Record on Appeal

HSBA Appellate Section Hosts the Newest Associate Judge of the Hawaii Intermediate Court of Appeals

On January 31, 2019, the HSBA Appellate Section hosted Hawaii’s newest appellate judge at its regular monthly meeting.  ICA Associate Judge Keith K. Hiraoka discussed his background, his transition from circuit to appellate court, and provided members of the section with practice tips. 

Judge Hiraoka’s general practice pointers included:

• Follow the appellate rules
• Provide the correct citations to published opinions – rather than the court docket number
• Bookmark PDFs filed with the court – this helps the judges better navigate the documents
• Remember to comply with Hawaii Court Record Rule 9 (related to the protection of personal information) – be sure to redact protected information from exhibits attached to appellate filings
• When drafting proposed findings of fact at the trial level (and in preparation for appeal), cite to the evidence in the document filed with the trial court – this will make referencing the evidence easier on appeal
• If possible, take advantage of any argument that a finding of fact may be construed as a conclusion of law

For oral argument, Judge Hiraoka provided the following advice:

• If your case is set for oral argument, be sure to come to the argument prepared
• The least effective approach to oral argument is to read
• Make sure you have key topics ready, but be prepared to answer questions that may be different
• Listen to the question
• It’s OK to ask for clarification of a question if you don’t understand
• Be honest about what you don’t know
• Don’t be afraid of silence if it is productive silence – for example, silence while thinking – silence is better than stammering or other space fillers

On how cases are managed at the ICA, Judge Hiraoka provided the following insights:

• Merit panels are chosen randomly by the clerk’s office
• All opinions are circulated to all the judges, unless someone is recused or there is a conflict, even if the judge is not on the merit panel
• Judges not on a merit panel are given the opportunity to comment on all opinions, but only the panel ultimately decides the case
• The judges have a weekly meeting to discuss pending dispositions

Mahalo to Judge Hiraoka for sharing your invaluable advice and insights with the Appellate Section!

The Signature of a Judge or Clerk (as relevant) is Required Before an Appeal is Filed (Usually)

On September 17, 2018, the Hawaii Supreme Court filed an opinion in a case entitled Deutsche Bank National Trust vs. Michael C. Greenspon, SCWC-14-0001137. Of interest to appeals, the HAWSCT addressed the issue of “whether a final order must be signed by a district court clerk or judge for an appeal to lie from that order.” Slip. Op. at 1-2. The court answered, generally, in the affirmative. However, the court also held that under the specific facts of this case appellate jurisdiction existed even though the appealed order contained no such signature because “other signed filings related to the order being appealed were sufficient to provide appellate jurisdiction.” Id. at 2.

Greenspon appealed, in part, an order that denied his request for costs. The order was not signed. However, the lower court had also denied a proposed judgment. The Denial of Proposed Judgment was accompanied by a court “Denial Form.” The Denial Form was signed by a trial court judge.

At the onset of its analysis of this issue, the HAWSCT noted that “the statute and rule authorizing appeals to the ICA do not expressly provide that a signature is required for entry of an appealable order or final judgment.” Slip. Op. at 21-22. Based on the relevant rules and governing statues, the HAWSCT held that “a signature of a clerk or judge as to the text of an order is necessary to fulfill the requirements of an ‘entry of judgment or appealable order’ under HRAP Rule 4(a).”

HRAP 4(a) governs the timing for filing civil appeals. Under the HAWSCT’s analysis, the ability of a clerk to sign an order, rather than a judge, is based on specific statutes and rules that permit clerk’s to sign certain types of orders and judgments, including HRS § 604-20, and Hawaii Rules of the District Court Rule 10.

While the court recognized the necessity of a signature of a clerk or judge (whichever is permitted by rule or statute), in this particular case, the HAWSCT held that the absence of such a signature on the appealed order denying the request for costs was not fatal to appellate jurisdiction. According to the court, “other documents in the record [] support a finding that the district court effectively denied the Request for Costs.” Slip. Op. at 26-27. Specifically, although neither the order denying costs nor the denial of proposed judgment contained a signature, the Denial Form was signed by a judge. Thus, the HAWSCT held that “construing the Order Denying Request for Costs with the Denial of Proposed Judgment and its accompanying Denial Form, we find that there is appellate jurisdiction over the appeal from the Order Denying Request for Costs.” Slip. Op. at 28.

