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The (Drunk) Elephant in the Room

January 27, 2017adminUncategorized0

This piece by Amy E. Davis, Esquire was featured in the Vermont Bar Journal, Winter, 2016-17, Volume 42, No. 3.

In a recent episode of “How to Get Away with Murder,” hot-shot defense attorney Annalise Keating has her law license temporarily suspended following an incident where she slapped a client across the face in the District Attorney’s office.  Attorney Keating agrees to enter an approved alcohol treatment program for the reinstatement of her law license, citing her battles with alcohol as the reason for her behavior.  Unfortunately, this is not just a made-for-TV scenario. Many members of the legal profession struggle with drug, alcohol, and mental health problems. The Vermont bar is no exception.

During my third year of law school, Vermont Law School lost four people to mental health-related issues: Cheryl Hanna, John Trombly, John’s mother Elizabeth, and Erika Lewis.  Not only did news of each death rock our community, but it was an eye-opener for those of us preparing to graduate, take the bar exam, and head out into the legal community.  Cheryl’s death was most surprising. An established professor and a well-respected legal commentator with a loving family, Cheryl had everything we would strive for in a legal career.  Yet there was no indication to the public that she struggled with her success.  Shortly after her death, her husband, Paul Henninge reported to Seven Days Magazine: “I think if there’s any lesson that needs to be considered it’s that the subject of depression needs to be kind of put more out in the light of day.”

The Hazelden Betty Ford Foundation Study

In January 2016, the American Society of Addiction Medicine published a study entitled The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys. The study, funded by the Hazelden Betty Ford Foundation and the ABA Commission on Lawyers Assistance Programs, looked at alcohol use, drug use, mental health, treatment utilization, and barriers to treatment.  The study surveyed 12,825 licensed and employed attorneys across the United States.

Of those that participated in the study, men, younger attorneys, and newly-employed attorneys had higher problematic usage than their counterparts. These participants scored at levels consistent with problematic drinking. Previous studies had shown an increased prevalence of problematic drinking to correlate with an increased number of years in practice, whereas this study showed the opposite.  A larger number of those citing a drinking problem stated that it began within the first 15 years of practice.

When it came to hazardous drinking or possible alcohol abuse or dependence, women were more affected than men.  Twenty-seven percent of the participants reported problematic use before law school, 14% during law school, 43% within 15 years of completing law school, and 14% more than 15 years after completing law school.  In regards to drug use, the study showed that stimulants had the highest rate of weekly usage (74%), followed by sedatives (51%), tobacco (46%), marijuana (31%), and opioids (21%).

On issues of mental health, the study found that men had higher rates of depression, and women had higher rates of anxiety and stress. The most common conditions reported were anxiety (61%), depression (45%), social anxiety (16%), ADHD (12%), panic disorder (8%), and bipolar disorder (2%).  A little over 11% of the participants reported suicidal thoughts at some point in their career. Just under 3% reported self-harming behaviors, and less than one percent reported at least one prior suicide attempt.

When it came to treatment, of the participants who reported past treatment for drug or alcohol use, only 20% of them used a treatment program tailored to legal professionals. Participants who both had and had not sought treatment reported that the biggest barriers were not wanting others to find out, and concerns about privacy or confidentiality.  The study provided the following conclusion: there is a greater need for lawyer assistance programs, as well as publicity surrounding the confidential nature of those programs, and the expansion of attorney-specific prevention and treatment interventions.

Vermont Stories   

When it comes to issues surrounding mental health and substance abuse, it’s a chicken-and-egg scenario.  Does the drinking start off as innocent fun then lead to the depression? Or, is there an undiagnosed issue there that we try to self-medicate with alcohol?  Rather than speculate about these statistics, I spoke with several colleagues either currently enrolled in law school or recently admitted to practice to get their take on the subject. Many have struggled with alcohol or illegal drug use, and some had diagnosed mental health conditions such an anxiety, depression, and bi-polar disorder.

I am not surprised that so many in the legal profession struggle with issues of anxiety.  My colleagues all shared the same theme as to what contributes to the anxiety: pressure.


Nathan is a recent graduate of Vermont Law School.  He and his wife, Carolyn, now live out of state.  They have one child and are expecting a second in the coming months.  He believes that the stresses he faced while in law school are ones that many men his age tend to face early in their career: getting married, starting a family, and wanting to provide for that family. For Nathan, these stressors all occurred while he was in law school.

Carolyn’s pregnancy with his first child during his 1L year sparked a lot of anxiety that he did not know how to deal with. Nathan thought about how he was about to be a dad while still having to deal with the pressures from law school. He would seek socialization by going out and drinking with his colleagues during his first year of law school, and eventually drinking became less of a social function and more of a way of coping with that pressure.  Once he realized the drinking had become an issue, he says he sort of “willed” himself out of drinking. “I have to be a strong person for my family and my child,” he says.

But as Nathan starts his legal career, he feels pressure that goes along with the “traditional male roles” of the husband being the provider for the family.  Money and status play a large role in the pressure he feels to be successful. “Coming out of law school, you’ve accomplished a lot, but you’re back at the bottom again.”  He acknowledges it is a stereotype – when the woman becomes pregnant, the man feels he needs to provide – but it is his reality.  He and his wife have decided that once the new baby comes, his wife will leave her job and stay home with the two little ones.  “If I hadn’t passed the bar exam, she would still have to work,” Nathan says.  Now, he will be the sole earner and he has to earn enough so his wife can stay home with their children.


A current law student, Alyssa describes her struggles with alcohol as starting nearly a decade ago.   She had her first child when she was young, was married briefly, and then divorced.  She felt as though she missed out on “having fun while you’re young.”  She went back to school, but found that she was older than her classmates.  Over the next four to five years, she tried to juggle going to school full time, working full time, and being a single parent. She managed her stress with alcohol and marijuana use, but the drinking soon became problematic.  Alyssa was able to justify her partying by telling herself that she was getting A’s in school, the kids were healthy, and the bills were paid, so the drinking can’t be that bad.  Even if she stayed out until 4 or 5 in the morning, she still made it to work at 8AM. “I never hit the ‘rock bottom’ you always hear about – where DCF drags your kids away or you wind up homeless.”  But then she started drinking on her lunch break and putting vodka in her morning coffee.  She asked for a referral for a therapist from her primary care provider, but nobody called her.

One day, she was doing a political fundraiser. Her children were with a babysitter (as they always were when she was out drinking).  She thought that since the kids were gone for the night, she would let loose even more than usual.  She got incredibly drunk.  Then her babysitter called with an emergency and needed Alyssa to come get her kids.  She drove under the influence to get her children, then drove them the few blocks home.  All she could think was, “What if I died? What if I had killed my kids?”  She decided to accompany a friend to an AA meeting, where a light switch went off.  She has been clean and sober since July 8, 2012.

