned by the Vermont Programs.1 From October of 2018 through medicine, clothing for school, and reliable Bar Foundation and Funded by a Grant June of 2019, the working group met to transportation. These results are achieved from the Vermont Supreme Court compile the most recent data of each with a relatively low investment in civil legal group’s caseload, outcomes, and judg- aid services. This $11 benefit for every $1 Fall 2019 ments. From this information, Dr. Smith invested is one of the best in the nation.3 and his team were able to identify, analyze, As compared to other states, Vermont low- Presented by the Access to and quantify the value of this work. income legal services provide effective and Justice Coalition Members: efficient representation. Hon. Beth Robinson, Chair In brief, the Study found that: Eric Avildsen, Vermont Legal Aid 2. The $66.4 Million impact that low-in- David Koeninger, Vermont Legal Aid • The results of this study show that come legal service providers had in 2017 Sam Abel-Palmer, these legal service groups provide two consisted of three major components: Legal Services Vermont important benefits: a. $32.7 Million in direct dollar bene- Eileen Blackwood, • They provide direct benefits to their fits. These payments received directly Vermont Bar Association clients through greater access to the by low-income clients and other enti- Mary Ashcroft, Vermont Bar Association legal system to defend their rights ties as a result of successful legal as- Teri Corsones, Vermont Bar Association and to make meritorious claims. sistance by legal aid organizations in Erin Jacobson, Vermont Law School • They provide indirect benefits to 2017 included the following: Deborah Bailey, all Vermonters in the form of a sub- • $10.7 Million in SSI, SSDI, and oth- Vermont Bar Foundation stantial economic return to the larger Social Security benefits received Daniel Richardson, er economy. by low-income individuals and their Vermont Bar Foundation • For every $1 invested in Vermont Low- families. Income Legal Services, the State and • $17.4 Million in Medicaid- and Vermonters see a rate of return of $11, Medicare-funded reimbursements Executive Summary or a social impact return on investment received by Vermont health care of 1106%. providers. Civil legal aid organization in Vermont • In 2017, Vermont’s Low-Income Legal • $4.2 Million in child and spousal are, like many other services in the state, Services had a $66.4 Million impact on support payments to low-income organized along a variety of lines. The the Vermont economy at a cost of $6 clients of legal aid organizations. primary low-income legal service providers Million. • $0.4 Million in Veteran’s benefits to are Vermont Legal Aid, Legal Services • These impacts include: veterans and their families. Vermont, the South Royalton Legal Clinic at • $32.7 Million in new income for low- • $0.5 Million in increased wages to the Vermont Law School, and the Vermont income households immigrants due to attainment of le- Bar Association’s low and pro bono project. • $2.6 Million in cost savings (Prevent- gal permanent resident (LPR) status Together with the Vermont Bar Foundation, ing evictions, foreclosures, and do- or becoming U.S. citizens with legal which provides funding to these and other mestic violence) assistance from Vermont legal aid organizations, these groups represent the • $31.1 Million impact on local spend- organizations. best of the public service bar and contribute ing. b. $2.6 Million in cost savings. In addition hundreds of hours at low, reduced, or free • This analysis reveals that Vermont civ- to the direct dollar benefits outlined rates to ensure that the civil legal needs of il legal aid organizations are provid- above, Vermont civil legal aid orga- Vermonters are met. ing essential services that help low-in- nizations achieved the following cost These organizations along with the Ver- come residents of Vermont each year savings for clients and other stake- mont Supreme Court comprise the Access address critical legal issues directly af- holders as a result of services provided to Justice Coalition, which coordinates ef- fecting their families, homes, incomes, in 2017: forts among the members and seeks to find jobs, and access to vital services. The • $0.8 Million in preventing domes- new ways to expand access to justice. gap between the need for these ser- tic violence thereby reducing emer- The report accompanying this summary vices and the capacity of these organi- gency medical treatment and law represent the coordinated efforts of sev- zations to address them is profound.2 enforcement costs. eral individuals and groups. It began in • $1.1 Million in foreclosure avoid- the spring of 2018 when the Vermont Bar Major Findings ance representing costs that were Foundation sought a grant from the Ver- not incurred and were avoided by mont Supreme Court to study the impacts 1. Low-income Legal Services Provide an low-income homeowners, lenders, of low-income legal services on the great- Important Economic Resource at a Low neighbors, and local governments er Vermont economy. Following receipt Cost through the legal assistance proof this grant, the Foundation convened a The income generated by civil legal aid vided by the organizations in this work group comprised of representatives providers goes directly to low-income Ver- study. from the Foundation and the four prima- monters. This is money in the pockets of • $0.7 Million in preventing evictions ry legal service providers, together with individuals and families to purchase the es- thereby avoiding costs of emer- Dr. Ken Smith and the Resource for Great sentials of life. It is food for groceries, rent, gency shelters and associate social www.vtbar.org THE VERMONT BAR JOURNAL • WINTER 2019 3 9 costs of homelessness. ciations collaborate with legal aid organi- Vermont Bar Foundation are providing es- c. $31.1 Million from the economic mul- zations across the state to identify needs sential services that help thousands of low- tiplier effect of revenue brought into and to promote pro bono service to low- income residents of Vermont each year to Vermont from outside the state. A income Vermont residents. address critical legal issues directly affect- large portion of the dollars received ing their families, homes, incomes, jobs, by legal aid clients from such exter- Methodology Used in the Study and access to vital services. The gap be- nal sources as federal SSI/SSDI bene- tween the need for these services and the fits and the federal share of Medicaid The impacts reported above were esti- capacity of these organizations to address reimbursements are spent within the mated using a methodology developed them is profound. state, thereby increasing revenue for by The Resource for Great Programs over The “justice gap” represents both a chal- local businesses and creating jobs for the past two decades and applied in 12 lenge to the justice system and an unreal- working Vermonters. This boost to the states—including New York, Virginia, Penn- ized opportunity for the Vermont civil jus- Vermont economy would not have oc- sylvania, Georgia, and New Hampshire— tice community and its supporters to pro- curred without the successful legal as- encompassing more than 80 civil legal duce even more profound economic and sistance that eliminates legal barriers aid organizations. This methodology first societal benefits for low-income Vermont to low-income Vermonters’ receiving quantified the number of legal aid cas- residents and the entire community. Ev- benefits for which they are eligible un- es for which specific outcomes for clients ery additional $100,000 of funding enables der the law. were achieved during the study period, legal aid organizations to generate an ad- such as avoidance of domestic violence or ditional $1.1 Million in economic benefits. 3. Low-Income Legal Services Bring Stabil- prevention of eviction. These figures were The findings of this study have demon- ity to Vermonters. derived from case statistics and outcomes strated that additional investments aimed Economic Impacts of Civil Legal Assistance Programs in Vermont data collected by the legal aid organiza- at bridging the “justice gap” not only will Through access to services, income, pre- tions through their recordkeeping systems. help many more people, but also will have vention of homelessness, and protection The outcome figures were then multi- dramatic economic impacts that benefit all of basic rights, low-income legal services plied by estimates of the dollar benefits or Vermonters. protect those who are most vulnerable. cost savings per successful outcome to de- ______1 As these numbers show, these services rive estimates of the total impact. For ex- The Resource for Great Programs is a national research firm dedicated to providing help individuals and communities recover ample, each successful SSDI/SSI case pro- strategic support to civil justice organizations and obtain economic benefits. More im- duces an average income stream of $715 that seek to expand access to justice for low‐in- portantly, these needs prevent individuals per month for the client that lasts for an come people. Details about The Resource may and families from slipping further into pov- average of 11 years. These dollar multipli- be obtained at www.GreatPrograms.org. 2 erty and its accompanying issues. Helping ers were derived from a variety of external The Vermont Committee on Equal Access to Legal Services published a report on Vermont’s a family fight an eviction keeps them from data and evaluation results such as govern- low-income legal needs in 2001. https://www. involuntary homelessness, loss of employment databases and analyses, research pa- americanbar.org/content/dam/aba/administra- ment, and potential issues like drug use, pers and reports, and various models and tive/legal_aid_indigent_defendants/ ATJRe- and crime. Investing in this type of preven- surveys such as the Regional Input‐Output ports/ls_VT_clns_2001.pdf. A subsequent study focusing on older Vermonters was published tative program is both less expensive and Multiplier System (RIMS II) maintained by in 2010 by Vermont Legal Aid. https://www. more effective than dealing with these is- the U.S. Bureau of Economic Analysis. americanbar.org/content/dam/aba/administra- sues as they emerge. Details regarding the data sources, com- tive/legal_aid_indigent_defendants/ ATJRe- putations, and assumptions used for deriv- ports/ls_VT_Elderclns_2010.pdf. 3 Civil legal aid organizations ease the bur- ing the estimates produced by this study For a broad comparison, see the American Bar Association’s Collection of State Needs den on the Vermont court system. Legal are provided in appendices to this report, Assessments and Impact Studies, available at aid advocates enable Vermont courts to available from the Vermont Bar Foundation https://www.americanbar.org/groups/legal_ operate more efficiently and effectively by at www.vtbarfoundation.org. aid_indigent_defendants/resource_center_for_ helping self-represented litigants prepare access_to_justice/atj-commissions/atj_commis- sion_self-assessment_materials1/studies/. to navigate the courts and by hosting com- Conclusion munity legal education events to inform residents how the legal process works. This study has revealed that the civil legal aid organizations funded in part by The 4. Access to Justice is more than numbers.