The court also addressed the issue of “whether a motion for sanctions may be dismissed without prejudice when the underlying facts and issues allegedly establishing the sanctionable conduct are also at issue in another pending case involving the same parties.” Slip Op. at 1. The HAWSCT held that the lower court did not err.

The HAWSCT’s full unanimous opinion, authored by Justice Pollack, is available here.

Supreme Court Seeks Comments on HRAP Amendments

The Hawaii Supreme Court is currently seeking comments on proposed amendments to the Hawaii Rules of Appellate Procedure.

Amendments to HRAP Rules 3 and 4 (found here) clarify the procedure for filing notices of appeal in both civil and criminal cases, including the rules governing when a notice of appeal must be filed electronically through JEFS versus when an appeal may be initiated in a lower court or agency.  The proposed amendments consolidate the civil and criminal statement of these rules into a HRAP Rule 3 -- whereas they are currently set forth separately in HRAP 4(a) and 4(b).

The deadline for comments is August 20, 2018, and the link above provides the information on where to send comments.

There are also proposed amendments to HRAP 54, governing notices to the appellate court of bankruptcy proceedings.  Under the amendments (found here), any party with knowledge of a bankruptcy proceeding that stays the appeal must give the court notice.

The deadline for comments on these proposed amendments is September 11, 2018.

 

 

2016 Bar Convention Recap I: The Importance of Preservation of Error for Appeals

This is the first in our four-part recap of the 2016 Hawaii State Bar Association’s Annual Bar Convention, held on October 14, 2016.

One of the programs held by the HSBA Appellate Section at the convention related to the issue of preservation of error. The panel included Intermediate Appellate Court Judge Alexa Fujise, fellow appellate practitioner Ben Lowenthal (whose blog is here), and this blogger. The panelists discussed a range of topics from why preservation of error is important, preservation issues specific to both civil and criminal practice, and perspectives form the bench.

Some of the tips related to preservation of error included:

• Ensuring preservation of error is important because it establishes that both the lower court and the opposing party has received notice of what may eventually be an error alleged on appeal;
• Be aware that some issues are waived if they are not properly presented in either the trial court or the appellate court;
• Generally, an issue will be preserved if you raised it in a way that gave the trial court a reasonable opportunity to rule;
• If you think an error has occurred, you need to get something in the record – there are many situations where issues are not preserved even if the trial attorney thought about them or knew about them but failed to ensure that the objection was reflected in the record;
• Starting before the complaint or answer is filed, and throughout the case, take time to consider potential legal issues that may come into play – and when to raise them;
• Avoid waiver based on failure to raise or raise again if that is required (ex. Motion in limine – trial objection);
• Understand how factual vs. legal issue objections will play out on appeal based on the standard of review – deferential for questions of fact vs. de novo for questions of law;
• Understand interplay with appellate procedure – Hawaii Rule of Appellate Procedure 28(b)(4);
• The basics of preservation of error includes timing, specificity, and getting a ruling on the record;
• Remember to cite the correct rule/basis for your objection;
• If by motion or trial brief, be as clear and detailed as possible on theory/analysis & authority;
• Examples of pleadings in which there is an opportunity to preserve error include in the answer, counterclaim, MSJs, motions in limine, motions to dismiss, motions to strike, and trial briefs;
• Use to preserve issues related to the judgment/verdict/jury misconduct/etc.; to ensure errors preserved; to reiterate position (whether the winner or loser), but be careful if should have raised earlier because the issues could be deemed not timely raised by appellate court.

Mahalo to the HSBA Appellate Section for the opportunity to be included on the panel, and for continuing to provide information to practitioners on these important topics!

