The following Proposed Amendments are proposed by the Rules Committees and have not been reviewed by the Supreme Court.

Proposed Order Adding Rule 39 of the Vermont Rules of Probate Procedure

Proposed Rule 39 would allow expedited proceedings in cases that potentially may be appealed de novo to the civil division. Under the proposed amendment, if both parties have appeared, the judge may make a determination on the merits without swearing-in the parties if the facts as represented by them on the record are undisputed and no party objects.

Comments on these proposed amendments should be sent by March 11, 2019, to the Hon. Jeffrey Kilgore, Chair of Advisory Committee on the Vermont Rules of Probate Procedure, at the following address:

Hon. Jeffrey Kilgore
Washington Probate Division
65 State Street
Montpelier, VT  05602
Jeffrey.Kilgore@vermont.gov

Proposed Order Amending Comment to Rule 1.1 of the Vermont Rules of Professional Conduct

This proposed amendment grew out of the work of the Vermont Commission on the Well-Being of the Legal Profession. This proposed amendment addresses behavioral health issues that adversely affect a lawyer’s fitness to practice. The proposed amendment urges lawyers to be cognizant of the toll that the profession can take on its members if behavioral health issues are ignored. The proposed amendment is intended to remind lawyers that their behavioral health can impact clients and the administration of justice, and to encourage lawyers to employ preventive strategies and self-care.

Comments on these proposed amendments should be sent by March 11, 2019, to Michael Kennedy, Bar Counsel, at the following address:

Michael Kennedy, Bar Counsel
Professional Responsibility Program
32 Cherry Street, Suite 213
Burlington, VT  05401
Michael.Kennedy@vermont.gov

Proposed Order Amending Rule 10 of Administrative Order No. 9

This proposed amendment grew out of the work of the Vermont Commission on the Well-Being of the Legal Profession. The proposed amendment authorizes bar counsel to refer a disciplinary complaint to a lawyers’ assistance program, which is consistent with an approach that emphasizes prevention, self-care, and treatment. It is also consistent with bar counsel’s general authorization to seek to resolve matters via nondisciplinary methods or to refer complaints to nondisciplinary dispute resolution programs.

Comments on these proposed amendments should be sent by March 11, 2019 to Michael Kennedy, Bar Counsel, at the following address:

Michael Kennedy, Bar Counsel
Professional Responsibility Program
32 Cherry Street, Suite 213
Burlington, VT  05401
Michael.Kennedy@vermont.gov

Proposed Order Amending Rule 26(b)(5)(A) of the Vermont Rules of Civil Procedure

The proposed amendment to Rule 26(b)(5)(A) adapts the language of F.R.C.P. 26(a)(2)(A) for the provision of the Vermont Rule identifying expert witnesses whose identity must be disclosed in response to an interrogatory. The amended rule applies to “each person” who may be used at trial to present expert testimony under Vermont Rules of Evidence 702, 703, and 705. To remove uncertainty regarding whether this requirement applies to witnesses whose testimony falls within those Evidence Rules but who were not specially retained to develop their opinions, the proposed amendment makes clear that Rule 26(b)(5) applies “whether or not the witness may also testify from personal knowledge as to any fact in issue in the case.”

Comments on these proposed amendments should be sent by February 19, 2019, to Allan Keyes, Esq., Chair of Advisory Committee on the Vermont Rules of Civil Procedure, at the following address:

Allan Keyes, Esq., Chair
Civil Rules Committee
Ryan Smith & Carbine, Ltd.
P.O. Box 310
Rutland, VT  05702 0310
ark@rsclaw.com

Proposed Order Amending Rules 55 and 80.1 of the Vermont Rules of Civil Procedure

The proposed amendment conforms Rule 55 to reflect the needs of current practice. The proposal deletes the requirement of subdivision (a) for a separate entry of default by the clerk in favor of a provision allowing the party seeking relief to file a motion for default judgment to initiate the process.

The proposed amendment to Rule 55(a) follows the federal rule by deleting “as provided by these rules,” so that an indication of an intent to defend, even if not in compliance with the rules, does not trigger a default.

The proposed amendment deletes the first sentence of Rule 55(b)(1) requiring an application to the court for a default judgment because it is superfluous in light of the provision for a motion added to subdivision (a). The proposed addition of a sentence to paragraph (1) makes clear that the party seeking a default judgment has the burden on the issue of minority and must disclose any information in that party’s possession on the issue of competency.

