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Litigation in Vermont: A unique situation

                                     Samuel Hoar Jr (left) and Ritchie E Berger
                                     Dinse Knapp & McAndrew

Vermont has a tradition of staunch, and often contrarian,                   behind in recognizing a duty of good faith and fair dealing in contract
independence. While Vermonters fought in the Revolution, they were          cases, and has allowed a more limited scope of remedy in such cases
not represented in the Continental Congress; rather, they founded           than in many other jurisdictions. Similarly, in the insurance context,
their own republic. Vermont continues to cherish its independent            the Court repeatedly ducked before finally recognizing a right of
streak; for example, to celebrate the bicentennial of Vermont’s             action for first-party bad faith, and even then imposed a stringent
admission to the union, the legislature authorized commemorative            standard; it has yet to recognize third-party bad faith. In the area of
license plates that celebrated the “1st Republic, 14th State.” A year       punitive damages, the Court has likewise imposed a rigorous
earlier, Vermont (which had voted for a Democrat in a national              standard, making it more difficult for plaintiffs in Vermont to recover
election only once, in 1964) elected a Socialist to Congress. Fittingly,    exemplary damages, particularly from corporate defendants.
his election was made possible by overwhelming support from the                One explanation for this apparently schizophrenic approach may
National Rifle Association.                                                 be found in Vermont’s size. With a population of just over 600,000,
   This tradition has carried over into the legal landscape. The            and perhaps fewer than 500 lawyers actively practicing in its trial
Vermont Supreme Court issued one of the first decisions affirming the       courts, there is less opportunity for the development of the law than
equal protection rights of same-sex couples, and the legislature            in more populous states. In 1996, for example, the Supreme Court
followed that decision with first-in-the-nation civil union legislation.    concluded that principles of comparative fault should apply to strict
Two years earlier, the Court had issued a decision striking down the        product liability cases, but did not decide how they should apply. In
state’s educational funding scheme, paving the way for what has been        the eleven years since, not one case has made its way up to the Court
characterized by critics as a “Robin Hood” scheme. Nor has this             to allow that question finally to be resolved. Thus the law is often less
progressive streak been limited to Vermont’s state courts; one of           well-developed in Vermont than elsewhere.
Vermont’s two federal judges recently ruled the federal death penalty          In sometimes stark contrast to the judiciary, Vermont jurors, every
unconstitutional, only to be reversed on appeal.                            bit as independent-minded as their revolutionary forebears, continue
   In the past decade, the Vermont Supreme Court has staked out a           to earn their reputation for common sense. Vermont juries have
position at the leading, progressive edge of jurisprudence. The Court       generally proved immune to the type of inflammatory rhetoric that
has explored reforms to the jury system, including the use of note          has inflamed jurors in other jurisdictions. Successful trial lawyers
taking and questions from jurors in civil and criminal trials,              continue to score more points appealing to than underestimating
restricting attorney voir dire of prospective jurors and reducing the       jurors’ intelligence. Jury verdicts remain relatively conservative. And
number of peremptory challenges, and even abandoning the                    jurors who are interviewed at the conclusion of their service almost
requirement of unanimity in civil jury trials. Fortunately, the             uniformly report that they have enjoyed their service, that they have
legislature rebuffed the most radical of these “reforms,” and the           taken it seriously, and that their fellow jurors have impressed them
remaining measures appear not to have made much of a difference.            with their intelligence and insight. In short, the jury system in
Nevertheless, critics charge that some Supreme Court justices are so        Vermont appears to be performing admirably.
enamored of their reputations as progressive jurists that they blithely        Finally, no look at the Vermont legal landscape would be complete
champion reforms in search of problems. The penchant for unique             without a brief discussion of the bar. As suggested above, the trial bar
theories and approaches is perhaps best exemplified by a decision           is relatively small; in no small part because of its size, it also remains
involving what the Court acknowledged was a “novel” legal theory,           quite collegial. Collegiality, however, does not interfere with Vermont
in which the Court suggested that the more far-flung a case’s theory,       lawyers’ ability to advocate at the highest level for their clients. Thus,
the more reluctant a trial court should be to dismiss it!                   most visitors to the state’s courts, whether lawyer or client from out-
   Paradoxically, in other areas, the Court has clung to seemingly          of-state, are impressed not only by the collegiality but also by the
anachronistic principles. For example, the Court remains wedded             quality of advocacy.
to joint and several liability, with no contribution among joint               On balance, then, while nobody enjoys having to resort to legal
tortfeasors. This, when coupled with a narrow view of                       process to resolve disputes, Vermont remains a fairly congenial
indemnification, can often place a tort defendant in a difficult            place to find oneself a party to a lawsuit. The legal community
position. Similarly, while many other states have limited the               continues to exemplify the best standards of professionalism. For
application of the collateral source rule, the Vermont Court has not        the most part, participants in the system treat each other with
only rejected attacks on the doctrine, but has extended it to               dignity and respect. Judges are committed to fairness and
contract cases. These decisions, however, do not necessarily suggest        impartiality, while juries generally pay careful attention and decide
a retreat from progressive principles; rather, a cynic might suggest        cases fairly, with a Yankee sensibility that runs to conservatism. In
that the guiding principle is to ensure an injured party maximum            a sense, then, the Vermont jury serves as a check on overly
recovery.                                                                   progressive judicial notions. The result is a well-balanced and
   In fairness, the Court has not been universally progressive. It lagged   sensible approach to dispute resolution.

