Record on Appeal

Appellate Pro Bono Volunteers Honored At Pro Bono Celebration

As part of national pro bono week, the Hawaii Access to Justice Commission held a celebration to honor attorneys who have given their time to provide legal assistance to members of the Hawaii community who would not otherwise be able to obtain legal assistance.

The 2018 Pro Bono Celebration was held on Thursday, October 25, 2018, at the Hawaii Supreme Court's courtroom.  Pro bono attorneys who have volunteered for many of Hawaii's legal service providers were recognized for their hard work and dedication to access to justice.

In addition, for the first year, attorneys who have volunteered for the Hawaii Appellate Pro Bono Program were honored.

(Pictured with Hawaii Supreme Court Chief Justice Recktenwald, Justice Nakayama, Justice Pollack, and Justice Wilson are Appellate Pro Bono Program volunteer attorneys honored at the event including Mark M. Murakami, of the Damon Key law firm, and Lance Collins).

The Appellate Pro Bono Program matches low to moderate income pro se appellate litigants with attorneys willing to provide pro bono representation in civil cases pending before the Intermediate Court of Appeals and the Hawaii Supreme Court.  The Program is partnership between the Hawaii State Bar Association's Appellate Section and Volunteer Legal Services Hawaii.  

Mahalo to all the volunteers for the Appellate Pro Bono Program -- and to everyone honored at the Pro Bono Celebration who have dedicated countless hours to help those in need!

 

ABA Includes Hawaii Appellate Pro Bono Program in New Publication

The ABA's Council on Appellate Lawyers recently published a Manual on Pro Bono Appeals Programs.  The Manual relates specifically to state court appeals.  It includes pro bono appeal programs from across the US, including Hawaii's Appellate Pro Bono Program.

The Manual is available here.

Hawaii's Appellate Pro Bono Program is a partnership between the HSBA Appellate Section and Volunteer Legal Services of Hawaii.  Hawaii's program matches eligible pro se appellate litigants with attorneys willing to provide pro bono representation.  For more on the program, contact the HSBA Appellate Section (chair@hawaiiappellatesection.org) or Volunteer Legal Services Hawaii (http://www.vlsh.org). 

If you are an attorney interested in volunteering for Hawaii's program, contact this blogger (rebecca@copelandlawllc.com).

Mahalo to fellow appellate attorney and blogger Robert Thomas (http://www.inversecondemnation.com) for letting us know about the manual.

 

Hawaii Supreme Court Certiorari Practice Pointers

A few months ago, the HSBA Appellate Section hosted a discussion on Hawaii Supreme Court certiorari practice. The speakers were appellate attorney Peter Esser and retired HAWSCT Associate Justice Steven Levinson.

The speakers provided many insights and practice pointers, including:

• It is important to consider the factors that could influence the decision whether to seek certiorari such as cost benefit analysis, whether there are any published decisions on point, if there was a dissent in the ICA decision, whether there are inconsistencies between the decision and either ICA or HAWSCT precedent, whether the issues are of public importance, whether the case involves public officials, if the case is criminal and the defendant obtained a long sentence, if there was a large verdict or substantial economic impact, if the constitutionality of a Hawaii law is an issue, if there was a denial of due process, the standards of review (de novo versus abuse of discretion), if there was delay, whether there is a cross-application for writ of certiorari, and whether the ICA’s decision creates “bad precedent”;
• The odds of certiorari acceptance are better from a published ICA opinion (if there is also something wrong with the ICA’s decision);
• The odds also better if there is a dissent in the ICA (especially if the opinion is published) – and this may be a signal to the HAWSCT by the ICA to take the case;
• Be aware of the difference between an inconsistency in existing case law and the case law being distinguishable;
• The certiorari deadline is 30 days after the ICA files its appealable order or judgment on appeal;
• The ICA’s judgment on appeal is typically filed the same day as the fee order (if there was a request for fees);
• The certiorari deadline may be extended by the clerk for a single 30 day period (if the request is properly and timely made) – making the deadline 60 days from the judgment on appeal or appealable order;
• A request for the clerk’s extension on the certiorari deadline is filed in the ICA case;
• The appellate rules do not provide for an extension on the 15 day timeframe to file a response to an application for writ of certiorari;
• A reply to an opposition to certiorari is permitted, but there is also no extension of this 7 day deadline;
• The HAWSCT will decide whether to accept certiorari within 30 days from the date the response is filed (or could have been filed);
• The current HAWSCT appears more likely to accept certiorari than in the past;
• There does not appear to be any meaningful difference between “grave error” (the stated standard for certiorari) and error;
• The HAWSCT almost always sets a case for oral argument if it accepts certiorari;
• The HAWSCT will also almost always issue a published opinion;
• Often, the current HAWSCT appears to be an “error correcting” court;
• In theory, the rejection of an application for transfer is not necessarily indicative of whether the court will later accept certiorari – but it may be marginally predictive and show a somewhat diminished chance for certiorari;
• Applications for Writ of Certiorari are considered by the justices on a rotating/assignment basis, and the lead chamber assigned to a particular certiorari application makes a recommendation (including providing a bench memo);
• If the recommendation is to grant, certiorari is accepted, and the recommending justice is in the majority, then that justice will author the court’s decision;
• Three justices are needed to accept certiorari;
• Some justices appear more inclined to accept certiorari than others;
• Some justices may recommend certiorari if the law can be improved;
• Some justices are more deferential to the ICA and the trial court judges, and thus less likely to recommend certiorari;
• The current court appears to have one justice who is a “swing vote”;
• Which justice you get reviewing your certiorari application is the luck of the draw;
• From July 1, 2017 through December 31, 2017, there was a 45% acceptance rate.

Mahalo to the Appellate Section, Justice Levinson, and Mr. Esser for an interesting and informative talk.

Join the HSBA Appellate Section at the Bar Convention, Tomorrow October 18, 2017

The Hawaii State Bar Association will hold its annual Bar Convention tomorrow, Wednesday, October 18, 2017, at the Hawaii Convention Center.

The HSBA Appellate Section will once again host a morning session.  If you are not already registered, you can register at the door.

This year's Appellate session is scheduled from 9:00 a.m. to Noon, and includes the following speakers:

• Robert Thomas, of Damon Key Leong Kupchak Hastert, will provide tips and solutions on the top 10 appellate traps; 

• Hawaii Attorney General Doug Chin and Deputy Attorney General Deirdre Marie-Iha will provide an update on the travel ban litigation, and tips and advice based on unique appellate procedure that has arisen during the litigation; and

• The popular Appellate Panel will once again take place with guests HAWSCT Chief Justice Mark Recktenwald, ICA Chief Judge Craig Nakamura, and Hawaii Solicitor General Clyde Wadsworth.

Go to the Hawaii State Bar Association's website here for more information.

Ninth Circuit Court of Appeals Q&A to be Held in Honolulu

As we've reported in the past, the Ninth Circuit Court of Appeals visits Honolulu three times per year to hold oral arguments.  A three-judge panel of the court will once again be in town next Wednesday, October 11, 2017.  

While in town, the three judges will hold an Question and Answer session over lunch.  The Federal Bar Association and the Hawaii State Bar Association's Appellate Section co-sponsor the event.  

The Q&A will take place from approximately 11:30 a.m. to 12:15 p.m. at 1132 Bishop Street, Suite 250L, which is also the federal bankruptcy court courtroom.   There is no RSVP required for the event, but attendees should plan to arrive early in order to get through security (and must also bring  a government-issued photo ID for entry).

The three judges in town this time around are Judges Schroeder, Nelson, and McKeown.

Here is a link to the oral arguments that are also being held.

Mahalo to the FBA and the Appellate Section for sponsoring the panel!

