February 1998 - Vermont Bar Examination Essay Questions
QUESTION I - FEBRUARY 1998
Pavel and Dora Turgenev moved into town a few years ago, and contacted the
firm of Senior, Junior and Minor to represent them when they purchased a
house. Jill Senior did a title search for them, prepared the necessary
closing documents, and attended the closing. A year or two later, after
the birth of the Turgenevs' baby, Eugene, another of the partners, Bob
Junior, drafted the Turgenevs' wills. Recently, Pavel called the office
and made an appointment to meet with Luella Minor, the third partner. When
Pavel called, he told Minor's assistant that he and Dora had separated, and
that he wanted to file for divorce.
When Minor met with Pavel, she went through a detailed intake procedure,
including a list of all of the assets of the marriage. Pavel listed a
checking account and savings account as his only bank accounts. After the
divorce action had been initiated, Dora's lawyer, David Dumpling, sent Minor
a set of interrogatories, which asked, among other things, that Pavel list
"each and every bank account or certificate of deposit, on which you are
named, or in which you have any interest." In Pavel's draft answers, he
listed only his checking account and a small savings account. Pavel signed
his interrogatory answers, and they were notarized by Minor's assistant.
Minor sent the original answers to Dora's lawyer, David Dumpling, and filed a
certificate of service with the Court. About two months later, Pavel's
Uncle Georgi was consulting Minor about his business affairs, and mentioned
in passing that he and Pavel still had a joint account at a local bank, in
which was several thousand dollars. He told her, when she asked for more
information about this account, that he had opened it for Pavel several years
ago, that Pavel was a signatory on the account, and received quarterly
statements from it, and that it was Georgi's intention that Pavel receive
the account on his death.
Minor was disturbed about this matter, and the next day, she called Pavel to
discuss the information she learned from Georgi. When she told him that his
answers to interrogatories had to be amended to include the account, Pavel
flew off the handle, and insisted that he was not going to tell Dora
anything about the account. He said: "It's mine, from my uncle, and it's
none of Dora's business." He demanded to know how Minor learned about the
account, but she declined to tell him. Pavel adamantly refused to sign any
amendment to his interrogatory answers.
Over the next several weeks, Minor became engrossed in other matters,
including preparation for two complex personal injury trials with which she
was assisting her partners, Junior and Senior. A notice of hearing came in
to advise her that Pavel and Dora's final divorce hearing had been
scheduled. All issues were contested, including parental rights and
responsibilities, property division, and spousal maintenance. The hearing
was expected to take two full days. A court order accompanied the hearing
notice, requiring that all exhibits be listed and disclosed to opposing
counsel one week before the final hearing, and all proposed findings be filed
no less than two business days before trial. Minor's assistant put these
notices on Minor's desk, but they were soon buried under other documents
related to those personal injury trials. The day for the contested hearing
arrived, and the Court called to ask where Minor and Pavel were. Minor
realized, with horror, that she had failed to notify Pavel of the hearing,
failed to list the exhibits, prepared no requests to find, and done no
preparation whatever for the hearing. Minor called Pavel, rushed with him
to the Courthouse, and explained her situation to the judge with apologies.
The judge granted Minor's request for a one week continuance, and sternly
warned her against permitting this kind of thing to happen in the future.
1. What concerns should Minor have:
(a) when Pavel first makes his appointment to see her. Explain. How should
she address these concerns?
(b) when Pavel refuses to amend his interrogatory answers. Explain. How
should she address these concerns?
2. What issues are raised by Minor's lack of preparation for the
contested hearing? Explain.
3. What obligations, if any, does Minor's opposing counsel have to take
action regarding any of Minor's conduct in addressing the above issues?
QUESTION II - FEBRUARY 1998
Sam Able is a 28-year old man living in Vermont. He is from a wealthy
family. When Sam was 10 years old, his father (Father Able) established an
inter vivos trust for the benefit of Sam, who is an only child. Pursuant to
the terms of the trust document, Father Able named the Vertemont Bank as
sole Trustee. Father Able is still alive. A copy of the trust document is
The corpus of the trust consisted of several pieces of valuable commercial
real estate that Father Able owned. After expenses, the property generated
an average of $10,000.00 per month in net income. Once Sam graduated from
college, at age 22, the Trustee regularly paid Sam $2,000.00 per month to
assist him with living expenses.
