Monday February 22, 2010

On Friday I got a break from judicial restructuring as the Senate Judiciary Committee heard testimony for the first time on S. 279, a bill that would allow non unanimous civil jury verdicts. The bill calls for a “super majority” of 80% to constitute the verdict of the jury. Senator John Campbell, a Windsor County attorney, Vice Chair of the Committee and Senate Majority Leader, sponsored the bill. The bill appears to have the support of the Chair, Senator Dick Sears, while Rutland Senator Kevin Mullin seems to be opposed, at least as of then. Two other committee members really didn’t reveal their leanings. I was asked to open the discussion and did so by telling the committee of the Vermont Supreme Court-created committee dating from November 2001 which resulted in a recommendation of exactly this change (along with many others) in March 2003. The 19 member committee seems to have voted 18-1 in favor of a super majority verdict. I then introduced the two witnesses: Brad Myerson, arguing in favor of the bill and Sam Hoar, a member of the former Supreme Court Committee, who argued against changing the present system. In a little over an hour both men spoke eloquently in support of their position. I was very impressed by the level of discourse as well as the questions the non lawyer committee members asked. Sam and Brad honored our profession in the way each handled the presentation.
Brad began by discussing a case he tried to a hung jury and mentioned that in 33 other states, the jury would have completed the case since there was only one holdout juror. He dispelled the myth that this bill would favor plaintiffs; a position that Sam supported. If more cases go to verdict it would help the judiciary, Brad argued. Sam’s criticized the Supreme Court study report as “intellectually dishonest” calling the bill a reform in search of a problem. He says the evidence in support of the “problem” is anecdotal and debatable. Since the court already has the authority to reject a verdict that it feels is improper, the remedy is already there. He cited to an Arizona jury study discussed in a law review article that showed negative changes on juror behavior in a non unanimous state.
The committee will return to deliberate on S. 279 on Thursday morning.
I spent the rest of Friday morning, through the lunch hour, in House Judiciary listening to mostly criticism of the second draft of H. 590, the mandatory mediation in foreclosure bill. As introduced the bill mandated mediation in the case of foreclosures in four unit homes or less. This draft gives a mortgagor 20 days to request mediation; it would no longer be mandatory. The AG and Vermont Legal Aid, proponents of the bill as introduced (which they drafted), of course objected. The content of the mediation is not specified as well as the sanctions for failure to comply with federal guidelines for remediation. Grace Pazdan, the Poverty Law Fellow at VLA, who specializes in foreclosure defense said that homeowners are not getting the modification help they need and which is available under federal law. The Vermont Mortgage Bankers’ Association argued that costs should be borne by the parties equally as opposed to the bill and the draft’s approach to have the plaintiff pay the cost of mediation. Tom Candon, speaking on behalf of BISHCA, likes the draft because the mediation is “up front”. He questioned whether there will be enough mediators. That caused members of the committee to ask me if I thought we could put together a list of mediators who would work in this area. The bill and the draft require the mediators to be lawyers and to undergo 6 hours of CLE before being qualified. The committee was pretty critical of that 6 hour number feeling it to be inadequate time to learn all the federal rules necessary to bring about good results in mediation. My posting to the ADR list serve has already brought about 25 offers to take the training when available and take the cases when they arise. The committee is planning to mark up and vote the bill on Friday, if possible before the week long Town Meeting break. The committee did not get to review H. 533 on Friday due to floor debate that lasted late into the morning. That bill, dealing with military parental rights, passed the Senate on a fast track and was sent back to the House. The House Judiciary Committee should sign off on the Senate passed amendments Tuesday afternoon and, if they do, the bill goes to the governor for signature. Thanks for reading.