flexible standard in Vermont

2007In Welch, we imposed a limited right to counsel to aid the operator in making the decision whether to take the test because of the serious consequences of the decision. 135 Vt. at 321-22, 376 A.2d at 355.

2007In Welch, we imposed a limited right to counsel to aid the operator in making the decision whether to take the test because of the serious consequences of the decision. 135 Vt. at 321-22, 376 A.2d at 355.

2009The Vermont Supreme Court has “warned that, despite the flexible standard federal rule].” Town of Killington, 2003 VT 87 , ¶ 16 (citing State v. Felix, 153 Vt. 170, 171 (1989)). 8 announced in Pioneer, ignorance of the law or inattention to detail would rarely constitute excusable neglect.”10 In re Lund, 2004 VT 55, ¶ 5 (citing Town of Killington, 2003 VT 87A, ¶¶ 17–18); see also Pioneer, 507 U.S. at 392 (“[I]nadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute ‘excusable’ neglect.”); Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355 , 366–67 (2d.

2009The Vermont Supreme Court has “warned that, despite the flexible standard federal rule].” Town of Killington, 2003 VT 87 , ¶ 16 (citing State v. Felix, 153 Vt. 170, 171 (1989)). 8 announced in Pioneer, ignorance of the law or inattention to detail would rarely constitute excusable neglect.”10 In re Lund, 2004 VT 55, ¶ 5 (citing Town of Killington, 2003 VT 87A, ¶¶ 17–18); see also Pioneer, 507 U.S. at 392 (“[I]nadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute ‘excusable’ neglect.”); Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355 , 366–67 (2d.

1995The Daubert Court concluded that Rule 702 relaxed the traditional barriers to admission of expert testimony, Daubert, 509 U.S. at 588-89 , 113 S. Ct. at 2794 , and replaced the Frye “general acceptance” requirement with a flexible standard governed by two principles: reliability and relevance. 3 Id. at 595, 113 S. Ct. at 2797 .

1995The Daubert Court concluded that Rule 702 relaxed the traditional barriers to admission of expert testimony, Daubert, 509 U.S. at 588-89 , 113 S. Ct. at 2794 , and replaced the Frye “general acceptance” requirement with a flexible standard governed by two principles: reliability and relevance. 3 Id. at 595, 113 S. Ct. at 2797 .

2009The Vermont Supreme Court has “warned that, despite the flexible standard federal rule].” Town of Killington, 2003 VT 87 , ¶ 16 (citing State v. Felix, 153 Vt. 170, 171 (1989)). 8 announced in Pioneer, ignorance of the law or inattention to detail would rarely constitute excusable neglect.”10 In re Lund, 2004 VT 55, ¶ 5 (citing Town of Killington, 2003 VT 87A, ¶¶ 17–18); see also Pioneer, 507 U.S. at 392 (“[I]nadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute ‘excusable’ neglect.”); Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355 , 366–67 (2d.

2009The Vermont Supreme Court has “warned that, despite the flexible standard federal rule].” Town of Killington, 2003 VT 87 , ¶ 16 (citing State v. Felix, 153 Vt. 170, 171 (1989)). 8 announced in Pioneer, ignorance of the law or inattention to detail would rarely constitute excusable neglect.”10 In re Lund, 2004 VT 55, ¶ 5 (citing Town of Killington, 2003 VT 87A, ¶¶ 17–18); see also Pioneer, 507 U.S. at 392 (“[I]nadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute ‘excusable’ neglect.”); Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355 , 366–67 (2d.

2004Coon, 974 P.2d at 399 .

2000See United States v. Martinez, 3 F.3d 1191, 1197 (8th Cir. 1993) (pre-Daubert analysis of DNA admissibility persuasive partly because “court employed a reliability approach to Rule 702 similar to that taken in Daubert”); State v. Coon, 974 P.2d 386, 398 (Alaska 1999) (methodologies admissible under earlier standard remain admissible under Daubert “absent affirmative evidence of unreliability”).

2024Co. v. New York City, 438 U.S. 104, 124 (1978)], balancing factors such as the economic impact of the regulation, its interference with reasonable investment-backed expectations, and the character of the government action.” Cedar Point Nursery, 549 U.S. at 148. ¶ 18.

