Record on Appeal

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!

 

 

Writ to Watch: In the Matter of the Estate of Samuel M. Damon

On January 5, 2017, the HAWSCT heard oral arguments in a case involving a trust created under the will of Samuel M. Damon: SCWC-12-0000731, In the Matter of the Estate of Samuel M. Damon, Deceased, and Trust Created Under the Will of Samuel M. Damon, Deceased.

The HAWSCT accepted certiorari on October 13, 2016, to review the ICA’s decision that affirmed the circuit court’s approval of the Damon Estate Trustees’ petition for approval of their accounting for the years 1999-2003. It was during this accounting period that a majority of the trust assets were sold. After the HAWSCT vacated the circuit court’s prior approval of the petition based on a conflict of interest with the court appointed master, on remand, the circuit court appointed a new master. The Trustees’ petition was challenged by two of the trust beneficiaries. During the circuit court proceeding, the two beneficiaries sought to obtain documents underlying the petition, and logged objections to the petition. The request for documents was denied, and the accounting was approved.

On appeal, the ICA affirmed the circuit court’s decision, deciding (among other things) that the Trustees were entitled to a presumption of regularity and good faith, and that the Trustees had met their statutory duty to disclose documents to beneficiaries, and that denial of the documents to the two beneficiaries during the petition approval proceeding was within the circuit court’s discretion.

At the oral argument, many of the HAWSCT’s questions related to whether or not the Trustees had a continuing duty to disclose to the beneficiaries information about the Trust matters – even after the petition for accounting was filed and even though a master was appointed by the probate court.

The HAWSCT’s order accepting certiorari is available here.

The ICA’s Memorandum Opinion is available here.

The Applications for Certiorari filed by the two beneficiaries are here and here.

The oppositions to certiorari filed by the Trustees and two other beneficiaries are here, here, here, and here.

The replies in support of certiorari are here, here, and here.

 

** Disclosure: this blogger represents one of the beneficiaries on certiorari but makes no representation through this post of any particular outcome in this case, or that any similar outcome may occur in any other case.

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!

Appellate Panel Tips & Advice Part II: Oral Argument Tips

In our Appellate Panel Tips & Advice three parts series, we provided you with insights on appellate writing here. 

At the 2015 Bar Convention, HAWSCT Chief Justice Recktenwald, HAWSCT Justice Pollack, and ICA Chief Judge Nakamura also provided tips and advice on oral argument, including:

• The intensity of OA in and of itself is not significant, rather it is the content of the questions that is important;
• Adjust your answer to the questions being asked – be responsive;
• Always be prepared to deal with a “hot” panel;
• Know the record on appeal cold;
• Be prepared to address weaknesses;
• Be prepared to be flexible enough to answer questions that you may not have anticipated;
• Moot courts are a helpful preparation tool;
• Your script must give way to what is important to the court;
• It is not usually advantageous to start your OA with a factual recitation;
• Let the court know the key issues & emphasize only the critical facts;
• Always anticipate difficult questions;
• Don’t wait for the hard questions – confront those issues head-on;
• Include non-lawyers in practice arguments;
• OA does not usually change the decision in the case (unless the case is a close call), but it may have a more significant impact if the judges go into oral argument with uncertainty about how to resolve the case; and
• OA is often more influential in changing how a judge approaches an issue versus change the outcome.

Part III in our series will focus in a behind the scenes look at the Hawaii appellate courts.

Appellate Panel Tips & Advice Part I: Appellate Writing Tips

At the HSBA Bar Convention held on October 23, 2015, the Appellate Section once again hosted a panel of Hawaii appellate court justices.  This year, the panel included Hawaii Supreme Court Chief Justice Mark Recktenwald, Hawaii Supreme Court Associate Justice Richard Pollack, and Intermediate Court of Appeals Chief Judge Craig Nakamura. 

Moderated by the Appellate Section’s Chair Christopher Goodin, the panel provided many pointers and tips on appellate practice.  The panel also provided interesting insight into the appellate courts.

In the first of our three part series, here are some of the practice tips and insight provide by the judges on writing:

• For certiorari applications to the HAWSCT, be sure to explain what the case is about & why it matters (including what the lower court did wrong) in a way that resonates with the reader;
• Give the court a roadmap, and think about include a strong introductory paragraph up front;
• Explain clearly the relief you are requesting
• For certiorari applications, grave errors of law or fact means something “serious” – a mistake that is meaningful or adverse
• 3 key tips to effective brief writing:  know your audience (including the impact of the standard of review and how the decision will effect future cases), make yourself trustworthy (show the court you’ve used independent judgment in deciding what and how to appeal and use accurate citations and authority), and explain to the court how to rule in your favor (roadmap);
• Motions for reconsideration should not be used to re-argue your position, but may be used if the court has misapprehended the rule or standard applied in the case;
• Tell a story;
• In HAWSCT drafting, do not attempt to “incorporate” briefs into an application for writ of certiorari – this might be viewed as an attempt to circumvent the page limitation – make the arguments you need to make in the application;
• For certiorari practice, attorneys need to make a strategic judgment call as to what to raise and what not to raise – bring your most important points; and
• Don’t rely on the HAWSCT judges reading the briefs before they decide whether to accept certiorari.

