VERMONT SUPREME COURT

Advisory Committee on Rules of Civil Procedure

2001 Annual Report

September 1, 2001

The Committee submits this report to the Supreme Court pursuant to Administrative Order No. 17, § 5. This report covers the Committee's activities since its 2000 annual report, dated September 1, 2000. Since filing that report, the Committee has met six times-on October 27 and December 15, 2000, and February 2, April 20, May 25, and June 29, 2001-to consider amendments or other matters pertaining to the Vermont Rules of Civil Procedure, the Vermont Rules of Appellate Procedure, the Vermont District Court Civil Rules, and the Vermont Code of Judicial Conduct, and to review comments received from the bar and others on proposed amendments concerning those rules.

Amendments to the Code of Judicial Conduct recommended for promulgation in the 2000 report were promulgated September 6, effective December 31, 2000. Amendments to the Vermont Rules of Civil Procedure, Vermont Rules of Appellate Procedure, and District Court Civil Rules recommended for promulgation in the 2000 report, as well as amendments to V.R.C.P. Forms 1 and 1A, were promulgated December 6, 2000, effective March 1, 2001, except V.R.C.P. 39(f), which is now being considered by the Jury Communication Committee. (The effective date of DCCR 80.6 as promulgated was indefinitely postponed by Order of February 14, 2001. The rule was referred to an ad hoc advisory committee by order of April 30, 2001. See item IV.9 below.) The new Vermont Rules of Small Claims Procedure recommended for promulgation in the 2000 report were not promulgated but have been revised by the committee and are now recommended. See Part I below. Amendments to V.R.C.P. 5, 47, and 77(e) to implement the recommendations of the Committee on Public Access to Court Records were reviewed and comments were made to the Court. The rules were promulgated October 25, 2000, effective May 1, 2001. Amendments to V.R.C.P. 78(b)(1), 80.1(g), and Form 27, recommended for circulation to the bar in the 2000 report, were promulgated June 28, 2001, effecive September 1, 2001, with some modifications. The recommended amendment of V.R.A.P. 11(a) has been withdrawn by the Committee in light of comments from the bar. In addition, the committee provided comments to the Court on proposed V.R.A.P. 28.2 concerning electronic citation form and to the Jury Communication Committee on amendments to Rules 39, 47, and 51 presented by that committee.

The remainder of this report summarizes the Committee's activities under four headings: (1) Previously proposed amendments and rules recommended by the Committee for promulgation by the Supreme Court. (2) Proposed amendments recommended to be circulated to the bar for comment. (3) Proposed amendments considered by the Committee and not recommended for circulation or promulgation. (4) Matters remaining on the Committee's agenda.

I. AMENDMENTS RECOMMENDED TO THE COURT FOR PROMULGATION.

The Committee recommends that the Supreme Court promulgate the Vermont Rules of Small Claims Procedure as circulated to the bar on November 5, 1999, and recommended for promulgation on September 1, 2000, with revisions reflecting comments of the Supreme Court. A promulgation order is attached as Appendix A.

II. PROPOSED AMENDMENTS RECOMMENDED FOR CIRCULATION TO THE BAR

A. The Committee proposes the following amendments of the Vermont Rules of Civil and Appellate Procedure and asks that the amendments be circulated to the bar for comment. A proposed promulgation order is attached as Appendix B.

1. That V.R.C.P. 4.2(a) be amended to eliminate an obsolete reference to Rule 80(o).

2. That V.R.C.P. 23(f) be amended to provide a permissive interlocutory appeal of a class certification.

3. That V.R.C.P. 37(c) be amended to provide a sanction for failure to supplement discovery responses as provided in Rule 26(d).

4. That V.R.C.P. 58 be amended to provide that a judgment is to be set forth in a separate document.

5. That V.R.C.P. 72(a) be amended to delete an obsolete reference to V.R.A.P. 3(e).

6. That V.R.C.P. 79(a) be amended to eliminate an obsolete reference to the divorce docket.

7. That V.R.C.P. 81(a) be amended to eliminate an obsolete provision concerning election contests.

8. That Form 22 be amended to conform to prior amendments of the summons forms and Federal Form 22A.

B. The Committee proposes that the separate District Court Civil Rules be abolished and that their relevant provisions be incorporated in the Vermont Rules of Civil Procedure. A proposed promulgation order is attached as Appendix C.