 

 

Hawaii Supreme Court Makes Permanent the Hawaii Appellate Pro Bono Program

As we previously blogged a couple years ago, here, the Hawaii Supreme Court previously approved a pilot project, known as the Hawaii Appellate Pro Bono Pilot Project, to match eligible low to moderate income pro se litigants with attorneys willing to provide pro bono representation.

In the two years of the pilot project, pro se litigants with cases before both the Hawaii Supreme Court and the Hawaii Intermediate Court of Appeals were matched with pro bono appellate attorneys.  In that time, three of the cases have reached disposition -- all of which were wins for the project cases!  In fact, two the cases were successfully argued before the Hawaii Supreme Court.

Yesterday, April 19, 2017, the Hawaii Supreme Court issued an order making the project permanent.  

According to the court's order, the change in status was approved "[i]n light of the project's accomplishments since its inception, and the importance of continued provision of pro bono assistance to financially deserving pro se litigants in matters on appeal . . . ."

The project is now known as Hawaii's Appellate Pro Bono Program.

Mahalo to all of the Hawaii attorneys who have volunteers for the project, and who have made it a success.  We hope the project continues to provide much needed pro bono assistance for appeals in Hawaii!

2016 Bar Convention Recap IV: Appellate Mediation in the Ninth Circuit and the Hawaii Appellate Courts

This is the fourth in our four-part recap of the 2016 Hawaii State Bar Association’s Annual Bar Convention.  

The HSBA Appellate Section’s program at the convention included representatives from the mediation programs in the Ninth Circuit and the Hawaii appellate courts, who offered the following information on the programs.

Hawaii appellate mediation program:

• The program is informal, confidential and voluntary –except for cases that are selected for mandatory participation;
• The service is free;
• The volunteer mediators are selected by the Hawaii Supreme Court;
• Approximately 50% of cases in the program settle;
• The program coordinator will use the Civil Appeal Docketing Statement to assist in determining whether to include a case for mandatory mediation, but will also call counsel to obtain assistance in whether the case will be included (the call is confidential);
• Consider putting a statement in the CADS as to whether you think the case is appropriate for appellate mediation;
• Voluntary participation is permitted if the parties agree;
• The appeal is stayed while the case is part of the program;
• There is a one-year deadline for completion of mediation from inclusion;
• Mediation is generally held on Oahu, but can also be held on a neighbor island if that is where the case initiates;
• Criminal cases are excluded by rule from the program;
• Some civil cases are not generally chosen for mandatory including civil TROs, cases involving constitutional or legal issues that should be decided by the court, and those clearly “prepared for appeal”;
• Factors considered in determining whether to place an appeal in mandatory mediation include whether the case involves pure money issue, foreclosure issues, or whether there have been prior attempts at mediation.

Ninth Circuit mediation program:

• All civil appeals must answer a mediation questionnaire;
• Some cases get into the program through panel referral;
• There are 8 professional mediators;
• Mediation can be held via telephone to do parties and/or attorneys being in different locations;
• Parties may choose to settle all or only part of a case;
• Mediators spend a lot of time discussing the best options and outcomes with the parties;
• Mediators try to come up with settlements that will be better than the case moving forward on appeal, including outcomes that a court may not be able to order;
• The program has an approximately 50% success rate;
• Some cases are not placed into the program, for example, major political cases or big-ticket cases;
• The program will take constitutional cases if there is a need that can be met outside of the constitutional issue;
• Mediators recommend whether to vacate the briefing schedule – can parties can choose not to have the briefing schedule vacated;
• The Ninth Circuit typically waits 12-18 months before oral argument is schedule to give time for the mediation program to work;
• Mediators can get involved post-briefing – at any time prior to panel assignment – by request of the parties, but after the panel is assigned only with permission of the panel.

