July 1998 - Vermont Bar Examination Essay Questions
QUESTION I - JULY 1998
John, whom you have represented for several years, comes to see you to
discuss a problem he is having and a future business plan. He tells you
that he and two others set up ABC Corporation a number of years earlier to
run a retail plumbing parts business. He and his two co-shareholders each
own 33-1/3% of the corporation. His co-shareholders recently indicated
that they wanted to merge the corporation, and consequently its business,
with another corporation in a similar business owned by some distant
relatives of one of the other two shareholders. The plan is that ABC
Corporation will be merged into the other corporation, and the shareholders
of ABC Corporation will receive stock in the surviving corporation. You
have never represented the other co-shareholders or the corporation.
John indicates to you that he told his two co-shareholders that he did
not want to go ahead with the merger and, if they did, he wanted them to
buy him out. His co-shareholders indicated that they did not want to buy
him out, and neither did the corporation that ABC Corporation was merging
into or its shareholders. The other co-shareholders said that they did not
want to have to buy his shares and that, since he is a minority
shareholder, he would just have to accept the shares in the surviving
Under the corporate by-laws, a merger requires more than 50% of the
shareholders to vote in favor of such a merger. John's co-shareholders
told him they plan to call meetings of the board of directors and
shareholders, and they will vote in favor of the merger. Although John
plans to vote against the merger, it is clear the merger will go through
over his objection.
John indicates to you that he is tired of the retail plumbing parts
business anyway and, given the changes, all he wants is a fair price for
his shares so that he can start a skydiving school with his brother. The
problem is that unless he gets a fair price for his shares, he cannot
possibly afford to go into business with his brother.
Assuming John can resolve the issues surrounding his shares in ABC
Corporation, he would like to know something about the various forms of
business organizations he and his brother might use in their new endeavor.
Since both he and his brother do not like paperwork, he would like to have
some general idea of what paperwork is necessary to set up the various
types of business organizations and what type of "maintenance" will be
necessary. He also tells you that it is possible, although not yet
certain, that his brother will not want to be involved in the operation of
the new business and that the brother has some concerns about his liability
if a client gets injured. He wants to know if there are any forms of doing
business that exist that might relieve his brother's concerns in this
regard? Since both he and his brother expect the new business to incur
significant losses at least during the initial years, they would both like
those losses to be available to them as individuals for tax purposes.
Although John plans to speak to his accountant concerning the tax
ramifications and what form of business might be best, he would like you to
give him some general guidance in that area as well.
1. Explain to John what, if any, rights he has with regard to the
situation involving ABC Corporation and what, if anything, can be done to
protect him and force the others to buy him out.
2. List and describe the different forms of doing business that are
available to John and his brother. In your answer, you should address such
issues as formation, owner involvement in management and operation,
liability, and tax issues involved in various manners of doing business.
QUESTION II - JULY 1998
18 V.S.A. §4201 (29) defines "regulated drug" to include marijuana.
§4201 (15) defines marijuana as any plant of the genus cannabis or any
preparation, compound or mixture thereof except sterilized seeds of the
plant and fiber produced from the stalks. 18 V.S.A. §4205 forbids any
person to manufacture, possess, have under his control, sell, prescribe,
administer, dispense or compound any regulated drug. 18 V.S.A. §4230
criminalizes the knowing and unlawful possession of marijuana specifically,
and provides increased penalties for knowingly and unlawfully cultivating
Industrial hemp is a plant of the genus cannabis and species sativa.
It contains tetrahydrocannabinol ("THC"), the psychogenic chemical in
marijuana, but in such minute amounts that it is extremely difficult, if
not impossible, to extract enough THC from industrial hemp to produce a
substance having a psychoactive effect. It grows well in Vermont's harsh
climate, and its cultivation does not require pesticides or fertilizer.
Industrial hemp can be used to make high quality paper, cotton-and
linen-like fabrics, rope, carpet backing and many other useful fiber-based
products. Industrial hemp seed oil makes excellent soap, salve, medicinal
bases and edible vegetable oil, and can also be used as an inexpensive
replacement for chemicals used in paint, varnish and many other industrial
applications. Industrial hemp cannot be distinguished from THC-containing
marijuana by the average person. Assume, however, that a trained
law-enforcement officer using a newly invented $25 hand-held spectrometer
can easily distinguish between industrial hemp and THC-containing
Industrial hemp was cultivated on a large scale in Vermont and was an
important cash crop until these Title 18 proscriptions were enacted. They
are intended to promote the eradication of marijuana as an important part
of the state's efforts to combat the possession, use and sale of illegal
Vermonters for Agriculture, a charitable organization formed to
improve the economic lot of Vermont farmers, has retained you to commence a
lawsuit to re-establish the right to cultivate industrial hemp in Vermont.
