Vermont Bar Journal, Vol. 40, No. 2 VBA Journal, Winter Issue, Vol. 41, No. 4 | Page 15

The phrase is from Matthew 23:23: “Woe unto you, Scribes and Pharisees, hypo- crites; for ye pay tithe of mint, and cummin, and anise, and have omitted the weightier matters of the law, judgement, mercy and faith, or rather fidelity: these ought yet to have done, and not to leave the other un- done.” This is Jesus talking about lawyers. That is very wise, and a fit ending to a true rumination, except how can we not make certain logical conclusions based on these word choices? First, they are made consciously. No judge could write cavil and not expect that it would sound foreign to the reader. The judge is using the term dis- paragingly in most cases. To call out cavil is to accuse one of acting in a consciously dis- honest fashion, attempting to distract the decision-maker from the “weightier mat- ters of the law,” critical of shenanigans and www.vtbar.org tricks, and chicane. To the advocate who has made choices on what to argue, the same conclusion might not be shared. If cavil came with an audio clip, like a cell phone alert, you would hear a click or snap as it appeared in a decision, signifying the closing of a mind to what is alleged. It tolls all further conjecture or consideration of something that need not be raised again. ____________________ Paul S. Gillies, Esq., is a partner in the Montpelier firm of Tarrant, Gillies & Rich- ardson and is a regular contributor to the Vermont Bar Journal. A collection of his columns has been published under the ti- tle of Uncommon Law, Ancient Roads, and Other Ruminations on Vermont Legal His- tory by the Vermont Historical Society. ____________________ In re Williams, 197 Vt. 39, 59 (2014), ¶ 53. State v. Johnstone, 194 Vt. 230, 238-239 (2013), ¶ 25. 3 McCormack v. Rutland Hospital, Inc., 194 Vt. 242, 249 (2013), ¶ 16. 4 Trudell v. State, 193 Vt. 515, 519 (2013), ¶ 7. 5 Ex-Ante means the warrant was based on assumption and prediction, not actual results, which are ex-post. Bryan Garner, A Dictionary of Modern Legal Usage (Oxford and New York: Ox- ford University Press, 1995), 334. 6 In re Search Warrant, 193 Vt. 51, 94 (2012): ¶ 85. 7 Id. 8 State v. Wyrocki, 191 Vt. 177, 181-182 (2012), ¶ 11. 9 In re Houston, 180 Vt. 535, 543 (2006): ¶ 25. “Frosted” is deserving of its own investigation as 1 2 THE VERMONT BAR JOURNAL • WINTER 2016-17 a term of derision in Supreme Court decisions. 10 Lomberg v. Renner, 121 Vt. 311, 315 (1959). 11 State v. Jarvis, 89 Vt. 239 (1915). 12 Shum’s Adm’x v. Rutland R. Co., 81 Vt. 186 (1908). 13 Crosby v. School Dist. No. 9 in Readsboro, 35 Vt. 623, 628 (1863). 14 Lyon v. McLaughlin, 32 Vt. 423, 425 (1859). 15 William Shakespeare, Henry IV Part 1 (New York: Houghton Mifflin Company, 1997). 907; Conant v. The Bellows Falls Canal Company, 29 Vt. 263, 271-272 (1857). 16 Id. 17 Davis & Aubin v. John Bradley & Co., 28 Vt. 118, 127 (1855). 18 State v. Williams, 27 Vt. 724 (1855). 19 Lapham v. Briggs, 27 Vt. 26 (1854). 20 Sherman v. Johnson, 20 Vt. 567 (1848). 21 Boston India Rubber Factory v. Hoit, 14 Vt. 92 (1842). 22 Fenton v. Clark, 11 Vt. 557 (1839). 23 Kirkaldie v. Paige, 17 Vt. 256 (1845). 24 Graves v. Adams, 8 Vt. 130, 133 (1836). 25 Allen v. Warren, 9 Vt. 203, 207 (1837). 26 Torrey v. Field, 10 Vt. 353 (1838). 27 Dulany v. Wells, 3 H & McH. 20, 42 (1790). 28 Burges v. Hack, 2 Va. Colonial Dec. B195, 3 (1735). 29 Thomas Cranmore, An Answer unto a Crafty and Sophistical Cavillation (London: Iohn Daye, 1590). 30 John Milton, Paradise Lost, Book X, lines 758- 759 (New York: The Odyssey Press, 1957), 424. 31 “Cavil,” Oxford English Dictionary (Glasgow and New York: Oxford University Press, 1971), 204-205. 32 Smith v. Martin, 93 Vt. 111 (1919). 33 Newll v. Town of Whitingham, 58 Vt. 341 (1886). crossing of the t’s and the dotting of the i’s; to make the law, designed to further justice and an even distribution of the public burdens, an instrument of oppression, wrong, and injustice; and all this, simply because the listers- -the administrators of the law--did not know their duty. . . . Why should their ignorance of the law, and unfounded fears for themselves, be made a penal offense on the plaintiff, and be visited on him by more than doubling his just taxes? 33 15