Do Hard Cases Make Bad Law?

The idea that hard cases make bad law is often repeated,[1] but is not always correct. Law professors using the Socratic Method often change the facts of a hypothetical to flesh out the meaning and limitations of a legal principle for students.

For example, a law professor might say, it’s reasonable and therefore self-defense to use deadly force to protect oneself from an imminent threat of death or serious bodily injury. All would agree that a person who is attacked by knife wielding assailant is entitled to shoot to kill if the assailant is six feet away.  But what about 10 feet? Twenty feet? Fifteen feet, but across a rushing stream?

I think it is nearer the truth to say that, like law students grappling with a changing hypothetical, hard facts help us to see the full implications of a rule. Then a judge or legislator draws upon an internal sense of fairness and justice to decide whether a rule should stand even though it creates an apparently unjust result, whether an exception should be crafted, or whether the rule itself should be consigned to the junk heap.

Vermont Supreme Court Decides Kuligoski v. Brattleboro Retreat

The Seal of Vermont over the Entrance to the Vermont Supreme CourtThat is exactly the process the Vermont Supreme Court completed on Friday when it denied the motions to reargue and issued an amended opinion in Kuligoski v. Brattleboro Retreat.[2]

The facts are hard: Michael Kuligoski was a furnace repairman working in basement of an apartment building in St. Johnsbury, Vermont on February 26, 2011. He never meet E.R, the young man who walked up behind Michael and assaulted him with his own pipe wrench and belt, and tried to drown him in bucket of water. Michael’s life was shattered. The family will never be the same.

E.R’s Psychiatric History

Before the attack, E.R. had been treated at three in-patient psychiatric facilities in Vermont. He had a history of violence and threats. He was released from the Brattleboro Retreat into the care of his parents, even though his condition, schizophrenia, had gotten worse in his last 24 hours at the hospital after he stopped taking his medication. His parents were given only limited information about his condition.

At home for a month, E.R. told his mother that he had stopped taking his medication again. She called the local community mental health agency, his after-care provider, Northeast Kingdom Human Services, which told her only that there was cause for concern, but — as her son was an adult — he would have to decide to take care of himself.

Within two months, E.R.’s father took him to work on is grandfather’s apartment building, and E.R assaulted Michael Kuligoski.

Superior Court Litigation

We sued the Retreat and NKHS in Windham County Superior Court, alleging that negligent discharge, failure to warn ER’s parents, failure to train them, negligent undertaking, negligent treatment, and negligent failure to treat, were proximate causes of the assault and the resulting damages.

Both defendants moved to dismiss, arguing that under Peck v. Counseling Service of Addison County,[3] the duty of a mental health professional to protect third parties from dangerous mental health patients is limited to warning identifiable third parties who were at risk.

We argued that Peck did not control, and that mental health professionals should have a duty act reasonably to protect third parties, known or unknown, from the very small number of psychiatric patients who are dangerous, citing Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 41 (2012). The Superior Court dismissed and we appealed.

On Appeal, the Mental Health Industry Lines Up

On appeal, the entire mental health industry lined up against us: the Vermont Association of Hospitals and Health Systems, the Vermont Council of Developmental and Mental Health Service, Inc., the University of Vermont Medical Center, the Central Vermont Medical Center, the Rutland Regional Medical Center, and Disability Rights of Vermont, Inc. On reargument, even the State of Vermont, Agency of Human Services, sought reconsideration.

A Narrow Victory

But Friday’s decision gave our clients a narrowly won, (3-2, with written dissents from Chief Justice Reiber, and Justice Skoglund) and a narrowly crafted, victory. Even the majority declined to adopt Restatement (Third) and require that mental health professionals act reasonably to protect the public. Instead, the majority, in an opinion by Associate Justice John Dooley, held that the defendants had a duty to inform E.R.’s parents based on their active engagement with the providers, and their assumption of custody and caretaking responsibilities, putting them in the ‘zone of danger’ from E.R.’s conduct. It required that mental health providers convey ‘reasonable information to notify the caregiver of the risks, and of any steps he or she can take to mitigate the risks.[4] It rejected the defendants’ arguments that doctor/patient privilege and HIPPA confidentiality precluded disclosure.[5]

The Battle Is Not Over

Even though the Vermont Supreme Court is the final authority on questions of Vermont law, the decision does not bring this matter to an end, either with respect to the outcome of this case, or on the larger policy question.

Now, at trial we will have the chance to prove that the Retreat and NKHS failed to adequately inform E.R.’s parents of the dangers of assuming caretaking responsibilities for E.R. and that those failures were a proximate cause of the assault on Michael Kuligoski.

And it seems likely that, as has happened in some other states, the mental health industry will seek to overturn the policy of Kuligoski v. Brattleboro Retreat in the next session of our legislature. There is no one that I know of who will be paid to defend the rule in the legislative halls. But the result is not a forgone conclusion.