It is about meaningful access to the legal system to resolve disputes, obtain benefits or services owed, or defend rights and pro- cesses. Yet this mission also produces economic impacts that ripple outward to benefit many other segments of society. Making local government officials, business people, bar leaders, funders, and other stakeholders aware of the scope and impact of these outcomes is an important opportunity that this report seeks to address. The substance of this report reflects the significant efforts of Vermont private lawyers to support civil legal aid efforts and to narrow the justice gap. The Vermont Bar Association and local county bar asso-

40 THE VERMONT BAR JOURNAL • WINTER 2019 www.vtbar.org by Mark C.S. Bassingthwaighte, Esq. The Ins and Outs of Tail Coverage

To this day I still get the occasional call maining limits of the final policy that was existing policy will continue to be in force from an attorney wanting to know how to in force at retirement and this may not be post attorney departure. This isn’t as much go about purchasing a tail policy and my re- enough coverage. of a problem at it might seem in that the sponse is always the same. I need to make By way of example, if you were to re- departing attorney will be able to rely on sure that the caller understands there really duce your coverage limits from one million former attorney language under the defi- is no such thing as a tail “policy.” Clarifica- per occurrence/three million aggregate to nition of insured. However, because the tion on this point is important because con- five hundred thousand per occurrence/five definition of insured varies among insur- fusion over what a tail is and isn’t can have hundred thousand aggregate during the ers, you should discuss this issue with your serious repercussions down the road. To last year or two of active practice in order firm’s malpractice insurance representative make sure you don’t end up running with to save a little money, you will only have so options can be identified and reviewed any similar misperceptions, here’s what you coverage of five hundred thousand per oc- well in advance of any planned departure. need to know. currence/five hundred thousand aggregate That said, I can share that under two ALPS An attorney leaving the practice of law available to you for all of your retirement policies and as long as certain conditions can’t purchase a malpractice insurance pol- years assuming there was no loss payout are met, we provide some of the most icy because he or she will no longer be ac- under that final policy. In terms of peace comprehensive tail coverage options in the tively practicing law. There simply is no of mind, for many that would be an insuf- industry, to include free individual EREs in practice to insure. This is why an attorney ficient amount of coverage. Therefore, if event of retirement, death, disability or a can’t buy a tail “policy.” What you are ac- you anticipate wanting those higher limits call to active military service. tually purchasing when you buy a tail is an of one million/three million during your re- extended reporting endorsement (ERE). tirement years, keep those limits in place Be aware that the period in which one This endorsement attaches to the final pol- heading into retirement. can obtain an ERE can be quite limited. icy that is in force at the time of your de- Unfortunately, while many attorneys Most policies provide a 30-day or short- parture from the practice of law. In short, hope to obtain an ERE at the end of their er window that will start to run on the ef- purchasing an ERE, which is commonly re- career, the availability of tail coverage isn’t fective date of the expiration or cancella- ferred to as tail coverage, provides an at- necessarily a given. For example, most in- tion of the final policy. There are even a few torney the right to report claims to the insurers prohibit any insured from purchas- very restrictive policies in the market that surer after the final policy has expired or ing tail coverage when an existing policy require the insured to exercise the option been cancelled. is canceled for nonpayment of premium to purchase an ERE on the date of cancel- Again, under most ERE provisions, the or if the insured failed to reimburse the in- lation or expiration. Given this, you should purchase of this endorsement is not one of surance company for deductible amounts review relevant policy language well in ad- additional coverage or of a separate and paid on prior claims. An attorney’s failure vance of contemplating departing the pro- distinct policy. The significance of this is to comply with the terms and conditions of fession as the opportunity to purchase an that under an ERE there would be no cov- the policy; the suspension, revocation, or ERE is one you can’t afford to miss. erage available for any act, error, or omis- surrender of an insured’s license to practice The duration of tail coverage or more ac- sion that occurs during the time the ERE law; and an insured’s decision to cancel the curately the length of time under which a is in effect. So for example, if a claim were policy or allow coverage to lapse may also claim may be reported under an ERE varies to arise several years post retirement out create an availability problem. depending upon what is purchased. Cover- of work done in retirement as a favor for a An attorney’s practice setting is also rele- age is generally available with a fixed or re- friend, there would be no coverage for that vant. Particularly for retiring solo practitio- newable one, two, three, four, or five-year claim under the ERE. This is why you hear ners, insurers frequently provide tail cover- reporting periods or with an unlimited re- risk managers say things like never write a age at no additional cost to the insured if porting period. If available to you, the un- will for someone while in retirement. I know the attorney has been continuously insured limited reporting period would be the most it can be tempting, but don’t practice a lit- with the same insurer for a stated number desirable, particularly for practitioners who tle law on the side in retirement because of years. Given that tail coverage can be have written wills during their later years of your tail coverage will not cover any of that quite expensive, shopping around for the practice. work. cheapest insurance rates in the later years The premium charge for an ERE is usually Another often misunderstood aspect of of one’s practice isn’t a good idea as the specified in the policy. Often the cost is a tail coverage arises when an attorney semi- opportunity to obtain a free tail could be fixed percentage of the final policy’s premi- retires and makes a decision to purchase a lost. Review policy provisions or talk with um and can range from 100% to 300% de- policy with reduced limits in order to save your carrier well in advance of contemplat- pending on the duration of the purchased a little money during the last few years of ing retirement in order not to unintention- ERE. practice. The problem with this decision is ally lose this valuable benefit. Given all of the above, if the ERE provi- that insurance companies will not allow at- The situation for an attorney who has sions outlined in your policy language have torneys to bump up policy limits on the eve been in practice at a multi-member firm is a never been reviewed, now’s the time. One of a full retirement, again, because no new bit different. Here, when an attorney wish- final thought, be aware that if the unex- policy will be issued. For many attorneys, es to retire, leave the profession, or is con- pected ever happens such as the sudden this means the premium savings that came sidering a lateral move and worried about and untimely death of an attorney still in with the reduced limits on the final policy the stability of the about-to-be-departed practice, know that tail coverage can be or two will turn out not to have been worth firm, some insurance companies will not of- obtained in the name of the deceased at- it and here’s why. All claims reported under fer an opportunity to purchase an ERE due torney’s estate if timely pursued in accor- the ERE will be subject to the available re- to policy provisions. The reason is the firm’s dance with policy provisions. This is why www.vtbar.org THE VERMONT BAR JOURNAL • WINTER 2019 4 1 even attorneys who are not nearing retire- Disclaimer: ALPS presents this publication not be relied upon as a substitute for such ment should still have some basic aware- or document as general information only. legal or other professional advice or servic- ness of ERE policy provisions because one While ALPS strives to provide accurate infor- es. ALPS warns that this publication or docu- just never knows. mation, ALPS expressly disclaims any guar- ment should not be used or relied upon as a ______antee or assurance that this publication or basis for any decision or action that may af- ALPS Risk Manager Mark Bassingth- document is complete or accurate. There- fect your professional practice, business or waighte, Esq. has conducted over 1,000 law fore, in providing this publication or docu- personal affairs. Instead, ALPS highly recom- firm risk management assessment visits, pre- ment, ALPS expressly disclaims any warranty mends that you consult an attorney or oth- sented numerous continuing legal education of any kind, whether express or implied, in- er professional before making any decisions seminars throughout the United States, and cluding, but not limited to, the implied war- regarding the subject matter of this publi- written extensively on risk management and ranties of merchantability, fitness for a par- cation or document. ALPS Corporation and The Ins and Outs of Tail Coverage The Ins and Outs of Tail technology. Check out Mark’s recent semi- ticular purpose, or non-infringement. its subsidiaries, affiliates and related entities nars to assist you with your solo practice by Further, by making this publication or shall not be responsible for any loss or dam- visiting our on-demand CLE library at alps. document available, ALPS is not rendering age sustained by any person who uses or re- inreachce.com. Mark can be contacted at: legal or other professional advice or servic- lies upon the publication or document pre- [email protected]. es and this publication or document should sented herein.

Upcoming LIVE VBA Programs

YLD Mid-Winter Thaw January 17-18th at the Hotel Omni Mont-Royal

63rd Annual Mid-Year Meeting March 26-27th at the Hilton Burlington Implicit bias, trial preparation, ECF, Employment law, environmental law, admin law, ethics & more!

VBA Tech Show May 14th at the Hilton Burlington

Elder Law Day May 19th at the Delta Hotels Marriott, S. Burlington

VBA and VLS Agriculture Law Day May 28th at the Vermont Law School, S. Royalton

Collaborative Law Day June 19-20th at the Capitol Plaza, Montpelier

And don’t forget Procrastinators’ Day will be in June as always!