2017The majority does not address why its standard for establishing a factual basis through a colloquy with the defendant as part of ensuring voluntariness is required for guilty pleas but is not required for nolo pleas, where the end result of each is a conviction. 31 ¶ 11, 185 Vt. 550 , 975 A.2d 1226 (“The requirement that the record affirmatively show facts to satisfy each element of the offense is . . . absolute.”); In re Stocks, 2014 VT 27, ¶ 21 (quoting In re Miller, 2009 VT 36, ¶ 11 ); In re Manning, 2016 VT 53, ¶ 18 (quoting In re Miller, 2009 VT 36, ¶ 11 ); see also United States v. Tunni

2017See, e.g., In re Miller , 2009 VT 36 , ¶ 11, 185 Vt. 550 , 975 A.2d 1226 ("The requirement that the record affirmatively show facts to satisfy each element of the offense is ... absolute."); In re Stocks , 2014 VT 27 , ¶ 21, 196 Vt. 160 , 94 A.3d 1143 (quoting In re Miller , 2009 VT 36 , ¶ 11, 185 Vt. 550 , 975 A.2d 1226 ); In re Manning , 2016 VT 53 , ¶ 18, 202 Vt. 111 , 147 A.3d 645 (quoting In re Miller , 2009 VT 36 , ¶ 11, 185 Vt. 550 , 975 A.2d 1226 ); see also Tunning , 69 F.3d at 111 (recognizing that "while the exact method of producing a factual basis on the record is subject to a fle

2017But see State v. Riefenstahl , 172 Vt. 597 , 599, 779 A.2d 675 , 678 (2001) (mem.) (finding substantial compliance with Rule 11, including Rule 11(f) ); Pardue v. State , 363 Ark. 567 , 215 S.W.3d 650 , 656 (2005) (recognizing under similar rule that substantial compliance with factual-basis requirement will suffice, and explaining that "requirement of a factual basis for a plea does not require that the appellant be proven guilty, but merely that there was sufficient evidence from which the trial court could conclude that the appellant would be found guilty, if he elected to proceed to trial.

2017But see State v. Riefenstahl , 172 Vt. 597 , 599, 779 A.2d 675 , 678 (2001) (mem.) (finding substantial compliance with Rule 11, including Rule 11(f) ); Pardue v. State , 363 Ark. 567 , 215 S.W.3d 650 , 656 (2005) (recognizing under similar rule that substantial compliance with factual-basis requirement will suffice, and explaining that "requirement of a factual basis for a plea does not require that the appellant be proven guilty, but merely that there was sufficient evidence from which the trial court could conclude that the appellant would be found guilty, if he elected to proceed to trial.

2017See, e.g., In re Miller , 2009 VT 36 , ¶ 11, 185 Vt. 550 , 975 A.2d 1226 ("The requirement that the record affirmatively show facts to satisfy each element of the offense is ... absolute."); In re Stocks , 2014 VT 27 , ¶ 21, 196 Vt. 160 , 94 A.3d 1143 (quoting In re Miller , 2009 VT 36 , ¶ 11, 185 Vt. 550 , 975 A.2d 1226 ); In re Manning , 2016 VT 53 , ¶ 18, 202 Vt. 111 , 147 A.3d 645 (quoting In re Miller , 2009 VT 36 , ¶ 11, 185 Vt. 550 , 975 A.2d 1226 ); see also Tunning , 69 F.3d at 111 (recognizing that "while the exact method of producing a factual basis on the record is subject to a fle

2017See, e.g., In re Miller , 2009 VT 36 , ¶ 11, 185 Vt. 550 , 975 A.2d 1226 ("The requirement that the record affirmatively show facts to satisfy each element of the offense is ... absolute."); In re Stocks , 2014 VT 27 , ¶ 21, 196 Vt. 160 , 94 A.3d 1143 (quoting In re Miller , 2009 VT 36 , ¶ 11, 185 Vt. 550 , 975 A.2d 1226 ); In re Manning , 2016 VT 53 , ¶ 18, 202 Vt. 111 , 147 A.3d 645 (quoting In re Miller , 2009 VT 36 , ¶ 11, 185 Vt. 550 , 975 A.2d 1226 ); see also Tunning , 69 F.3d at 111 (recognizing that "while the exact method of producing a factual basis on the record is subject to a fle

