July 2001 - Vermont Bar Examination Essay Questions

Mary and Frank, high-school sweethearts who married right after World War II, had one son, Jimmy. Jimmy died of polio in 1952. Distraught, Frank went to his lawyer shortly thereafter and instructed him to draw up a will directing that his entire residuary estate (after debts and other necessary expenses are paid) be placed into a trust. The will was drafted, reviewed and executed by Frank in accordance with the laws of Vermont. The trust clause reads as follows:

Frank dies unexpectedly in 1956, leaving an estate valued at approximately $250,000. The will is probated in the Washington County Probate Court and the Montpelier Savings & Trust Company is appointed as trustee. The trustees invest the estate proceeds, and begin paying the interest to Mary quarterly.

Mary remarries in 1962. Within the next five years Mary and her new husband, Tom, have two children, Sam and Janet. The Montpelier Savings & Trust Company continues sending quarterly checks to Mary.

In 1980 Mary contacts the trustees about getting more income from the trust. She has been receiving about $25,000 per year, and she tells the trustees she wants $50,000 per year beginning immediately so that she and Tom can retire from their full-time jobs. In order to accommodate Mary’s request the trustees begin selling stocks and making the desired payments.

Beginning in the mid-1990s, however, the payments drop precipitously, and Tom goes back to work in order to supplement their income. He dies of a heart attack in 1996. The quarterly trust payments continue, but in ever-decreasing amounts. By the time Mary dies in January 2001, they are less than $1000 per quarter.

Sam and Janet, as Mary’s only heirs, come to see you for legal advice. They have talked to the bank, and were shocked to learn that only $35,000 is left in the trust, with most of it invested in high-risk technology stocks whose value has been plummeting for several years. The bank trustees have also advised them that the Montpelier Community Hospital has been in contact with them about when it can expect to receive the trust assets, although the hospital no longer provides any treatment for, nor does any research related to, polio.

On May 1, 2001, Dan Doyle, who is 18 years old, was driving on Route 100 in Vermont on his way to visit his mother. Dan’s friend, Jay Jameson, had allowed Dan to borrow his car even though Jay knew that Dan’s driver’s license had been suspended. Dan looked down to change the radio station, failed to negotiate a sharp turn, and his car crossed the centerline.

Penelope Parsons and her three-time national champion show dog, Fifi, were traveling in the opposite lane when Dan’s car came directly at them. Penelope tried to swerve onto the shoulder of the road and out of Dan’s way. Instead, she swerved too sharply and hit a large oak tree head-on. Penelope sustained only minor injuries and did not seek medical treatment. Fifi, however, suffered from multiple injuries. Fifi was rushed to Dr. Marker, a local veterinarian, who performed emergency surgery. Dr. Marker set a broken bone in Fifi’s leg, inserted a tube into the dog while he repaired a puncture to the dog’s lung and was able to stop the internal bleeding and save the dog’s life.

Several weeks after the accident Fifi began to lose his appetite and become lethargic. Penelope became very upset as the national dog show, which Fifi had won for the last three years, was only weeks away. Penelope called Dr. Marker to report the dog’s failure to eat and lethargy. Dr. Marker, who was booked solid with appointments, tried to reassure Penelope and advised her that the dog was probably still somewhat traumatized from the accident. Dr. Marker recommended a dog psychologist for Fifi. Penelope took Fifi to the dog psychologist for several weeks but there was no improvement in Fifi’s condition. Instead, Fifi got worse, lost a substantial amount of weight and his fur began to fall out in large clumps. Fifi was unable to compete in the dog show and lost the national title.

Several days later, Penelope, who was at her wit’s end, brought Fifi to one of the best veterinarians in the state, Dr. Nichols. Dr. Nichols gave Fifi an x-ray which revealed that a portion of the tube that had been inserted into Fifi at the time of the surgery was lodged in his digestive tract. Dr. Nichols performed emergency surgery to remove the tube, and several days later Fifi began to regain his appetite and slowly recover.

You are a recently admitted lawyer in private practice in Vermont. Assume that you discover, while reviewing the recent changes and updates to the Vermont Statutes Annotated, that in the January 2000 session of the Vermont legislature, veterinarians were added to the list of professionals who can be sued for medical malpractice. This law became effective July 1, 2000. Penelope comes to you for advice about her accident and whether she has any legal rights.

You are bar counsel for the Vermont Board of Professional Responsibility. Adam Abrams, an attorney in private practice, has filed a complaint against the State’s Attorney for Jefferson County, Paul Perry. The complaint states:

Denton belatedly hired Abrams to represent him in the case, whose investigation revealed these facts. As bar counsel, prepare a memorandum for the Board recommending a response to each of the issues raised in the complaint. Assume that all of Abrams’ claims are true.

Dan owns a home in the Town of Lakeville located in Windsor County, Vermont. Dan wanted to have major renovations done to his home and contacted Paul, a building contractor in Riverdale, New Hampshire to hire him to do the work. On January 1, 2001, they signed a contract for Paul to renovate the home for the price of $100,000.00. The work was scheduled to be completed by July 1, 2001. The payments were due in three installments:

-    a deposit of $25,000.00 was due when the contract was signed on January 1^st;
-    a second payment of $25,000.00 was due on March 1^st;
-    and the final payment of $50,000.00 was due on completion on July 1, 2001.

Part of the renovation project involved the installation of a skylight in Dan’s bedroom. During a heavy rainfall in May, Dan discovered that the skylight leaked, and he asked Paul to correct the problem. By the end of the month Paul had put a new seal around the skylight. Paul thought his repair work would fix the problem, but every time there was a heavy rain, the skylight continued to leak.

Paul finished his renovations on the house on June 29, 2001 and handed the final invoice to Dan at the end of the day requesting the final $50,000.00 payment due on the work. Dan complained to Paul that the skylight still leaked. He also said there were a lot of other problems with the work that Paul had done, and Dan refused to make the final payment to Paul. Paul told Dan that he had done all he could to remedy the problem with the skylight, and did not understand why there was still a minor leak. Paul insisted the leak could not be related to any of his work. Paul asked Dan what the other problems were, but Dan refused to tell him. Dan said it didn’t matter because the house was being sold next week on July 6^th and he would let the new owners deal with the problems.

By July 5^th Dan had still not paid Paul, and Paul came to see you that day seeking advice on how to get the money that Dan owes him.