THE APPELLATE RECORD June 2013

2013 HSBA Appellate Section Board: Chair: Ms. Rebecca A. Copeland Vice Chair: Mr. Mark J. Bennett Secretary: Ms. Bethany C.K. Ace Treasurer: Mr. Robert Nakatsuji HSBA CLE Liaison: Ms. Mitsuko T. Louie HAWSCT Liaison: Mr. Matthew Chapman ICA Liaison: Mr. Daniel J. Kunkel

FEATURED ARTICLE:

Briefing and Oral Argument Tips From the Ninth Circuit

By: Rebecca A. Copeland (Law Office of Rebecca A. Copeland)

The Ninth Circuit Court of Appeals hears oral arguments in Honolulu three times per year. We are fortunate that our local chapter of the Federal Bar

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Association arranges to have the visiting panel speak to members of the local bar during each visit. On June 12, 2013, the latest panel of judges attended the event entitled Appellate Practice Tips. The panel consisted of Senior Circuit Court Judges Jerome Farris and Dorothy W. Nelson, and Circuit Judge Jacqueline H. Nguyen.

Judge Farris offered the following advice: tell your view of the case from the start of your brief before getting to the opposing view; and, there is always some argument you can make on behalf of your client, but dont make your argument with a lot of nonsense. Judge Nelson offered the following advice: during oral argument, excellent lawyers start their argument by looking the judges in the eyes and giving the court a short, specific explanation of the issues; when a judge asks a question, answer it rather than using the opportunity to plead your entire case; answering the judges question may be the key to winning your case; avoid jury arguments; and, avoid using your short time at oral arguments to attack your opponent. Judge Nguyen offered the following advice: the most effective oral arguments are those which are held in cases in which the court needs assistance from the lawyers on the issues; a short, concise brief that covers all the issues is best; using hyperbole in a brief is distracting and unpersuasive; a good oral argument style is having a thoughtful conversation with the court; and, if the law and facts are on your side, you should walk away from oral arguments knowing you will prevail. In answer to questions from the audience, the judges also provided the following practice pointers for brief writing and oral arguments: The impact of oral arguments on the case often depends on the facts, most often oral argument has more of an impact in cases in which the law is very difficult, there are a lot of issues, or there is an undecided area of law;

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 Oral arguments are not valuable if the attorneys merely repeat what is in the briefs; In preparing for oral arguments, focus your minds eye on the pivotal points of the case and go straight to them at oral argument; Judges will often ask questions on the issues that are most pivotal to see if the lawyer has something to say that will change the courts mind; If you are getting extensive questions, it may mean that the judge is not in tune with the attorneys argument; The term nothing case is used to refer to a case in which oral arguments will not make a different in the outcome; Sometimes the judges come to oral arguments with different views, and the argument can add value and change a judges mind; Supplemental briefs may be required if the judges perceive a point that is important but not addressed in the briefs; If you get questions that were honestly not expected, it is okay to ask the court to provide a supplemental brief but the brief should be in a very short window of time (the next day); Remember that the court of appeals will not decide facts that is within the province of the trial court; If prior cases are wrongly decided, dont be afraid to make that argument, but you need to explain why and not just argue that the law is wrong; If the court needs to look to out of circuit precedent, there is no preference for any other particular circuit as long as the analysis of the cases is sound. Finally, on the movement of the court to shorter oral argument times, the judges agreed that as long as the attorneys and the judges are prepared, shorter oral arguments are good for the attorneys, being prepared means getting straight to the important points at the argument. Mahalo to the judges for joining the local chapter of the Federal Bar Association and sharing their tips and advice!

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A Lunch-Hour Talk with Associate Justice Richard W. Pollack of the Hawaii Supreme Court

By: Christopher T. Goodin (Litigation Department, Cades Schutte LLP) and Mitsuko T. Louie (DCCA, Staff Attorney, Securities Enforcement Branch)

At the June 17, 2013 meeting of the HSBA Appellate Section, Associate Justice Richard W. Pollack discussed his experience transitioning from being a circuit court judge to a supreme court justice. He also addressed the certiorari process, oral argument, and brief writing. Below is a summary of the talk.