III. PROPOSED AMENDMENTS NOT RECOMMENDED FOR PROMULGATION

The Committee considered the following proposed amendments but does not recommend them for the reasons indicated:

1. The Committee reviewed recent amendments to F.R.C.P. 26-30 and concluded that none were appropriate for the Vermont Rules except the amendment to V.R.C.P. 37(c), item II.A.3. above. The Committee will continue to observe the operation of the federal rules in practice.

2. It was proposed that V.R.C.P. 47(c)(3) be amended to reduce the number of peremptory challenges. The Committee decided to take no action on this proposal in view of the provision of 12 V.S.A. § 1941 providing six peremptory challenges for each party to a civil action.

3. It was proposed to amend V.R.C.P. 84 to make the use of certain of the official forms mandatory. The Committee decided not to adopt this proposal. Imposition of sanctions could be cumbersome and time consuming. Where a form is to be required, the requirement should be stated in the specific rule governing the form.

4. It was proposed to incorporate a post-judgment disclosure procedure in the Vermont Rules of Civil Procedure. The Committee decided to take no action on this proposal pending a greater showing of need and a review of experience under the disclosure provisions of the pending Vermont Rules of Small Claims Procedure.

IV. MATTERS REMAINING ON THE COMMITTEE'S AGENDA

The following matters remain on the Committee's agenda for further consideration:

1. Experimental V.R.C.P. 16.3 and proposed A.O. 39. The Committee will continue to monitor the development and use of Experimental Rule 16.3 and Administrative Order 39 providing for ADR in certain counties on an experimental basis. Data is being gathered and analyzed by Woodbury College researchers (Agenda #95-7).

2. The Committee will review the 1996 amendment of V.R.C.P. 26(b)(4) (# 01-5).

3. The Committee is considering an amendment of V.R.C.P. 54 concerning the separate statement of principal and interest amounts in a judgment (# 00-10).

4. The Committee is considering an amendment of V.R.C.P. 54(d) concerning the determination of the amount of attorney's fees (#00-12).

5. The Committee is considering an amendment of V.R.C.P. 56 providing for the citation of relevant portions of documents in the parties' statements in support of or opposition to motions for summary judgment (#00-9).

6. The Committee is considering an amendment of V.R.C.P. 72(a) to provide that the notice of appeal in probate appeals is to be filed by the appellant, as recommended by the Advisory Committee on Rules for Probate Proceedings (#00-7).

7. The Commitee is considering an amendment of V.R.C.P. 79(a) to conform to current practice of the clerks with regard to the docket (#00-5).

8. The Committee will consider an amendment of D.C.C.R. 80.5, the civil suspension rule, to clarify the procedure for trial after review of this issue by the Criminal Rules Advisory Committee (Agenda # 99-5).

9. The Committee will consider an amendment of D.C.C.R. 80.6 providing Judicial Bureau procedure after action of the Supreme Court's ad hoc Advisory Committee on the rule (#99-1).

In closing, the Committee and the Reporter wish to thank all the members of the Vermont bench and bar, the members of the Legislative Committee on Judicial Rules, and others who have participated in the rule-making process through their thoughtful suggestions and comments. In particular, thanks are due to Hon. John A. Dooley of the Supreme Court for his guidance as judicial liaison and to Court Administrator Lee Suskin, Larry Abbott, and Ann Fortier for their continued and essential administrative support.

Respectfully submitted,

William E. Griffin, Chair

For the Committee:

Eric B. Avildsen

Hon. Edward J. Cashman

James A. Dumont

Joseph E. Frank

Jean B. Giddings

Samuel Hoar

Gay S. Johnson

Allan R. Keyes

Karen McAndrew