Vt. Memo to the Bar, Nov. 6, 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: November 6, 2023

For your information, please find:

• Promulgation Order Amending 2020 V.R.E.F. 5

• Promulgation Order Amending V.R.P.P. 5.1

• Promulgation Order Amending V.R.P.P. 12(a)

• Promulgation Order Amending V.R.P.P. 40(d)(3)

• Promulgation Order Amending V.R.P.P. 47(e)

• Proposed Order Amending V.R.E.F. 8

• Proposed Order Amending V.R.P.P. 7(d) and (e)

• Proposed Order Amending V.R.P.P. 16.1(b) and (d)

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I. PROMULGATED RULE AMENDMENTS

The Court recently promulgated amendments to Administrative Order 11, § 9 to adopt regularized

effective dates of January 1 and July 1 for most rule amendments. That change is effective

January 1, 2024. The promulgated rules in this order are effective January 8, 2024, to provide 60

days before the effective date to submit the amendments to the Legislative Committee on Judicial

Rules. See 12 V.S.A. § 3(e).

a. Promulgation Order Amending 2020 V.R.E.F. 5

https://www.vermontjudiciary.org/PROMULGATED-VREF5--STAMPED

The amendments to Rule 5(d) and (e) clarify the provisions regarding accepting and rejecting

filings. The amended language provides that a filing may be accepted or rejected and that a rejection

will provide the reason for the rejection. Rule 5(b) requires efilers to comply with the instructions in

the efiling system. Some errors by efilers cannot be corrected by court staff after acceptance and

therefore must be rejected. This includes errors such as filing into the wrong case, filing an initial

filing as a subsequent filing or vice versa, or filing a criminal case with the wrong date or incorrect

charge. The rule indicates that the Court Administrator will provide a list of permissible reasons for

rejecting filings and make it available on the Judiciary website. New paragraph 5(d)(3) addresses

failed submissions. In limited situations, efilings that do not comply with the efiling instructions or

the system’s formatting requirements may result in a submission failure.

New paragraph (d)(7) is added to provide a process for appealing a rejected efiling. The new

provision indicates that the Court Administrator will provide an administrative process for reviewing

the basis for a rejected efiling and delineate that process on the Judiciary website.

Rule 5(e), regarding court staff processing in the Supreme Court, is revised similarly to 5(d).

The amendment to Rule 5(g)(1) deletes former subparagraphs (g)(1)(A) and (B), which allowed

motions requesting alternative forms of relief to be filed in a single document but required motions

requesting independent forms of relief to be filed separately. This rule has been difficult to

implement in practice because the distinction between alternative and independent forms of relief

was not easily ascertainable by court staff reviewing filings. To achieve more clarity, new (g)(1)(A)

requires that all motions be filed as separate lead documents. Rule 5(g) is amended regarding

supporting material for motions. New 5(g)(2)(A) allows a memorandum of law in support of a

motion to be filed as part of the motion document itself or as a separate document. One

memorandum may be filed in support of multiple motions or responses as long as the memorandum

identifies the motions or response to which it relates. Under revised (g)(2) efilers must file

supporting material, including affidavits or exhibits, separately from the motion or memorandum.

b. Promulgation Order Amending V.R.P.P. 5.1

https://www.vermontjudiciary.org/PROMULGATED-VRPP5.1--STAMPED

The order amends the service and notice requirements for beneficiaries of a decedent’s estate or

trust even if they have not entered an appearance in the proceeding. The addition of Rule

5.1(b)(1)(iv) and 5.1(b)(4)(vi) make clear that the fiduciary in an estate or guardianship proceeding

must provide the beneficiaries of the estate and the stated interested parties of the guardianship with

the details of license to sell as set forth in the Report on License. The amendment also replaces

language in the rule referring to “ward” with “person under guardianship.”

c. Promulgation Order Amending V.R.P.P. 12(a)

https://www.vermontjudiciary.org/PROMULGATED-VRPP12(a)--STAMPED

This is a housekeeping amendment that removes reference to 15 V.S.A. § 432(b), which was

repealed in 1995.

d. Promulgation Order Amending V.R.P.P. 40(d)(3)

https://www.vermontjudiciary.org/PROMULGATED-VRPP40(d)(3)--STAMPED

The amendments to Rule 40(d)(3) make the procedure for motions to disqualify a probate judge

consistent with that in the civil and criminal divisions, which is to refer the matter to the Chief

Superior Judge or designee.

e. Promulgation Order Amending V.R.P.P. 47(e)

https://www.vermontjudiciary.org/PROMULGATED-VRPP47(e)--STAMPED

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

proceedings. The amended language conforms to parallel provisions in V.R.C.P. 72(c) and to

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

II. PROPOSED RULE AMENDMENTS

(NOTE: THE FOLLOWING AMENDMENTS HAVE BEEN PROPOSED AND HAVE

NOT BEEN APPROVED BY THE SUPREME COURT.)

a. Proposed Order Amending V.R.E.F. 8

https://www.vermontjudiciary.org/PROPOSED-2020VREF8--FORCOMMENT

The proposed amendment to Rule 8 adds new subdivision (d), which addresses the manner for

filing exhibits into the electronic filing system. This rule relates to exhibits related to an evidentiary

hearing and does not address attachments to motions, which are covered by Rule 5(g), or other

pleadings. The proposed amended rule requires that each exhibit be submitted as a separate

document instead of as one compiled document.

Comments on this proposed amendment should be sent by January 8, 2024, to Hon. John A.

Dooley (Ret.), Chair of the Advisory Committee on the Rules for Electronic Filing, at the following

address:

Honorable John A. Dooley, (Ret.), Chair

John.Dooley@vermont.gov

b. Proposed Order Amending V.R.P.P. 7(d) and (e)

https://www.vermontjudiciary.org/PROPOSED-VRPP7(d)(e)--FORCOMMENT

The proposal amends Rule 7(d) and adds Rule 7(e) to clarify the procedure for hearings on

motions. Unlike the other divisions, the probate division has developed the practice of requiring

written opposition to many motions in advance of a hearing. If no such objection is received, the

probate division has the option of canceling the hearing and deciding the motion without a hearing.

Comments on this proposed amendment should be sent by January 8, 2024, 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

c. Proposed Order Amending V.R.P.P. 16.1(b) and (d)

https://www.vermontjudiciary.org/PROPOSED-VRPP16.1(b)(d)--FORCOMMENT

The proposed amendment to Rule 16.1(b) enables the court to limit the participants in a mediation

to a subset of parties and interested persons who have an interest in the issue being mediated.

The proposed addition of Rule 16.1(d)(2) provides the court and the participants in the mediation

with the options of in-person, remote, or hybrid participation in the mediation. Former (d)(2)-(8) are

renumbered (d)(3)-(9).

Comments on this proposed amendment should be sent by January 8, 2024, 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.