Sam had always enjoyed horseback riding, and frequently entered into
competitions. In 1995, when he was 25 years old, he participated in a horse
show in Stowe, Vermont. However, before appearing for the show, Sam had a
considerable amount of alcohol to drink. He also chose to ride the one
horse in his stable that had the most aggressive personality. As Sam was
leading the horse toward the competition field, a number of children
followed the horse and got too close. The horse became angry, reared up,
and seriously injured one child with his forelegs.
The parents of the injured child filed suit against Sam, on behalf of their
child. Sam refused to settle the case and went to trial. The jury returned
a verdict in favor of Plaintiffs.
Assume that judgment has been entered against Sam, and that, in 1998, Sam's
appeal of that judgment has been resolved in favor of Plaintiffs.
Plaintiffs are now seeking to collect on that judgment which is $750,000.00.
Also assume that the Trustee has liquidated the corpus of the trust and
invested all of the assets of the liquidation in stock of the Vertemont
Plaintiffs are aware that Sam is the sole beneficiary of a large trust. They
are also aware that, since the commencement of their lawsuit, Sam has not
received any income directly from the trust. The Trustee has accumulated
most of the income since the time that suit was filed until the present; the
Vertemont Bank has, however, made periodic payments from the income directly
to Sam's attorney in the lawsuit to cover legal fees. The Trustee has
declined to provide any other distributions to Sam.
Sam is employed as a loan officer of a bank [other than Vertemont Bank], and
earns approximately $30,000.00 per year. He owns no real estate or other
assets. Plaintiffs ask their attorney if the assets in Sam's trust can be
used to satisfy the judgment they obtained.
During the same time period that Plaintiffs are examining their options to
collect on their judgment against Sam Able, Sam goes to a new attorney, one
who concentrates in trust law. Sam has become increasingly unhappy with his
Trustee's refusal to distribute any of the trust income to him. Sam has
accumulated large debts as a result of the lawsuit and other personal
problems, and he is struggling financially. He wants to know if there is
any way to remove the Vertemont Bank as Trustee.
a) Assume that you are a law clerk for the firm representing Plaintiffs.
One of the partners has asked you to research the question of whether Sam
Able's trust assets can be seized or attached to satisfy the judgment. In
your answer, analyze the issues raised, state the likely outcome, and give
your recommendation as to what course of action, if any, should be pursued.
b) Assume that you are the attorney with whom Sam has spoken about removing
the Trustee. What would you tell Sam about his chances of having Vertemont
Bank removed as Trustee? Include in your answer an analysis of the legal
issues, as well as your recommendation to Sam about whether he should pursue
c) Assume that Father Able has consulted a separate attorney on the question
of revoking the trust, which he now desires to do. You are the attorney who
has been retained by Father Able. What would you tell Father Able about his
ability to revoke the trust, and his chances of succeeding in revoking the
trust? Include in your answer an analysis of the legal issues involved, as
well as your opinion as to the likelihood of Father Able successfully
terminating the trust.
FATHER ABLE REVOCABLE TRUST
THIS TRUST AGREEMENT is made this 3rd day of January, 1980, at Montpelier,
Vermont, between Father Able as Grantor, and Vertemont Bank as Trustee. The
parties agree as follows:
1. The Grantor has delivered to the Trustee the property set forth in
Schedule A hereto attached and made a part of this trust agreement by
reference. The property set forth on Schedule A, together with any other
property which may be transferred to the Trustee as herein provided, shall be
held by the Trustee in trust for and upon the trust, purposes and conditions
hereinafter set forth.
2. The purpose of the Trust is to provide for the health, education and
general welfare of the Grantor's son, Samuel Able.
3. The Trustee shall pay or apply so much of the net income and principal of
this trust to the support, health, maintenance and education of the
beneficiary, as in the discretion of the Trustee is deemed reasonable and
necessary, but in any event shall pay the beneficiary's just debts.
Notwithstanding the above, the Trustee shall make the following distributions
from the trust to the beneficiary as follows: when the child reaches the age
of thirty (30) years, one-third of the principal and undistributed income;
when the child reaches the age of forty (40) years, one-half of the remaining
principal and undistributed income; and when the child reaches the age of
fifty (50) years, all of the remaining principal and undistributed income.
4. So long as this agreement remains unrevoked, the Grantor may add other
property to the trust hereby created by transferring such property to the
Trustee by deed, assignment, bequest, devise or otherwise. If so added, the
property shall be covered by the provisions of this trust agreement, the
same as if originally included hereunder.