The panelists also provided practice tips on preparing for mediation, including:

• Know the standards of review for appeal;
• Know the facts and law related to your case;
• Know how the appeal fits into the litigation strategy;
• Know how litigation fits into the client’s broader goals;
• Consider what happens if your client wins the appeal;
• Consider what happens if your client loses the appeal;
• Have a good sense of the most likely outcome of the litigation;
• Estimate the costs to pursue the appeal and any possible subsequent proceedings;
• Know the reversal rates of the appellate court for your time of appeal;
• Have a negotiation plan;
• Know how to best engage the mediator;
• Know the impediments to settlement.

Mahalo to the Appellate Section, to the Hawaii program’s representative, and to the Ninth Circuit representatives who flew to Hawaii for the convention!

2016 Bar Convention Recap III: Practice Tips from the Appellate Bench on Oral Argument

This is the third in our four-part recap of the Hawaii State Bar Association’s 2016Annual Bar Convention.

Today, we summarize what the HSBA Appellate Section’s panel of appellate judges had to say about oral argument. The panel was comprised of Hawaii Supreme Court Chief Justice Mark Recktenwald, Intermediate Court of Appeals Chief Judge Craig Nakamura, and Ninth Circuit Judge Richard Clifton.

Oral argument practice tips and information on the procedure for oral argument included:

• The HAWSCT holds oral argument because it will help the court make a decision – i.e. it will be beneficial for the justices to ask the parties questions;
• A recommendation for oral argument will be made by the first justice who reviews the certiorari application;
• 3 HAWSCT justices must agree to schedule a case for oral argument;
• If oral argument is not scheduled, parties may request that the case be set for oral argument if they think it is important;
• Oral argument may not be held in cases where the law is straight forward, the case is not factually complex, or if there is another pending case that will also resolve the outcome in your case;
• At the ICA if any one judge things a case should be set for oral argument, it will be;
• The ICA gives significant weight to a party’s request that a case be set for oral argument;
• Oral argument is helpful if the court is undecided or needs clarification in order to make a decision;
• In the Ninth Circuit, most cases in which the parties are represented by counsel are set for oral argument – but 20-25% of cases set on the oral argument calendar will instead be submitted on briefs, and parties can also ask for a case that is set for oral argument to be submitted on briefs instead;
• Make the best use of your time at oral argument – the judges have already read the briefs;
• Have something prepared for your time related to your strong points, but remember that oral argument is the time for the judges to ask questions;
• Expect weak points to come up at oral argument, and have a response ready;
• Be prepared for questions you may get – including ones related to issues that may be the weakest for your case and use your answer as the time to tell why your client should still prevail;
• The best oral advocates have the ability to grab the key aspect of the case and explain why it is important and why their client should prevail;
• Good oral advocates also listen to what’s going on (even when the other side is addressing the court) and address questions that are being asked and use their time to offer their perspective;
• Think about your case before you show up at oral argument and how to best present the argument in the concise period of time;
• Listen to the questions being asked – they reveal what the court is interested in;
• Always answer the questions.

Mahalo again to the HSBA Appellate Section, and the appellate panel for their advice!

2016 Bar Convention Recap II: Practice Tips from the Appellate Bench on Appellate Writing

This is the second in our four-part recap of the Hawaii State Bar Association’s 2016 Annual Bar Convention.

At this year’s convention, the HSBA Appellate Section once again brought its attendees a panel of distinguished appellate judges.   The panel was comprised of Hawaii Supreme Court Chief Justice Mark Recktenwald, Intermediate Court of Appeals Chief Judge Craig Nakamura, and Ninth Circuit Judge Richard Clifton.

