QUESTION I - FEBRUARY 1996

  Sam is a 16 year old who lives in Fletcher, Vermont. One evening in June,
  he goes out into the woods onto property about one-half mile from his home.
  There is an old campfire site in the woods where teens frequently meet on
  summer evenings. He goes out at 9:00 p.m. hoping to run into some of his
  friends. A 19 year old youth named Jesse arrives at the campsite about 15
  minutes after Sam.

       Jesse seems a little excited, and brags to Sam that he just broke into
  a neighbor's home and took some jewelry. Jesse pulls some valuable looking
  jewelry out of his jacket pocket, and throws a pair of gold earrings to
  Sam. He tells Sam, "Keep them, you can have them." Jesse seems very
  confident and pleased with his accomplishment.

       The boys start a small campfire as they have done in the past. Jesse
  has also brought with him a six pack of beer, and offers one to Sam. Both
  boys are drinking beer and have been there about one-half hour when two
  Vermont State Police Troopers appear. The police ask the boys what they are
  doing there. and ask other questions to determine their identities and
  purpose for being there.

       The police had received a phone call about half an hour earlier from
  Mrs. Smith. Mrs. Smith told the police dispatcher that she had just seen a
  young man leaving the home of one of her neighbors. Mrs. Smith stated that
  the neighbors were away on vacation, and she did not recognize the young
  male that left the house. Mrs. Smith told the police that she became
  suspicious and went over to the neighbors' house to see if everything was
  alright. As she approached the home, she found the front door unlocked and
  partially open. She became concerned that the male might have stolen some
  items from the home.

       The campfire is approximately 1/2 mile from the house that Mrs. Smith
  feels was broken into. At the campfire the police officers separate the
  young men. One takes Sam aside and out of Jesse's earshot. Sam is visibly
  nervous, and doesn't know what to say or do. The police officer encourages
  Sam to reveal what he knows, and indicates that Sam may get leniency
  because of his youth if he admits to what he knows. During the questioning,
  the officer specifically asks Sam his age and Sam replies he is sixteen.
  Eventually, Sam tells the officer that Jesse met him at the campsite and
  gave him a pair of gold earrings. The officer asks to see the earrings and
  Sam shows the jewelry to the officer. When the policeman asks Sam if he
  knows where Jesse got the earrings, Sam admits that Jesse confessed to
  stealing them.

       At this point, the police officer takes Sam back to the area where
  Jesse is with the other officer, and the two officers have a conversation
  together. The officers then tell Jesse that they are taking him back to the
  police station for further questioning. As one officer walks around the
  campfire, he accidentally knocks over one of the empty beer cans. He hears
  a rattling noise coming from inside the can, and the officer picks up the
  can to examine the contents. Inside the can he finds a pearl necklace and
  several rings which appear to have precious stones. The police seize the
  empty beer can as well as the jewelry included inside, and proceed to pat
  down and frisk Jesse. During the pat down they find other jewelry in
  Jesse's pants pocket. At this point they telL Jesse that he is under arrest
  and transport both boys back to the police station.

       At the station the police contact Sam's parents. Both boys are
  processed for criminal charges. Sam is charged with misdemeanor possession
  of stolen property, and Jesse is charged with burglary. When the neighbors
  of Mrs. Smith return home from their vacation, they confirm that all of the
  jewelry seized from the boys was, in fact, their jewelry and that it must
  have been stolen from the home.

       The prosecution offers Sam a deal in order to get him to testify
  against Jesse. Under pressure from his parents, Sam accepts a deferred
  sentence, under which his criminal conviction will be expunged if he
  remains on probation for a year without any further charges being filed
  against him.

       Jesse is assigned a Public Defender, and decides that he wants to go
  to trial.

       (1) Assume that you are Jesse's Public Defender. What pretrial motions
  will you file in his behalf?

       (2) If you are the prosecutor for the State, how will you respond to
  each of Jesse's motions?

       (3) What is the likely outcome or ruling by the court with respect to
  each motion? Explain your reasoning.




Model Answers 



QUESTION II - FEBRUARY 1996

                                   
       JH calls you at 10:00 p.m. on a Saturday night and tells you his
  father died that day after having been in a coma for a period of six
  months. He indicates he needs to talk to you as soon as possible. You agree
  to meet him Monday morning at 8:00 a.m. at your office. At the office the
  following Monday, he tells you the news is not all bad. Dad, who lived in
  Montpelier, had been a successful businessman and had $5 million in cash
  and a piece of commercial real estate worth about $1 million hl his own
  name. Dad and JH's step-mother also owned a home as tenants hy the
  entirety. Dad didn't like lawyers very much and had never gone to one for a
  will. He liked the step-mother even less, especially since she had him
  served with a Complaint for Divorce eight months earlier. The step-mother
  had not lived in Dad's house for about a year.

