July 1997 - Vermont Bar Examination Essay Questions

[Question I]
[Question II]
[Question III]
[Question IV]
[Question V]
[Question VI]


QUESTION I - JULY 1997


Mary Jean Potts, a widow, and her 10 year old son, Jamie, set out for Jamie's
school in Brattlebury, Bensor County, Vermont early in the morning on January
10, 1996.  As they headed east of town, they hit an open stretch of road
which was icy.  A sign warned that snow tended to drift across the road at
this location.  When Mary Jean saw the cars ahead of her slow down, she also
slowed and tapped her brakes several times.  The road was quite icy, but
there were no snow drifts.  There was no sign of salt or sand on the road. 
Mary Jean was successfully negotiating the icy patches, when the driver
behind her, Bob Doherty, a delivery driver for Ray's Potato Chips, who was on
his way to work in his Ray's truck, bumped into the rear of her car.  Bob had
been behind Mary Jean for over a mile before the accident.  The impact threw
Mary Jean and Jamie forward, although both were seatbelted.  Jamie began to
cry, and said that his neck hurt.

Mary Jean pulled off to the side of the road, and Doherty pulled in behind
her.  As they stood by the side of the road, exchanging insurance and
registration information, cars continued to drive past, slowly, in both
directions.  Mary Jean's knee was beginning to ache sharply after they had
talked for a few minutes.  She knew that the knee had hit the dashboard at
the time of the impact.  The impact had also damaged the rear of Mary Jean's
car.

As Mary Jean was walking back toward the driver's side of the car, a 1960
Chevrolet, driven by Tom Donaldson, an unemployed contractor, came up behind
her at a high speed, hit her, threw her into the air and tossed her into the
adjacent field.  Jamie watched in horror, from the front seat of their car,
as his mother whirled head over heels and landed, and lay motionless on her
back.  He ran to help her, screaming hysterically.  The rescue squad arrived
shortly and carried them both to the hospital.  On the way, the crew squad
commented to each other, in Mary Jean's and Jamie's hearing, that there had
been a least 6 accidents at this same location in the last 2 years.

Mary Jean's pelvis and her left arm were broken.  She was hospitalized for
two weeks and had two reconstructive surgeries on her pelvis over the next
year.  It took her months to recover.  She was unable to return to work for a
year, and she was then forced to take a lower paying, non-production job at
the factory where she had worked, because she was unable to stand for any
length of time due to the pain in her pelvis and knee.  She got behind on her
mortgage payments, and the bank began foreclosure proceedings against her.

Since the accident, several acquaintances, including one Bensor town worker,
have told Mary Jean that there have been several winter accidents on the
stretch of road within 150 yards on either side of her accident site over the
last few years.  The town worker told her that he was convinced that the road
had been poorly designed, and water did not drain adequately off of it,
causing ice to form there.

Mary Jean limps in to your office in June, 1997, to ask for your help in
seeking compensation for the injuries she and Jamie received in the accident. 
She tells you that Jamie has had nightmares every night since the accident. 
He has become clingy and doesn't want to let her out of his sight.  He
flinches at loud noises.  His grades in school have gone down.  He has had
counseling with a local social worker.  Mary Jean herself is afraid to drive,
and has significant permanent disabilities due to her injuries.  She has
daily pain in her pelvis and knee, and is seriously depressed.


What advice will you give Mary Jean about the remedies available to her and
Jamie, and about the defendants against whom they may make claims?  Explain.

Draft a complaint for Mary Jean and Jamie for filing in Bensor County
Superior Court, stating all of the claims which she should bring against all
parties responsible for their damages.