5. Said Trustee shall have full rights, power, authority, privileges and
discretion with reference to the control, management and disposition of the
assets of the Trust as allowed by law. Without limiting the foregoing
authorization, the Grantor specifically authorizes said Trustee to sell,
transfer, convey exchange, mortgage, pledge, assign, lease or otherwise
dispose of, any and all property in the Trust; to execute and deliver any
deeds, leases, or other instruments as may be necessary to carry out the
provisions of the Trust; and to do all other acts which in the Trustee's
judgment are deemed necessary or desirable to the proper management,
investment and distribution of the Trust estate.
6. The income and principal due or to become due to any beneficiary
hereunder shall not be subject to anticipation, assignment, pledge, sale or
transfer in any manner nor shall said beneficiary have the power to
anticipate, encumber or charge such interest or principal, nor shall such
interest or principal, while in the possession of the Trustee, be liable for
or subject to the debts, contracts, obligations, liabilities or torts of any
7. This is a revocable trust. The Grantor shall have and possess, and
hereby reserves the right, to alter, amend, or revoke this agreement, either
in whole or in part, by instrument in writing delivered to the Trustee. In
case of revocation of this trust, the property held in trust, or that part
hereof as to which this agreement may be revoked, shall be delivered by the
Trustee to the Grantor or in accordance with the Grantor's written
IN WITNESS WHEREOF, The Grantor and the Trustee have executed this agreement
on the day and year first above written.
Father Able, Grantor
Vertemont Bank, Trustee
STATE OF VERMONT )
WASHINGTON COUNTY,SS )
At Montpelier in said County and State, this 3rd day of January, 1980,
personally appeared Father Able and he acknowledged this agreement by him
signed and sealed to be his free act and deed.
Commission expires: 2/10/84
All of the lands and premises located at 12 ABC Road, and 45 XYZ Street, both
in Anytown, Vermont, pursuant to a deed of trust of even date herewith.
QUESTION III - FEBRUARY 1998
Michael Mouse and Kate Keyboard have been married for 2 years although they
have lived together as husband and wife for 11 years. They currently live
in Yahoo, Vermont in a home they purchased together in 1991.
Mouse and Keyboard have one child, Modem, who was born in 1994. Keyboard has
a child by a previous relationship, Fax, who was born in 1987. Fax has
always lived with Mouse and Keyboard, and has been raised by Mouse as though
Fax was his own child.
Keyboard is an avid Internet user and several months ago started an online
relationship with Byte through a chat group discussing animated cartoons.
After several months of "chatting," Keyboard was intrigued enough with Byte
to invite him to Vermont from his home in the city of "World Wide Web" and
the State of South for a New Year's rendezvous, while Mouse was out of town
for a conference on communications technology. Keyboard and Byte met at a
cybercafe and soon wound up in bed.
When Mouse returned home, Keyboard disclosed that she had met someone else
and was leaving Mouse to be with Byte. Shortly thereafter, Keyboard, along
with her children, Modem and Fax, moved to World Wide Web to be with Byte.
Mouse was distraught and immediately filed for a divorce. Keyboard quickly
agreed to the divorce, with the following relevant terms:
Mouse would get the house, subject to the mortgage, taxes and other property
related expenses. Upon the youngest of the children turning 18, Mouse could
either buy Keyboard out for 40% of the equity in the house or he could sell
the house and equally divide the net proceeds after paying off the mortgage
and all costs of sale.
Mouse and Keyboard would share the legal parental rights and responsibilities
of Modem and Fax, although Keyboard would have the sole physical rights and
responsibilities, since the children would be living primarily with her, but
with parental-child contact on vacations, including summers.
Child support would be based on the Vermont Guidelines. There would be no
A Stipulation was signed and filed by Mouse and Keyboard with the Court and a
Final Order was signed by the Court, with the Decree Nisi period to expire
on February 27, 1998.
It did not take Keyboard long to realize that not all was copacetic in World
Wide Web, and she and the children returned to Yahoo, Vermont. She called
Mouse and, asking his forgiveness, sought a reconciliation. Mouse agreed,
and on February 18, 1998, Keyboard and the children moved back into the
house with Mouse. One week later Keyboard was told by her gynecologist that
she was about 7 or 8 weeks pregnant. She believes the baby is Byte's.
1. What is the status of the divorce? What can be done about the divorce?
2. Could the court even make an order relative to Fax and Mouse?
If so, on what basis?
If not, why not?
3. Does Keyboard have grounds for a parentage action against Byte in
If so, on what basis?
If not, why not and what are Byte's defenses?
