THE APPELLATE RECORD October 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:
Review of the Appellate Sections Program at the 2013 HSBA Bar Convention

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

On Friday, September 27, 2013, the HSBA Appellate Section held a program at the annual bar convention for the second year devoted to appellate practice. This
The Appellate Record, October 2013 Page 1

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.

The Appellate Record, October 2013

Page 2

Chief Justice Recktenwald provided the three important tips necessary in order for attorneys to competently represent their clients on appeal: 1. 2. 3. Be on time and meet all deadlines; Follow all briefing rules; 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 other jurisdictions; If you make a mistake in the brief, clarify this with the court up front at oral argument 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 be issued; Answer questions at oral argument squarely; Be prepared and be focused at oral argument; It is better to over prepare;

The Appellate Record, October 2013

Page 3

Anticipate weaknesses in your case, and be prepared to rebut those weaknesses; Softball questions are the judges way of allowing the attorney advocating a certain 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 it considers the case important; Oral arguments also lend legitimacy to the court, and allows the court to become more engaged in the case; Bring the record on appeal to oral arguments in case you need to reference certain 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!!

The Appellate Record, October 2013

Page 4

Winners of First Twitter Brief Contest

This year, in conjunction with the HSBA Bar Convention, the Appellate Section held a Twitter Brief Contest. We received creative entries from authors who 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!

The Appellate Record, October 2013

Page 5

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

The Appellate Record, October 2013

Page 6

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 oral arguments 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 the Intermediate 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 the onset 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.

The Appellate Record, October 2013

Page 7

September Published Appellate Opinions

In September, the Hawaii Supreme Court issued two published opinions, and the 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.

The Appellate Record, October 2013

Page 8

Upcoming Events: Third Annual Meet & Greet

On 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 rebecca@copelandlawllc.com. Sections Chair, Rebecca Copeland, at

The Appellate Record, October 2013

Page 9

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)

The Appellate Record, October 2013

Page 10

Appellate Resources:
HAWAII 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 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 efile 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 cosponsored 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.
The Appellate Record, October 2013 Page 11

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 November 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

The Appellate Record, October 2013

Page 12