Alyssa founded an AA chapter when she started at Vermont Law School because she had success with the program back home.  She acknowledges a program like AA is difficult in Vermont because it is such a small community.  You run the risk of seeing your own clients or opposing counsel at meetings, which can be awkward.  In her home state, there was a “Professionals Only AA” that was just for doctors and lawyers to help cut down on these encounters.  She acknowledges Vermont may not have the ability to have such meetings here due to geographic concerns and a lower population, but it’s another possible solution to getting attorneys help with alcohol abuse issues.


Kayleigh is a new attorney who graduated from VLS a few years back and now practices in a larger Vermont law firm.  She always believed anxiety and depression were interwoven, and she has struggled with both.  “There are higher expectations for women,” she believes. “We have all of the same stressors as men, but we are scrutinized more than our male counterparts.”  Kayleigh used anti-depressants to help with her anxiety and depression, but found the pills messed with her body and decided to use other methods to treat her mental health, such as meditation.  “Part of it is being able to choose to be happy and how you respond to a situation. You need to recognize what does and does not work for you.”  Kayleigh is lucky enough to be at a firm that allows her to do transactional work, which she enjoys more.  “I found the litigation was driving me to drink and shut down.  I was burning out fast.  My firm gave me the option of choosing my career path, so I switched to transactional work.”  Her law gave her a path to a better quality of life where she did not need alcohol to cope with the day-to-day grind.


Annie has been diagnosed with bi-polar disorder.  She experienced sexual abuse as a young child, which lead to several diagnoses before her current one. She says that she believes part of her diagnosis causes her to crave chaos and self-harming behaviors.  Self-harming behaviors can be more than just behaviors like cutting.  The entire idea of going through law school seems self-harming.  So is drinking excessively.  For Annie, it took the form of an affair while in law school.  But her desire for unbalance and chaos lead to her becoming a lawyer.  “I tried to have a different career.  I’m an arguer, an overachiever, and I’m adversarial.”  Being an attorney has afforded her an opportunity to argue, excel, and oppose at every corner, which actually works with her bi-polar disorder.

When asked what the legal community could do to address issues of substance abuse and mental health issues, Nathan’s response was: “you can always do more, but it needs to be effective.” His local Bar Association and Supreme Court has an open dialogue about substance abuse and mental health issues. They offer a program that allows an attorney to keep his or her license if that attorney follows certain protocol for reporting the substance abuse problem or a mental health issue.

Kayleigh has seen a number of different counselors, and she saw one throughout law school.  She reports not needing a counselor since she received her law license.  She said that if she did seek help, she would not do group counseling or go through a lawyer-specific program, but would instead seek help from a private or solo psychiatrist.

Nathan thinks that prevention starts with the individual law firms and the environment the senior partners create there.  He has an employer who seems to care a lot about him and his personal feelings.  “The leadership of those who hire and fire and those who have contact with young attorneys should be charged with creating a healthy community. If you have leadership that deals with stress by drinking or taking pills, the younger attorneys will too.”  His employer even offers mental health treatment as party of his employee benefit package.

Kayleigh agrees with the sentiment that it runs deeper than a treatment program, and likens counseling to “putting a Band Aid on a wound.”  “The private practice model needs to adjust to the modern era, including the billable hour model.”  She does not know what the solution is, but says the current model does not give new attorneys a chance to balance work and qualify of life.  The model is a huge demand on people’s times.

Overall, my colleagues and I share the same sentiment: we need to remove the stigma surrounding anxiety and other mental health issues.  “They’re invisible diseases that do not get the same attention as cancer or diabetes,” says Alyssa.  “When you can’t show your symptoms on the outside, and when people aren’t open to discussing it, you cannot get the help you need.”  So while I miss Cheryl Hanna terribly and think of all of the students who will miss her spirit and wisdom, I thank her for sparking a dialogue about this silent killer, depression.  I hope that we can open up with one another about our struggles in order to create solutions for the Vermont bar and the legal community as a whole.

Reading Too Much Into Things

Note: This post was originally published through SCOV Law.

Town of Milton Board of Health v. Brisson, 2016 VT 56

Whenever I see a case involving a Board of Health, my mind jumps straight to those homes in Hoarders that get condemned. Have you ever watched that show? There is nothing like curling up on a Friday night with a bottle of wine and watching Hoarders. Seriously, you will feel so much better for not washing your dishes or vacuuming. Alas, this case is not so much about keeping 60 cats in your bedroom as it is about attorney’s fees.

The (lengthy) facts of this case are straightforward and really not in dispute. And since the legal analysis in this case is pretty short, the facts are really the only interesting part of this case. Defendant owned a two-story brick structure. The bottom floor housed a small bar and restaurant, the defendant lived on the second floor, and the attic was used for storage. In May 2012, the police department notified the health officer that some bricks were falling off the building and onto the sidewalk. The health officer looked at the building, said, “Yep, those bricks are falling on the sidewalk,” and issued an emergency health order condemning the building and declaring it unfit for use or occupancy. The defendant needed to hire a structural engineer to figure out what was going on, and complete all repairs within seven days.

Meanwhile, some more town and state officials came to look at the building. They installed some “Jersey barriers” to create a buffer zone, and determined that the bar/restaurant on the first floor was no longer in operation. The defendant would not allow the officials to inspect his living quarters or the attic. The state fire marshal issued a report saying the building could not be used for occupancy or public use due to the structural problems, heavy rotting in the roof, and moisture damage. The town board held its required hearing on the emergency order where the defendant acknowledged he did not do anything in response to the health officer’s order. The town board issued an order stating the brick wall collapsing endangers the passing motorists and pedestrians, which was an “immediate and substantial public health hazard.” The town board ordered the building remain uninhabited until repairs were made, that the defendant start those repairs within 24 hours, and, if he didn’t make those repairs, the building was to be demolished.

Defendant appealed to the state board of health, and, after a contested hearing, the state board affirmed the town’s order. While that appeal was pending, the town sought a preliminary injunction in the superior court to enforce the town’s order. The superior court issued such an order with multiple conditions to secure and repair the building. Two months went by, and the defendant did nothing, so the town filed for contempt. Defendant did not attend the hearing, and the superior court found him in civil contempt. Defendant had filled in new brick on one side, but had not complied with the rest of the order. The court allowed the town representative to enter and inspect the building, and awarded the town attorney’s fees, not to exceed $600 for the contempt motion.

Defendant asked for reconsideration of the court’s underlying order and the new contempt order. The court held a hearing with the defendant’s contractor testifying to the work that had been completed and what work was still left. The court indicated it might lift the attorney’s fee sanction if a visit from the town health officer went well and there was a solid plan to fix the remaining issues. It continued the contempt hearing until mid-January. In February 2013, the court denied defendant’s motion to reconsider the contempt order on the basis that the masonry repairs ordered back in June had still not been completed. It deferred any final ruling on the attorney’s fees, saying that if defendant finished the repairs in a professional manner, it is “likely” he would not have to pay those fees. But, if the work was not performed, or performed poorly, he would have to pony up the dough.

