The Appellate Record - October 2013.pdf

7/27/2019 The Appellate Record - October 2013.pdf

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The Appellate Record, October 2013 Page 2

year, the Section unveiled the Federal Appellate Practice Manual. The manual,

focused on Ninth Circuit and United States Supreme Court practice, included

chapters on filing and perfecting an appeal, standards of review, the effect of an

appeal on lower court proceedings, briefing and oral argument before the courts,

criminal appeals, bankruptcy appeals, and immigration appeals.

Several of the manuals authors presented at the convention on topics

including appellate motions, filing an appeal, criminal appeals, bankruptcy appeals,

and oral arguments.

The Sections presentation also included a distinguished panel of Hawaii

Supreme Court Justices. The panel featured Chief Justice Mark E. Recktenwald,

Justice Simeon R. Acoba, Jr., Justice Sabrina S. McKenna, and Justice Richard W.

Pollack.


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Chief Justice Recktenwald provided the three important tips necessary in

order for attorneys to competently represent their clients on appeal:

1. Be on time and meet all deadlines;2. Follow all briefing rules;3. Always provide an adequate record on appeal to allow the courts of

appeals to address the arguments on appeal.

Chief Justice Recktenwald also reminded attorneys to fully address all facts

in their briefing to the court, including adverse facts, create a roadmap from the

start of the brief, following the rules regarding what must be addressed and how,

and explain to the court why the outcome advocated makes sense and should

prevail. A key difference between an average advocate and an outstanding advocate

is one whose factual recitation tells a story and gets the court to where the

advocates wants them to be by the end of the facts.

The justices had many helpful practice pointers for ethical appellate practice,

including:

If there is controlling authority against an argument advocated on appeal,and the attorney has knowledge of the adverse authority, it must be disclosed

to the court;

It is bad lawyering not to address controlling authority from this or otherjurisdictions;

If you make a mistake in the brief, clarify this with the court up front at oralargument if you dont, the judges will likely ask you to respond to the

discrepancy;

If you do not disclose mistakes to the court, an order to show cause may beissued;

Answer questions at oral argument squarely; Be prepared and be focused at oral argument; It is better to over prepare;


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Anticipate weaknesses in your case, and be prepared to rebut thoseweaknesses;

Softball questions are the judges way of allowing the attorney advocating acertain point to make a persuasive argument to other judges (in other words,

allow the advocate to make the point that the judge already agrees with for

the benefit of the other judges); Oral arguments make a difference in every case it allows the court to

confirm facts, narrow the issues, etc.;

If the HAWSCT accepts cert, it usually grants oral arguments because itconsiders the case important;

Oral arguments also lend legitimacy to the court, and allows the court tobecome more engaged in the case;

Bring the record on appeal to oral arguments in case you need to referencecertain documents the judges do;

Know the record, and come prepared to answer questions about the record; Ensure citations to the record are correct; and Start with your strongest argument.Finally, there is no such thing as a cross writ of certiorari. If you win your

appeal, you may still be able to seek relief with the HAWSCT if the ICA failed to

cover a certain issue or there were other grounds on which it could have decided the

case.

Mahalo to our all speakers, attendees, and Hawaii Supreme Court Justices for

joining us! See you next year!!


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Winners of First Twitter Brief ContestThis year, in conjunction with the HSBA Bar Convention, the Appellate

Section held a Twitter Brief Contest. We received creative entries from authorswho showed a succinct ability to strongly advocate in a mere 140 characters or less.

Winners were announced at the Bar Convention on Friday, September 27, 2013.

Here they are with their winning tweets:

FIRST PLACE: Elijah Yip

@ICA: Intent=QOF. Discov not done. 56(f) cont. denied. SJ

order thus error. Plus judge slept @ hrg. #Reverse

#Remand #WantDayInCourt

SECOND PLACE: Mark J. Bennett

He wasnt drunk, he wasnt stoned;

That cop, he only guessed.

Since no suspicion or PC:

His meth must be suppressed.

THIRD PLACE: Robert H. Thomas

Honorable Justices: the ICA didn't just err, it GRAVELY

erred! Please gran ... er "accept" cert. /s/Petitioner.

Mahalo to our winners and to everyone who participated!


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Congrats!Congrats to our Members who were elected to positions with the Board of the

Hawaii State Bar Association! And, thank you to the Members who supported

them.

