Vt. Memo to the Bar, Nov. 16, 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 Rules, Odyssey File and Serve and Public Portal

Information, Filing of Exhibits & Other Miscellaneous Info

Important Notice Regarding Efiling with Odyssey File and Serve

DATE: November 16, 2021

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

and JUD.CAOMemotoBar@vermont.gov to your Safe Senders list.

For your information, please find:

• AO 49 Amendment - Declaration of Judicial Emergency and Changes to Court Procedures 11-15-21

• Order Promulgating Amendments to V.R.Cr.P. 7

• Proposed Order Amending Rule 18(d)(2) of the Vermont Rules for Family Proceedings

• Proposed Order Amending Rules 2(a)(2) and (3), 6(a) and (c)(2)(3), 6.1(a) and (c)(1), and 8(h) of the

Vermont Rules for Family Proceedings

• Proposed Amendments to Rules 8(b)(2), 9(b), 11, 12(a), 13(d), 17, and 18(c) of the Vermont Rules of

Admission to the Bar of the Vermont Supreme Court

• Important Notice Regarding Efiling and Odyssey File and Serve

• Odyssey File and Serve and Public Portal Information

• Filing of Exhibits

• Updated Court Forms

• Obligations Under A.O. 41

• eCabinet Registration

The Attorneys in Good Standing list is once again available on the Judiciary website, at

https://www.vermontjudiciary.org/attorneys/attorney-licensing

I. PROMULGATED RULE AMENDMENTS

a. AO 49 Amendment - Declaration of Judicial Emergency and Changes to Court Procedures 11-15-21

This Order was promulgated on November 15, 2021, effective immediately.

Paragraph 21 regarding pleading requirements in eviction proceedings is amended in several

ways. Under existing ¶ 21(a), a plaintiff in a proceeding to evict a tenant in residential housing

must file a certification that the filing complies with the federal CARES Act. Amended ¶ 21(b)

provides that any complaint filed after December 1, 2021, is subject to dismissal if the

certification is not provided. In addition, new ¶ 21(d) provides that any action for eviction of a

residential tenant based on nonpayment of rent filed after December 1, 2021, must include a

notice concerning the availability of Vermont Emergency Rental Assistance Program (VERAP)

funds. The notice must be in the form provided in Appendix D. If the notice is not provided and

not corrected within 30 days, the court may dismiss the case and the tenant may request to

reschedule the rent escrow hearing. Finally, when there is sufficient evidence that the tenant has

applied for VERAP funds, the court has discretion to take appropriate action in fashioning a rent

escrow order or a writ of possession.

The full Order and other updates regarding COVID-19 and court operations are available at

[https://www.vermontjudiciary.org/about-vermont-judiciary/covid-19-and-court-operations]

b. Order Promulgating Amendments to V.R.Cr.P. 7

This Order was promulgated on November 15, 2021; effective January 18, 2022.

The 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 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.

II. PROPOSED RULE AMENDMENTS

(NOTE: THE FOLLOWING AMENDMENTS HAVE BEEN PROPOSED AND

HAVE NOT BEEN APPROVED BY THE SUPREME COURT.)

a. Proposed Order Amending Rule 18(d)(2) of the Vermont Rules for Family Proceedings

The proposed amendment to Rule 18(d)(2) clarifies that mediation can take place either in

person or using remote technology.

A.O. 49 was initially issued March 16, 2020, in response to the state of emergency resulting

from the pandemic. Paragraph 13 of A.O. 49 authorized remote participation in mediation by

video or telephone without a stipulation or court order. Further, in anticipation that at some point

A.O. 49 would no longer be necessary, the Supreme Court requested that the Advisory Committee

on Rules for Family Proceedings consider whether there should be a permanent change to Rule 18

related to remote participation. After considering responses from attorneys who practice family

law to a Vermont Bar Association survey and responses from family mediators, the Committee

concluded that both in person and remote participation in mediation should be permissible in

family proceedings subject to V.R.F.P. 18 at the discretion of the mediator.

Comments on these proposed amendments should be sent by January 18, 2022, to Hon.

Michael Kainen, Chair of the Advisory Committee on the Rules for Family Proceedings, at the

following address:

Hon. Michael Kainen, Chair

Advisory Committee on the Rules for Family Proceedings

Michael.kainen@vermont.gov

b. Proposed Order Amending Rules 2(a)(2) and (3), 6(a) and (c)(2)(3), 6.1(a) and (c)(1), and

8(h) of the Vermont Rules for Family Proceedings

Rule 2(a)(2) is amended to eliminate the reference to V.R.C.P. 78(a), (Motion Days) which was

abrogated by order of June 7, effective August 9, 2021. Rule 2(a)(3) is amended to replace the

reference to V.R.C.P. 78(b) with a reference to V.R.C.P. 7(b)(4) (Memorandum in Opposition),

added by that order and embodying the provisions of former V.R.C.P. 78(b)(1) in revised form.