In August 2013, the court ordered that defendant needed to complete additional repairs before October 2013. When the October 2013 status conference came around, a new judge had been assigned. That judge noted several repairs had been done, but more were needed, and the specific tasks in the August 2013 order were not substantially completed. In the spring of 2014, the superior court allowed the town to conduct a more invasive structural assessment of the building. The assessment took place in June, and a detailed report filed three weeks later. The report indicated that while the brick work had been repaired, the load-bearing capacity of the second floor was below code requirements, and there was roof damage. The report concluded the building was still not fit for public use or occupancy.

In July 2014, the court held a final hearing on the town’s motion for sanctions and penalties. In December, the court issued a decision prohibiting the defendant from any and all public use of the building. It also assessed against defendant $22,256, including a civil penalty of $1,788 ($2 per day for being in violation of the health order from July 2012), $7,886 for the Town’s engineering fees, and $12,582 in attorney’s fees. The court also acknowledged that defendant had complied with specific requirements from the October 2013 order, but stated that “those items alone had never been the sole concern of the Town or the State with regard to over-all safety and risk of public injury because of the deteriorated condition of the Defendant’s building.”

So with all of that hoopla, one would thing that there is a whole bunch of stuff up for appeal, right? Nope. The only thing defendant contends is that this statute does not authorize attorney’s fees. There is an “American Rule” to attorney’s fees that means everybody bears the cost of their own litigation. But, the above-mentioned statute allows the government to get reimbursed for expenditures for the “investigation and mitigation” of a public health risk. The town contends that attorney’s fees are a governmental expenditure and included in the statute. The SCOV says, “Nope.”

When the courts look at a statute, it tries its best to go with the Legislature’s intent. If there is doubt as to the intent, the court looks to the “whole and every part of the statute, the subject matter, the effects and consequences, and the reason and spirit of the law.” So if the Legislature isn’t clear, it’s really anybody’s guess. The SCOV concedes at the outset that a broad interpretation of the statute could include attorney’s fees in with “expenditures.” But, it could be interpreted narrowly to include only those involved in the investigation, mitigation, abatement, or removal of public health risks, like engineers and debris-removal folks. Because attorney’s fees are unique, the SCOV concludes that the Legislature probably did not intend to include those in the statute.

Usually, when the Legislature authorizes the award of attorney’s fees (beyond what common law permits), it explicitly does so. For instance, a tenant can recover attorney’s fees when landlords fail to fix habitability issues. Attorney’s fees are also common in worker’s compensation cases when a claimant wins in the superior or Supreme Court. Then there is some case law that says, more or less, that the Legislature knows how to say if it means attorney’s fees, so the court is reluctant to imply it. The Legislature is a big kid, it knows what it’s doing. But, it’s even more important in cases where it would establish a statutory meaning that is far apart from a common law rule – in this case, the American Rule.

The town argues that alternatively, even if the statute did not authorize an award of attorney’s fees, it was within the superior court’s discretion to award the fees based on and equitable exception to the American Rule. The SCOV again says no. There is a flexible exception to the American Rule, such as where one party acted in bad faith and this caused another to incur litigation expenses in an unnecessary judicial proceeding. The standard of review for an award of attorney’s fees is abuse of discretion. However, departure from the American Rule must only be used in exceptional cases, where justice demands an award of attorney’s fees, which is not present in this case. The superior court made no finding of bad faith, vexation or wanton conduct of defendant’s part. The record shows that defendant was a man of limited means, but nevertheless attempted to comply with the town’s health order.

Even though the SCOV gives great deference to the superior court’s discretion with respect to attorney’s fees, the record does not support a finding of bad faith warranting an award of attorney’s fees. Thus, the SCOV reverses the award of attorney’s fees, and affirms the rest of the judgment.

In his dissent, Justice Dooley with Justice Eaton joining, finds that the statutory language is actually a clear directive to authorize collection of attorney’s fees. The dissent also criticizes the SCOV for relying on a Pennsylvania opinion, despite many Vermont opinions to the contrary. The dissent’s reading of the statute is that the Legislature allowed the recovery of attorney’s fees as a “governmental expenditure.” The dissent also sees no difference between an expenditure for an engineer and an expenditure of an attorney. Each is involved in the investigation, mitigation, and abatement of the hazard, with the attorney determining what must be done legally to eliminate the hazard and require the owner to make repairs. It criticizes the majority for requiring the use of the exact language “attorney’s fees” in the statute in order for the plaintiff to recover attorney’s fees. As a practical matter, the Legislature probably decided not to itemize every time of expense, and decided to lump it together under a general term of “governmental expenditures.”

In any event, add this to list of statutes the Legislature can clarify for us in the future.

What’s In a Name?

April 27, 2016adminCorporations0

Note: Attorney Davis original wrote this post in her capacities as a contributor to SCOV Law.

In this case, Defendant Albert Bingham appeals from the trial court’s declaratory judgment. Before the SCOV even rules on it, Bingham files a motion to recuse the entire SCOV because his appeal had been pending for so long. That doesn’t work, and barely makes a footnote in the decision.

Anywho, plaintiff TLOC Senior Living operates a senior living community in Middlebury, Vermont. Plaintiff did business under the name “The Lodge at Otter Creek.” Plaintiff lapsed in its re-registration of the name, and in July 2013, Bingham registered the name under his own name with the Vermont Secretary of State’s Office. Plaintiff sued alleging slander of title, trade infringement, unfair competition, and tortious interference with contract. Bingham argued (through many counterclaims) that by registering the name “The Lodge at Otter Creek” as his business name, he foreclosed any right plaintiff had to the name.

Bingham filed a motion to dismiss, a motion for summary judgment, and a motion for default judgment in his favor. Plaintiff moved for summary judgment in its favor. The court denied both motions for summary judgment, as well as Bingham’s motion for default judgment.

On the merits, the trial court recounted the following. Plaintiff alleged that it had continuously used the business name “The Lodge at Otter Creek” since 2005. In addition to itself, TLOC Real Estate had also used the name. Because these corporate entities were using “The Lodge at Otter Creek” as an alternative business name, the name had to be registered with the Secretary of State. Plaintiff’s parent company, Middlebury Heights Holding Company, LLC (MHHC), first registered the name in 2005, but failed to re-register in the name in 2011. Thus, when Bingham registered “The Lodge at Otter Creek” under his own name, it was not registered with any other entity.

The court relied on the Restatement (Third) of Unfair Competition (2015) to determine the nature of the trade name. The court found that plaintiff was the first to appropriate the designation of “The Lodge at Otter Creek,” and had been doing business under that name for more than five years. The trial court also concluded that plaintiff had established rights to the name under common law, but could not declare that plaintiff was entitled to the actual use of the name. But, the court also said that the conclusion did not provide Bingham with any rights to actually use “The Lodge at Otter Creek” as his own name. Registering the name with the Secretary of State was not enough, by itself, to support Bingham’s counterclaim of unfair competition.

The trial court concluded that although Bingham had been able to register the name, plaintiff’s failure to re-register did not allow Bingham to use “The Lodge at Otter Creek.” Citing the Restatement (First) of Torts in regards to a trade name and market reputation, the court concluded that plaintiff’s common law rights to the name had not dissipated enough to allow Bingham to use it. Even if plaintiff stopped using the name, it would take considerable time before another person or entity could acquire rights to its actual use.

