February 2002 - Vermont Bar Examination Essay Questions

[Question I]
[Question II]
[Question III]
[Question IV]
[Question V]
[Question VI]


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
  Steve's signature.

       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
  acknowledgement.

       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.


Model Answers
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 while intoxicated. 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? Discuss. 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? Discuss.
Model Answers
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 schools. 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 students. Identify and analyze any challenges that can be made to this new policy. What is the likelihood of success?
Model Answers
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 be determined. /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 16, 2000. 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.
Model Answers
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.
Model Answers
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 executor. 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?
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