1. The Move from the Circuit Court to the Supreme Court. The jobs of a circuit court judge and a supreme court justice are quite different. For example, the work in the trial court is quick and a great deal of time is spent presiding over hearings. By contrast, the supreme court justices have more time to deliberate and their primary work involves research and writing. The transition from the circuit court to the supreme court came naturally to Justice Pollack. Prior to his appointment in the circuit court bench, Justice Pollack worked in the appellate division of the State Public Defenders Office for a total of fourteen years. During that time, the appellate division handled over 1,000 appeals. And Justice Pollack himself argued between 75 and 100 cases. Additionally, during his tenure on the circuit court, Justice Pollack served as a substitute justice for the supreme court in approximately 1520 cases.
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2. The Cert. Process. When an application for a writ of certiorari is filed, the application is assigned to a justice on a rotating basis. The justices chambers prepares an exhaustive memorandum summarizing the facts and procedural history, analyzing the issues, and recommending whether to accept the application. These memos typically run between 3050 pages and sometimes exceed 100 pages. The initial memorandum is circulated within 30 days after the application is filed. Within the next two weeks, other chambers may circulate additional memoranda, particularly if they disagree with the initial memorandums recommendation. The justices will then vote on whether to accept the application. The supreme court has an internal rule that requires at least three votes to accept an application. Occasionally, justices prepare opinions dissenting from an order accepting or rejecting an application. Justice Pollack has authored several such dissents because he believes it is important to set forth the reasons for his vote. Justice Pollack explained that the dissenting opinions are unpublished, though they are potentially citable as persuasive authority and may influence later decisions. See Haw. R. App. P. 35(c)(2). Justice Pollack noted that, in considering an issue, he reviews all of the Hawaii authority on point, including citable unpublished dispositions. Justice Pollack estimated that approximately 25% of cert. applications are accepted. Of those accepted, 75% of the cases are set for oral argument. Justice Pollack explained that the supreme court will not set a hearing if the issues are particularly clear. Even if the supreme court orders a case submitted on the briefs, a party may file a motion for retention of oral argument. See Haw. R. App. P. 34(c). 3. Oral Argument. In light of the amount of work that goes into the cert. process, the supreme court justices are very familiar with the case by the time of oral argument. Justice Pollack suggested that attorneys avoid beginning their arguments with a recitation of the basic facts of the case. If you want to start with the facts, consider focusing on those that are truly dispositive, and be creative in your approach. Visual aids such as charts and videos may be appropriate. See Haw. R. App. P. 34(i). The justices generally allow an attorney to speak for the first few minutes of the argument uninterrupted. After that, they will likely start asking questions. 4. Brief Writing. Be sure to follow the rules. Appellate courts tend to be strict in their enforcement. Additionally, be careful with the facts. Check that all of the relevant filings, exhibits, and transcripts are made part of the record. Each factual statement in a brief or cert. application should be supported by a record citation. The justices law clerks verify every record citation. Finally, Justice Pollack explained that, when there is a novel issue of law in Hawaii and there is conflicting authority in other jurisdictions, he appreciates it when a brief acknowledges the adverse authority and explains why it is
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unpersuasive. Justice Pollack noted that, even if opposing counsel has not cited the adverse authority, the justices law clerks will probably find the adverse authority in their independent research and discuss the authority in their bench memos.

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This Month in Appellate History

The following United States Supreme Court Justices assumed office in July: John Jay, Samuel Freeman Miller, George Shiras, Jr., John Hessin Clarke, Harlan F. Stone, and Robert H. Jackson.

JEFS E-Filing Tip of the Month The Notice of Electronic Filing generated by the JEFS system is sufficient
service of process under the rules of the court, but only for parties who are also registered with JEFS. If there is a party to the case who is not registered with JEFS, a paper copy must still be served.