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

2019/2020 VBA Section and Division Chairs

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

42 THE VERMONT BAR JOURNAL • WINTER 2019 www.vtbar.org by James W. Spink, Esq. Civil Case Mediation: A Practical Guide

In this brief article, I hope to convey of trial - are either unprepared or not mo- helpful in providing relevant information to some practical advice that may prove use- tivated or both. Whether the mediation (or the people you are trying to get positioned ful to you whether you represent the plain- ENE) comes “early” or “late”, you should to pay your client. With rare exceptions tiff or a defendant in a civil case. My inten- resist mediating your case until you are sat- (and growing ever more rare), the person tion, at least, is to discuss what, in my view, isfied that you, your client and the oppo- offering money to you must answer to oth- works best for your clients in preparing for sition team are prepared and willing and ers either (1) immediately (often to obtain and participating in a civil case mediation.1 able to meaningfully discuss resolving the more authority) or (2) later at intra-compa- By continuing to practice law - by remain- case. ny audit. This often layered oversight is an ing an active trial lawyer - I have been for- unfortunate reality today and cannot be ig- tunate to remain familiar with the “dance” II. Preparing For The Mediation nored. from the litigator’s perspective and, as we A lawyer who is properly prepared for Carriers (and some, typically larger, self- all know, it can be a roller-coaster of antici- mediation has, at a minimum: insureds) often make decisions at what pation and anxiety as we negotiate toward • ensured the right people will be pres- might be termed institutional speed and/ a resolution. If we lawyers feel some anxi- ent at mediation in person; or by committee. Presenting new informa- ety, and we do, imagine what our clients • come to fully understand the existence tion, documents or numbers, however ac- are going through. A mediation is a diffi- of, limits of and any controversy con- curate, in support of a claim will not lead cult experience for the lay person, particu- cerning insurance coverage for every to an increased offer if the carrier gets this larly in a case involving serious injury or loss defendant; information at or just before the mediation. such as a wrongful death case. • KEY: managed her client’s expecta- There really is no excuse for going into Across several thousand cases, I’ve tions; mediation without knowing the existence gained a sense of what methods in medi- • done all that can be done before me- (and limits) of any potentially available in- ation work or don’t work; what approach- diation with respect to any actual surance and whether or not there are any es aid your client’s cause or may prove or anticipated third party claimants/ coverage issues or whether or not a reser- counter-productive. Much of what follows claims (WC, any lienholder claim, CMS vation of rights agreement is in place. Simi- is simple common sense (the trial lawyer’s or MSA requirements, etc.); larly, you need to know the precise amounts most important tool) although several ob- • anticipated and prepared to meet the of all subrogation, med-pay, worker com- servations may surprise you or seem coun- opponent’s arguments; pensation and any other claims or liens. ter-intuitive. • prepared written and oral presenta- More than that, you have hopefully either I always begin a mediation by observ- tions that are brief and tailored to come to an agreement with all such claiming, among other things, that I take very the specific case (including a decision ants or have made arrangements to con- seriously my obligation to be strictly neu- whether or not [and how] to have the duct contemporaneous negotiations with tral; neither for nor against any party. That client speak in genenal session); such lien-holders during the mediation. In principle applies with equal force here. My • counseled her client to listen, keep an some cases, you should insist that a rep- comments apply to “both sides” except open mind and be prepared to com- resentative of the third party claimant be where context dictates otherwise. promise if and when appropriate, and; present at mediation.2 Finally, it is no lon- • given her client a short course in how a ger acceptable to mediate a case without I. When To Mediate? mediation proceeds from widely diver- knowing your Medicare-related obligations gent (existing and future). Do you have the CMS In a recent year, the United States Dis- • figures to a narrower range to ultimate letter and have you discussed any possi- trict Court’s annual report for the ENE pro- resolution (or not). ble reductions? Is an MSA required? What gram (in Vermont) revealed that only about does this specific insurance company de- one-third of civil cases resulted in full set- This list applies to all the lawyers — for fending this defendant require in terms of tlement at the ENE session. Anecdotally, both plaintiffs and defendants alike. Be- protecting the government’s interest? we all have a sense that a comfortable ma- yond such generalities though are some I think the most important aspect of pre- jority (or better) of civil cases settle at me- key considerations specific to (1) the plain- paring your case for mediation (and be- diation as a general rule. So, why the low tiff’s preparation and (2) the defendant’s yond) is managing your client’s expecta- success rate? approach. tions. Candidly, there are likely multiple fac- Litigation savvy corporate representa- tors involved and I don’t have an answer. A. Plaintiff’s Counsel tives, attorneys and insurance representa- That said, one can ask: are federal (ENE) Experience teaches that a fully-informed tives don’t need a short course on how a cases mediating “too early”? Perhaps, but defendant (read: insurance company typi- mediation proceeds but the lay person (de- even pre-suit civil disputes often result in cally) may, right or wrong, choose not to fendant and plaintiff alike) is entitled to a settlement without the benefit of any dis- offer enough to settle a case but...a poor- preview of just what is about to happen. It covery at all. I think the answer may, in part, ly-informed carrier will never pay you a is important to discuss the process: depend upon whether all parties are both proper amount. You cannot control how • opening session (or not...is there a rea- prepared to negotiate and truly motivated hard-working, experienced or skillful the son to skip the opening exchange?); to actually settle when they sit down across defense representatives you draw in your • attendance (who will be present and the table from one another. case may be but you can ensure that you who will not be present and why); Sometimes, both parties (it must be are not the reason for any failure to make a • confidentiality and private caucus; both) are appropriately prepared and moti- reasonable offer. In other words, in the run- • the mediator’s role and methods; vated even before suit is filed. Sometimes, up to mediation, while being careful not to • opening demand(s) and offer(s); what however, one or several parties - on the eve “show weakness” or sacrifice principal, be to expect and how not to be “put off’ www.vtbar.org THE VERMONT BAR JOURNAL • WINTER 2019 43 by numbers; Carriers really don’t like optimistic de- fer and agree that the defendant not be re- • the three components to settlement fense counsel to turn pessimistic at or just quired to attend. Absent such agreement, (lien, fee and net...and what, if any- before mediation (or at or before trial for counsel should ask the court for permission thing, may be taxable); that matter). Reserves must be set and are to excuse the defendant as the rule, by its • the problem of “friends and family” sometimes set, in part, based upon out- express language, requires. and the pitfall of “personal needs anal- side counsel’s advice. At a mediation, it The ENE rule in federal court permits the

Civil Case Mediation ysis.” is a problem for everyone involved in the defendant to remain at home in those cas- process, including the carrier representa- es where the exclusive settlement author- By “personal needs analysis,” I simply tive, in terms of getting the case settled if, ity is possessed by the insurance compa- mean that sometimes a plaintiff will ap- prior to the mediation, a too rosy analysis ny. However, “settlement authority” is de- proach his case by focusing upon what he led to the setting of a too low reserve on fined to mean the individual attending the “needs” to take home. Rather than focus- this file. In such cases, the mediator’s hands session for the carrier has “…control of the ing upon what a jury will likely do (after be- can be tied because the carrier representa- full financial settlement resources involved ing instructed by the judge about the ele- tive’s hands are tied. Do not expect media- in the case, including insurance proceeds.” ments of damages), some plaintiffs will be tor persuasion to move a defendant from In practice, what does this mean? unable to let go of their firmly entrenched $X to $2X at or during mediation. It is one If the defendant is a municipal corpo- sense of what he or she “needs” to come thing to move a defending party from “top ration, it is not practicable to require the away with in settlement. In effect, such dollar” to 10% or 20% above “top dollar” presence of a person or persons having plaintiffs have added a fourth component but it is another thing entirely to attempt such full authority sine the Board of Trust- to where the settlement dollars will go. It is to persuade a defending party to increase ees or a quorum thereof would have to at- not just lien, fee and net but (1) lien; (2) fee; a so-called “top dollar” figure by 50% or tend (assuming the public notice require- (3) what I need to pay off loans from family more. Increasingly, I am seeing defendants ments could somehow be met before dis- and friends; to get out of debt; etc. and (4) with a very firm sense of what they will and cussion and decision are made in any case a net take-home after I’m out of debt. On will not pay at mediation when they walk which is improbable). occasion, such needs or expenses may be in the door. If the defendant is a corporation or insur- a legitimate part of the damages presenta- In other words, in the run-up to media- ance company, how does one send to me- tion to the fact-finder. At other times, such tion, defense counsel, of course, needs to diation a person having such comprehen- debts or financial needs, though very real, offer a detailed, thorough and, above all, sive authority to settle? If the carrier acts are not part of the case; are not evidence accurate and realistic assessment of risk so by committee (as, for example, is often or and won’t be heard by or awarded by the that the carrier understands the insured’s perhaps always the case with medical mal- jury. Nevertheless, I have mediated quite risks in the event of a verdict as well as its practice insurers), who must attend the me- a few cases where a plaintiff has rejected own risks. I should add that during the mediation? a reasonable figure because it fell short of diation itself, in private caucus, it is fine to Is it enough to send: meeting his needs to get out of debt, for reiterate your side’s strengths but, in my • a local third party administrator whom example, or to make a down payment on a view, private caucus is the time and place some would accuse of serving merely home. I stress the need to be sure your cli- to ensure that your client (whichever side as a “warm body”? ent knows what a jury can and cannot do; you are on) really understands the nega- • an employee representative of the in- what evidence will and will not be admit- tive aspects of her case so that her deci- volved insurer who has a certain lev- ted on such points. It may seem an obvi- sion making is truly well informed. I too of- el of authority but must consult others ous point to the experienced litigator but ten see counsel in private caucus continue at the local, regional or home office of I have seen too many instances of counsel to advocate as if a jury were sitting in the his employer before exceeding such and client at odds in private caucus on the room when it would be more productive authority? issue of what a jury has the power to hear to discuss risk. Once your client knows you • the regional claims manager? and award. are prepared to try the case and fully able • the national claims manager? As to “family and friends,” we all know to do so and after you have insured that I do not have an answer. The rules typ- the risk of a client being told by brothers your client is well aware of the strengths of ically require a person to attend who has and sisters and uncles and aunts what his her case, be sure to make sure she under- “settlement authority”. The federal rule re- lawsuit is worth. stands every risk she faces, from the eco- quires the attendance of a person who con- nomic costs of trial (overt and covert) to trols the “full financial settlement resourc- B. Defense Counsel the emotional cost to the merits. es involved in the case…” In practice, how In your jurisdiction, do most trial judges One of the most active debates in the does this play out and what should you do permit plaintiff to prove the “retail” value field of mediation is the subject of partic- to increase the chances of having a mean- of medical expenses in a personal injury ipation: who must attend the mediation ingful mediation? case? Defendants will argue that plaintiffs session? We need to maintain a lively de- I think, in practice, it is best to pay atten- should be restricted to proving only the bate on the topic because, candidly, it does tion to this important concern before ev- amount of medical expenses actually paid not admit of any easy answers. As defense ery mediation. If you represent the plain- rather than the face amount of the medical counsel, one must be aware of the state tiff, you want to know who is attending and bills. In Vermont, the weight of authority fa- and federal rules on point. Must the named roughly what rung on the ladder they stand vors the plaintiff being permitted to prove individual defendant be present where the on; you will want some assurances that this up the “retail” value of those bills, without matter is fully covered by available insur- person has authority and access to some- regard to the fact that nobody was charged ance and the insured is not at any financial one with higher authority should that be- that full amount of those bills. It is impor- risk? Some feel the defendant’s presence come necessary. Insisting upon the pres- tant to know how the issue is handled in at mediation is required. That said, in prac- ence of a VP of claims for a slip and fall your jurisdiction. tice, the named defendant is usually absent case involving $15,000 in medical bills and As mentioned above, whoever is mak- and that normally is no obstacle to mean- a good post-surgical recovery is not likely ing decisions for the defendant(s) must be ingful and successful negotiations. In prac- necessary and may be counter-productive both well-informed and timely informed. tice, I believe counsel should and do con- to getting the result you seek for your cli-