4. Does Vermont have jurisdiction under the Uniform Interstate Family
Support Act [UIFSA] over Byte for the purpose of an action for child
If so, on what basis?
What factors will the court take into account in setting any support
which Byte must pay to Keyboard?
QUESTION IV - FEBRUARY 1998
At 5:00 pm on Friday, as the end of a grueling week neared, you received a
telephone call from a high school friend, Harry Link, who begged you for an
appointment that very afternoon. Reluctantly, you agreed to your friend's
request, and you suggested he come by in a few minutes, because you had
plans to leave the office to share a romantic weekend with your significant
Harry ran into your office, and shoved a heap of papers across your desk,
breathlessly told you that he, and his lovely wife Linda, had been sued. He
said they needed you to "do something right away." After Harry caught his
breath, and you had an opportunity to note, among other things, a Motion for
Preliminary Injunction, for which a hearing was scheduled the following
Monday, Harry proceeded to tell his tale of woe.
It seems that Harry, who never was the brightest individual, had left town
shortly after graduation and made a small fortune selling lightbulbs door to
door for a major utility. With the proceeds of Harry's hard work in hand,
he and Linda returned to Blacksburg, Vermont, where they saw and decided to
buy the old Berber Mansion. (It was well known around Town that Harry and
Linda had "made it big", and they were proud of their reputation, believing
the Mansion would be just the place for them to show the townsfolk their
proper station in life.) The Mansion was in a sad state of repair, so Harry
and Linda made an agreement with Sam and Sue Seller by which Sam and Sue
would have the Mansion fixed up to Harry and Linda's specifications, using an
architect and contractor well known to Sam and Sue, with the cost of the
repairs being added to the price of the Mansion. The agreement, which was
handwritten on several scraps of paper, provided for periodic payments by
Harry and Linda, with the final amount of the purchase price to be paid at
closing. Because the precise nature and extent of the repairs, as well as
the cost of same, was not fully known, the purchase price was unstated, and
the agreement included no formula for the determination of the price. (From
a previous tax appeal, you knew the Mansion was appraised at value of
$275,000.) The parties also agreed to "arbitration or remediation as the
need may arise." Sam and Sue each initialed the individual scraps of paper,
signed the last piece, and mailed all the pieces to Harry and Linda, who by
that time had returned to their home in Lightsville, New Hampshire. Harry
and Linda each initialed the scraps, signed the last one, and mailed all the
pieces back to Sam and Sue.
The work got underway, and Harry and Linda had a good time selecting wall
treatments, new hardware, lighting and a variety of other changes they
wanted to the Mansion. The architect was just able to stay one step ahead
of them and all the changes they made, which was difficult because they
would make new changes to areas that the contractor already had repaired.
Harry and Linda received some bills from Sam and Sue, which they promptly
paid, until they began to add up the amounts and realized they had spent
$150,000, and the first floor of the three-story Mansion was as far as the
"team" had progressed, and only a portion at that. Harry and Linda demanded
to know how much all the work they had ordered would cost and how much it
would cost to finish the job, "with no other changes" than the architect
already had suggested. When Sam and Sue informed them that Harry and Linda
owed another $125,000 for the work to date, and the estimated cost to
complete was $325,000, Harry and Linda balked. They said they could not
afford to pay so much, never would have started the deal if they had known
the total cost, and anyway, they had no obligation to go on with the job,
and Sam and Sue could do what they wanted with the Mansion.
A few days after that conversation, Harry and Linda were served with a
Summons and Complaint, demanding damages "in excess of $725,000", and a
Motion for Preliminary Injunction to require Harry and Linda to proceed with
the purchase. The Motion was to be heard within ten days, but Harry and
Linda were so distraught that they did not call you until about a week had
With a sinking feeling, you knew your weekend was ruined.
In responding to Harry and Linda, please discuss the following issues:
1. What responses and defenses might Harry and Linda have to the
causes of action in contract? Who do you believe will prevail?
2. Will damages be recoverable? If so, by whom, from whom, and on
3. What are the requirements for the grant of a Motion for Preliminary
Injunction, and will one be granted?
QUESTION V - FEBRUARY 1998
John, a resident of Montpelier in Washington County, Vermont, and an
occasional client of yours, comes to your office and tells you that
approximately two years earlier he had been involved in a serious auto
accident which has left him unable to use his right arm. He tells you that
while he was driving down State Street in Montpelier, his vehicle was struck
from behind by a large truck owned and operated by ABC Company and driven by
its employee, Dave.