Assume that there are no federal statutes or regulations affecting the
cultivation, possession, processing, sale or use of industrial hemp, and
that it is lawfully grown in Canada and several of the United States.
In what court will you bring this litigation? Who will your
plaintiff(s) be? What arguments will you raise on their behalf? Who will
the defendant(s) be? What response do you expect the defendant(s) to make?
What other courses of action might you consider? Explain the reasons for
QUESTION III - JULY 1998
You have recently been admitted to the Vermont Bar, and this is the first
day of your work for your new law firm of Meany, Miney and Moe in Fair
Haven, Vermont. The senior partner, Mr. Meany, drops a file on your desk
which includes the attached complaint. He wants answers to his concerns on
the case in one hour when he gets back from lunch and meets with the client
Mines-R-Us Inc. The file contains the following information:
Mines-R-Us employed a Mr. Peter Peron as a miner in an open pit
granite quarry beginning in 1995. Mr. Peron earned on average $550 per
week. Mr. Peron's primary job was to operate a drilling rig which would
drill into the granite for the placement of explosives to remove large
blocks of granite from the quarry.
Mr. Peron's drilling rig was a large machine which can be operated by
one individual standing behind the drill. The drill is supported by a small
tri-legged stanchion. The drilling rig was manufactured and sold by
Downdeep Drillers of Portland, Maine to Mines-R-Us in 1994. There is no
written agreement between Downdeep Drillers and Mines-R-Us as to the sale
or use of the drilling rigs. The drill has a safety device in a regulator
to prevent the drill from operating at excessive speeds and to shut the
drill off if the drill bit breaks. Drill bits often break at Mines-R-Us.
The stanchion can easily support the drills when they are drilling, but the
vibrations from the drill operating at high speeds can cause the stanchion
to collapse. Downdeep Drillers is aware of this problem, but has not told
any of its customers, including Mines-R-Us, as Downdeep Drillers believes
the regulator on the drill adequately protects against the stanchion
In the late fall of 1997, as the winter shut-down period was
approaching, the quarry was far behind its production quota. On November
17, 1997, Mr. Peron's supervisor, David Deloise, told both Mr. Peron and
Mr. Peron's co-worker, Denise Drackmed, that if they did not increase the
number of holes they drilled, then the quarry would not meet its production
goals for the year, the financial well-being of the company would be at
risk, and the annual year end bonus would certainly not be paid.
Therefore, Mr. Deloise stridently urged Mr. Peron and Ms. Drackmed to do
everything possible to speed up production. While Mr. Deloise was still
present, Ms. Drackmed suggested to Mr. Peron that they both override the
safety regulator so that they could keep drilling even if part of the drill
broke, and avoid a shut down in order to replace the drill bit. Mr. Peron
refused, saying to Ms. Drackmed "Somebody's sure to get hurt if we do
that!" Ms. Drackmed replied "I don't care, I need that annual bonus to pay
for the trip I've scheduled to Florida next spring." Ms. Drackmed easily
overrode the safety regulator on her drill rig. Mr. Deloise smiled at Ms.
Drackmed, gave a dirty look at Mr. Peron, and quickly left the scene.
Sure enough, after only a couple of minutes of operation the drill bit
broke and Ms. Drackmed's drilling rig stanchion collapsed due to the
vibrations. Ms. Drackmed jumped out of the way of the vibrating drill rig,
but Mr. Peron was not so fortunate. The drill hit Mr. Peron, seriously
injuring his right foot. Mr. Peron was rushed to the local hospital but
due to the extensive injuries his foot was amputated the next day.
In addition to his extensive physical injuries, Mr. Peron suffers
severe pain from the injury. He is also unable to enjoy many of his
previous hobbies including downhill skiing and hiking. As a result of the
injuries, Mr. Peron also suffers from Post Traumatic Stress Disorder. This
required at least one hospitalization for an attempted suicide. Mr. Peron
has not returned to work since the accident.