44 THE VERMONT BAR JOURNAL • WINTER 2019 www.vtbar.org ent. That said, you have the right to insist personally observing a wound or in- ward to get into or near to the “ball- Civil Case Mediation upon someone possessing real authority to jured limb – and the value has gone up park;” be present per the rule. Bring up the issue considerably as a result). 5. It may cause your plaintiff to cry foul: beforehand rather than wait to find that no “I’ve come down $400,000 and they’ve one with authority will be coming. I think it is best to avoid: only gone up $40,000 in the last two If you represent the defendant, it is best • an over-long presentation; hours; this is an insult.” to get an agreement that your client need • video unless it is brief, “clean,” helpful not be present at mediation in the ap- and presented without technical delay Starting too low is a problem too. You propriate case because plaintiff’s counsel or flaw; run the risk of leaving yourself and your agrees it is unnecessary or might prove • emotion unless it is a genuinely emo- client little or no room to move. It rarely counter-productive or inflammatory. If tional case, objectively speaking; helps to present an opening figure accom- there is disagreement concerning partici- • apology, unless it is appropriate and panied by a speech that there is little room pation and you cannot reach consensus, entirely genuine (if so, an apology can to move since few will believe that state- seek the court’s advice or request that your be the most important part of a medi- ment however true it may be. client be excused or that a particular rep- ation); Often, clients (on both sides) will ask: resentative be permitted to attend (per- • the “in your face” presentation. If you “Why can’t I just tell them the most I’ll [pay] haps with someone higher up on the lad- are in the driver’s seat on any issue, [take]?!!” Well, one could do that but it is der available or required to also participate point it out but only point it out. Do- not going to be believed. Rather, the op- by phone). Communicate on this point with ing more than that (saber-rattling) will ponent will nearly always believe that if the opposing counsel. If you don’t, you run the invariably be counter-productive. Be party will pay/take that amount, that party risk of motion practice (and the Court’s ire) firm and be courteous; they go hand in will pay a little more or take a little less. In seeking to have you pay the considerable hand; other words, as frustrating as it can be to expenses your opponent incurred before • confusing your mediation presenta- be the lay person, it pays to “dance” and and at mediation for what turned out to be tion with your opening statement or let the process unfold as it will. Oftentimes, a non-event.3 closing argument. The audiences are mediations are successful yet sometimes Finally, please note that, in Vermont fed- entirely different. Your presentations they are not. Sometimes, the first session eral court, the parties cannot simply agree should be entirely different. An open- is a prelude to a second session. On oc- that a person with settlement authority ing statement, in length and content, casion, the process teaches us what else participate remotely. A motion is required. is designed for a lay audience. If you has to happen before the conversation can represent a plaintiff, please remember again be taken up at a future session. Be III. Presentation at the Mediation that the insurance person across the prepared and be patient. Good luck with table is nothing like a juror. your case. I am glad to have this opportunity to en- • insulting your opponent. For your cli- ______courage everyone to make only a brief pre- ent’s sake, never insult, by word or fa- James Spink is a trial lawyer with a busy sentation at opening session of most me- cial expression, your opposing counsel mediation practice. He is a Fellow of the diations. Making a long presentation (and or party or party representative. American College of Trial Lawyers. He is a using video) should be reserved for the member of the National Association of Dis- rare case indeed. Even high value cases Briefly, in conclusion, a word about of- tinguished Neutrals. are best handled, in my view, by making a fers and demands. Unless the defendant ______1 relatively brief presentation. Again, plain- is pursuing a counter-claim, the defense al- My experience is limited to civil cases for the most part. tiffs should share mediation (written) state- ways starts from the same number- zero. 2 For example, you should have present at me- ments early on to give the carrier/defen- The plaintiff is at liberty to start wherever diation a decision-maker for the worker compen- dant an opportunity to process that infor- the plaintiff chooses to start. With this free- sation carrier (which may be at risk for ongoing mation. Once that has been accomplished, dom comes responsibility though. It is an or future payment of benefits to the claimant) in any significant third-party tort case where the there is no reason to go over the same in- art to determine a starting demand that compensation carrier, in effect, is a co-plaintiff formation again at opening session. is not too high yet not too low; a demand and may be looking to close its file. I think it is best to make a brief state- that indicates this is a case having a sub- 3 In one case I failed to resolve as mediator, ment: stantial value yet we recognize this is a ne- post-mediation motion practice led to an angry • to highlight the strengths of your case; gotiation process and we’ll have to come admonition from the bench concerning the failure of a particular insurance professional to at- • to enhance your credibility by ac- down. Starting “too high” presents several tend an ENE after being told to attend (with a knowledging any obvious strength of problems: hefty price tag to reimburse opposing counsel the opponent’s case (“We realize we for their time and expenses). have an issue with comparative negli- 1. It will be viewed as stratospheric and a gence but…”); “non-starter;” • to demonstrate readiness and con- 2. It will require the mediator to talk the viction (while remaining cordial at all defendant into “ignoring” that num- times); ber and putting something on the ta- • and to definitely give the plaintiff an ble to get things going (because plain- opportunity to speak (by narrative or tiff will rightly not give a lower figure in answer to specific questions you without hearing an offer: “We will not put to her) particularly in those cases bid against ourselves”); where the decision-maker (the insur- 3. It will delay arriving at that point in the ance representative) has never met the mediation where both parties will get plaintiff. (I have witnessed a number of realistic and start presenting some ac- occasions where the plaintiff makes a tual risk to the opponent so that the very good impression on the payor – work can finally begin; meeting plaintiff for the first time or 4. It may require bigger moves down- www.vtbar.org THE VERMONT BAR JOURNAL • WINTER 2019 45 by Mary Ashcroft, Esq. Pro Bono Award Winner Anne Day, Esq.

Attorney Anne W. Day received the VBA’s periences,” she said. Serving on a board ed. “You have to learn how to deliver bad Pro Bono Award in 2019 for her work with is good for lawyers, too. Day remembers news to someone who is emotionally frag- the Low-Income Taxpayer Clinic. Vermont reading an article about the law being the ile. You have to say, ‘you can’t do X, but we Legal Aid’s Sandra Paritz nominated Day, loneliest profession—and she agrees. “We can get to you Y, which is pretty close,’” she noting that in 2018 alone, Attorney Day had work so much alone, at our desks, writing, explained. While this was client work that donated 254 pro bono hours. Paritz wrote: researching, drafting—anything that can Anne had not done, she got a lot of support “Anne’s expertise, hard work, and commit- get us out into the community and meeting from the non-tax lawyers within Legal Aid. ment to providing pro bono assistance to with others can help ground us.” Even with these challenges, or maybe low income taxpayers in Vermont has im- Day started looking around for projects because of them, Attorney Anne Day does proved the lives of many low-income Ver- that needed volunteers and could use her not hesitate to recommend pro bono work monters facing complicated tax disputes legal skills. “When you’re licensed as a law- for younger lawyers. “The work is imme- with the IRS.” yer, the one thing you can give that others diately rewarding. Even if you are working can’t is volunteer legal service.” Her search on a small issue, you get immediate posi- There is a continent of difference be- led her to VITA--Vermont Income Tax Assis- tive feedback,” she said. “You can get fab- tween water rights law in the western states tance--a program established to assist low- ulous experience—doing depositions, ap- and pro bono tax clinics in the Connecticut er income Vermonters and the elderly with pearing in court or in front of an agen- River Valley. Pro Bono Emeritus attorney tax preparation. Free training for volunteers cy, meeting and working with client—all Anne Day didn’t have a problem bridging is provided by the IRS and the Vermont De- things that you might not get for a cou- those differences. partment of Taxes, and Day signed up. “I ple of years in a large firm,” she noted. Mixing interests and careers is not new did our family tax returns, so this was a logi- “You will also say to yourself ‘now I remem- to Day, who enjoys art, political activism, cal move,” she noted. After the training and ber why I wanted to be a lawyer.’” community service and the law. She earned passing a test, Day signed up for a 3-5 hour Anne Day’s work with the Low-Income her undergraduate degree in studio art and shift one day a week preparing tax returns Tax Clinic and VITA ended in August of English at Williams College, then spent for low income Vermonters. 2019 when she turned her attention to as- the next 6 years working on political cam- It wasn’t long before VITA folks noticed sisting an elderly relative. Attorney Anne paigns—including the Dukakis and Bill Clin- that Anne Day was a skilled attorney, and Day will maintain her pro bono emeritus li- ton presidential campaigns—before attend- urged her to be in touch with lawyer Chris- censing status so that she may continue her ing Boston University School of Law. She tine Speidel with Vermont Legal Aid’s Low- pro bono work. This licensing category is worked as an environmental regulations Income Taxpayer Clinic. Day’s legal services not limited to older or retired attorneys— lawyer in Sacramento, then as attorney with were urgently needed. it is available to any attorney who is taking the City of Houston, where her practice con- The Low-Income Taxpayer Clinic is fund- a break from practicing law for remunera- tinued in regulatory work and water law— ed with a grant from the IRS to provide legal tion. Day sees emeritus licensing status as wastewater, water production, brown fields. assistance to clients in a dispute with the IRS especially useful for younger lawyers. “This Given the geographic area, Day ruefully ob- about an audit, tax debt or lien. Although it is something a new attorney can do,” she served that there was a lot of brownfield seems counterintuitive, this IRS sponsorship said, noting that a lawyer can get mentoring work. When her husband was hired at Dart- makes good sense both for the IRS and the and in-house teaching while doing useful mouth College, she headed east with him. taxpayers it serves. Lawyers like Anne Day work for clients of a legal services organiza- After a brief stint with a Vermont law firm, make sure taxpayers receive the credits to tion. And the work can make a profound dif- Anne Day discovered that litigation was not which they are entitled, that errors are cor- ference in the life of a low-income person. a good fit for her and she left law practice to rected and liens released. The end result— To illustrate her point, Day told the sto- concentrate her efforts on community ser- the IRS spends less of its time going after ry of a woman she helped at the tax clinic. vice. taxpayers who have made a simple mistake. The client was homeless, couch-surfing and Anne Day volunteered at her son’s school Anne found that taxpayer clients often fell eating at food banks. She had no money, and she served for 5 years on four local into two categories. One group were indi- and was devastated when the IRS got her school boards in the Norwich area, chair- viduals who lacked the skills to complete tax tax assessment completely wrong, claiming ing three of them. She was also a member returns or manage retirement assets. She she owed $75. Anne filed a 12-page analysis of her local library board. Her legal training remembered one individual who cashed in and defeated the claim. The client was enor- was helpful in all of these service activities. his IRA but didn’t have any tax withheld to mously relieved and grateful. “$75 was a “You can spot issues, frame questions, and cover the tax hit. The amount owed to the big deal to her,” Day remembered. “These suggest ‘I think we need a lawyer for this,’” IRS was compounded when the taxpayer re- people are invisible,” Attorney Day recalled. Day said. She found real similarities between ceived an inheritance and then fell victim to “You can make a huge impact in their lives two jobs half a continent apart. When she financial exploitation. Anne helped untan- with a relatively small amount of tax money was with the City of Houston, Attorney Day gle the resulting tax snarl, and kept the tax- saved or refunded to them.” While Attor- handled a $2.1 billion capital water project, payer’s assets from being seized by the IRS. ney Day’s work at the clinic has ended, she dealing with contractors, construction con- A second group of taxpayers often seen remains open to new pro bono opportuni- tracts and engineers. When she ended up by Anne and others at the Tax clinic are ties. Maybe it’s even time to work on anoth- on the library’s building and grounds com- people with significant mental health issues. er presidential campaign, she mused. mittee, the work was similar, albeit with a Anne struggled with how to represent them ______smaller price tag. when they had difficulty processing the in- Mary Ashcroft, Esq. is the legal access “There is something unique that lawyers formation she gave them and even more coordinator for the VBA. can bring through our training and other ex- difficulty adhering to the advice she provid-

