WINTER 2020/2021 • VOL. 46, NO. 4 VERMONT BAR JOURNAL

DEPARTMENTS

5 PRESIDENT’S COLUMN

PURSUITS OF HAPPINESS 8 — Walking Man: An Interview with Rick Hubbard

RUMINATIONS 16 — Nothing But Net: Matters of First Impression

WHAT’S NEW 30 — Fourth Annual Martin Luther King Jr. Middle School Poster-Essay Contest 32 — E-Filing Fees in Vermont State Courts Congratulations to William and Elizabeth Cunningham, BE WELL 1st place winners of the 35 — Mindful Ways to Create Habits, Resolutions and VBA/YLD/Diversity Section 2021 MLK, Jr. Intentions to Improve Your Well-Being Middle School Poster-Essay Contest

WRITE ON 36 — The Importance of Finding Your Voice as a Writer

44 BOOK REVIEW

48 IN MEMORIAM

50 CLASSIFIEDS

FEATURES

25 2021 VBA/YLD/Diversity Martin Luther King Jr. Middle School Poster-Essay

40 Samantha Lednicky: A Vermonter Comes Home to do Good Mary C. Ashcroft, Esq.

42 Why a Lawyer Should Never Try to Shoot from the Hip Mark Bassingthwaighte, Esq.

43 Whither a Remedy Robert Pratt, Esq.

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4 THE VERMONT BAR JOURNAL • WINTER 2020/2021 www.vtbar.org PRESIDENT’S COLUMN Pandemic Practice Diary

We made it through 2020. In late 2019 ing in person, but I have a language inter- I had all sorts of big plans and aspirations preter coming for one hearing first thing for the year ahead. It is, perhaps, a touch of in the morning so I need to be there. I sit an understatement to say that those plans on a bench. The interpreter sits on anoth- changed. And here we are again, at the be- er bench about 12 feet away from me and ginning of a new year, and again I have all tells me that he’s having a hard time find- sorts of big plans and aspirations for the ing a place to buy rice. Maybe he’ll go to year ahead. Plattsburgh. He heard there’s a store there I’m inspired by and proud of how our that still has some. I have my hearing, and profession – on very little notice – nimbly then another. I’m scheduled for a hear- changed course and kept on working. Ev- ing in the afternoon, but the court officer eryone has a story about how life and prac- tells everyone we can leave and call in. I tice changed in 2020. I’m very curious to call my client and tell her we need to be on see what lessons and practices we decide the phone for the afternoon hearing. She to keep, what we improve, and what we re- seems more than okay with that. place. I re-created part of my year last year, and March 19. I meet a woman to help her thought I’d share. sign a power of attorney so her neighbor can help make sure her bills get paid. She March 9, 2020. In 2 days I’m supposed says that she’s not afraid of the virus. “I’m to travel to Chicago with Teri Corsones 96. I’ve had a good run.” panels. I sit on a big rock and participate and Bob Fletcher for the ABA Bar Leader- in a hearing by phone. While I wait for the ship Institute. Things are shutting down all March 27. I agree to handle a stalking or- cat’s appointment to finish I make several over the place. As of now the conference der case in Rutland. I have a bunch of ex- phone calls to clients to let them know up- is still on. Before I go to sleep I think about hibits we need to admit, and there isn’t coming hearings in April are cancelled. No- if I go how I’ll get back to Vermont if I go a great way to do it without being there. body really knows what’s going on. People and airlines stop flying. I mentally plan to My client is afraid to attend in because of seem more confused than anything else. rent a car and drive to Kalamazoo, Michi- her health, and she’s also afraid to skip the Every call ends with people saying some gan where my parents live, spend the night hearing because she really wants a final version of, “well, it’s a sunny day, at least.” there, and then drive back to Vermont the order. We decide I’ll go and she’ll call in. next morning. If I have to rent a car and I wait on a bench for my turn to go into April 24. I coordinate a Zoom happy drive back from Chicago I think about the the hearing. The other party in my case hour with some lawyers. We show off our fact I might not be able to cross the bor- doesn’t show up but it’s also not clear if he cocktail creations to one another and have der if the virus gets worse, and I’ll have to got served. We have to come back. I dread some laughs. We joke that we forgot what drive through Ohio and Pennsylvania (rath- that; it feels dangerous to show up but each other looks like. er than cutting through Ontario like I usu- there also really isn’t a good way to have ally do) to get back. Oh, and also that my this particular hearing by phone. Ultimately July 1. I’m working at my desk in an up- own car will be at the airport in Manches- the case gets done. My client is thankful. I stairs spare bedroom. My husband, who is ter, New Hampshire. I probably shouldn’t never meet her in person. also an attorney, is in our kitchen doing a go. I’m concerned that the conference mediation via Zoom. I hear the cat walk up hasn’t been cancelled yet. I’m pretty sure April 2. I do an Odyssey training, since I’m the stairs. He saunters over to my desk, car- lots of people are deciding not to go. in one of the WOW counties. I place a take- rying something in his mouth. From where out order at Cloudland Farm in Pomfret for I am it looks like his fluffy mouse toy. It’s March 10. The conference is cancelled. the next day. I know and like the farm own- not. It’s a squirrel. It’s alive. The cat proud- I’m disappointed but relieved. I go to court ers and the chef. I’m concerned about our ly and gently sets the squirrel on the floor. in Windsor County for an arraignment. local businesses’ ability to stay in business. The afternoon de-evolves into chasing a There are a lot of defense lawyers in the When I pick up the order later in the week live squirrel around the house. The squirrel building that morning, and we’re all sort they tell me they’ve been able to figure out runs through the bathroom, the bedroom, of chatty with one another. It’s nice. At take-out, and it was going well. And in case across our bed pillows. Eventually the one point about seven of us are standing you’re wondering, it was beef stew, home- squirrel gets away and gets back outside. around, pointedly not shaking hands, talk- made bread, and blueberry cobbler, and it The cat seems deflated. The Zoom media- ing about the fact none of us wants to get was fantastic. tion continues, only a little bit interrupted. sick. Nikki South declares she’s going to (This is the same cat who went to PEAK. He greet people with “jazz hands” from now April 6. My cat is really sick. My husband refuses to believe he has kidney failure and on. I talk to a client in New Jersey later that and I drive the cat to Williston for an ultra- will spend the summer and fall bringing us afternoon. He comments that all of a sud- sound at PEAK. The stay-home orders un- all sorts of treats.) den everyone is an epidemiologist. expectedly created time to be able to do things like take the cat to the vet while still July 11. I have to meet a client to sign March 16. I go to Burlington for some working a full day. I wander through the some paperwork. We meet at the Whale juvenile hearings. I’m a little iffy on go- parking lot into a big field filled with solar Tails in Randolph. He signs and puts the pa- www.vtbar.org THE VERMONT BAR JOURNAL • WINTER 2020/2021 5 pers on the hood of my car and puts a rock blankets and a table cloth and get things on top to keep them from blowing away. done. I wonder what I’ll do in the winter Then he backs away cautiously and I walk when meeting outside really isn’t going to over to the papers on the car to notarize be possible, and meeting inside isn’t al- his signature. Then I meet my good lawyer- lowed. friend Kelly Green and we take a walk in a President’s Column President’s cemetery. She tells me about a witness in- November 12. I was invited to talk to terview she did the week before. She ar- some Girl Scouts about Justice Ginsburg ranged to meet the witness at their home. for their “I Dissent” badge. The troop The witness sat indoors and Kelly sat out- meeting is by Zoom. I join during opening side on the porch and they talked from a of the meeting and say the Pledge of Al- distance through an open window. The in- legiance and the Girl Scout Promise with terview took a lot longer than expected them. Once a Girl Scout, always a Girl and by the time it was over she was sun- Scout, right? The kids range in ages from burned, dehydrated, and covered with bug Kindergarten through Sixth Grade. They bites. She suggests we all start keeping ask amazing questions, and they seem sunscreen, bug spray, and extra water in completely unfazed by the virtual format. our briefcases, instead of the usual office Some parents participate, and they ask supplies. questions, too. I look up the “I Dissent” badge and I really want one. The troop August 20. I’m a partner in a race horse leader asked if I still have my sash, and I named Out of Trouble, and she’s running said I’m pretty sure I do. I would totally sew at Saratoga. The race track allows a limit- the badge onto my sash if I receive one. ed number of owners to attend races, and Or maybe I’d sew it onto my work bag be- we’re allowed to go. We go early in the cause it’s that cool. I then seamlessly switch morning and watch horses jog and gallop platforms and teach a class at Vermont Law in their morning workouts. Midday I find a School via Teams. bench away from everyone and participate in a meeting by phone. Then I have a hear- December 14. I have 5 hearings today, all ing by phone. I’m outside, and where I am by Webex. It feels like “old times” having is quiet, and I realize I can do quite a bit of a day of hearings one right after another. It work from wherever I happen to be. Finally, also feels entirely normal to do everything it’s time for our race, and it’s the most nor- on a screen. I almost can’t believe how mal things have felt in a while. I stand on much I get done every day without ever the rail and scream “Go OOT! Go OOT!” going anywhere. as she runs down the stretch. She crosses the wire first. We get our picture taken in I wish I had kept a better journal of the the winner’s circle. The track has one bar year. One day we’ll look back try to remem- open for owners, and the bartenders are ber how things worked, what we did, and worried that they aren’t making a lot of how we changed how we do what we do. tips. I buy a round of champagne for our We have a rare opportunity right now to partners and we toast to Out of Trouble. make significant changes in the way we do our work; changes that can make us September 30. I have to meet with a cli- more effective, more efficient, and poten- ent in Rutland, but we’re not sure where to tially healthier. I’m interested to hear your go. We end up in the parking lot at Dunkin pandemic practice stories, too. What were Donuts. We use the tailgate of her truck as your successes? What didn’t work? What a writing surface. It’s really windy and be- would you like to see us continue to do in tween the howling wind, the traffic, and the future? I propose we make a bar-wide our face masks we can barely hear each journal of this year’s experiences. It doesn’t other. It’s good to see her, though, and we have to be anything formal, but it would get things done. be a very interesting way to document our collective experience and could serve as a October 1. It’s the VBA’s annual meeting, helpful resource for one another as we con- and I get to become the president! Thank tinue to go forward. you again to all the past presidents who ______participated in the gavel-passing video. It Elizabeth Kruska, Esq. is current Presi- was a fun way to do it, and a good way for dent of the Vermont Bar Association. She us all to remember we’re people who also maintains a solo practice in Woodstock, happen to be lawyers. concentrating in the areas of criminal de- fense, family and juvenile law and is an ad- October 16. I meet some potential cli- junct professor at Vermont Law School. ents outside on a picnic table. It’s raining. We don’t care, and use an umbrella. We’ll end up meeting again a few weeks later on the same picnic table in a “wintry mix” of precipitation. The second time we bring

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PURSUITS OF HAPPINESS Walking Man

JEB: I’m here at my home office virtu- ally interviewing Rick Hubbard for our Pur- suits of Happiness column. As you know, Rick, we interview people with interests, talents or passions outside of the practice of law, especially those who have been do- ing it while they’re practicing law to help keep them balanced. There are so many things in what you sent me where any one could be a standalone article such as your accomplishments in skiing, biking and run- ning, but I was thinking for Vermont lawyers we might want to talk about walking to all of Vermont’s 251 towns. So first question: had you made a goal at the onset to walk to every town or did you do one and then say, hey, wouldn’t it be neat if I could walk them all?

RH: When I began my walk, I hadn’t heard of the Vermont 251 Club. My walk was motivated by Granny D, then an 89-year-old woman from New Hampshire, to 70 different media with opportunities to memories come from this too. I was alone who decided in 1999 she was going to walk talk about that issue. And along with that, walking down the center of Vermont via across the entire country to advocate for it motivated me to run on the same issues Route 100 on September 11th of 2001 when and raise the issue of campaign finance re- against Jim Jeffords in the 2000 US Sen- the twin towers were hit in New York. That form. I had a back door window into that ate race. So I started this walk basically for night I happened to be tenting in a field in through my partner, Sally Howe, because a those reasons. But early on during the walk, Shrewsbury where a pastor friend who lived niece of Sally’s in southwestern Connecti- I heard about the 251 Club, and decided to near my route was having a quickly orga- cut is married to Granny D’s grandson Joe. keep going after my unsuccessful US Con- nized candlelight vigil at his church. So I I learned about this a week before Granny gress run and peck away at it, seeing if I went and it was very moving to participate D started her trip, when Joe, at an extend- could actually walk from one town to the in that. Then as I walked for the next sev- ed family Christmas dinner, was telling me next town and cover the entire 251. eral days, I started asking various Vermont- about his crazy grandmother who had this ers their thoughts about what had hap- harebrained idea to walk across the entire JEB: Were you carrying a sign the whole pened and how we should respond. Inter- United States to advocate for campaign fi- time? estingly, there was a consistent theme to nance reform, and the family couldn’t talk RH: No. Only for the first three sides of the way these folks replied -- they all said, her out of it. Turns out in retrospect, her Vermont that first year, so probably the first they hoped the US wouldn’t over-respond. idea was very effective and generated a lot 500 or 600 miles. In retrospect, their native common sense of national publicity that ultimately helped was pretty wise. We got in way over our to result in the McCain Feingold legislation JEB: This wasn’t a one-year affair... heads first in Afghanistan and subsequently back in 2002. RH: No certainly not, it was completed in in Iraq, but these Vermonters could foresee chunks. those possibilities early on. JEB: Oh right, I think I have heard of her. She did the walk over a few years and died JEB: But 600 miles in a year or so is still JEB: An experience you can never for- in 2010 at 100. quite a feat. get. This section back in September 2001, RH: Yes that’s her! So, I followed her RH: I’d walk about 20 miles per day back was it a chunk where you would bring a progress and actually went down and then, but I enjoyed it and in later years backpack and camp, or did you just do day walked with her in Kentucky for most of a would multitask along the way. I took a little trips? week and listened to her speech in front of iPod and I’d listen to VPR news for a while RH: I walked alone that section of Route Mitch McConnell’s Louisville office about and then I’d turn on my language lessons 100 with a backpack and camped on the the influence of money on our US Senators. and learn and practice speaking German. way, except when I had a friend whose Ultimately, she motivated me to come back And in later years I also worked on some house I’d stay in. But most of the time if I to Vermont and try to amplify that mes- French. walk with a friend, we can have two cars, sage. So I decided I’d walk three sides of one at either end of the day’s walk. And Vermont and carry a sign that would garner JEB: So anybody driving by would see when I’m on my own more, in recent years, attention. this man always walking and often talking in I drive the day’s route from where I last left a strange language to himself! off, with a bicycle in the back of my Prius. JEB: Were your efforts effective? RH: Yes! They’d see some guy talking to At the end I usually leave the bicycle, then RH: I think so! It got me into about 60 himself as he walks along. But lots of fun drive back to the beginning, walk the day’s

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route and then return by bicycle to the be- walking time at roughly three miles an hour, up along the shoreline, perhaps 50 feet out ginning to link up with my car. it’s about 606 hours of walking during those from the docks of the cottages, periodical- 21 years since I first walked away from the ly having conversations with our Canadian JEB: Wow, so then you had to redouble Canadian border in Highgate on Thursday, neighbors at sunset. your efforts, biking while tired! Would you September 30, 1999, and headed South on still walk 20 miles in a day? Route 7 towards the border with Massachu- JEB: This, after walking all day.

Pursuits of Happiness RH: Well, it depended on how old I was. setts. RH: Yes. And the next day was the final In the beginning, it was closer to 20. But day when I walked to Norton where I ended this past year I held it down mostly to be- JEB: What’s the last town you walked to? at the border. tween 10 to 14, but 14 is a little over four RH: Norton this past summer. It was a hours and then you have to bike back. So two day walk from Canaan in the northeast- JEB: Lots to celebrate! that adds another hour or more, depending ern-most corner of Vermont, west to Nor- RH: Of course. We had a fancy dinner the distance. But it’s good exercise, which ton. Sally came along and brought her bike. plus a bottle of wine out on the porch at has been central to my life and I value it. So She parked at the other end of my daily Jackson Lodge. I try to keep it up. walks, found back roads to bike on, and then arrived back at the car about the time I JEB: Did you contact the 251 Club to me- JEB: Have you done some town-walking was to arrive. For those two nights we rent- morialize that you’re a part of it? Did you every year since 1999. ed a cabin at Jackson’s Lodge on Wallace get your name in some book somewhere? RH: No. There were big ups and downs. Pond, partway to Norton. Uniquely, the Ca- RH: Well, yes and no. The organization I did about 600 miles that first year in 1999. nadian border runs right through the cen- has existed a lot longer than I’ve known But then I pecked away at it some years. It ter of Wallace Pond, so we were wondering about it and I’ve known about it for 21 took 21 years till the end, but there were 10 about the protocol… years. But membership in the 251 Club years when I did different hiking and bike doesn’t mean that you have finished travel- trips and did nothing toward my 251 goal. JEB: When you’re not allowed to go to ing to every town in Vermont, it means sim- For the remaining 11, most walking was Canada during the pandemic. ply that you aspire to do it. So there are a lot at the beginning and the end of those 21 RH: Exactly, so the rule is anybody from more people than you’d think. The Club’s years. either side can get in their watercraft and membership is huge. They have a website go anywhere on the water they want, but with an interactive map where you can self- JEB: And you just finished this last year, the Canadians may not actually touch land record everything. For myself, I made up a right? on the American side and vice versa. So form where if the town clerk was open, they RH: Yes, on July 24th! The entire walk to- Sally and I launched a complimentary canoe could attest to my being there, but if they taled 1,666 miles. And if you estimate the and paddled across the border. We went were closed, I’d self-report to keep track.

