1. Title Insurance: If a purchaser of Vermont real estate is borrowing some of the purchase price for the transaction, it is likely that the bank will require that their interest is covered by a lender’s title policy.  Even if a bank is not involved, it may be a wise idea to insure title through the purchase of an owner’s policy.  The cost of title insurance is dependent on the amount of money being borrowed and/or the overall purchase price of the real estate.  To get a general idea of the cost click here for a rate calculator.
2. Insurance Premiums:  The cost of insurance is once again dependent on the size of the mortgage and factors related to the property.  Most banks require a policy that covers the replacement value of the home.  Thus, in insuring Vermont real estate, the total amount covered will likely exceed the purchase price.  Is the property in a flood plane?  This is a very important designation to research prior to contract formation, as flood insurance can significantly increase the overall monthly costs required to purchase the property.
3. Recording Fees: Town clerk’s customarily charge $10 per page for recording mortgages, deeds, property transfer returns and other documents surrounding the transfer of property.  Depending on the complexity of the transaction, these fees can result in several hundred dollars being added to the closing costs.
4. Loan Origination and Processing Fees:  Banks need to be compensated for drawing up the paperwork and conducting their due diligence in processing a mortgage application.  This cost can be upwards of several hundred dollars which will be expected to be paid out of closing proceeds.
5. Attorneys’ Fees:  In most transactions, both the sellers and purchasers are represented by attorneys who assist in the transfer.  These fees in most cases are paid at closing and are either added to the overall costs to the purchaser or deducted from the seller’s expected proceeds.
6. Title Search Fees:  In most cases a title search of the property to ensure marketable title is available for the purchaser is required.  This not only informs the purchaser of what issues may surround the property itself, such as easements, restrictions on the use of the land and permit violations, but is also a requirement of any purchaser that is required or desires to purchase title insurance.
7. Municipal and State Taxes:  As part of the transaction, all municipal taxes need to be caught up at closing.  Many banks also require that an entire year of taxes be paid at closing.  Also, the State of Vermont imposes a “Property Transfer Tax” of 1.45% of the purchase price, which will need to be paid at closing.
8. Real Estate Agent Commission:  A seller in many cases enlists the assistance of a real estate agent to market their property.  It is customary for a real estate agent to collect upwards of 6% of the purchase price as a commission on their work.

The above list is not an exhaustive in detailing all the potential costs of a Vermont real estate closing.  However, it gives the parties to a real estate contract a general idea of what to expect.  Simply put, running calculations based on these figures prior to entering into a contract may assist all parties in ensuring that they are not surprised when they sit at the closing table and see exactly where all the funds are going and what the actual cost for conducting this transaction will be.

The above information should not in any way be construed as legal advice.  Before entering into any real estate contract it is important to consult an attorney in order to understand all the complexities of the transaction.

Attorney Fox argued that you “could drive a truck through the reasonable doubt in this case” and, after 2.5 hours of deliberation, the 12 person jury agreed.

A favorite tool for law enforcement in detecting drivers operating under the influence of alcohol, DUI checkpoints have long been effective in law enforcement netting arrests on busy holiday weekends such as Memorial Day and the 4th of July.  However, drivers would be remiss to believe that these checkpoints are present only to detect potential alcohol based offenses along busy Vermont roads.  Instead, in recent years, law enforcement have honed their skills to detect other offenses, such as drug consumption that can also result in a motorist be inglead off to the mobile command post to be processed for a criminal offense.

Of the most common offenses detected by law enforcement is the possession and consumption of marijuana.  Although possession of small amounts of marijuana have been decriminalized (resulting in only a civil infraction, not a criminal citation for possession of under 1 oz.), the detection of marijuana can now lead to not only a hefty fine, but also increased scrutiny by law enforcement to see if the operator is under the influence of marijuana while driving the motor vehicle.  Although this is not your standard run of the mill DUI investigation, drug recognition experts are being trained at increased levels to be able to respond quickly to a report of a potential driving while high infraction.

These offenses carry with them the same penalties as a driving under the influence of alcohol charge (maximum of 2 years in jail and loss of license for up to 6 months).  Further, even if a motorist is found not be under the influence of marijuana, but is under the age of 21, they can face up to a 6 month license suspension as a result of merely possession a small amount of marijuana.

