2012 BASIC SKILLS IN VERMONT PRACTICE & PROCEDURE. Civil Litigation Overview

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1 Vermont Bar Association Seminar Materials 2012 BASIC SKILLS IN VERMONT PRACTICE & PROCEDURE Civil Litigation Overview August 23 & 24, 2012 Windjammer Conference Center South Burlington, VT Faculty: David H. Casier, Esq. Therese M. Corsones, Esq.

2 The Vermont Court System On July 1, 2010 the Vermont Legislature instituted a complete restructuring of the Vermont court system. The Vermont court system now is made up of the Vermont Superior Court, which is divided into Units which roughly correspond to each county. Within each Unit there is a Civil Division, a Criminal Division, a Family Division (with each of these trial Courts having limited appellate roles) and a Probate Division. There is also a state-wide Environmental Division and a state-wide Judicial Bureau. The diagram immediately below shows the current structure of the Vermont Judiciary. The second diagram is designed to show the avenues of appeal for each of the courts. 1

3 The Vermont Supreme Court The Vermont Superior Court The Vermont Environmental Division State Regulatory Boards Civil Division Each county has its own Unit Family Division Each county has its own Unit Criminal Division Each county has its own Unit Small Claims Court Child Support Magistrate Judicial Bureau (Traffic and municipal tickets) Probate Division The Vermont Supreme Court hears cases on appeals from all of the Divisions of the Superior Court, the Environmental Court and appeals from all of the various State Regulatory administrative agencies, boards, commissions and officers. 1 The Vermont Supreme Court is comprised of five justices: one chief justice and four associate justices. The Vermont Supreme Court uses the Vermont Rules of Appellate Procedure. Most cases that go to the Vermont Supreme Court are actually heard by three of the five justices. This allows the five justices to divide the workload and increase the number of cases the court can deal with. Decisions made by three of the five justices are called memorandum opinions. Memorandum opinions are limited to the specific case. That is to say they do not express a rule of law that can be used as precedent in later cases. What they say may be persuasive, but it does not have the force of an opinion by all five justices. Only decisions by all five justices can be cited as 1 There are a number of bodies with administrative authority that regulate a number of things. A partial list of these bodies include: The Public Service Board, The Human Services Board, and the lawyer s Professional Conduct Board. There are regulated occupations and professions that can have issues that make their way to the Supreme Court and they include: clinical social workers, acupuncturists, hearing aid dispensers, auctioneers, occupational therapists, dietitians, accountants, psychoanalysts, athletic trainers, midwives, audiologists and many more. Final decisions of some of the boards and commissions are appealed directly to the Supreme Court, though most have to go first to The Washington Unit of the Civil Division of the Superior Court. 2

4 controlling authority. This should not come as any great surprise because if you get a decision from a three-judge panel, where two justices vote one way and the third the other, it could very well be that the two justices, who did not participate in that particular decision, might have voted with the justice who was in the minority and made the case come out the opposite way. Candidates for an opening on the Vermont Supreme Court, the Environmental Court or any of the Superior Courts, are initially selected by the Judicial Nominating Board. The Judicial Nominating Board takes applications for the open position, interviews candidates and sends a final list of candidates to the Governor. The Governor will choose one person from the list and send that person s name on to the Senate. The Senate can either confirm or reject the Governor s choice. If selected the Judge or Justice will serve a six year term and then will have to face a review by the Senate, which can vote to retain or dismiss the Judge or Justice. In addition to these state court judges each individual County elects the probate court judge for the county and two assistant or side judges. In cases that are tried without a jury in the Civil Division and in the Family Division the side judges may participate as fact finders along with the state court judge. The Criminal Divisions and Civil Divisions of the Superior Court are equipped and authorized to conduct jury trials. The Environmental Court and the Family Divisions are not. The Civil Division of the Superior Court is the trial court for civil cases and has original jurisdiction over civil cases. The Civil Division of the Superior Court has exclusive jurisdiction of all original civil actions, except the limited civil cases over which the Criminal Division has jurisdiction pursuant to 12 V.S.A. 437 (described below) or cases that belong in the Environmental Division, the Family Division, or the Judicial Bureau. The Civil Division of the Superior Court plays the role of an appellate court for the Probate Division and the Small Claims Court. An appeal of a decision of the Probate Division to the Civil Division of the Superior Court results in a new trial (trial de novo) rather than an appeal on the record. An appeal of a decision by the Small Claims Court to the Civil Division of the Superior Court results in a traditional appeal on the record. Prior to the 2010 restructuring what we now call the Civil Division of the 3