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years of active duty plus 4 years of reserve duty. The build-up in Vietnam commenced in the fall of 1964 and my service in Europe was idyllic compared to friends of mine a year or two behind. Because of my athletic background, I

Pursuits of Happiness was involved with two US military sports teams. The first was as officer in charge of the military alpine ski team for two winters. The other was first as a member and sub- sequently as officer in charge of a US team competing in a variant of military pentath- lon for four summers. The first year I was fortunate to be a member of the winning USA team at the NATO CIOR (Congress of International Reserve Officers) competition in Copenhagen. And for the following three JEB: Oh yes, I see the website. It says Pe- walking bucket, correct? My understanding years when I was involved, mostly as officer ter Welch completed it in 2006, but I’m not is that you’ve done Vermont’s Long Trail, in charge, one or another of our US CIOR finding you. twice? teams won the entire NATO competition. RH: I haven’t gone on yet as I have a RH: Yes. That was a rarity of which I’m proud. more extensive story to tell. The executive So well before my law practice, when still director is going to connect with me for one JEB: And you’ve done the whole Appala- in the military, I was used to training near- of their upcoming twice a year newsletters chian Trail too? ly 8 hours a day, five days a week through to share my story and, after that, a quick RH: Yes the whole Appalachian Trail. spring, summer and fall. This was hard summary will also go on the website. And The first time I hiked Vermont’s Long Trail training which included running long dis- that reminds me, next time I speak with Pe- in chunks, like my 251 walk. But in 2002, I tances most days, plus running obstacle ter Welch, I’ll mention that we have this in hiked it in 18 days. Plus one rest day in the courses, swimming for time over obstacles, common but encourage him to do it by foot middle because I broke my backpack and and shooting for accuracy. When I returned or bicycle next time instead of by car! had to get the aluminum stay welded. stateside to first earn an MBA at Dart- mouth’s Amos Tuck School of Business, and JEB: By car is still impressive I suppose. JEB: A forced break, but you still did 278 then a J.D at Georgetown Law, I began with Ray Obuchowski, my former law partner, miles in 18 days which is quite impressive. an awesome physical base. worked very hard over the years to catch And so many more hikes! a photo of each of the 251 Town Clerk’s of- RH: Yes, I’ve done about 1200 miles JEB: Enough to run marathons when you fices, and he completed his photo journey on the Pacific crest trail, which goes from came back as well, Right? when I worked there. Do you have pictures the Mexican border to the Canadian bor- RH: Correct, I’ve run four. But before we of each? der. I’ve also walked from Ft. Lauderdale in go on, I’d like to make one more comment RH: No, I don’t. I’m not as motivated to southern Florida to Key West. in relation to the ski team I was involved take pictures. with. I can justify the summer sport athlet- JEB: Isn’t that like 200 miles? ics because it relates pretty directly to be- JEB: Do you have any sense of how many RH: Yes, that winter, I’d had a foot opera- ing in good shape for many aspects of mili- people in the 251 Club have actually walked tion and wasn’t supposed to cross country tary training and effectiveness. But the ski rather than driven or biked? ski for a while. So, if I wanted easy walk- racing, I can’t justify as a matter of public RH: Very few have walked. But several ing, I had to go find someplace without any policy. It seems to be an obvious choice for have done it differently, like attorney Joe snow. The walk was in an odd location but cutting fat out of the military budget. And Cook of Dummerston. He’s bicycled from kind of fun. Most all of that trip is under there are loads of items like that in our mili- one town to another and on every paved six feet above sea level, so I walked along tary. road in every one of the 251 towns. contemplating what a 3-foot rise in sea lev- el would do. JEB: I’m sure that’s the case-- seems like JEB: So that covers a lot more mileage that could be left to the Olympic competi- for sure. JEB: Scary for sure. So many of these tions. So we won’t have time to highlight RH: Yes for sure, and while that’s impres- adventures you’ve been doing while you the marathons, but we can at least add that sive by itself, now that he’s retired, he’s had your own practice for about 30 years. to our list of mileage! Back to the law prac- vowed and already started to mountain Right? tice… bike on every one of the gravel roads in ev- RH: Well I’ve always been very athleti- RH: Yes, when I first returned state- ery town, provided it’s shown on the state cally active, and excelled in alpine ski rac- side, my MBA at Dartmouth’s Tuck Busi- highway map. ing during high school and at UVM. I began ness School was mostly covered by the GI my military service shortly after graduating bill, but when I went on to law school, the JEB: That has to be many thousands of from UVM and before the Vietnam build- GI bill funding was exhausted after my first miles and you’d have to be snaking around up, though not by much. year. So I used my MBA degree and took the same town for hours. UVM, at the time had, mandatory ROTC a full-time job, doing economic consult- RH: Correct. His paved quest took him 25 training since it’s a land grant school. I ing and moved into what actually is a really years and he says he went 10,000 miles! chose to complete four years of ROTC at good program at Georgetown law during UVM and thus entered military service as evenings and weekends. So I stretched my JEB: But I still maintain that walking 1,666 an officer in the spring of 1964 and was as- last two years of law over three years and is impressive. But that’s just a drop in your signed to Germany. My tour was for two combined full-time consulting plus my law

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studies. That kept me off the streets pretty JEB: It’s still 3,800 miles. effectively for my remaining three years in RH: I enjoy the exercise, and even more D.C. so now with my life partner Sally of 29 years. We both share an interest in outdoor activ- JEB: But you did run on the weekends? ities. When she turned 70, for example, I RH: I’d run to work and back and squeeze said, well, it’s a more significant birthday,

Pursuits of Happiness in activity everywhere I could. I was an early how do you want to celebrate it? Is there morning and weekend athlete during much anything bigger than normal you’d like to of my thirty-year law practice. Tuesday and do? Thursdays there was a hike Mount Mans- And she thought about it a couple of field group. We’d meet at 6:30am at the days and said she’d like to hike the John Mt. Mansfield base lodge and hike or snow- Muir trail in California. So we hiked those shoe up to the Octagon—usually via North 195 miles in the high Sierras over 20 days slope, Center Lord and Upper Lord. All be- shortly after her 70th birthday. We’ve done fore work at 9am. And then I had a Wednes- a lot of hiking, bicycling and cross-country day early morning running group that ran ski trips like that. Among others, we bicy- five or six miles before work. So I could cled for three weeks around Provence in work my exercise in, but it meant getting France, which was a wonderful bike trip, up a bit earlier, plus doing some legal work and five years ago we hiked from Lake Ge- later at night. Luckily, I always had control neva, Switzerland to the Mediterranean over my work because I had my own prac- along the French/Italian border. tice. JEB: Those had to be incredible experi- JEB: Exactly! And right on theme with ences, and a way to see things up close and this column. People find whatever relaxes personal. them, motivates them or balances them RH: Well, it’s an amazing way to learn and they find a way to squeeze it in, which about other topics and enjoy new surround- has become more popular since when you ings. With this pandemic, skiing or hiking were practicing. is almost the only time we seem to social- RH: Certainly. I had to learn the hard way ize with other humans. During spring, sum- about balance while practicing law. I started mer and fall we still do the Thursday Mount my law practice in the beginning of 1974, Mansfield hikes, but in prior years we’d al- and I worked really hard for the first three ways go out to breakfast afterwards. We years. I didn’t take any vacation break other can’t do that anymore with COVID, so we than a day or two, but nothing like a week, all bring our breakfasts plus beach chairs, for a good chunk of three years. And I and set them up and eat in a big, social- burned out-- I really burnt out at year three, ly distanced circle in the parking lot. This when I needed three weeks just to recov- helps to bridge the gap because we all er. And I remember spending the first week need social and human contact. down in Antigua at a hotel where I mostly slept for the first three days. JEB: For sure. I’m really enjoying cross country skiing this winter. I can go out my JEB: Definitely sounds like burnout! Bal- door or meet up with friends as we are al- ance is so important to maintaining a law ways about 10 feet apart. Such an impor- practice. tant release from daily work and pandemic RH: Yes, after that, I was a little better at fatigue. taking the time. But most of my marathons RH: It really is so critical. We’ve been ski- and hikes into at least the early 1990s were ing a lot too and it’s been lovely. all just, you know, around the edges of ev- erything with a full-time law practice. But as JEB: Well on that lovely note, I want to I was nearing the end of 30 years of prac- say thanks for this interview even though I tice, closer to retirement, I chose to end a know we didn’t get to all the mileage. And first marriage and needed a break tore- thanks for motivating our readers to get out balance things after that. So that’s when I there, no matter their age! broke free and did the first chunk of the Ap- RH: Thanks to you and the VBA Jennifer, palachian trail. for helping to emphasize the importance of balance between our legal and personal JEB: True, much of your major mileage lives. took place in your retirement years, which is ______equally impressive for other reasons. I mean Do you want to nominate yourself or a didn’t you bicycle across the entire United fellow VBA member to be interviewed for States and when you were 67? Pursuits of Happiness? Email me at jeb@vt- RH: Yes, but I just went at a comfortable bar.org. pace.

14 THE VERMONT BAR JOURNAL • WINTER 2020/2021 www.vtbar.org

by Paul S. Gillies, Esq. RUMINATIONS Nothing But Net: Matters of First Impression

“This is a matter of first impression in the edents. But to say that the decision to label matic changes in the way the high court ap- court. We are not, therefore, bound by prin- something a first impression is something plies the law. After years of deference, the ciples of stare decisis here.”1 parties increasingly requestis too much. Supreme Court announced in 2016 that is The choice belongs to the court, and is of- would interpret a regional plan without def- You can spend an inordinate amount of ten, it seems, unexpected by the parties, erence to the Environmental Court because time trying to find the central principle of who have their heads so tightly wrapped it presents a legal issue.8 In re Mahoney’s the law, a key that sheds light on its dark- around their original positions. Estate (1966) first concluded that the estate er corners, and ties the whole web togeth- When a court makes that declaration, its of a slain husband should be distributed to er neatly. You are bound to fail, of course, approach to resolving the case is no longer his estate, but as the wife had been convict- but keep trying. One way to pry open the bounded by statute or precedent. It is free ed of his death by manslaughter, the court heart of the judicial mind is to see the fall- to make policy. The canvas is rarely a blank can charge the wife with a constructive trust out—the dissents and concurring opinions, slate, a tabula rasa, of course. The court is for the benefit of his parents.9 Chittenden where justices speak for themselves rather not so liberated by the designation that it Town School District v. Department of Edu- than ex cathedra. Another way is to study forgoes all connection to law, but there is a cation (1999) recognized Article 3, prohibit- the reversals of longstanding precedents, greater freedom to adopt maxims and ad- ing compelled taxpayer support of religious those fundamental doctrinal twitches that dress issues that might have lurked in the worship, renders unconstitutional a public set the law on a different course. This time corners of decisions as dicta or as express school district’s tuition-payment policy to the focus is on matters of first impression. refusals to answer questions in earlier cases the extent that it authorizes reimbursement Think of the law as an engine that grinds that have not been properly raised in the to sectarian schools without appropriate re- out decisions, reasoning from statute, com- pleadings. strictions.10 mon law, and precedent. In the majority of Some matters of first impression are of The trigger for first impression designa- cases, once the facts are established, the great moment. Most are small questions tion can come in a variety of ways. A new outcome is all but predetermined. The stat- that rock no one’s world. As in, to what ex- statute gets its first reading by the court, ute has this meaning. A prior case or line tent does Vermont’s turn-signal statute ap- as when the law requiring professionals of cases leads directly to the resolution of ply to traffic in rotaries?4 The statute isn’t to report cases of child abuse was before the present dispute. But then there is the clear. The issue hasn’t come up before now, the court.11 Some matters of first impres- occasional surprise—a question that hasn’t perhaps because rotaries are new to us. It sion may have been identified long before come up before now. Suddenly the court turns out the court didn’t decide it, remand- a case is actually resolved and the question recognizes this as a case of first impression. ing the matter to the trial court to hold a decided.12 First impressions need to fer- This would be a question that has nev- hearing on whether the motorist’s exit con- ment before they are decided. Interlocuto- er been addressed before in the tens of stituted a change of direction to justify a ry appeal is not available, even when the thousands of cases in the Vermont canon. traffic stop that led to an arrest for DUI. case is one of first impression.13 At first, when the Vermont Supreme Court The first impression is a large stone thrown was formed, beginning in 1778, everything into the deliberations. Some have serious The Early History of First Impressions must have been a matter of first impres- consequences for masses of people, well sion. Curiously, the words “first impression” beyond the individual parties. The general The first Vermont case to identify an issue appear for the first time in the reports in corporation law, for example, doesn’t pre- as one of first impression wasState v. Tyrrell Sutton v. Tyrell (1838).2 They appear in ap- vent members of the board of directors of (1838), addressing an audita querela writ to proximately 250 cases from that time to this a reinstated corporation to escape person- set aside an execution and recover damag- year, and they are becoming very common al liability for actions taken while the cor- es. The Supreme Court rejected the com- of late.3 Of the 250, only thirteen appear poration was terminated.5 Others involve plainants’ argument that it had power to re- in the nineteenth century cases. The twen- questions not only of first impressions, but vise a judgment using that writ, and stated, tieth century includes another 98, and the of fundamental ideas. In what was former- “This is a case of first impression, and not twenty-first century contains the remainder, ly known as a bastardy or paternity action, a single authority or analogous case is pro- fully 149. In the last five years alone, there the jury instructions should explain that the duced to sustain it.”14 are 55 cases identified as matters of first degree of proof on the issue of paternity is The next was State v. Riggs (1850). Two impression—22% of the total. By numbers preponderance of the evidence. Although men had broken into a church and rung the alone, the use of “first impression” warrants in its form criminal, the matter is in fact a bell to report the death of Zachariah Park- a closer look. civil remedy.6 Justice Franklin S. Billings Jr.’s er, Jr., who had not died, with the intent to Why the recent trend? Why are first im- decision explained that the court couldn’t annoy, harass and vex Parker and his family pressions increasing epidemically? West- find any policy reason to disagree with the and friends. They were indicted following a law, Lexis, and Casemaker may be one rea- trial judge’s ruling. But this is a fundamen- grand jury hearing for disturbing the peace. son, providing greater investigatory powers tal principle, that should have been decid- Judge Isaac Redfield’s decision conclud- of a court and its clerks. At the same time ed long ago. ed these acts didn’t constitute an offence the world is becoming more complex, and In other cases, while other jurisdictions’ against the statute, that they sounded in li- lawyers more creative. To the extent that a interpretations of legal questions are re- bel instead by attempting to bring Parker party can persuade the high court that what garded as not dispositive, they can rein- into contempt and ridicule and public scan- it asks is as yet unsettled, it might improve force the conclusions of the high court.7 dal, and reversed the conviction. Redfield its position by diluting the impact of prec- Sometimes these cases announce dra- explained,

16 THE VERMONT BAR JOURNAL • WINTER 2020/2021 www.vtbar.org www.vtbar.org THE VERMONT BAR JOURNAL • WINTER 2020/2021 1 7 Land Use Law First Impressions

The former Environmental Board cannot

Ruminations exercise jurisdiction under Section 808 of Title 3, the Vermont Administrative Proce- dure Act, responding to a request for a de- claratory ruling, and have it removed to the Superior Court, in Act 250. The 1974 deci- sion by Justice Robert Larrow stated, “we are confronted with gross irregularities … which would, in sum, make such ‘egregious error’ that we could not in conscience allow the ruling below to stand.” He feared that injustice had been done. He also acknowl- edged Act 250 was a “rapidly developing field.”22 A neighbor can cut the roots and branch- es of a non-line tree encroaching over the Viewed as an unseemly jest, and an court has considered the issue. Parties at- boundary, even if the tree is killed in the attempt to turn a very serious matter tempting to raise such issues for the first process.23 The total damages for calculating into heartless levity and unfeeling mer- time on appeal are likely to be ignored or the timber trespass statute’s treble damag- riment, it would no doubt, by some, be face remands for the building of a record. es provision are computed by determining regarded as a shocking profanity. For In State v. Mountford (2000), the court ad- the value of the trees cut, trebling the val- however the hour of one’s death, and monished the parties for failing to antici- ue, and then making any appropriate allow- the passing knell, and the solemn order pate the Supreme Court’s need to settle ances for remediation or mitigation.24 of a funeral, may seem to us, in health the question of the meaning of the emer- A fraternal organization cannot qualify for and spirits, such matters certainly are gency exception to search warrant require- a “charitable use” exemption from the law fraught with the gravest, the most aw- ments.17 The decision in In re A.G. (1989) of adverse possession on property not in ful importance to all sober men. And in remanded a case relating to the condition- active use.25 The high court relied in part on a Christian community any attempt to al discharge of a patient from a convales- a decision of the Missouri Supreme Court, make one a mark for ridicule through cent center after concluding the lack of re- found persuasive because Missouri had ex- such instrumentalities would ordinar- cords that could aid the court in its deci- pressly adopted the language of Vermont ily be regarded as an unwarrantable sion proved the interlocutory appeal was statutes in writing their own law. Legislative proceeding, a species of profanity. But improvidently granted.18 history also played an important role. the statute having made one kind of As tempting as it may be, the court re- A breached contract to construct a house profanity punishable in a summary way, fuses to address constitutional issues unless with landscaping, which includes a pro- and defined blasphemy as a substan- their determination is essential to the dis- vision for attorney’s fees if litigation is re- tive offence, we are not aware, that it position of the case, even when the issues quired, will justify an award of damages has ever been supposed, that other are of first impression.19 So with the ques- and fees, even though plaintiffs failed to kinds of profanity, not defined in any tion of whether a jailhouse interrogation is demand the fees in their pleading or evi- statute, are punishable criminally.15 presumptively custodial under Article 10 of dence.26 The court, not the jury, decides the the Vermont Constitution, requiring Miran- amount of fees. Redfield found another case of first im- da warnings. The question was inadequate- Where an otherwise permitted use fails pression in Henry v. Vermont Central Rail- ly briefed, but remand was not ordered, as to meet performance standards, the re- road Company (1858). Redfield wrote that the court explained, “even if the issue had viewing tribunal may properly rescind a the court was at a great disadvantage been properly briefed, there is no appar- permit, relying on relevant off-site factors. not having the issue before it—the dam- ent merit to the appeal.”20 Remand is not The appellant argued rescission is not an age caused by the erection of a railroad always required. In Davis v. Davis (1982), option, and that conditions should be used bridge which had changed the course of a the court decided a spouse was entitled to regulate the use, rather than simply de- stream—argued on the part of the plaintiff. to credit for the federal child support pay- nying it, but the high court declined to ac- The court ruled against the landowner. Red- ments against his obligations under prior cept that view.27 field explained, “If we have failed to appre- orders of the court. Cases from other juris- Incidental benefits conferred on a neigh- hend the true ground, or the best ground dictions were not uniform in their approach. bor as a result of a landowner’s self-inter- of the plaintiff’s claim, it will not be matter The trial court had not ruled on the ques- ested property development project did of surprise, when it is considered that the tion, “which would have been the better not constitute an unjust enrichment giving action is one of new impression, and that course,” but the Supreme Court didn’t feel rise to liability in restitution.28 no brief or argument has been submitted the need to remand it, as there was no “rea- Where lots are sold in reference to a re- on the part of the plaintiff, and that our sonable ambiguity” as to the intent of the corded plat, lot purchasers acquire the time will not allow us to make any extensive rule in favor of the credit.21 right to keep open and use roads, streets, research during term, so that the decision What follows are a listing of the rulings highways, and park areas as indicated on is merely that of first impression, from our in some cases of first impression, arranged the plat.29 general reading upon the subject.”16 by subject matter. Some have been subse- Claim preclusion does not bar the Agen- quently overturned or made superfluous cy of Natural Resources from seeking pen- To Hear or Not to Hear by changes in statute, but at the time they alties in a subsequent proceeding, when an were made, they were new and dramatic emergency administrative order explicitly The high court does not like to take up and often surprising. reserved that right.30 cases of first impression unless the trial Exercising a right of first refusal is not

18 THE VERMONT BAR JOURNAL • WINTER 2020/2021 www.vtbar.org Ruminations malice, which is required to support a claim other spouse’s tax returns for the purpose of tortious interference with contract.31 of putting her in a position to know whether A neighbor’s predecessor-in-title does or not she would be justified in requesting not abandon an adverse possession claim modification of support payments, as that when it was foreclosed and not redeemed, constitutes an unwarranted harassment and as long as the continuity element of ad- impertinent intrusion into individual priva- verse possession is met.32 Nonpossessory cy.45 cotenants, ignorant of their interests, can- The standard for harmless-error review not be dispossessed of their rights to title in a forfeiture hearing is clear and convinc- through adverse possession.33 This case of ing.46 first impression, unlike most, did not have a Before becoming entitled to discovery, lasting impact on the law, as but three years defendants seeking to prove selective pros- later the Supreme Court declined to follow ecution must make a threshold showing of its ruling.34 facts justifying the claim.47 Administrative fact-finders may base findings on site visit observations, as long Constitutional First Impressions as those facts are not the exclusive basis for the decision.35 Without willful or outrageous miscon- The law exempting ‘lands belonging to duct, violating a taxpayer’s constitution- the state’ from general statutes of limita- al rights, a Section 1983 civil rights claim tion does not apply to prosecutions against that a school board’s advocacy of a bud- polluters of ground water.36 In this decision, get vote, including the expenditure of pub- the high court used the history of the stat- lic funds, was wrong cannot be sustained.48 ute’s original enactment, its own cases, the Due process does not require a pre-ter- language of the statute, and policy consid- mination hearing for state employees; a erations to affirm the dismissal of a prose- post-termination will satisfy the constitu- cution. tional requirement.49 After the state moved to compel a defen- Evidentiary First Impressions dant convicted of a violent offense to sub- mit to DNA testing, he challenged the stat- Science has provided new tools of evi- ute on Article 11 grounds, arguing he was dence, challenging courts to accept expert denied his right to counsel at the hearing. testimony on emerging technologies. Poly- The high court called this a case of first im- graph tests have not been allowed into evi- pression, but then concluded that another dence, because they are substantially out- case recently decided, applying the law to weighed by the danger of unfair prejudice nonviolent offenses, settled the question. and confuse of issues as a matter of law.37 There was no constitutional infirmity.50 The jury is the only lie detector allowed. The self-incrimination right recognized in Tracking dog evidence to prove the identi- Article 10 of the Vermont Constitution pro- fication of a criminal defendant is sufficient tects against coerced testimony in an inter- probative evidence and admissible.38 An nal police investigation, and a police de- expert on roof design who is not an archi- partment’s promise of use and derivative- tectural engineer may testify in spite of the use immunity violates that right. The entry law prohibiting the practice of engineering order asserts, “we shall not blindly accept without a license.39 There is nothing inher- the federal scheme,” before taking up the ently prejudicial about a criminal trial where state constitutional claim.51 witnesses testify before a jury by videotape. The statute prohibiting knowingly giving Justice Rudolph Daley’s decision from 1975 false information to a law enforcement offi- treated the use of videotape as a novelty, cer with the purpose of defeating an arrest akin to a deposition, and not a “glaring er- did not criminalize protected speech.52 ror striking at the heart of defendant’s con- A direct private right of action for mon- stitutional rights.”40 Close aerial surveil- ey damages is available for violations of the lance by a helicopter of a person’s yard is an state search and seizure provision.53 unreasonable intrusion of privacy.41 In 1996, The First and Fourteenth Amendments in State v. Batchelder (1996), the high court do not require that the qualified protec- ruled the lower court lacked jurisdiction to tions afforded the media in private defama- bar taped depositions and require them to tion actions should be extended to actions be stenographically recorded.42 involving nonmedia defendants (a credit re- The Innocence Protection Act does not porting agency).54 permit DNA testing of a witness not for- Actual knowledge of a collision and re- merly tested during an investigation, af- sultant injury is an essential element of the ter conviction of the defendant.43 “Reason- offense of leaving the scene of an accident able probability,” in the context of the In- (hit and run), although the statute omits nocence Protection Act, means a probabil- the word “knowingly.”55 But the burden of ity sufficient to undermine confidence in the proof is not stringent. The state only needs outcome.44 to prove constructive knowledge on the A spouse cannot obtain copies of the part of the defendant. www.vtbar.org THE VERMONT BAR JOURNAL • WINTER 2020/2021 1 9 the defendant bears the burden of proving right to be free from unbridled government the invalidity of the warrant for lack of prob- interference in our lives.” able cause.60 A defendant has a right under the Con-