The proposed amendment to Rule 55(b)(2) eliminates the formal reference to entry of judgment by the clerk. The proposal changes the time for notice in Rule 55(b)(4) from five to seven days. The proposal makes other minor wording changes in Rule 55(b) and (c) for consistency.

The proposed amendment to Rule 80.1(c) provides consistency with the simultaneous proposed amendment of Rule 55(a).

Comments on these proposed amendments should be sent by February 19, 2019, to Allan Keyes, Esq., Chair of Advisory Committee on the Vermont Rules of Civil Procedure, at the following address:

Allan Keyes, Esq., Chair
Civil Rules Committee
Ryan Smith & Carbine, Ltd.
P.O. Box 310
Rutland, VT  05702 0310
ark@rsclaw.com

Proposed Order Amending Rule 41 of the Vermont Rules of Civil Procedure

At the request of the Civil Division Oversight Committee, the proposed amendments to Rule 41(a) and (b) reorganize the rule and conform it to current practice and eliminate outdated terminology.

The proposed amendment to Rule 41(a)(1) retains, with some clarification of language, the existing provision of Rule 41(a)(1)(i) that an action may be dismissed without order of court if a notice of voluntary dismissal is filed at any time before an answer or motion for summary judgment has been filed. The proposed addition of “claim” makes clear that, as now provided in new paragraph (a)(5), one or more claims that have been joined in a single action may be dismissed without dismissal of the entire action. 

The proposal separates provisions of former paragraph (a)(1) into new paragraphs (a)(2)-(6). Proposed new paragraph (a)(2) carries forward the provision of Rule 41(a)(1)(ii) that a stipulation of dismissal signed by all appearing parties may be filed at any time.  Proposed new paragraph (a)(3) carries forward the first and final sentences of former paragraph (a)(2) concerning dismissal by order of the court with a language clarification.  Proposed new paragraph (a)(4) is the second sentence of former paragraph (a)(2) concerning counterclaims, with a language clarification. Proposed new paragraph (a)(5), permitting dismissal of some or all claims, is carried forward without change from former paragraph (a)(1).  Proposed new paragraph (a)(6) carries forward the final sentence of former paragraph (a)(1) concerning adjudication on the merits.

The proposed amendment deletes former Rule 41(b)(1)(i), providing for involuntary dismissal of an action on a trial list that has been pending more than two years. The proposal renumbers former subparagraphs (b)(ii) and (iii) as (i) and (ii) and shortens their time periods to allow more expeditious elimination of stale actions.  Proposed language has been added in (b)(ii) to make clear that the shorter time periods may be extended by the court and that dismissal may be entered against defendants who have not been served, leaving the action pending against those who have been served.

Comments on these proposed amendments should be sent by February 19, 2019, to Allan Keyes, Esq., Chair of Advisory Committee on the Vermont Rules of Civil Procedure, at the following address:

Allan Keyes, Esq., Chair
Civil Rules Committee
Ryan Smith & Carbine, Ltd.
P.O. Box 310
Rutland, VT  05702 0310
ark@rsclaw.com

Proposed Amendment to Rule 18(d) of the Vermont Rules for Family Proceedings

The proposed amendment to Rule 18(d)(1) clarifies the process for appointment of a mediator when appointment has been ordered under subdivision (b). Under subparagraph (A), represented parties may choose the mediator. Under subparagraph (B), if the parties do not agree on a choice, or one or more of them is self-represented, the parties and the court may agree on a mediator from the Family Division Mediation Program’s list of mediators. If the parties cannot agree on an individual, the court may appoint a mediator from the list. If no mediator from the list is available, the court may appoint a mediator whose credentials are at least comparable to those for inclusion on the list. Those credentials include domestic-violence training.

Comments on this proposed amendment should be sent by January 7, 2019, to Hon. Michael Kainen, Chair of the Advisory Committee on the Vermont Rules for Family Proceedings, at the following address:

Hon. Michael Kainen, Chair
Windsor Civil Division
12 The Green
Woodstock, VT 05091
Michael.kainen@vermont.gov

Proposed Amendment to Rule 77(e) of the Vermont Rules of Probate Procedure

The proposed amendment conforms Rule 77(e)(1) to the provisions of 14 V.S.A. § 2(c) as amended by Act 195 of 2017 (Adj. Sess.), §1.  The proposed amendment conforms Rule 77(e)(2) to a change in 14 V.S.A. §2 (e) also enacted by Act 195 of 2017 (Adj. Sess.), § 1, which provided that the prohibition of public inspection of the index of wills, like the prohibition of public inspection of wills, applies “during the life of the testator.” The proposed amended rule is intended to make clear that the death of a testator does not open the index to public inspection but authorizes the register to make the limited disclosure of information in it concerning a particular testator permitted by Rule 80.4(b).