DUI checkpoints are misleading in name and in purpose.  Law enforcement use these checkpoints to have unfettered brief contact with a magnitude of individuals to detect and arrest those suspected of violating Vermont laws.  Thus, when approaching one of these checkpoints it is important to know that all actions committed by the driver will be heavily scrutinized and that you will not be off the hook if you have not consumed alcohol, but may have something else of interest in the vehicle that a well trained Vermont law enforcement officer may be able to detect.

Let’s first look at the statutory language.

“The operator of a motor vehicle who has caused or is involved in a crash resulting in injury to any person other than the operator, or in damage to any property other than the vehicle then under his or her control, shall immediately stop and render any assistance reasonably necessary. Subsection 1102(g) of this title (stopping not to impede traffic or jeopardize safety; exceptions) governs the location where a person shall stop. The operator shall give his or her name, residence, license number, and the name of the owner of the motor vehicle to any person who is injured or whose property is damaged and to any enforcement officer. A person who violates this section shall be fined not more than $2,000.00 or imprisoned for not more than two years, or both.”

Now let’s apply this language to a scenario:

Bill is driving down a Vermont country road; dirt, dark, cold and snow covered. Bill attempts to stop at an intersection and slides across the road into a telephone pole. Bill is fine, he gets out of the car and takes a quick look around. Assuming there is no damage and clearly no one hurt, Bill drives home.

Telephone repair professional drives by the intersection the next morning, notices the damage to the pole and calls it in to dispatch, who then notify police.

Activate investigation and activate Bill being the target.

Analysis:

By not notifying the power company after the incident of the collision and by not reporting it to police, but instead driving home, it could be alleged that Bill did not “render any assistance reasonably necessary” and therefore could be subject to criminal charges and a license suspension of at least 30 days.

The content in this post should not be considered legal advice and is only for information purposes. If you have a specific legal issue that needs to be addressed, consult with your own private attorney.

“It’s been a labor of love,” said Senior Partner, Evan Chadwick.  “The support we have gotten from the town has been wonderful.  We are excited to open our doors to the community.”

Chadwick Spensley & Fox is a general practice law firm, with offices located in the Vermont towns of Brattleboro, Pittsford, Randolph and now Chester.

“We handle all forms of legal representation,” said Chadwick.  “From real estate, to estate planning to litigation in criminal, family and civil courts.  We have experienced professionals able to assist in all facets of the law.”

Consultations are by appointment only and can be scheduled by calling 802-374-0049 or by visiting chadwickandspensley.com.

Although the law office is complete, the remainder of the building remains under construction, which will hold two residential apartments; a 3 bedroom 1.5 bath upstairs, and a 1 bed, 1 bath downstairs.  

“It’s impossible to nail an exact deadline for completion at this time,” said Chadwick.  “The hope is to be accepting rental applications by the end of the year.”

Although the principle of the trust can revoke this instrument at any time during their life, things become much more complicated if such a revocation does not occur. In these circumstances, a trustee and executor of an estate are faced with the difficult task of reconciling what holds precedent, the will, trust or a combination of both.

14A VSA § 604-Contesting validity of trust after death.

After the death of the settlor, a party can contest the validity of the trust within 3 years after death. Evidence can be presented to the Probate Court as to why a trust should be considered. Such evidence could include but is not limited to:

1. A divorce order that proceeded the date of the trust: This is especially relevant in cases where the primary beneficiary is the former spouse;
2. A subsequent estate planning document such as a will that aims to convey similar property that is set forth in the terms of the trust.
3. Written intent by the donor as to their intent to change the terms of the trust or their intent to outright revoke all terms.

Vermont estate planning should always be considered an open door while an individual is alive and their personal and professional circumstances remain fluid. Ensuring that estate documents are regularly updated is a good way to avoid potential pitfalls such as they forgotten trust. Although some time and expense may need to be regularly incurred, it beats the alternative of leaving your loved ones with a tangled web of estate documents that may hold little relevance to the present, but who could still hold legal precedent in the eyes of the law.

Housing Discrimination Complaints Increase

A significant portion of the new cases involve complaints surrounding housing. Aggravated by the COVID pandemic and the moratorium on evictions, housing disputes have been developing for years and, with the eviction stay lifted, many of these cases are just recently weaving their way through civil court.

Big Hartman, the Executive Director of the HRC argued that they need to double their staff to address the record setting year. Currently, the HRC has 4 attorneys, 3 which investigate complaints and 1 who litigates cases in front of the Vermont Superior Court.

How do Human Rights Commission Complaints Resolve?

