Vt. Memo to the Bar, Apr. 8, 2021

SUPREME COURT OF VERMONT

OFFICE OF THE COURT ADMINISTRATOR

PATRICIA GABEL, ESQ. Mailing Address

State Court Administrator Office of the Court Administrator

patricia.gabel@vermont.gov 109 State Street

Montpelier, VT 05609-0701

Telephone (802) 828-3278

FAX: 802 828-3457

www.vermontjudiciary.org

TO: Members of the Vermont Bar

FROM: Patricia Gabel, Esq., State Court Administrator

RE: Promulgated and Proposed Rule Amendments, Odyssey File and Serve and Public

Portal Information, Filing of Exhibits & Other Miscellaneous Info

DATE: April 8, 2021

For your information, please find:

• AO 49 Amendment - Declaration of Judicial Emergency and Changes to Court Procedures 4-8-21

• Promulgation Order Adding Rule 11(a)(3) to the Vermont Rules of Criminal Procedure

• Promulgation Order Adding Rule 73 to the Vermont Rules of Probate Procedure

• Proposed Order Amending Rule 7 of the Vermont Rules of Criminal Procedure

• Odyssey File and Serve and Public Portal Information

• Filing of Exhibits

• Updated Court Forms

• Obligations Under A.O. 41

• eCabinet Registration

I. PROMULGATED RULE AMENDMENTS

a. AO 49 Amendment - Declaration of Judicial Emergency and Changes to Court Procedures 4-8-21

This Order was promulgated on April 8, 2021, effective immediately.

This order further amends A.O. 49, which declared a Judicial Emergency on March 16, 2020, in

response to the COVID-19 pandemic.

The April 8 amendment gives courts flexibility during the judicial emergency to move criminal

and civil jury trials to venues that can accommodate jury trials consistent with public-health

recommendations. The Chief Superior Judge and Court Administrator have authorized several

court buildings in the State for jury trials and the Judiciary anticipates that the number of

locations approved for jury trials will continue to grow. However, some court buildings will likely

not be cleared for jury trials under existing public-health guidelines due to physical space

restrictions that prevent compliance with current social-distancing guidelines, considerations

relating to their ventilation systems, or both. As a result, under current pandemic conditions, some

counties have no courthouses suitable for jury trials. In other counties, although a courthouse may

be approved for jury trials, the demand for criminal and civil jury trials is far greater than can be

accommodated in that courthouse. This amendment enables the Chief Superior Judge to ensure

that parties in criminal and civil proceedings have access to jury trials in courthouses that can

accommodate those proceedings in as timely a way as possible. The Judiciary continues to

prioritize jury trials in criminal cases in which the defendant has been detained pretrial, but courts

may set civil cases as back-up to scheduled criminal cases where appropriate. Civil litigants are

encouraged to agree to six-person civil jury trials in those court buildings that are authorized by

the Chief Superior Judge and the Court Administrator for six-person jury trials.

The full Order and other updates regarding the Coronavirus Disease 2019 (COVID-19) and

court operations are available at [https://www.vermontjudiciary.org/about-vermontjudiciary/covid-19-and-court-operations]

b. Promulgation Order Adding Rule 11(a)(3) to the Vermont Rules of Criminal Procedure

This Order was promulgated on April 5, 2021, effective June 7, 2021.

Rule 11(a)(3) is added to conform to the Court’s direction in In re Benoit, 2020 VT 58, __

Vt. __, __ A.3d __. In Benoit, the Court held that with the State’s agreement and the trial court’s

approval, defendants may preserve a post-conviction relief (PCR) challenge to a predicate

conviction when pleading guilty to an enhanced charge by stating on the record at the change-of-

plea hearing an intent to challenge one or more of the convictions through a PCR petition,

specifying the convictions to be challenged, and stating the basis for the challenges. Under the

proposed language, if a defendant pleads guilty or nolo contendere while preserving the PCR

claim, with the consent of the state and the approval of the court, the plea will be analogous to a

conditional plea under V.R.Cr.P. 11(a)(2). The present amendment prescribes the procedure by

which a defendant may preserve such a challenge for post-conviction review.

c. Promulgation Order Adding Rule 73 to the Vermont Rules of Probate Procedure

This Order was promulgated on April 5, 2021, effective June 7, 2021.

Rule 73 is added to implement 14 V.S.A § 118, added by Act 195, Acts of 2017 (Adj. Sess.),

§ 2, providing for referral of a Probate Division matter to the Civil Division, with the consent of

the Civil Division.

II. PROPOSED RULE AMENDMENT

(NOTE: THE FOLLOWING AMENDMENT HAS BEEN PROPOSED AND HAVE NOT

BEEN APPROVED BY THE SUPREME COURT.)

Proposed Order Amending Rule 7 of the Vermont Rules of Criminal Procedure

The proposed addition of subdivision (d) addresses amendment of an indictment or information

prior to trial, including late-stage amendments when a case has been scheduled for final pre-trial

conference, jury selection, and trial. The proposed amendment allows the court on its own or in

response to defendant’s motion to strike the amended information or indictment if it would cause

undue delay or if defendant’s substantial rights would be prejudiced.

Comments on this proposed amendment should be sent by June 8, 2021, to Hon. Thomas A.

Zonay, Chair of the Advisory Committee on Rules of Criminal Procedure, at the following

address:

Honorable Thomas A. Zonay, Chair

Advisory Committee on Rules of Criminal Procedure

Thomas.Zonay@vermont.gov

III. ODYSSEY FILE & SERVE AND PUBLIC PORTAL INFORMATION

As of April 1, 2021, there is a new efiling use fee structure for users of Odyssey File & Serve

(OFS). The new per case fee is $14 per filer or firm, payable upon a party’s first filing after April

1, 2021. This replaces the previous $5.25 fee per envelope model. The Judiciary encourages all

practitioners and others interested to learn more at www.vermontjudiciary.org/efiling

Currently, all trial courts, the Environmental Division, and Judicial Bureau are using Odyssey and

accepting electronic filings through Odyssey File & Serve. Please use the following links to

access Odyssey electronic filing and portal systems and for more information.

Odyssey File & Serve. Odyssey File & Serve (OFS) is the platform through which you will

electronically file with the courts. To access OFS, please visit

https://vermont.tylerhost.net/ofsweb You can access user guides through the “User Guides” link

in the “Self Help” window. You can also access docket specific user guides and a new Frequently

Asked Questions on the judiciary’s website at https://www.vermontjudiciary.org/about-vermontjudiciary/electronic-access/electronic-filing For technical support regarding Odyssey File &

Serve, please contact Tyler Technologies at 800-297-5377 or efiling.support@tylertech.com

If you have procedural questions about OFS, please email the judiciary at

JUD.EFileSupport@vermont.gov

Odyssey Public Portal. The Odyssey Public Portal allows you to view your case files. To access

the portal, please visit https://publicportal.courts.vt.gov/Portal/ Before you can view your case

files, you must first register in the portal and then request elevated access. The Public Portal User

Guide contains instructions on how to register and request elevated access. You can read the user

guide on our website at https://www.vermontjudiciary.org/about-vermont-judiciary/public-portal

For technical support regarding the Public Portal, please contact the Vermont Judiciary’s

HelpDesk at Jud.helpdesk@vermont.gov When emailing, please write “Public Portal” in the

subject line.

Efiling Training Opportunities

Watch a pre-recorded efiling training webinar from the Vermont Judiciary. The judiciary’s

NG-CMS project team recorded a demonstration of how to use Odyssey File & Serve that you

can view here: https://www.youtube.com/watch?v=ke2ouMDK4VQ&feature=emb_title

Practice setting up your firm and submitting filings. For hands on practice, you can create

your firm, register users, and begin filing practice cases in the Vermont “Stage” environment. Be

sure that the web address includes the word “stage” (https://vermont-stage.tylerhost.net/ofsweb).