The court denied summary judgment, then gave the parties thirty days to show why their respective claims should not be dismissed in their entirety. Plaintiff asked for a declaratory judgment that it had retained the right under common law principles to use “The Lodge at Otter Creek” as its trade name. Bingham asked for a declaratory judgment requiring the plaintiff to cease all use of the name, and requested that one of plaintiff’s corporate executives be fined and imprisoned.

Plaintiff won its declaratory judgment, concluding that even though Bingham registered the name, he was not entitled to use the trade name without violating plaintiff’s common law rights to the trade name. The court dismissed all remaining claims and counterclaims. Bingham appealed, claiming that because he registered the name with the Secretary of State, his rights were better than the plaintiff’s rights.

Because the trial court granted the relief based on plaintiff’s summary judgment motion, the SCOV reviews using the same standard as the trial court—it will uphold the judgment if the moving party has demonstrated there are no genuine issues of material fact and that it is entitled to judgment as a matter of law.

Reiterating the trial court’s decision, the SCOV notes that common law rights to trade names are created and preserved by use, and not simply registration. Registering a name does not overcome existing common law rights to said name. The law does not support Bingham’s position that he got rights to the name by registering it with the secretary of state.

The SCOV also notes that Bingham raised an argument regarding trademarks in his brief. Even if this case involved a trademark instead of a trade name, plaintiff would still win because the trademark statutes state that “nothing herein shall adversely affect the rights or the enforcement of rights in marks acquire in good faith at any time at common law.” So, Bingham loses for the same reason. The rest of Bingham’s arguments hold no water, and are quickly dismissed.

The SCOV, finding no genuine issue of material fact, and no error below, affirms.

Justice Dooley dissents, with Justice Eaton joining, refusing to accept the trial court’s decision that it had no power to invalidate Bingham’s registration. The dissent goes a bit further, stating that it cannot figure out why the court did not grant declaratory relief to the plaintiff to the effect that it is unlawful for Bingham to use the trade name. The dissent agrees that use trumps registration, then states that Bingham could not lawfully use the trade name on the date he acquired it.

The effect from the trial court is that Bingham cannot use the name “The Lodge at Otter Creek” because of plaintiff’s common law rights, and plaintiff cannot use the name without violating this statute. The result is that Bingham can continue to hold the name hostage. The dissent would adopt a broader reading of the statute to allow the remedy of cancellation of the registration by the court.

Taxation Vexation

Attorney Davis originally wrote this post as a Contributor for SCOVLaw

How do you tax a parcel of land that lies in more than one town? I like to think I might be able to come up with a way that involves less litigation and more common sense, but my job is to blog.

In this case, taxpayer owns three units in a condo community that lies in both Sudbury and Hubbardton. Taxpayer objects to Sudbury’s tax assessment and argues that the trial court erred in upholding the state law through which Sudbury did the tax assessment, the valuation of the portion within its boundaries, and Sudbury’s method of apportioning the tax burden among the condo owners.

The condo community—known as Wanee Villas and Resorts—consists of twenty-one individually owned units covering 26.9 acres. Two documents in the Sudbury land records (a 1978 covenant and a 1993 amendment) assign a percentage of ownership interest in the common land to each unit; state that each unit has a an easement to access the common land; and create a common-interest community and a condominium. Most of this land (including all of the privately owned units) lies in Hubbardton. Only 1.29 acres of common land lies in Sudbury. Three-hundred-eighty-five feet of that land is on Lake Hortina, which is more appealing to individually owned units. Taxpayer owns three units and a stake in Wanee Enterprises, which owns eleven units.

Back in the day (1996 to be exact), taxpayer appealed Sudbury’s tax assessment of the Sudbury portion of Wanee. Taxpayer and Sudbury stipulated to a value of $89,460 for the Sudbury portion. Taxpayer again appealed in 2007, arguing before the town’s Board of Civil Authority and the trial court that Sudbury could not tax the land because the individually owned units were all within Hubbardton. Taxpayer voluntarily dismissed the case with an agreement with Sudbury that it would not tax the units owned by taxpayer, Wanee Enterprises, or taxpayer’s mom from 2007-2009. Sudbury honored this agreement for the three years and then continued to not tax beyond those years until the Legislature could clarify how to tax common lands belonging to a condominium community whose units lie entirely in another town.

Then, in 2012, the Legislature amended 27A V.S.A. § 1-105. Normally I would paraphrase the statute, but it’s a big piece of this case, so I’m willing to use the space to quote the relevant part:

(a) In a condominium or planned community: …

(2) if there is any unit owner other than a declarant, each unit shall be separately taxed and assessed, and no separate tax or assessment may be rendered against any common elements for which a declarant has reserved no development rights; provided, however, that if a portion of the common elements is located in a town other than the town in which the unit is located, the town in which the common elements are located may designate that portion of the common elements within its boundaries as a parcel for property tax assessment purposes and may tax each unit owner at an appraisal value pursuant to 32 V.S.A. § 3481.

Sudbury reappraised the Sudbury portion through a “systematic, multiple-factor formula derived from land tables, schedules, and adjustments,” and valued the Sudbury portion at $177,445. In following the §1-105 amendment, Sudbury taxed the land against individual unit owners by apportioning the tax burden among the unit owners in accordance with their percentage ownership.

Taxpayer appealed to the Sudbury appraisers, then to the Sudbury Board of Civil Authority, and then to the trial court. At the trial court, he argued that §1-105violated the U.S. and Vermont Constitutions; that the Sudbury valuation of the land is not supported by evidence and does not represent the land’s fair market value; and Sudbury must apportion the tax burden equally to each unit. The trial court, after a bench trial, ruled against taxpayer on everything except a remand to apportion the tax burden in accordance with the 1993 amendments to Wanee’s covenants. Taxpayer appeals using the same three arguments as below.

On the first argument—the constitutionality of the statute—the SCOV finds that the statute does not violate either the U.S. Constitution or the Vermont Constitution. Taxpayer asserts that the law creates a situation where common land in more than one town can be taxed at a higher total rate than those with common land in just one town. In his situation he pays twice as much. His situation violates the idea that any difference in tax burden between similarly situated citizens must have a reasonable and rational basis.

A tax is constitutional if it is established for a reasonable purposes, bears a reasonable relation to that purpose, and is fairly applied so that all within a given tax classification are treated alike. These requirements are met in §1-105 because it creates a system that is reasonable and results in fair and uniform tax treatment if implemented properly. This sounds a bit like a Bernie Sanders stump speech. In any event, §1-105 creates two different classifications: common elements entirely in one town, and common elements located in two towns. Towns cannot tax land outside their boundaries, but can tax the amount and value of the land inside their town. Assuming everyone is treated uniformly, everyone pays like taxes, regardless of whether their lands lie in one or two towns.

