February 1999 - Vermont Bar Examination Essay Questions
QUESTION I - FEBRUARY 1999
Jim meets with you in your law office and tells you his parents both
died in a single-car accident the previous week. Jim's father had a heart
attack while driving the car. The car left the road, and struck a tree
killing both Mom and Dad simultaneously. Both had lived in Washington
County, Vermont, their entire lives and had, in fact, never left the State.
Jim tells you he had three brothers. The oldest brother, David, died two
years earlier, leaving one child. Jim found both of his parents' wills in
a safe in his father's office. His father's will is 35 years old. Jim's
youngest brother, Bill, was born after the will was executed. Dad's will
left everything to Mom but provided that if she died before or
simultaneously with him, everything was to be divided among his three
sons, David, Jim, and Bob. Bill is not named in the will. Dad's estate
consists of a commercial warehouse located in Chittenden County, valued at
$200,000, and $300,000 in cash. Both were in Dad's sole name.
Mom had $300,000 in cash, the home where the two lived and its
contents in her sole name. The home and contents were valued at $500,000.
Mom's will was only five years old. She had prepared it herself and had
two friends of hers, both now deceased, witness it. Mom's will left
one-half of what she had to a local church and the other half to one of her
friends who witnessed her will. During the last year of her life, Mom had
given Jim and Bill $5,000 each. She also gave Bob a large sum of cash.
There was a receipt with her will in which Bob acknowledged it was an
advancement from their mother.
In both wills, a now-deceased brother of Dad was named the Executor.
Jim tells you he wants his share of the money. He also tells you that
he and his wife plan to give money to their children over the coming years
for college tuition and gifts. He would like to know how much he can give
to each child each year without having to file any gift tax returns. He
also wonders if the fact that his wife wants to join in making gifts
permits them to give more without the necessity of filing a gift tax
return, and what the penalty will be if they exceed the allowed amount.
1. Discuss the distribution of Dad's estate.
2. Discuss the distribution of Mom's estate.
3. How will the executor/administrator for both estates be
4. Where will the estate of each be probated?
5. Will either Mom's or Dad's estate be subject to estate tax?
If so, why?
6. Please respond to Jim's questions concerning how much he can
give to his children without filing a gift tax return, whether
his being married permits him and his wife to give more without
the necessity of filing a gift tax return, and what the penalty
will be if they exceed the allowed amount.
QUESTION II - FEBRUARY 1999
On February 15, 1999, Monica and Linda were shopping in Ken's
Department Store, located in a large Vermont city. It was Presidents'
Day, and the store was crowded with people hoping to take advantage of a
sale. As Monica and Linda were descending an escalator, another customer
either intentionally or accidentally pushed Monica. Monica fell, hitting
her jaw. A commotion ensued. When Monica reached the bottom of the
escalator, a salesperson at a temporary station helped her to her feet and
out of the path of other shoppers. A security guard watching from a
one-way mirror summoned the store manager, Bill, from his oval office.
Bill's job as operations manager of the store entailed responsibility for
directing and training employees and interns, and it was also his duty to
investigate and gather information on incidents involving customer
injuries on the premises. Bill asked Monica whether she needed a
wheelchair or ambulance. Monica replied that she did not. Linda, who was
very upset and perhaps a bit hysterical, kept asking who would pay for
Monica's medical expenses. Monica and Linda understood Bill to say that
Ken's Department Store would pay such expenses.
Immediately following their conversation with Bill, Linda helped
Monica out of the store, brought the car around, and they returned home.
The following Monday, February 22, Monica was still in pain and decided to
seek medical attention, but she did not have any insurance or the means to
pay a doctor. She called Bill, who, she says, reiterated the promise that
Ken's would pay her bills. Based on Bill's reassurance, she consulted a
physician on Tuesday, and underwent treatment, but has now learned that
Ken's has refused to pay the medical bills. In addition, the physician
had orally promised her that the treatment she received would result in a
24-hour cure, but she is still in pain on February 25.