9 VSA Chapter 141 provides that a complaint brought before a judge or jury in the county the allegations occurred can result in a finding of discrimination and an award of damages, attorneys fees and costs.

Many HRC complaints resolve through negotiated agreements between the parties. The HRC is ordered by statute to remain neutral in their investigation and to only issue their findings which will either support a complaint to be filed in civil court or for the matter to be dismissed.

How Can Landlords Defend Themselves?

Those facing a HRC complaint have the right to counsel and the right to present evidence in support of their defense. It is not uncommon for a tenant to file an HRC complaint after they have learned that they are going to be evicted. When allegations of discrimination are brought, after the initial investigation phase, and a recommendation of a finding for discrimination, the matter can become public record. It may be important to evaluate this potential blemish on one’s business reputation in determining what the appropriate course of action in charting either a defense to the charge or a way to minimize the impact the HRC complaint will have on your business.

The foregoing content is for informational purposes only and should not be considered legal advice. Any specific legal questions should be directed to a Vermont licensed attorney.

Intestate Estate

Dying intestate simply means death without a will. In these cases, the distribution of assets can be as complicated as your family dynamics.

14 V.S.A. § 311 provides that should a decedent pass without a will, the entire estate shall pass to the surviving spouse if: (1) there are no descendants (children) of the decedent or (2) all descendants are also descendants of the surviving spouse. In this scenario, all assets, including real estate, investment accounts and personal property will, after a judge’s decree, pass to the spouse.

What if I Have Children From a Prior Relationship?

The complications of an intestate estate begin to magnify when the decedent has children that are not the children of the surviving spouse. Subsection (2) of 14 V.S.A. § 311, provides that should this scenario occur, the surviving spouse will receive 50 percent of the decedent’s estate, while the surviving child or children will split the other 50 percent.

What if I Have No Children and No Surviving Spouse at Time of My Death?

Here is where things get real complicated. If you pass without any children or spouse that survive you 14 V.S.A. § 314 kicks in, which provides the following distribution priority:

(1) to the decedent’s parents equally if both survive or to the surviving parent;

(2) to the decedent’s siblings and the descendants of any deceased siblings by right of representation;

(3) one-half of the intestate estate to the decedent’s paternal grandparents equally if they both survive or to the surviving paternal grandparent and one-half of the intestate estate to the decedent’s maternal grandparents equally if they both survive or to the surviving maternal grandparent and if decedent is survived by a grandparent, or grandparents on only one side, to that grandparent or those grandparents;

(4) in equal shares to the next of kin in equal degree.

How Long Can It Take to Probate an Intestate Estate?

Depending on the complexity of the estate, probating an estate can take several months to several years. The length of this process will be dependent on many factors, including the complexity of the family tree and whether there are any disputes as to distributions. It is not uncommon for relatives of an intestate estate to make claims for certain assets that require a judge to weigh in on the validity of that claim. Meanwhile, the estate remains dormant, and the assets frozen (with the exception of paying estate expenses).

Just Do it

This post only touches on the many complexities of an intestate estate. The simple math of this analysis is this; regardless of your asset picture, drawing up a will can avoid much of the heartache, stress and expense that your family will endure if you elect not to. A Vermont will is not as scary as it sounds and can be simple and straight forward, the only thing more simple then that, is the potential landmines that you will leave your loved ones if you don’t.

The content here should not be construed as legal advice. Any specific legal questions should be directed to an attorney licensed to practice in Vermont.

How Long Do You Intend to Own the Property?

The first question you should ask when analyzing refinance options is how long you intend to own the subject property. If your intent is to sell the property in the next 5 years, it may not be worth the cost of refinancing (more on that later). If you intend to hold the property for the long term, accepting a reduced interest rate may be worth the upfront cost.

How Much Lower Should My Refinanced Rate Be?

A general rule, is that in order to make a refi worthwhile, you must enjoy at least a 1% reduction in your interest rate. Given that rates currently sit at 6.69% this would mean that your original mortgage would need to have been 7.75% (as they were in November 2023) in order for a refi to make financial sense.

What is the Cost to Refinance?

Fees for a refinance can vary, depending on your location and the financial institution you are using. It is also important to understand that commercial refinances can be more expensive then residential, as often times banks will require points to be paid (a percentage of the refinanced amount) along with increased prices on appraisals as compared to residential refis. These closing costs can easily exceed $10,000 in certain circumstance. Be sure to get a good faith estimate of closing costs early in the process so you can understand the ball park costs and compare them with the benefit of the reduced interest rate.