Sometimes Hard Facts Help to Improve the Law

Sometimes, as they did here, hard facts help to improve the law. As Chief Justice Reiber put it in dissent, the common law typically moves “like a tortoise that explores every inch of the way, steadily making advances though it carries the past on its back.”[6] Although the Chief Justice sees the majority’s holding as “extraordinary in its scope and implications,” we see it as a small, but positive step.  Not every lawyer, nor every personal injury lawyer, gets to help make even such slow progress occur.

I thank the Kuligoski family for entrusting me with representing them in this struggle. And I thank my associate, Matt Shagam, and my former colleague, Graydon Wilson, for their assistance in bringing this case this far successfully.

Advocating for justice for people have been seriously injured and working to make the law more just and more protective of public safety is a privilege that I do not take lightly.


[1] That maxim seems to come from Winterbottom v. Wright:

This one of those unfortunate cases…in which, it is no doubt a hardship upon the plaintiff to be without a remedy but by that consideration we ought not to be influenced. Hard cases, it has frequently been observed, are apt to introduce bad law.

Winterbottom v. Wright, 10 M&W 109 (1842) (Robert Rolf, J)(consumer injured by defective product had no legal action against the defective execution of a contract to which they were not expressly privy.), overruled, Donoghue v. Stevenson, UKHL 100, 1932 SC (HL) 31, [1931] UKHL 3, [1932] AC 562.

[2] 2016 VT 54A.

[3] 146 VT 6 (1985). Peck is one of the many progeny of Tarasoff v. Regents of University of California, 551 P.2d. 33 (Cal. 1976).

[4] 2016 VT 54 ¶82.

[5] Id. at __, ¶ 61.

[6] Kuligoski at ¶85, quoting the late California Chief Justice Roger J. Traynor, Transatlantic Reflections on Leeways and Limits of Appellate Courts, 1980 Utah L. Rev. 255, reprinted in The Traynor Reader 200 (1997).


End of Summer Reflections

by Rich Cassidy on September 6, 2016


Labor Day has passed. And OnLawyering has inadvertently taken the whole summer off! I assure you that’s not because its principal has done the same. Just the opposite. For me it has been an outrageously busy and quite productive summer. There just was no time to post.

Summertime is really quite different now than it was when I started practicing law. In part, the differences reflect my own interests. As time has passed, I have added a number of regular summer commitments. For some years, I attended that annual convention of the National Employment Lawyers Association. I am still a member, and still value its work, but I stopped going to its going to its Convention when I was appointed as a Uniform Law Commissioner, back in 1994.

This year, my wife and I attended our 22nd consecutive ULC Annual Meeting. Not only did we attend, we hosted the meeting, with the help of the rest of the Vermont ULC delegation and ULC and hotel staff, at the Stowe Mountain Resort here in Vermont. That accounts in large part for an extraordinarily busy summer. It was well worth it. We were delighted to see members and guests from all over the country get a chance to see Vermont in the glory of summer. And the ULC work at the annual meeting was successful and worthwhile.

Since 1998, I have made it a practice to attend the American Bar Association’s Annual Meeting. I could not go this year, as I represented the ULC at the Annual Meeting of the Uniform Law Conference of Canada in Fredericton, New Brunswick. It overlapped the ABA which was on the other side of the continent, in San Francisco.

But it’s not just professional meetings that made this summer a busy one. My law practice itself was hopping. When I started private practice 36 years ago in 1980, the fact was that law practice slowed down for most lawyers in late summer, at least here in Vermont.

As I recall, during the first few years, the courts were closed in the last two weeks of summer, except for emergencies, and most judges were on vacation. Those days are gone forever.

I still remember my first day in private practice. I went to work on Labor Day, although the lawyer I worked with, previously a sole practitioner, took the holiday off. I was eager to start. I arrived at 8:30 AM sharp, even though I had no cases and no clients. Soon, our secretary buzzed me. I had a new client on the line! I could not imagine who it was or why he or she had called me. I took the call. I was my wife’s uncle. He solemnly told me that he and his wife needed powers of attorney. If I could draft them, he and his wife would stop by late in the day to sign. Would 4:30 PM work? Sure!!

This proved harder to deliver on than I expected. I did not know the first thing about drafting a power of attorney and so far as I could tell there was no forms file from which to borrow one. I looked at a “form book.” I found several, but they were so complex! They were really for specific and large transactions, and they did not seem right for this purpose.

So I did what I knew how to do best with three years of law school and two years an appellate law clerk under my belt. I started doing research. There was little if anything by way of Vermont statutory law on the topic at that time. (That changed very soon thereafter). And the cases were not much help either. They established a few general legal propositions, but gave me almost nothing by way of specific language to use.

By that point, it was nearly noon, and I had not written a word.