Ruminations State troopers had a reasonable suspi- frontation Clause of the Sixth Amendment cion of criminal activity necessary to initi- to be present and confront witnesses at a ate stops of vehicles after discovering the suppression hearing.68 vehicle’s registered owners had suspend- Sealing of records of a conviction for a ed driver’s licenses.61 Reasonable suspicion crime committed before the applicant turns doesn’t require reasonable certainty, but 21 year of age is allowed as long as the ap- only a reasonable belief that there is crimi- plicant has not been convicted of a listed nal activity. crime or adjudicated delinquent for such an A law enforcement officer’s brief sei- offense.69 zure of defendant, whose vehicle had been For the crime of grossly negligent opera- stopped next to a vehicle of another mo- tion of a vehicle, where the legislature de- torist suspected of DUI, was reasonable fines it without reference to victims, there though defendant had not been suspected can be only one conviction arising from a of criminal activity.62 single act of driving, regardless of the num- The automatic stay provisions of V.R.Cr.P. ber of multiple victims.70 62(a)(10) do not apply to appeals from Without active participation, a person post-conviction relief decisions.63 The court can’t be charged with accomplice liability, left the question of whether a judge could based solely of his passive acquiescence to order a discretionary stay to another day, to the events that gave rise to a crime.71 The resolve in another first impression matter. decision explained that it was of first im- The offense of larceny from the person pression because the court had never had does not require that the stolen items be occasion to interpret the statute. directly touching the victim, but when a Defendants are entitled to a jury instruc- defendant takes money from the victim’s tion that any damages awarded would not purse as it lay in the back seat of the car be subject to federal or state income taxa- driven by victim, that’s not larceny.64 The tion, and the failure to so instruct is revers- high court relied on various sources of au- ible error.72 thority, from Blackstone to early Vermont There is nothing in Section 40 of the Ver- cases, in reaching this conclusion. mont Constitution that provides for denial Two lay judges, constituting a majority of of bail because of a defendant’s dangerous the superior court, have the power to over- propensities. Bail is to assure a defendant’s rule the lawyer-trained presiding judge by attendance in court, not a means of pun- A decision-maker may participate in mak- rejecting a proffered plea bargain agree- ishing a defendant or protecting the pub- ing findings with other members of a public ment.65 With the judicial reorganization of lic.73 Cash-only bail violates Section 10 of board based on the written record without 2000, assistant judges were excluded from the Vermont Constitution.74 hearing witnesses testify or observing their the Criminal Division entirely, but in 1984, A sentence imposed in retaliation for a testimony.56 when this case was decided, it engendered threat of appeal and in order to prevent the The adoption of the land gains tax didn’t controversy. appeal violated due process. It is improper violate Article 6 of the Vermont Constitu- The trial court violated due process in for the judge to inquire prior to sentencing tion, which provides that “all Revenue bills accepting an agreement to revoke defen- whether the defendant intends to appeal.75 shall originate in the House of Represen- dant’s probation and modify his sentence The common law remedy of coram no- tatives; but the Senate may propose or without obtaining a waiver from the defen- bis is a viable means to challenge a criminal concur in amendments, as on other bills.” dant.66 Federal case law and that of other conviction.76 Where legislation creates revenue incident states clearly required knowing, voluntary, Attempted voyeurism cannot be prose- to other purposes, and not the general ex- and intelligent waivers. cuted if the one looking can’t see the com- penses and obligations of government, it Motorists may challenge the reasonable- plainant’s intimate areas.77 may begin in the State Senate.57 ness of a traffic stop, and reasonableness A presentence investigation report con- Article 10 guarantees use and derivative justifies a ruling that a stop of a vehicle hav- taining a handwritten statement by peti- use immunity for compelled, incriminatory ing only one operating taillight is lawful but tioner written while undergoing psychiatric testimony, preventing its use at trial.58 one for a vehicle with only one functioning evaluation prior to sentencing, which was The Sixth Amendment to the U.S. Consti- rear license plate light is not.67 Justice De- available to the trial judge but without the tution guarantees the right to counsel at a nise Johnson explained that “[t]his Court knowledge of petitioner, prevents him from presentence interview.59 has never implied, let alone held, that in exercising the right of allocution in a mean- allowing defendants to challenge whether ingful way.78 Criminal First Impressions the law enforcement officer had ‘reason- When indigent defendants are denied able grounds to believe the person was op- counsel and sentenced to a suspended sen- Search and seizure is a fertile area for first erating … a vehicle in violation of section tence and probation, their Sixth Amend- impressions. This year the court ruled the 1201,’ the Legislature intended to preclude ment rights were violated.79 In this decision, exclusionary rule didn’t apply to a violation defendants from challenging the reason- the court explained it was not announcing a of a statute requiring the law enforcement ableness of the stop that led to DUI pro- “new rule, in the sense of overruling or sig- officer executing the warrant to locate cessing and prosecution.” As important is nificantly altering a prior decision; we mere- abused animals without a licensed veteri- removing drunk drivers from the highways, ly interpreted the [public defender act] in a narian present during the search. It also de- she wrote, this principle “may not be sat- case of first impression.”80 In this view, cas- cided, also a matter of first impression, that isfied at the expense of our constitutional es of first impressions treated as putting an-

20 THE VERMONT BAR JOURNAL • WINTER 2020/2021 www.vtbar.org Ruminations other piece of a puzzle together, without A spouse’s undistributed share of an es- disturbing what’s already in place. tate may be considered as property for pur- New rules can arise from cases of first poses of property settlement and mainte- impression. Addressing the recanted tes- nance award in a divorce.87 timony of a government witness who may A trial court has no authority or jurisdic- have committed perjury at trial, the Su- tion to entertain or grant any relief from fi- preme Court created a new rule, mixing el- nal judgment while the denial of a previous ements of both the probability and possibil- request for relief is pending in the Supreme ity standards adopted in other jurisdictions. Court.88 This requires a new trial if the trial judge is reasonably well satisfied that the testimo- Insurance First Impressions ny of a material witness is false, that with- out that testimony the jury probably would Prejudgment interest on money embez- have reached a different conclusion, and zled by a town employee is covered by a that the party seeking the new trial was tak- commercial blanket bond.”89 en by surprise when the false testimony was In 1942, the high court ruled that the given or didn’t know it was false until after construction of a public playground is the the trial.81 performance of a governmental or corpo- rate function and the town entitled to sov- Family Law First Impressions ereign immunity against its negligence.90 Cases from other jurisdictions were conflict- The Family Court had the barred parties ing. One decision, from Massachusetts, set- from conveying or encumbering marital as- tled the question, an opinion that “so well sets during the pendency of a divorce. Be- and clearly sets forth the reasons why in our fore the husband died, he removed the wife judgment a project such as the one here as beneficiary of his insurance policy, and in question should be classed as a govern- the wife sued. The trial court dismissed her mental function.” In 1960, this precedent of claim, as the divorce proceedings had abat- first impression was narrowed by a decision ed with the husband’s death. On appeal, that found a municipality immune from tort the high court found the abatement did not liability for negligence in the operation of a deprive the Family Court from jurisdiction public playground with mechanical equip- under its equitable powers to enforce its ment.91 Matters of first impression would pre-abatement orders.82 Death did not strip naturally be vulnerable to later clarification the Family Court of all jurisdiction over mat- or alteration, before they can be enshrined ters relating to the abated divorce. in the pantheon of legal doctrines. In guardianship proceedings, personal In 2018, the high court ruled munici- knowledge of a developmentally-disabled palities are immune from nuisance claims adult’s welfare is an essential prerequisite when a sewer system backs up into private to qualify under the statute’s definitions of homes.92 “direct interest” and “interested person.”83 Bad-faith failure to pay the policy limit in The Family Court does not need to hold a underinsured motorist benefits claims is ac- hearing on the reasonableness of attorney’s tionable.93 fees in divorce proceedings, as it is a mat- ter of routine. If a party feels aggrieved of Public Utilities First Impressions the fees, it may bring a motion to amend or alter the decision.84 The prior public use doctrine, which pro- A court may order retroactive modifi- hibits condemnation of a public use for an- cation of child support, commencing at a other public use in the absence of express date determined in the trial judge’s discre- or implied legislative authority, doesn’t pro- tion but in no event earlier than the date of hibit condemnation of land devoted to a the motion seeking modification.85Justice public use when the new use does not ma- Ernest W. Gibson III began his decision by terially impair the prior use.94 noting that the controlling statute is silent General Order 45, an important regula- on the question, and “there does not ap- tory tool of the Public Service Board, was pear to be any relevant statutory history.” challenged in 1988 by a party to a purchase A spouse who sacrifices career opportu- power agreement, who moved for expedit- nities in order to further the other spouse’s ed adjudication. The challenge was based attainment of a professional degree, only on whether the federal Public Utility Regu- to see those expectations of financial secu- latory Policies Act preempted the authority rity dashed when the other spouse short- of the board to approve a purchase pow- ly thereafter seeks a divorce, cannot claim er agreement. Justice Frank Mahady wrote the increased earning capacity of the other the opinion of the court. He began by ac- spouse as property subject to distribution knowledging that these “issues are all of as marital property, but Vermont’s spousal substance, and our determination with re- maintenance statute is flexible enough to gard to them can be expected to have pro- permit the court’s consideration of the fu- found and lasting implications for the peo- ture earning prospects in that award.86 ple of this state. A court which is final must www.vtbar.org THE VERMONT BAR JOURNAL • WINTER 2020/2021 2 1 be a court which is careful.” The court won’t force.104 for a new trial.112 be rushed, he wrote, particularly because A municipality may not tax business per- The three-year statute of limitations ap- this is a matter of first impression, denying sonal property of nonprofit corporations.105 plies to actions to recover for injuries to the the motion.95 person.113 A viable fetus, though later still- Ruminations Significant increases in estimat- Trusts and Estates First Impressions born, is a “person” for purposes of constru- ed costs for a natural gas pipeline project, ing liability under the wrongful death act.114 coupled with changes in energy markets, An executor has the power to partition The Supreme Court has authority to sanc- do not amount to a “substantial change” or sell real property in a residual estate tion a retired judge for actions taken during requiring the project owner to obtain an for purposes of distribution to devisees.106 his term, even if no complaint against him amended certificate of public good.96 A conditional or contingent will, which is was filed until after he left the bench.115 made contingent on the happening of an An absentee landlord buying a propane Worker’s Law First Impressions event so that the failure of the condition to tank for use in an apartment building is a The value of tuition-free college occur means there is no will, is permissible consumer under the Uniform Commercial credits constituted an “other advantage” in Vermont, but the decision on whether it Code.116 justifying treatment of them as part of the is conditional must be made at the time the Teachers are public employees and may wages of a claimant for workers’ compen- Probate Court considers the allowance of be held liable for misfeasance resulting sation.97 The ruling, deferring to the Com- the will, as its jurisdiction hinges on there from an injury to a pupil under their charge missioner’s decision, was based on the Leg- being a will.107 and care.117 islature’s intent, the remedial nature of the A person may recover for wrongful inva- program, and the need to liberally construe Miscellaneous First Impressions sion of privacy when her employer, with- it to provide benefits to an injured worker. out her consent, runs an advertisement in Justice Beth Robinson underscored that The Supreme Court won’t regrade the ex- a publicly-circulated newspaper displaying workers’ compensation isn’t a public wel- amination papers of a candidate for admis- her name and photograph and a text, false- fare program or part of the social safety sion to the bar. That’s the business of the ly attributed to her, that praises the em- net; it’s an insurance system. Board of Bar Examiners, who are the exclu- ployer.118 The inclusion of wages earned sive judges, and their decisions won’t be re- An exculpatory agreement releasing de- during a base period from excluded em- viewed by the high court without clear and fendants from all liability from negligence is ployers is mandated in computing weekly unequivocal allegations of probative facts. void as contrary to public policy.119 benefit amounts of a claimant for unem- “The result,” explained the court, “is con- A retiring Governor may agree with the ployment compensation.98 sistent with established principles of plead- Secretary of State to seal all official corre- Loss of consortium cannot be part ing and practice and in accord with the rule spondence for a reasonable period of time, of a worker’s compensation award.99 prevailing in other jurisdictions.”108 in spite of the provisions of the Public Re- The labor dispute disqualification As a matter of first impression, the Su- cords Act.120 in unemployment compensation applies preme Court faced a question of whether only when, as a result of the dispute, the a pretrial stipulation signed by the plaintiff, The Use of Restatements as Authority business is substantially curtailed by the a union school district, and two of the de- dispute; otherwise, striking workers are en- fendants, a general contractor and roofing When case law is unhelpful, statutory his- titled to compensation.100 subcontractor, was a “Mary Carter” agree- tory is missing or confusing, and statutes Resume fraud or misrepresenta- ment, and so void as a matter of law. The themselves unable to settle questions, the tion during the hiring process constitutes remaining defendant was not a party to the Vermont Supreme Court has turned to Re- just cause for dismissal.101 agreement, which limited the maximum li- statements to provide direction to resolve ability of the other defendants, diminish- first impression cases. Tax First Impressions ing the judgment proportionately and so The Legislature never enacted these uni- A church claimed a tax exemp- increasing the liability of the defendant form “laws,” although they are cited as tion for its storage building, cabins, hous- who was not a party to the agreement. The authority by Vermont courts. It was 1938 ing campers, the kitchen where meals were agreement had been filed with the court, when the Supreme Court first mentioned prepared, and the lands surrounding the and was not secret, which settled the ques- them, in State v. Wilson, where the Restate- church. At trial and on appeal, the claim tion, as secrecy was the operative charac- ment of Contracts provided some direc- was denied. In ruling on the question, the teristic of a Mary Carter agreement. In rul- tion to the Court in a criminal action against court noted that in matters of first impres- ing on the question, Justice William Hill’s a man conducting a private lottery.121 Of sion, “we are cautious to rely on the ruling decision reviewed caselaw in other juris- course, there had been treatises on the law derived from distinct statutory schemes.” dictions, but relied largely on the policy for hundreds of years before that time, in- As the Vermont law was narrower than the considerations underlying the use of such cluding Coke, Blackstone, Kent, and even laws of other states that had decided the agreements.109 our own Isaac Redfield, whose treatises on matter, the court didn’t find them persua- A condominium unit owner may sue an Railroads and on other subjects made him a sive.102 association when another unit owner vio- comfortable living after he retired as Chief Receiving and subsequently tele- lates an obligation of the covenants or by- Judge of the Vermont Supreme Court. vising films and video tapes supplied to a laws.110 But the Restatements of Contracts, Trusts, taxpayer for a fee by out-of-state distrib- A landowner who leased his land to the Torts, and Property, which are the product utors constitutes a taxable use under the owner of a horse, for pasture, has no duty of the American Law Institute (first founded sales and use tax statutes. Cases from other to prevent the horse from escaping and in 1923) seem to have a cachet that puts jurisdictions provided a genuine split of au- harming passing motorists.111 “This view,” them on the same footing as a statute. thority on the issue, but the high court re- wrote Justice Marilyn Skoglund, “is in line A sheriff’s department is not vicariously lia- lied on a decision from Arkansas as more with centuries of Vermont statutory law.” ble for a deputy’s misconduct under a theory persuasive than others cited.103 A Vermont trial court may, sua sponte, in of apparent authority.122 Justice Dooley ex- A real estate firm is required to pay un- the absence of a party’s request, waive the plained, “This is a case of first impression in employment tax contributions of its sales time requirements for a conditional order which we are discharging our traditional