Simply because Vermont real estate rates are dropping does not mean that they will continue to do so. Mixed messages from the Federal Reserve on when and how much rates will continue to drop remains an open question. If you are considering a refi in Vermont, don’t fall into the interest rate trap, without running all the math to determine whether it makes sense now, or, if it is better to wait it out for a better deal.

The content in this post is for information purposed only and should not be considered legal advice. Any specific legal questions should be directed to a Vermont licensed attorney.

Can Anything Be Done to Reduce My Tax Bill?

32 VSA § 4403 provides for a limited window each year to appeal your tax appraisal. The statute provides only 14 days from the receipt of the valuation to request this appeal to the board of civil authority. Any untimely appeals would be required to wait until the following year before being heard.

Inspection Requirement

The statute provides that at least members of the board shall inspect the property within 30 days of the hearing. This site visit is required before an appeal determination is rendered.

Appeal to Director of Civil Court

Should the taxpayer disagree with the board’s determination, they have a right to appeal to the director of the civil court in the county where the property is located. This appeal must occur within 30 days of the board’s decision and shall be filed with the Superior Court.

What Can Be Done to Prepare for a Vermont Real Estate Tax Appeal?

There are no hard and fast requirements for evidence to be presented to the board of civil authority. However, in order to best argue a reduction in the taxed value, enlisting the services of a real estate appraiser can be the most compelling evidence.

Appraisers are qualified to determine a fair market value of the property and, if requested, to testify as to their findings in front of both the board and director of the superior court. A list of certified Vermont real estate appraisers can be found HERE.

This is not legal advice and should not be construed as such. All legal questions should be directed to a licensed Vermont attorney.

So, what happens when an officer fails to follow the script? In a recent Vermont Superior Court case in Windham County, the presiding judge found that the officer’s deviation from the implied consent rights script warranted a suppression of the refusal and a dismissal of the civil suspension.

Ad Lib at Your Own Peril

Defendant argued that the officer informing him that regardless of what the breath test showed, he would be facing a “case” was confusing enough to cloud the Defendant’s judgment in determining whether to submit to a test or not.

The Court found that implied consent rights must be strictly interpreted and that the deviation in this matter was substantial enough to effect Defendant’s decision making ability. The court referred to the DUI affidavit, stating that nowhere in this form was their a requirement by the officer to inform the Defendant that regardless of his breath test results, he would be charged with a crime.

Implied Consent Rights are Your Rights

It is important for any suspect to a Vermont criminal investigation to know all of their rights so they can make an informed decision. Although not as clear as other rights afforded suspects, such as Miranda, Implied Consent rights hold substantial weight in the eyes of the law if they are not followed. Holding law enforcement accountable, even in times where the officer is proceeding in good faith, is essential to ensuring that the rights afforded defendants do not diminish over the passage of time, especially when it comes to the gathering of such a crucial piece of evidence in any Vermont DUI case.

According to a January, 2024 press release, existing companies have 1 year to provide the required filing, while new companies shall have 90 days from inception. All LLCs, S-Corps and other business entities that are for profit fall under this regulation. There are some exceptions for sole proprietorships and non-profit entities.

The filing is not an annual requirement. However, if there is a change in ownership, an amended filing identifying the new owners may be required.

For more information on filing requirements and to begin the filing process click HERE.

What Is the Reconstruction Process?

1. The responding officer’s analysis

The first part of the reconstruction process is to evaluate what has already been investigated by law enforcement. In most cases, an investigating officer will have already issued a report on what they determined occurred, including a diagram of the accident, witness statements, and a determination, if possible, of who was at fault.

In most cases where a reconstruction expert is needed, the fault determination remains up in the air. This does not stop an officer from rendering an opinion, but it is important to understand that this “opinion” may be based on limited training and experience and is subject to reversal should an expert reveal gaps in the evidence found and the determinations made.

2.  Photos of the scene

One of the initial independent tasks of an accident reconstruction is to take independent photos of the scene of the accident. Relying on others’ photos is not a prudent way to reach an independent determination.