Meanwhile, Dr. Justice, the physician whom Monica consulted, has
possible problems of his own. He practices a radically new and secret kind
of medical treatment. On January 4, 1999, he was hired by Star Associates
and executed a Confidentiality and Trade Secret Agreement in exchange for
$10,000. The Agreement provided that for 90 days after the termination of
his employment, Justice would not compete with Star, directly or
indirectly, within a prohibited geographic area consisting of a 100 mile
radius around any Star office. Star has at least 30 offices. Further,
Justice and Star agreed as follows:
Although both of us consider the foregoing restriction to be
reasonable for the protection of Star, if it is found by a court
to be unreasonable because it is overly broad as to time
period, geographic area or otherwise, then and in that case,
the restriction shall nevertheless remain effective, but shall
be considered amended in such manner so as to make the
restriction reasonable as determined by such court and as so
amended shall be enforced.
The Agreement also provided that Star would be entitled to enjoin
Justice from breaching the Agreement, and that Justice would "pay Starr the
costs of any such proceeding, including reasonable attorney's fees."
On February 1, 1999, Justice terminated his employment with Star and
opened up a medical office directly across the street from one of Star's
offices in Vermont.
1. Monica comes to your office asking about a possible action against
Bill and against Ken's based on Bill's statements to her and Linda. "He
said his word was unimpeachable," she tells you. What do you tell her?
2. Monica also wants to know about a possible case against Dr.
Justice. What is your response?
3. Dr. Justice comes to your office instead of Monica. He wants to
know whether Star's restrictive covenant can be enforced against him. What
do you say to him?
QUESTION III - FEBRUARY 1999
Mr. And Mrs. (Dan and Debbie) Debtor own and operate an upscale, new
age gift and gardening emporium called "Live Life." They have run the
business together for about ten years, ever since they moved to Mudville,
Vermont. Despite the suggestion of their friend, Larry Lawyer, they
decided not to incorporate because they were not in a risky business and
they did not need to raise capital. Also, they had been partners in other
activities and were "partners in life," so they decided to run the
business as a general partnership.
Live Life sells a variety of products, ranging from plants to exotic
coffees and other gift items. The clientele is young, upwardly mobile, and
tends to have plenty of disposable income. Debbie Debtor, who owns the
property in her own name, took out a mortgage with Mudville Bank on the
premises housing Live Life. The bank has a mortgage on the property, and
the mortgage is properly recorded in the Mudville Land records.
Based on their past success, the Debtors decided to expand the
business and take on a new line of specialty foods and candies, all made
in Vermont. The Debtors had capitalized the expansion of Live Life
through personal funds ($50,000) as well as loans ($25,000) from family
members, which were unsecured. The Debtors also bought three new
high-tech refrigerators from Sam Supplier for a total of $45,000. The
refrigerators, which are installed simply by plugging them into the wall
outlets, provide an attractive display for the perishable speciality
foods. The Debtors, accepting Mr. Supplier's offer to finance 100% of the
purchase price, granted a security interest in the regrigerators to Mr.
Supplier. A UCC Financing Statement, identifying the collateral as
"equipment," was signed by the Debtors and was filed in the Mudville Town
Offices. Mr. Supplier also requested, and obtained, a personal guaranty
from Paul Parent, Debbie's wealthy father.
Shortly after Live Life expanded, a customer, Patsy Plaintiff, entered
the store and fell, hitting her head against a display of flower pots,
incurring serious head injuries. The Debtors were served with a summons
and complaint alleging that Ms. Plaintiff had been grievously injured, and
demanding $5,000,000 in damages. Following a recent trial on the matter, a
judgment was entered for Plaintiff in the amount of $500,000.