       About two weeks before Dad lapsed into a coma, JH and a friend of his
  had dined with Dad at his favorite Burlington restaurant; they wrote up on
  a menu what Dad wanted to do with his assets. Dad signed the menu and then
  JH and his friend witnessed it. Dad was adamant that JH's step-mother was
  not to receive anything.

       JH gives you the menu which states that all of Dad's estate, including
  his one-half interest in the house, is to go to his only child, JH. JH is
  to be the executor under the will. JH asks you if the federal government is
  going to take anv of the money and if he is right in figuring that in
  addition to the $5 million in cash and the commercial real estate, he can
  also get one-half of Dad's home. He further asks how to go about getting
  appointed as executor of the estate.

       Confident that he will inherit at least $6 million from Dad, JH
  indicates that he would like you to prepare his own will. During the
  meeting JH raises the following issues with respect to the preparation of
  this will:

       1. His only child, age 30, has not learned how to handle money, and JH
  doubts that he ever will. JH is afraid he will go through the money as soon
  as he receives it.

       2. Because his mother is incompetent, JH has been taking care of her
  financial needs. If he predeceases her, he would like to make sure that his
  financial assistance continues until her demise. He also wants to designate
  where the money that he would give to her ultimately goes.

       3. He would also like to prepare a list of his personal property and
  leave behind a letter to his executor indicating how certain items of his
  personal property are to be disposed of since he changes his mind on that
  subject fairly often.

       4. He is certain that his wife is going to want to be in charge of his
  estate, but he doesn't want that. ls there any way that he can prevent her
  from being in charge of it? In addition, since his wife is independently
  wealthy and the house they live in is in her name, he would like to
  continue the family tradition and cut her out of the will altogether
  despite the fact that he is sure she would want all of his property.

       5. He and his wife have a friend to whom he would like to give $18,000
  a year while JH is alive if it wouldn't have any adverse tax consequences
  to him. If there are tax consequences, he would like to know what they are
  and whether they are avoidable. He also tells you he doesn't like to file
  paperwork, and he wants to know if there will be any paperwork ;n
  connection with these gifts. If so, he would like to know if he can avoid
  it.

       6. JH is also concerned about privacy. He is wondering whether his
  will can be probated through a court in southern Vermont, even though he
  lives in Burlington and all of his property is in Burlington, St. Albans
  and Newport.

       Please discuss and explain your legal advice to JH regarding both
  Dad's estate and JH's will. As to both, discuss any state or federal law
  which may apply.




Model Answers 



QUESTION III - FEBRUARY 1996

                                   
       John Oliver Hartz is on trial in Vermont District Court in White River
  Junction, Vermont for stealing some bakery products from the Royal Tea
  Shop, and you are his counsel.

       Three witnesses are scheduled to testify for the state against your
  client. The first witness sells hats for a living. His strange beliefs
  about the creation of the world have led many people to question his
  sanity. He believes that the world is actually an underground "wonderland"
  and that people are only figments of some grand being's imagination. He
  and your client have appeared together on talk shows in which they have
  roundly criticized each other's beliefs about the origin of the world. More
  mundanely, the first witness was convicted of a crime in California in 1984
  and served one and one-half years in a state prison for the offense.

       The second scheduled witness is the cook at the Royal Tea Shop, but
  the cook has refused to testify despite an order of the court to do so.
  Supposedly, she fears some severe governmental action against her if her
  testimony does not result in the conviction of your client. "They're after
  my head," she is alleged to have said. In place of the cook, the state
  plans to call a police officer. The officer intends to testify that, right
  after the theft, the cook said to the officer, "I saw Jack carrying away
  the tarts and, not only that, Jack told me that he stole them!"

       The third government witness is a young woman who has been receiving
  treatment for mental illness from a nurse because of the witness's use of
  hallucinogenic drugs. The main effect of the drugs is to make the woman
  believe that she is alternately growing and shrinking. The nurse's license
  to practice expired two years ago, and he has not renewed his license
  because he does not want to pay the licensing fee. The state has
  unsuccessfully sought to impose a non-hospitalization program of treatment
  on the young woman, and you have copies of the transcripts of two hearings
  that have been held on the matter. The transcripts contain full details
  about the woman's hallucinations and treatment.

       The third witness lives outside Vermont. By agreement between vou and
  the prosecutor, her deposition will be taken at her home and will be read
  into the record at trial. You and your law clerk travelled to her home for
  the deposition. Upon direct examination, the witness testifieci that she
  saw Jack reach in the window at the Royal Tea Shop and take the tarts off
  the windowsill. She firmly adhered to this story under your
  cross-examination. She also denied ever having used illegal drugs or having
  hallucinations. After the prosecutor and the court reporter left her home,
  the witness told vou and your law clerk that she thought the deposition
  was only a game. She said she was only pretending and that she had not
  really seen Jack do anything. She also stated that she is 40 feet tall.