Part II in our series will focus on oral argument.

A big mahalo to the judges for sharing their time and advice. 

HAWSCT and HSBA Seek Attorney Volunteers for Oahu Courts in the Community

Once again, the HAWSCT will hold oral argument on Oahu as part of its continuing Courts in the Community program.  The program takes the court to various islands, and allows hundreds of high school students from both public and private schools to study one of the court’s cases, learn about the appellate process, and attend the oral argument. 

This time, the oral argument will be held at Waianae High School on December 10, 2015.  The case is entitled Garcia v. Robinson, involving the issue of whether expert testimony is required to support a medical tort based on the doctrine of informed consent.  To learn more about the case, go here and here.

The HAWSCT and the HSBA are seeking attorney volunteers to assist students in learning about the case and preparing to attend the oral argument.  Volunteer attorneys will attend a brief training session, meet with the students during their class time prior to the oral argument, and may also attend the oral argument with their students. Those attending the oral argument will also be invited to have a complimentary bento lunch with the HAWSCT Justices.

For more information, and to volunteer, please contact this blogger at rebecca@copelandlawllc.com

HAWSCT Heads to Kauai

As part of its Courts in the Community Program, the Hawaii Supreme Court will hold oral argument tomorrow, April 23, 2015, in Kauai.

The event will be from 10-11 am at the Kauai Community College Performing Arts Center.

The case is: In re SHOPO v. County of Kauai and Kauai Police Department.

Students from across the island will attend the oral argument, after having prepared for the event in their classrooms and with the help of local volunteer attorneys.

Here is the Hawaii Supreme Court's press release with more information about event.

Here is the Court's oral argument calendar that includes a description of the SHOPO case.

The oral argument is open to the public, and is a must see if you're on Kauai.

Hawaii Bar Con Review IV: Appellate Practice Pointers from Hawaii Appellate Judges

In our final recap of this year’s Hawaii State Bar Association Bar Convention, we provide practice tips from several Hawaii appellate court judges.  For the third year in a row, the HSBA Appellate Section’s program at the Bar Convention included a panel of appellate judges.  This year, the panel was comprised of Hawaii Supreme Court Chief Justice Mark Recktenwald, Hawaii Intermediate Court of Appeals Chief Judge Craig Nakamura, and former Hawaii Supreme Court Associate Justice Jim Duffy.

The judges answered questions related to appellate practice from both a moderator and the audience, and offered the following advice and practice tips:

• Make sure you request for review with the Hawaii Supreme Court is timely, address all applicable standards for certiorari or transfer, and explain why it matters that the court take the case;
• The way the questions are presented in the application may be a determining factor in whether it is accepted;
• An attorney can make an application to the court more meaningful if he creates a narrative of why the case is important;
• Topic sentences, etc. help focus the reader
• Examples of importance beyond the parties to a particular case include uncertainty for trial courts if the issue is left unresolved, the decision will put Hawaii in an extreme position as related to other states/minority view, etc.;
• You don’t have to win your case in the application for certiorari, but you do need to get the court interested in further review;
• Know your audience – less is more;
• Always tell the truth in your recitation of facts and case law – if not, you reduce your chance to be an effective advocate – it is also your ethical obligation as an attorney;
• Be cognizant of how the legal principle you want the court to adopt will effect other cases – the court may be reluctant to make a decision that is too broad;
• Know the record, and back up every factual statement with a citation to the record on appeal – in briefs and at oral argument;
• Less can be more persuasive and effective – avoid wasting the court’s time.

The following advice and insight was provided specifically related to motions and other practice before the Intermediate Court of Appeals:

• When filing an “emergency” motion with the Intermediate Court of Appeals, clearly identify why it is critical for the court to decide the motion quickly;
• When filing a motion, make sure the court has everything it needs as part of the motion (even if those documents are also part of the record on appeal);
• An ICA staff attorney reviews motions filed with the court and provides the motions panel with advice;
• If a motion is filed before the merit panel is assigned, it will be decided by a motions panel;
• The merit panel is determined by a random drawing;
• The merit panel has 30 days to decide the lead judge, which is kept confidential;
• After the 10-day timeframe in which transcripts must be ordered, if transcripts are necessary, a motion for leave to file late transcripts should be filed;
• The ICA may issue an order to show cause if you failed to properly request late transcripts, and later the court reporter must ask for an extension;
• Always follow up with the court reporter to make sure a request for transcripts doesn’t fall through the cracks;
• If transcripts are not ordered, a certificate of no transcripts should be filed;
• If all transcripts are not ordered, a statement of the points of error should be filed;
• If an appeal is dismissed (for example, for lack of appellate jurisdiction), and the judgment is then corrected and the appeal is filed again, you “lose your place in line”;
• If the transcripts are included in the record on appeal, as long as it is included as an exhibit to a document filed in the trial court and it contains the court reporter’s certificate, you may not need to re-order it for the appeal;
• If a brief is not filed by the due date, you should file a motion to file the brief late or risk being in default;
• When citing to the record and transcripts, remember to use the docket codes on JEFS as part of the citation;
• When filing a document on JEFS, avoid using the “OT”  or “other” docket designation – especially for a motion because if “OT” is used it will not go immediately into the work queue;
• Do no rely on the milestone designations in JEFS – they are manually inputted by the clerk’s office and could be incorrect;
• If your case involves sealed (viewable by the parties but not the public) or in camera (viewable only by the judges) documents, make sure you know the different and that the documents are correctly designated in JEFS;
• Include all parties in the Statement of Jurisdiction so that the court can determine whether they were all disposed of for purposes of appellate jurisdiction.

The judges also provided the following tips related specifically to oral arguments:

• An attorney can make oral arguments more productive if he tells a story, engages the court, explains how the case fits into a bigger picture, and explains why the outcome he advocates is just and appropriate;
• At oral arguments, be careful not to concede more than you have to;
• Never interrupt the judges when they are asking a question;
• Listen to the questions and give direct answers;
• Quickly get to your point;
• Be absolutely prepared with knowledge of the entire record on appeal;
• If there are gaps in your case, be prepared that this is likely where the court will have questions – be prepared to answer them and explain the impact on your case.

Mahalo to Chief Justice Recktenwald, Chief Judge Nakamura, and Justice Duffy for joining the appellate section, and for providing their insight and advice!

Hawaii Appeal Bar Con Review Part II: Criminal Appeals

At the HSBA’s Annual Bar Convention held on October 24, 2014, the Appellate Section’s program included a criminal appeal panel comprised of former Hawaii Supreme Court Associate Justice Simeon Acoba Jr., Craig Jerome of the State of Hawaii Office of the Public Defender, and Kevin Takata of the County of Kauai Office of the Prosecutor.

The panel discussed several current appeals of interest to those practicing criminal law, and also offered the following insider view of the Hawaii Supreme Court (by Justice Acoba based on his time on the court) and appellate practice pointers:

• The HAWSCT may look to the ICA case load as a factor in deciding whether to accept transfer (as long as other transfer standards are also met);
• HAWSCT justices prepare for oral arguments independently and do not meet to discuss a case before arguments;
• Oral argument may be the first time that justices on the HAWSCT know the issues that other judges are concerned about related to the case;
• Set out precisely what you want the court to do in your brief – tell the court not only what disposition you would like the court to reach, but also any alterative dispositions;
• Under HRAP 4(b), governing appeals in criminal cases, the defendant must appeal thirty days after the sentence is complete – for example, the sentence is not complete until restitution is set;
• The circuit court may grant one 30-day extension of time to file an appeal even after the appeal deadline has passed (for up to 60 days from the date of the judgment);
• In criminal cases, a motion for reconsideration does not toll the deadline to file the notice of appeal;
• Under Hawaii case law, a criminal defendant cannot be precluded from prosecuting an appeal if the notice of appeal is untimely, but the attorney who filed the notice late may be subject to sanctions;
• An order related to a deferred sentence is not a final, appealable order;
• When preparing for oral argument, if you can come up with the hard questions, and answer them, you are ready for arguments;
• In briefing and oral arguments, always have a central theme;
• It is OK to redirect the discussion at oral arguments after you answer a judge’s question – use your theme to do this;
• Oral arguments are a time to listen to the judges and address their questions.

 Mahalo to Justice Acoba and the panel for their insights into criminal appellate practice in Hawaii!

Ninth Circuit Q&A To Be Held Tomorrow

The Federal Bar Association Hawaii Chapter and the Hawaii State Bar Association Appellate Section are sponsoring an informal Q & A session with members of the Ninth Circuit Court of Appeals. 

Ninth Circuit Judges W. Fletcher, Ikuta, and Hurwitz will be in Honolulu this week for oral arguments, and have agreed to an informal Q &A session with lawyers regarding the appeals process, briefing, argument, etc.

The event will be held between 12:00 noon to 12:30 p.m. on Tuesday, June 10, 2014 at the court’s regular venue in Hawaii, 1132 Bishop Street, Courtroom Suite 250L (bankruptcy court). 

This is always an event not to be missed, and in the past, has been informative and well-attended. There is no cost to attend.  

Guests are asked to please arrive by 11:45 a.m. with a government-issued photo ID for security clearance.