While they pondered what to do about the judgment, the Debtors
realized that Live Life was not doing as well as expected. Last month,
they managed to repay themselves and their family members $5,000 and
$2,500, respectively, but they have fallen behind in making payments to
the bank, to Mr. Supplier, and to the Internal Revenue Service. In fact,
they owe the bank two monthly installments on the $100,000 mortgage (but
rejoice in knowing that the real estate is estimated to be worth
$110,000), they owe two monthly installments to Mr. Supplier (they still
owe him a total of $40,000, but think that the refrigerators are now worth
about $25,000), and they owe the IRS about $7,500.
The Debtors fear that Mr. Supplier will soon arrive to repossess the
refrigerators. Live Life has about $2,000 in its checking account; the
Debtors also have about $15,000 in their personal bank accounts and about
$10,000 in their IRA (retirement) account. They also have personal assets
(cars, furniture, jewelry, etc.) worth about $20,000 and Live Life has
inventory that they estimate to be worth $35,000.
From a book they read on living well and getting rich, the Debtors
learned about going bankrupt as a means of protecting themselves from their
creditors, and they had also heard that bankruptcy would put an end to
their having to deal with the lawsuit brought by Patsy Plaintiff. Because
the Debtors would like to continue the business of Live Life without all
the encumbrances they have recently incurred, they have come to your firm
As a new associate in your law firm, you have been asked by the senior
partner to assess the Debtors' situation and to answer the following
1. Discuss the different types of bankruptcy protection that may be
available to the Debtors and describe what recommendations you would make
2. What are the relative positions and what are the likely outcomes
of the claims that are held by the various creditors of the Debtors?
QUESTION IV - FEBRUARY 1999
Barb Barton contacts Attorney Cory Competent for representation in the
purchase of a house and land in nearby Oldbury. On January 31, 1999, she
drops off a signed purchase and sale agreement at Competent's office. The
agreement reads as follows:
Sellers Saul and Sally Sandstone agree to sell their home
& lands, consisting of approximately 2 acres, located at
1 Stoney Acres, Oldbury, for the sum of $125,000, to
Buyer Barb Barton. Buyer has paid, and sellers acknowledge
receipt of, a non-refundable deposit of $2,500 toward the
purchase price as of this date. The closing shall take place
within 45 days of the date of this agreement. Sellers shall leave
the house "broom-clean", and shall remove all of the
accumulated personal property now located in the basement prior
to the closing.
After Barb obtains approval of financing for the house, Competent goes
to the Oldbury Town Clerk's office to conduct the title search. In the
course of his search he finds the following items:
1. A contractor's lien was filed by Carla Carpenter "for labor
and materials to build a shed at the Sandstones' house at
1 Stoney Acres, completed on this date, in the amount of
$1,200." The lien is dated April 1, 1998.
2. The Sandstones bought the house from Julia & Carl Johnson
in 1988. Julia and her husband Carl bought the house from
Anna Smith, in 1966. Anna apparently inherited the house
from her aunt, Sophie Jones in 1955. However, there is
no recorded deed transferring the property to Anna. There
is a recorded death certificate for Sophie showing that she died
in late 1954, and the probate court records show that Sophie died
intestate, leaving one heir, her niece, Anna Smith.
Competent also learns that the house is located in a subdivision which
has very strict rules. The subdivision prohibits the building of any out-
buildings except 2 car garages, and has a number of other stringent
regulations on the appearance and use of subdivision houses.
Attorney Andrea Able represents the Sandstones. They inform her that,
although the house is in a quiet, residential subdivision, it backs onto
property which is located on busy, commercially zoned Route 432. The
Sandstones tell Able that they have learned that the owners of the property
located behind them, now open farmland, have obtained zoning permission to
build a community care home for elders there. The Sandstones also confide
to Able that although they obtained a septic system which they believe
complies with state regulations, their engineer never obtained final state
approval of the system after it was installed.
Able is also holding the $2,500 deposit paid by Barton. She placed
the check into her general checking account. Her bookkeeper then
transferred the funds to the general client trust account one week after
the purchase and sale agreement was signed.