46 THE VERMONT BAR JOURNAL • WINTER 2019 www.vtbar.org by Mary Ashcroft, Esq. Pro Bono Award Winner Ian Carleton, Esq.

Burlington Attorney Ian Carleton weaves ga’s wife’s murder. The testing excluded Carleton’s work for Grega encompassed a variety of pro bono and low bono into his Grega as the source of the most significant 10 years and four different proceedings: law practice. He credits his own personal DNA sample. Grega was released from the federal habeas corpus matter, the peti- interest and his supportive law firm for the prison on August 22, 2012. With Carleton tion for DNA testing, the failed re-prosecu- rich legal tapestry that results. still by his side, Grega readied for re-trial. tion case and the post-exoneration civil ac- A Boston native, Ian Carleton moved as a On August 21, 2013, a day short of a year tion. His compensation was a combination child with his family into the changing Ver- from his release from prison, the state dis- of CJA reduced fee payments--“I burned mont landscape of the 1970s. He attend- missed all charges. through the CJA cap pretty quickly,”--pay- ed Columbia College to obtain a degree By then, Vermont had adopted the In- ments from Grega’s family who took out a in comparative literature, then earned his nocence Protection Act to provide com- mortgage on their home, and hundreds of JD at Yale. Carleton started to pursue a pensation for those incarcerated after be- hours of pro bono time. He ended up with PhD in literature at Yale, but changed his ing wrongfully convicted of a crime. (13 some compensation on a contingent fee mind. Two motivators drove this decision: VSA §5574). On behalf of Grega, Carleton basis from the wrongful incarceration, but he wanted to return to Vermont “no matter filed a lawsuit to win compensation for the donated a portion of his fee to New Eng- what,” and, although he loved language, years Grega had spent in prison. Tragically, land Innocence Project; he had partnered he wanted to “use it to help others rath- his client was killed in a car accident while with a pro bono team from Goodwin Proc- er to think deep thoughts” in an academic this civil action was pending. Ultimately, tor under the NEIP umbrella. setting. the state of Vermont paid $1.55 million to Judge Nancy Waples nominated Car- Opportunities opened up for the bright settle Grega’s claims against the state. His leton for the VBA’s Pro Bono Award. She young attorney. Attorney Carleton clerked attorney regrets that Grega did not live to had known him since their paths over- for federal judge William Sessions from experience the sense of justice. Carleton lapped when she was a US Attorney, and 1999 to 2000, then worked as an associ- had strong praise for his client. “Over the again when they were at Hoff Curtis. Judge ate for Hoff Curtis in Burlington. Carleton 17 years 8 months he was imprisoned for a Waples recognized Carlteon’s work as a joined Sheehey Furlong and Behm in 2003 crime he did not commit, John helped lit- Criminal Justice Act (CJA) Panel attorney where he is now a partner. erally hundreds of inmates organize their since 2000. “Ian is one of those rare attor- Carleton is a litigator. He handles com- thoughts, conduct legal research, and write neys who continued pro bono representa- plex litigation in federal and state civil and coherent pro se pleadings. He was a smart tion of his clients in a variety of legal mat- criminal courts, with a concentration on man and a good writer,” said Carleton, ters long after his CJA assignment was medical and legal malpractice and on intel- who added “To this day I don’t know how completed,” she wrote. She highlighted lectual property disputes. But perhaps his he channeled his energy in that direction not only Carleton’s work in the Grega case, most compelling case involved his work to rather than becoming bitter given his per- but also as guardian ad litem for children in exonerate John Grega. sonal situation.” Vermont Family Division, noting that Car- Grega was convicted in 1995 of killing his wife while they were vacationing with their young son in Dover, Vermont. Grega was convicted entirely on circumstantial evidence—no witnesses and no physical evi- dences were produced at trial. He received a life sentence without possibility of parole. Carleton was first contacted about this case in 2004 by the US District Court in Ver- mont. Would he agree to be appointed to assist a pro se litigant, John Grega, on a recently filed habeas corpus petition? Car- leton’s answer was yes. Within a few days, Carleton received a call “out of the blue” from Grega’s mother. “My son is innocent,” she told the young attorney. “I’ll send you the trial transcript, and when you read it you will agree.” Carleton read the transcript, and he did agree. In his quest for the habeas corpus writ, the case ping-ponged from US Dis- trict Court in Vermont to the Second Circuit Court of Appeals twice, and to and from the Supreme Court in a failed attempt to win cert. This effectively ended the habeas pursuit in 2008. In 2009, Attorney Carleton filed a petition for DNA testing of previously untested biological samples from the scene of Gre- www.vtbar.org THE VERMONT BAR JOURNAL • WINTER 2019 4 7 leton has taken on some of the most diffi- come for one side, but crafting a result with the Plaintiff does not show up, and what to cult cases often on short notice. facts and the law.” Carleton acknowledges do when the debt collection agency has as- Ian Carleton still serves as GAL for young that sitting as acting judge has significant- signments of debt but does not track those Vermonters, conceding that those cases ly impacted how he practices law: “It re- assignments.” take more time than expected to do the minds me that some arguments are just not Carleton also serves as special counsel job correctly. “I meet with the child, with worth making, and that judges appreciate to the judicial conduct board. His work is caretaker and teachers,” he said. “I do GAL lawyers who are selective with their argu- two-fold—he first investigates complaints work because I’ve seen too many criminal ments, not wasting time of the court on ar- against state judges, gathers facts, reviews Pro Bono Award Winner Pro Bono Award cases where the kids were collateral dam- guments made just because they can.” the judicial canons and advises the Board. age.” Being a GAL poses different chal- As acting judge, Carleton has seen the Then, if the Board decides to bring charg- lenges for an attorney. “You do everything enormous number of pro se litigants in es, Attorney Carleton becomes the pros- you think you need to do, but don’t over small claims division. He feels personal re- ecutor and litigates the case before the step your bounds. Your role is to advise the ward from explaining the process in a way board. court, although the temptation is to go be- that makes sense to a non-lawyer, and ac- Attorney Carleton has dipped his toe in yond that role,” Carleton observed. “You knowledges the importance of allowing political waters, serving five years on the don’t usurp others involved in the kids’ people to tell their stories. Carleton cited Burlington City Council, two as chair. He lives.” a study done by Judge Helen Toor on what also represented high-profile candidates Carleton also serves as acting judge in litigants want from small claims court. For in election recounts, and served as State Chittenden, Franklin and Orleans counties, them, the most important part of the pro- Democratic Party Chair when Barak Obama hearing cases in criminal and small claims cess is having their story heard. Carleton was elected President. But that was several divisions. This work takes the pressure off took Judge Toor’s training for acting judg- years ago, and there’s been little political sitting judges, and has given Carleton a es, and still has the original power point activity since. “At a certain point I realized view of justice from a different perspec- presentation. “I refer to it still,” he ac- that politics is a nighttime occupation. Vot- tive. “It’s not about getting the best out- knowledges, “to recall what happens when er contact happens at night because voters have jobs.” Carleton was missing out on a slice of life during that time. “My kids are not going to be at home very long. And I missed my NOMINATE A WORTHY COLLEAGUE nights at home.” So Carleton now spends FOR PRO BONO SERVICE AWARD time mountain biking with his children, ages 17, 14 and 9. He admits he is not feeling a burning need to engage in political We all know attorneys who have donated many pro bono hours activity. “This is a dark and cynical time in to help disadvantaged Vermonters. Now is the time to recognize politics,” he observed. “I am happier and those generous colleagues for their good work. more useful if I do my part through legal Nominations are now being accepted for the VBA’s annual Pro work.” Attorney Carleton didn’t ponder long Bono Service Award. The award is given each year to one or more the question of how to get younger law- attorneys who have devoted themselves in an outstanding and yers involved in doing pro bono work. “It’s meritorious way to provide pro bono legal services to the poor incumbent on every law firm of reasonable size to support and push younger lawyers and disadvantaged. in pro bono work.” Standards for the award reflect Rule 6.1 of the Vermont Rules “This firm [Sheehey, Furlong and Behm] of Professional Conduct which exhorts lawyers to provide at least was incredible in the Grega case.” Car- 50 hours of pro bono publico legal services per year. The major- leton knew he was significantly underper- forming as a partner, but his firm never sec- ity of this time should be given without fee or expectation of fee ond guessed his commitment to the case— to persons of limited means or to the organizations which serve even though it was to their financial det- them. riment. Ian Carleton feels law firms need Nominations for the pro bono award may be made by attor- to install a belief that the practice of law is about helping people solve problems. neys, judges, clients or law office staff. The VBA Pro Bono Com- “It’s important to stay connected to doing mittee reviews the nominations and selects one or more for rec- the right thing without any expectation of ommendation to the full VBA Board. being rewarded—there’s an elegance to that,” he remarked. The deadline to nominate an attorney for the pro bono award When asked about the importance of is Friday, February 14 by noon. The nomination should include a pro bono, Carleton didn’t hesitate. Pro brief description of the attorney’s pro bono legal activities, and bono work is hugely important, not just be- should be addressed to VBA’s Executive Director Teri Corsones at cause you are serving a group that needs help, “but because it centers you in what [email protected], with a copy to Mike Kennedy, chair of the lawyers do for society and why we help our VBA’s Pro Bono Committee at [email protected]. community.” The VBA Pro Bono Service Award will be presented at the VBA’s ______Mid-Year meeting luncheon on Friday, March 27 at the Hilton in Mary Ashcroft, Esq. is the legal access coordinator for the VBA. Burlington.