3.  Anatomy of the crash

Determining the inner workings of the accident but reviewing the evidence left on the scene is a key component of coming to a liability opinion.  I thorough reconstruction will include the following analysis:

i. Perceived vs. first possible perception of risk

Concluding where the first perception of the risk could have occurred and where it did occur is a key step in understanding driver reactions. This determination can be measured by evidence left on the road, such as skid or brake marks that can show when the initial action of attempted avoidance occurred.

ii. Point of Engagement (aka impact point)

When an accident involves a collision between two or more vehicles, determining the point of impact can be a more complex task than it initially appears. Finding the point is heavily reliant on where the most damage on the vehicle is located. This impact point is often where most of the damage occurs.  As a result, a skilled reconstructionist can take this information and compute where on each vehicle the initial impact occurred, which can tell a lot about where they were positioned on the roadway.

iii. Final Resting Position

Where the vehicles eventually end up is also a crucial component to reconstructing the accident. This can assist in determining speed, location, and angle of impact. However, there are many variables to this determination, including the surrounding landscape that can cast doubt as to the accuracy of the analysis of the final resting position as being definitive proof of location and how fast each vehicle was traveling at impact.

4. Measuring the length of breaking to determine speed

Skid marks found on the blacktop are key for investigators to determine the speed of a vehicle before it begins evasive maneuvers to avoid a collision. A solid reconstruction report will not only contain thorough photographic evidence of the length of breaking but will also include an in-depth analysis of the quality of and type of tires that can play a substantial role in the length of the skid marks.

5. The black box

Black boxes date back to 1994 when certain makes began installing them. The National Highway Transit Safety Association (NHTSA) has been collecting data from these boxes after accidents since the early 2000s. These devices are designed to record data surrounding the operation of the vehicle, including speed, braking, and steering, all of which can be utilized by the expert in developing their final causation opinion.

Reconstructing a Vermont auto accident is no easy task. The tools articulated in this post are but a few of the investigative techniques law enforcement and private experts use to determine fault. It is important to utilize these reports in a manner that shows exactly who cause the car accident in order to litigate successfully a personal injury claim involving operational negligence.

The announcement by the Federal Government that they intend to take cannabis off its schedule 1 classification seems logical. Considering that cannabis legalization has found its way to the desk of many governors, it was only a matter of time until marijuana, that has long shared the same classification as heroin and LSD, be classified as less serious, although still federally illegal.

Vermont passed a legalization law in 2022, becoming the 11th state to do so. Cannabis retail stores have been popping up all over the State ever since, allowing anyone over the age of 21 the ability to purchase a multitude of cannabis based products. Despite the ease of posession, the concern for the impairing effect that marijuana can have on operators of motor vehicles, continues to be a significant concern for law enforcement.

Driving While High Is as Illegal as Driving While Drunk

The DUI statute for driving while under the influence of marijuana carries the same maximum penalty ( 2 years in jail) as the DUI-alcohol statute. For a law enforcement officer to charge someone with a weed DUI, they must show that the operator was “under the influence to the slightest degree”. Any level of impairment is sufficient to meet the statutory requirements and subject the driver to a mandatory 90-day license suspension and a criminal conviction on your record.

How Does Law Enforcement Prove Impairment?

There is no per-se limit on cannabis DUIs. This differs from the .08 limit in alcohol DUIs. In response, marijuana DUI investigation focuses more on an officer’s observations and specialized training in determining impairment. Although the classic Cheech and Chong scene, where the officer approaches the two stoners who are lost in their van in a giant plume of smoke, such apparent evidence of consumption is not needed for an officer to reach an arrest decision.

Request or Demand for Blood.

An officer can also request that a suspect submit to a blood test in order to determine the presence of cannabis in their system. The Implied Consent laws for refusing to submit to a blood test are the same as an alcohol test refusal (six-month suspension for a first offense, with elevated penalties for subsequent offenses).

Depending on the circumstances of the arrest, an officer may also be able to apply for a search warrant from a judge if suspect consent is not obtained. This process is often initiated in cases where a serious injury or death has occurred, or if the suspect has prior DUI (alcohol or cannabis) convictions.

Just Because You Can Doesn’t Mean You Should

Despite cannabis being available for legal purchase throughout many Vermont towns, this permitted consumption does not extend to the road. So when you purchase that pack of joints from your neighborhood weed dealer keep in mind, that when it comes to driving while impaired, Vermont law enforcement will not look the other way just because you chose weed over booze.

The foregoing content is for informational purposes only and should not be considered legal advice. Readers with specific legal questions should consult with their private attorney.