2017See, e.g., In re Miller , 2009 VT 36 , ¶ 11, 185 Vt. 550 , 975 A.2d 1226 ("The requirement that the record affirmatively show facts to satisfy each element of the offense is ... absolute."); In re Stocks , 2014 VT 27 , ¶ 21, 196 Vt. 160 , 94 A.3d 1143 (quoting In re Miller , 2009 VT 36 , ¶ 11, 185 Vt. 550 , 975 A.2d 1226 ); In re Manning , 2016 VT 53 , ¶ 18, 202 Vt. 111 , 147 A.3d 645 (quoting In re Miller , 2009 VT 36 , ¶ 11, 185 Vt. 550 , 975 A.2d 1226 ); see also Tunning , 69 F.3d at 111 (recognizing that "while the exact method of producing a factual basis on the record is subject to a fle

2017See, e.g., In re Miller , 2009 VT 36 , ¶ 11, 185 Vt. 550 , 975 A.2d 1226 ("The requirement that the record affirmatively show facts to satisfy each element of the offense is ... absolute."); In re Stocks , 2014 VT 27 , ¶ 21, 196 Vt. 160 , 94 A.3d 1143 (quoting In re Miller , 2009 VT 36 , ¶ 11, 185 Vt. 550 , 975 A.2d 1226 ); In re Manning , 2016 VT 53 , ¶ 18, 202 Vt. 111 , 147 A.3d 645 (quoting In re Miller , 2009 VT 36 , ¶ 11, 185 Vt. 550 , 975 A.2d 1226 ); see also Tunning , 69 F.3d at 111 (recognizing that "while the exact method of producing a factual basis on the record is subject to a fle

2017See, e.g., In re Miller , 2009 VT 36 , ¶ 11, 185 Vt. 550 , 975 A.2d 1226 ("The requirement that the record affirmatively show facts to satisfy each element of the offense is ... absolute."); In re Stocks , 2014 VT 27 , ¶ 21, 196 Vt. 160 , 94 A.3d 1143 (quoting In re Miller , 2009 VT 36 , ¶ 11, 185 Vt. 550 , 975 A.2d 1226 ); In re Manning , 2016 VT 53 , ¶ 18, 202 Vt. 111 , 147 A.3d 645 (quoting In re Miller , 2009 VT 36 , ¶ 11, 185 Vt. 550 , 975 A.2d 1226 ); see also Tunning , 69 F.3d at 111 (recognizing that "while the exact method of producing a factual basis on the record is subject to a fle

2017See, e.g., In re Miller , 2009 VT 36 , ¶ 11, 185 Vt. 550 , 975 A.2d 1226 ("The requirement that the record affirmatively show facts to satisfy each element of the offense is ... absolute."); In re Stocks , 2014 VT 27 , ¶ 21, 196 Vt. 160 , 94 A.3d 1143 (quoting In re Miller , 2009 VT 36 , ¶ 11, 185 Vt. 550 , 975 A.2d 1226 ); In re Manning , 2016 VT 53 , ¶ 18, 202 Vt. 111 , 147 A.3d 645 (quoting In re Miller , 2009 VT 36 , ¶ 11, 185 Vt. 550 , 975 A.2d 1226 ); see also Tunning , 69 F.3d at 111 (recognizing that "while the exact method of producing a factual basis on the record is subject to a fle

2016See In re Gadhue, 149 Vt. 322, 327 , 544 A.2d 1151, 1154 (1987).

2016See In re Gadhue, 149 Vt. 322, 327 , 544 A.2d 1151, 1154 (1987).

2009Although Pioneer established a more flexible standard than had been previously applied to such motions, it remains appropriate for the court to consider whether the circumstances claimed as excusable neglect are “unique or extraordinary circumstances.” See Graphic Commc’ns Int’l Union, 270 F.3d at 8 (1st Cir. 2004) (stating that although Pioneer replaced the prior “excusable neglect” test based solely on a finding of “unique and extraordinary circumstances,” that standard could still be used “not as a talisman, but as a check on [a Court’s] conclusion that [a certain] degree of carelessness an

2009Although Pioneer established a more flexible standard than had been previously applied to such motions, it remains appropriate for the court to consider whether the circumstances claimed as excusable neglect are “unique or extraordinary circumstances.” See Graphic Commc’ns Int’l Union, 270 F.3d at 8 (1st Cir. 2004) (stating that although Pioneer replaced the prior “excusable neglect” test based solely on a finding of “unique and extraordinary circumstances,” that standard could still be used “not as a talisman, but as a check on [a Court’s] conclusion that [a certain] degree of carelessness an