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QUESTION II - JULY 1997 Lots A, B, and C of the Shady Acres Subdivision originally constituted a single parcel owned by Sam Subdivider. In 1979, Sam decided to divide the parcel into lots and filed a survey in the Middle Village, Vermont land records describing the three lots. Concurrently, Sam filed a statement in the Middle Village land records that read in its entirety: I, Sam Subdivider, hereby declare that the three lots shown on the survey filed this date shall be used for residential purposes only. The houses to be constructed on the lots shall be a minimum of 1,200 square feet. Each owner of a lot shall provide appropriate screening to provide privacy for each property owner. Signed: Sam sold lot A to Frank and Franny Farmer, lot C to Nasty Neighbor, and, in September of 1980, the executor of Sam's estate, Ed Exeter, sold lot B to Friendly Forest Products, Inc., a Delaware corporation (FFP). The deed to Nasty was witnessed by one person, who also took Sam's acknowledgment. Ed Exeter did not believe in hiring attorneys to do things he was capable of doing, and he knew Sam died without any relatives, so he did not bother to petition the probate court regarding the distribution of Sam's estate. FFP conducts a logging, timber and pulp sales, lumber yard and heavy equipment supply business in Middle Village. FFP acquired lot B for future development. Lot B is located between lot A, where Frank and Franny Farmer conduct a nursery and greenhouse business as a home-occupation, and lot C, owned by Nasty Neighbor, who has always had it in for the Farmers since they complained about Nasty's dog, Dumper, and obtained an order requiring Dumper to be tied up at home. Middle Village has developed a highly sophisticated set of ordinances, rules, and regulations governing the conduct of virtually every kind of activity in the Village. In fact, the Middle Village planning commission and legislative body meet immediately after the legislature has adjourned, and examine recently enacted legislation to see if any new powers or authorities had been conferred upon municipalities in Vermont. If any are found, Middle Village promptly adopts whatever ordinance may be necessary to take full advantage of the new powers. As a matter of course, Middle Village always has managed to adopt its new ordinances by not later than June 15 of each year. In fact, the Middle Village Home Occupation Ordinance was passed within 15 days of the Legislature's action enabling municipalities to control such activities. About six months ago, the Farmers approached FFP to ask if they might lease lot B and expand their operations onto it. FFP, desiring to be a good neighbor, and knowing that lot B would not be needed for FFP's business for at least five years, agreed. FFP asked its attorney to draft the necessary lease and send it to the Farmers. In the meantime, they proceeded to clear lot B, erect stone walls, and plant trees and shrubs. Nasty, after watching the Farmers slave over the lot, saw his chance to get even. He called the president of FFP and demanded that a 12-foot tall wooden fence be erected all along the common line between lot B and his lot C, but set back 20 feet onto lot B. FFP did not want to offend Nasty, but neither did it want to step in between feuding neighbors. The president suggested to Nasty and to the Farmers that they work it out, but they refused because neither would trust the other. You are a new practitioner in Middle Village, just having hung out your shingle on the peaceful village green. 1. Assume Nasty Neighbor comes to you and insists you do something. What do you do? What advice do you give him as to the alternatives he might have, and how would you judge the success of those alternatives or of the defenses to them? 2. Assume the Farmers come to see you, asking for your advice and counsel, and that you "do what their last lawyer did to Dumper", that is, get an order against Nasty's behavior and interference with their activities. What advice do you give them as to the alternatives they might have, and how would you judge the success of those alternatives or of the defenses to them? 3. Assume the president of FFP comes to see you asking for your assistance in extricating FFP from the situation. What advice do you give him as to the alternatives he might have, and how would you judge the success of those alternatives or of the defenses to them?
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QUESTION III - JULY 1997 Cathy Camper and her friend, Harry Hiker, decided to go on a cross-country trip. Harry had all the necessary camping gear, including the tent, sleeping bags, cook stove, and other paraphernalia. Towards the end of their trip, Cathy and Harry arrived at a somewhat isolated Vermont campground in Iceville very late on a Friday night and were assigned the last available tenting site located on the northern edge of the campground. Harry awoke early on Saturday morning and decided to take a short hike. Harry got a little lost and was gone longer than he had intended. In fact, his walk back to the campground took several hours. During his hike, he tripped on a tree root, fell down and skinned his hands and forearms, ripped his pants, and sprained his ankle. He also struck his head. When Harry returned he encountered a chaotic scene. Several police cruisers were parked at his tent site. The area was cordoned off by yellow plastic tape. The mobile crime van was located nearby. A vehicle marked