Ms. Drackmed was fired immediately after the accident. The federal
Mine Safety and Health Administration fined Mines-R-Us $10,000 for Ms.
Drackmed's operating the drill with the safety regulator inoperable.
On June 10, 1998, service of process of the attached complaint was
perfected on all of the Defendants. The Complaint was filed by your law
school classmate, Susie Solo, who has just started as a sole practitioner
in Burlington, Vermont. On June 30, Downdeep Drillers filed a general
denial of any liability in this matter as well as a cross-claim against
Mines-R-Us seeking contribution and indemnification for any liability which
may be found against Downdeep Drillers. On June 30, Mr. Meany received a
thirty day extension of the period within to respond to the complaint.
Draft a memo to Mr. Meany discussing procedural and substantive issues
raised by the complaint and Susie Solo's likely actions and responses.
STATE OF VERMONT
PETER PERON )
v. ) CHITTENDEN SUPERIOR COURT
) DOCKET No.___________________
MINES-R-US, INC., )
DOWNDEEP DRILLERS, )
and, DENISE DRACKMED )
1. Peter Peron, a resident of the Town of Fair Haven, County of
Rutland and State of Vermont, was an employee of Mines-R-Us, Inc. on or
about November 17, 1997, when he was severely injured in an accident
arising out of and in the course of his employment at the Mines-R-Us quarry
in Fair Haven, Vermont.
2. Said injuries include but are not limited to physical,
personal, mental, emotional and loss of the enjoyment of life.
3. Mines-R-Us, Inc. is a domestic corporation with a principal
place of business in Fair Haven, Vermont.
4. Downdeep Drillers, Inc. is a foreign corporation
incorporated in Maine with a principal place of business in Portland,
5. Denise Drackmed, a resident of the Town of Castleton, County
of Rutland, and State of Vermont, was a co-employee of Peter Peron at the
time of the accident on or about November 17, 1997.
6. Mines-R-Us, Inc. was intentionally negligent in failing to
provide adequate protection to Peter Peron for the reasonably foreseeable
event of a co-employee overriding a safety device proximately and actually
resulting in an injury to a co-employee, and, acting through its agent,
David Deloise, encouraging employees to work in an unsafe manner as shown
by the MSHA fine.
7. Downdeep Drillers Inc, is strictly liable for the injuries
suffered by Peter Peron due to the manufacture sale and distribution of a
defectively designed drill rig in which a safety device could be easily
overridden by an untrained operator proximately and actually harming Peter
8. Denise Drackmed intentionally and negligently overcame an
intended safety device over the objections of Peter Peron proximately and
actually resulting in substantial injuries to Peter Peron.
9. Wherefore, as the direct and proximate result of the actions,
negligent and intentional, of the above listed defendants, acting
individually and jointly, Peter Peron suffered physical and mental injuries
and loss of enjoyment of life in an amount in excess of $1,000,000.00.
Dated at Burlington, Vermont this 1st day of June, 1998.
/s/ Susie Solo
40 George Street
Burlington Vermont 05401
QUESTION IV - JULY 1998
Cy Pres comes to your newly opened law office with the deed shown
above. He wants to make certain that he owns the property described in the
deed. He tells you that the survey describes land duly conveyed to Rhyllis
Tate and her husband, and that Rhyllis and her husband had duly recorded
the conveyance to them. Assume he is correct about the conveyance and
recording. Rhyllis is married to Pross Tate who is now under guardianship,
his guardian being Wrent N. Lees. Rhyllis has "disappeared."
1. Is the deed valid? Why or why not?
2. Can the deed be recorded under Vermont law? Why or why not?
3. What do you advise regarding recording?
4. Suppose Rhyllis Tate and Shelley Skase are found dead. What
do you advise regarding the deed?
5. Suppose Rhyllis is located but refuses to cooperate in any
way. What would you advise and how would you proceed?
6. Assume that Rhyllis is out-of-state and refuses to return to
Vermont, but is willing to meet with Mendon Proctor out-of-state. What do
7. Assume that the deed can be recorded. Where do you advise
recording it, and why?
THIS QUITCLAIM DEED, Executed this 1st day of July, 1998, by first
party Pross and Rhyllis Tate whose post office address is Rutland, Vermont
to second party, Cy Pres whose post office address is Burlington, Vermont.