Furthermore, the property tax system must be based on fair market value to make sure that the tax burden is shared proportionately. The SCOV holds that §1-105satisfies this. The idea behind this is that each town can value the portion within its boundaries so long as the combined valuation does not exceed actual fair market value of the entire piece of land. The Proportional Contribution Clause of the Vermont Constitution, and the Equal Protection Clause of the Vermont Constitution require that §1-105 be applied in a way that does not tax based on a total valuation in excess of fair market value.  Section 1-105 allows towns to consider the land inside their boundaries and the fair market value of the entire piece of land. Therefore, §1-105 is constitutional. Additionally, the taxpayer offered no evidence to show that his property was value or taxed at a higher rate than if it were located entirely within one town.

Moving along, the SCOV addresses the next argument that the fair market value of the Sudbury portion was not supported by evidence. This is the usual part where I claim that “math are hard” and skim over it, but my critics at VTDigger dislike that and assume I can’t do math, so I’ll explain it. Sudbury uses a method of “land tables, schedules, and adjustments that take into account multiple factors affecting the value of the land.” Taxpayer objects to the part of the formula that uses an adjustment for easements reflecting that the land is a small portion of a larger parcel. Taxpayer argues that the adjustment is insufficient, but does not propose an alternative method.

The SCOV reiterates the long-established rule that Vermont towns have discretion to use different appraisal methods to value property in accordance with fair market value. This can be met by taking into consideration all elements that give value to property. In this case, the State of Vermont provides a general land schedule based on actual sales in the town over the past three years. Then, Sudbury adjusts for certain factors like terrain, accessibility, septic systems, etc. Sudbury’s method is remarkably accurate with its assessed values “very comparable” to actual sales.

Sudbury started with a schedule based on the average fair market value for a lot on Lake Hortonia of $1,000 per linear foot of lake frontage (385 feet), for a base value of $385,000 (that’s $1,000 x 385 = 385,000), and then took into account certain factors. Here’s where the math kicks in: ($385,000 x .80 (overgrown beach) x 1.02 (deeper-than-normal parcel) x. .70 (lake frontage) x .80 (easement for community owners)) + $1500 (dilapidated structures) = $177,429.60. Final assessed value being $177,445 (with no indication as to where the extra $15 came from).

The trial court found the system was accurate because the schedule was based on actual sales data, and the adjustment factors reflected elements the SCOV has previously recognized as giving property a market value. The SCOV also finds that the town uses proper bases for determining the degree of adjustment for each factor, including the use of numerical charts. Finally, the overall land value close matches historical sale prices. Therefore, the appraisal method is not unreasonable or too simplistic like other methods the SCOV has struck down. It other words, the method has to be just complicated enough for it to be upheld. If it were simple, then anyone could do it, and that’s not right.

Taxpayer also argues that Sudbury’s formula should not be used at all because the land was developed to value stand-alone parcels and not portions of land belonging to one larger parcel. Taxpayer claims that the Sudbury portion is almost worthless because it cannot be sold on its own. This ignores the SCOV’s long-standing holding that “contiguous lands should be treated as one under appropriate circumstances.” Factors to consider in determining whether a property should be assessed as a single parcel include such questions as: is it conveyed in one deed? What’s the character of land and purpose for which it is used? Does it function as one tract for the owner? Here, the Sudbury and Hubbardton portions function as one tract, and the Sudbury portion enhances the whole by providing the units with lakefront access.

Taxpayer’s third and final argument is that the tax burden should not be apportioned among the unit owner in relation to their percentage interest in Wanee. He claims it is unreasonable, unconstitutional, and violates the principal that property tax appraisal value should be proportionate to fair market value. Taxpayer believes the tax burden should fall equally on each unit. The SCOV says no, just no. Sudbury’s method of apportioning the burden according to ownership interest is reasonable because it takes into account “the benefits and burdens of condominium ownership.” It’s constitutional because it reflects the actual value that the common property adds to each unit. The SCOV notes that “tax is a common expense, so it is reasonable for Sudbury to allocate this burden across the different units according to percentage of ownership interest.” Historically, Vermont relies on the principal that common areas of condo communities are not taxed as if completely independent of units that own easements to it. Instead, it is allocated to the individually-owned units that make up the condo, and then those units are taxes. Here, none of the units lie in Sudbury, so Sudbury can tax the portion of the common area that is within its boundaries.

Thus, the SCOV affirms the trial court and the tax bill.

Enforcement of Family Court Orders–Vermont and New Hampshire comparison

I have written before of the frustration  I feel for my clients who do not understand why  Family Court judges in Vermont seem to be reluctant to enforce family court orders.  Recently in three separate cases  clients rightly expressed their dismay at not receiving prompt and decisive responses from the court when the opposing party flaunted a specific court order–resulting in financial distress for each client.  I can only caution patience and express sympathy for their plight. New Hampshire Courts, on the other hand, seem to be far more willing to enforce court orders and to punish miscreants in family court.

What is the difference between enforcement of Vermont Family Court orders and those in New Hampshire?  Let’s look  at the rules.   Vermont Family Rule 16 provides that a court can initiate contempt proceedings on its own motion or by motion of a party.  In my 33 years of practice, I have never seen a Vermont court issue a civil contempt proceeding on its own motion. Courts are reluctant to do so because they must not only be impartial, but they must also seem to be impartial to the parties in court.  A judge who issues a contempt citation on its own motion necessarily will seem not to be impartial to the litigant who is the subject of the contempt.

Rule 16 also provides that if a litigant files a motion for contempt, it must be accompanied by an affidavit, and the motion and affidavit, along with the notice of hearing, must be served by sheriff (or by certified mail, if the case involves minor children).  Rule 16 provides that alleged contemnor has at least 15 days to respond prior to a hearing.  This rule applies in both ongoing cases, and in closed cases.

Rule 16 also provides as follows: “The court shall issue an order initiating a proceeding only if the alleged contempt, if proven, would be a clear and substantial violation of a previous order of the court.”   Emphasis added.

Thus the rule not only requires  costly service of process of the motion on the violator, but also requires a high bar for the victim to prove contempt -and allows judicial  discretion on what is  a “clear and substantial”. violation.  As a practical matter, then, the person who is the victim of an opposing party’s defiance bears a heavy burden to bring before the court the violation and prove that the violation is clear and substantial.    Here is where I believe the Vermont rule needs to be changed.   The victim of the violation should not have such a heavy burden to prove that the alleged contemnor violated the order.  Why? Two reasons:  First, because as the survey respondents indicated,  the public believes that following court orders is of the highest priority, and shifting the burden to violators would send a message that the courts take violations of court orders seriously.  Second, when courts are reluctant to enforce orders, victims of violations of court orders must police the violators themselves, compromise their positions, or simply allow the violation to continue because of the expense and uncertainty of filing motions for contempt.  Litigants should not be put in that position.

New Hampshire’s   Family court contempt rule has less onerous procedures than Vermont’s.   Both allow punishment only after an opportunity to be heard, and require motions and affidavits in any post judgment proceeding.   However, if there is an ongoing proceeding, a New Hampshire litigant  need only file a motion with no affidavit, and service need only be by first class mail.  There is no provision for a period of time for the alleged contemnor to answer.