5 Superior Court was known as the Superior Court and before it was called the Superior Court it was called the County Court. The Probate Division has jurisdiction over the probate of Wills, the settlement of estates, the administration of trusts created by will, trusts of absent person's estates, charitable, cemetery and philanthropic trusts, removal and replacement of trustees of certain trusts, the appointment of guardians, and of the powers, duties and rights of guardians and wards, relinquishments for adoption, adoptions, uniform gifts to minors, name changes and issuance of new birth certificates, amendment of birth certificates, correction or amendment of civil marriage certificates, correction or amendment of death certificates, emergency waiver of premarital medical certificates, proceedings relating to cemetery lots, trusts relating to community mausoleums or columbariums, civil actions relating to disposition of remains, proceedings relating to the conveyance of a homestead interest of a spouse under a legal disability, issuance of certificates of public good authorizing the civil marriage of persons under 16 years of age, appointment of administrators to discharge mortgages held by deceased mortgagees, appointment of trustees for persons confined under sentences of imprisonment and setting compensation and expenses of boards of arbitrators of death taxes. Procedings are governed by the Vermont Rules of Probate Procedure. Matters are heard by a single elected judge and there are no jury trials. The small claims court is a court of limited jurisdiction. It has authority to hear traditional civil cases where the damages claimed are less than $5, The procedure in the small claims court is greatly simplified in that the Rules of Civil Procedure are replaced by the Rules of Small Claims Procedure and the rules of evidence are not followed. The Criminal Division has jurisdiction over all criminal cases. The Criminal Division also has jurisdiction over certain civil cases, most of which are ancillary to criminal prosecutions. The Criminal Division hears license suspension hearings and automobile forfeiture and immobilization proceedings connected to prosecutions for driving under the influence of drugs or alcohol. In the Criminal Division of the Superior 4

6 Court the Vermont Rules of Criminal Procedure will be applied. Prior to the 2010 restructuring what we now call the Criminal Division of the Superior Court was known as the District Court. The Criminal Division is responsible for forfeiture proceedings related to regulated drug trafficking, liquor law violations and fish and wildlife cases. The Criminal Division also holds civil hearings relating to a felon s refusal to provide a DNA sample as well as issues related to sex offender registration. The Criminal Division holds hearings to determine the amount of restitution a person convicted of a crime will have to pay for the compensation of crime victims. It deals with extradition matters. It hears cases brought to enforce energy efficiency standards for commercial buildings, appliances and equipment. And, some municipal parking violation issues. The Criminal Division also hears appeals of final decisions of the Judicial Bureau. Those appeals can either be on the record established before the Bureau, or at the option of the defendant, a new trial (trial de novo). In this type of appeal the defendant has the right to trial by jury. The Judicial Bureau has jurisdiction over traffic violations, civil ordinance violations, minor fish and wildlife violations, violations of the laws concerning possession of tobacco products by people less than 18 years old and furnishing tobacco products to a person under the age of 18 years or bringing tobacco into a correctional facility, littering, burning of solid waste and illegal dumping, hazing, unauthorized disclosure of criminal record information, various violations of the laws pertaining to illegal possession of alcoholic beverages, selling alcohol to a minor during a compliance check, selling ephedrine base, pseudoephedrine base, or phenylpropanolamine base, cruelty to animals, certain statutes relating to conditions for employment, violation of the laws related to the purchase and sale of scrap metal, lead hazards in housing, obeying a 5

7 law enforcement officer while operating a boat and enforcement of matters related to orders to stop continuing violations of certain state and municipal ordinances. The Family Division has original jurisdiction over divorces and the dissolution of civil unions, annulments, enforcement of spousal support (alimony) and child support, determining parentage of children, child custody and visitation, grandparents' visitation juvenile proceedings, protective services for developmentally disabled persons, mental health proceedings, abuse prevention proceedings and several other protective service issues. Prior to the 2010 restructuring what we now call the Family Division of the Superior Court was known as the Family Court. The Family Division acts as an appellate court for decisions of the Child Support Magistrate concerning the amounts of child support orders. The Environmental Division conducts hearings (trials de novo) to review the actions of municipal boards in approving or denying permits pursuant to municipal zoning, building and development ordinance and decisions concerning permits pursuant to the State s comprehensive land use law (Act 250). The Environmental Division has state-wide jurisdiction. Matters are heard by a single judge and there are no jury trials. Environmental Division Judges typically travel to the County where the property that is the subject of the litigation is located and use any available courtroom for hearings. The Environmental Division also has its own special rules of procedure. You can find more information at the Vermont Judiciary web site: 6