                                                                   The definitive guide to America’s leading litigation firms and attorneys 283

      Leading litigation firms
      Highly recommended
      Dinse Knapp & McAndrew

      Downs Rachlin & Martin     The level of sophistication and complexity of commercial litigation in Vermont
      Gravel & Shea              has increased over the past few years, and the state is poised to continue this
                                 trend. Lawyers here also engage in a steady and growing stream of healthcare
      Paul Frank & Collins       and employment litigation, Vermont being the largest incorporator of captive
      Sheehey Furlong & Behm     insurance companies in the country.

                                 Highly recommended firms                           for a range of local clientele and also
      Cleary Shahi & Aicher      Dinse Knapp & McAndrew was definitively            represent businesses in other jurisdictions,
                                 characterized by competitors as “highly            including New York, Rhode Island,
      Spink & Miller             recommended” for litigation. Education             Connecticut and Maine. Though recognized
                                 litigation is an important area of focus, and      for a historically strong role in defending
      Theriault & Joslin         the firm defends clients such as the               policyholders in insurance disputes, the firm
                                 University of Vermont, Dartmouth College           has grown beyond these roots in recent
                                 and Vermont Law School in matters ranging          years to incorporate commercial litigation
                                 from student disciplinary proceedings to           matters such as employment, construction
                                 intellectual property litigation. The firm’s       and intellectual property litigation. Vermont
                                 partners also are often retained to handle         Railway is a client and the firm recently
                                 general commercial litigation in areas such        secured a summary judgment affirmed on
                                 as insurance and products liability. Recent        appeal for the Railway in litigation
                                 engagements vary from the firm’s successful        challenging the state of Vermont’s effort to
                                 representation of AMRESCO Commercial               apply statewide environmental zoning laws
                                 Finance in a securitized loan case to its role     to one of the client’s existing facilities and
                                 in the state’s longest domestic relations trial.   proposed facilities. The firm also defended
                                 Additional clients include KeyBank                 SoPakCo and Unaka against potential $6
                                 National Association, Chittenden County            million breach of contract allegations and
                                 Transportation Authority and Fletcher Allen        convinced a jury to issue a $200,000 verdict
                                 Health Care.                                       in favor of its clients. Other clients include
                                    Sources attest that seasoned trial lawyer       Ridgewood Power Corporation, Champlain
                                 John Monahan is “outstanding” in his               Investment      Partners     and    Berkshire
                                 defense of clients facing medical malpractice,     Hathaway Group.
                                 and drug and medical device liability claims.         Peers say the “very smart” Robert “Bob”
                                 Firms also turn to this partner for his expert     Rachlin “has “been around for a long time”
                                 defense against professional malpractice           and “undoubtedly” deserves mention. When
                                 claims. Ritchie Berger is “among the most          not mediating, this senior partner is known
                                 highly recommended litigators in any area.”        for “hand picking” the cases he wants. In
                                 A diverse civil practice keeps Berger active in    one select recent engagement, Rachlin
                                 courts in Vermont and throughout New               defended two Guantanamo Bay detainees.
                                 England. In an issue of much local import,         The firm’s chair of litigation, Robert Luce, is
                                 Berger recently represented William O’Brien,       characterized as a “very smart” lawyer with
                                 one of the lawyers for the Roman Catholic          a “wealth of experience.” While he
                                 Diocese, after he was accused of misconduct        represents clients in a number of general
                                 in relation to his representation of the           commercial and securities disputes, Luce is
                                 diocese in sex abuse litigation. Karen             commended for developing a niche in
                                 McAndrew leads the litigation and education        representing the victims of brain and spinal
                                 practice. She represents a number of the           cord injuries. Marc Heath is considered one
                                 state’s colleges and universities and is now       of the area’s top litigators and counsels
                                 involved in litigation involving students          clients in commercial, construction,