2009The Vermont Supreme Court has “warned that, despite the flexible standard federal rule].” Town of Killington, 2003 VT 87 , ¶ 16 (citing State v. Felix, 153 Vt. 170, 171 (1989)). 8 announced in Pioneer, ignorance of the law or inattention to detail would rarely constitute excusable neglect.”10 In re Lund, 2004 VT 55, ¶ 5 (citing Town of Killington, 2003 VT 87A, ¶¶ 17–18); see also Pioneer, 507 U.S. at 392 (“[I]nadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute ‘excusable’ neglect.”); Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355 , 366–67 (2d.

2009The Vermont Supreme Court has “warned that, despite the flexible standard federal rule].” Town of Killington, 2003 VT 87 , ¶ 16 (citing State v. Felix, 153 Vt. 170, 171 (1989)). 8 announced in Pioneer, ignorance of the law or inattention to detail would rarely constitute excusable neglect.”10 In re Lund, 2004 VT 55, ¶ 5 (citing Town of Killington, 2003 VT 87A, ¶¶ 17–18); see also Pioneer, 507 U.S. at 392 (“[I]nadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute ‘excusable’ neglect.”); Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355 , 366–67 (2d.

2009The Vermont Supreme Court has “warned that, despite the flexible standard federal rule].” Town of Killington, 2003 VT 87 , ¶ 16 (citing State v. Felix, 153 Vt. 170, 171 (1989)). 8 announced in Pioneer, ignorance of the law or inattention to detail would rarely constitute excusable neglect.”10 In re Lund, 2004 VT 55, ¶ 5 (citing Town of Killington, 2003 VT 87A, ¶¶ 17–18); see also Pioneer, 507 U.S. at 392 (“[I]nadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute ‘excusable’ neglect.”); Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355 , 366–67 (2d.

2009The Vermont Supreme Court has “warned that, despite the flexible standard federal rule].” Town of Killington, 2003 VT 87 , ¶ 16 (citing State v. Felix, 153 Vt. 170, 171 (1989)). 8 announced in Pioneer, ignorance of the law or inattention to detail would rarely constitute excusable neglect.”10 In re Lund, 2004 VT 55, ¶ 5 (citing Town of Killington, 2003 VT 87A, ¶¶ 17–18); see also Pioneer, 507 U.S. at 392 (“[I]nadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute ‘excusable’ neglect.”); Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355 , 366–67 (2d.

2004See 2003 VT 87A, ¶¶ 16-17; see also Pioneer, 507 U.S. at 392 (ignorance of rules or mistakes in construing rules do not usually constitute excusable neglect); Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 366-67 (2d Cir. 2003) (even after Pioneer, equities will rarely if ever favor party who fails to follow clear dictates of court rule; where rule is clear, party claiming excusable neglect will ordinarily lose); Webster v. Pacesetter, Inc., 270 F. Supp. 2d 9, 12 (D.

2002See Ojala v. Bohlin, 2 Cal. Rptr. 919, 924 (Ct. App. 1960) (“The legal concept of unfair competition has evolved as a broad and flexible doctrine with a capacity for further growth to meet changing conditions, and there is no complete list of activities which constitute unfair competition.”); Ryan v. Carmona Bolen Home For Funerals, 775 A.2d 92, 95 (N.J.

2002See Ojala v. Bohlin, 2 Cal. Rptr. 919, 924 (Ct. App. 1960) (“The legal concept of unfair competition has evolved as a broad and flexible doctrine with a capacity for further growth to meet changing conditions, and there is no complete list of activities which constitute unfair competition.”); Ryan v. Carmona Bolen Home For Funerals, 775 A.2d 92, 95 (N.J.

2000See United States v. Martinez, 3 F.3d 1191, 1197 (8th Cir. 1993) (pre-Daubert analysis of DNA admissibility persuasive partly because “court employed a reliability approach to Rule 702 similar to that taken in Daubert”); State v. Coon, 974 P.2d 386, 398 (Alaska 1999) (methodologies admissible under earlier standard remain admissible under Daubert “absent affirmative evidence of unreliability”).