THE APPELLATE RECORD March 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: The Art of the Introduction

By: Deirdre Marie-Iha (Deputy Solicitor General, Department of the Attorney General)

Writing a truly effective introduction is one of the major challenges in appellate briefing. At least for me it is. I cant think of a single time when I did not write, delete, struggle, edit, write again, edit again, and then edit yet again, when writing an introduction. For me, this is true even when the arguments I make in the body of the brief come naturally to me. An introduction is an art, and a science, all its own. Why would the first paragraph or two of a brief merit so much attention? As they say, you never get a second chance to make a first impression. Your introduction is your first impression. Appellate judges are busy, meaning that the window of time in which you might make your first impression is blindingly short.
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In the first ninety seconds of picking up a brief, an appellate judge should be able to determine three critical things: who you are, what you want, and why you should win. Who you are: the name of your client, like the Department of Transportation, or a business, or a named individual. Notice I said the name of your client, not their procedural posture in the case. What you want: the result you seek on appeal, like affirm, reverse, or vacate and remand. An appellate brief is not a mystery novel! Tell them how it ends. Why you should win: the absolutely focused, core issue in your case. This could as simple as relaying the information that the circuit court interpreted the statute correctly or the evidentiary error warrants a new trial.

A properly crafted introduction can accomplish these three things, while simultaneously stating the most important facts in your favor, giving the broader context for the case, and laying out the fundamentals of your argument. That is a lot of heavy lifting for such a short little part of your brief. How can so much be accomplished with so little? To answer this question, we can start with the easier task of identifying what an introduction shouldnt do. It shouldnt be full of clutter. Heres a secret: the court rules do not require you to repeat your case caption.1 Once is enoughon the flysheet or cover of your brief. After your tables, you can start your brief on the next page with the word Introduction at the top.2 This approach is clean and Hawaii Rules of Appellate Procedure (HRAP) 32(a); Federal Rules of Appellate Careful readers will note that neither the HRAP nor the FRAP require an introduction. HRAP 28; FRAP 28. More importantly, neither set of rules prohibits introductions. Id. If this worries you, in state court you can address this problem by starting the text of your brief with the header statement of the case and then introduction, and then include the kind of short, focused introduction discussed here. HRAP 28(b)(3). In federal court, the text of the brief must begin with a jurisdictional statement and a statement of issues presented for review, and then the statement of the case. FRAP28(a)(4), (5), and (6). Because this structure denies you the opportunity to present the factual context for the case first, I see introductions as even more important in appellate briefs filed in federal court than those filed in state court. Personally, I include an introduction in every document I file. Nobody has complained yet. If anyone ever does, I take comfort in knowing I am in good company. See Interviews with the Supreme Court Justices, 13 Scribes
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uncluttered. There is also no requirement that you start your brief with Comes Now The Filing . . . or something similar.3 The first sentence of your brief canand shouldbe in normal English. An introduction shouldnt be boring. This is hard. Theres no way around it, some cases are inherently dull. But many cases are interesting, factually, legally, or both. There is no requirement that you make your brief tedious. If your case is engaging or thought-provoking, its perfectly acceptable to make your introduction that way too. Now for the harder task: what an introduction should do. A good introduction is a separate section, ideally no longer than about 1 to 1 pages. A solid introduction hits the high points of your case, identifies the desired result, and explains, in the simplest terms you can, why you should win. But if you dont begin with Comes Now the Filing, however will you start? Sometimes inspiration will strike, and it will occur to you that some central piece of the case should occupy that first sentence. If no idea comes to you, consider these two suggestions for a starting sentence. You can start with the single most important fact in the case, or you can start the introduction with these four words: This case is about . . . . I use both methods regularly. An introduction can also include tools to help the appellate court navigate the record and the parties relative positions in the case. Instead of cluttering up the first paragraph with complex, layered party designations, I put this information in a short footnote, along with how I will refer to each party. A second short footnote can give the court a roadmap to your record citations. Ideally, both of these footnotes appear on the bottom of the first page.

J. of Legal Writing (2010) at 30-31 (Chief Justice John G. Roberts, Jr., describing how, as an advocate, he would always include an introduction even if the rules didnt require it, and describing an introduction as the written equivalent of those first couple sentences of oral argument.); Bryan A. Garner, The Winning Brief (1996) at 80-81 (urging writers to include a preliminary statement in briefs, even if the rules dont require it). Or worse, such as COMES NOW THE FILING BY RESPONDENT-APPELLANTDEFENDANT ABC CORPORATION, INC., HEREINAFTER REFERRED TO APPELLANT). There is no requirement you refer to your client in this longwinded fashion. Doing so will derail any attempt to make your introduction crisp, clean, and persuasive.
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Finally, I suggest that your introduction be finished last. I often start by writing an introduction, but that initial version is never finished with the first time through. You cannot finish an introduction to a document until youve written the rest of it. So begin at the beginning, if you wish. But circle back to those first two paragraphs after youve completed at least a first draft of the rest of your brief, and make sure your introduction actually summarizes what youve written in the pages that follow. If you work at it, you will be surprised at just how effective that first page can be. I will leave you with one of my favorite quotes about introductions. A common rule of writing is that you do not confront the reader with details until you have provided a context for the details. To do that, you must state your case simply in the opening paragraph. If you can't do that, you do not understand your case.4 So, counsel, do you understand your case?

Justice William Bablitch, Wisconsin Supreme Court, from Mistakes to Avoid on Appeal, ABA Journal Sept. 1988 (emphasis added).
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This Month in Appellate History

On March 2, 1932, United States Supreme Court Associate Justice Benjamin N. Cardozo assumed office. On March 3, 2011, Sabrina S. McKenna was sworn in as Associate Justice of the Hawaii Supreme Court. On March 9, 1841, the United States Supreme Court issued its opinion (7-1) in United States v. Libellants and Claimants of the Schooner Amistad, 40 U.S. 518 (1841), holding that Africans who had been held aboard the Spanish slave ship La Amistad had been kidnapped, and that, even under the laws of Spain, must be freed.

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Appealable Judgments, