Vt. Memo to the Bar, July 12, 2023

SUPREME COURT OF VERMONT

OFFICE OF THE COURT ADMINISTRATOR

THERESE CORSONES, ESQ. Mailing Address

State Court Administrator Office of the Court Administrator

Therese.Corsones@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: Teri Corsones, Esq., State Court Administrator

RE: Promulgated & Proposed Rules, Odyssey File and Serve and Public Portal Information,

Filing of Exhibits & Other Miscellaneous Info

DATE: July 12, 2023

To ensure you continue to receive emails from the judiciary, please add

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For your information, please find:

• Promulgation Order Amending V.R.Cr.P. 26(c) and (d)

• Promulgation Order Amending V.R.F.P. 1(a)(1) and 17

• Promulgation Order Amending V.R.C.P. 43.1

• Promulgation Order Amending A.O. 47 (Technical Standards for Remote and Hybrid

Hearings)

• Promulgation Order Amending A.O. 41 §§ 4 and 16

• Promulgation Order Amending V.R.P.P. 43.1

• Promulgation Order Amending 2020 V.R.E.F. 3(c) and 12, V.R.P.P. 5(e) and Adding

V.R.P.P. 78

• Promulgation Order Amending A.O. 38

• Proposed Order Amending Rule 47(e) of the Vermont Rules of Probate Procedure

• Odyssey File and Serve and Public Portal Information

• Filing of Exhibits

• Miscellaneous

• Receipt of Court Notices and Orders (eCabinet)

I. PROMULGATED RULE AMENDMENTS

a. Promulgation Order Amending V.R.Cr.P. 26(c) and (d)

https://www.vermontjudiciary.org/PROMULGATED-VRCrP26(c)&(d)--STAMPED

The amendment to Rule 26(c) updates the existing rule to conform to the 2020 amendment to

Federal Rule of Evidence 404(b), by imposing additional notice requirements on the State in seeking

the introduction of other crimes, wrongs, or acts evidence in a criminal case. Under F.R.E. 404(b)

the prosecution must: (1) identify the evidence that it intends to offer; (2) articulate the

nonpropensity purpose for which the evidence is offered, and (3) state the basis for concluding that

the evidence is relevant in light of this purpose. Although the text of Vermont Rule of Criminal

Procedure 26(c) itself has not required an articulation of the nonpropensity purpose for which the

evidence is being offered, Vermont caselaw requires the proponent seeking to admit evidence under

Rule 404(b) to state the purpose of the evidence and the reasoning. The amendment adds these

requirements into the rule.

The amendment of Rule 26(d) makes nonsubstantive amendments to terminology to eliminate

offensive language, and to comport with similar amendments made in 2020 to Vermont Rule of

Evidence 804a (and to the 2023 amendment of V.R.E. 807). The phrase “person with a mental

illness, or an intellectual or developmental disability” is substituted for former language, in referring

to the individuals whose hearsay statements may be admissible at trial pursuant to V.R.E. 804a.

There is no substantive change to the existing provisions of V.R.Cr.P. 26(d).

b. Promulgation Order Amending V.R.F.P. 1(a)(1) and 17

https://www.vermontjudiciary.org/PROMULGATED-VRFP1(a)(1)and17--STAMPED

Vermont Rule for Family Proceeding 1(a)(1) is amended to make V.R.C.P 43.1 applicable to

delinquency proceedings for the purposes of remote proceedings under V.R.F.P. 17.

The amendments to Vermont Rule for Family Proceedings 17 update its provisions concurrent

with changes to V.R.C.P. 43.1. Rule 17 as originally adopted in 2009 authorized testimony by

telephone in family division proceedings. The rule was amended in 2019 concurrent with the

adoption of V.R.C.P. 43.1, which addressed appearance by video and audio conference generally.

The amendment to V.R.F.P. 17(a) clarifies that V.R.C.P. 43.1 applies in parentage proceedings in

addition to the existing named proceedings under V.R.F.P. 4 (divorce, annulment, and separation).

The amendment to V.R.F.P. 17(b) modifies the application of V.R.C.P. 43.1 in juvenile matters.

New V.R.F.P. 17(c) makes V.R.C.P. 43.1 applicable in juvenile delinquency and youthful offender

proceedings in a modified way. All status conferences and pretrial proceedings are subject to

V.R.C.P. 43.1 but other proceedings are in person absent good cause. New V.R.Cr.P. 26.2 regarding

testimony of a remote witness is incorporated for these proceedings given the applicable

confrontation rights.