22 THE VERMONT BAR JOURNAL • WINTER 2020/2021 www.vtbar.org Ruminations role of defining the common law. Exact- court is unlikely to change its mind, as it ly because we seek to follow the common does at times with reversals of longstand- law as it has developed in the jurisdictions ing principles. Unlike most decisions where in this country, we have used the Restate- precedents or statutes settle things, and ment of Agency to find the appropriate law. more like the way the court handles legal See American Law Institute, I Restatement questions on appeal, matters of first im- of the Law of Contracts, introduction at viii pression justify a review that is nondeferen- (1932) (explaining that the purpose of a Re- tial and plenary about its own prior work. statement is ‘the preparation of an orderly There is no horn section in the Supreme restatement of the common law’ to reduce Court chambers, but we could imagine an uncertainty in the law). In saying this, we do all- brass fanfare sounding and echoing not shirk from our duty ‘to adapt the com- throughout that building when a case is mon law to the changing needs and condi- named a matter of first impression. A bright tions of the people of this state.’”123 light shines down on the conference ta- Determining whether a tortious act has ble, illuminating a void in the rich fabric of been done as part of a common design the law, insisting on being filled with ideas with another tortfeasor requires a finding that knit other rules together. This must be of at least some knowledge or awareness the most difficult and delightful duty of the of the pertinent attendant circumstances.124 court. A deep conservative view would in- The Restatement of Torts decided that sist that new rules be adopted into stat- point. In another matter both parties relied ute by the General Assembly, questioning on the Restatement in making their argu- whether the separation of powers authoriz- ments. The court explained, “We frequent- es blatant lawmaking by the third branch. ly have adopted provisions of this Restate- But it’s too late for that argument. If the ment where our law is undeveloped.”125 Legislature disagrees, it can always correct Restatements sometimes carry greater the principle by legislation. Curiously, that weight than any other source. They have has rarely happened. greater authority than caselaw from other ______jurisdictions, although when those other ju- Paul S. Gillies, Esq., is a partner in the risdictions rely on Restatements, their cases Montpelier firm of Tarrant, Gillies & Rich- grow in power. Ultimately, though, the Ver- ardson and is a regular contributor to the mont Supreme Court is beholden to no au- Vermont Bar Journal. A collection of his col- thority in matters of first impressions. It may umns has been published under the title of find support in Restatements or cases, but Uncommon Law, Ancient Roads, and Other the court’s independence at the moment of Ruminations on Vermont Legal History by decision is essentially unrestrained. the Vermont Historical Society. Paul is also the author of The Law of the Hills: A Judi- The Use of “First Impression” cial History of Vermont (© 2019, Vermont Historical Society). The phrase “first impression” has been ______used in several cases with a different mean- 1 Webb v. Navistar International Transportation Corporation ing. Rather than identifying a new issue, , 166 Vt. 119, 138, 692 A.2d 343, 353 (1996). This is from Justice Denise Johnson’s dis- the judges and justices told how their first senting opinion. impressions of cases were wrong. In 2012, 2 Sutton v. Tyrell, 10 Vt. 87 (1838). the question of the use of ex ante instruc- 3 There are far more than 250 first impression tions in a search warrant to protect the pri- cases where those words don’t appear in the decision or head notes. One of the classic zon- vacy interests of the person to be searched ing cases, Smith v. Winhall Planning Commis- at first appeared to address the scope of sion (1981), for instance, settles the question protections of a constitutional provision, of whether a pending application for a permit but on a second look was “more about the should be judged on the bylaws in place at the tools available to ensure that protection oc- time the application is filed or subject to subse- 126 quent changes made after that date. The court curs.” In 1839, Judge Milo Bennett stat- decided to select the minority rule, that the ap- ed, “On the whole, then, though our first plication is immunized from a change in rules. impressions might have been to the con- Smith v. Winhall Planning Commission, 140 Vt. trary, we come to the conclusion that there 178, 436 A.2d 760 (1981). The words “first im- pression” do not appeal in the decision. is error in the proceedings of the county 4 State v. Harris, 186 Vt. 225, 980 A.2d 785 court, and the judgment below is reversed (2009). ¶ 4. and a new trial granted.”127 No one may 5 Daniels v. Elks Club of Hartford, 192 Vt. 114, criticize a judge or justice or court for con- 58 A.3d 925 (2012). ¶ 59. 6 Montgomery v. Watts sidering and rejecting ideas before reach- , 135 Vt. 464, 380 A.2d 75 (1977). ing a final conclusion. 7 State Farm Mutual Automobile Insurance When the court announces a question is Company v. Colby, 194 Vt. 532, 539, 82 A.3d a matter of first impression, it is not signal- 1174, 1179 (2013). 8 ing any indecision. It is creating the space In re B.&M Realty, LLC, 204 Vt. 438, 158 A.3d 754 (2016). to articulate its own policy on a close ques- 9 In re Mahoney’s Estate, 126 Vt. 31, 220 A.2d tion of law. Sometimes first impressions can 475 (1966). be wrong. But once welded into place, the 10 Chittenden Town School District v. Depart- www.vtbar.org THE VERMONT BAR JOURNAL • WINTER 2020/2021 2 3 ment of Education, 169 Vt. 310, 738 A.2d 539 (2019). 98 Grenafege v. Department of Employment Se- (1999). 54 Greenmoss Builders, Inc., 143 Vt. 66, 461 A.2d curity, 134 Vt. 288, 357 A.2d 118 (1976). 11 Packard v. State, 147 Vt. 256, 514 A.2d 708 414 (1983). 99 Derosia v. Book Press, Inc., 148 Vt. 217, 531 (1986). 55 State v. Sidway, 139 Vt. 480, 431 A.2d 1237 A.2d 905 (1987). 12 Payne v. U.S. Airways, Inc., 100 Ruminations 186 Vt. 458, 987 (1981). Trapeni v. Department of Employment Secu- A.2d 944 (2009). 56 Lewandoski v. Vermont State Colleges, 142 Vt. rity, 142 Vt. 317, 455 A.2d 329 (1982). 13 State v. McCann, 149 Vt. 147, 541 A.2d 75 446, 457 A.2d 1384 (1983). 101 Sarvis v. Vermont State Colleges, 172 Vt. 76, (1987). 57 Andrews v. Lathrop, 132 Vt. 256, 315 A.2d 860 772 A.2d 494 (2001). 14 Sutton v. Tyrrell, 10 Vt. 87 (1838). (1974). 102 Brownington Center Church of Brownington, 15 State v. Riggs, 22 Vt. 321, 323-324 (1850). 58 State v. Ely, 167 Vt. 323, 708 A.2d 1332 (1997). Vermont, Inc. v. Irasburg, 195 Vt. 196, 87 A.3d 16 Henry v. Vermont Central Railroad Company, 59 In re Carter, 176 Vt. 322, 848 A.2d 281 (2004). 502 (2013). 30 Vt. 638, 641 (1858). 60 State v. Sheperd, 204 Vt. 592 (2010). 103 Mount Mansfield Television, Inc. v. Vermont 17 State v. Mountford, 171 Vt. 487, 760 A.2d 639 61 State v. Edmonds, 192 Vt. 400, 58 A.3d 961 Commissioner of Taxes, 133 Vt. 284, 336 A.2d (2000). (2012). 193 (1975). 18 In re A.G., 151 Vt. 167, 559 A.2d 167 (1989). 62 State v. Pierce, 173 Vt. 151, 787 A.2d 1284 104 In re Smith, Bell & Hauck Real Estate, Inc., 132 19 State v. Baker, 145 Vt. 295, 487 A.2d 163 (2001). Vt. 295, 318 A.2d 183 (1974). (1984). 63 In re Jones, 185 Vt. 638, 973 A.2d 1198 (2009). 105 Vermont Alliance of Nonprofit Organizations 20 State v. LaFountain, 146 Vt. 649, 499 A.2d 796 64 State v. Brennan, 174 Vt. 277, 775 A.2d 919 v. City of Burlington, 177 Vt. 47, 857 A.2d 305 (1985). (2001). (2004). 21 Davis v. Davis, 141 Vt. 398, 401, 449 A.2d 947, 65 State v. Hunt, 145 Vt. 34, 485 A.2d 109 (1984). 106 In re Estate of Fitzsimmons, 195 Vt. 94, 86 949 (1982). 66 In re Jankowski, 203 Vt. 418, 157 A.3d 573 A.3d 1026 (2013). 22 In re State Aid Highway No. 1, Peru, Vermont, (2016). 107 In re Estate of Holbrook, 201 Vt. 254, 140 A.3d 133 Vt. 4, 9, 328 A.2d 667, 670 (1974). 67 State v. Lussier, 171 Vt. 19, 32, 757 A.2d 1017, 788 (2016). 23 Alvarez v. Katz, 199 Vt. 510, 124 A.3d 86 1023-1024 (2000). 108 In re Monaghan, 126 Vt. 193, 194, 225 A.2d (2015). 68 State v. Grace, 204 Vt. 68, 165 A.3d 122 387, 387-388 (1967). 24 State v. Singer, 180 Vt. 104, 904 A.2d 1184 (2016). 109 Vermont Union School Dist. No. 21 v. H.P. (2006). 69 State v. Villeneuve, 202 Vt. 495, 150 A.3d 622 Cummings Const. Co., 143 Vt. 416, 469 A.2d 742 25 MacDonough-Webster Lodge No. 26 v. Wells, (2016). (1983). 175 Vt. 382, 832 A.2d 25 (2003). 70 State v. LaBounty, 179 Vt. 199, 892 A.2d 204 110 Watson v. Village at Northshore I Association, 26 Murphy v. Stowe Club Highlands, 171 Vt. 144, (2005). Inc., 207 Vt. 154, 184 A.3d 1133 (2018). 761 A.2d 688 (2000). 71 State v. Millette, 173 Vt. 596, 795 A.2d 1182 111 Deveneau v. Wielt, 201 Vt. 396, 144 A.3d 324 27 Terino v. Town of Hartford Zoning Board of Ad- (2002). (2016). justment, 148 Vt. 610, 538 A.2d 160 (1987). 72 Stowell v. Simpson, 143 Vt. 625, 470 A.2d 112 May v. Breer Brothers, Inc., 144 Vt. 266, 475 28 Birchwood Land Company, Inc. v. Krizan, 198 1176 (1983). A.2d 1082 (1984). Vt. 420, 115 A.2d 1009 (2015). 73 State v. Pray, 133 Vt. 537, 346 A.2d 227 (1975). 113 Rennie v. State, 171 Vt. 584, 762 A.2d 1272 29 Clearwater Realty Company v. Bouchard, 146 74 State v. Hance, 180 Vt. 357, 910 A.2d 97 (2000). Vt. 359, 505 A.2d 1189 (1985). (2006). 114 Vaillancourt v. Medical Center Hospital of Ver- 30 Agency of Natural Resources v. Supeno, 207 75 State v. Thompson, 158 Vt. 452, 613 A.2d 192 mont, Inc., 139 Vt. 138, 425 A.2d 92 (1980). Vt. 108, 185 A.3d 1264 (2018). (1992). 115 In re Steady, 161 Vt. 636, 641 A.2d 117 (1994). 31 Field v. Costa, 184 Vt. 230, 958 A.2d 1164 76 State v. Sinclair, 191 Vt. 489, 49 A.3d 152 116 Barrett v. Adirondack Bottled Gas Corporation (2008). (2012). of Vermont, 145 Vt. 287, 487 A.2d 1074 (1984). 32 Parker v. Potter, 197 Vt. 577, 109 A.3d 406 77 State v. Devoid, 188 Vt. 445, 8 A.3d 1076 117 Eastman v. Williams, 124 Vt. 445, 207 A.2d 146 (2014). (2010). (1965). 33 In re Estate of Neil, 152 Vt. 124, 565 A.2d 1309 78 In re Stevens, 144 Vt. 250, 475 A.2d 212 118 Stanuski v. Continental Telephone Co. of Ver- (1989). (1984). mont, 154 Vt. 568, 581 A.2d 266 (1990). 34 In re Estate of Johnson, 158 Vt. 557, 613 A.2d 79 State v. DeRosa, 161 Vt. 78, 83, 633 A.2d 277 119 Dalury v. S-K-I, Ltd., 164 Vt. 329, 670 A.2d 795 703 (1992). (1993). (1995). 35 In re Quechee Lakes Corporation, 154 Vt. 543, 80 State v. Brown, 165 Vt. 79, 83, 676 A.2d 350, 120 Judicial Watch, Inc. v. State, 179 Vt. 214, 892 580 A.2d 957 (1990). 353 (1996). A.3d 191 (2005). 36 State v. Atlantic Richfield Company, 202 Vt. 81 State v. Robillard, 146 Vt. 623, 508 A.2d 709 121 State v. Wilson, 109 Vt. 349, 196 A.757 (1938). 212, 221, 148 A.3d 559, 565 (2016). (1986). 122 Doe v. Forrest, 176 Vt. 476, 500, 853 A.2d 48, 37 Rathe Salvage, Inc. v. R. Brown & Sons, Inc., 82 Aither v. Estate of Aither, 180 Vt. 472, 913 67 (2004). 191 Vt. 284, 46 A.3d 881 (2012). A.2d 376 (2006). 123 Justice Dooley’s quotation is from Hay v. Med. 38 Agency of Natural Resources v. Supeno, 207 83 In re Guardianship of C.H., 208 Vt. 55, 194 Ctr. Hosp. of Vt., 145 Vt. 533, 542, 496 A.2d 939, Vt. 108, 185 A.3d 1264 (2018). A.3d 1174 (2018). 944 (1985). 39 South Burlington School District v. Calcagni- 84 Ely v. Ely, 139 Vt. 238, 427 A.2d 361 (1981). 124 Lussier v. Bessette, 189 Vt. 95, 16 A.3d 580 Frazier-Zajchowski Architects, Inc., 138 Vt. 33, 85 Towne v. Towne, 150 Vt. 286, 952 A.2d 404 (2010). 410 A.2d 1358 (1980). (1988). 125 Birchwood Land Company, Inc. v. Krizan, 198 40 State v. Moffit, 133 Vt. 366, 340 A.2d 39 86 Downs v. Downs, 154 Vt. 161, 574 A.2d 156 Vt. 420, 425, 115 A.2d 1009, 1012 (2015). (1975). (1990). 126 In re Search Warrant, 193 Vt. 51, 63, 71 A.3d 41 State v. Bryant, 183 Vt. 355, 950 A.2d 467 87 Osborn v. Osborn, 147 Vt. 432, 519 A.2d 1161 1158, 1165 (2012). (2008). (1986). 127 Town of Greensborough v. Town of Underhill, 42 State v. Batchelder, 165 Vt. 326, 683 A.2d 88 Kotz v. Kotz, 134 Vt. 36, 349 A.2d 882 (1975). 12 Vt. 604, 607 (1839). 1002 (1996). 89 Town of Ira v. Vermont League of Cities and 43 In re Wiley, 192 Vt. 393, 58 A.3d 966 (2012). Towns, 198 Vt. 12, 109 A.3d 893 (2014). 44 In re Towne, 195 Vt. 42, 86 A.3d 429 (2013). 90 Lemieux v. City of St. Albans, 112 Vt. 512, 28 45 Kaplan v. Kaplan, 143 Vt. 102, 463 A.2d 223 A.2d 373 (1942). (1983). 91 Marshall v. Town of Brattleboro, 21 Vt. 417, 46 State v. Ferguson, 2020 WL 2791855 (2020). 160 A.2d 762 (1960). 47 State v. Wesco, Inc., 180 Vt. 345, 911 A.2d 281 92 Lorman v. City of Rutland, 207 Vt. 598, 193 (2006). A.3d 64 (2018). 48 Putter v. Montpelier Public School System, 166 93 Bushey v. Allstate Insurance Co., 164 Vt. 399, Vt. 463, 697 A.2d 354 (1997). 670 A.2d 807 (1995). 49 In re Maher, 132 Vt. 560, 326 A.2d 142 (1974). 94 In re Vermont Gas Systems, Inc., 205 Vt. 509, 50 State v. Ritter, 184 Vt. 565, 956 A.2d 1141 174 A.3d 1253 (2017). (2008). 95 In re Investigation into General Order 45 No- 51 Burlington Police Officers’ Association v. City tice Filed by Central Vermont Public Service Cor- of Burlington, 166 Vt. 581, 581-582, 689 A.2d poration, 149 Vt. 285, 542 A.2d 288 (1988). 1071, 1073 (1996). 96 In re Conservation Law Foundation, Inc., 207 52 State v. Albarelli, 203 Vt. 551, 159 A.3d 627 Vt. 309, 188 A.3d 667 (2018). (2016). 97 Haller v. Champlain College, 206 Vt. 86, 177 53 Zullo v. State, 209 Vt. 298, 205 A.3d 466 A.3d 497 (2017).

24 THE VERMONT BAR JOURNAL • WINTER 2020/2021 www.vtbar.org “In the end, we will remember not the words of our friends but the silence of our enemies” –Martin Luther King, Jr. 2021 VBA/YLD/Diversity MLK, Jr. Middle School Poster-Essay Contest

And for the WINNERS of the 2021 MLK, Jr. Poster-Essay Contest:

Elizabeth Cunningham and William Cunningham, Edmunds Middle School

Winning essay reprinted in this issue!

First Runner Up: Maeve Parker-Clark, Second Runner Up: Isak Duncan Hinesburg Community School U-32 Middle School

WHAT’S NEW Fourth Annual Martin Luther King, Jr. Middle School Poster-Essay Contest

The centerfold of this Vermont Bar Jour- nal features thumbnails of the record num- ber of submissions by middle school stu- dents for our 2021 Martin Luther King, Jr. poster-essay contest. Our blog story about the successful virtual ceremony is reprint- ed below (ICYMI), as a companion piece to the winning posters, submission images and winning essay, all printed in this issue. What is clear from the volume of thought- ful submissions is that the chosen quote by Dr. King not only resonated with students, it also sparked some incredibly profound in- trospection among Vermont’s youth during these turbulent times. The VBA, along with its Diversity Sec- tion and Young Lawyers Division, hosted the fourth annual Dr. Martin Luther King, Jr. Middle School Poster-Essay Contest. Each year, a committee comprised of representa- tives from the VBA, the VBA Diversity Sec- tion and the VBA Young Lawyers Division, chooses a quote by the late Dr. King to in- spire the students to participate in the con- Martin Luther King, Jr. understood the power of words, test. This year’s quote: “In the end, we will remember not the words of our enemies but he also understood the weight of silence, especially but the silence of our friends” served as in- from his friends. The eagle confined in a cage represents spiration to over 70 students who submit- King and other black people in America. The cage is formed ted a record number of entries! The committee had a daunting task as from words of hatred like the words shouted by members of 2020 came to a close of having to choose the Ku Klux Klan when they burned churches, houses, and the top 3 Poster-Essay combinations, based schools. on criteria such as relevance to theme, The eagle flying away symbolizes white townspeople who spelling and grammar, content, quality of design and creativity. Given the quality (and knew of the attacks. The key grasped in its talons signifies quantity) of this year’s submission, this was how bystanders could have used their privilege and power to no easy task! The contest winner, first run- protest, but they chose silence. The eagle soaring away from ner-up and second runner-up are ordinar- the cage is not looking back, but the imprisoned eagle is ily invited to an in-person ceremony con- ducted by the Governor at the Statehouse watching him, yearning for the free eagle to return and help. and the Justices of the Supreme Court in The caged eagle is not scarred by the hateful words that the Vermont Supreme Court building. This confine it. It is hurt by the betrayal of a friend who carries the year, however, the ceremony had to be con- ducted virtually due to the pandemic, but key, a key that could replace those words with support and the students and families took it in stride. hope. VBA President Elizabeth Kruska kicked In America, eagles are emblematic of liberty and power, off the ceremony with introductions and just as the ideals and dreams of King made him a symbol of a bit of history about the contest and the chosen quote. Next, Chief Justice Reiber unstoppable freedom. The deep violet and azure-streaked continued the opening ceremony with sky promises freedom and justice for the confined eagle. In some remarks about the importance of cel- a similar way, King found hope for civil rights in each person ebrating the Martin Luther King, Jr. holiday who stood by his side and took his ideals to heart. every year and how his message resonates today. Vermont Superior Court Judge Nan- In the end, the confined eagle will not remember cy Waples, who was the first chair of the the degrading words that imprisoned it but rather the VBA Diversity Section when the MLK, Jr. overwhelming silence of its departing friend. Poster-Essay Contest was established, then expressed how impressed she was that all

30 THE VERMONT BAR JOURNAL • WINTER 2020/2021 www.vtbar.org What’s New of the submissions dealt with the subject of al experience. Justice Carroll stated that racial inequality with such insight, despite she felt so honored to award the prize to most not having experienced the discrimi- such a deeply personal piece of art and es- nation that she and other people of color say and how poignant both were. Isak then have experienced throughout their lives. described his experience at the tech camp, Next to speak was Justice Beth Robinson, noting that he’d be a rich person if he had who had the honor of awarding the trophy a nickel for every time he heard comments to the contest winner. Justice Robinson em- such as “Asian nerd,” but those comments phasized how Dr. King’s words and life’s have always been far easier to brush off work are especially resonant during these than when one of his friends stood by in tumultuous times and expressed hope silence when those words were thrown at that the students looked to have the quali- him. He noted that the essay was not meant ties and power to “save us all” with their to be a sob story or to be focused on the ra- thoughtfulness and commitment to the val- cial slur itself, but more toward the greater ues of Dr. King and their deep understand- hurt caused by friends who were silent. ing that silence is complicity. Closing remarks were given by Justice And on to the winners… William Cohen, who made a special request for more prize winners next year so he’d get William Cunningham and Elizabeth a chance, as the newest associate justice, to Cunningham from Edmunds Middle School present an award himself! Justice Cohen won the contest with the first place trav- thanked all of the students for their amaz- eling trophy for their school and plaques. ingly creative submissions and emphasized William and Elizabeth (6th and 8th grade) de- how proud they (and their families) should scribed the poster in detail and explained all be for tackling the quote with such in- how the eagle in the cage, while caged lit- sight and creativity. He tied all the posters erally and figuratively by the words of hate, to the Vermont motto of “freedom and uni- instead looks through the bars to the free ty” and how important it is for all Vermont- eagle, flying away with the key to unlock ers to support each other. President Krus- the cage. The students described how the ka closed the ceremony noting how great it free but silent eagle with the key has more was to hear the kids describe their posters power to hurt the caged eagle than the in detail and how each student interpreted cage itself. Although the judging was com- the quote in a different way. Said Kruska: pletely blind and anonymous, Justice Rob- “We certainly have different ideas, but are inson noted that Elizabeth Cunningham unified in where we are all trying to go.” once won this contest and once came in The video of the full ceremony is avail- second in prior years, showing her creativ- able on our YouTube page, also linked in ity knows no bounds! This poster and essay our law blog (vbablawg.blogspot.com)! will be featured in the Winter Vermont Bar Journal being published within the month.