Comments on this proposed amendment should be sent by January 7, 2019, to Hon. Jeffrey Kilgore, Chair of Advisory Committee on the Vermont Rules of Probate Procedure, at the following address:

Hon. Jeffrey Kilgore
Washington Probate Division
65 State Street
Montpelier, VT  05602
Jeffrey.Kilgore@vermont.gov

Proposed Order Promulgating Administrative Order No. 46

The proposed Administrative Order 46 provides for the administrative implementation and performance standards for V.R.A.P. 35, V.R.C.P. 79.2, V.R.Cr.P. 53, and V.R.P.P. 79.2 governing the use of devices in the court. The proposed administrative order contains processes for the media to obtain a permanent registration or a one-time registration and to add an authorized individual to an existing registration.  The proposed order sets limits on equipment and personnel.

The comment period for this proposed amendment has been extended. Comments on this proposed amendment should be sent by January 14, 2019, to Emily Wetherell, Deputy Clerk, at the Vermont Supreme Court, at the following address:

Emily Wetherell, Deputy Clerk
Vermont Supreme Court
109 State Street
Montpelier, VT  05609-0801
emily.wetherell@vermont.gov

Proposed Order Abrogating and Replacing Rule 35 of the Vermont Rules of Appellate Procedure

The proposal abrogates and replaces Rule 35 consistent with the simultaneous amendments to V.R.C.P. 79.2. Proposed Rule 35(b) provides definitions for terms used throughout the rule. Under proposed Rule 35(c) any person is authorized to possess any device in a courthouse and use it in a nondisruptive manner. Proposed Rule 35(d) addresses use inside a courtroom. The rule allows registered media, participants, and nonparticipants to possess and use devices in the courtroom, subject to general prohibitions and limits on number and position of devices for video recording and transmission. This is broader than the use allowed in the superior court because there are no witnesses or juries present at the Supreme Court.  Proposed Rule 35(e) sets some limits on recording and transmission to ensure confidentiality of communications between members of the Court, between co-counsel, and between attorney and client. Under the proposal, the Court is authorized to prohibit, terminate, limit, or postpone recording or transmitting of a proceeding based on several factors.

The comment period for this proposed amendment has been extended. Comments on this proposed amendment should be sent by January 14, 2019, to Emily Wetherell, Deputy Clerk, at the Vermont Supreme Court, at the following address:

Emily Wetherell, Deputy Clerk
Vermont Supreme Court
109 State Street
Montpelier, VT  05609-0801
emily.wetherell@vermont.gov

Proposed Order Abrogating and Replacing Rule 79.2 of the Vermont Rules of Civil Procedure, Rule 79.2 of the Vermont Rules of Probate Procedure, and Rule 53 of the Vermont Rules of Criminal Procedure

The proposed rule was developed by a special committee composed of judges, court administrators, members of the Supreme Court’s procedural rules committees, and representatives of the media. The special committee’s draft was previously sent out for public comment, discussed by each of the procedural rules committees, and considered at a public hearing before a final version was recommended to the Supreme Court for promulgation. The Supreme Court made further alterations and is sending the proposal out for comment a second time.

The proposed rule governs both possession and use of recording and transmitting devices. It defines terms that are essential to the operation of the rule. Proposed Rule 79.2(c) broadly provides that a device may be used nondisruptively anywhere in a courthouse.

Proposed Rule 79.2(d) contains limits on use applicable to anyone possessing or using a device in a courtroom. The proposed rule, supplemented by Administrative Order No. 46, lays out a scheme for registration of media and their representatives entitling them to use devices to record and transmit courtroom proceedings. The proposed rule provides that participants may use devices in the courtroom with some restrictions. The proposed rule allows nonparticipants to possess devices in the courtroom, but to use them only in limited circumstances. Devices must be turned off or in silent mode except during nonevidentiary hearings when the jury or jury pool is not present. The proposed rule contains provisions applicable to jurors.

Proposed Rule 79.2(e) sets limits designed both to protect the decorum and the necessary confidentiality of certain proceedings. The proposed rule allows limits on use, but contains a presumption in favor of media access. 