So, before I quit for lunch, I asked our secretary if she had a form for a general power of attorney. “Well not exactly,” she said, but she had typed three or four for the boss during the previous month. Soon she had pulled out the files and within an hour or so, I had a complete draft. She typed it, and it was ready before my first clients arrived to sign.

I helped them to execute the documents, and I believe I charged them $25. I am sure they did not really need them at that moment, but they wanted to offer tangible support for our new effort, and I so appreciated it. And soon I was their regular lawyer and a steady stream of projects came my way.

Still, the first few months of my practice were pretty quiet. But it picked up steam, and it has supported me and my family and kept me busy ever sense.

Things were different then. We had no email, so most communication was by phone or U.S. Mail. Communications that today take seconds, usually took days or weeks. We had a fax machine, but it was rarely used. Our law library was pretty basic, so I gathered up research projects and every few weeks spent a day at the state law library. (Sadly, the library closed last year, a victim of the internet.)

There was no computer on my desk, just a Dictaphone. I picked up the knack of dictating to tape and my secretary transcribed my tapes. Today, I dictate directly to the computer.

20160906S.DictaphoneTimeMasterGrey-450The bar was smaller, and we knew one another pretty well. Most people attend the Vermont Bar Association meetings and many stayed over at least one night, which meant that we broke bread together and usually had a few drinks.

In September, the judges rotated to new assignments and the new judge in the county would begin the term with a docket call. Nearly every lawyer who had a civil case would go to the courthouse and when the lawyer’s case was reached, the lawyer and opposing counsel would fill the Court in on the status of the case. If the case was ready to try, the judge would assign a date for a jury drawing.

As far as I knew, no one except labor lawyers, had ever participated in a mediation. Most settlements of civil cases occurred on the courthouse steps as we left the court, after we had drawn a jury for trial.

I would be the last to say that the way we did things in those days was better or worse. It was just different. Slower. More personal. Often inefficient. But certainly different.

Best wishes,



Judge Rules That That the Collateral Consequences of Conviction Justify the Release of a Drug Offender

May 27, 2016

“Earth’s most impassable barriers – as Lincoln the lawyer knew, as Lincoln the writer knew – are often those formed not of walls and trenches, nor even of mountains and oceans, but of laws and words.”[1] Senior United States District Judge Fredric Block, in an opinion issued on May 24, [2] ruled that the collateral […]

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Deflategate is a Legal Vacuum

May 3, 2016

Last week the Second Circuit Court of Appeals[1] upheld the ruling of NFL Commissioner Roger Goodell to suspend Tom Brady for four games because of his alleged role in the Deflategate scandal. It is a decision that should have been no surprise to lawyers who understand the law of arbitration. That is because — as a […]

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Should Your Law Firm Have a Social Mission?

April 1, 2016

That question has been running through my mind anew since I happened to pick up the March issue of Inc. Magazine last weekend. The cover story, Why Shark Tank’s Kevin O’Leary Wants You to be Evil,” pits traditional entrepreneur O’Leary against Adam Lowery, who is described as co-founder and chief global sustainability officer of Method, […]

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Hon. John L. Pacht: John, Congratulations, Farewell and Good Luck!

March 12, 2016

“For everything, there is a season.” –Pete Seeger On Friday, one of our founders at Hoff Curtis, John L. Pacht, left us as Vermont Governor Peter Shumlin swore him in as a Superior Judge. Our Superior Court Judges are generalist trial court judges, but Governor Shumlin appointed John to fill a judgeship recently funded to help […]

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Truth is Stranger than Fiction

January 4, 2016

Review: John Surratt: The Lincoln Assassin Who Got Away (Seattle, WA: Bennett & Hastings Publishing 2015) 361 pages, $18.95 “Truth is stranger than fiction, but it is because Fiction is obliged to stick to possibilities; Truth isn’t.” ―Mark Twain, Following the Equator: A Journey Around the World (Hartford, CT: American Publishing Company 1897). Certainly, the […]

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The Joys of “To Do” Lists — Wunderlist

December 14, 2015

Organization has never come easily to me. I am focused on the substance of my work and it’s hard to find time and energy for getting and staying well-organized. But not being well organized makes things harder and slower. Many years ago, I went to a time management seminar and learned a lesson that has served me […]

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“Young Mr. Lincoln:” No Jackleg Lawyer

November 9, 2015

“Youngmrlincoln“. Via Wikipedia. Last weekend, I watched a classic lawyer movie, Young Mr. Lincoln. The 1939 film, directed by John Ford, stars a young Henry Fonda as Abraham Lincoln deciding to pursue a career in the law, and trying his first murder case. Lincoln is portrayed as saving the lives of two clients-–a pair of […]

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Why I am a Literalist About the Law

October 23, 2015

Everyone is presumed to know the law. This is a useful — perhaps even an essential — legal fiction. Of course, it is also entirely false. The truth is, no one knows the law. The law is far too massive and far too complex to be held in the mind of any single individual. That […]

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