Saving An Appeal Where the Appellate Court Lacks Jurisdiction? Recon May Be Possible

In the many years we’ve been tracking the statistics for the Hawaii appellate courts, rarely does a month go by without the Intermediate Court of Appeals dismissing an appeal (usually many more) for lack of appellate jurisdiction.

The problem with the dismissed appeals is usually due to the appeal having been filed from a judgment that is not final. The seminal case on Hawaii appellate jurisdiction, and the final judgment rule in civil cases, is the Hawaii Supreme Court’s decision in Jenkins v. Cades Schutte Fleming and Write, 76 Haw. 115. 869 P.2d 1334 (1994).

We have posted about the need for attorneys to comply with Jenkins many times in the past, for example, here, here, and here.

Sometimes appeals are filed from non-final judgments because the parties simply do not realize that the judgment is not final, but other times an appellant is essentially forced to file an appeal from a non-final judgment because the trial court (and potentially the opposing parties) refuse the soon-to-be appellant’s requests to enter a Jenkins compliant judgment.

However, recently the ICA may have provided a light at the end of the dismissal tunnel for a limited number of appeals in which an appeal is filed, the judgment is not final for purposes of appeal, but the Jenkins complaint judgment is filed within the short period for reconsideration from the order dismissing the appeal.

On February 23, 2016, the ICA filed an Order granting a motion for reconsideration in Dianne Kawashima v. State of Hawaii, Department of Education, et. al., CAAP-15-0000462.

In Kawashima, the ICA dismissed the appeal for lack of appellate jurisdiction. However, according to the order granting reconsideration, a final judgment complying with Jenkins was entered during the reconsideration period:

“. . . it appears that, although we did not overlook or misapprehend any points of law or fact when we entered the February 3, 2016 dismissal order, the circuit court subsequently entered a February 11, 2016 amended judgment that satisfies the requirements for an appealable final judgment under Hawaii Revised Statutes (HRS) 641-1(a) . . . Rule 58 of the Hawaii Rules of Civil Procedure (HRCP) and [Jenkins].”

Order at 2.

A few key points:

• The motion for reconsideration was filed within the time limits under HRAP 40 – i.e. within 10 days of the order dismissing the appeal;
• The motion filed in Kawashima was a joint motion for reconsideration – although it is unknown whether this would be necessary;
• The exact circumstances as to why an appeal was filed from a non-final judgment, and why or how the parties obtained the amended final judgment so quickly are unknown (perhaps it was already in the works).

But, regardless of the unknowns, it is worth keeping in mind that this may be an avenue to save a dismissed appeal in the right circumstances.

The ICA’s Order granting reconsideration in Kawashima is available ICA.

Motions to Stay in the Hawaii Appellate Courts

On March 14, 2016, the HSBA Appellate Section hosted two staff attorneys who work at the Hawaii Intermediate Court of Appeal to discuss the topic of motions to stay.

The following information and practice pointers were provided:

• Hawaii Rules of Appellate Procedure Rule 8 governs motions to stay in the appellate courts;
• Motions to stay are needed after the 10-day post-judgment stay that applies automatically under the Hawaii Rules of Civil Procedure (HRCP);
• Filing a notice of appeal is not the same as filing a motion to stay, and the notice of appeal will not stay the underlying proceedings;
• Even if all the parties agree to the stay, it must still be requested by motion, filing a stipulation is not sufficient;
• A motion to stay must first be filed in the trial court or agency – only if the motion is denied should a party then seek the stay from the appellate court;
• The Motion to stay in the appellate court must establish that the stay was already sought and denied by the lower court or agency;
• A motion to stay may be filed in the first instance in the appellate court (i.e. not filed first in the trial court or agency) only if it is not practicable to seek the stay in the lower court or agency first – for example, some kind of “emergency” reason or urgent circumstances for the stay;
• Make sure the title to the motion accurately describes what is being sought;
• Motion to stay filed with the appellate court are not granted unless the 3 part standard/test is met: (1) likelihood that the party will prevail on appeal; (2) irreparable harm; and (3) public interest;
• Under the first factor, the party seeking the stay must show that there is a substantial likelihood that the party will prevail on appeal;
• The court needs to be provided with everything necessary to evaluate this factor;
• As a consequence, a motion to stay may effectively be like an opening brief, including all the arguments why the party should prevail on appeal;
• The supportive documents from the record must also be provided, and if the record is not already filed, they should be attached to the motion;
• The party may also ask that the clerk of the lower court or agency transmit the record to the appellate court under HRAP Rule 11(d);
• Under the second factor, the party seeking the stay must show irreparable harm;
• This harm is of such a character that redress cannot be had in court – thus, money damage is generally not sufficient harm since compensatory relief may be obtained from a court;
• The harm cannot be speculative;
• This harm can be harm to the public;
• Under the third factor, the party seeking the stay must explained the public interest in granting the stay;
• Motions to stay are generally summarily granted or denied;
• These motions are reviewed by the motions panel, which may not be the same judges as the merit panel;
• If there is an extreme urgency, a motion to stay may be reviewed and disposed of by one judge;
• There is no specific timeframe in which a motion to stay will be decided – but the court takes into consideration the degree of urgency;
• Many motions are denied because they cannot meet the first factor – they cannot show a substantial likelihood of prevailing on appeal;
• The ICA denies more motions to stay than it grants;
• If the appeal is pending in the ICA, then the motion to stay is filed in the ICA;
• Relief under a stay may be conditioned on the posting of a bond;
• The surety under the bond must submit to the jurisdiction of the court or agency;
• HRS 607-26 sets upper limits on the amount of the bond (with some exceptions).

Mahalo for to the Appellate Section and the presenters for tips on stays!

New Amended Rules of Appellate Procedure Take Effect July 1, 2016

The HAWCT recently issued an order amending some of the Hawaii Rules of Appellate Procedure.

HRAP Rules 11, 12.1, 29, and 29 are amended effective July 1, 2016.

The following is a summary of the amendments to the rules. For the full amendments, go here to see the court’s Order (dated 2/17/16).

Summary of Amendments to HRAP Rule 11, governing the record on appeal:

➢ Rule 11 is amended to clarify that the record on appeal includes the record from an agency, if the appeal arises from the decision of an agency (versus a trial court);

➢ Rule 11 is also amended to include specific information that must be included in the “flyleaf”;

➢ Rule 11 now provides that the imaged record includes a “bookmark” to more easily access the documents included in the record;

➢ Rule 11 now includes specifics on the treatment of documents that are sealed or designated “in camera” – this includes the requirement that such documents “must be filed separate from the rest of the record on appeal and appropriately designated as sealed or in camera.” HRAP 11 (b)(4). This is a duty of the clerk of the lower court or agency.

Summary of Amendment to HRAP Rule 12.1, governing statements of jurisdiction:

➢ Rule 12.1 is amended to provide that the failure to file a statement of jurisdiction may result in sanctions;

➢ The sanctions include dismissal of the appeal;

➢ Sanctions may not be imposed unless the court gives the party notice and an opportunity to be heard.

Summary of Amendments to HRAP 28, governing briefs:

➢ Rule 28 is amended to clarify how parties should cite to the record on appeal in their briefs;

➢ Under the amended rule, parties should cite to the record by including (1) a description of the document, (2) the JIMS or JEFS docket number, (3) the electronic page number, if available, or (4) if no electronic page number is available, then parties should use the filing date and the page number within the document;

➢ We have blogged about how to cite to the record before, since the appellate judges have mentioned this preferred citation form at CLE events – there different ways to accomplish this citation form, for example: RA Dkt 3 at 546 (Complaint) or JEFS Dkt 3 at 546 (Complaint);

➢ This amendment does not change the HRAP requirement that the date for transcripts must also be provided;

➢ The amendments also include tech changes.

Summary of Amendment to HRAP 29, governing extension of time to file briefs:

➢ Rule 29(b) is amended to require that any motions to extend time must be filed at least 5 days before the due date for the brief;

➢ This amendment applies to extensions requested other than the initial 30-day clerk’s extension;

➢ Practitioners should be aware that the rules do not require motions to extend to be granted by any particular time frame.