       Your motions to continue the trial and to redepose the third witness
  have already been denied.

       The state also wishes to admit an unsigned note allegedly written by
  your client. The note reads, "I'm sorry. I didn't mean to steal the tarts."
  Your c]ient denies having written the note. To prove that your client did
  write the note, the state intends to call someone who regularly plays cards
  with your client and who has seen him writing out scores, checks, and
  IOU's.

       1. Based on what you know about the first witness, how would you
  attack his testimony?

       2. Will the police officer's testimony be allowed? Why or why not?

       3. (a) What will you do about the substance of the third witness's
  deposition testimony?

       (b) Would you be successful if you tried to get the nurse to testify
  in order to challenge the third witness's testimony? Why or why not?
  Discuss any possible use of the hearing transcripts in the criminal case.

       4. Will the state be ahle to overcome any admissibility challenge to
  the unsigned note? Discuss fully.



Model Answers 



QUESTION IV - FEBRUARY 1996

                                    
       Giantmart, a corporation operating many large department stores
  throughout the U.S., is interested in building a store in Parkville,
  Vermont. Only one suitable tract of land is available, about 50 acres in
  size, located on the shore of Clear Pond. The owner of this land is eager
  to sell, and the price is within the range set by Giantmart's corporate
  headquarters. Before entering into a contract to buy the land, the agent
  for Giantmart, Susan Smith, arranges to meet with attorney Jones, who has
  experience in dealing with the town authorities on zoning issues. He tells
  her that Parkville has a zoning by-law, passed several years ago, which
  provides that any commercial developer must pay an impact fee to the town
  equal to the estimated costs of increased traffic, water use, law
  enforcement and fire department services for the first 5 years of the
  proposed development. After the five years have expired, pursuant to the
  by-laws the town wild reimburse Giantmart for that portion of the impact
  fee not expended for the listed purposes.

       In addition, the town's by-laws provide that every shoreline
  development of over 5 acres must either pay an annual "park fee" equal to
  the town's cost ot maintaining a park area of 1/2 acre per 5 acres of
  development, or establish a permanent "green space" of 1/2 acre per 5 acres
  of development. The town enacted this by-law to ensure that the people of
  Parkville have adequate recreational facilities and park areas along the
  shores of the pond. Susan Smith is disturbed by all of these requirements,
  and asks attorney Jones whether any legal challenge can be made to any of
  them. What should attorney Jones advise her?

       Meanwhile, Sam Tree gets wind of the proposed development. He had
  grown up on the shores of Clear Pond, and wants to see it remain unspoiled.
  He organizes a group of like-minded people, and they begin daily treks to
  the Vermont headquarters of Giantmart, located on a busy street in nearby
  St. Janestown. Sam and his supporters march up and down in front of the
  headquarters, carrying signs saying, "Save Clear Pond for the Ducks,"
  "Down with Giantmart," and the like. They are careful to avoid getting in
  the way of pedestrians, and do not block the doorway to the headquarters,
  occasionally trampling on the bushes on Giantmart property. Sam at times
  sometimes becomes very excited and yells loudly, calling Giantmart and its
  managers rather rude names. He also leads the other demonstrators in
  derogatory chants. After several days, Giantmart asks the local police to
  intervene. Betty Buttons, a police officer, comes to Giantmart
  headquarters and talks to Sam. Sam becomes irate, and screams in a very
  loud voice, calling Betty a corporate flunky. A crowd gathers to watch.
  Betty places Sam under arrest for disorderly conduct.

       At his arraignment, Sam is ordered by District Judge Reason, as a
  condition of his release, to remain at least 100 feet away from the
  entrance to Giantmart headquarters, and to refrain from participating in
  any picketing or leafletting about Giantmart or its planned development in
  Parkville. Sam hires attorney Doe to represent him. He asks whether any
  constitutional challenges can be made to the charge against him or to the
  restrictions placed upon him at arraignment. He is anxious to resume his
  protests at Giantmart headquarters. What should attorney Doe advise Sam?

       Susan Smith's work on Giantmart's Parkville project requires her to
  visit the headquarters on a daily basis. Frustrated and annoyed bv the
  boisterous conduct of the demonstrators, and their insulting comments
  directed at her, Susan Smith asks attorney Jones whether a valid injunction
  can be obtained to keep the demonstrators away from the Giantmart
  headquarters. What should attorney Jones advise her?