However, even under optimal conditions and clear instructions from the officer, the FSTs are not conclusive proof of impairment. Although the FSTs can serve as one piece of a much more complex DUI puzzle, the burden on the state to prove each of the elements of DUI beyond a reasonable doubt require far more then an officer’s observations of the FSTs.

Can Prior Injuries or Diagnosis Explain FST Failure?

In some cases, the lack of balance, which plays a significant role in all 3 of the FSTs, can be explained due to medical conditions that impact a defendant’s ability to maintain a balanced position, especially under the stressful circumstance of a DUI investigation.

Have you suffered a lower body injury? Have you suffered a concussion or other brain injury. Do you have high sensitivity to light or occasions of Vertigo? If so, it is important to gather records of these injuries through your medical providers in order to provide some context as to the failure of the FSTs.

Did a Car Accident Occur Prior to FSTs?

In some cases, a defendant is requested to perform FSTs shortly after they were involved in a motor vehicle accident. Although there is no hard and fast rules prohibiting FSTs from being taken after an accident has occurred, the injuries sustained as a result of the crash can cast into doubt the validity of the tests.

Even in situations where the defendant is not transported to the hospital, it is still important to be evaluated by a medical professional in order to determine the extent of the bodily damage that was sustained. If a defendant declines all treatment, this important evidence as to their condition at the time of performing FSTs is lost, making it harder to explain to a judge or jury the impact this accident had on balance and the comprehension of officer instructions.

Age and Weight Can Raise Doubt as to FST Performance

Although not considered definitive, the National Highway Safety Association has found that individuals over the age of 65 and those who are 50 or more pounds overweight may have a more difficult time performing the FSTs even if not under the influence. Officers are encourage to take these factors into consideration when determining probable cause for a DUI arrest.

Even if the defendant is still arrested, using the NHTSA recommendations can cast doubt as to the validity of the FSTs, especially in cases where additional medical conditions are also a concern.

Gather Your Medical Records Early in a DUI Prosecution to Determine Whether a Defense Exists to the FSTs

It is not illegal to be off balance. Explaining the underlying cause of imbalance through medical testimony can be an impactful way to argue to a jury that the results of the FSTs in a Vermont DUI prosecution should be significantly discounted, or, in some cases, all together ignored. By putting together a medical chronology that supports a medical defense to a DUI, a defendant may be able to show that alcohol or drugs were not the underlying factor of their roadside behavior.

The information contained in this post is for informational purposes only. Any reader who has specific questions about the DUI or any other legal process should consult with their own private attorney.

Collateral Witnesses

One convincing way to argue against a malingering defense is to have witnesses testify that knew the plaintiff both before and after the injury occurred. Co-workers, friends, religious leaders, and many others can provide credible testimony as to the changes the individual exhibited in response to the injury. These witnesses can also provide evidence as to the credibility of the plaintiff to show that they would not lie about their medical condition.

Instances where the plaintiff endured other illness or injury are especially relevant. Testimony that the plaintiff “fought through” discomfort to get a job done, or to meet their family obligations can be impactful in showing that the injury sustained in this case is real and substantial.

Lack of Prior Medical History

If there is a lack of prior medical history in similar circumstances, it is important to present this evidence. If, in years past, the only medical treatment a plaintiff received was for basic health maintenance, having your primary care provider testify to such facts will show that there is no pattern of seeking unnecessary medical treatment, only someone who is focused on their general health and well-being.

Malingering Tests

Although there are no diagnostic tests that can specifically identify a patient who is malingering, there is a battery of tests that are used by medical professionals to identify the common symptoms. These tests, according to the National Library of Medicine include:

Lab Studies

• Complete blood cell (CBC) count
• Serum electrolytes.
• Renal function tests
• Liver function tests (LFTs)
• Blood alcohol level
• Blood and urine toxicology screen (may also rule in malingering in case of drug abusers seeking opioids)
• Computed tomography (CT) scanning or magnetic resonance imaging (MRI) of the brain should be considered to rule out organic brain disorders

Other Tests

• The Minnesota Multiphasic Personality Inventory (MMPI)
• The F-scale
• Test of memory malingering
• The negative impression management scale
• Rey 15-item test
• The temporal memory sequence test
• Symptom and Disposition Interview (SDI)

It may be prudent for a patient to have a conversation with their medical providers about these tests to see if any of them have been used during their treatment. These tests are often designed to be feathered into the course of normal treatment in a way that does not tip off the patient that the tests are designed to identify malingering. This method can be the most credible way to establish through medical testimony the lack of malingering.