                                 subjected to discipline on behalf of               employment and personal injury suits.
                                 Middlebury College. Sources say Robert                Leading litigators say they “wouldn’t
                                 “Bob” McKierin also adds considerably to           hesitate to recommend” Gravel & Shea.
                                 the firm’s employment practice. He boasts          Established in 1955, the Burlington-based
                                 more than 30 years of experience in state and      firm is one of Vermont’s oldest legal
                                 federal courts both at the trial and appellate     institutions and offers a group of 24 top
                                 levels and often handles mediations and            lawyers who peers say “do a variety of
                                 arbitrations for large corporate employers.        litigation and do it well.” The firm is
                                    Headquartered in Burlington with three          considered to offer expert employment
                                 additional state offices, Downs Rachlin &          counsel both locally and nationally and has
                                 Martin is Vermont’s largest firm and,              carved a niche in First Amendment litigation,
                                 according to sources, also one of the              representing a number of the state’s leading
                                 deepest. The 10 partners and five associates       media      organizations      including    the
                                 in the litigation department handle business       Burlington Free Press. No construction


problem is too complex for the team, which          competence, which he has honed over more          Local litigation stars
represents construction companies such as           than 35 years of practice. His experience is
Fluor Corporation and ADP Marshall, real            broad and includes roles in products liability,   Jeffrey Behm
estate developers, and local contractors and        medical, legal and architectural malpractice,     Sheehey Furlong & Behm
subcontractors. The firm serves as local            securities fraud, antitrust, bank fraud and       S Crocker Bennett
counsel to Federal Express, General Electric,       robbery and conspiracy cases.                     Paul Frank & Collins
Wyeth Nutritionals and Rossignol Ski                   Market insiders agree that Burlington
Company. Other clients include Canadian             firm Sheehey Furlong & Behm has been “an          Ritchie Berger
National Railway, Daimler Chrysler and              outstanding firm” throughout its 81-year          Dinse Knapp & McAndrew
Chittenden Bank.                                    history. The firm represents plaintiffs and       David Cleary
   “Superb trial lawyer” Robert “Bob”               defendants in the full range of civil,            Cleary Shahi & Aicher
Hemley maintains a broad practice with              administrative and criminal matters. A            Robert DiPalma
emphasis on antitrust, criminal defense,            number of banking clients seek assistance in      Paul Frank & Collins
employment, First Amendment, medical                loan disputes and lender liability claims,
malpractice, products liability and personal        which the firm handles in state, federal and      Marc Heath
injury litigation. He also engages in               bankruptcy      courts.    Clients     include    Downs Rachlin & Martin
alternative dispute resolution. Peers say that      Volkswagen of America, Verizon New                Robert Hemley
former US Assistant Attorney Robert “Bob”           England, Merchants Bank, Green Mountain           Gravel & Shea
O’Neill is a “grade-A litigator.” O’Neill           Power Corporation, Burlington Drug                Peter Joslin
maintains a broad commercial practice and           Company and Daimler Chrysler.                     Theriault & Joslin
is experienced in alternative dispute                  There is no disagreement among peers
resolution.                                         that Jeffrey “Jeff” Behm is an “excellent         Robert Luce
   Peers unanimously agree that the 26              litigator.” He practices civil and criminal       Downs Rachlin & Martin
attorneys and 34 support professionals at           matters ranging from government-initiated         Karen McAndrew
Paul Frank & Collins make this a “highly            fraud claims, antitrust cases, personal injury    Dinse Knapp & McAndrew
recommended” firm. The litigation team in           and federal criminal matters, as well as          Robert McKierin
the firm’s Burlington office represents clients     insurance coverage litigation related to the      Dinse Knapp & McAndrew
throughout the state and is often retained to       Comprehensive Environmental Response,
help nearby Canadian clients. Areas of              Compensation,        and     Liability     Act    Elizabeth Miller
expertise include healthcare, employment,           (CERCLA).                                         Spink & Miller
insurance, professional liability, personal                                                           John Monahan
injury and wrongful death and product               Recommended firms                                 Dinse Knapp & McAndrew
liability, mass tort and class action litigation.   Cleary Shahi & Aicher received widespread
                                                                                                      Robert O’Neill
Recent trial successes range from securing a        acclaim for consistent success in the             Gravel & Shea
dismissal for Excel Motorsports and its             insurance and personal injury arenas. The
principal shareholder in a fraud and breach         firm’s six partners handle personal injury        Robert Rachlin
of contract suit stemming from the breakup          claims stemming from auto, truck,                 Downs Rachlin & Martin
of a multi-line Denver motorcycle dealership        machinery and construction and design             John Sartore
to a plaintiff’s victory in an asbestos-related     accidents and the firm has carved out a           Paul Frank & Collins
worker’s compensation suit. A number of             notable niche defending many of the
                                                                                                      James Spink
insurance clients such as The Travelers             region’s mountain resorts, including Okemo
                                                                                                      Spink & Miller
Insurance Group and Union Mutual of                 Mountain Resort and the American Skiing
Vermont turn to the firm, as do a broad             Company, in personal injury suits. Partners
range of other companies, including Bell            also routinely engage in wrongful death,
Atlantic, Ben & Jerry’s Homemade, Boise             products liability, medical and professional
Cascade, Merrill Lynch and Portland                 malpractice and premises liability cases.
Pipeline Corporation.                                  Sources count David Cleary as a member
   Crocker Bennett is “almost exclusively           of the “highest category” of medical
devoted to medical malpractice defense.”            malpractice lawyers the state has to offer.
One leading litigator’s assertion that “he’s        Peers say this expert trial lawyer is “skilled
the number one attorney in the state” in this       with a jury and tenacious” and also
area was widely supported by peers. Though          recognize his mediation and arbitration
the bulk of his work is on behalf of hospitals,     abilities. He serves as defense counsel for the
Bennett also represents physician practice          Dartmouth Hitchcock Medical Center and
groups and individual healthcare providers          its affiliates, Southwestern Vermont Medical