48 THE VERMONT BAR JOURNAL • WINTER 2019 www.vtbar.org by Carie Tarte, RP®, Lucia White, CP, Corinne Deering, RP® Paralegal Licensure is a Solution

The Vermont Joint Commission on the access to “justice.” It is the equivalent of torney to assist them because they are both Future of Legal Services, at the urging of offering to increase transportation options too “rich” to qualify for legal assistance Vermont Surpeme Court Justice Reiber, for someone by providing him or her with a through grants and other funding, and too provided its Final Report and Recommen- free, but completely disassembled car. The “poor” to be able to afford the services of dations to the Vermont Bar in September Vermont Paralegal Organization (“VPO”) a lawyer. of 2015 on how to increase access to justice has received many requests from pro se liti- The Resources Exist in Vermont--To an for Vermonters. gants over the years asking for assistance Extent Within the Joint Commission’s Report on how to complete these on-line forms Utilizing a pool of licensed paralegals was the Legal Education Committee’s and guidance as to how and in what court taps into an already existing resource in strong recommendation that Vermont the forms should be filed. Such requests for Vermont. According to the Economic and adopt a paralegal licensing program. Un- assistance to the VPO must go unfulfilled, Labor Market of the Vermont Department fortunately, this recommendation has since as they would put paralegals in a position of Labor, as of 2018, there are approximate- languished, but the problems with access of providing legal advice, and hence, en- ly 670 paralegals in Vermont. While not all to justice in Vermont remain. gaging in the unauthorized practice of law of the State’s paralegals would opt to un- Members of the VBA Paralegal Section, (“UPL”). dergo voluntary licensure, a larger majority Carie Tarte, Corinne Deering, Lucia White The number of questions about forms may if the process is straight forward and and Lynn Wdowiak, in conjunction with and the litigation process that the VPO has not cost-prohibitive. Dan Richardson, then-President of the VBA received pales in comparison with the num- Even if only ten percent (10%) of Ver- when the Joint Commission Report was is- ber of questions our State court clerks field mont’s paralegal population were to be- sued, now examine whether or not Vermont from pro se litigants on a daily basis. Not come licensed, it would mean the availabil- is ready for paralegal licensure and wheth- only are court clerks inundated with legal ity of more than 60 licensed paralegals to er or not paralegal licensure is an apporpri- questions (placing court clerks in the posi- assist the pro se divorce litigants in accu- ate solution to Vermonters’ lack of access tion of potentially dispensing legal advice), rately and timely completion their 813 Fi- to justice. once pro se litigants get before judges in nancial Affidavits, or to assist pro se tenants This is the first in a two part series that ex- merit hearings, they often have no idea in appropriately compiling the necessary plores why Vermont is ready for some form how to submit their documents into evi- documentation for their merits hearing in of voluntary paralegal licensure and how dence, nor do they always have the “evi- their dispute with their landlord. paralegal licensure can increase Vermont- dence” or documents helpful or necessary In addition to helping pro se litigants ers’ access to justice. The second part, writ- to their case. In fact, they may not even re- identify and prepare forms, a Vermont li- ten by Attorney Dan Richardson and Para- alize that a merits hearing is dispositive on censed paralegal could help increase judi- legal Lynn Wdowiak, will run in the Vermont their matter. This creates backlog for the cial efficiency by explaining to litigants rules Bar Journal’s Spring edition, and will review court docket as judges are spending their like service of documents on all parties and why paralegal licensure may not be an ap- time talking litigants through the eviden- what evidence may or may not be relevant propriate answer for Vermont. tiary rules and process and ultimately post- to their case. He or she could also help liti- poning hearings until the appropriate evi- gants organize and outline their case. Lit- Statistics Tell Us Vermont Is Ready dence can be obtained. igants who appear in court prepared with Now imagine a Vermont judicial system in this type of information would allow judg- As stated in The Vermont Joint Commis- which there is a pool of non-lawyers avail- es to focus on the contested issues without sion on the Future of Legal Services report, able (paralegals in particular) who have met spending as much time on the process. almost three quarters (72%) of Vermont’s certain educational and work experience While Vermont does have the paralegal civil docket is comprised of small claims, criteria in a particular area of law, who have resources and overwhelming need to in- collections, landlord-tenant disputes, di- been specifically trained in Vermont law crease access to justice, it does not have vorce, and parentage cases. What’s more, for divorce, child support, collections, and the staffing or infrastructure to establish an according to the Vermont Access to Justice landlord-tenant disputes, who have passed elaborate, lengthy and financially impracti- Coalition, eighty percent (80%) of all cas- an examination on those specific areas of cal process for paralegals to obtain licen- es in Vermont’s docket today have one or law and have been licensed by the Vermont sure. One of the major criticisms and likely more self-represented litigants. Supreme Court to assist litigants in those detractors to the full success of the Limit- Access to justice at its core involves basic limited legal specialties. ed License Legal Technician (LLLT) program fundamental rights for Vermonters and the These fictitious licensed paralegals would in Washington State is the prohibitive edu- stakes are high: losing housing in foreclo- be capped at what they could charge for cational and work requirements.1 Because sure or evictions, losing custody of a child, services to assist pro se litigants, and while of the extensive requirements just to sit for losing assets in a divorce, or losing money they would not have to work under the di- the examinations, very few paralegals in in a collections action. In 80% of these cas- rect supervision of an attorney in their des- Washington have opted to obtain LLLT sta- es, where fundamental rights are on the line ignated specialized legal field of license, tus. As a result, the costs to implement the and the stakes high, Vermonters are repre- they have available a Vermont licensed at- LLLT program far exceed the income from senting themselves. torney to consult with through a “collabora- participating paralegals. The main solution thus far in Vermont has tive agreement,” similar to those used be- Utah, the second state to develop a para- been to make the necessary forms and in- tween a physician and physician’s assistant. legal licensure program, has requirements formation available on-line. While this in- Such a system could work to substantial- similar to Washington’s LLLT program, but creases access to the forms and statutory ly increase access to justice for those Ver- much less daunting. Utah has approved Li- language, it does little by way of increasing monters with no intention of hiring an at- censed Paralegal Practitioners (“LPP”) to www.vtbar.org THE VERMONT BAR JOURNAL • WINTER 2019 4 9 obtain licensure in specific family matters, torney. By allowing licensed paralegals to tioning under direct supervision of an at- small claims, and forcible entry and detain- practice in specialty areas, these trained torney. er. Utah’s program was enacted in Novem- professionals would be available to as- Seeking a standard of education, expe- ber 2018, so there is little information on sist those people who might otherwise be rience, and qualifications to be a licensed its current impact. Like the LLLT, applicants forced to seek alternative cheaper, less reli- member of the paralegal profession only in Utah are required to have at least an as- able methods of obtaining help. Ensuring protects employers and the public, and at sociate degree. However, the course re- that paralegals meet the requirements of the same time can increase access to jus- quirements are far fewer - an ethics course holding a limited license to practice in spe- tice with the assistance of qualified profes- plus a subject matter course for each area cialty fields would go a long way to reduc- sionals. It is the wave of the future across in which they plan to practice - and the pre- ing the unauthorized practice of law. the United States and soon more and more

Paralegal Licensure is a Solution application work requirements are half that Many other states are looking at forms states will be following suit, in one way or of the Washington model. of licensure, regulation, or certification of another, to develop solutions to the gap in Any paralegal licensure in Vermont would paralegals to increase access to justice. The justice for lower income litigants and to es- need to be straight forward, attainable, and Empire State Alliance of Paralegal Associa- tablish standardized criteria for a profes- essentially self-funding. Paralegals would tions, Inc. (“ESAPA”) recently announced sional that is in a position to help fill the pay for their course requirements and that the majority of paralegals in New York gap. All of this is not to say that licensed would pay similar licensing and renewal State support voluntary certification. As a paralegals are the only answer, but it is to fees as attorneys (application fee, examina- result, ESAPA unanimously voted to pro- say that licensed paralegals can and should tion fee, character and fitness/background ceed with creating a state-wide voluntary be an answer. check fee). They would also be required certification program. ESAPA anticipates ______to obtain their own malpractice insurance, implementing the full program in January Carie Tarte, RP, AIC, is the VBA Paralegal as well as meet continuing legal educa- of 2021. While other states immediately Section Chair and a Senior Paralegal with tion requirements on a biennial basis. As surrounding Vermont may not be actively the firm of Maley and Maley, PLLC in Bur- Vermont’s Bar Counsel, Michael Kennedy, pursuing a licensure, regulation or certifica- lington, where she assists with personal in- noted in his December 9, 2017 blog about tion program for paralegals, states in other jury matters. In 2013, Carie obtained both paralegal licenses, “we shouldn’t make per- parts of the country are establishing these her Registered Paralegal (RP) designation fect the enemy of good.” In other words, programs or further investigating forms of by passing the Paralegal Advanced Com- “the goal shouldn’t be to provide people regulation, certification or licensure. petency Exam (PACE) and her Associate in who can’t afford lawyers with access to Certification of paralegals could be a Claims designation by passing four exam- something that walks, talks and looks like stepping stone to licensure or regulation, inations through the Insurance Institute of a lawyer. It should be to provide them with also furthering access to justice, as long as America. something that is better than they have the requirement of full attorney supervision Corinne Deering, RP, is a Senior Parale- now-which is nothing.” is modified. A model in which paralegals gal with the firm of Paul Frank + Collins, P.C. Vermont licensed paralegals would ob- are not required to remain under the super- in Burlington, where she assists with insur- viously have rates considerably lower than vision of attorneys in limited areas is prefer- ance defense litigation, workers’ compen- those charged by a lawyer. It is likely that able to one which continues to require at- sation and personal injury matters. In 2000, most Vermont paralegals would remain em- torney supervision. Paralegals can already Corinne obtained her Registered Parale- ployees of law firms or corporations, in ad- seek voluntary certifications from nation- gal (RP) designation by passing the Na- dition to offering limited legal assistance to ally available programs where all of their tional Federation of Paralegal Associations’ the public under a licensing program. Hav- work currently requires attorney supervi- (NFPA) Paralegal Advanced Competen- ing a licensed paralegal offer limited servic- sion. Adding another option for certifica- cy Exam (PACE). Corinne has also served es can benefit the law firm by providing in- tion does not seem like it would address in many capacities on the Board of Direc- dependent revenue, as well as freeing up the current abundance of pro se litigants tors of the Vermont Paralegal Organization the attorney’s time for more complex mat- because it does not represent a substan- (VPO) and has been a member since shortly ters. Paralegals with the requisite educa- tial change in our current system. If attor- after its inception in 1990. tion, experience and specialty training to neys are not currently accepting the types Lucia White, CP, is the Practice Manag- become licensed paralegals would not have of matters that have an abundance of pro er and an Intellectual Property Paralegal to carry the heavy debt from law school in se litigants, it is doubtful that having a cer- with Dunkiel Saunders Elliott Raubvogel & order to become a licensed paralegal. At tified paralegal on staff would change that Hand, PLLC in Burlington. Lucia has worked most, they would be paying course fees, li- dynamic, since ultimately, attorneys would extensively in child welfare and current- censing fees, examination fees, continuing be required to supervise (and charge for ly volunteers at the legal clinic at Steps to education fees and malpractice insurance the supervision of) the paralegal’s work. End Domestic Violence. She has been presi- fees. As long as these fees remained rea- Some states may establish a state certifi- dent of the Vermont Paralegal Organization sonable and attainable, paralegals desiring cation, with a modified supervision require- since 2017. to become licensed in specialty fields to as- ment, in order for trained paralegals to ac- ______1 sist with access to justice would be able to tually “practice” in a specified limited ca- Prior to sitting for the licensing examination, paralegals in Washington State interested in charge lower, more reasonable rates to the pacity, thereby allowing further access to becoming LLLT must first complete a minimum public who cannot afford to hire a lawyer. justice. As long as full attorney supervision associate level degree with 45 of the credits Through paralegal licensing, albeit in a is still a requirement, however, the system completed in an ABA-approved paralegal pro- limited fashion, the public is thereby pro- is simply operating under the existing pa- gram in courses defined in the LLLT regulations rameters, thereby denying lower income plus an additional 15 credits through the Univer- tected from the unauthorized practice of sity of Washington School of Law in the specific law. In many cases, unrepresented liti- litigants access to justice. Moreover, it is areas of law they wish to become licensed in, gants are forced to seek information and unlikely that paralegals would go through and work a minimum of 3,000 hours under the assistance from the internet, legal software the time and expense to become specially supervision of a licensed lawyer. packages, and in the worst case, indepen- trained, to invest in malpractice insurance, dent, unlicensed, “non-lawyers” offering and to take an exam, only to be in the same services without any oversight from an at- situation in which they are currently func-