Substantively, there is also a large difference between the rules concerning a finding of contempt.  New Hampshire’s enforcement and contempt rule provides that the court may find a litigant in contempt  “upon a finding of the violation of any Court order”.  Thus the litigant need not prove a “clear and substantial violation”, as he or she must in Vermont;  merely that the order has been violated.

New Hampshire’s rule makes more sense.  First, if litigants are in the middle of divorce or other family law proceedings, any motion may be filed without an affidavit and served by first class mail in either state–except for a motion for contempt in Vermont.  To require  an affidavit and service for contempt motions as if the case were just starting adds an unnecessary burden on the victim of the violation, and provides no added protection for the violator.  Second, New Hampshire’s standard for a finding of contempt comports with how the public feels about violations of court orders.   Americans believe strongly that court orders should be strictly enforced.  After all, as one client said to me, if a court won’t enforce its own orders, who will?

Litigants in Vermont Family Court who are the victims of a violator of court orders deserve to have their orders enforced and to have the violator punished,  without having to shoulder the heavy  burdens  imposed by Vermont Family Rule 16.


Want to Register your Trademark? Here’s How

November 14, 2011adminTrademarks0

Author’s Note:  this article was produced with the able assistance of paralegal Michael Roosevelt, whose background in fine arts, printmaking and lithography (See his website here) sparked his interest in this subject. His practical knowledge of trademark law has have helped clients walk through the process of obtaining valid trademarks quickly and efficiently.

 As new businesses begin to produce products and services, and old businesses produce new products or services, they should consider registering the trademarks or service marks (“marks”) associated with them.

Both trademarks and service marks can be registered at the federal level. Only goods – not services – can be registered at the state level in Vermont (Title 9, Ch. 71 of Vermont Statutes Annotated).   Federally registered marks are protected throughout the United States – state registered marks are only protected in Vermont.

What is a trademark or service mark?

According to the U.S. Patent and Trademark Office, “A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others.”

A trademark can take many forms which identify and distinguish specific goods or services. These include letters and words, logos, pictures, slogans, colors, distinctive product shapes; sounds, or a combination of the above.

As stated on the Vermont Secretary of State’s website, “Trademark is different from a business or trade name. The mark identifies the goods; the name identifies the entity which does business, such as selling the goods.”

How do you establish a trademark?

One approach is to establish use in the market and notice your claim to a mark by the use of the “™” symbol and other notices.  Another approach is to directly register the mark with Vermont Secretary of State, or the U.S. Patent and Trademark Office to establish “first use.”

Why register?

For the consumer,  trademarks make it easier for them to identify the source of a product.  For the businessperson,  a trademark protects against the unauthorized use of a confusingly similar mark. While, as indicated above, you do not need register a mark to establish its use in the marketplace, it is generally better practice to register your mark, particularly if you plan to use it extensively and for a long period of time.  In addition, registering the mark will ensure that your mark is not infringing on other owner’s marks.  As part of the registration process, the USPTO researches to make sure the trademark being registered is not currently in use.

How does the public recognize your trademark or service mark?

A trademark or service mark is identified by the use of the “™” trademark symbol on goods, or the “SM” service mark symbol when applied to services. These symbols place a viewer on notice  that you are claiming the possession and use of these marks.

By registering a mark at the federal level, you increase your trademark rights.  The “®” registration symbol indicates that a mark has been registered with the United States Patent and Trademark Office (“USPTO”). Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a)(1), provides federal protection against infringement of unregistered marks and trade names and many other forms of unfair competition.

How do you determine whether your mark has been infringed?

A mark is considered to have been infringed upon when someone other than the owner uses the mark in such a way as to cause confusion as to whose goods or services they are.

What are your rights if your mark is infringed upon?

First, you have common law rights to your mark even if you have not registered it, and you can file suit to protect those rights.  However,  federal registration of a mark brings the owner the right to initiate and infringement suit in federal court and may result in the owner’s recover of treble damages, attorney’s fees, and other awards.

Vermont registration also provides that an mark owner may bring suit to enjoin the use of the mark, and to be awarded damages.  Vermont statutes do not provide for attorneys fees or treble damages, but they do provide that the state may file criminal charges against an infringer of the mark.

How to register?

Generally trademark rights can be acquired (1) by being the first to use the mark in commerce; or (2) by being the first to register the mark with either the Vermont Secretary of State (for a Vermont only mark) or the U.S. Patent and Trademark Office.

Applications for trademark registration are subject to approval by the USPTO and may be rejected for a number of reasons.

Examples of reasons why a trademark might be rejected are:

  •  It is likely to cause confusion with an already registered mark (such as McDonald’s” Hot Dogs)
  • It simply contains a generic term (such as “Hot Dogs”).
  • It primarily describes the geographic origin of the goods or services (such as “St. Johnsbury”).
  • It is primarily a surname (such as “Smith’s”), etc

As stated on the USPTO website:

“For advice about trademarks and the USPTO registration process, you should consider hiring a private trademark attorney (not associated with the USPTO) to help you.  Although not required, most applicants use private trademark attorneys for legal advice regarding use of their trademark, filing an application, and the likelihood of success in the registration process, since not all applications proceed to registration.

“A private attorney may save you from future costly legal problems by conducting a comprehensive search of federal registrations, state registrations, and “common law” unregistered trademarks.  Other trademark owners may have protected legal rights in trademarks similar to yours that are not federally registered; therefore, those trademarks will not appear in the USPTO’s Trademark Electronic Search System (TESS) database.

“A private attorney can also assist in the policing and enforcement of your trademark rights.  The USPTO only registers trademarks.   You as the trademark owner are responsible for any enforcement.”



On-line sources:

U.S. Patent and Trademark Office page on trademarks

Cornell Law School list of trademark materials

U.S. Patent and Trademark Office

Intellectual Property Law Association of Chicago

American Intellectual Property Law Association





U.S. Supreme Court strikes down Vermont law on First Amendment grounds

In a 6-3 decision issued June 23, 2011, the United States Supreme Court struck down a Vermont law which restricted the ability of pharmaceutical companies to obtain information about what type of drugs doctors were prescribing to patients. The information is used by drug companies to more effectively market their products to doctors. Sorrell v. IMS Health, Inc. 564 U. S. ____ (2011) . At issue was the constitutionality of Vermont’s attempt to regulate the use of information “mined” from prescription records.

When prescriptions are filled at retail pharmacies certain information is generated: the patient’s name, the name of the prescribing doctor, the type/dosage/quantity of the drug prescribed and the date filled. These records are “mined” by data gathering companies who then sell the information to private companies, law enforcement agencies, research institutions and pharmaceutical companies. Federal and state laws require that information identifying a particular patient be “scrubbed” before the remaining information is sold.

Pharmaceutical companies are the largest users of data obtained from prescription records. The information allows pharmaceutical companies to target marketing and advertising materials to specific markets and geographical locations. It also allows the companies to identify prescribers by their prescribing habits, thereby allowing pharmaceutical sales reps, called “detailers”, to tailor their sales efforts to individual doctors. Being able to tailor a sales pitch to an individual doctor potentially allows the pharmaceutical company to influence which medicines are prescribed by the doctor, which in turn, has the potential to impact the overall cost of an individual’s health care.