medical examiner was also in the vicinity. Uniformed officers were taking measurements and photographing shoeprints leading away from the tent. Harry approached one of the officers and asked what had happened. Ted Trooper explained that a female at the site was dead; her body had been found on the ground just outside the tent. She had been beaten. While the cause of death was as yet undetermined, given her state of undress, Ted Trooper guessed that she might also have been raped. Ted paused, looked more closely at Harry, and noticed his torn clothing and bruises. In particular, he observed that Harry's boots appeared blood-stained. Ted questioned Harry: "Who are you and how come you look so beat up?" Harry became very agitated. He exclaimed that he was the dead girl's camping companion. Harry began to tremble; he turned white as a sheet and whispered, "I feel so confused. My head is really killing me." With that, the officer decided to arrest Harry. As he was placing Harry in his cruiser, Ted asked Harry to give him his hiking boots. Harry silently took them off his feet and handed them over. In the cruiser, Harry fell into a restless slumber. When he awoke the investigation appeared to be winding down. Harry saw Ted Trooper and another officer enter the tent, and begin to pack up the camping equipment. In short order, the camp site was cleared of Harry's camping equipment, all of which was placed in the mobile crime van. Minutes later, the two officers got into the cruiser and explained to Harry that they were taking him to the police barracks. On route, Ted Trooper mentioned to the other officer that he was impressed with the high quality gear. "Too bad I'll never get to use it again," Harry muttered. The medical examiner contacted the prosecutor later in the day and reported that during her examination of Cathy she had found seminal fluid. The following day Harry is brought to court for arraignment. 1. What charge(s) does Harry face? How may the charge(s) be brought? Harry is assigned a lawyer who argues for his release pending trial. 2. As the prosecutor, what arguments will you make in opposition to the release request? List statutory and other authority you will rely on and the facts that support the State's position. After the lawyers have argued back and forth for a few minutes at the arraignment, Harry starts moaning. He winces in pain, rubs his head, and cries out, "I still feel confused. What's going on?" 3. As the defense lawyer, what motion will you file? What must you show to be successful? As the prosecutor you want to compare Harry's blood, body and head hair, and bodily fluids with the evidence found on Cathy's body. 4. Explain how you obtain these samples. 5. What must you show in order to collect these specimens? 6. Will the State be successful? Why or why not? 7. As the defense lawyer, list all the pre-trial motions you will file and briefly explain their bases. Cathy's parents are upset and confused by the criminal justice system. 8. What rights do they have?
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QUESTION IV - JULY 1997 Flo and Mo Snow own and operate a small downhill ski area in central Vermont. After a couple of seasons with little snowfall, they decide to invest in snowmaking equipment to extend the number of skier days. They convince their local lender, Strongarm Bank and Trust, to approve $500,000 financing to purchase and install snowmaking and grooming equipment. At the loan closing with Strongarm, Flo and Mo execute a Promissory Note in the amount of $500,000, together with a Security Agreement and a Financing Statement which encumbers "all machinery, equipment and fixtures now owned or hereafter acquired" by Flo and Mo. Strongarm filed the financing statement the day after closing. One week later Flo and Mo bought 13 snow guns from Vendor, who told Flo and Mo that "these snow guns would produce all the snow they needed." Flo and Mo had enough money to buy only 10 snow guns. Vendor sold them all 13 and had Flo and Mo sign a Promissory Note for the balance of the price, and a Security Agreement and Financing Statement in favor of Vendor. The Security Agreement describes the collateral as "all snow guns acquired by the Debtor from the Secured Party." Vendor filed the financing statement eight days afterward. Two weeks later Flo and Mo bought some special nozzles and installed them on all 13 snow guns they bought from Vendor. There was no natural snow the next winter, and the snow guns did not produce the snow promised by Vendor. Flo and Mo were unable to pay either Strongarm or Vendor. After demanding full payment from Flo and Mo, Strongarm sent some agents onto the ski slopes in the middle of the night, who dismantled and removed the snowmaking equipment, loaded the grooming equipment onto trucks, drove it all away, and made arrangements to sell them to another of Strongarm's ski area customers. Strongarm also seized $5000 from Flo and Mo's bank account at Strongarm. 1. Assume you represent Strongarm. Where would you have advised Strongarm to file the financing statements after the closing? Upon default of payments due by Flo and Mo, what would you have advised Strongarm to do in order to sell the collateral? Describe what you would have advised Strongarm to do to sell the collateral. 2. Assume you represent Vendor. What steps would you advise Vendor to take to protect its interest in the collateral. Between Strongarm and Vendor, who has priority to the collateral? 3. Assume you represent Flo and Mo. What actions, if any, would you advise them to take against Vendor? What alternatives, if any, do they have regarding the financial demands being made upon them by Strongarm and Vendor?