Maeve Parker-Clark from Hinesburg Community School (8th grade) received the first runner-up prize, presented by Justice Harold Eaton. Before awarding the plaque virtually, Justice Eaton noted that he was just a bit older than the contestants when Dr. King was assassinated, remembering that Dr. King was a beacon of light in very turbulent times and was a messenger of peace and tolerance, so fitting to be hon- ored today with a record number of en- tries. Maeve then spoke and described her poster as relating Dr. King’s words to modern-day bullying and harassment. She wrote about the need to speak up, becom- ing more aware that silence is powerful and can equal violence and that not speaking out gives rise to bullying.

Isak Duncan from U-32 Middle School (8th Grade) was the second runner-up prize winner, referenced by Judge Waples in her opening remarks as presenting a more per- sonal take on Dr. King’s quote. Justice Kar- en Carroll delivered his award, virtually, and asked Isak to give more detail about his poster and essay, drawn from person- www.vtbar.org THE VERMONT BAR JOURNAL • WINTER 2020/2021 3 1 by Teri Corsones, Esq. WHAT’S NEW E-Filing Fees Status in Vermont State Courts

At roughly the same time that the COV- The Committee’s Charge and Designa- fees through December 30, 2020 and that ID-19 pandemic began to dramatically im- tion was to immediately review the e-fil- the “User Agreement” that e-filers must pact life as we knew it, a new case man- ing fee aspects of the Odyssey e-filing sys- sign to utilize the Odyssey File and Serve agement and e-filing system began rolling tem, including substantive concerns of bar system was to be brought into compliance out in the Windham, Windsor and Orange members, ethical implications of the e-fil- with 9 V.S.A. chapter 152, which prohibits Units. The new case management system ing fee, and the training materials provided unconscionable terms in contracts. Attor- was implemented in March 2020, and the in conjunction with the e-filing fee aspect ney Cabot Teachout was especially instru- e-filing fee aspects of the new Odyssey of the system. The Committee was also mental in bringing to light issues about the “File and Serve” system began operations charged with making a recommendation to User Agreement. in April 2020. The VBA immediately began the VBA Board at its Board meeting in May With respect to the first provision, the receiving comments and concerns about with respect to a VBA position about e-fil- VBA established two separate groups to the e-filing fees. Several days later, then- ing fees following the Committee’s review. meet with the Judiciary, one to present VBA Board President Elizabeth Novotny The Committee acted expeditiously to pre- court users’ experience with the Odyssey and VBA Executive Director Teri Corsones pare a detailed E-Filing Fees Study Report File and Serve system and the other to ex- raised those concerns during a weekly and the VBA Board voted on May 15 to amine alternatives to the current e-filing phone conference with Judiciary and CAO approve the Report. The Report was then charges. The Court Users’ Group includ- leadership. The following day the VBA provided to the Vermont Supreme Court, ed a representative from State’s Attorneys Board held a special meeting to review the to the Court Administrator’s Office, and (Tracy Shriver, Esq.), Public Defenders (Jor- concerns and voted to create an Ad Hoc E- presented to the Senate Committee on Ju- dana Levine, Esq.), the Civil Division (Sa- Filing Fees Study Committee. diciary, which took an active and welcome mantha Snow, Esq.), the Family Division Nine months later, much has happened interest in the topic. (Penny Benelli, Esq.), the Probate Division in the e-filing world in state courts in Ver- The Report particularly noted access to (Amelia Darrow, Esq.), the Judicial Bureau mont. The initial rollout to Windham, Wind- justice concerns associated with the per (Cabot Teachout, Esq.), the Access to Jus- sor and Orange was extended to Benning- envelope fee, including reduced access to tice Community (David Koeninger, Esq.) ton, Rutland, Addison, Chittenden and the pro bono and low bono services due to the and the Pro Se Litigant Community (Mary Environmental Division in September, and cost and unpredictability of per envelope Ashcroft, Esq.). The Alternative E-Filing is scheduled to be extended to Caledonia, fees, the creation of barriers that impede Fee Group included representatives from Essex, Franklin, Grand Isle, Lamoille, Or- access to an on-line system for self-rep- the Civil Division (Andrew Manitsky, Esq.), leans, and Washington in March. Numer- resented litigants, and a lack of clarity re- the Family Division (Amber Barber, Esq.); ous Bar News items have been posted as garding the scope of fess in particular sit- the Probate Division (Mark Langan, Esq.), events unfolded. We provided a brief over- uations that frequently arise for attorneys Vermont Legal Aid (Jean Murray, Esq.), the view of those events at this point in time, providing pro bono or low bono services. private bar providing low bono represen- and provided a status report as to where The Report’s several recommendations in- tation (Matt Garcia, Esq.), and the Pro Se matters regarding e-filing fees stand - cur cluded that the CAO engage with the bar Litigant Community (Mary Ashcroft, Esq.). rently. and other court users to determine the Input was also solicited from the member- The VBA is deeply indebted to the many best e-filing fee option for Vermont. ship at large, and many thoughtful and trial practitioners who have devoted hun- Following extensive testimony in Sen- detailed comments were provided to the dreds of hours to e-filing fee topics since ate Judiciary, the Legislature passed H. groups, that informed their meetings with last Spring, starting with the Ad Hoc E- 961 which was signed into law by Gover- Interim Chief Information Officer Doug Filing Fees Study Committee established nor Scott on June 30 and became known Rowe over the course of several weeks’ in late April 2020. The Committee was as Act 120. Act 120 included three provi- time starting in September 2020. The Ju- chaired by the then-VBA Board President- sions related to the new Odyssey e-filing diciary also issued an on-line survey with Elect Elizabeth Kruska. It included a broad system, each based in part on the E-Filing questions geared to e-filing usability and spectrum of practice areas, including rep- Fees Study Report, including: “The Judi- the e-filing fee charge structure. resentatives from the Civil Division (Rob- ciary shall meet with representatives of the Mr. Rowe compiled the information gath- ert McClallen, Esq.), the Criminal Division Vermont Bar Association and other court ered verbally and in writing from the Alter- (Matt Valerio, Esq.), the Family Division users to listen to and respond to court us- native E-Filing Fee Group, the Court Users (Jordana Levine, Esq.), the Probate Division ers’ experience with the Odyssey File and Group and the on-line survey into an “Act (Mark Langan, Esq.), the Environmental Di- Serve system and to examine alternatives 120 Review Findings Report,” which noted vision (Dan Richardson, Esq.), the Access to the current e-filing charges. The Judicia- that stakeholders found the per-envelope to Justice community (Laura Bierley, Esq.), ry shall report its efforts and recommenda- fee “untenable and unsustainable.” It also a Judiciary representative (Hon. Thom- tions for improving the rollout of the pro- noted that many court users agreed that as Durkin), and two at-large representa- gram and for improving court users’ expe- e-filing fees should be assessed on a “per tives (Jerry O’Neill, Esq. and Laurie Rowell, rience with the system, including costs, to case’ basis, either as a separate charge or Esq.). Attorneys Stephen Ellis, David Gurt- the Joint Fiscal Committee and Joint Leg- added to the existing court filing fee. man and Andrew Manitsky also dedicated islative Justice Oversight Committee not Act 120 required the Judiciary to report many hours to the Committee. Elizabeth later than October 30, 2020.” Other provi- its efforts and recommendations to the Novotny and Teri Corsones served as ex- sions provided that CARES monies would Joint Legislative Justice Oversight Com- officio members. be used to fund a grant to cover e-filing mittee and to the Joint Fiscal Committee

32 THE VERMONT BAR JOURNAL • WINTER 2020/2021 www.vtbar.org

no later than October 30, 2020. The State Court Administrator’s Report and the VBA Response to the Report were presented

What’s New What’s to the Joint Legislative Justice Oversight COMING SOON! Committee on November 12, and the Joint Fiscal Committee reviewed the report on November 20. The Committee members The VBA office will be migrating to a new agreed that the House Ways & Means and the Senate Finance Committees will review Association Management Software in the next the e-filing fees issue during the current legislative session. couple of months. We are excited to bring Thanks to a much-appreciated collabora- our members a cloud based, next generation tive effort with the Judiciary in late Decem- ber, the federal funds grant that had been platform as well as a new user-friendly paying for e-filing fees (previously sched- uled to end on December 30, 2020) was VBA website. The new platform will not only extended to March 31, 2021, due to the continued impact of the pandemic on ac- provide the VBA staff with tools to streamline cess to justice. In the meantime, the Judi- in-house processes and efficiencies but will also ciary remains in negotiations with Tyler to see if they can agree on a replacement of provide our members with an intuitive the current per-envelope e-filing fee with a one-time per-case fee paid by the initial fil- on-line member portal. Here’s a sneak peak of er, as requested by the VBA. Ideally, those some of the tools the new platform will provide: negotiations will successfully conclude be- fore March 31. We are indebted to all those who responded to the e-filing surveys, to Online member portal the members of the Alternative E-Filing Fee Group and the Court Users Group who Members can easily manage their profile, participated in the Act 120 meetings with the Judiciary to provide invaluable feed- join sections, update contact info, back in the process. Many thanks also to Court Administrator Pat Gabel for her work change their password and renew membership. to support the extension. As acknowledged in the E-Filing Fees Study Report, the bar appreciates the need Enhanced online for an updated case management and e-fil- membership directory ing system to permit efficiencies for court users and the Judiciary. It is also very grate- An online pictorial member directory ful to the Legislature for funding the imple- mentation of a modern case management with an option to add biographical information. system integrated with an electronic filing system. We will continue to gladly work with the Judiciary to identify issues in the CLE & Events implementation of the system and to work together to resolve them, including issues Members can easily register, track surrounding the e-filing fee model. Two webinar programs geared to the their own CLE credits, link their webinar Odyssey e-filing system will be offered dur- ing the VBA Mid-Year Meeting program registrations and print certificates. starting March 26; the first will address “Best Practices for E-Filing Processes” and Lawyer Referral Service the second will address the Vermont Rules for Electronic Filing. Each will include prac- Panel members will have fully automated online titioners and court personnel, in the hopes that both perspectives will be helpful to at- case tracking and status reporting as well as tendees. calculation of referral fees and online payments.

The launch of the new platform is expected to be in early April. We will keep you informed as we progress.

34 THE VERMONT BAR JOURNAL • WINTER 2020/2021 www.vtbar.org by Samara D. Anderson, Esq. BE WELL Mindful Ways to Create Habits, Resolutions and Intentions to Improve Your Well-Being

Despite it being February already, I still to into something more than idea. people stick to their goals or resolutions? feel that I am preparing for 2021, looking (Example: AA chips) A study of 1,000 people arrived at a very at my life and determining what habits and simple tweak that increases the percentage behaviors are supporting me, and which 3. Lay out your supplies (journal, running of successfully implemented goals and ones are not. Essentially, that took me clothes, etc.) resolutions: rephrase the goal or resolution most of January, which is why I am finally You are less likely to take the easy way as something positive that you would like to getting around to finalizing my 2021 Positive out if it’s embarrassingly simple to do COMMIT TO DOING, rather than something Habits and Resolutions. As a mindfulness the thing you want to do. you would like to stop.2 So, think, “I will instructor, I not only want to use mindfulness, start to do ______”, as opposed to “I will neuroscience, and science-backed research 4. Piggyback New Habits on Old Habits quite or avoid or stop ______.” This reframes to support the absolute best outcomes in my Use an existing habit and add something your goal or resolution as an Approach Goal own life, but I want to support others to do to it, like walking and picking up and not an Avoidance Goal. The positive the same. I do not want to just create a list garbage. Instead of walking the dog, reframing of your goal or resolution works of aspirational positive tasks that fall by the run with the dog. because it is extremely challenging, if not wayside as life gets in the way. I want to learn impossible, to erase a habit, but it is much how to integrate them fully into my life in a 5. Surround Yourself with Good People easier to replace it with something else. way that is sustainable, so they have the best We are the average of the five people Thus, if you want to drink less alcohol at chances of success. Thus, according to my we spend the most time with. night, pick another beverage that you quick study into the creation of sustainable will increase – such as tea or other non- habits and resolutions, the methodology I 6. Commit to a Challenge alcoholic beverages. If you want to watch outline below should help all of us take some a. It is easier to hand yourself over to a less television, commit to reading more. If positive steps in the right direction in 2021! scripted practice where you just need you take the habit you want to change and to show up. replace it with another goal you can move First, we begin with habit formation and b. Handing the wheel over to someone towards, or approach, that new goal will not recognizing habits.1 What is a habit? It is a else is a way to narrow our focus and leave any space to retain the older habit or routine or behavior that is repeated regularly put everything into the commitment. behavior. and tends to occur subconsciously or In conclusion, when creating new goals or involuntarily. Habits are done often and built 7. Make it Interesting resolutions in 2021, do so with the disclaimer into your daily routine without much effort. Find a way to stay motivated. I use the that we are all still really depleted and Habits stem from convenience as more than Insight Timer to track my meditations. stressed because of the pandemic and do 40% of the actions people perform every BBOD workouts – 21 days, 80 days, 100 not have the energy and will-power to tackle day are not actual conscious decisions, but days. too much significant change. So, be realistic unconscious habits. A habit is different and kind with yourself. Do not push yourself from an addiction, which is an action done 8. It’s About the Ritual to make too many changes all at once. over and over again, despite causing harm Create the practice and then just repeat Prioritize any Approach Goals you would like to our lives. Habits are an important force it in the exact same way. to implement. Here is a positive approach that our brains actually cling to, because goal that I have implemented in 2021: “In they create neurological cravings where a 9. It Doesn’t Have to be an Everyday 2021, I will start to be gentle with myself.” certain behavior is rewarded by the release Thing Join me in this endeavor and find ways to of “pleasure” chemicals in the brain. What matters is the results average out. cultivate new healthy habits that will support your overall well-being, in a mindful way. Second, we must implement some “habit 10. Focus on Yourself ______1 hacks” to cultivate better habits: If you wish to improve, be content to Adapted from The Power of Habit: Why We be seen as ignorant or clueless about Do What We Do in Life and Business, by Charles Duhigg. 1. Think Small – Really Small: some things, like the news. 2 Adapted from “A large-scale experiment on a. Create an atomic habit, or a really New Year’s resolutions: Approach-oriented goals small habit. 11. Make it About Your Identity are more successful than avoidance-oriented b. Thinking small is easier because once I am a writer, I am a meditator, etc. goals,” PLOS ONE Journal, published December 9, 2020 (https://doi.org/10.1371/journal. you get started, you can build. pone.0234097) c. For example, Do not promise yourself 12. Keep it Simple you are going to read more books, Little things make a difference. instead commit to reading one page per day. 13. Pick Yourself Up When You Fall Don’t quit because you aren’t perfect. 2. Create a Physical Reminder A physical totem can make the habit or Third, we implement a simple trick to keep standard you are trying to hold yourself any new goal or resolution. What makes www.vtbar.org THE VERMONT BAR JOURNAL • WINTER 2020/2021 35 by Catherine Fregosi, Esq. WRITE ON The Importance of Finding Your Voice as a Writer

My writing students sometimes ask me terms. Likewise, texts generally tell their thor is, or is not, a credible authority. for recommendations for books that will readers to favor short sentences because This is not to say there is a single kind improve their writing. They are often just shorter sentences are more likely to stick to of voice all writers should attempt to cap- looking for books that will help them with the rule that each sentence should include ture. Voice is individual, and as each per- grammar. In those cases, I recommend a single thought; presenting thoughts in son has a different style of speaking, so Strunk & White’s classic or the Redbook. this mechanical manner ensures that read- too does each author have a different style But every so often a student is not looking ers will pick up each thought as it appears. of writing. This is obvious in creative writ- for a basic tutorial but is, instead, looking Most students and practitioners have little ing; it may be less obvious a statement in for a book that will turn their work into el- trouble producing correct writing. legal writing, but it is no less true. Differ- egant, flowing prose, precise in its details, Once a legal writer has mastered the ent styles and voices can teach us different poetic in its phrasing, and, of course, per- rules of correct writing, the writer can techniques for finding and using our own suasive in its legal argument. The truth is move on to the next step: writing with a voices in our written work. To that end, this that no such book exists. strong authorial voice. Voice transforms column will now present three examples of There are plenty of books that instruct on correct writing into great writing. It does strong voices in legal writing, and discuss punctuation. They may also help students so by building connection with the reader. the techniques that make each voice come understand how to construct sentences or When a work has a voice, the reader gets through. even paragraphs. Other books teach about a glimpse of the writer’s mind at work and, We begin with a selection from Justice the organization of a legal document. And for better or worse, some sense of who the Kagan’s majority opinion in Mathis v. Unit- finally, there are books that explore rhetor- writer is as a person. In The Elements of ed States: ical and other techniques that can make Style, Strunk & White wrote that “[a]ll writ- To determine whether a prior convic- writing sing. Each of these kinds of books ers, by the way they use the language, re- tion is for generic burglary (or oth- has a place in legal writing instruction and veal something of their spirits, their habits, er listed crime) courts apply what is usefulness to both the law student and the their capacities, and their biases.”1 While known as the categorical approach: legal practitioner, but none of these real- The Elements of Style is not dedicated They focus solely on whether the ele- ly tell readers how to make the leap from to legal writing, this sentiment is more or ments of the crime of conviction suffi- correct writing to the kind of writing to less as true for legal writing as for any oth- ciently match the elements of gener- which my students aspire. Elevating writing er kind of writing. And thus, the idea that ic burglary, while ignoring the partic- above the everyday requires that an au- “writing is communication through revela- ular facts of the case. Distinguishing thor finds their own voice and allows that tion—it is the Self escaping into the open” between elements and facts is there- voice to come through in writing. That skill should be read to apply to all forms of writ- fore central to ACCA’s operation. “El- comes through practice rather than instruc- ing, both creative and legal.2 Great legal ements” are the “constituent parts” or tion. Nonetheless, this column will attempt writers are mindful of the revelation inher- a crime’s legal definition—the things to show why legal writers should be mind- ent in their written work and craft a voice the “prosecution must prove to sustain ful of the voice that comes through their appropriate to their audience and the sub- a conviction.” At a trial, they are what work, as well as give some tips on how to ject of their text. the jury must find beyond a reasonable develop that voice. Thus, the first step in adding voice to doubt to convict the defendant, and at The first step to great writing is correct your writing is awareness that, like it or not, a plea hearing, they are what the de- writing. Correct writing is writing that fol- intended or otherwise, a sense of the au- fendant necessarily admits when he lows the rules. Correct writing uses punc- thor as a person will come through in writ- pleads guilty. Facts, by contrast, are tuation properly and follows common rules ten work. The author may come across as mere real-world things—extraneous to regarding word choice, sentence length, logical, organized, and attentive to detail; the crime’s legal requirements. (We and general readability. There are many such qualities may be conveyed through have sometimes called them “brute books that address correct legal writing. writing that takes legal analysis one step at facts” when distinguishing them from They instruct on how and why to keep a time, includes thoughtful flow from one elements.) They are “circumstance[s]” sentences short, avoid passive tense and idea to the next, and uses correct citations. or “event[s]” having no “legal effect nominalizations, and, all other things be- Or the author may come across as disorga- [or] consequence”: In particular, they ing equal, choose simple over more com- nized, scattered, and sloppy. These quali- need neither be found by a jury nor plex phrasing. The focus of writing correct- ties may be conveyed through writing that admitted by a defendant. And ACCA, ly is clarity: A correctly written legal work is erratic, lacks connection between ideas as we have always understood it, cares should be clear and easily understood by or parts of the analysis, and pays little at- not a whit about them.3 the reader. Each discrete element of cor- tention to citation form and accuracy. Both rect writing is designed to enhance clari- authors—the logical and the erratic—may This paragraph is conversational legal ty, such that the author’s intended mean- write correctly in the sense that their writ- writing at its finest, and Justice Kagan’s ing is unmistakable. Thus, for instance, le- ing follows the rules of grammar, sentence voice is unmistakable. This reads as though gal writing texts tell students and practitio- construction, and word choice so often set Justice Kagan is delivering this orally, we ners to use the serial comma so that read- out in legal writing texts, but the author’s readers are listeners, learning the basics of ers will understand at a glance that a list in- voice, or lack of attention to voice, may the law from her efficient, direct, and clear cludes independent rather than connected nonetheless subtly tell readers that the au- presentation. There are several qualities