Immediately after the accident, Dave had told John that the brakes on the
truck had failed as a result of a leak in the brake hose caused by it
rubbing against a sharp metal part on the frame of the truck. Dave said
that the manufacturer of the truck had experienced a lot of problems with
this occurring on this model truck.
Your client, John, brings in copies of the accident reports he and Dave filed
and a copy of the police report which confirms that the cause of the
accident was brake failure due to the brake hose rubbing against a sharp
metal part on the truck frame. John also gives you a copy of the newspaper
clipping related to the accident, a copy of Dave's license and registration,
and a copy of his own auto insurance policy. John also tells you that,
after almost two years, he is still not sure if Dave or the ABC Company had
any insurance, although Dave had told him that neither of them did.
ABC Company is located in California but delivers things across the United
States, including Vermont. It does not have an office or other assets in
Vermont and does not advertise for business here.
Dave lives in California, although he is originally from Montpelier. John
tells you that he found out that Dave's father, also of Montpelier, had died
about six months earlier and left everything he owned, including several
apartment buildings in Montpelier, to Dave.
The manufacturer of the truck is a Japanese company which only sells its
vehicles in Japan and California. The truck Dave was driving was one of
many that ABC Company bought in California. The manufacturer does, however,
regularly advertise in national publications which are distributed in
Vermont. The manufacturer has no other connection of any kind to Vermont.
1. Discuss any jurisdictional issues which may arise in any case that
you may file against Dave, ABC Company, or the manufacturer.
2. In which court would/could John file suit? Are there other
3. List the discovery devices that are available to you.
4. What sources of recovery should be explored to compensate John?
5. What steps can be taken to enhance John's chances of collecting on
any judgment he would receive, and how do you proceed to take those steps?
QUESTION VI - FEBRUARY 1998
Vincenzo Lorenzo owns Mama Mia's Italian Restaurant in Rutlington as a sole
proprietorship. Mama Mia's has been in business for the past five years and
is famous statewide. Vincenzo and his wife Lasposa, own their home in
Burland. The home is mortgaged to First State Bank. Although Mr. Lorenzo
is a fine cook, his inability to manage his business has forced him into a
difficult financial position. He is currently 6 months behind on his home
mortgage payments, and he owes $30,000 for restaurant supplies to Hans
Svelte, who is reputed to have close ties to the underworld. Mr. Lorenzo
also owes $15,000 to Groovy Greg's Organic Vegetable Farm; $16,500 to Last
Man Standing Liquors; $1,500 to his mother, Mama, for her cooking services
over the past month; and another $20,000 in miscellaneous business bills to
some 30 creditors.
In Mr. Lorenzo's first year of operation, he made a profit of $15,000. In
the second year, his profit was $25,000; in the third year his profit was
$30,000. However, his management failures caught up with him, and in the
fourth year he only made $5,000. He expects to book a substantial loss for
1997 and is currently unable to pay his business and personal bills.
Mr. Lorenzo's most prized possession is his rare stamp collection on which he
has been working since he was twelve years old. It is worth about $50,000.
Realizing that his business may have been failing, he gave his stamp
collection to his sister and sole sibling, Sorella, in May 1997, so that his
creditors could not attach it or force its sale.
On October 28, 1997, Mr. Lorenzo paid Mama the $1,500 she was owed. On
November 30, 1997, Mr. Lorenzo scraped together $30,000 and paid Hans Svelte
after a month of daily harassing telephone calls from Mr. Svelte. The next
week, he deeded his entirety interest in his home to his wife Lasposa.
On November 15, 1997, Mama became very ill and was hospitalized. The doctors
do not know how much longer she will live, and give her six months at the
most. She has an estate of about $500,000.
On December 15, 1997, Mr. Lorenzo comes to your office. He has $5,000 in a
briefcase; an armful of letters from his creditors demanding immediate
payment; and a notice of foreclosure on his residence. He estimates that
his business assets are worth $15,000. He also informs you that Mama was
1. Please counsel Mr. Lorenzo as to the various types of bankruptcy
proceedings available to him. What type, if any, would be best considering
Mr. Lorenzo's financial condition?
2. What legal issues are raised by Mr. Lorenzo's transfers of property and
payments of money and what advice can you give to him?
3. How would Mama's impending death affect your advice to Mr. Lorenzo?
Board of Bar Examiners
Mailing address: 109 State St.
Montpelier VT 05609-0702
Office Locaation: 111 State St.