This is a summary of the amendments, and because this summary does not include the specific language of the HRAP or the HRAP amendments, the actual rules should be consulted. They are available here.

Deadline to Comment on HRAP 4 Changes

Tomorrow, February 8, 2016, is the deadline to submit comments on proposed changes to Rule 4 of the Hawaii Rules of Appellate Procedure.

For example, one proposed amendment adds language clarifying when a notice of appeal must be filed after a party has obtained leave to proceed with an interlocutory appeal:

"A motion for leave to file an interlocutory appeal from an order of the circuit court must be filed within 30 days of the court’s entry of the substantive order. If such a motion is filed and granted, then the notice of appeal shall be filed within 30 days after entry of the circuit court’s granting permission for leave to file an interlocutory appeal."  HRAP 4(a)(1).  A similar provision is being proposed for criminal appeals under HRAP 4(b)(1).

There is also a proposed amendment to HRAP 4(a)(3) to deal with the issue raised by the HAWSCT's decision in AOAO of Tropics at Waikele v. Sakuma, which we blogged about here, and in order to clarify when an appeal must be filed related to post-judgment motions.  The proposed changes include adding the following language:

"If the court or agency fails to [enter an order within 90 days after the post judgment motion is filed], then within 5 days after the 90th day, the clerk of the relevant court or agency shall notify the parties that, by operation of this Rule, the post-judgment motion is denied and that any orders entered thereafter shall be nullity. The time of appeal shall run from the date of entry of the court or agency’s order disposing of the post-judgment motion, if the order is filed within the 90 days, or from the filing date of the clerk’s notice to the parties that the post-judgment motion is denied pursuant to the operation of the Rule."

To view the proposed changes, go here.

According to the Judiciary's website, comments should be submitted in writing to the Judiciary Communications and Community Relations Office by mail to 417 South King Street, Honolulu, HI 96813, by facsimile to 539-4801, or via the on-line form here.

Making Your Record For Appeal

On August 25, 2015, the HSBA’s  Litigation Section, Young Lawyer’s Division and Senior Counsel Division held a joint meeting along with the Appellate Section on the topic of “Making A Record” for appeal.  The panelists were Justice Sabrina McKenna, retired Circuit Court Judge Vickie Marks, and attorney Jeff Portnoy.  The tips were useful for both trial and appellate attorneys, and included:

• HRAP 10 defines the “record on appeal” and includes the trial court minutes, the court reporter’s notes, and the court docket;
• It is important to provide the trial court will all it needs to make an informed decision on matters in the case, and also to make sure that all you need is in the record on appeal to be able to support your arguments on appeal;
• For example, read exhibits into the record so that the court reporter will transcribe the information to be sure it is easily referenced in the record on appeal;
• Making a record can be difficult if the trial judge only permits a “one word” objection – but make sure to pursue the objection further outside the presence of the jury;
• Always have a list of rule numbers to quickly referenced as the basis for an objection rather than making longer “speaking” objections;
• Submit something in writing as an offer of proof or motion to preserve in the record;
• Make offers of proof more detailed;
• If you have a jury instruction argument try to make sure you make the same argument after the court reporter is brought back into the courtroom;
• If a jury instruction is important, ensure that the court has filed a document that includes the court’s rulings on the instructions;
• Reiterate motion in limine arguments if doors are opened at trial on limine matters;
• Always speak clearly for the benefit of the court reporter, and give the court reporter a glossary of names and cases;
• Never accept “uh huh” and the like as answers;
• Do not repeat answers and make sure there is no overlapping commentary which does not clearly translate in a transcript on appeal;
• Refer to exhibits by number and that they are “in evidence”;
• Key to good transcript is that everything will be clear to the appellate court;
• If referring to deposition testimony, need to get the information transcribed because there mere reference to the deposition designation is insufficient (Roxas v. Marcos, FN2);
• If there is an issue related to an interpreter's qualifications, make sure you object;
• Use the first person when talking to an interpreter, and do not use idioms, passive voice, or compound questions;
• Make sure to move exhibits into evidence, and double check this was done at the end of the case with the court clerk (or after every witness);
• The Appellant in an appeal is responsible for making sure the record on appeal is accurate;
• If the record on appeal is incomplete, the issue should be attempted to be fixed with the lower court first – if cannot get resolved, then file a motion with the appellate court;
• Remember to order transcripts within 10 days after the notice on appeal is filed, and if all transcripts are not ordered then file a statement of the points of error;
• In an agency appeal, make sure the entire record goes up to the circuit court;
• On appeal, citations to the record on appeal should be to the JEFS Dkt # and PDF page #;
• For oversized exhibits, take a picture and request a stipulation that it be admitted as an alternate or in addition to the original;
• Oversized exhibits stay with the trial court unless a party specifically requests it be transmitted – need to let the appellate court know that the exhibit is important and needs to be transmitted physically to the appellate court.