Model Answers 



QUESTION V - FEBRUARY 1996

                                    
       Harry and Hilda Homeowner own property in Pleasantville, VT. Finding a
  need for more space, they hired Competent Contractors, Inc. to construct an
  addition to their home. They entered into a verbal agreement whereby
  Competent Contractors, Inc. agreed to construct the addition to the home
  for the sum of $50,000.00 with all work to be completed within 18 months.
  The work was to be performed in accordance with drawings and specifications
  provided for Harry and Hilda by their architect. Thev also agreed that,
  should any disputes arise between the parties, they would submit the
  problem to arbitration rather than go to court.

       The work progressed without incident for about three months. Then
  problems arose. The roof to the new addition began to leak. The leak caused
  damage to the existing portion of the house. The large custom ordered bay
  window did not fit. The foundation appeared to have the beginnings of a
  large crack working its way across the front of the addition. Harry
  demanded that all these problems be fixed in two days or else! Within two
  days Competent had brought in foundation and window experts to examine the
  problems.

       On the third day Harry screamed, "The problems still aren't fixed,
  you're off the job!" At the same time, Competent observed the crew of
  Renovator's Redux arrive at the job site. Harry also withheld payment
  Competent claimed was due. Competent argued that much of the payment due
  was owed to ACME Materials and Supply Co., which had provided most of the
  materials that are now a part of the addition. Competent also claimed that
  part of the payment was due for their labor at the rate of $25.00 per hour.

       Soon thereafter, Nasty Neighbor informed Harry that a portion of the
  addition was built on Neighbor's property. Harry accused Competent of
  misreading the specifications and survey for the addition when they sited
  the project.

       Competent purchased the window from Magic Mirror and Glass
  Specialists. When Competent tried to return the window to the company,
  Magic pointed out the very fine print on the bottom of the sales invoice
  indicating the merchandise was sold "as is", "without any warranties."

       Analyze the respective claims of Competent Contractors, Inc. and the
  homeowners. Include in your discussion the remedies available to both
  parties.

       Discuss and analyze what steps Acme must take to protect and perfect
  its claims against the Homeowners and Competent Contractors.

       If you represented Nasty Neighbor, what advice would you give? Include
  in your answer available remedies.




Model Answers 



QUESTION VI - FEBRUARY 1996

                                   
       Bill is Tractors, Inc.'s sole shareholder and principal operator. He
  tells you that Tractors is about to be sued by Finance Company. Ten months
  ago in March, a salesperson for Advertiser stopped in the Tractors
  dealership to promote a very attractive deal. Advertiser would sell
  Tractors a computerized electronic bulletin board (the "Board") and install
  it in the showroom. At the beginning of every month Advertiser would send
  a diskette on which information and advertising would be prominently
  displayed. Advertiser would pay Tractors a licensing fee of $270 a month
  for permitting Advertiser to operate the Board in the showroom. Advertiser
  would let Bill know two months in advance about the udvertising that would
  appear on the Board, so that Tractors could purchase inventory to meet
  customer demand created by the advertising. Bill asked Advertiser how
  Advertiser made money. He was told that Advertiser's profit came from the
  sale of the advertising to the different companies whose messages would
  appear on the Board. Advertiser told Bill that the Board was worth at least
  $15,000. However, if Tractors was interested. it could buy the Board for
  $11,000. If Bill preferred, Advertiser could have Finance Company purchase
  the Board and lease the Board to Tractors for $300 a month for four years.

       Tractors signed up and leased the Board. The Board was installed, the
  first diskette arrived in May, and it generated a modest amount of
  additional business. Advertiser sent the first month's licensing fee of
  $270 to Tractors in July, but never paid the licensing fee again. Tractors
  made the lease payments to Finance Company through November. Bill called
  Advertiser three times to inquire about the licensing fee, but received no
  satisfaction. Then Advertiser failed to send the October diskette, and Bill
  heard from other equipment dealers that they were having the same problem.
  In early November, Bill heard that Advertiser might file a bankruptcy
  petition. Tractors stopped paying Finance Company in December.

       A computer expert told Bill that the Board was worth $2,000 when it
  was brand new, and that it had a present value of $500.

       Bill asks you what Tractors can do to protect itself. What advice do
  you give to him?

       Assume that Finance Company knew that the value of the Board was
  $9,000. Would this change your advice? What if Finance Company's and
  Advertiser's presidents were hushand and wife?

       Assume that the Board malfunctioned two weeks after it was set up in
  the store, and couldn't be repaired. Would this affect Tractors' rights?
  Explain.

       Assume that the Board worked perfectly until the end of January, at
  which time it broke and couldn't be repaired. Would this affect Tractors'
  rights? Explain.



Model Answers 


  ---------------------------------------------------------------------------

                           Board of Bar Examiners


  Mailing address:  109 State St.
                    Montpelier VT  05609-0702


  Office Locaation:  111 State St.
                     Montpelier, VT

  Telephone:  (802)828-3281