WITNESSETH, That the said first party, for good consideration and for
the sum of $100,000.00 paid by the said second party, the receipt whereof
is hereby acknowledged, does hereby remise, release and quitclaim unto the
said second party forever, all the right, title, interest and claim which
the said first party has in and to the following described parcel of land,
and improvements and appurtenances thereto in the County ofWashington,
State of Vermont,
Land located in the Town of Montpelier and
described in Survey #532 of ABC Survey Co.,
/S/ Wrent N. Lees
Wrent N. Lees
(for Pross Tate)
/S/ Phyllis Tate
IN WITNESS WHEREOF, The said first party has signed and sealed these
presents the day and year first above written.
Signed, sealed and delivered in presence of:
/S/ Cy Pres
/S/ Shelley Skase
STATE OF VERMONT
COUNTY OF RUTLAND
On July 2, 1998 before me personally appeared Wrent N. Lees,
personally known to me [(or proved to me to on the basis of satisfactory
evidence)] to be the person[(s)] whose name[(s)] is/[are] subscribed to the
within instrument and acknowledged to me that he/[she/they] executed the
same in his/[her/their] authorized capacity[(ies)], and that by
his/[her/their] signature[(s)] on the instrument the person[(s)], or the
entity upon behalf of which the person[(s)] acted, executed the instrument.
WITNESS my hand and official seal.
Signature /S/ Mendon Proctor
Rutland County Clerk
QUESTION V - JULY 1998
You are a sole practitioner recently admitted to the Vermont Bar. You
are contacted by Pat, a young woman from Alabama, who was referred to you
by the St. Johnsbury Battered Women's Shelter. Pat is in her early
thirties and has a high school diploma. She has been married to her
husband, Dan, for 10 years. She has three young boys, ages 3, 5 and 7 with
Dan. She also has a daughter, age 14, by her first husband, Joe. Pat has
sole custody of her daughter and Joe has no right to visitation. He is
currently incarcerated in Mississippi for abusing their daughter.
Dan is a corporate attorney. When Pat and Dan were first married, Pat
supported Dan while he was in law school. Since Dan's graduation from law
school, Pat stayed at home and raised the children.
Pat advises you that she has been physically and emotionally abused by
Dan throughout their marriage. Recently, Dan went into a rage and beat her
three times in one day. All four of the children witnessed this incident
as well as other incidents of abuse in the past. During the abusive
episodes, the children were afraid of Dan and were sometimes hit by objects
Dan threw at Pat.
Pat left Alabama with the children the day after the most recent
incident of abuse while Dan was at work. She moved to Vermont a week ago
because her parents and two sisters live here. She intends to stay in
Pat is terrified that Dan will find and harm her and the children.
Dan has told her that if she ever left him he would find her and kidnap the
children. She indicates that she wants to get a divorce because she is
tired of the abuse, but she is afraid of losing the children.
Pat has no job and no means to support herself or her children. The
parties own a camp in Vermont on Lake Champlain where they often
vacationed. Besides the camp, most of the marital assets are in Alabama
and include a doll collection that Pat inherited from her
great-grandmother, a savings account with a balance of $5,000 which is in
Dan's name only, and a car worth $3,000, titled in both of their names.
Additionally, Dan is vested in his company's pension plan and, when he
retires, will receive significant monthly payments under the plan.
Pat needs to know what her legal rights and options are with respect to the
1. What legal action can Pat take to protect herself and her sons
from Dan? What about protecting her daughter from Dan?
2. What can you advise Pat about custody of all of the children? How
does Vermont determine parental rights and responsibilities and
3. How can Pat get child support in Vermont for the children? When?
If Pat gets an order for child support, how will it be enforced?
4. Can Pat file for a divorce in Vermont? When?
5. Does the Vermont court have jurisdiction to hear the divorce with
respect to the property issues? What advice will you give to
Pat as to Vermont law regarding the disposition of marital assets?
QUESTION VI - JULY 1998
On July 22, 1995, Amy C. walked to a nearby convenience store at 10:55
p.m. She knew that the store would close at 11:00 p.m., and she wanted to
purchase a quart of milk for breakfast. It was very dark outside, and the
block before the store was poorly lit. As she passed an alleyway, a man
darted out from some tall bushes and tried to pull her into the bushes. He
was about Amy's height, rather heavy, and physically stronger than Amy.