Vermont attempted to address concerns raised by the “data mining” of prescription information in 2007 when the legislature passed the “Act Relating to Increasing Transparency of Prescription Drug Pricing and Information.” The law attempted to regulate the sale or use of “prescriber-identifiable” information for marketing or advertising purposes unless the prescriber (ie., the doctor writing the prescription) consented (also known as “opting in”) to use of the information. The overall intent of the law was to protect public health, protect prescriber privacy and reduce health costs.

In August, 2007, two data mining companies filed a lawsuit against the State of Vermont in federal district court. The data mining companies argued, among other things, that Vermont’s law impermissibly restricted their right of free speech. Vermont argued that the law regulated the data mining companies’ conduct, not speech. Vermont argued further that even if the law were viewed as a restriction of speech, the speech being regulated was of a commercial nature which is not fully protected under the Constitution.

The tests used to determine if a law violates the Constitution depends in large part upon the right that is being infringed. “Commercial speech” unlike “political speech” has been generally subjected to what is known as “intermediate scrutiny.” As a general rule, commercial speech can only be limited by the State if the limitation is in support of a substantial governmental interest, directly advances the governmental interest asserted and is not more extensive than necessary to serve the State’s interest. In this case, Vermont argued that the law met the test of constitutionality.

The federal district court agreed with Vermont. The Court found that while the law did indeed infringe upon the data mining companies’ free speech rights, the State’s interest in cost containment and public health were substantial. The Court concluded that the restrictions on the disclosure of prescription related data was “reasonable in proportion to the State’s interests.”

The data mining companies appealed to the 2nd Circuit Court of Appeals. Arguments were heard in that Court in October, 2009. In November, 2010, a divided Court of Appeals overturned the district Court decision. That Court ruled that Vermont’s law was indeed an impermissible restriction on commercial speech. While Vermont arguably asserted substantial state interests, reasoned the 2nd circuit, the law did not directly advance those interests nor was it “narrowly tailored” to serve that interest.

The case was appealed to the Supreme Court. Oral arguments were heard in April, and the Court issued a decision on June 23, 2011.

The Supreme Court held that Vermont’s statute violates the Constitution’s First Amendment protection of free speech. The court found that the law restricted the content of the speech, and restricted who could speak. The Court held that both those restrictions require what the Court called “heightened scrutiny”, rather than the intermediate scrutiny applied to ordinary commercial speech. Thus while the test was the same: that the state must demonstrate that “the statute directly advances a substantial governmental interest and that the measure is drawn to achieve that interest, ” the Supreme Court held that the State had a greater burden to demonstrate its interest in restricting this type of commercial speech.

The Court found that the statute was not drawn to advance the claimed interests of the state. Vermont argued that the law protected physicians from disclosing their prescription decisions. But the law allows other entities to access that prescription information; it only restricted pharmaceutical companies from obtaining the information without prior doctor consent.

The state then claimed that the statute protected doctors from drug companies trying to persuade them to use their product. In a succinct rebuke to the state, the Supreme Court stated:

“Fear that speech might persuade provides no lawful basis for quieting it.”

Vermont Again, the court found that argument unpersuasive, stating:

“Vermont may be displeased that detailers with prescriber-indentifying information are effective in promoting brand name drugs, but the State may not burden protected expression in order to tilt public debate in a preferred direction.”

The dissent, in an opinion written by Justice Steven Breyer, argued that because this is commercial speech, “heightened scrutiny” is not warranted. Indeed, Justice Breyer argued that the Court had never before used a “heightened scrutiny” standard in reviewing a regulatory scheme that affects commercial speech.

He concluded with a separation of powers argument:

“Because the imposition of “heightened” scrutiny in such instances would significantly change the legislative/judicial balance, in a way that would significantly weaken the legislature’s authority to regulate commerce and industry, I would not apply a “heightened” First Amendment standard of review in this case.”

The two Justices appointed by President Obama split on this decision: Justice Sony Sotomayor joining the majority, with Justice Elena Kagan joining the dissent.

*Hat tip to Attorney Bob Brazil, who wrote most of the first part of this article for the radio show, “Law Matters” on Magic 97.7 prior to the Supreme Court’s decision on June 23rd

Called as a witness in court? Here are some tips to help you through the ordeal

Being called as a witness in court can be stressful. People who have seen courtroom dramas on television and in the movies fear that the opposing lawyer will trip them up, twist their words, or make them look foolish. In my 32 years experience I have found that does not happen to an honest witness who understands his or her job is just to answer the questions. If you remember that it is the attorney’s job to make sure all of the evidence is presented, and it is your job just to answer the questions, you will be fine.

Here are some tips that I give my clients and witnesses. These may help you if you are called as a witness:

Getting over the jitters: I will go over your testimony and possible cross examination questions.  That should help you feel less nervous. Going over these instructions should also help.  If you still feel uncomfortable, I recommend you go to court ahead of time, find out what courtroom you will be testifying in, and watch the proceedings.  I can help you make arrangements to visit the court at an appropriate time if you wish.

Dress: It is important that you dress appropriately for court. The clothes you wear should indicate that you consider this an important matter, and that you have respect for the judicial system.

  • Men should wear a shirt with a collar and slacks. No jeans or t-shirts. Women should wear dress shirts and slacks or skirt, or dresses. Avoid too much make-up.
  • Everyone should be clean and neat. Please shampoo your hair the night before, or the morning of your testimony. Men should have their side-burns and mustaches trimmed, as well as a neat haircut. Both men and women should have their hair combed so it is out of their eyes.
  • Do not wear sandals or loud shirts or loud blouses.

Courtroom conduct: When you are sitting in the courtroom, please conduct yourself with dignity. Never make faces or remarks when someone else is testifying. Do not roll your eyes, shake your head, put your head in your hands, or make any other gesture that is in response to a witness’s testimony. The judge and jury hate to see people in the court room do such things, and they frequently misinterpret your body-language.

When you sit in the witness box, sit in a relaxed position, but do not slouch. Put your hands in your lap; do not fold them across your chest.

Tips when testifying:

  • TELL THE TRUTH: The one most completely devastating thing that can happen is for you to lie regarding some element of the case. You may be assured that the other side will investigate thoroughly and discover the untruth. It only hurts the case if you do not tell the truth
  • BE BRIEF: Listen to each question carefully, answer it completely and honestly but do not over-answer it. That is, do not go elaborate unless some elaboration is necessary to clarify your answer, and do not go on to another topic.
  • LISTEN TO THE QUESTION AND ANSWER ONLY THE QUESTION.   Do not second guess the attorney who is asking you the questions. Just remember that you have two strikes against you when you are on the witness stand: you are not familiar with the system, and you do not know the questions the attorney is going to ask, or why he or she is asking them–so second guessing is a loser’s game. Do not worry whether your answer is helping your case or whether you are being consistent; my job is to worry about that. All you have to do is tell the truth.

I have been practicing in trial courts since 1979. I have never seen an honest witness fooled by a lawyer.