Mahalo to the Sections and the speakers for the informative presentation!

Advice on Effective Brief Writing

On July 23, 2015, the Hawaii State Bar Association hosted ICA Chief Judge Craig Nakamura on the topic of effective brief writing.  The Chief Judge provided many valuable practice pointers and other advice, including on three key concepts:  (1) Know your audience, (2) Make yourself trustworthy, and (3) Give the court what it wants.

1.         Know your audience:

• Appellate courts are different from trial courts, and have a different perspective, so it is important to know your audience;
• Standard of review is key on appeal;
• An appellate court is not the trier of fact or the primary decision maker;
• The appellate court’s role is not only to decide the case, but to make its decision in the context of other cases/creating precedent;
• Appellate arguments should be tailored to the standard of review;
• Understand, embrace, and consider the standard of review in drafting your brief;
• Appellate arguments should address the concept of precedent, and let the court know if the case will or will not have unintended consequences for other cases.

2.         Make yourself trustworthy:

• Show the court that you are credible so that your analysis can be accepted by the court with confidence;
• Sloppy briefs raise doubts as to credibility;
• Show the court you’ve exercised reasonable judgment about your case;
• For example, understand what errors are critical and worthy of appeal versus a scattershot approach and bringing too many issues;
• Having key cases on point cited and discussed in a brief is more effective than string cites;
• Explain how cited cases help your analysis;
• Don’t assume the court will read the case in the same way as you – explain the case in light of your issue;
• Ensure all cites to the  Record on Appeal and to cases are accurate;

3.         Give the court what it wants:

• Show the court how to rule in your favor by giving it a roadmap to a favorable decision;
• Determine what the key law is and how it applies to the facts in your case;
• Let the court know whether there could be unintended bad results;
• Tell the court if there is a limiting principle that will avoid unintended bad results for other cases;
• An appellee needs to show how the appellant is wrong and the right analysis to make what they argue is the right decision – close the analysis gap;
• Leaving an analytical gap could result in the court filling the gap in a way that is unfavorable to your client.

Other appeal tips included:

• Context is important – give the appellate court enough to understand the context of your case and why the error did or did not make a difference;

• Don’t assume the court is an expert on every facet of the law – if your case involves a specialized area of law, provide the court with sufficient legal context and information;

• Don’t hide from weaknesses in the facts or the law in your case – if you do not address weaknesses, the court may do so in a way that hurts your case, explain to the court why you still win despite any such weaknesses;

• Know the appellate rules and follow them;

• If you fail to put all alleged errors in the Points of Error, they may be disregarded;

• Pay attention to the record on appeal;

• Avoid mistakes in citation to the record on appeal, and if there are mistakes in the record, make sure to have them addressed because the court must use the record (mistakes and all if they are not fixed) to decide the appeal;

• If you allege an error in the exclusion of evidence, make sure that the excluded evidence is included as an exhibit is in the record;

• Don’t make the court search for information fro the record on appeal – if really important include it in the appendix;

• Cite to the Docket # from JEFS for record citations; 

• Avoid overdramatizing the facts/”jury arguments”;

• Avoid being uncivil toward the court, judges, or opposing counsel;

• Don’t give up – even if there is no law on point, be sure to argue analogous law and explain why the court should make a similar decision in your case.