Mark M. Murakami Treasurer

Rebecca A. Copeland Oahu Director


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This Month in Appellate History The following United States Supreme Court Justices assumed office in

October: Nathan Clifford, David Davis, Melville Fuller, Sherman Minton,Earl Warren, William J. Brennan, Jr., Potter Stewart, Abe Fortas, Thurgood

Marshall, David Souter, and Clarence Thomas.

On October 11 & 12, 1944, the United States Supreme Court held oralarguments in Korematsu v. United States, the case concerning the

constitutionality of the Executive Order that sent Japanese Americans into

internment camps during World War II. The court didnt issue its opinion

until December of that year.

In October 2000, Daniel R. Foley became an Associate Judge of theIntermediate Court of Appeals.

JEFS E-Filing Tip of the Month Even if you dont regularly practice in the Hawaii Appellate Courts, you may

still be required to register as a JEFS user. For example, you may be named

as representing a party to an appeal if the opposing party initiates an appeal

and you were the trial counsel (because the other side may not know at theonset of the appeal if there is new appellate counsel). The Hawaii Supreme

Courts Clerks Office will issue a notice to register as a JEFS user for all

attorneys designated as counsel of record in an appeal (who are not already

registered. Registering as a JEFS user is simple, and the notice should be

complied with.


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SeptemberPublished Appellate OpinionsIn September, the Hawaii Supreme Court issued two published opinions, andthe Intermediate Court of Appeals issued one. Below is a brief synopsis of each:

In Tracy Ah Mook Sang et al. v. Michael Clark et al., SCAP-11-0000536 (Sept.

3, 2013), the HAWSCT held that a social host who invites a minor onto his or her

property and then directly serves alcohol to the minor owes a duty of care to prevent

foreseeable injuries resulting from the consumption of alcohol, or to render or

summon aid if injuries have occurred, while the minor remains on the property as a

guest.

In Michael Siopes v. Kaiser Foundation Health Plan, Inc., SCAP-12-0000361

(Sept. 26, 2013), the HAWSCT held that a contractual arbitration provision was

unenforceable because there was not an underlying agreement to arbitrate.

In Childs v. Harada, 29968 (Sept. 30, 2013), the ICA held that the circuit

court erred in granting summary judgment because genuine issue of material fact

existed as to the intent to abandon an easement over land and whether the rights to

the easement had terminated by prescription.


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Upcoming Events:

Third Annual Meet & GreetOn Monday, October 21, 2013, the Appellate Section will hold its Third

Annual Meet & Greet at the Hawaii Supreme Court Conference

Room/Courtroom.

Join us and spend your lunch hour enjoying good food and the company of

fellow attorneys, the Hawaii Supreme Court Justices, the Intermediate Court of

Appeals Judges, their Staff Attorneys, Law Clerks, and Staff.

The event will take place between Noon and 1:30 p.m., and attendees are free

to come and go anytime during this period.

RSVP to the Appellate Sections Chair, Rebecca Copeland, at

[email protected].


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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 Resources:HAWAII APPELLATE SECTION WEBSITE: The Appellate Sections website

includes useful appellate resources, including handouts from prior monthlymeetings, copies of this newsletter, and power point presentations from the

Appellate Sections programs at the 2012 and 2013 HSBA Bar Coventions.

www.hawaiiappellatesection.org

HAWAII APPELLATE PRACTICE MANUAL: The Hawaii Appellate Practice

Manual (2012) includes information for filing appeals in Hawaii, including how to e-file documents on the Judiciarys E-Filing 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 through the HSBA.

FEDERAL APPELLATE PRACTICE MANUAL: The Federal Appellate Practice

Manual (2013) includes 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. The Manual was co-

sponsored by the Appellate Section and the Hawaii State Bar Association, and is

available through the HSBA.

HAWAII APPELLATE PRACTICE MANUAL SUPPLEMENT: Appellate

Motions Practice a supplement to the 2012 Hawaii Appellate Practice Manual,

offering insight and practice tips into state appellate motions practice, and

including additional forms. The Supplement was co-sponsored by the Appellate

Section and the Hawaii State Bar Association, and is available through the HSBA.


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Stay tuned for the November 2013 edition ofThe Appellate Record!

If you are interested in contributing to our newsletter in any way, please contact the

Sections Chair Rebecca A. Copeland at [email protected]

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!

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