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June Published Appellate Opinions

In June, the Hawaii Supreme Court issued ten published opinions and the Intermediate Court of Appeals issued one. Below is a brief synopsis of each: In Mortg. Electronic Registration Sys., Inc. v. Wise, SCWC-11-0000444 (June 28, 2013), the HAWSCT held that mortgagors were precluded from raising the standing of MERS to bring a foreclosure action because (1) a standing objection is not unique to a confirmation sale proceeding, and P(2) the mortgagors failed to appeal the foreclosure judgment thus barring challenges to standing under the doctrine of res judicata. In Assoc. of Apartment Owners of the Waikoloa Beach Villas v. Sunstone Waikoloa, Inc., SCWC-11-0000998 (June 38, 2013), the HAWSCT held that a condominium regime violated Hawaii law because it imposed limitations on the AOAO in arbitration and litigation with Sunstone that were more restrictive than those imposed on other persons. In Haw. Assoc. of Seventh-Day Adventists v. Wong, SCWC-28592 (June 28, 2013), the HAWSCT held that the Seventh-Day Adventists lease agreement was ambiguous as to whether it permitted cabin rentals to the public not affiliated with the church, even though the parties had stipulated that the provision was unambiguous. In Nelson v. Hawaiian Homes Commn, (Addresses Attorneys Fees Cost) (June 28, 2013), that HAWSCT held that even though the petitioners were the prevailing parties to the appeal, attorneys fees and costs were not allowable under the private attorney general doctrine as barred by the doctrine of sovereign immunity. In Liberty Dialysis-Haw., LLC v. Rainbow Dialysis LLC, SCAP-12-0000018 (June 27, 2013), that HAWSCT held that the State Department of Healths general administrative rules did not apply so as to disqualify members of the State Health Planning & Development Agency committees that are established to reconsider the agencys approval of a Certificate of Need. In Yukimura v. Yukimura, SCWC-29927 (June 27, 2013), the HAWSCT held that the Family Court was foreclosed from modifying a divorce decree related to the apportionment of liability for capital gains taxes because modification was not permitted under the applicable rules governing requests for modification. In State v. Han, SCWC-11-0000814 (June 19, 2013), that HAWSCT held that a colloquy between the judge and a defendant involves a verbal exchange in which

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the judge ascertains the defendants understanding of the defendants rights" -- and the family court violated that right. In State v. Casugay-Badiang, SCWC-11-0000802 (June 28, 2013) (Amended Opinion), the HAWSCT affirmed methamphetamine trafficking convictions because the circuit court had discretion to sentence the defendant five years imprisonment even though he had no prior criminal record because the relevant sentencing statutes any other law to the contrary language did not specifically exempt it from other sentencing provisions. In Willis v. Swain, SCWC-29539 (June 7, 2013), the HAWSCT held that an insurance company owes a duty of good faith in the absence of a contractual relationship related to a claim under the Hawaii Joint Underwriting Program (HJUP). According to the court, the insurers good faith covenant implied in such motor vehicle policies applies to claimants under the assigned claim procedure irrespective of the absence of a written insurance policy." In State v. Atwood, SCWC-30337 (June 3, 2013), the HAWSCT held that breach of contract alone does not suffice to establish probable cause to charge a defendant with theft in the first degree by deception where the record fails to show that the defendant did not intend to perform his part of the bargain nor otherwise deprive the other party to the contract of property exceed the statutes threshold limitation ($20,000). In In re Application of the Trustees Under the Will and of the Estate of James Campbell, Deceased, to Register and Confirm Title to Land Situated at Kahuku, District of Koolau Loa, City and Cnty. of Honolulu, State of Haw., 30006 (June 13, 2013), the ICA held that the Land Court did not err in denying its claim of ownership of all mineral and metallic mines, including geothermal rights, on the property and its claim for reserved easement for the free flowage of waters.

