February 1996 - Vermont Bar Examination Essay Questions
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
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
Jesse is assigned a Public Defender, and decides that he wants to go
(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.
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
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
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
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.
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
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
(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.
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?
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
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
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
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.
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?
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'
Board of Bar Examiners
Mailing address: 109 State St.
Montpelier VT 05609-0702
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