As always, the judges provided invaluable advice and practice tips in the areas of appellate briefing, including:

• Great appellate briefs are distinguishable from average briefs due to the writer’s ability to tell a story and provide a persuasive narrative of the case – and to explain to the court why the advocated outcome makes sense and is just;
• Provide a roadmap from the start of the brief;
• Endeavor to not only effectively utilize the facts, but deal with adverse facts;
• Be clear and concise – avoid extraneous information;
• Try to make the reader comfortable with the outcome that is being advocated;
• Keep in mind your audience (judges, law clerks, staff attorneys) who don’t have the same history with the case as the parties;
• Provide the court with a brief introduction up front that provides an overview of the case and a proposed outcome – it is important to tell the court up front what the case is about and to be persuasive;
• Have a theme – tell a story – ask yourself why you should win and give the court reasons to rule in your client’s favor;
• Get to the point;
• Be aware of the impact the outcome in your case may have on other cases;
• Think about your case before writing – decide what the best arguments are and that will best motivate the court to rule in your client’s favor;
• Accuracy is more important that formalism;
• Avoid hyperbole;
• Confront adverse precedent and weak points directly, and never assume a weak point will be missed – the failure to address a weal point could impact credibility;
• The Intermediate Court of Appeals will consider motions to expedite if there is a good reason or change in circumstances that will adversely impact one of the parties to the appeal;
• There is no negative inference in the HAWSCT if the party seeking certiorari does not file a reply (i.e. the court will not interpret this as a concession).

Mahalo to the Appellate Section, and the panel, for their advice!

HAWSCT to Hear First Case in Appellate Pro Bono Pilot Project

The Hawaii Supreme Court will hear its first case tomorrow, January 7, 2016, as part of the Appellate Pro Bono Pilot Project.  

The Court approved the pilot project on August 7, 2015.  The project is a partnership between the Hawaii State Bar Association's Appellate Section and Volunteer Legal Services of Hawaii, approved though the Hawaii Access to Justice Commission, and matches volunteer pro bono appellate counsel with low to moderate income pro se appellate litigants.

For more about the first project case, Gao v. State of Hawaii, Dep't of the Attorney General, go here.

Here is the text of the press release:

Hawaii State Judiciary 

FOR IMMEDIATE RELEASE
January 6, 2016

APPELLATE PRO BONO PILOT PROJECT LAUNCHED

First case scheduled at the Hawaii State Supreme Court courtroom tomorrow

HONOLULU, HI- The Hawaii State Judiciary, in partnership with the Hawaii Access to Justice Commission, Volunteer Legal Services of Hawaii, and the Hawaii State Bar Association’s Appellate Section, has launched the Hawaii Appellate Pro Bono Pilot Project.   The project provides volunteer appellate counsel to individuals who are representing themselves on appeal.

Oral argument in the first case utilizing the Pro Bono Appellate Pilot Project is scheduled for Thursday, January 7, 2016 at 8:45 a.m. at the Hawaii State Supreme Court courtroom.  All oral arguments are open to the public. 

“This project is a win-win,” said Justice Simeon R. Acoba, Jr., Chairman of the Hawaii Access to Justice Commission.  “In addition to providing legal support to those who need it, the Hawaii Appellate Pro Bono Pilot Project will give our volunteer attorneys a valuable opportunity to participate in the handling of appellate cases.  We hope it will also be a chance for our experienced appellate counsel to mentor the next generation of appellate attorneys.”

When an individual files a notice of appeal at the Hawaii State Supreme Court Clerk’s Office and is not represented by an attorney, the pro se litigant will be provided information about the Hawaii Appellate Pro Bono Pilot Project.  Interested parties may also email Rebecca Copeland atchair@hawaiiappellatesection.org to learn more.

This pilot project is currently limited to civil cases involving foreclosures, summary possessions, employment discrimination, worker’s compensation, wrongful termination, denial of unemployment benefits, state tax appeals, probate matters, and paternity and non-married custody cases.

Participants in the Hawaii Appellate Pro Bono Pilot Project are required to meet certain income-need requirements and, if qualified, to pay an administration fee of $50.00 to Volunteer Legal Services of Hawaii.   In addition, litigants will be responsible for any costs associated with the appeal, including filing, transcript, or other costs related to the preparation of the record on appeal and presentation of arguments in the appellate courts.