  • Do not ask the cross-examining lawyer a question. It shows belligerence. For example, a witness might ask, “Why is this relevant?” Do not ask such questions. It only gives the lawyer an opportunity to make a remark about your testimony and it irritates the judge and jury. Also, when you ask a question, it appears you are trying to avoid answering the lawyer’s question. There is only one exception: you must ask the attorney to repeat or rephrase the question if you do not hear the question, or do not understand the question.
  • Be courteous and attentive to the opposing attorney. Under no circumstances should you get mad or lose your temper. I will be there to protect you if you are being mistreated. It helps to remember the opposing attorney is just doing his or her job.
  • Do not look to me for help in answering the questions. I will object if you are asked an improper question.
  • Do not testify to what someone has told you unless you are asked specifically about conversations with others.
  • If you do not understand a question, say so. I have seen witnesses who are concerned that they look stupid, so they answer a question they do not understand. That could be a disaster
  • If you do not hear a question, say so.
  • If you do not know the answer, or you do not remember, say so. However, do not use, “I don’t remember” as an excuse not to answer. If you know the answer, answer the question.
  • Do not guess at the answer to any question. Be especially careful where the question deals with dates, time, speed, or distance. You may estimate these if you are able but do not guess.
  • Do not be afraid to admit that you have discussed your testimony with an attorney. Remember, that is the truth and you always tell the truth.
  • Some people think they have to contradict the opposing attorney as much as possible. Others think they should agree with the opposing attorney as much as possible so that they appear unbiased. Do not try to be either too agreeable or too disagreeable when you are being cross-examined. JUST TELL THE TRUTH.
  • Do not answer the question before the lawyer finishes asking. You might be tempted to hurry, because it is not pleasant to be cross-examined, and you want to get it over with. Take your time, and listen to the question carefully. Do not let the lawyer hurry you, either. Go at your own pace.
  • Remember, I will have a chance to ask you questions again after the attorney cross-examines you. So, if there is anything that I feel has not been adequately explained in cross-examination, I will give you a chance to explain it.
  • If you have been convicted of a crime, the other side may be able to bring it up during cross-examination. Let me know ahead of time, and I will file a motion to try to keep it out. Please do not surprise me on this.

Please remember: the other side may call you to testify before I do. They can.  Do not worry about that; just keep in mind the instructions that I have given you.

Results on custody and visitation survey

April 24, 2011adminCustody, Divorce


We received a total of 81 responses to our survey about child custody and visitation.  You can view the results here and here(We sent out surveys to two separate lists; hence the two results.)Some preliminary comments:  first,  my comments will compare the results only with Vermont law. Second, I asked respondents about “custody” and “visitation”.  Those terms are no longer used in Vermont; “parental rights and responsibilities”  are used for custody; and “parent child contact” is used for visitation.  I used the former terms as they are generally understood by the public, and are more concise terms.  Third, there was a large response and many comments.  So these issues are important to many folks. Finally,  in three out of four questions, the majority of respondents recommended options which are not allowed or provided for in Vermont domestic relations statutes.   Domestic relations statutes are enacted based on what lawyers, judges and legislators believe is best for families–with little or no input from the families affected. This survey demonstrates that that these issues–which affect most families at some point in their lives–should be discussed with the public, and not just left to the legal community and legislators.

In the first question, respondents are asked if a child should be able to choose which parent he or she lives with.  Most said yes. In fact, the plurality said children should be able to choose at any age.  Only a small fraction said the child should never have a say.  Yet, in Vermont, the statutes do not allow children to express a preference for which parent they want to live with at any time.  Indeed, one person told me privately that they felt a sibling had been damaged as a child because the sibling did not have a say as to which parent the child could live with.  I have always thought it was best for children not to have a say as to where they live.  In my experience, there is a danger to allowing children to express a preference because I have seen children who want to take care of a needy parent, and children who want to please an abusive parent.  And even good parents can unconsciously manipulate a child.  However, my opinion has changed somewhat  based on this survey.

In the second question, respondents were asked how a child should be able to express a preference.  The vast majority said that children should be able to talk to judges in chambers.  That would not be allowed, unless the parties or their attorneys are present. It is a matter of due process for the parties to be able to at least have a representative in  chambers.  Parents have constitutional rights to the care and companionship of their children, and I do not believe allowing children to talk to a judge alone would pass constitutional muster.  In any case,  in my 32 years of experience in Vermont family courts, children have only testified once–not about their preferences, which is not allowed, but about some observations they had that no one else could testify to.  So, this answer was markedly different than what happens in Vermont family courts.

The third question involved whether there should be a preference for sole custody with one parent, or joint custody.  The vast majority said it should be in the judge’s total discretion, recognizing, I think, that each family is different.  Vermont statutes do not allow any discretion when it comes to joint legal custody–the parties have to agree, or the court cannot order joint legal custody.  In regard to physical custody, in Vermont,  the statute outlines nine factors the courts must take into account when determining physical custody, and because those factors are quite general,  judges have wide discretion. So the respondent’s answers matched what the statute contemplates.  In my experience, judges used to routinely award custody to mother with every other weekend to father.  That pattern has changed in recent years, with fathers being awarded custody more often than in the past, and with visitation much more frequent. However, in my experience, mothers still have an advantage, particularly when there are small children.

The fourth question asked whether parents should be able to request modification of custody and visitation as the children got older.  The vast majority of respondents said yes, with a plurality indicating parents should go to mediation first.  In Vermont, before there can be any modification of custody or visitation, a party must show there is a “substantial unanticipated change in circumstances”.    In my experience, judges consider a child growing older not to be an unanticipated change in circumstances;  thus custody and visitation cannot be changed.  Indeed, in a recent case where a teenager had refused to stay with a parent for over a year, even though the order provided for 50/50 custody.  The parent where the child lived filed a motion to modify, citing a substantial unanticipated change in circumstances.  The judge refused to modify the order, because he found that teenagers often have a falling out with a parent, so he determined this was not an unanticipated change in circumstances!


Child Custody and visitation–what do you think?

April 17, 2011adminCustody, Divorce


Last week,  Alabama legislators introduced a bill which would change child custody laws in that state mandating shared custody between divorced parents  The bill has stirred up controversy, and it is not clear it will pass.  The Alabama bill is part of a nationwide trend of legislatures reviewing and revising child custody and visitation laws.  Today, Vermont and New Hampshire have very different laws regarding custody and visitation.  In Vermont, sole physical custody has been the norm, although that is changing as a result of a Vermont Supreme Court unpublished entry order several years ago.   In New Hampshire, shared custody is encouraged.   In addition, in Vermont, there is no provision for children to  express a preference regarding custody, while in New Hampshire, the courts are allowed to take into account a child’s preferences under certain circumstances.

Because of the changes that are happening in family courts, and because of the different approaches in Vermont and New Hampshire,  I thought it would be interesting if we did a survey of the public to see what you think.

Here is the link to the survey.   Particularly for those of you whose parents were divorced or separated during your childhood, or those who are now in a divorced or separated households with minor children, we hope this survey will give voice to your concerns and opinions.


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