February 2002 - Vermont Bar Examination Essay Questions
QUESTION I - FEBRUARY 2002
In 1996, Steve sold his house in Dirt Road, Vermont, to Betty for
$100,000. Steve's lawyer, who was a notary public, observed and
acknowledged Steve's signature. Betty signed the deed as a witness to
About a month later, Betty, who was married to Henry, borrowed $50,000
from Mike, and gave Mike a note for $50,000, secured by a mortgage deed on
the house. Henry witnessed Betty's signature, and a notary public took her
Betty and Henry, who had moved into the house with their young
children prior to the closing, lived there together until the summer of
2001, when Betty left Henry. Henry was unable to continue making the
mortgage payments to Mike, and Mike commenced a foreclosure proceeding.
Henry comes to you for advice, and as part of your representation, you
search the title. You find that the mortgage deed from Betty to Mike was
recorded before the deed from Steve to Betty was recorded, and that neither
of them was recorded until two years after the closing.
1. Is the deed from Steve to Betty valid? Discuss.
2. Does Mike hold a valid mortgage from Betty? Discuss.
3. Assume that Betty dies intestate while still married to
Henry, but that no probate proceedings have been conducted.
Analyze Mike's and Henry's respective legal rights in the
property in the foreclosure proceeding.
QUESTION II - FEBRUARY 2002
Early one morning you are awakened by the telephone. Upon answering
it, you hear the slightly slurred voice of Daniel Denton, a client for whom
you occasionally handle both civil and criminal matters. He has been
stopped by the police while leaving his home and is being processed for
driving while intoxicated. The officer has informed Denton that the
officer wishes to take an evidentiary sample of his breath for blood
alcohol concentration testing, and Denton has been allowed to consult with
you before deciding what to do. Denton tells you that he drank about four
beers within the last two hours, and has never been convicted of driving
After advising Denton on the telephone that night, you later agree to
represent him in connection with the charge of driving while intoxicated.
The officer's affidavit in support of the charge reads in part as follows:
On 12/28/01, at approximately 0115, I observed the
defendant enter an automobile parked in front of the
Mountainview Apartments, located off of Route 7, a public
highway in the city of South Burlington, Chittenden County.
As the vehicle made its way down the driveway serving the
apartments, I observed that it weaved several times within
its lane of travel. I stopped the vehicle just short of the
intersection of the driveway and Route 7, at which time I
observed that the defendant emitted a moderate odor of
intoxicants and his eyes were watery and bloodshot. His
speech was slurred and he walked with a slight sway. I asked
the defendant if he had been drinking alcoholic beverages and
he said that he had had two beers that evening. I asked the
defendant the time of his last drink, and he told me it was
at 2345 hours. I advised the defendant of his Miranda
rights, and when asked if he wanted to talk to me, he
replied, "No sir." I transported the defendant to the
barracks and advised him of his implied consent rights. He
spoke with his attorney by telephone and advised me of his
decision concerning whether to take the test.
1. What advice would you have given Denton in regard to giving a
sample of his breath, and why?
2. Do you have any grounds to challenge the stop of Denton's car?
3. Do you have any grounds to challenge the admission of Denton's
statements to the officer? Discuss.
4. Do you have any grounds for a motion to dismiss the charge?
QUESTION III - FEBRUARY 2002
1. During the first week at your new law firm you meet with the
partner and new clients. The first meeting involves the Johnsons, who have
four children in the public school system. The parents have heard that the
legislature has repealed the statute in Vermont that states in part: "No
legal pupil, including a married, pregnant or postpartum pupil, shall be
deprived of or denied the opportunity to participate in or complete an
elementary and secondary public school education." 16 V.S.A. §1073. It
has been replaced by a new law, which states that families are only
permitted to have three children in the public school system at one time.
Those having more than three children will have to send one or more to a
private school at their own cost. The legislature passed the new law
because of crowding in certain public schools in the State, which is made
worse by a shortage of qualified teachers. The legislature says this law
will take the burden of overcrowding and large class sizes off the public
Identify and analyze any challenges that can be made to this new law.
What is the likelihood of success?
2. The next meeting is with a group of parents who are upset about a
new school board policy banning certain material from the school library.
The parents and their children are upset about some of the choices the
school board has made regarding books to be banned from the library. They
feel the school board is forcing their own personal tastes on the students
at the school. The board has indicated that the books it has banned
contain indecent and/or vulgar language and are not appropriate for
Identify and analyze any challenges that can be made to this new
policy. What is the likelihood of success?
QUESTION IV - FEBRUARY 2002
David owns a carpet retail store. On January 1, 2000, Peter comes to
his store and orders carpeting for the living room and den at his home.
David calculates that the job will cost $5,000. Unfortunately, Peter cannot
afford to pay all of this sum in cash. Peter informs David that he will be
receiving an inheritance in the amount of $500,000 on February 1, 2002.
Peter and David agree that Peter will pay $1,000 upon installation of the
carpet and give David the following note:
I, Peter Paine do hereby promise to pay to the order of
David Drake the sum of $5,000 on or before February 1, 2002,
the date of my receipt of my inheritance from my grandfather
Weber Paine. Failure of payment on this note shall subject
the responsible party for this note to all costs of
collection, including legal fees and court costs as those may
/s/ Peter Paine
On February 15, 2000, the carpet is installed by David's sister
Denise. Peter signs and gives David the above referenced document on
February 16, 2000.
