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

Proposed Order Promulgating Amendments to Rule 4(a) of the Vermont Rules of Admission to the Bar of the Vermont Supreme Court

The proposed amendments to Rule 4(a) add two members to the Character and Fitness Committee. This change is being proposed to allow for more efficient processing of character and fitness report reviews during high-need times and for more members to be available for three-member panels.

Comments on this proposed amendment should be sent by August 13, 2018, to Andrew Strauss, Licensing Counsel of the Office of Attorney Licensing, at the following address:

Andrew Strauss, Licensing Counsel
Office of Attorney Licensing
Costello Courthouse
32 Cherry Street, Suite 213
Burlington, VT  05401
Andrew.Strauss@vermont.gov

Proposed Order Promulgating Conforming Amendments to V.R.C.P. 79.1(e), V.R.F.P. 15(e), V.R.P.P. 79.1(d), and V.R.A.P. 45.1(e)

The proposed amendments conform the rules with general revisions of Administrative Order No. 41, governing Licensing of Attorneys, effective May 15, 2017. In the revision and restyling of A.O. 41, former § 13, Admission Pro Hac Vice, is now designated as § 16 of A.O. 41.

Comments on this proposed amendment should be sent by August 13, 2018, 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 Amendments to V.R.C.P. 16.2 and 26

The proposed amendment to Rule 16.2 adds a reference to the use of a scheduling order provided in the proposed simultaneous amendment of V.R.C.P. 26(b)(5)(A)(i)-(v) and conforms the designation of the provisions of the rule to the format of other rules.

The proposed amendments to V.R.C.P. 26(b)(4) and (5) clarify their provisions and bring them more closely in line with comparable provisions of the Federal Rules of Civil Procedure and the realities of current Vermont practice. The proposed amendments to V.R.C.P. 26(b)(5)(A) provide for automatic pretrial disclosure of all witnesses who will be offered as experts and the nature of their expected testimony. The proposed amendment to V.R.C.P. 26(b)(5)(A)(i) adapts language from the federal rule requiring automatic disclosure of all opinion witnesses qualified and testifying as experts under V.R.E. 702, 703, and 705 who may be used at trial. This disclosure requirement does not extend to lay opinion witnesses testifying under V.R.E. 701. The proposed amendment to V.R.C.P. 26(b)(5)(A)(ii) departs significantly from both prior Vermont practice and F.R.C.P. 26(a)(2) by giving the same treatment to witnesses retained or employed solely to provide expert testimony and to fact witnesses with expert qualifications. The amended rule provides a simplified report requirement for all categories of experts. The proposed amendment to Rule 26(b)(5)(A)(iii) provides that the disclosures under subparagraphs (A)(i) and (ii) must ordinarily be made by stipulation or a scheduling order under Rule 16.2. Otherwise, the disclosures must be made by the earlier of the trial date or the date by which the case is to be ready for trial, except that evidence attacking another party’s evidence must be made within 30 days of that party’s disclosure. The proposed amendments to Rules 26(b)(5)(A)(iv) and (v) adapt the provisions of former Rules 26(b)(5)(A)(i) and (iii) to the disclosure requirements of amended Rule 26(b)(5)(A). Minor conforming amendments have been made in Rules 26(b)(5)(B), (C), and (E). No amendments have been made to Rule 26(b)(5)(D).

The proposed amendment to V.R.C.P. 26(e) adapts provisions of F.R.C.P. 26(e) as most recently amended in 2007, and makes it consistent with the simultaneous amendments to V.R.C.P. 26(b)(5). The new proposed V.R.C.P. 26(e)(1) follows the federal rule in spelling out a general duty to supplement both a disclosure made under V.R.C.P. 26(b)(5) and a response to other forms of discovery. The new proposed V.R.C.P. 26(e)(2) departs from the federal rule by including party-deponents within the duty to supplement.

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

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

Proposed Order Abrogating and Replacing V.R.C.P. 79.2

The proposed amendment abrogates and replaces V.R.C.P. 79.2. The current rule focuses primarily on the recording of court proceedings by news media using conventional cameras and audio equipment for broadcasting or publication. The proposed rule reflects extensive advances in technology that place the ability to record and transmit images and sound in the hands of any person in a courthouse or courtroom with a smartphone or other portable electronic device in his or her pocket.

The rule was developed by a special committee composed of judges, court staff, members of all of the Supreme Court procedural rules committees, and representatives of the media.  Virtually identical rules will replace V.R.P.P. 79.2 and V.R.Cr.P. 53.

Comments on this proposed amendments should be sent by September 18, 2017, 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

A public hearing on this amendment will be held on August 3, 2017 at 11 a.m. in Room 11 of the Statehouse.

Proposed Order Abrogating and Replacing V.R.A.P. 35

The proposed amendment abrogates and replaces V.R.A.P. 35 consistent with the simultaneous amendment to V.R.C.P. 79.2. Rule 35 incorporates the policies and language of V.R.C.P. 79.2, except where the Supreme Court structure and proceedings are different from those in the superior court.

Comments on this proposed amendments should be sent by September 18, 2017, 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

A public hearing on this amendment will be held on August 3, 2017 at 11 a.m. in Room 11 of the Statehouse.

Proposed Order Promulgating Administrative Order No. 46

The proposed A.O. 46 provides for the administrative implementation and performance standards for V.R.A.P. 36, V.R.C.P. 79.2, V.R.Cr.P. 53, and V.R.P.P. 79.2 governing the use of electronic devices in the court.

Comments on this proposed amendments should be sent by September 18, 2017, 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

A public hearing on this amendment will be held on August 3, 2017 at 11 a.m. in Room 11 of the Statehouse.

Proposed Amendments to Rule 26(b) of the Vermont Rules of Civil Procedure

These proposed amendments to Rule 26(b) clarify its provisions regarding identification and deposition of an expert who may testify and bring them more closely in line with comparable provisions of the Federal Rules of Civil Procedure. The proposed amendments have added numbering and make the provisions clearer and consistent with the remainder of the rule. 

THE COMMENT PERIOD ENDED ON MARCH 13, 2017.