36 THE VERMONT BAR JOURNAL • WINTER 2020/2021 www.vtbar.org

that make this paragraph as conversational Law Dictionary and facts as “mere real- was the center of society, that his lib- as it is: chief among them are punctuation world things” helps the reader understand erty was attainable through mere ab-

Write On and word choice. Take the first sentence that elements are not the same as facts sence of governmental restraints, and of the paragraph as an example, the colon and thereby understand a little more clear- that government should be entrusted linking the sentence’s two halves makes ly what is meant by “elements.”4 Likewise, with few controls and only the mild- clear that the first half of the sentence simple phrasing in the final sentence of this est supervision over men’s affairs. We presents a term and the second half of the passage takes the legal terminology out of must transplant these rights to a soil in sentence defines the term. The sentence the abstract and makes it straightforward. which the laissez-faire concept or prin- could replace the colon with a period, or Rather than writing something like “ACCA ciple of non-interference has withered overtly link the term and its definition with does not ask courts to consider the un- at least as to economic affairs, and a comma and a phrase like “defined as.” derlying facts of an act prosecuted as bur- social advancements are increasing- The overall meaning would be unchanged, glary,” Justice Kagan has said fundamen- ly sought through closer integration but the colon, in place of a period or link- tally the same thing with the easy phrase of society and through expanded and ing words, keeps the pace of the sentence “ACCA . . . cares not a whit about [facts].”5 strengthened governmental controls. moving with conversational rhythm. In ef- This is plain language writing in practice. These changed conditions often de- fect, the colon is the long pause that a All modern legal writing texts tell lawyers prive precedents of reliability and cast speaker would include if reading this para- to avoid legalese in their writing, but the us more than we would choose upon graph aloud. As such, the choice to use a truth is that words like “elements” and oth- our own judgment. But we act in these colon instead of some other construction er legal terms of art are necessary for sub- matters not by authority of our com- gives this sentence timbre and cadence, stantive clarity. They need to be included petence but by force of our commis- marking it as the author’s voice. to some extent. But by pairing the legal sions. We cannot, because of modest The em dash in the paragraph’s third terminology with ordinary usage and plain estimates of our competence in such sentence performs the same function as language, writing takes on a conversational specialties as public education, with- the colon in the first sentence, setting up tone, making it both easier to understand hold the judgment that history authen- a term and its definition, but the em dash and significantly more fun to read. ticates as the function of this Court moves more briskly than the colon. Where We see a very different kind of voice when liberty is infringed.6 the colon is a formal direction to pause, from Justice Jackson in the West Virginia suited to the beginning of the statement State Board of Education v. Barnette ma- Justice Jackson’s voice is as clear in this and the slower pace at which oral deliv- jority opinion. A whole legal writing curric- passage as Justice Kagan’s is in the pas- ery of this paragraph would begin, the em ulum could likely be created out of study- sage included above, though the styles of dash leads quickly from one item to the ing just this decision, as it illustrates some these two writers could not be more differ- next, pointing like an arrow at the text that of the best writing that has come out of the ent. Here, the voice is not conversation- follows and conveying a quick pause of the U.S. judiciary. But for purposes of this col- al, it is oratorical. This passage uses meta- kind that would occur as a speaker gath- umn, I will highlight just one paragraph: phor, rather than ordinary usage, to com- ers steam and settles into a more animat- Nor does our duty to apply the Bill of municate complicated concepts. For exam- ed and natural rhythm. Inclusion of these Rights to assertions of official authority ple, the phrase “[t]hese principles grew in different kinds of pauses through different depend upon our possession of marked soil” is echoed in the phrase “must trans- kinds of punctuation makes this passage competence in the field where the in- plant these rights to a soil” and the word one that readers can almost hear Justice vasion of rights occurs. True, the task “withered.”7 Despite the difference in Kagan delivering orally. of translating the majestic generalities techniques, the agricultural refrain in the Justice Kagan’s word choice also gives of the Bill of Rights, conceived as part passage above performs the same func- this passage voice. More specifically, the of the pattern of liberal government in tion as the plain language usage in Justice balance between legal terminology and or- the eighteenth century, into concrete Kagan’s Mathis paragraph: both aid under- dinary usage takes this passage away from restraints on officials dealing with the standing by grounding legal discussion on intellectual abstraction to a level that is un- problems of the twentieth century, is a non-legal hook. In this way, Justice Jack- derstandable and immediate for the read- one to disturb self-confidence. These son’s voice comes through in a way that it er. For example, Justice Kagan’s contrast principles grew in soil which also pro- would not absent the metaphor. between elements as defined by Black’s duced a philosophy that the individual The voice in this passage also comes

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38 THE VERMONT BAR JOURNAL • WINTER 2020/2021 www.vtbar.org Write On through use of adjectives. Most conven- tional legal writing texts instruct writers to minimize adjectives. For example, in The Elements of Legal Style Bryan Gar- ner writes that “[a]djectives often weaken nouns, and adverbs often weaken verbs.”8 This is generally true, and, as Garner advis- es, writers should not attempt to “warm[] up a tepid [word] with a qualifier.”9 But in this passage, the adjectives give rhythm and life where the writing could otherwise lack personality. For example, the second sentence of the passage above could be written without the adjectives. With that revision, the “generalities of the Bill of Rights” are no longer “majestic”; the “pat- tern” of our government is no longer “lib- enjoy is simply the authority to partici- that you, as an author, find your own voice. eral”; and the “restraints on officials” are pate as parties in a court action and Punctuation, rhetoric, and precision are the no longer “concrete.”10 Such changes to assert legal arguments in defense tools to accomplish this goal. would not necessarily change the meaning of the state’s interest in the validity of Reading your work aloud is another crit- of the sentence, but they would remove the initiative measure. That interest is ical tool—if you have written something the subtle clues as to how Justice Jackson by definition a generalized one, and it on the page that you would not say aloud, and the Court, at least in this paragraph, is precisely because proponents assert edit it and take it off the page. Substitute viewed the Bill of Rights, government, and such an interest that they lack standing it with something that you would say aloud restraint on official action. Here, omission under our precedents.11 instead. Finally, remember that the rules of adjectives would also minimize what of writing have evolved over time—it was can only be called the persuasive effect of This is, again, a very different authorial once frowned on to begin a sentence with this paragraph—this decision might have voice than that expressed in the two ear- “and” or “because,” such usage is now been different if the generalities of the Bill lier passages from Justice Kagan and Jus- common. And, occasionally, with a defi- of Rights were banal rather than majestic, tice Jackson. Here, the author’s voice lies nite purpose, the rules should be bent, as and the author wants the reader to have in what is left out, rather than what is in- with Justice Jackson’s exemplary use of ad- the right qualifier in mind while reading cluded. There is no artful punctuation or jectives to convey tone and tenor. In sum- the Court’s decision. Adding the qualifi- metaphor in this paragraph. There are no mary, writing with a strong voice will make er helps draw the reader into the Court’s descriptive adjectives or adverbs. The au- your writing more dynamic, more under- reasoning and makes the Court’s ultimate thor’s voice is, instead, conveyed through standable for readers, and simply more fun. holding that much more intuitive. As such, the craft of precision. Each sentence in this The law is a literary profession, the least we Justice Jackson’s use of adjectives, like his passage has a single purpose and conveys can do for our readers is speak up to make use of metaphor, lets us into his thinking its meaning with straightforward phrasing, our writing more enjoyable to read. and character. while the paragraph as a whole works me- ______Punctuation, stylistic flourishes, and thodically through the argument, present- Catherine Fregosi is admitted to prac- choices about the application of conven- ing the conclusion at the end of the para- tice in Vermont. She clerked for the Hon. tional rules of legal writing are tools to graph simply. The result is a paragraph as Justice John A. Dooley and the Hon. Jus- develop author voice. We can see these conversational as Justice Kagan’s Mathis tice Karen R. Carroll of the Vermont Su- tools in practice in the passages from Jus- paragraph. For example, in the first sen- preme Court before joining the VLS legal tice Kagan and Justice Jackson above. But tence of this paragraph Chief Justice Rob- writing faculty. voice can also come through restraint. This erts uses italics to convey the emphasis the ______1 William Strunk Jr. & E.B. White, The Elements is shown in the passage below, from Chief word “are” would receive if this paragraph of Style Hol- 66-67 (3d ed. 1979). Justice Roberts’s majority opinion in was read aloud. And in the sixth sentence, 2 Id. lingsworth v. Perry. he uses a semi-colon instead of a comma 3 Mathis v. United States, 136 S.Ct. 2243, 2248 Petitioners argue that, by virtue of the and the word “and” to preserve the pac- (citations omitted) (alterations in original) (first California Supreme Court’s decision, ing of speech. But the text here is also the quoting Black’s Law Dictionary 634 (10th ed. Richardson v. United States they are authorized to act as agents 2014), then quoting , most low-key and reserved of the three ex- 526 U.S. 813, 817 (1999), then quoting Black’s of the people of California. But that amples presented, and the author’s voice Law Dictionary 709). Court never described petitioners as here makes the law seem simple by con- 4 Id. agents of the people, or of anyone veying the law in a level tone. 5 Id. W. Va. State Bd. of Educ. V. Barnette else. Nor did the Ninth Circuit. The The key to good legal writing is finding 6 , 319 U.S. 624, 639 (1943). Ninth Circuit asked—and the Califor- your voice. Perhaps the brisk, animated, 7 Id. nia Supreme Court answered—only punctuated tone of Justice Kagan’s work 8 Bryan A. Garner, The Elements of Legal Style whether petitioners had the authori- resonates, or the level neutrality of Chief 200 (2d ed. 2002). ty to assert the State’s interest in the Justice Roberts’s work is appealing. Per- 9 Id. W. Va. State Bd. of Educ. initiative’s validity. All that the Cali- 10 , 319 U.S. at 639. haps your voice thrives with a sprinkling 11 Hollingsworth v. Perry, 570 U.S. 693, 712-13 fornia Supreme Court decision stands of the metaphor and elegance of Justice (2013) (quotations and citations omitted). for is that, so far as California is con- Jackson’s work. Or maybe none of these cerned, petitioners may argue in de- examples works for your voice; good writ- fense of Proposition 8. This does not ing, like any other kind of beauty, is in the mean that the proponents become de eye of the beholder. But whatever style ap- facto public officials; the authority they peals to you, the most important thing is www.vtbar.org THE VERMONT BAR JOURNAL • WINTER 2020/2021 3 9 by Mary C. Ashcroft, Esq. Samantha Lednicky: A Vermonter Comes Home to Do Good

Samantha Lednicky was born and raised ued beyond the rent escrow hearing. in Shelburne, attended UVM and graduat- Samantha’s work and dedication soon ed from Northeastern School of Law. Then came to the attention of Hon. Helen Toor, she returned home to Chittenden Coun- who nominated her for the Pro Bono ty to practice law. Many low-income Ver- Award. “Samantha has put in a great monters are glad she did. Attorney Led- deal of time, and has on occasion taken nicky is a recipient of the VBA’s 2020 Pro on a case pro bono after the initial clinic Bono Service Award. appearance,” wrote Judge Toor. “I have been very impressed with the time she has Most aspiring lawyers are introduced to donated, and with her professional manner criminal justice work when they are in law and dedication to her clients.” school. For Samantha Lednicky, the expe- During one rent escrow clinic in 2017, an rience came earlier. As a political science intriguing matter was assigned to Attorney and psychology undergrad at the Universi- Lednicky. A tenant was being sued for ty of Vermont, Samantha worked as an in- eviction although the landlord had allowed vestigative intern at the Public Defender’s her and her partner to live in the apartment Office in Burlington. It was very much law rent-free in exchange for her partner’s work related—she called witnesses, prepped fixing it up. The partner had since had his ful of cases, I stay in,” she said, “especially cases, and rubbed shoulders with local furlough revoked so he was no longer liv- if I see some injustice.” public defenders. “The experience solid- ing with her. After a contested hearing was Rent escrow clinic work has slowed dra- ified the fact that I wanted to go to law held in which Lednicky presented evidence matically due to the COVID-19 pandemic. school,” she recalls. of uninhabitable conditions at the apart- There was discussion at first about remote After graduating from UVM, Lednicky ment, the rent escrow motion was defeat- clinics, but when the eviction moratorium headed to Boston and enrolled at North- ed. The underlying eviction matter contin- was extended that idea was dropped. “I eastern University School of Law. There she ued, and Attorney Lednicky agreed to help definitely miss the work, and miss litigat- was infused with the culture of pro bono the tenant pro bono. ing and being in court,” she said. Since service, particularly in two fellowships. In As the case was pending, the landlord re- March of 2020, Attorney Lednicky has only the Prisoner’s Assistance Project, where sorted to self-help tactics. He had the ten- been in person to court three times for RFA she was first a student then a teaching as- ant’s car towed—twice—and ignored prob- emergency hearings and once for an ar- sistant, Lednicky represented clients seek- lems with the apartment’s heating system raignment. “I miss the energy of court, of ing parole. In the Restorative Justice Clinic so that pipes froze, leaving tenant without being with clients and seeing the judge.” at Northeastern, she investigated cold ho- heat or hot water. She was unable to show- Attorney Lednicky’s pro bono work is not micide cases—lynchings--in Tennessee. er, wash her hands, flush the toilet, or brush limited to Civil Division. She also takes on Following graduation from Northeast- her teeth for 8 days. Samantha Lednicky family matters, recently completing a long ern, Lednicky returned to Chittenden helped the tenant countersue the landlord struggle helping a homeless man win pa- County and was admitted to practice in for damages, including punitive damages. rental rights of his disabled daughter. It Vermont. She started as an associate with After three years, numerous appearanc- was a case that had been started by Frank DRM, then two years later she moved to es and hearings below, and two trips to Twarog, a partner in Samantha’s law firm. Murdoch Hughes Twarog Tarnelli to take the Vermont Supreme Court, the matter fi- In his letter nominating Lednicky for the up a varied law practice. About half of her nally concluded. Samantha Lednicky had Pro Bono Award, Frank noted that “Saman- work is in criminal defense, often working successfully won for her client compensa- tha brought a fresh perspective and her with Attorney Frank Twarog on CJA federal tory and punitive damages, had defeated usual diligence to the case.” He observed, conflict cases. Forty percent of Lednicky’s claims of the landlord for back rent, and that thanks to Samantha’s work, the previ- work is in family law: divorces, parentage, was awarded attorney’s fees for her efforts. ously homeless client “now has the ability custody and child support. Civil law com- Attorney Lednicky used her experience to handle all of his daughter’s medical and prises the remainder of the young attor- and her taste for landlord/tenant law to de- education needs, without hesitation or the ney’s practice. velop a niche market for tenant services necessity to obtain consent from his abu- It was in the Civil Division that Saman- with MHTT. For about 5 years Samantha sive ex-partner.” tha Lednicky began volunteering with the Lednicky has been handling referrals from Samantha Lednicky remembers this cli- Chittenden Rent Escrow Clinic. The clinic Vermont Legal Aid and others. Sometimes ent as a black, low-income dad “who was draws on volunteer attorneys to assist ten- these cases present as landlord/tenant doing everything right.” Dad was work- ants threatened with eviction. The attor- matters but turn into personal injury cases. ing with DCF, with family services, and was neys provide limited representation at the Samantha feels that this is an area of the learning to be a better parent, and trying initial court appearances. They meet with law that many attorneys could get involved to manage the child’s extraordinary med- the tenants, assess the case and identify with, particularly with the possible award of ical and educational needs without help defenses, outline options for the tenants, statutory attorney’s fees due to breach of from the mother. But his child’s mother and either negotiate resolutions or litigate habitability. “People who never had access had custody. After 5 years and a long pro- the rent escrow issue. Attorney Lednicky to attorneys, who are struggling to pay the cess of multiple motions showing mom’s became a regular volunteer on rent escrow rent, can’t afford to pay an attorney,” she corrosive pattern of behavior, the court day, showing up every month for three notes. “But this is really great work.” gave dad custody. years. And sometimes she would stay on And she continued volunteering at the Samantha repeated (without endorsing) as a pro bono attorney if the matter contin- Chittenden Rent Escrow Clinic. “In a hand- the old saying ‘Criminal defense clients

40 THE VERMONT BAR JOURNAL • WINTER 2020/2021 www.vtbar.org Samantha Lednicky are people who have done bad things and are on their best behavior in court. Fam- ily clients are good people at their worse in court.’ Congratulations 2021 She acknowledges that family clients are the hardest to work with, but Lednicky has Pro Bono Service Award Winners certain skills which have helped. Samantha has an undergraduate degree from UVM in The Vermont Bar Association is proud to announce the psychology, and had conducted research 2021 winners of the VBA’s Pro Bono Service Award. at Woodside with the juvenile population The attorneys being honored are Cristina Mansfield, incarcerated there. “I was looking at kids Kathleen (Kate) Rivers, and Janet Van Derpoel-An- and their ability to empathize. I saw the drea. connection between lack of empathy and criminal behavior.” The Pro Bono Award is given annually to recognize at- There is little doubt that Attorney Led- nicky empathizes with her family clients. torneys who provide extraordinary legal services free She has learned how to work with clients of charge to indigent and disadvantaged clients in our who are struggling with multiple emo- community. All three of this year’s honorees represent tions. “When they are stressed out, tak- children in custody and relief from abuse matters in ing the time to listen to client is what they family and probate courts in southern Vermont. really need.” But she is also practical, and reminds clients that she can only help with was nominated by Judge Kerry legal issues. “Sometimes there is not a le- Cristina Mansfield gal solution, so I encourage them to seek Ann McDonald-Cady of Bennington Family Division counseling.” who cited Attorney Mansfield’s willingness to serve ei- Samantha Lednicky remains passionate ther as guardian ad litem or attorney for children in re- about pro bono legal work. She considers lief from abuse or domestic cases. Judge McDonald- VRPR 6.1—the pro bono rule—as a man- Cady noted that “despite taking on these difficult and date. “I think every attorney should do 50 time-consuming cases for little to no compensation, pro bono hours a year,” she said. She also Ms. Mansfield, Esq. recognizes the need to serve this believes larger law firms should encourage pro bono work among their associates. Sa- vulnerable population and gracefully accepts each mantha credits DRM with getting her in- time. “ volved in the rent escrow clinic, and then Murdoch Hughes with continuing to sup- Kathleen (Kate) Rivers was nominated by Judges port her pro bono efforts. “They [the part- Kate Hayes, Michael Kainen and Jody French, with ners] asked me what I wanted to do. When COMs Suzanne Borichevsky and Richard Perra of I said I wanted to continue to volunteer at Windham Division, who noted that Attorney Rivers rent escrow clinics, they said—’great, do as much as you want.’” regularly represents children and families in juvenile “Higher-up attorneys can do much to en- matters in family and probate division. They wrote of courage younger lawyers,” Lednicky points Attorney Rivers: “Several times over the past year she out. “They can engrain pro bono work into has, without payment, assisted parents and children in the firm’s culture.” reaching agreements or litigating parental rights and Looking five years into her future, Sa- parent-child contact in complex domestic (divorce or mantha sees herself still engaged in pro parentage) cases, and in probate guardianship cases bono service. She has been guardian ad litem a few times in family court, and will as well. Her commitment to her clients has been re- continue to work on landlord/tenant mat- markable and has achieved excellent results.” ters. “It’s easy to do on the side. I get the primary practice work taken care of, and in Janet Van Derpoel-Andrea was nominated by Judge slower times can reach out to Legal Aid to Cortland Corsones and Docket Clerk Nicole Burdick see if I can help with anything.” of Bennington Family Division for her frequent repre- “This work has engaged and energized sentation of children in relief from abuse and domes- me”, Lednicky admits. “If I am able to help even in a small way, moving the needle of tic relations cases. They wrote the following about justice little bit, well, that’s why I’m a law- Attorney Van Derpoel-Andrea: “Thanks to [her] dedi- yer.” cated service to the children of our county, children Attorney Lednicky was admitted to the when they are at their most vulnerable, are provided Vermont Bar in 2015 and is also admitted with able and caring representation to help get them to practice before the U.S. District Court through what may be one of the most difficult periods for the District of Vermont. She is a mem- of their life.” ber of the American, Vermont and Chitten- den County Bar Associations, and chairs the Women’s Division of the VBA. She lives The VBA Pro Bono Service Award will be presented with her husband in Hinesburg, and in her to these three attorneys during the VBA’s virtual mid- spare time enjoys snowboarding, hiking, year meeting beginning on March 25. mountain biking and sailing.