V.R.F.P. 17(d), formally 17(c), regarding mental-health proceedings provides that hearings for

involuntary treatment, continued treatment, and involuntary medication are scheduled as remote

proceedings. However, if a party reasonably in advance of a hearing requests, or the court on its own

initiative orders, the proceedings will be in-person. The intent of the change is that a request by a

party for an in-person proceeding is granted automatically, i.e., the request is not a motion that the

court must rule upon. Likewise, the court may, on its own initiative, schedule an in-person hearing.

V.R.F.P. 17(e), formally 17(d), pertaining to minor guardianship proceedings, is unchanged.

New subdivision (f) governs hearings in abuse-prevention hearings under Rule 9. The rule adopts

the identical language governing stalking proceedings under new V.R.C.P. 43.1(k). Both rules

provide that proceedings will be hybrid unless upon a party’s request or the court’s own initiative the

court orders participation by a particular method.

New subdivision (f) incorporates V.R.C.P. 43.1 into other proceedings in the family division that

are not otherwise specifically addressed in the rule.

c. Promulgation Order Amending V.R.C.P. 43.1

https://www.vermontjudiciary.org/PROMULGATED--VRCP43.1--STAMPED

Vermont Rule of Civil Procedure 43.1 was originally promulgated in 2019 to provide a uniform

process for participation by audio and video conference. The COVID-19 pandemic reached Vermont

less than a year later and court procedures were modified after the Supreme Court declared a judicial

emergency. Remote and hybrid proceedings became much more widespread. The Court created the

Special Advisory Committee on Remote Hearings to study, advise the Court about, and propose

potential permanent rule changes governing remote participation in court proceedings. The

amendments to Rule 43.1 are the result, in large part, of the Special Advisory Committee’s study and

analysis of the experience of members of the bar, judges, court staff, and members of the public with

fully remote and hybrid proceedings.

The promulgated rule contains different standards for nonevidentiary and evidentiary proceedings,

relaxes the timelines for requesting remote participation, and introduces the concepts of remote and

hybrid proceedings. Paragraph (a)(1) is added to set a default of in-person participation. Subdivision

(b) adds definitions for evidentiary proceeding, hybrid proceeding, and remote proceeding. New

subdivision (c) addresses nonevidentiary proceedings, which can be remote or hybrid in the court’s

discretion. Subdivision (d) addresses evidentiary proceedings, which can be remote or hybrid for

good cause based on a consideration of the relevant factors. Under the amended rule, judges have the

discretion to schedule remote and hybrid nonevidentiary proceedings while evidentiary proceedings

require a determination of good cause based on a consideration of the factors in subdivision (h).

Judges may issue standing orders for categories of proceedings or provide for remote or hybrid

proceedings on a case-by-case basis. The court can do this on its own initiative or based on a motion

or stipulation of the parties. Subdivision (e) revises the former (c)(4) regarding the judge presiding

from a remote location. Subdivision (f) sets out the requirements for the hearing notice to require

information on how the hearing will be conducted and how to request a different type of

participation. Subdivision (g), entitled Exceptions, revises former (c)(5), previously entitled

“Emergencies,” to allow exceptions from the rule’s time and notice requirements in certain

circumstances. Subdivision (h) includes the factors for a court to consider in determining if there is

good cause to have an evidentiary remote or hybrid proceeding. Subdivision (i) addresses the

conduct of the proceedings. New subdivision (j) provides that jury selection is governed by the

standards for evidentiary proceedings. New subdivision (k) applies to civil stalking proceedings

under 12 V.S.A. §§ 5131-5138 and sets a default of hybrid proceedings. Former subdivision (d), on

technical standards, is relabeled as subdivision (l).

d. Promulgation Order Amending A.O. 47 (Technical Standards for Remote and Hybrid Hearings)

https://www.vermontjudiciary.org/PROMULGATED-AO47Amendments--STAMPED

Administrative Order No. 47 is amended in conjunction with amendments to V.R.C.P. 43.1 and

related rules given the experience of the bar, judges, court staff, and members of the public with

fully remote and hybrid proceedings over the last few years.

As originally adopted, AO 47 had separate standards for video and audio conferencing. Amended

§ 1 now provides one set of standards applicable to both remote and hybrid proceedings. In general,

participants must be able to hear all other participants during proceedings. Where participation is by

video conference, participants must also be able to see other participants. The amended rule retains

the requirement that all participants must have access to documents and other types of exhibits. It

also continues to require that parties be able to confidentially consult with counsel.

Section 2, formerly about audio proceedings, now addresses access to public proceedings for

nonparticipants. For fully remote proceedings, new § 2(a) states that when requested the public will

be provided with a means to view and hear the proceeding remotely, absent extraordinary

circumstances. Remote viewing may be through a link to a video platform or through a livestream.