The day before the closing, Barton walks through the house with the
Sandstones for final inspection and sees that the carpets are filthy, and
that a broken freezer, a pile of bricks, and several pieces of lumber are
piled in one corner of the basement. She is furious, and calls Competent
about this, demanding that he take care of the problem, or she'll call off
1. What steps should Competent take to inform his client, Barton, of
the facts he learned in his title search, and what action, if any, should
he request from the Sandstones and their lawyer to address any concerns
these facts raise?
2. Based on the information she learned from the Sandstones regarding
the planned development of adjacent property and the septic system, what
actions should Attorney Abel take? What advice should she give her
3. What issues does Abel's handling of the $2,500 deposit by Barton
raise, if any?
4. How could the issues which Barton raises based on her
"walkthrough" of the house the day before closing best be addressed?
QUESTION V - FEBRUARY 1999
Assume you are a litigation associate in a Vermont law firm. Harold
Haggardy, a partner in the firm, has provided you with the following
information about one of his cases.
He represents the estate, wife and child of Peter Pound. Peter Pound
was a member of the Apollo Health Club of St. Johnsbury, Vermont.
According to his wife, Paula, Peter routinely exercised at the club three
days per week. She states that Peter followed the same routine every
session. He would arrive around 7 a.m. and would exercise for about an
hour and a half. He would swim for twenty minutes, jog on the tread mill
for a half-hour, and lift weights for the remaining forty minutes.
On a cold, gray Vermont day in February, Erica Earnhart, the weight
trainer for the Club, noticed that Peter's car was in the parking lot at
around 9:30 a.m. In her deposition, she stated that because she thought
that Peter had usually left by this point in the day, she began to look
for him around the facility. After a long, futile search, she finally
asked lifeguard, Larry Lajoie, to check the men's locker room. He
discovered Peter lying, unconscious, on the floor in the men's sauna,
which was located in the locker room. He and another member removed Peter
from the sauna and immediately called an ambulance. Moments later,
emergency medical technicians arrived and rushed Peter to the hospital,
but he died the next day of acute hyperthermia, which Haggardy tells you
is the same thing as a heat stroke.
Further investigation and discovery have also revealed the following.
According to a log sheet kept by the Club, Peter had signed out a towel at
7:29 a.m. on the day of the accident, but no one had any personal
recollection of his whereabouts until he was discovered in the sauna.
Peter was partially dressed in his street clothes when discovered in the
sauna; his sweats were also inside the sauna.
Peter's wife, Patricia, also tells you that a few weeks prior to the
accident, she had picked Peter up at the Apollo because his car was being
repaired. When he got into her car, he said, "I'm freezing. The locker
room is always so cold." He also told her that in the past he had
complained to the Club director about it, who told him, "We can't do
anything about it. Why don't you change your clothes in the sauna?"
In addition, Peter's son, Oscar, has stated that he had been in the
men's locker room on several occasions, and there was no sign on the door
of the locker room on his visits. When Harold Haggardy and a paralegal of
your firm visited the locker room, the paralegal took a photo of the sauna
door. It had a sign, which stated, "WARNING: Do not bathe alone.
Extended stays in the sauna for more than 10 minutes may be hazardous to
your health and may result in bodily injury or death."
Finally, upon Haggardy's questioning, Erica Earnhart admitted at her
deposition that she noticed Peter's car in the lot because they were having
an affair and that earlier in the day she was upset with him because she
had thought that he had left without saying good-bye.
Haggardy has brought a wrongful death action in Vermont Superior Court
against the Apollo on behalf of Peter's estate. His theory of the case is
that the club was negligent in giving its members, particularly Peter,
improper training and instruction in the use of the sauna, that the lack of
warnings on the sauna made the Club's premises unsafe, and that both were
proximate causes of Peter's death.