www.vtbar.org THE VERMONT BAR JOURNAL • WINTER 2020/2021 4 1 by Mark C.S. Bassingthwaighte, Esq. Why a Lawyer Should Never Try to Shoot from the Hip

As a kid, I always thought any Hollywood lawyers will take on a matter that is outside a breath, and ask myself this. If I take that cowboy who could shoot from the hip and of the areas of practice they routinely prac- quick shot from the hip, is close enough kill the villain was one tough hombre that tice in and they may decide to do so for any an acceptable outcome or will I have only no one in their right mind would ever want number of reasons. It might be an inabil- solved the problem for the short term and to mess with. I viewed those cowboys as ity to say no to a good client. It might be potentially created a bigger problem in the heroes and would often pretend I was one the legal ask is viewed as a simple matter. end? It’s a question all of us legal hombres of them when playing in the woods behind Heck, it could even be out of a desire to need to keep in mind because, particular- my childhood home. That was short-lived, make sure that revenue keeps coming in. ly in the practice of law, accuracy matters, however. As I got older, I came to realize Regardless, a decision to take a quick shot bigtime. there was a little movie magic behind those is made without stopping to think through ______epic shootouts and my adulation of such the potential consequences. At a mini- ALPS Risk Manager Mark Bassingth- heroes eventually waned. mum, these lawyers often don’t know what waighte, Esq. has conducted over 1,000 As an adult, I still admire someone who they don’t know and therein lies one prob- law firm risk management assessment vis- has worked hard to learn to accurately lem. Look at it this way. Even if that shot its, presented numerous continuing legal shoot from the hip. I have no idea why, but from the hip by happenstance ends up be- education seminars throughout the United it’s a skill I find impressive. Perhaps this is ing close to the target, that is often still not States, and written extensively on risk man- why I’ve been wondering about the origin good enough. Close doesn’t cut it in the agement and technology. Check out Mark’s of the idiom “shoot from the hip” of late. world of legal malpractice. recent seminars to assist you with your solo I’ve come to learn that the phrase origi- Blown deadlines can be another ex- practice by visiting our on-demand CLE li- nated during the heydays of the American ample of where unintended consequenc- brary at alps.inreachce.com. Mark can be cowboy of the old West. Obviously, it al- es arise when lawyers decide to take that contacted at: [email protected]. ludes to shooting a gun from the hip; but quick shot. In follow-up to a remark I made Disclaimer: ALPS presents this publica- what I wasn’t aware of is this. The shot also during a recent CLE, a lawyer shared that tion or document as general information occurs without ever taking the gun out if his partner always used to say the follow- only. While ALPS strives to provide accu- the holster. Of course, while this made fir- ing. If you think you know a filing deadline rate information, ALPS expressly disclaims ing quicker, the shot was not as accurate. It that is written in a statute or rule and rely any guarantee or assurance that this pub- is with this context in mind that the current on your recollection instead of looking it lication or document is complete or accu- use of the idiom to refer to a decision that up, you have committed malpractice even rate. Therefore, in providing this publica- is reached and implemented without stop- if you were right. I couldn’t agree more. tion or document, ALPS expressly disclaims ping to consider the possible consequenc- Again, even if it was a close call, it’s still a any warranty of any kind, whether express es of the decision makes sense. miss. or implied, including, but not limited to, I wanted to share this because I have Other examples might include respond- the implied warranties of merchantability, been cautioning lawyers to never shoot ing to an email to quickly or agreeing to fitness for a particular purpose, or non-in- from the hip for years, and yet many still take a matter on before giving any thought fringement. do. Some almost on a daily basis. I think to whether you can actually meet the cli- Further, by making this publication or one of the reasons why is due to the time ent’s needs or work effectively with this document available, ALPS is not render- demands of the legal profession. It is just new client. It could be giving legal ad- ing legal or other professional advice or too easy for lawyers to find themselves in vice in a vacuum because you didn’t take services and this publication or document situations where they feel compelled to the time to gather all the information you should not be relied upon as a substitute take that quick shot, if you will. Take the would need to know if your advice would for such legal or other professional advice shot, problem solved, move on to the next actually be accurate. Regardless, I do un- or services. ALPS warns that this publication task. The problem is that taking that quick derstand why sometimes we all feel like it or document should not be used or relied shot without regard to the accuracy of the might be worth shooting from the hip, be it upon as a basis for any decision or action shot is asking for trouble. in our personal or professional lives. I will that may affect your professional practice, Perhaps a few examples are in order. readily admit that I’ve done it more than a business or personal affairs. Instead, ALPS Consider dabbling. It’s a malpractice prob- few times in my life. Time crunches hap- highly recommends that you consult an at- lem we continue to see. Time and again, pen; and when they do, I try to stop, take torney or other professional before making any decisions regarding the subject matter of this publication or document. ALPS Cor- poration and its subsidiaries, affiliates and related entities shall not be responsible for any loss or damage sustained by any per- son who uses or relies upon the publication or document presented herein.

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42 THE VERMONT BAR JOURNAL • WINTER 2020/2021 www.vtbar.org by Robert Pratt, Esq. Whither a Remedy

When our august highest state judicial ment (the reserved power of sale being a deeds by raising chimerical specters of un- body makes decisions that involve impor- very limited version of the enhancement to specified and unspecifiable title problems. tant principles of law arising in fairly nar- a reserved life estate deed - we know that Why not be allowed to convey the defea- row circumstances, one wonders (I wonder) the power of sale is limited to what it says, sible remainder? One can convey no more where our remedy lies, other than the leg- a sale, whereas better drafting would in- than one got, so a reconveyance is still sub- islature, to get a decision restated so that clude a broad spectrum of reserved rights ject to defeasance but may accomplish im- possible dictum can be fixed or removed (to mortgage, give away, take back, add portant results without having to go back to leave a correct and limited statement of other remaindermen, etc.)). to a grantor for exercise of reserved rights, the law that will not have widespread, per- If the language in Coburn is a binding who might be unable (by incapacity, lack haps unintended, adverse consequences. statement of the law, then serious adverse of a designated attorney in fact) to fix the I have in mind Coburn v Cook (97 A3d consequences follow. In part because of problem that reconveyance would solve. 892, 196 VT 410, 2014) in which the Court’s the Coburn decision, title companies will Perhaps, again, back to the point, is opinion included a statement to the ef- not insure a properly draft enhanced life there a way for those without standing in a fect that a version of an enhanced life es- estate deed as a source of title, some- case, who don’t even know about the legal tate deed, “has not actually conveyed any- how interpreting that the remainderman principles enunciated in that case until it’s thing....” Id. at 415. It came up in a divorce who received nothing, has a sufficient in- already out there in the reported case law, appeal in which the inclusion as a marital terest that his or her participation in fur- to have an opinion resissued with a more asset was the defeasible remainder of one ther conveyances during the grantor’s life limited or more correct statement of the spouse. It would have been easy, it seems, is required. They refuse to cover warranty governing and necessary law? Probably for the court to say that because the re- deeds of the defeasible remainder (pre-27 not. It’s been six years since Coburn and I mainder interest could be taken away (just VSA Chapter 6) because, notwithstanding doubt if there’s a procedural way to fix this as a Will or trust could be changed to elim- very clear prior case law that the covenants kind of problem. inate a beneficiary or certain benefits), the of warranty cure any question of good title I am going to propose a legislative fix. expectancy nature of the spouse’s interest in the remainderman’s interest (when the I know other lawyers are disturbed by the made it too speculative an ownership right remainderman survived the grantor), the ELE Deed law prohibiting the transfer of or interest to be considered in the division fear of challenges in subsequent transac- the “remainder,” perhaps in the new law of property. tions makes the risk of having to defend ti- because of Coburn, instead of a provision But the opinion says that the deed “has tle too great to insure what the law clearly that would fix the problems that Coburn not actually conveyed anything.” Think of shows to be good title. has created. that and the significance of a deed that So now back to the purpose of this in- My proposed solution, so far, is to make doesn’t convey anything. How do we get quiry: other than going to the legislature the following changes to new Chapter 6 of to the conclusion that a deed that does not (which has already severely limited the re- 27 V.S.A.: convey is actually a deed; why is it not a mainderman’s rights in the new ELE stat- 1. Change §653(2)(C) as follows: nullity? What kind of instrument that con- ute, by prohibiting conveyance of the illu- The grantor conveys and the grantee veys nothing can be a deed? It might be sory remainder interest), how do we seek a acquires a defeasible remainder in- a Will or Will substitute but would typically fix of a Supreme Court decision to make it terest such that prior to the death of fail both as to formalities of execution and more palatable to the broader scheme of the grantor, the grantee has no vested lack of intention to create a Will. It could be our law. The parties in Coburn would have rights in the property, and wrestled into being viewed as some kind of had no interest in seeking reargument; the 2. Delete the current version of §655(b) revocable trust. victor got what he wanted, the other par- and insert in its place the following: How do we arrive at the conclusion that ty wouldn’t have been helped by a better A grantee named in an ELE deed may a pre-27 VSA Chapter 6 enhanced life es- statement of the governing principle. The convey the grantee’s defeasible re- tate effects a conveyance of nothing? The bar at large, and concerned practitioners, mainder interest during the grantor’s new law at least makes clear that the con- would have no standing to intervene and lifetime, subject to the rights reserved veyed remainder conveys no possessory seek a better articulation of the necessary to the grantor in the ELE deed. rights and does not go as far as Coburn in principles that were needed to reach the Anyone who would like to support this its limitations of the nature of a defeasible proper result, even if they knew about it or a similar change should let me know at remainder. immediately upon issuance. [email protected], and if there is The problematic language in Coburn The correct statement of the law, I be- enough interest, we might be able to per- may come from the label “contingent re- lieve, is that the enhanced life estate deed suade the legislature, and those who craft- mainder,” which is a term that is useful for (which I use without regard to the recent ed the existing ELE deed statute, to get laymen but should not have the effect of ELE deed chapter in 27 VSA and as a gen- this into the law. I would prefer that it have creating misunderstandings in lawyers and eral description of the instrument) con- retroactive effect. judges. A contingent remainder suggests veyed a remainder, but one subject to de- ______to me that a remainder could arise if a con- feasance. The new ELE deed chapter 6 pro- Robert Pratt, Esq. is a co-chair of the tingency were met, whereas a defeasible hibits a conveyance of this almost remain- VBA Probate Law Section and a partner at remainder (the proper term in my opinion) der; why, I have no idea - I objected at the Pratt, Vreeland, Kennelly, Martin & White in suggests that a remainder has been con- time but without success and I finally with- Rutland. veyed but that it can be taken away by drew my objection so those offering the bill use of a general power of appointment or could have their law and unblock the title some lesser version of a power of appoint- insurance stranglehold on the use of ELE www.vtbar.org THE VERMONT BAR JOURNAL • WINTER 2020/2021 43 BOOK REVIEW

a single “Western Canon” and has chal- at its most fevered, it was the legal pro- lenged the designation given to these fession, particularly in legal argument and “Great Books.” Freshman, who once were judicial opinion writing, that stood united fed a steady diet of Virgil, Dante, and Mil- and held the line against the most devas- ton are more likely today to be given con- tating efforts to divide. Decisions like the temporary and diverse writings that em- opinion authored by Judge Stephanos Bi- phasizes multiculturalism and post-colonial bas were clarions and claxons calling out critiques peppered with contemporary lan- the bankrupt and illogical components of guage and situations. This is, for the most the “Kraken strategy”—regardless of party part, a good and solid advancement on or ideological affiliation.2 Time after time, pedagogy. Newly minted undergraduates the arguments and opinions that held sway expected to decant the references and were based on evidence, used logical rea- ideas of Homer was never a realistic expec- soning, and expressed their findings and tation, and its implementation was just as conclusions with elegant and impassioned likely to turn students away as to create the rhetoric. Collectively, these efforts left lit- high-minded liberal artists that these curri- tle doubt or room for Trump or his team to cula sought. reside with any credibility. When the even- “Rhetorical Elegance and the The shift in education, however, has not tual physical manifestation of this fever- Machinery of Reasoning: been without its critics and these changes dream converged on the Capitol on Janu- A Review of Rhetoric, Persuasion, are not without consequence. What has ary 6th, the fight was over and the forces at and Modern Legal Writing” been lost in this shift and deconstruction play became isolated and ostracized from by Brian Porto of the Canon is exposure to the power- general public opinion. Reviewed by Daniel Richarson, Esq. ful and compelling structures of reasoning The work of these lawyers and judg- that these texts embodied. No matter the es over the past few months were noth- In the depths of our recent civil unrest text, these pieces called back to the pow- ing short of a tour-de-force of the power many have held onto a kernel of hope in erful techniques of reasoning and persua- of reason and persuasion. They were evi- the belief that there is a common prac- sion that the ancient Greeks pioneered be- dence that both still matter and that these tice, which if widely adopted, would sprout ginning around 550 BC in the golden era of structures are the potential salves for a into vines that might re-connect what oth- Athenian democracy. The art of rhetoric, society badly in need of repairing its dis- ers have sought to sever. This longing for like its more scientific twin, logic, has long course and dialogue. greater connection stems in part from the been the thread through which successive In his latest book, Vermont Law School severe disconnect that we have all experi- generations hope to persuade or compel. Professor Brian Porto crafts a timely paean enced during COVID, but it also goes to a Social media—the electronic agora of to the art of rhetoric and offers the read- growing lack of common ground in Ameri- ideas—is the place where this degrada- er a straightforward introduction (refresh- can civil society. Concepts, such as biparti- tion is playing out most publicly, but it is er) to classical rhetoric by providing in- sanship or the common good, which used an open question whether it is the driver struction on the various tropes, schemes, to be potent forces urging us away from of these changes or simply its most virulent and frames that writers since Aristotle have the more extreme angels of our nature to- symptom. Taking a McLuhanian view of used to compose compelling prose. Be- ward the center, have lost currency. Track- the situation would put causation squarely ginning with the three processes of Aris- ing discussions on social media between at the feet of the medium. But close obser- totelian rhetoric (logos, pathos, and ethos) disparate groups has become a distorted vation reveals a larger trend that both pre- and the five general parts of classical rhet- window into the various manias of Amer- cedes and overtakes the language of so- oric (Invention, Arrangement, Style, Mem- ican life. The meme, it seems, has sup- cial media. As Jonathan Swift wrote in the ory, Delivery), Porto dives into the various planted rational argument and dialogue. A midst of a similar period of upheaval driven sub-components and describes each in picture of Biden looking clueless or Trump by competing cultural and religious forces: clear prose. looking spastic have replaced our prior ef- Learning rhetoric is bit like learning color forts to assure or persuade our friends and But when a man’s fancy gets astride theory or the chromatic scale. The com- adversaries with facts, reasoning, and per- his reason, when imagination is at cuffs ponents do not necessarily teach the read- suasion. with the senses, and common under- er how to become persuasive, but they For generations of academics, the hope standing as well as common sense, is lay down the rules and forms that unlock of common connection has traditionally kicked out of doors; the first proselyte how good writing and persuasive writing resided in the “Great Books,” which have he makes is himself, and when that is can be judged and studied as such. Know- long come to define the enshrined basis of once compassed the difficulty is not so ing tropes and schemes such as alliteration the methods and systems, if not the sub- great in bringing over others, a strong (repetition of initial or medial consonants stance, of our culture. For decades, lib- delusion always operating from with- in two or more adjacent words), isocolon eral arts programs have produced gradu- out as vigorously as from within.1 (parallel clauses that share the same num- ates weened on the idea of a single canon ber of syllables or words), or anadiplosis of books as the connective tissue not only If the problem of today is that madness (repetition of the last word of a clause at uniting our society but linking us back to and fancy have gotten astride of reason, the beginning of the next) can explain why the roots of democracy in early Greek civi- the last redoubt and keeper of traditional a particular piece of writing is memorable. lization. logic and rhetoric has been the legal pro- It tells us why speeches by Lincoln have sur- Critical scholarship of the past 30 years fession. When what historians will likely vived in our shared memory and why many has done much to knock down the idea of dub the post-election crisis of 2020 was of his contemporaries’ speeches have not.3

44 THE VERMONT BAR JOURNAL • WINTER 2020/2021 www.vtbar.org Upcoming VBA Programs Watch our website for our virtual offerings and save these dates!

VBA Mid-Year Meeting 2021 Starting March 25th and through April 2nd, we will have Evidence in Remote Hearings, Privacy Laws in Health Care, Odyssey Best Practices, Too Small to Fail (small business bankruptcies for all), Building Inclusive Communities (fair housing), VREF E-Filing Rules Update, Emerging Immigration Issues, Smolos going from Surviving to Thriving in a Pandemic, Democracy Reform, Ethics, Wellness offerings and more!

Mindful Moments for Wellness Approx. every other week: upcoming—March 16, March 30, April 13 & April 27

Chewing on Conflict Dispute Resolution Series II: Kyle Dodson March 5th!

Basic Skills in Vermont Practice and Procedure April 22-23, 2021!