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QUESTION V - JULY 1997 John, a long-time client of your firm, tells you that his father died the week before. He knows that someone in your office drew a will for his father and that your firm is still in possession of the original of that will. You remember the will because you drafted it and signed it as one of the witnesses. John tells you that while his father was on his death bed, he told John that he had made a mistake in signing the will currently in the possession of your office in which he disinherited John and left everything to John's only sibling, Gary. John tells you that since his father did not have a lot of time left to live, John wrote up another will for him which a friend of his father and a nurse, who fortunately happened to be a notary, both witnessed. This will leaves 5% to the nurse and everything else to John. John, Gary and their mother are the only surviving relatives of their father. John would like you to represent him in doing whatever needs to be done to have the second will carried into effect, but first he would like you to contact Gary and see if a messy situation between the two of them with respect to the estate can be avoided. You know Gary from having represented him in the purchase of his home and from having advised him on several minor matters. John indicates that he has already spoken to Gary and the lawyer Gary hired to represent him in this matter without any success, but he feels that you might be able to resolve it if you talk to Gary directly and offer him 20% of the estate. John is concerned that any fighting is likely to further upset their mother who, although she doesn't need any part of her deceased husband's estate, is not very happy that she isn't getting any of it. John indicates that he would like you to refrain from mentioning the prior will to Gary since he is relatively certain that Gary doesn't know about it, it was revoked anyway, and his father had said just before he died that he didn't want to give Gary anything. John tells you that if it turns out that Gary does know or finds out about the prior will and there are any issues raised as to which will is controlling, he would like you to represent him in contesting the earlier will and making certain that his father's true wishes are carried out. John believes it would be in both his and Gary's best interest to resolve the estate as quickly as possible since one of his father's former customers had been talking about suing the father. John would like to distribute his father's assets as quickly as possible and thereby cut off the creditor's ability to recover. He believes that a messy fight with Gary will only increase the chances that the creditor will find out about his father's death and that it would then take action to prevent the transfer. 1. Which of the wills, if any, is valid and why? 2. How will the property be distributed? 3. What, if anything, would you do with the will in your office's possession? 4. What would you advise John with regard to his plan involving the creditor and why? 5. What, if any, ethical issues are presented?
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QUESTION VI - JULY 1997 The Vermont Fish and Wildlife Board wishes to adopt a rule establishing an antlerless deer season in Vermont and to have 22,000 antlerless deer permits issued to resident and nonresident deer hunters. One of Vermont's statutes reads as follows: An abundant, healthy deer herd is a primary goal of fish and wildlife management. It is also acknowledged that, although a statewide open season on antlerless deer is not recognized as desirable or necessary to achieve this goal, a limited antlerless season on a deer "management unit" basis would be an effective tool for harvesting an overpopulation of the deer herd. The use of a limited unit open season on antlerless deer shall be implemented only if a scientific game management study by the fish and wildlife department supports such a season. A rule already adopted by the Board provides that the Commissioner of the Vermont Fish and Wildlife Department may revoke the hunting license of anyone who takes an antlerless deer without a permit. The Commissioner receives a complaint that Raimey Doe has taken fifteen antlerless deer without a permit and vows to revoke Doe's license. 1. As the Board's attorney, what is the primary legal issue which you need to research prior to initiation of the rule-making process? 2. Briefly describe the rule-making process and how objections to the rule during this process could be dealt with. 3. What are the possible consequences of the Board's adopting the rule despite objections? In your answer, differentiate between the kinds of objections that can be made. 4. What procedural objections could be raised to the rule after its adoption and how could such objections be addressed? 5. What information and advice would you give to the Board if the Board wanted to adopt the rule as an "emergency rule"? 6. As the Commissioner's attorney, describe the procedures which you would advise the Commissioner to follow regarding the possible revocation of Doe's hunting license. 7. Under what circumstances would Doe be able to obtain judicial review concerning the revocation proceedings?
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