Using Malingering Against the Defense

Alleging that a patient is lying about their condition to gain a benefit can be a tricky proposition. In some cases, this defense can be turned back on the defendant when the testimony of lay witnesses and medical professionals proves otherwise. In those cases, it can be pointed out that the defense is attempting to avoid responsibility for causing an injury by calling the victim a liar. This can be pointed out to the jury at trial, which can further enhance the damage that has been done to the plaintiff and further entice a Vermont jury to increase a damages award.

The content above is for informational purposes only and should not be considered legal advice. Readers with specific legal questions should consult with their own private counsel.

Have I Reached End Medical Result?

You may be feeling better and, as a result, feel that it is time to put this matter behind you and conclude your claim. It is important not to rush this. If your care providers recommend follow-up tests or care following through on these recommendations is key to ensuring your recovery is complete. Keep in mind, that once you settle the case, you can’t go back if new symptoms arise. This can especially be true in brain injury cases, where the full extent of the severity of the injury may take weeks to fully understand, and months to years depending on the grade to fully treat.

Is There a Risk of My Insurance Seeking Reimbursement (a.k.a. a Subrogation Claim)?

One of the trickiest hurdles in reaching a personal injury settlement is determining who will be responsible for the medical bills associated with treatment. When a settlement is reached, the insurer is often paying a lump sum that settles all of their liability, including medical bills.

In most cases, a subrogation claim will be filed by your insurance company onto the responsible party’s carrier. However, if you have already settled your claim and signed a general release, freeing the carrier from any further liability, you may be on the hook for this claim. Medicare and Medicaid are especially thorough in issuing these claims. It is important to understand that should you be covered by government insurance, there is often an obligation to inform them of your potential settlement and to allow them to claim reimbursement that will need to be settled before you receive your cut of the settlement proceeds.

Do I Know the Limits of the Responsible Party’s Coverage?

The minimum auto insurance coverage limits in Vermont are $25,000 per individual and $50,000 per incident with $10,000 in property damage coverage. Many drivers carry much higher limits. You have a right to know this information before you begin negotiating a settlement. If the injuries are severe and the coverage is low, you may need to look beyond the offending party’s coverage to seek full compensation for your injuries. This may be accomplished if you carry underinsured coverage on your auto policy, which allows you to seek reimbursement from your insurance company for amounts that exceed the policy limit of the liable party.

Take Your Time When Evaluating Whether to Settle or Litigate a Vermont PI Claim

Just because an insurance adjuster wants to settle a case and is waiving around a quick payment to you in exchange for a release of your claim, does not mean you need to jump in immediately to negotiations. Taking your time, to fully understand the degree of your injuries, the risk of a subrogation claim, and understanding the policy limits of the liable party are all prudent steps in ensuring you get a just result in your Vermont PI claim.

The foregoing is for informational purposes only and should not be considered legal advice. Readers of this content who have specific legal questions should seek advice from their personal attorney.

How Does a Judge or Jury Decide Liability?

12 VSA § 1036 states that “[C]ontributory negligence shall not bar recovery in an action by any plaintiff, or his or her legal representative, to recover damages for negligence resulting in death, personal injury, or property damage, if the negligence was not greater than the causal total negligence of the defendant or defendants,…”

To provide context to this, consider if a Jury finds that one driver was 60 percent liable for a car accident, while the other driver was found to be 40 percent at fault. If the damages sustained by the 40 percent liable party were found to be $100,000, the end result would be an award in that party’s favor of $20,000 (the difference between 60k and 40k or 60% and 40%).

How Does a Traffic Ticket or Criminal Citation Play Into This Calculation

In most instances, a personal injury case will take a back seat to any criminal prosecution and will only be heard after the criminal case has been resolved. This procedure is based on a criminal defendant’s 5th Amendment right to remain silent, which they do not enjoy in a personal injury action.

Certainly, the outcome of the criminal case will play a role in liability and, in some cases, may be fatal to a claim.

A traffic infraction does not enjoy such protections and, in most cases, will be resolved before the personal injury case. This legal realm will provide a bit of a preview for the larger PI case and is an important step in evaluating liability. If a defendant is found not guilty of their traffic violation, this can help bolster the case that the other party is liable for the accident.

Even if the driver is found guilty of the offense, this may not, in all cases lead to a liability determination. A judge or jury would still need to evaluate all of the other factors surrounding the accident before they dole out the percentage they feel each party was responsible for in creating the circumstances surrounding the accident.