The Stage environment is available any time. Please note that submissions will only be reviewed

periodically, so you may not get a timely response on whether your practice submissions have

been accepted. The Stage environment is available now only for familiarity and direct hands-on

experience and is not a substitute for registering on the actual efiling site when you are ready.

IV. FILING OF EXHIBITS

Per the 2020 Vermont Rules for Electronic Filing, all electronically filed documents (including

exhibit lists and exhibits) must be submitted in PDF format. It is recommended that the exhibit list

be filed in Odyssey File & Serve (OFS) as a “Lead Document” and that any PDF exhibits be filed

as attachments to that exhibit list.

Multimedia files that cannot be converted to PDF format should be submitted by nonelectronic

means on a CD, DVD, or USB flash drive (aka thumb drive) and can be mailed or delivered to the

court. It is recommended that filers indicate this on the exhibit list being filed in OFS. Please note

that while the courts are equipped to view common multimedia formats (such as .mp3, .mp4,

.mpeg, .mov, .wmv files), the filer will have to provide compatible player software if an exhibit is

in a proprietary multimedia format.

Finally, please remember that regardless of how an exhibit is filed, it is the filer’s responsibility

during a hearing to present the exhibits. During remote hearings, this means the filer must either

assure that all witnesses have been provided with the marked exhibits in advance and have them

available to view; or be able to share his or her screen to allow all participants to view the exhibit.

If the exhibit is a video or audio file, the litigant must be prepared to play it during the hearing.

V. MISCELLANEOUS

a. Court Forms

Court forms are constantly being updated. Please refer to the judiciary website for the most up-to-date forms, https://www.vermontjudiciary.org/court-forms

Please use the link below to report any form question, concern or issue

http://www.vermontjudiciary.org/website-feedback-form or you can access our Website Feedback

program at the bottom of each web page.

b. Obligation under A.O. 41

Attorneys are reminded that an “attorney must report to the State Court Administrator within

thirty days any change of the office mailing or electronic mail address” and that “[n]otice sent to a

reported address is sufficient even if not received by the attorney because of failure to report the

proper address or failure of delivery not caused by the court.” A.O. 41, § 4(c).

Please email those changes to JUD.AttyLicensing@vermont.gov Your cooperation is very

much appreciated.

To ensure you continue to receive these emails, please add JUD.AttyLicensing@vermont.gov to

your Safe Senders list.

c. eCabinet Registration

Administrative Order No. 44 requires attorneys in active status to register up to three email

addresses in eCabinet for purposes of receiving notices of hearing and other documents. You may

include staff email addresses in the three email addresses that you specify.

If you have already registered in eCabinet, the email address(es) you provided as part of that

process will be used.

If you have not already registered in eCabinet, please go to

https://efiling.eservices.crt.state.vt.us/ click Register Now, and follow the simple prompts.

Attorneys will need their attorney license numbers to register. Helpful information about the

Attorney Email Registration process is also available on the Electronic Filing page of the

judiciary website at https://www.vermontjudiciary.org/about-vermont-judiciary/electronic-access/electronic-filing Please contact jud.helpdesk@vermont.gov or call the Helpdesk at 802-

828-4357 with any questions in the meantime.

You are also reminded that you are required to update the email address(es) and other contact

information you have registered as soon as there are any changes, including changes to staff email

addresses you may have included with your registration. To revise the information, please go to

https://efiling.eservices.crt.state.vt.us/ log into eCabinet, click “Account,” choose “My

Profile,” and make the necessary changes to your contact information.

Notification to JUD.AttyLicensing@vermont.gov or in eCabinet of a change to your contact

information does not automatically notify the other. It is your responsibility to notify both. If you

are a member of the Vermont Bar Association, you will also need to separately notify the VBA.