Proposed Rule 79.2(f) states that the court may waive any of the limitations imposed by the rule on request for good cause and subject to any necessary or appropriate restrictions.

The proposal also abrogates current rules V.R.Cr.P. 53 and V.R.P.P. 79.2 and replaces those rules with a statement making the civil rule applicable to proceedings in the criminal and probate divisions. No change is proposed for V.R.F.P. 4.0(a)(2) or V.R.E.C.P. 3 so V.R.C.P. 79.2 will continue to apply to public proceedings in the family and environmental divisions.

The proposal abrogates current Administrative Directive No. 28, which concerns use of electronic devices in a courtroom.

The comment period for this proposed amendment has been extended. Comments on this proposed amendment should be sent by January 31, 2019, to Emily Wetherell, Deputy Clerk, at the Vermont Supreme Court, at the following address:

Emily Wetherell, Deputy Clerk
Vermont Supreme Court
109 State Street
Montpelier, VT  05609-0801
emily.wetherell@vermont.gov

Proposed Administrative Order No. 47

Proposed Administrative Order No. 47 implements V.R.C.P. 43.1 and related rules that are simultaneously promulgated to provide for video and audio conference participation of parties and other necessary persons, as well as testimony of witnesses, in actions in the civil, environmental, family, and probate divisions of the superior court. See V.R.C.P. 43.1(e), Reporter’s Notes to simultaneous adoption of V.R.C.P. 43.1, and simultaneous amendments of V.R.F.P. 17 and V.R.P.P. 43(b). The technical standards are adopted by administrative order rather than by rule to permit more rapid and flexible change as necessary to take advantage of changing technological capabilities.

Comments on this proposed amendment should be sent by March 23, 2018, to the Hon. John A. Dooley at the following address:

Hon. John A. Dooley, Chair
Special Committee on Video and Electronics in the Courtroom
Vermont Supreme Court
109 State Street
Montpelier, VT  05609-0801
John.Dooley@vermont.gov

Proposed Amendments to Vermont Rules of Civil Procedure, the Vermont Rules for Family Proceedings, and the Vermont Rules of Probate Procedure

The proposed amendment to V.R.C.P. 43(a) reflects the fact that new Rule 43.1 and proposed simultaneous amendments to the family and probate rules, permit testimony to be presented by video or audio conference in appropriate circumstances. The proposed amendment provides expressly that proceedings under Rule 43.1 are an exception to the existing requirement that “testimony… shall be taken orally in open court” unless otherwise provided by specific rules. That provision has been held to prohibit testimony by telephone or other means except by agreement of the parties.  

The proposed addition of V.R.C.P. 43.1 provides a uniform procedure and standards for video or audio conference participation of parties and other necessary persons, as well as testimony of witnesses, in civil actions and in the civil division of the superior court.

The proposed amendment to V.R.F.P. 17 deletes the present text of the rule and the adds new subdivisions (a)-(d) providing that V.R.C.P. 43.1 applies in family division proceedings other than juvenile proceedings under V.R.F.P. 1, subject to specific provisions for certain statutory mental health and guardianship proceedings.

The proposed amendment to V.R.P.P. 43(b) reflects the fact that new V.R.C.P. 43.1, promulgated simultaneously, is applicable in the probate division and permits testimony to be presented by video or audio conference in appropriate circumstances. The proposed amendment provides expressly that proceedings under V.R.C.P. 43.1 are an exception to the existing requirement that “testimony ... shall be taken orally in open court” unless otherwise provided by specific rules.

Comments on these proposed amendments should be sent by March 23, 2018, to the Hon. John A. Dooley at the following address:

Hon. John A. Dooley, Chair
Special Committee on Video and Electronics in the Courtroom
Vermont Supreme Court
109 State Street
Montpelier, VT  05609-0801
John.Dooley@vermont.gov

Proposed Addition of V.R.C.P. Rule 23(g)

The proposed addition of Rule 23(g) provides for the disbursement of residual funds that remain after satisfaction of all claims under a class action judgment or settlement.

Comments on this proposed amendment should be sent by March 23, 2018, to Allan Keyes, Esq., Chair of the Civil Rules Committee, at the following address:

Allan Keyes, Esq., Chair
Civil Rules Committee
Ryan, Smith & Carbine, Ltd.
P.O. Box 310
Rutland, VT  05202-0310
ark@rsclaw.com