For hybrid proceedings, new § 2(b) states that the public may hear and view the proceeding in

person in the courtroom and may also be able to observe remotely. For either remote or hybrid

proceedings, an inability to accommodate a request to observe remotely will not serve as grounds to

continue the proceeding.

e. Promulgation Order Amending A.O. 41 §§ 4 and 16

https://www.vermontjudiciary.org/PROMULGATED-A.O.41§§4and16--STAMPED

The amendment to Administrative Order 41, § 4(a) clarifies that the attorney licensing statement

must be submitted in a manner approved by the State Court Administrator. The revised text is

consistent with current practice in which relicensing is done through an online portal and not using a

paper form. Amended § 4(c), regarding an attorney’s obligation to report any changes to contact

information, clarifies that attorneys are responsible for keeping their contact information current and

notice sent to the registered email address is sufficient even if not received due to a failure to update

the information.

The amendment to Administrative Order 41, § 16 corrects a cross reference to Vermont Rule of

Appellate Procedure 45.1 regarding appearance of attorneys not admitted in Vermont.

e. Promulgation Order Amending V.R.P.P. 43.1

https://www.vermontjudiciary.org/PROMULGATED-VRPP43.1--STAMPED

The amendments to Rule 43.1 incorporate lessons learned regarding remote and hybrid

proceedings based on the experience of the bar, judges, court staff, and the public.

Amended Rule 43.1(a) provides a default of remote proceedings with hybrid and in-person

proceedings permissible with court permission. Most probate proceedings are conducted with

relaxed evidentiary rules. Probate proceedings also often involve self-represented parties and

individuals from a wide geographic area, including outside Vermont. The experience during the

pandemic demonstrated that remote participation provides a good balance between the cost and

convenience for the participants and the overall effectiveness of the proceeding, which is consistent

with the scope of the Rules, set out in V.R.P.P. 1.

Amended Rule 43.1(b) contains new definitions for hybrid and remote proceedings. Under

43.1(c)(1), the court has discretion to issue standing orders or case-specific orders for hybrid or in-person participation based on a consideration of any relevant factors provided in (g). The parties may

also move or stipulate to hybrid or in-person participation under (c)(2). In assessing whether to grant

or deny a motion or stipulation, the court is guided by a consideration of the factors in subdivision

(g). Because a hybrid or in-person hearing requires the availability of a courtroom and additional

court staff, when a motion is granted, the court may need to reschedule the proceeding. The

amendments to Rule 43.1(d) pertain to the judge to presiding remotely. The amendments to Rule

43.1(e) address the required notice to the parties in advance of the hearing. The notice must specify

whether the proceeding is in person, remote, or hybrid and describe the process for requesting an

alternate means of participation. Subdivision (f) allows exceptions to the notice and timing

requirements of the rule. Rule 43.1(g) incorporates the factors from former (c)(6) and (d)(3) and (4)

for the court to consider in evaluating whether to have hybrid or in-person proceedings. New 43.1(h)

addresses the conduct of the proceedings and allows the court to impose conditions to ensure the

fairness of the proceeding, ensure reliability of the evidence, or to protect public health. Finally,

former 43.1(e), regarding technical standards, is relabeled (i).

f. Promulgation Order Amending 2020 V.R.E.F. 3(c) and 12, V.R.P.P. 5(e) and Adding

V.R.P.P. 78

https://www.vermontjudiciary.org/PROMULGATED-VREF3(c)12_VRPP5(e)(8)_78--

STAMPED

These amendments address the need in some probate proceedings for the court to inspect paper

documents during consideration of the case. The amendment to 2020 V.R.E.F. 3(c) mandates

retention of a paper document by the court when required by statute or other provision of law. The

amendment to 2020 V.R.E.F. 12 directs that the court must retain a paper document even after it has

been converted to electronic form if otherwise required by law. Contemporaneous amendment of

V.R.P.P 5(e) and addition of V.R.P.P 78 delineate testamentary documents and vital records that

must be provided on paper subject to retention and return to the parties upon completion of the case.

g. Promulgation Order Amending A.O. 38

https://www.vermontjudiciary.org/PROMULGATED-A.O.38--STAMPED

Administrative Order No. 38 is amended to conform to concurrent amendments to V.R.F.P. 17 and

V.R.C.P. 43.1. The amendment removes the reference to juvenile delinquency proceedings in the

title and in § I because delinquency (and youthful offender) proceedings are now addressed in

revised V.R.F.P. 17(c), which incorporates V.R.C.P. 43.1 for certain types of nonevidentiary

proceedings. Subdivision I(c) is amended to update the cross reference to the factors for a court and

parties to consider in evaluating whether to allow remote audio or video testimony by agreement

under (b)(2), which now incorporates by reference consideration of and compliance with the

provisions of V.R.Cr.P. 26.2.