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Upcoming Events: July Appellate Section Meeting

Please join the HSBA Appellate Section for its regular monthly meeting on Monday, July 15, 2013, from noon to 1:00 p.m., at the HSBA Large Conference Room. Our presentation will be a conversation about the United States Supreme Courts decisions in Dennis Hollingsworth, et al., v. Kristin M. Perry, et al., No. 12144 (Californias Proposition 8) and United States v. Edith Schlain Windsor, In Her Capacity as Executor of the Estate of Thea Clara Spyer, et al., No. 12-307 (Defense of Marriage Act) with special guests former Hawaii Supreme Court Justice Steven H. Levinson and Intermediate Court of Appeals Judge Daniel R. Foley. A light lunch will be provided. VCLE credit is pending. RSVP to the Appellate Sections Secretary, Bethany C.K. Ace, at bcka@hawaiilawyer.com.

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Coming Soon:
FEDERAL APPELLATE PRACTICE MANUAL: The Appellate Section is pleased to announce that it will publish another appellate manual in conjunction with the Hawaii State Bar Association. This years manual will be entitiled Federal Appellate Practice Manual. The manual will provide valuable information and insight into practicing appeals in the federal arena, with special emphasis on the United States Supreme Court and United States Court of Appeals for the Ninth Circuit. Our contributors and/or editors include: Rebecca A. Copeland, G. Richard Morry (editor), Marissa Luning (editor), Mitsuko Louie (editor and contributor). Ninth Circuit Judge Richard Clifton, Christphoer Goodin, Doug Fredrick, John Duchemin, Monica Suematsu, Kimberly Asano, Cal Chipchase, Elijah Yip, Robert Thomas, Mark Murakami, Steven Gray, Johnathan Bolton, Lisa Munger, Lisa Bail, Trent Kakuda, Bethany C.K. Ace, and Brett Rowan.

2013 HAWAII STATE BAR CONVENTION: The Appellate Sections time at this years Bar Convention is scheduled to include presentation of the Federal Appellate Practice Manual (with presentations by many of the contributors to the manual), Hawaii Appellate Motions Practice (with an insert for the Hawaii Appellate Practice Manual released last year), and an Appellate Panel. Our Appellate Panel will include distinguished Hawaii jurists including Hawaii Supreme Court Chief Justice Mark Recktenwald and Associate Justices Simeon Acoba, Sabrina McKenna, and Richard Pollack. Mark your calendars now for Friday, September 27, 2013.

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Useful Appellate Links:

The Hawaii Judiciary: www.courts.state.hi.us United District Court for the District of Hawaii: www.hid.uscourts.gov United States Court of Appeals for the Ninth Circuit: www.ca9.uscourts.gov United States Supreme Court: www.supremecourt.gov Hawaii State Bar Association: www.hsba.org

Blogs by our Members:

www.hawaiilitigation.com (by our Member Louise Ing) www.hawaiioceanlaw.com (by our Member Mark M. Murakami) www.hawaiiopinions.blogspot.com (by our Member Ben Lowenthal) www.insurancelawhawaii.com (by our Member Tred R. Eyerly) www.inversecondemnation.com (by our Member Robert H. Thomas) www.hawaiiappellatelaw.com (by our Member Charley Foster) www.recordonappeal.com (by our Chair Rebecca A. Copeland)

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Appellate Section Website:

The Appellate Sections website includes useful appellate resources, including handouts from prior monthly meetings, copies of this newsletter, and power point presentations from the Appellate Sections program at the 2012 HSBA Bar Covention. www.hawaiiappellatesection.org

Hawaii Appellate Practice Manual:

The Hawaii Appellate Practice Manual includes information you need to know for filing appeals in Hawaii, including how to e-file documents on the Judiciarys EFiling System, how to supercede a judgment, and how to brief and argue cases. The manual also includes useful appellate forms. The Manual was co-sponsored by the Appellate Section and the Hawaii State Bar Association, and is available for purchase at the link below. http://www.hsba.org/resources/8/Manuals/Publications%20List%20Fillable%20(upd ated%209-1-2012).pdf

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The Appellate Record is presented as a courtesy to the Members of the Hawaii State Bar Associations Appellate Section by its Board. Mahalo and enjoy!

Stay tuned for the August 2013 edition of The Appellate Record!

If you are interested in contributing to our newsletter in any way, please contact the Sections Chair Rebecca A. Copeland at rebecca@copelandlawllc.com

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