Record on Appeal

Practice Tips from Hawaii Federal Trial and Appeal Judges

On March 29, 2019, the HSBA Appellate Section held an event with two recently appointed Hawaii federal judges: Ninth Circuit Court of Appeals Judge Mark Bennett and United States District Court for the District of Hawaii Judge Jill Otake.

The event, co-sponsored by the Federal Bar Association, offered an opportunity for local attorneys to learn more about our two newest federal judges.

The judges also offered valuation advice and practice tips, including:

• Be yourself and know who you are as an attorney in the courtroom;
• The difference between a good lawyer and a great lawyer is that a great lawyers knows where the line is on credibility and integrity, and doesn’t cross it, even when advocating for a client;
• Oral argument can make a difference far more than you may think – and more cases are lost based on what transpires at oral argument;
• When writing a brief, decide what you need to argument to win – don’t spend time on arguments that will not get you to the finish line;
• Brevity is welcome;
• Avoid personal attacks in briefs – too many briefs have personal attacks that are neither necessary or warranted;
• At oral argument, answer the questions that are asked by the judges – the least effective oral argument occurs when questions are avoided;
• After you answer the question, try to turn the answer to your advantage if you can – but if you can’t try to explain why the answer may not matter;
• Know in detail the record on appeal – the advocate’s knowledge should be far better than anyone else in the courtroom.

Mahalo to Judges Bennett and Otake, and to the FBA and the HSBA Appellate Section for the interesting and informative talk.

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!

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!