50 THE VERMONT BAR JOURNAL • WINTER 2019 www.vtbar.org BOOK REVIEWS

like Vikings around a campfire raising the also smart. He knows he is among the best stakes of the tale until we are Beowulf and of his generation, and his stories reflect an the opposition, a clever opponent of Gren- awareness of this self-recognized swagger del-like strength and cunning. and purpose. Both sets of books are criti- These stories are often the only hall- cal reads for anyone practicing law in Ver- marks that survive as public attention turns mont. They offer insights into the person- away. If we are lucky and if we practice long alities and styles that have largely defined enough, we live to see the tide return and the practice of law. They are not weighty revisit these losses or defend our victories. tales, but they offer a sensibility that what A few years before his death, Bob Gens- we do and what we practice from day-to- burg testified on school funding before the day has some accumulated meaning. legislature. Press coverage noted that the To these examples, a welcome addition testimony served to warn the legislature has emerged. The Stories of Harvey B. Ot- of the Brigham case and its constitutional terman, Jr. (Adrian A. Otterman, ed.) was limits. But it was also defense of the un- published privately late last year and is derlying reasoning of Brigham, which had available from Otterman & Allen, the law changed the landscape of school funding firm that Harvey Otterman founded in the 18 years prior, and which remained Gens- 1950s. The book is a loving tribute to Bud burg’s crowning achievement.2 Otterman a former Orange County State’s Stories of Harvey B. Otterman, Jr. Over the last ten years, we have been Attorney, private practitioner, town mod- edited by Adrian A. Otterman fortunate in Vermont to witness the fruition erator, legislator, and President of the Ver- (2019) of a generation of legal scholarship. With mont Bar Association (1980-81). It is also Reviewed by Daniel Richardson, Esq. the twin volumes of Vermont legal histo- a window into the life of a small-town law- ry from Paul Gillies, theydeep research of yer in mid-century Vermont where the old Perpetuation of Memory Judge Mello dedicated to reviving Moses ways that Davis celebrated did not recede Robinson’s central role in early Vermont ju- quickly or easily into the new frontiers of This Association shall be called “Vermont risprudence, Judge Martin’s book decon- Langrock’s modernizing Vermont. Bar Association.” Its purposes are . . . to structing the Orville Gibson murder trial, As with most examples of the attorney cherish a collegial spirit among its mem- and James Dunn’s comprehensive analy- anecdote-memoir, Stories paints a pic- bers, and to perpetuate their memory. sis of the Jane Wheel saga, we have not ture of Bud Otterman, the man. Otter- Article I of the Constitution of the wanted for critical analysis and historic re- man grew up in Washington, D.C. as part Vermont Bar Association cords of Vermont legal history and work. of the greatest generation. He spent his At the same time, this boon in scholarship summers in Vermont, but when World War There are some legal careers that are has been missing another critical tradition, II began, Otterman enlisted and became a formed by a single case. No matter what the preservation of good stories about the diver bomber pilot at the tender age of 19. Ken Starr does with his life, he will always daily practice of law, what I will call the at- Saved from combat by the atomic bombs be defined, for better or worse, by his role torney anecdote memoir. The two great- and the ensuing quick end to the war, Ot- as special counsel. Johnnie Cochran will est examples of this genre in Vermont are terman took advantage of the GI Bill, went forever be linked to OJ and the glove. To Peter Langrock’s two volumes of Addison to law school, and moved to his beloved Kill a Mockingbird makes much out of At- County Justice and Beyond the Court- Bradford, Vermont where he took up the ticus Finch’s defense of Tom Robinson but house and Deane Davis’ two volumes of practice of law for the rest of his life among leaves us little else of his legal career. Justice in the Mountains and Nothin’ But the hills of Orange County. But such fame and singular fortune is the the Truth. From here, Otterman’s story expands to exception to the rule. For the rest of us, Each of these examples captures a slice encompass the larger community. By the our legal careers are composed of a series of Vermont practice and the personality of time, he started practicing in Bradford, the of trials and trenches, hard fought battles, the author. Davis’ homespun anecdotes Town had long passed its peak days as a momentary victories, and sudden rever- capture the practice of the law emerging timber center and important stopover on sals. The peaks and valleys of our careers from the 19th century. It is filed with tales the Connecticut River for the railroad. Ot- often appear, in retrospect, as less sharp of municipal courts and Justices of the terman takes up the flag and mantle of old than we imagine. Instead of a range, we Peace hearing misdemeanor charges. In tradition in Vermont when he describes the glance backward to see that we have only the books, Davis plays the sly, native fox, various bank holidays and panics that Brad- traversed rolling hills. always prevailing, but in an “aw-shucks, ford experienced in the 1930s. For a young As noble or as powerful as we like to see country lawyer” fashion. Davis is smart, but lawyer arriving 20 years later, the scars of ourselves, the truth is that the practice of he is warm and welcoming. these bank scares must have run deep, and law is an on-going task that demands our Langrock’s tales are more modern. Be- the ensuing federal actions that effectively day-to-day attention.1 ginning in the era when rules of proce- froze the local economy, must have made a Nevertheless, even in our work-a-day ca- dure and uniform laws came to dominate significant impact on the young lawyer who reers, we accumulate substance. We do the practice, they reflect a Vermont that was beginning to take stock of the people score victories that move the dial on the has captured the national attention and and community he would be serving for the law, or we become so invested in our case the personality of its larger-than-life figure. next fifty years. that when we lose we become guardians There is often an animating passion behind Otterman, like Langrock, was tapped by of what could have been. This explains a the story, a wrong to be righted or an arc the voters early in his career to serve as lot of who we are. Victories are revisited of history that needs bending. Langrock is State’s Attorney for the county. This part- www.vtbar.org THE VERMONT BAR JOURNAL • WINTER 2019 5 1 time position well-suited many young, am- verdict for the defense and largely marked community. Here we see Otterman fight- bitious law school graduates who could the end of Otterman’s law enforcement ing against the forces that were liberaliz- parlay a term or two of public service into career. Perhaps not so surprisingly knowing his beloved rural corner of Vermont and community connections and a reputation ing the personality of the man, Otterman fighting for the values that he saw fading

Book Reviews that would serve their careers well. It does writes about the case with no bitterness or with this change. The Otterman who could not appear to have been difficult work, but personal antipathy. For him, the outcome shrug off the trial court loss in Gibson can- it was steady and gave the young Otter- was what the facts and the law required. not abide by the loss of place. man a lot of trial work. From his stories, He did his job to the best of his ability, and The great joy of reading attorney an- Otterman does not seem to have had a there is no shame in losing if you play well. ecdote-memoirs is of course to be found passion for this type of criminal work—par- At the end of his version of the Gibson in the stories. Otterman does not disap- ticularly when compared to his passion for murder trial, he notes that the “defendants point here, and he reveals himself to be a explaining agricultural, commercial, or rail- and their families had every right to consid- thoughtful, low-key, and self-deprecating road issues.3 But it was at the end of Otter- er themselves exonerated.” Vermonter. Otterman playfully recounts man’s tenure that he found himself at the This is the irony of Otterman’s Stories. his first title search that required him to center of the most unusual case of Orville He is perfectly comfortable letting go of help the town clerk hay a field in exchange Gibson’s murder. the Gibson case because it was what the for opening up the land records. He also The Gibson case was a real-life Peyton community rendered for a verdict. This tells of learning as a prosecutor not to put Place that rocked the tiny town of New- stands in high contrast to the last third of a preacher on a jury as some take the Chris- bury, the larger community, and eventu- the book, which is derived, in part, from tian charge of ‘turn the other cheek’ to ally that garnered national attention. Or- speeches or notes that Otterman drafted mean acquittal at all costs. ville Gibson was a prosperous dairy farm- on various issues of the day ranging from In this respect, Otterman’s Stories read er who walked into his barn one December assistant judges to Act 250 to protecting like the man. In comparing Stories to ei- morning in 1957 and was not seen again the American flag. For the most part, Ot- ther Addison County Justice or Green for another three months when his body terman’s opinions, many given on the floor Mountain Justice, it is hard not to notice was dredged from the Connecticut River. of theeGeneral Assembly, do not reflect the contrasts. Both Langrock and Davis A long list of potential suspects developed, the current political tide. They are prick- write about themselves and their triumphs. and theories ranging from suicide to vigi- ly and cranky. They are the statements But Otterman is willing to admit defeat and lante justice circulated in and around the of someone who knows history is turning looking a little sheepish in the aftermath of small community. While secrets and spec- away from him but stubbornly holds hiseg- a trial. ulation abounded, there was little hard evi- round. In this respect, Otterman’s book is The tag-line to the 1989 Blake Edwards dence to prove what happened or who did a pure distillation of what older Vermont- film, Sunset, purported that the film was it. Two primary suspects emerged, Ozzie ers must have seen as the wave of hip- “All true . . . give or take a lie or two.” This Welch, a local janitor, and Frank Carpenter, pies, yuppies, and back-to-the-landers who often true with the attorney anecdote- a down ne’er-do-well, but the silence of the came sweeping up into the quiet hollows memoir, and one can almost see Davis and town ensured that what little connected and gores. In each of these pieces, Otter- Langrock glossing over the rough patches them to the murder would not be enough. man stands as a conservative rail against emphasizing the storytelling over point-by- Otterman tried the first of two cases the forces that were washing across the point veracity. Otterman, however, is a qui- against Ozzie Welch. This trial, which was state. In each speech, he articulates a po- eter storyteller. He emphasizes the truth not the more well-known one defended by sition usually grounded on the traditional even when it leaves him out of the story. Attorney Dick Davis, ended in a directed Vermont values of thrift, self-reliance, and For Otterman, the lesson time and time