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12 The Vermont Supreme Court The Vermont Superior Court The Vermont Environmental Court State Regulatory Boards Civil Division Each county has its own Unit Family Division Each county has its own Unit Criminal Division Each county has its own Unit Small Claims Court Child Support Magistrate Judicial Bureau (Traffic and municipal tickets) Probate Court 2

13 Rules and Statutes The Vermont Rules are based on the Federal rules there are some notable differences. Rules and Statutes As in the Federal System, there are special statutory provisions for particular types of actions; 12 V. S. A. Part 9 There are also special rules for particular types of actions; V. R. C. P., part XI (Rules 80.1 to 80.10) Rules and Statutes In Vermont State Courts if you are not seeking attachment of real or personal property or attachment on trustee process an action may be commenced by the service of a summons and complaint. V. R. C. P. 3 3

14 Rules and Statutes When an action is commenced by filing, summons and complaint must be served upon the defendant within 60 days after the filing of the complaint. When an action is commenced by service, the complaint must be filed with the court within 20 days after the completion of service upon the first defendant served.. V. R. C. P. 3 Rules and Statutes In Vermont State Courts attorneys can sign the Summons and Subpoenas: you do not need the to have the Clerk sign. V. R. C. P. 4 Rules and Statutes The time for the service of a pleading or motion in response to a pleading that states a claim (Complaint, Counter-claim) that was served personally is 20 days in Vermont instead of the 21 days allowed in the Federal Rule. V. R. C. P. 12(a)(1) 4

15 Rules and Statutes The time for the service of a memorandum in opposition to a Motion is 15 days. V.R.C.P. 78. A reply to a memorandum in opposition to a Motion is 10 days. V.R.C.P. 78. If a moving party wants to present evidence that must be requested with the motion or within five days of service of a memorandum in opposition. A request to present evidence shall include a statement of the evidence which the party wishes to offer. V.R.C.P. 7. Rules and Statutes V. R. C. P. 14 The federal rules require the permission of the court, on motion and notice, if the joinder of a third party is sought more than 10 days after service of the Answer. The Vermont rule puts the burden upon the party opposing the joinder of the third party to move to strike the third-party claim. Rule Scheduling Orders The court may enter or amend a scheduling order which may: (i) set a date or dates by which all pretrial motions, except those based on circumstances that arise after the cut-off date or a motion to dismiss for lack of subject matter jurisdiction, must be filed; (ii) set a date by which third parties may be brought into the action pursuant to V.R.C.P. 14; (iii) provide for discovery of electronically stored information; (iv) include any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation materials after production; (v) set a date at which the case will be tried, or a date after which the case will be considered ready for trial so that it will appear on a trial list. 5

16 Rule Scheduling Orders Turn to page 7 of the written materials. Rule Scheduling Orders The trial Courts have the authority to bar amendments to pleadings requested after the deadlines set in the Scheduling Order and the Supreme Court has consistently upheld decisions to do so. Be careful to get your discovery done in time so that you will have time to make motions and not delay a trial. 6

17 Rule Alternative Dispute Resolution Applies to most cases before the Civil Division. In cases where ADR is required the parties must file a stipulation within 30 days after pleadings close or they will be required to engage in a preliminary evaluation. Statutory Provisions Arbitration Act; Title 12, Chapter 192. Uniform Mediation Act; Title 12, Chapter 194. Arbitration Act Title 12, Chapter 192 A written contract or agreement to submit any existing or future controversy between the parties to arbitration that contains the Magic Words set out in 12 V. S. A. 5652(b) creates a duty to arbitrate, and is valid, enforceable and irrevocable, except upon such grounds as exist for the revocation of a contract. 7

18 Arbitration Act Title 12, Chapter 192 Magic Words should be conspicuous (should be bold or underlined or in larger type) Joder Building Corp. v. Lewis, 153 Vt. 115, 569 A.2d 471 (1989). The Federal Arbitration Act preempts the Vermont Arbitration Act Little v. Allstate Insurance Co., 167 Vt. 171, 705 A.2d 538 (1997). Arbitration Act Title 12, Chapter 192 Civil Division has authority to resolve issues arising under Chapter 192. Title 12, Chapter 192, Subchapter 3. Arbitration Act Title 12, Chapter 192 Subchapter 3 Civil Division has authority to (1) compel a person to proceed with arbitration; (2) stay arbitration; (3) appoint arbitrators; (4) enforce a subpoena issued by arbitrators; (5) direct arbitrators to proceed with hearings or to make an award; (6) confirm an award of arbitrators; (7) vacate an award; (8) modify an award or to submit to arbitrators to consider modifying an award; and (9) enter judgment on the award. 8