Just Because You’re Charged Does Not Mean You Are Liable

Evaluating the strength of a personal injury claim in Vermont can be a complicated matter when there are companion criminal or traffic ticket charges. However, each case is unique and must be reviewed independently of others to truly make such a determination. The result of this review may just surprise you when it is ultimately determined who remains at fault for this unfortunate event.

This content is for informational purposes only and should not be considered legal advice. Readers who have question about their own legal matter should consult with their personal attorney.

The science of traumatic brain injuries (TBI for short) continues to evolve as new studies release the long term impacts these injuries can have. What was simply classified years ago as “having your bell rung”, it has now been uncovered that the potential long term consequences of a TBI can be drastic if untreated. For those who have suffered an injury as a result of a car accident in Vermont, it is important to know how medical professionals commonly assess the presence and degree of a TBI.

Glasgow Coma Scale

The Glasgow Coma Scale is a 15 point test that can measure the degree of a TBI by asking measuring a patients ability to follow instructions and their fluency in moving their limbs after impact. Abilities are measured on a scale from 3-15. The higher the score, the less severe the TBI.

Question and Answer

Valuable information can be obtained simply by asking specific questions as to the patients response to the trauma and what they can and cannot remember. It is essential that the patient recall as accurately as possible what symptoms they felt, including lose of consciousness, lack of memory, and any describing factors that can explain how the injury was sustained.

Is Imaging Needed?

If there is concern that structural damage has been sustained to the brain, a CT scan or MRI may be necessary. This imaging may not pick up a TBI, as many of these injuries are not visible even with a more intensive MRI scan. However, if serious damage has been done, such as a brain bleed, this scan be be crucial in minimizing the overall damage of the TBI.

Pressure Monitoring

In some more serious cases, the swelling of the brain can cause significant pressure as it presses against the skull that can increase the damage sustained. In these cases, a monitoring device, known as a Intracranial pressure monitor, can be inserted to evaluate the degree of this pressure.

That Headache After a VT Car Accident May Be Something More

Often times, victims of a car accident in Vermont will attempt to self treat themselves, thinking that over a period of time they can “walk off” any injury they sustained. However, when it comes to the brain, it is important not to simply believe that it will heal with rest. With the improvements in medical treatment, TBI’s can be diagnosed and treated more effectively then in year’s past, if you take that initial step of accurately reporting all the symptoms to your medical provider.

The content contained in this post is for informational purposes only. If you need specific legal advice about your injury, consult with your own private attorney.

Journaling is a great way to memorialize your thoughts. From what you ate, to vacation ideas, to how you feel when you roll out of bed, a journal can provide a great reference point when you are trying to refresh your recollection. If you have suffered an injury as a result of a Vermont car accident or other type of personal injury, a disciplined journal of your treatment and symptoms can be key in properly advocating for a just resolution of your claim against the responsible party.

Tell Your Whole Story Not Just Your Story of Pain

A personal journal should not just surround your injury and treatment, it should cover all aspects of your life. This provides more context for how you have lived your life both before and after the injury, which can be used to compare the new limitations you may suffer as a result of the injury. A narrative form of journaling can also add authenticity to the limitations you may suffer (Ex. “before the incident, I was playing golf 3 days a week and taking 60 minutes of Yoga. After the incident, I am unable to walk more than 9 holes and my Yoga classes are non existent because of the pain in my back”).

Describe How Things Feel

Journaling is a great way to put into words the type of feeling you are experiencing not just its existence. “A burning sensation that runs down my leg, forcing me to sit down” provides far more context then simply stating “pain in my leg”.

Articulate Your Response to the Pain

Pain is not simply the existence of discomfort, it is also the response to it. If dizzy spells have forced you to stop reading, or you have had to sit down while playing in your yard with your kids because of a sudden back spasm, it is important to note this. The fact that your life has changed due to this injury can be as, or more important, then the pain itself.

Journal Every Day

Don’t let excuses get in the way of your spending at least a couple minutes each day reducing your thoughts and feelings to paper. Studies have found that journaling can have a substantial positive effect on your emotional well being.

If you are also enduring a personal injury, the positive impact can be even further enhanced. Ensuring that you are able to recount the entire recovery progress in a way that is both credible and expansive well greatly assist you in advocating for a fair resolution of your personal injury claim.

This article is for informational purposes only. If you need specific legal advice, seek out your own private attorney.