Real Estate Law Day Mini-Series continues in May

Family Law Child Support Scenarios II continues in May

Procrastinators’ Day coming in June

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

Do you have an idea for a CLE? Let us know or connect with your Section or Division Chair. Join any of our Sections or Divisions through VBA Connect on our website and customize your sharing experience! 2020/2021 VBA Section and Division Chairs

Appellate Bridget Asay & Ben Battles Insurance Doreen Connor Bankruptcy Alex Edelman & Don Hayes Intellectual Property Andrew Manitsky Business Association Tom Moody International Law & Practice Mark Oettinger Collaborative Nanci Smith Juvenile Sarah Star & Tara Devine Consumer Jean Murray Labor & Employment Steve Ellis Criminal Katelyn Atwood Lawyer Well-Being Samara Anderson Disability Marilyn Mahusky Municipal Brian Monaghan Dispute Resolution Richard Hecht, Neil Groberg Paralegals Carie Tarte & Erik Wheeler Practice & Procedure Greg Weimer Diversity Alycia Sanders Probate & Trust Mark Langan & Bob Pratt Elder Law Glenn Jarrett Property Law/IPR-Realtors Jim Knapp & Benj Deppman Environmental Gerry Tarrant Solo & Small Firms Mike Caccavo Family Penny Benelli Tax Law & Accountants Will Baker Federal Practice Tim Doherty Veteran’s Katelyn Atwood Govt & Non-Profit Division Jim Porter Women’s Division Samantha Lednicky Health Law/IPR-Doctors Drew Kervick & Elizabeth Wohl Worker’s Comp Keith Kasper Immigration Sidney Collier Young Lawyers Division Amy Davis For the first two chapters alone, Porto’s and an opportunity to focus in on a particu- that the legal profession, both the bench book is an important contribution to the lar section or phrase or to zoom out on the and bar, have an obligation to ensure that world of legal writing, with his overarching larger picture. not only reason carries the day, but that it point that good rhetoric makes good writ- From these sectional analyses, the read- is done in such a manner that prevents the Book Review ing and good writing is persuasive and can er is likely to take away the larger points white noise of partisans from drowning out be studied and understood in a methodi- of rhetorical style. Porto makes the point the message. The only way that happens is cal manner. Rhetoric is helpful to the craft repeatedly that thoughtful construction with the systematic application of the tools of legal writing and a welcome contrast to makes writing resonate. How you organize of logic and rhetoric, and the only way we the rudimentary IRAC writing formulas that your ideas does not just have a flow of log- ensure their uniform application is if we often mark the alpha and omega of most ic, but a flow of persuasion. Changing the pledge our profession to its universal study. lawyers’ thinking about persuasive briefs. normal order of a sentence to put the key This is not a call to begin implementing The second and larger part of Porto’s idea up front, rather than burying it at the mandatory logic and rhetoric classes in law book seeks to explore the concept of rhet- rear of the predicate makes the sentence school, but such programs would not be oric within a study of five Supreme Court more powerful. wasted or out of place in the curriculum. If Justices whose writing defined the th20 Porto’s book is ultimately a call for better we endeavor to have and retain a truly com- century of legal prose. In this section Porto legal writing. For those of us in the trench- mon, basic set of persuasive skills, we need conducts a survey of each justice giving an es, grinding out briefs, motions, and op- to equip ourselves with the knowledge that overview of their tenure and style. His se- positions, the idea of careful and colorful will support this enterprise. While under- lection of Oliver Wendell Holmes, Jr., Rob- prose may seem like something of an un- graduate institutions and law schools have ert Jackson, and Antonin Scalia can hard- necessary and frivolous extension, like put- come to embrace specific area classes, this ly be faulted. Each of the three justices ting an actual blue ribbon on a report. But subject matter specialization has come at would make nearly any list of the best writ- Porto’s argument is that such language and the expense of the core canon of concepts ers to serve on the bench and are rightful- arrangement are essential components of that support the profession. It is not unrea- ly regarded as arch stylists whose framing persuasion, and that as legal professionals, sonable to suggest that every lawyer and and approach to decisions have given us we have an obligation to master these clas- law student should have a basic familiar- phrases like “falsely shouting fire in a the- sical rhetorical skills. Porto’s point is cor- ity with syllogism and synecdoche before ater”; “we are not final because we are in- rect. Just as Edward Everett noted, a 30- study in specific practice or policy areas. fallible, but only infallible because we are page brief is not nearly as effective as one This training should be required either in final”; and “what I look for in a statute: the that can reduce the issues down to pithy undergraduate coursework or as a supple- original meaning of the text.”4 statements and then frame the legal analy- mental component to law school. As Porto To these consensus examples, Porto sis in a memorable and apt manner. notes, the role of formal rhetoric has large- adds Hugo Black and William Brennan. The deeper we go into the study of rhet- ly dropped off and continuing cuts to the While both cast long shadows over the oric, the more we understand of the pow- humanities at schools promises to forestall course and influence of the Court, partic- er that each line, each word carries and any reversal or revival from this trend. Yet, ularly Brennan’s ability to craft coalitions, how careful phrasing can speed up or teaching and spreading logic and rhetoric they are less obvious choices on a rhetor- slow-down the reader or listener’s atten- remains as salient and central to the mis- ical front. With writers like Cardozo, Ka- tion. In speaking with an opposing coun- sion of legal education today as it was 300 gan, Roberts, Stevens, and Ginsberg, sel, I recently characterized a particular years ago. the choice of two Warren Court stalwarts area of business as bringing out the worst In this vein, Porto’s timely tome is a wel- seems slightly redundant. Porto praises in people and the worst people. The coun- come addition to the scholarship and liter- both Black and Brennan for their arrange- sel stopped at this semantic syllepsis and ature of classical rhetoric. It is well-worth ment and clear, simple storytelling, but he paused as he unpacked the two meanings. the investment of any student of the law, acknowledges that they are not the styl- The process elicited a chuckle, but it also old, young, or in between to mine Porto’s ists of either Holmes or Jackson’s caliber. gave time for the phrase to sink into the lis- analysis and examination for the atomic el- Porto’s choice of Black and Brennan seems tener’s head and consciousness. To the ex- ements and building blocks of good writ- like an effort to contrast the high wire style tent that I was trying to persuade him (and ing to both practice and to learn to identify. of the former with the more workmanlike I was), it was an effective way to commu- As both a bedside read and a permanent product of the latter. nicate that this particular area encouraged piece on the reference shelf, Porto’s book The other issue that Porto faces in the people to engage in bad actions and was offers an on-going and densely packed ex- second half is the choice between a deep also a hot bed for criminal activity. I also amination to give anyone the tools to be- dive into the decisions or a survey of each implied that his clients might be of either gin improving and analyzing their writing Justice to garner a flavor of their style and category but left him to make that deter- and the writings of others. impact. Porto opts for the survey approach mination. ______and ably works through the hits of each In the end, though, good rhetoric is not Daniel P. Richardson, Esq., is a partner in with solid essays preceding each survey on necessarily enough. Good rhetoric is not the Montpelier firm Tarrant, Gillies & Rich- the history and larger rhetorical choices of necessarily logical, and it is not necessarily ardson, a past-president of the Vermont each justice. ethical. Socrates and Plato railed against Bar Association and the Vermont Bar Foun- The problem with this method is the the Sophists who sold their prowess in per- dation and serves as Montpelier City Coun- same issue that radio stations or documen- suasion to the highest bidder and sought cilor for District 3. tary filmmakers face when creating pieces to educate their students to make any po- ______1 about musicians or musical periods. There sition persuasive through rhetorical tech- Jonathan Swift, A Tale of a Tub § IX, p. 82 (Ox- ford World Classics ed. 1999) (orig. pub. 1704). is no feasible way to play even a small sam- niques. Rhetoric is content neutral. It is 2 Trump v. Commonwealth of Pennsylvania, et ple of the songs in full.5 For his part, Porto a mere set of tools, but given that the le- al., Dckt. No. 20-3371 (3d Cir. Nov. 27, 2020) (Bi- makes the most of his method offering a gal profession is in the business of persua- bas, J.), available at https://www2.ca3.uscourts. wide array of case summaries and focusing sion, rhetoric is not a skill we can ignore gov/opinarch/203371np.pdf. 3 The famous story of Lincoln’s Gettysburg Ad- on exemplary pieces of rhetoric from each. or simply let arise naturally. If there was dress is that it eventually overshadowed the This results in a steady pace for the book a point to the last few months, it is proof lengthier keynote address of that day delivered

46 THE VERMONT BAR JOURNAL • WINTER 2020/2021 www.vtbar.org Book Review by former Senator Edward Everett. Everett was about it. [Pause.] Well, Abe, it’s like Marc attributable to Justice Holmes (Schenck v. Unit- said to have remarked “I should be glad if I could Anthony saying, Friends, Romans, coun- ed States, 249 U.S. 47, 52 (1919));, Justice Jack- flatter myself that I came as near to the central trymen, I’ve got something I want to tell son (Brown v. Allen, 344 U.S. 443, 540 (1953)); idea of the occasion, in two hours, as you did in you. [Pause.] What else? “People will lit- and Justice Scalia (A. Scalia, A Matter of Inter- two minutes.” P.R. Frothingham, Edward Ever- tle note, nor long remember.: Abe, what pretation: Federal Courts and the Law 38 (1997)) ett, Orator and Statesman. 454–58 ( Houghton could possibly be wrong with that? [Pause.] in that order. Mifflin Company 1925). Bob Newhart famously They’ll remember it. Abe, it’s the old hum- 5 An example to the contrary is Joel Najman’s parodied this rhetorical power in his press agent ble bit, you can’t say, “it’s a great speech, long-running public radio series My Place, talking to Lincoln routine: I think everybody’s going to remember it.” which takes a minimalist’s approach to docu- Press Agent: You come off a braggart, don’t you see menting popular music one artist or theme Abe, you’ve got the speech? You haven’t that. Abe, do the speech the way Charlie at a time. https://www.vpr.org/programs/my- changed the speech? [Pause.] Abe, what wrote it, won’t you? The inaugural address place?page=1. This minimalist approach is in di- do you change the speeches for? [Pause.] swung, didn’t it? rect contrast to even big sprawling documenta- A couple of minor changes? All right, what Bob Newhart, Abe Lincoln vs. Madison Avenue, ries like Ken Burns Jazz, which despite the series’ are they? . . . You changed ‘four score the Button Down Mind of Bob Newhart (Warner length and subject, did not contain a single com- and seven to 87? Abe, that’s meant to be Brothers Records 1960). plete song in its more than 1,140 minutes of run a grabber. Abe, we test-marketed that 4 B. Porto, Rhetoric, Persuasion, and Modern time. in Erie, and they went out of their minds Legal Writing 12, 57, 150 (2020). The quotes are

www.vtbar.org THE VERMONT BAR JOURNAL • WINTER 2020/2021 4 7 IN MEMORIAM

Richard E. Dill Bradford Tyler Atwood Richard “Dick” Arnold Lang, Jr.

Richard E. Dill, age 90, of Newport died Bradford Tyler Atwood, 62, died unex- Richard “Dick” Arnold Lang, Jr. passed on January 14, 2014 after a long battle with pectedly at Dartmouth Hitchcock Medical away on January 9, 2021 at the age of 82 cancer. He was born on May 14, 1923 in Center on Monday, November 16, 2020 at the McClure Miller Respite House after Detroit and married Claire Hebard on June of previously undiagnosed pancreatic can- complications from a broken hip from a 6, 1953 who predeceased him on March cer. Brad was a partner in Hughes Smith fall in his garage. He was born in New Ro- 4, 2000. Mr. Dill was a World War II vet- Hughes Atwood & Mullaly in Lebanon, N.H. chelle, NY, the proud grandson and name- eran, having served in combat in Patton’s He graduated from Denison University and sake of Captain Arnold, a Union solder in army in southern Germany in the last three received his J.D. from Vermont Law School, the Civil War. Dick graduated from Cor- months of that war. After being honorably Class of 1990. Brad was committed to com- nell University and in 1964 from Cornell discharged in 1946, he pursued studies at munity service and was a trustee and direc- Law School where he served on the Board Case Institute of Technology in Cleveland tor of the Gifford Medical Center and vice- of Editors of the Cornell Law Review. Dick OH earning a degree in Mechanical engi- president of the board at Tri-Valley Transit. began his career at the 2nd Circuit Court neering in 1949. He continued his studies at He served as president of the board at The of Appeals clerking for Judge Leonard P. Harvard Law School, earning a law degree Sharon Academy for many years and also Moore. Dick and Nancy Elizabeth Carva- in 1952. He was a member of the MA, ME served as chair of the Sharon selectboard. jal married in 1966 and lived in NY until and NH Bar, practicing law in Portsmouth Brad was passionate about cooking and lo- their move to Burlington in 1972. Dick en- NH for many years. Mr Dill was awarded a cally grown food and encouraged wilder- joyed his varied law practice as a partner 50 years of practice plaque from the NH ness training of camping, skiing, hiking and at Samuelson Bloomberg, at Hoff Wilson, Bar Association. Having become a member fishing with his family. He is survived by his later with Bauer Gravel and finally as a part- of the Vermont Bar in 1998 he opened his wife and four children, two stepdaughters, time attorney with John Franco. In his early office in Island Pond and actively practiced two nieces, his mother, his sister, his broth- years in Burlington, he was the attorney for law until his retirement in 2011. Mr. Dill en- er and many close cousins. the formation and the building of 3 Cathe- joyed photography and in particular cap- dral Square senior and independent living turing steam locomotives in action. He is Douglas D. DeVries housing. Dick served as Burlington Plan- survived by his 3 children and their families ning Board Chairman and Rotary member including grandchildren and great-grand- Douglas D. DeVries, age 80, passed away and served as a member of the Riverside children. He also is survived by his compan- in Durham, NC, with his family at his side on Military Academy’s Board of Visitors. He ion of 10 years, Eileen Earp. He was prede- January 3rd, 2021. He was born May 2nd, relished family trips on Lake Champlain in ceased by his wife of 47 years, Claire Dill, 1940 in Holyoke, MA and moved to Mont- his boat, Solace. Dick is survived by his wife an infant son, his brother and his parents. gomery Ctr in 1966 when he acquired the of more than 54 years, 2 children and their land that became his lifelong home. Doug families including Dick’s three grandchil- Marjorie J. Power graduated from U. Mass, Amherst. He was dren and his sister. commissioned to the United States Marine Marjorie J. Power (née Fisher), 78, died Corps in 1962 and served in the Vietnam Margot L. Stone July 26, 2020, at McClure Miller Respite War. After his service in the USMC, Doug House in Colchester, of Acute Myeloid Leu- spent several years serving his country in Margot L. Stone passed away on Jan- kemia. Born in Philadelphia, spending sum- Southeast Asia, where he made many life- uary 9th at home in Newfane after a 31- mers in Lake Fairlee, she attended McGill long friendships. Upon returning stateside, year battle with cancer(s) with her devoted University in Montreal and studied histo- he received his law degree from Suffolk daughter by her side. Born on December ry and economics at the University of Lon- University in 1972, after having married his 5, 1945 in New York City, she attended the don. While in England raising a family, she wife, Sharon, in 1971. Doug was a long-time Actors Studio with Lee Strasberg in NYC, attended law school and later returned to member of the VBA, served as President of and other private schools, happily counting Vermont achieving her J.D. from VLS in the Franklin & Grand Isle County Bar As- Henry Winkler among her classmates. Mar- 1984. Marjorie worked as an attorney with sociation, and practiced law for more than got made the pilot for the series ‘That Girl’ the Public Service Board for over 20 years. 41 years in Enosburg Falls. He was on the in her role as a double for Marlo Thomas, She served on the Montpelier City Council selectboard for the town of Montgomery. was in several commercials, and appeared for 4 years, served as Justice of the peace Doug enjoyed being outdoors and spent as a regular character on Days of Our Lives and spent many hours at the legislature ad- much time fishing, hiking, and skiing. He until tragically killed off. She never lost her vocating for single payer healthcare. Mar- was also a skilled builder who built the fam- flair for drama. She especially loved help- jorie was a member of the Older Women’s ily home on the equestrian property that he ing to empower people, and was proud to League, the Barre Historical Society, the and his wife developed as Burnt Mountain graduate from Vermont Law School to be- Capital City Grange, Everybody Wins, the Farm. Doug and Sharon spent many years come an attorney in her 50’s. Her practice Council of Vermont Elders and Onion Riv- supporting their three daughters’ athletic ranged from criminal defense to bankrupt- er Exchange. She enjoyed contra dancing, endeavors, particularly cross-country skiing cy. Margot was a voracious reader, a dead- gadgetry, knitting and weightlifting among and showing their Morgan horses through- ly Scrabble player, and in recent years she other things. Marjorie is survived by a son out New England. He is survived by his 3 got a lot of pleasure from volunteering for and daughter, cousins and 2 grandchildren. children, one grandchild, his sister, nieces, the Moore Free Library in Newfane. She nephews and cousins. was a life-long die-hard basketball fan and crowed about the time she was removed from courtside Celtics seats for yelling too loudly. Margot is survived by her daugh-

48 THE VERMONT BAR JOURNAL • WINTER 2020/2021 www.vtbar.org In Memoriam ter, her brother, her devoted dog Luna and their firm. David was active in outdoor ac- from Cleveland State Law School in 1978. her companion of 43 years James ‘Jimmy’ tivities and the law and was “thinking about Doug married Anne McClellan on June Sinon of Newfane. She was pre-deceased retiring” December 2021. Of David’s many 25, 1983 in Richmond, Vermont. He began by her parents and an infant son, Kenneth, community activities, perhaps most impor- practicing as a sole practitioner, starting his who died in an accident. tant to him was his shared leadership of career as a commercial attorney with a fo- Volunteer Vermont. In response to the rac- cus on insolvency law. He was also one of David Watts ist arsons of southern Black churches dur- the initial panel trustees under the Bank- ing the mid-1990s, David helped to orga- ruptcy Code of 1979 and served as a Chap- David Watts. On January 16, 2021, Da- nize youth and adult service trips to Sum- ter 7 trustee for Northern New York and vid died in his sleep on the couch with the merton, S.C., for 15 years, to rebuild com- Vermont until his passing. In the 1980s, New Yorker magazine at his side, his heart munity centers and places of worship. He Doug joined Phillip Saxer and Arthur An- failing after 75 active years. Born on April was instrumental in founding the nonprofit, derson and formed the law firm later known 23, 1945, David grew up in Usonia, N.Y., an Volunteer Vermont, LLC, to raise money for as Saxer, Anderson, Wolinsky & Sunshine. experimental, collaborative community his building supplies and trip expenses. David In 2000, Doug joined the firm now known parents helped to shape. The commitment is survived by his beloved wife and 3 sons as Primmer Piper Eggleston & Cramer, hav- of Usonian community to social justice and and their families. ing just recently concluded a six-year term equity profoundly affected David’s actions on their Board of Directors, as a valued and throughout life —pursuit of a legal career Douglas J. Wolinsky respected member of the firm. Doug loved and volunteer activities focusing on social nothing more than spending summers with justice, economic and housing equity, dis- Douglas J. Wolinsky, 69, of Burling- Anne and their son Max in South Hero, lis- ability rights, and family law. After gradu- ton passed away at home surrounded by tening to Max write and record music, and ating from Antioch School of Law in 1975, loved ones on January 29, 2021. Despite was grateful to get to spend one last sum- David began practicing at Vermont Legal his serious illness for the past three years, mer there. Doug is survived by his wife, his Aid, acting on what he preached and be- Doug continued to live every day to its full- son, his mother and his brother. lieved. The majority of his law practice was est. He was born in Saranac Lake, NY and shared with Stephen Blodgett, his mentor was raised in Cleveland, OH. He graduat- and friend. Paul Volk subsequently joined ed from UVM in 1973 and obtained his J.D.

www.vtbar.org THE VERMONT BAR JOURNAL • WINTER 2020/2021 4 9 CLASSIFIEDS

room, and mail/workstation. Utilities, wi- QDROs (qualified domestic OFFICE SPACE fi, and telephones are all included. The relations orders) AVAILABLE large offices with shared use of the com- I prepare QDROs and other retirement mon space rent for $925 per month each, pay and pension benefit domestic relations South Burlington Office Space the small office for $625. orders for federal, state, municipal, mili- Available for a Small Firm or for Rent a part of the suite on a shared basis tary and private retirement plans as may a Satellite Office or rent the entire suite. The term is month- be required by the terms of the settlement Recently refurbished office suite with pri- to-month with a 60-day notice of termina- agreement or the court’s final order. vate offices, open work areas, conference tion, but longer term fixed leases will be I handle all initial contacts with the plan room, and kitchenette available for rent at considered for the entire suite. or third party administrator and provide all 30 Kimball Avenue in South Burlington. Please direct inquiries to cjarvis@ necessary processing directions when the Three offices are available in a third-floor kohnrathlaw.com. order is ready for filing. suite in an upscale Class A building cen- Vermont family law attorney since 1986. trally located with easy access to I-89 and Contact me for additional information and downtown South Burlington and Burling- preparation rates. ton. Lots of onsite parking. SERVICES Tom Peairs, 1-802-498-4751. Two of the offices are approximately 130 BRIEFS & MEMORANDA. [email protected] square feet each. One is approximately 70 Experienced attorney writes appellate www.vtqdro.com square feet. All of the offices have opera- briefs, trial memoranda. Legal writing/ap- ble windows and lots of light. The shared pellate advocacy professor; author of five space includes use of over 700 square feet books. VT attorney since 1992. $60 per of furnished common space that includes hour. Brian Porto, 674-9505. a reception area, kitchenette, conference

50 THE VERMONT BAR JOURNAL • WINTER 2020/2021 www.vtbar.org