52 THE VERMONT BAR JOURNAL • WINTER 2019 www.vtbar.org again comes back to place and to com- chores where he suffered a fatal heart at- ner circle is entitled “Why.” While the oth- Book Reviews munity. Not only is all politics local, but in tack and was found later that day. As his er two circles are linked in the human brain Otterman’s writing, it is the sui generis of grandson and editor writes, “like any good to reason and language, the “Why” circle, common sense and decency. Otterman’s Vermonter, he left behind two years’ worth Sinek says, is part of the language-less lim- stories pus you into the mind of his time of firewood cut, split, and stacked.” bic brain. The “Why” circle is the person’s and his territore. We come to understand ______motivation or purpose. Once the “Why” his rock-ribbed conservatism because we Dan Richardson, Esq. is a past-president is identified, Sinek claims that one can come to understandsthis place and this of the VBA and VBF and has a civil litigation achieve success and fulfillment in acting in time. Otterman occupied one of the most practice at Tarrant, Gillies & Richardson in a way that furthers one’s purpose. conservative corners in what was at the Montpelier. Sinek claims that everyone has a single time one of the most conservative states. ______“Why” or purpose which is always positive. 1 Otterman’s Stories reflect these traditions How many of us have failed to follow the gen- Take for example Sinek’s own stated pur- eral advice to take the day off following a win and the lessons that spawned them. in court and have instead returned to the office pose: To inspire people to do the things Otterman, like Langrock and Davis, also to start plugging away at the next deposition, that inspire them so that together, we can revels in the beauty of the simple well- motion, operating agreement, bond opinion, or change the world. Id. at 36. Here are a few tried case. Otterman describes winning title search? more examples of “whys”: to propel posi- 2 Amy Ash Nixon, Lawmakers Reminded of a speeding ticket prosecution despite the Findings in Brigham Case, VTDigger.org (Feb. tive change so that people can live a more elaborate reconstruction and presentation 15, 2015), at https://vtdigger.org/2015/02/12/ fulfilled life (id. at 80), to propel people for- of the defense based on a single miscalcu- lawmakers-reminded-findings-brigham-case/; ward so that they can make their mark on lation. The defense argues that the defen- see also Mark Johnson, Lawyer Who Argued the world (id. at 81). dant’s alleged speed was impossible given Landmark Case Leading to Act 60 Dies, VT- While Sinek’s model of human behavior Digger.org (Nov. 14, 2017), at https://vtdigger. the distances involved and lays out then- org/2017/11/14/lawyer-argued-landmark-case- may be clothed in the trappings of science, complicated measurements and math. Ot- leading-act-60-dies/. my guess is that most biologists would ar- terman stands up and notes that the de- 3 See Chapters entitled, the Railroad Era, The gue that the “why” purpose of any living fense’s elaborate theories can be ignored Curious Case of the Shrinking Haybales, the organism, humans included, is survival and Sniper, and The Milk Co-op. since a mile is made up of 5,280 feet and passing on of genetic material, rather than not 5,820 feet as the defense had writted. “inspiring others.” I think Sinek’s emp- As trial attorneys, we live for such days, and ty and lofty purposes merely obscure the Otterman’s keen eye captures a number of “why” behind the “why.” these wonderful moments. Sinek’s concept of a single circle and a In all, Stories is filled with smart, gen- single purpose per person, while easy to tle tales of Orange County law. Otterman conceptualize, is Pollyannaish and glib. was a successful lawyer who saw the law The popularity of Find Your Why stems as a tool of common sense, but he was at from Sinek’s ability to tell people what they heart a man of his community and writes of want to hear, which is not surprising given a Vermont that is neither folksy nor secretly Sinek’s background in advertising. progressive. These are rural folk who work That said, this book encourages intro- hard, who abide by a moral code, and who spection and soul-searching which is always prize these values in themselves and others. a good thing. As Pythogoras is credited in There are no shocking revelations or unex- saying: ‘Man know thyself, then thou shalt pected opinions in the Stories. The tales know the Universe and God.’ It is always a and commentaries flow like the hills into a worthy goal to examine one’s actions and series of ups and downs, trials, trenches, motivations. In Find Your Why, Sinek of- and travails. Common sense, much more Find Your Why: A Practical fers a method for finding the “why” both than cunning and wit, is likely to carry the for individuals and organizations. The pro- Guide for Discovering day. Reading Stories is a chance to spend cess works through identifying key events a little time with Otterman, which in and of Purpose for You and Your Team in your life/or the organization’s and find- itself is a pleasure. Like his fellow attorney By Simon Sinek et al. ing the common threads that run through anecdote-memoirist, he gives you the gift (2017) them. The part of the book written for or- of place told in his own voice. You cannot Reviewed by Anna Vaserstein, Eq. ganizations, maps out activities for finding help but enjoy your time with him. It is this the organization’s purpose, and is certainly preservation, the perpetuation of memory, What if someone said you are good? an activity worthwhile for its team-building that is Otterman’s real gift. Upon finish- That you can be happy? That you have a potential. ing this slim volume, you come away with purpose? And promised to help you find Final words: Find Your Why: A Practi- a fuller sense of Otterman and his commu- it? Wouldn’t you want to believe? (and buy cal Guide for Discovering Purpose for You nity, which is really aa larger glimpse into the book?). In his book, Find Your Why: A and Your Team (2017) is a feel-good book those practitioners who came before and Practical Guide for Discovering Purpose for with an empowering message that is more the connection to that past, which informs You and Your Team (2017), Sinek creates a show than substance. For the individual our present. tidy model of human behavior, called the reader who seeks better self-understand- Stories ends like Otterman on a per- “Golden Circle,” that he claims, follows the ing, this is not a useful book. However, if fect note of grace. Otterman, at age 86, biological structure of our brains. Imag- you’re looking for a fun activity to do on walked out of his house shortly after New ine three concentric circles. The outer cir- your firm’s next retreat, buying this book Year’s Day 2012 to work on a brush pile. cle is entitled “What.” The “What” circle for $20 (cover price) is cheaper than hiring Chainsaw and loppers in hand, he stopped encompasses a person’s actions, wherever a motivational speaker. for a picture in full duck coveralls and gave they find themselves (i.e. at work, at home, ______a gentlemanly tip of the hat to his wife. He etc.). The middle circle is entitled “How.” Anna Vaserstein has a small general then trudged up the hill for the morning It describes how a person behaves. The in- practice in Jericho. www.vtbar.org THE VERMONT BAR JOURNAL • WINTER 2019 53 IN MEMORIAM

Greg Lowell McCurdy ing in real estate in Lamoille County, having then became a CPA in Illinois in 1972 and fallen in love with Stowe during a ski trip in Vermont in 1975. While working at Ernst Greg Lowell McCurdy passed away on in the 40’s. He then went to Columbia Law & Young in Chicago, he met and married March 3, 2019 at the age of 73. He was School, passing the Vermont bar in 1966 Maureen O’Brien in Burlington, Vermont born on November 14, 1945 and practiced and becoming State’s Attorney for Lamoille in 1970. They moved to Vermont in 1975, in Randolph, Vermont. He was buried in the County where he practiced for 10 years. He where he began practicing law at Ryan Vermont Veterans Memorial Cemetery in continued in his passion for land develop- Smith & Carbine. Tom practiced law there Randolph Center. ment after that, having owned, brokered, in the fields of general civil practice, real or managed an estimated 13,000 acres estate, banking, probate, health care law in Vermont over 50 years. Ted was a life- and charitable giving, among others, and Theodore Ross Barnett long learner, loving travel and trying new was a partner at Ryan Smith & Carbine at things like ski racing and open-water swim- the time of his death. He is survived by his Theodore Ross Barnett, 99, died on Sep- ming. He is survived by five children, seven wife of 49 years, Maureen, three daughters tember 26, 2019 at The Manor in Morris- grandchildren and three ex-wives. and a son, and four grandchildren. ville. Born in Newton, MA, Ted attended Harvard College and the Columbia School of Engineering and served in the Pacific Thomas M. Dowling during World War II as an engineering officer in the Air Force. At the end of the War, Thomas M. Dowling passed away on he joined his father’s wool business and October 26, 2019 at the age of 74. Born traveled extensively in the Middle East, in Las Vegas, he graduated from Dowling learning French, Arabic and Farsi. He was High School in Iowa, St. Ambrose College proud of his cross-border work, but as the with a BA and received his law degree from wool business declined, he began invest- the University of Notre Dame in 1969. He

CLASSIFIEDS

SERVICES Litigation Investigations. We cover the En- I handle all initial contacts with the plan tire State of Vermont. or third party administrator and provide all BRIEFS & MEMORANDA. Veteran owned company serving all of necessary processing directions when the Experienced attorney writes appellate Vermont. Call 802-324-7385 or email: com- order is ready for filing. briefs, trial memoranda. Legal writing/ap- [email protected] Vermont family law attorney since 1986. pellate advocacy professor; author of four Contact me for additional information and books. VT attorney since 1992. $60 per QDROs (qualified domestic preparation rates. hour. Brian Porto, 674-9505. relations orders) Tom Peairs, 1-802-498-4751. I prepare QDROs and other retirement [email protected] INVESTIGATIVE SERVICES pay and pension benefit domestic relations www.vtqdro.com Surveillance, Background Checks, Lo- orders for federal, state, municipal, mili- cates, Statements, Witness Locates, Di- tary and private retirement plans as may vorce, Child Custody. be required by the terms of the settlement Due Diligence, Asset Investigations, Pre- agreement or the court’s final order.

54 THE VERMONT BAR JOURNAL • WINTER 2019 www.vtbar.org