and he has represented plaintiffs in                Center and Washington, Orange and
numerous personal injury cases. Robert              Rutland County Mental Health Services.
“Bob” DiPalma and John Sartore are both                Four-lawyer firm Spink & Miller counsels
praised as “definite A-list” lawyers. DiPalma       plaintiffs and defendants in complex matters
is described as “a very bright, skilled and         throughout the state. The firm is noted for
experienced” commercial litigator who               expertise       in   defending      architects,
“does a great job.” He counsels lenders in          accountants,       lawyers,    and    medical
intellectual property and commercial lease          professionals        against      professional
disputes, represents utility companies before       malpractice claims and for its handling of
the Vermont Public Service Board and                complex products liability matters. A
engages in shareholder disputes. He also            number of transportation companies and
maintains an active creditors’ rights practice.     injured truckers also turn to the firm for
A senior partner with the firm, Sartore is          counsel. The firm specializes in insurance
praised for his general commercial                  coverage litigation and represents insurance

                                                                    The definitive guide to America’s leading litigation firms and attorneys 285

      carriers operating in Vermont and                transportation, products liability and           handling insurance defense cases” on behalf
      throughout New England.                          professional negligence. Market sources also     of clients such as Lexington Insurance,
         Areas of growth include mediation and         describe Elizabeth Miller as a “very bright up   Allstate Insurance and St Paul Travelers.
      arbitration, thanks largely, peers say, to the   and coming star” and one of the firm’s “top”     Other areas of specialty include products
      demand for partner James “Jim” Spink. One        litigators. She concentrates on representing     liability, personal injury and worker’s
      leading litigator said, “Jim is number one for   clients in a broad range of commercial, toxic    compensation litigation.
      his skill as a mediator” and peers               tort and products liability disputes.               Peers say “very good trial lawyer” Peter
      unanimously agreed with this sentiment.             The small litigation practice at Montpelier   Joslin is “clearly one of the top two medical
      Spink is also heralded as an “excellent and      firm Theriault & Joslin is “high on the list     malpractice defense attorneys in the state.”
      top trial lawyer.” He has tried more than 125    for medical malpractice work.” Beyond this       He also handles products liability and a
      cases to verdict, largely in the areas of        profile, the firm is recognized for “routinely   broad range of commercial matters.


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