On behalf of his clients, Haggardy has retained Dr. Raymond Helios, a
physician, who will testify that based on the ambient air temperature
inside the sauna and Peter's body temperature when he was removed from the
sauna, it is his opinion that Peter remained in the sauna for over an hour
and that the extended length of time in the sauna was the cause of his
death. His opinion is based upon Larry Lajoie's deposition testimony, who
testified that a thermometer in the sauna read 165 degrees Fahrenheit when
they found Peter and upon the EMT's report, in which they state that
Peter's body temperature was 107.1 degrees Fahrenheit when they took it on
the way to the hospital.
Haggardy asks you to draft him a brief memorandum on the following:
1. Besides Dr. Helios' testimony, what evidence supports the
assertion that Peter remained in the sauna for over an hour? For each
item, cite any objection the defendant is likely to raise at trial, the
basis of the objection and indicate how the court is likely to rule.
2. For each of the following items of evidence, state any objections
we should anticipate and analyze and discuss whether the court is likely
to sustain the objection. In addition, for items e and f below, state any
foundation that must be established to admit the evidence.
a. Peter's statement to his wife regarding the temperature of the
b. Peter's statement to his wife regarding the director's advice on
the use of the sauna.
c. Oscar's testimony regarding the absence of a sign on the sauna
d. The photograph of the sign on the sauna door.
e. The EMT's report.
f. Dr. Helios' testimony.
3. Finally, Haggardy asks you, "Is there any way to keep Erica's
affair with Peter from the jury?" Please explain any ideas you have and
analyze how the court is likely to rule.
QUESTION VI - FEBRUARY 1999
You are a solo practitioner in a small town in northern Vermont. You
represent Wanda Williams in a divorce from her husband, Harry Hill. Hill
is represented by Elizabeth Brennon, another local attorney. Wanda and
Harry have three children.
Wanda's case has presented a number of questions for you. For each of
the paragraphs below, identify the issue, discuss your options, and state
your proper course of action.
1. Wanda tells you that Harry has been involved in a number of
very questionable business dealings, which might be of interest to the
State's Attorney or the Tax Department. Wanda asks you to tell Elizabeth
that a contested hearing will probably bring these matters into the open.
Wanda thinks that this may encourage them to make a favorable settlement
2. Wanda feels strongly that she should have exclusive parental
rights and responsibilities of all three children. Although Harry has
physically abused Wanda on occasion, she is not aware that he has ever
abused the children. Wanda believes that in time he will present a danger
to the children, and she insists on testifying that he has physically
abused them in the past. She argues that the court will be reluctant to
grant her exclusive parental rights and responsibilities absent such
testimony, and that her testimony to this effect is practically true
anyway, since it's only a matter of time until he does physically abuse
them. She tells you that if you do not ask her on direct examination
about Harry's abuse of the children, she will volunteer this testimony
when Elizabeth cross examines her.
3. Wanda says that she can reason with Harry, and she is
confident that a satisfactory settlement could be reached if only
Elizabeth were not so obstreperous. She offers to relay your settlement
offer directly to Harry, and if he agrees, then Elizabeth can be brought
into the loop. She doesn't want to cut Elizabeth out completely, just
until a preliminary agreement is reached.
4. At the last status conference, you noticed that Elizabeth
smelled rather strongly of liquor, and appeared to be unsteady on her
feet. For the first few minutes of the status conference, she appeared to
have confused the Williams v. Hill case with another divorce case in which
the two of you are adversaries.
5. One of the sticking points in the case, aside from custody,
is the treatment of Harry's pension from his military service in the
property settlement. Your research locates a New Hampshire case on point
which is directly contrary to Wanda's position.
6. Wanda tells you that a friend of hers is about to file for a
divorce, and that you ought to contact this friend to see if she would
like to be represented by you. Wanda offers to tell her friend what a
good job you are doing, and that she should hire you.
7. Following the successful resolution of the divorce case,
Wanda refuses to pay you your fee. You obtain a judgment against her for
$6,000.00. You recall that when you were gathering information from
Wanda about how the court might order child support, she told you that she
expects to inherit a lot of money, and you are now considering attaching
Board of Bar Examiners
Mailing address: 109 State St.
Montpelier VT 05609-0702
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