She noted that he had a strong odor of cigarettes on his breath, he wore a
baseball cap on his head, and had long hair, a beard and mustache. She
struggled for a couple of minutes, and he threw her to the ground, which
stunned her momentarily. Then she heard a dog barking, and the barking
grew louder and louder as the dog came closer. The assailant panicked, got
up, and ran away.
Amy C. immediately ran to the convenience store and used the owner's
phone to telephone the police. The police arrived quickly, obtained a
verbal description from Amy of her assailant, and asked her to come to the
police station so that they could make a composite drawing based on her
description. After this was done, the police drove Amy home, and said they
would put together a photo line-up for her to review within a day or so.
The next day, the police published the composite drawing in the local
newspaper, and posted flyers around town with the drawing. By that
evening, phone calls with tips from residents started to come in. None of
the leads were initially helpful. On the third day, however, one anonymous
caller telephoned to say that the drawing resembled a neighbor who lived in
a boarding house next door to the caller. The caller did not identify
himself, but stated that the neighbor had shaved off his mustache and cut
his hair the day that the composite drawing had appeared in the newspaper.
He stated that the neighbor was a heavy smoker. The caller identified the
man as Sam G., stated that Sam had lived in town only a month, and that he
had moved to Vermont from Florida.
With this information, the police contacted Florida and ran a criminal
record check on Sam G. They learned that Sam G. had convictions in Florida
for assault and attempted sexual assault. They arranged for the Florida
State Police to telefax a recent photo of Sam G., and the Vermont police
used this to put together a photo line-up for Amy's review.
Amy was contacted that evening at her home, and shown the line-up.
There were 6 photos. Two of the men, including Sam, had beards and
mustaches; the other 4 had only beards or mustaches, but not both. Sam G's
photo was different from the rest in that there were handcuffs visible on
one of his wrists, at the bottom of the photo. None of the other men had
restraints or cuffs. Amy selected Sam's photo as best resembling her
assailant. The police officer asked her, "Are you sure?" Amy said, "Pretty
sure...it was dark out."
The next morning, the police set up a surveillance car outside of
Sam's boarding house. There was a car with Florida plates parked nearby,
and a check with the Florida Department of Motor Vehicles indicated that it
was registered to Sam G. While the police were watching Sam's residence,
they observed Sam exiting and re-entering the house several times, loading
the Florida car with two suitcases and some other small boxes.
The police were in an unmarked car. They radioed headquarters for
directions, and were told to stop Sam for questioning if he tried to leave
town in the car. A half hour later, Sam entered his car and drove down the
street. The police in the unmarked car followed him. As Sam approached an
intersection with a traffic light, the light in Sam's direction turned red.
Sam drove through it. The police put on their blue lights and stopped Sam.
When the police approached Sam, they told him of the traffic
violation. They asked if he would return to the police station with them.
Sam became suspicious, and asked why he had to go to the station for
running a traffic light. The police then advised him that they were
investigating an attempted rape, and that they had been given a physical
description which matched his. They assured him that he was not under
arrest, and stated that they merely wanted to question him at the station.
They told him that if his story checked out, they would release him and he
could be on his way.
Sam agreed to accompany the police. When the investigating detective
at the station heard on the police radio that Sam was being brought in, he
arranged for Amy to come to the station at the same time. Sam arrived at
the station first, and Amy showed up 5 minutes later. When Amy arrived,
the investigating detective arranged for Amy to pass by Sam in the hallway.
Amy saw Sam with the other two officers, who were in plainclothes. Sam was
smoking a cigarette. Amy immediately pulled the investigating detective
aside and said, excitedly, "That's him! I think that's the man who tried
to rape me!" Sam saw Amy, became nervous and said, "Hey, I didn't do
anything to her! I was home watching T.V. at 11 o'clock." The police had
not yet told Sam what time the assault had occurred, and they had not
released that information to the press.
Based on Amy's identification, the lead police investigator decided
that he had enough evidence to charge Sam. He advised Sam that he was
under arrest for the attempted rape of Amy, and read him his "Miranda
rights." Sam gave an oral statement, which was videotaped by the police,
admitting that he had tried to assault Amy on the night in question.
Assume that you have been retained by Sam as his defense counsel.
1. What pre-trial motions would you file, and why? Discuss each of
the issues you would raise, and the factual and legal basis for
each of your motions.
2. With respect to your motions, analyze the strengths and weaknesses
of your client's position, and give the likely outcome for each
Board of Bar Examiners
Mailing address: 109 State St.
Montpelier VT 05609-0702
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