Provisions of Rules 6 and 6.1 are deleted because the probate rules now contain provisions on

the appointment of guardians and attorneys in probate proceedings. See V.R.P.P. 80.9

(Representation by Guardians ad Litem of Minors) and V.R.P.P. 80.10 (Representation by

Attorneys and Guardians ad Litem of Adults in Specified Proceedings). In addition, the reference

to the title of 18 V.S.A. Chapter 206 is amended to be consistent with legislation enacted in 2014.

2013, No. 96 (Adj. Sess.), § 114.

Rule 6.1(c)(1) is amended to replace the reference to V.R.C.P. 78(b) (Disposition of Written

Motions With or Without Hearing), which was abrogated by order of June 7, effective August 9,

2021, with a reference to V.R.C.P. 7(b)(6) (Evidentiary Hearings) added by that order and

embodying its relevant provisions in revised form.

Rule 8(h) is amended to eliminate the reference to V.R.C.P. 78 (Motion Day), which was

abrogated by order of June 7, effective August 9, 2021. All relevant provisions of the former

V.R.C.P. 78 are now incorporated in V.R.C.P. 7.

Comments on these proposed amendments should be sent by January 18, 2022, to Hon.

Michael Kainen, Chair of the Advisory Committee on the Rules for Family Proceedings, at the

following address:

Hon. Michael Kainen, Chair

Advisory Committee on the Rules for Family Proceedings

Michael.kainen@vermont.gov

c. Proposed Amendments to Rules 8(b)(2), 9(b), 11, 12(a), 13(d), 17, and 18(c) of the

Vermont Rules of Admission to the Bar of the Vermont Supreme Court

The proposed amendment to Rule 8(b)(2) clarifies what factors the Board of Bar Examiners

considers when determining whether to waive the requirement that an applicant who has

graduated from a foreign law school also be admitted to the bar in the foreign jurisdiction.

The proposed amendment to Rule 9(b)(1) clarifies what factors the Board of Bar Examiners

considers when determining whether to waive the requirement that the bar exam be taken within

five years of graduating from law school or completing the LOS Program. The proposed

amendment to wording in Rule 9(b)(3) regarding the passing UBE score is also corrected to

specify that an Applicant must receive a score of 270 or higher.

The proposed amendment to Rule 11 regarding the MPRE passing score is corrected to clarify

that an Applicant must receive a score of 80 or higher.

The proposed amendment to Rule 12(a)(2) allows applicants to commence their mentorship

prior to admission to the bar, consistent with the clerkship that was required prior to the adoption

of the UBE. Also, references in the Rule to the “the Board of Continuing Legal Education” are

changed to “the Board of Mandatory Continuing Legal Education” to accurately reflect the name

of the Board.

The proposed amendment to Rule 13(d) clarifies what factors the Board of Bar Examiners

considers when determining whether to waive the requirement that the bar exam must be taken

within five years of graduating from law school or completing the LOS Program.

The proposed amendment to Rule 17 amends the opening sentence of the rule to correct the

cross reference to Rule 16.

The proposed amendment to Rule 18(c) requires an applicant to file a notice of appeal within 30

days of the date of a decision rather than 30 days of date the decision was mailed. This reflects the

practice of notifying applicants (via electronic means) of the panel’s decision on the same day the

decision issues.

Comments on these proposed amendments should be sent by January 18, 2022, to Andrew

Strauss, Licensing Counsel of the Office of Attorney Licensing, at the following address:

Andrew Strauss, Licensing Counsel

Andrew.Strauss@vermont.gov

III. IMPORTANT NOTICE REGARDING EFILING WITH ODYSSEY FILE AND

SERVE

Attorneys must select the party they represent as the “person responsible for fees” in the Fee

section of the filing process. Additionally, when the attorney represents more than one party,

attorneys should continue to select the same party as the “person responsible for fees”; otherwise,

the attorney will incur an additional efiling use fee.

IV. 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 the 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.

V. 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.

VI. 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). To update changes

in your contact information, please access your attorney account with the Attorney Portal

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

and JUD.CAOMemotoBar@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. This

website works best with Explorer. 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.

Updating information in the Attorney Portal or in eCabinet does not automatically notify the

other. It is your responsibility to update both. If you are a member of the Vermont Bar

Association, you will also need to separately notify the VBA.