Subdivision I(a) addresses circumstances of remote participation by the court and the parties where

the presence of the defendant is not required by law; subdivision (b) prescribes circumstances in

which parties may participate remotely by agreement of the parties, and in other proceedings where

the defendant’s presence is required by law. In contrast to I(a)(1), paragraph (b)(1) reflects the

concern that where the judge must serve as a factfinder, and in other circumstances in which a

defendant’s presence is required by law, the judge may preside remotely only upon agreement of the

parties, and not on the judge’s own motion and over objection.

Subdivision I(c) directs that the court and parties must observe the requirements of V.R.Cr.P. 26.2

in conjunction with any proposal for remote witness testimony by agreement.

II. PROPOSED RULE AMENDMENTS

(NOTE: THE FOLLOWING AMENDMENTS HAVE BEEN PROPOSED AND HAVE

NOT BEEN APPROVED BY THE SUPREME COURT.)

Proposed Order Amending Rule 47(e) of the Vermont Rules of Probate Procedure

https://www.vermontjudiciary.org/PROPOSED-VRPP47(e)--FORCOMMENT

The proposed amendment to Rule 47(e) updates the language regarding production of transcripts

for probate proceedings. The proposed language conforms to parallel provisions in V.R.C.P. 72(c)

and to V.R.A.P. 10(b)(2).

Comments on this proposed amendment should be sent by September 11, 2023, to Hon. Jeffrey

Kilgore, Chair of the Advisory Committee on the Rules of Probate Procedure, at the following

address:

Hon. Jeffrey Kilgore

Jeffrey.Kilgore@vermont.gov

III. ODYSSEY FILE & SERVE AND PUBLIC PORTAL INFORMATION

Odyssey File and Serve has recently provided information for court users who are not receiving

email notifications and who question whether their email addresses have mistakenly been placed on

a “Suppression List.” Here’s a link to information in that regard Why was my email placed on the

Suppression List? – eFile (zendesk.com). Here’s another link for court users who wish to have their

email addresses “Safelisted” to ensure proper delivery

https://odysseyfileandserve.zendesk.com/hc/en-us/articles/360046887411.

All Superior Courts, including the Environmental Division, the Judicial Bureau, and the Supreme

Court 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.

Reminders for OFS Users:

1) PDFs must be “flattened” prior to efiling through Odyssey File & Serve

With the increased use in electronic signature tools, it is important for OFS filers to

remember that all PDFs must be flattened prior to filing in OFS. In order to eFile a form-

fillable PDF or a PDF that has been electronically signed, you must first save them as a flat

file. Otherwise, the filing will fail and you will need to refile.

Follow the steps below to "flatten" a completed PDF:

1. Open the completed PDF.

2. Right click on document and select Print. NOTE: if document opens in Adobe, Select

File and select Print.

3. Select the PDF printer. (The Adobe PDF printer is installed automatically with Adobe

Acrobat. Numerous free PDF printer

drivers are available for download from the Internet.)

4. Select OK.

5. Specify location to save the printed, "flattened" version of the form.

6. Select Save

2) 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.

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

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

https://vermont.tylertech.cloud/OfsWeb/Home

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 www.vermontjudiciary.org/efiling

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.

IV. FILING OF EXHIBITS FOR EVIDENTIARY HEARING

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

exhibit lists and exhibits) must be submitted in PDF format. The Vermont Judiciary’s website

provides detailed instructions on how to submit exhibits for use at trials and other kinds of

evidentiary hearings. https://www.vermontjudiciary.org/FilersGuidetoExhibitsforHearings

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). To update changes in your

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

c. Receipt of Court Notices and Orders (eCabinet)

The Vermont courts send all court-issued documents (hearing notices, orders, etc.) to attorneys by

email using the email addresses registered in a system called eCabinet. Attorneys may register up to

three email addresses in the system and are responsible for keeping the information updated. The

email address(es) registered in eCabinet are not used for service of documents filed by opposing

parties, which is done through service contacts in Odyssey File & Serve.

To create an eCabinet account or update an existing account, attorneys must contact the Judiciary

helpdesk through one of the methods listed below. Please include your attorney bar license number

in your communication.

• Email JUD.Helpdesk@vermont.gov

• Telephone the Judiciary helpdesk at 802-828-4357

• Use the online form eCabinet Registration/Update (cognitoforms.com)

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.