19 Arbitration Act Title 12, Chapter 215 Voluntary arbitration of Medical Malpractice claims - Uniform Mediation Act; Title 12, Chapter 194. What goes on in mediation is privileged. However, evidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its disclosure or use in a mediation. Parties can however agree to waive privilege and there are public policy exceptions. ADR Stipulation and Order Turn to page 8 of the written materials. 9

20 ADR Report Turn to page 9 of the written materials. Discovery Methods Similar to Federal Court practice but without Mandatory Disclosures (Federal Rule 26) You have to use traditional mechanisms to find all information that is automatically provided pursuant to Federal Rule 26 No limit to the number of written interrogatories No limit to the number of depositions Discovery Methods No delay to the start of discovery (no formal discovery meeting, discovery requests can be served with an initial pleading) File certificates of service of discovery requests and responses (not the actual requests or responses) with the Court. 10

21 Vermont s approach to interrogatories requires a different style of response than you have in other jurisdictions. In Vermont, the party responding to interrogatories must produce the question and then the answer. 8. Identify all persons with actual knowledge of the event. Defendant s Response to question 8: Alan Employee and Beth Customer. 9. What is the structure of the defendant s business? Defendant s Response to question 9: Corporation. 10. When did the defendant learn of the plaintiff s claim? Defendant s Response to question 10: April 3, What did the defendant do when it learned of the plaintiff s claim? Defendant s Response to question 11: Spoke to employees to determine who knew about the incident and then met with them to determine what had actually happened. Then responded to the plaintiff in a letter dated April 6, Unlike Federal practice, where the Rules limit discovery and a party that wants more has to seek permission, in Vermont practice the party seeking discovery can ask for whatever they want and the opposing party has to seek protection from overly burdensome discovery. 11

22 E-Discovery Rule 26(b)(1); A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of this paragraph. The court may specify conditions for the discovery. E-Discovery Rule 26(b)(5); The Scheduling Order should state the form or forms in which electronically stored information should be produced and address any issues about claims of privilege or protection. E-Discovery Rule 16.2 iii addresses the need for E- discovery to be part of the scheduling order. 12

23 E-Discovery Rule 33(c) (Interrogatories) Where the answer to an interrogatory may be derived or ascertained from the business records, including electronically stored information, of the party upon whom the interrogatory has been served or from an examination, audit or inspection of such business records, including a compilation, abstract or summary thereof, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit or inspect such records and to make copies, compilations, abstracts or summaries. A specification shall be in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party served, the records from which the answer may be ascertained. E-Discovery Rule 34 (production of documents) (ii) if a request does not specify the form or forms for producing electronically stored information, a responding party must produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable; and (iii) a party need not produce the same electronically stored information in more than one form. E-Discovery Rule 37 (f) (Failure to Make Discovery) Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system. 13

24 E-Discovery Rule 45 (Subpoenas) may include an Order to produce electronically stored information and may specify the form in which it is produced. Vermont Criminal Procedure Reciprocal discovery. Depositions of witnesses in felony cases. Allows Motions to dismiss similar to rule 12(b)(6). Grand juries are rare. Vermont Appellate Procedure Small claims decisions appeal to the Civil Division. This is an appeal on the record. There is no absolute right to appeal from a decision rendered in an appeal to the superior court. Permission to appeal to the Vermont Supreme Court 14

25 Vermont Appellate Procedure Probate Court decisions appeal to the Civil Division. This is really a de novo hearing Vermont Appellate Procedure Review or appeal from, the decision of by state board, commission, department or officer is to the Civil Division - Except Decisions that are within the jurisdiction of the Environmental Court Decisions covered by the Administrative Procedure Act (chapter 25 of Title 3 V.S.A.) or to procedure provided in this rule. Vermont Appellate Procedure The Vermont Supreme Court is comprised of five justices: one chief justice and four associate justices. The Vermont Supreme Court uses the Vermont Rules of Appellate procedure. Most cases that go to the Vermont Supreme Court are actually heard by three of the five justices. Decisions made by three of the five justices are called memorandum opinions. Memorandum opinions do not express a rule of law that can be used as precedent in later cases. Only decisions by all five justices can be cited as controlling authority. 15