Unfortunately, Peter discovers on July 1, 2000 that Denise used the
wrong glue for the carpeting and the carpeting is separating from the
floor. Peter immediately complains to David about the problem. On August 1,
2000, David inspects the problem and admits that Denise used the wrong glue
on the carpet. David promises to fix the problem but never does.
On January 1, 2001, David endorses the above referenced document
"David Drake. Pay to the order of Tyrone Taylor" and negotiates the
document to Tyrone (who, at the time of the negotiation, is unaware of the
problem with the carpet glue) for a prior debt David owes to Tyrone.
On April 1, 2001, Tyrone gives the above referenced document to his
brother Bill as a wedding present for Bill's marriage to Denise. At the
time of the transfer of the above referenced document to Bill, Tyrone
endorses the document: "Tyrone Taylor. Pay to the order of Bill Taylor
without recourse." At the time of this transfer, Bill is also unaware of
the problem with the glue for the carpeting.
On February 1, 2002, Bill signs the note and then Bill properly
presents the document to Peter for payment. Peter refuses saying that
Denise never installed the carpeting correctly and demands that David fix
the problem before he will pay on the document.
1. Explain to Bill what the document is that Peter signed on February
2. Explain to Bill what theories he could use to collect on the
document from each of the endorsers before him: Peter, David and Tyrone.
3. Explain to Bill the likely defenses to be raised by Peter, David
and Tyrone to his claims for payment on the document.
QUESTION V - FEBRUARY 2002
You have been retained by Alan Abbott, who was convicted last week of
aggravated domestic assault. Alan was found guilty by a jury of assaulting
his live-in girlfriend, Betty Baker. He was sentenced to serve a two year
prison sentence. At the trial Betty was allowed to testify, over Alan's
objection, about a prior violent incident between Alan and Betty. No
criminal charges involving the prior violence had been brought. Although
Betty was unable to recall some of the details about the prior violence,
the State produced a diary in which Betty made entries every day, including
the details of that incident. Betty was allowed to read her diary entries
into the record but the diary itself was not admitted. Alan tells you that
in the same diary entry where Betty recorded the details of the prior
incident, she wrote that she had initiated the physical fight and that Alan
was only defending himself. That part of the entry was never read to the
jury. Alan attempted to introduce it, but the judge ruled that he could
not introduce that portion of the diary.
Carol Carter, Alan's former wife, also testified for the State. Carol
and Alan had been separated for many years but they were divorced only six
months ago, after the alleged assault against Betty. Carol testified about
a drunken phone call she got from Alan the night of the alleged assault, in
which he said he had "beat up Betty pretty bad."
Alan testified in his own defense, denying that he assaulted Betty.
Over Alan's objection, the State was allowed to attack Alan's credibility
by introducing evidence of a recent felony conviction for possession of
heroin. Alan denied the conviction. The State offered testimony from
Alan's former probation officer to prove the prior conviction. Alan tells
you the heroin conviction is still on appeal.
Alan wants to appeal the assault conviction. Analyze the issues that
may form the basis for an appeal and evaluate the likelihood of success for
each of them.
QUESTION VI - FEBRUARY 2002
John's Aunt Alice died last week in an auto accident in Middlebury,
Addison County, Vermont. He comes to see you, bringing Alice's will.
Alice's home was an apartment in Burlington, Chittenden County, Vermont.
Alice's husband Harold lives in a nursing home in Burlington. Harold is
the stepfather of Alice's three adult children, Barbara, Chris and Debbie,
all of whom live in Montpelier, Washington County, Vermont. Alice's
estate is primarily comprised of several large, very valuable, commercial
rental buildings, all of which are located in Montpelier.
The will, which was executed in St. Johnsbury, Caledonia County,
contains a number of specific bequests. Included in the specific bequests
are a bequest in the amount of $10,000 to Alice's friend Fay, as well as
bequests to John of a rental property and proceeds of Alice's life
insurance. John informs you that he just discovered that, several years
earlier, Alice had changed the ownership of that rental property by
including Debbie on the deed as a "joint tenant." The insurance policy
names Barbara as the beneficiary. The designation of Barbara as the
beneficiary pre-dated the execution of the will.
Alice's will left one-half of the residue of her estate to her
children Barbara and Chris. Unfortunately the will is quite old. Debbie
had not even been born when the will was executed, and therefore she is not
mentioned in it. The other half of the residue of her estate was left "to
John and his brother Kevin, absolutely." Kevin however died five years
ago, leaving a wife named Lily and one son named Matt. Matt is presently
age 14. Harold is not mentioned in the will. He and Alice had not even
met when the will was executed. Upon looking at the will, you notice that
Fay is a witness and that Alice's now deceased first husband is named as
1. Where would the will be probated and why?
2. What is the process for opening a probate estate?
3. What, if any, rights does Alice's husband Harold have and why?
4. What, if anything, will Debbie receive and why?
5. What happens to the share left to Kevin and why?
6. What, if anything, will John receive and why?
7. What effect, if any, does Fay being a witness to Alice's will have?
8. Who will be the executor and how will he or she be selected?
Board of Bar Examiners
Mailing address: 109 State St.
Montpelier VT 05609-0702
Office Location: 111 State St.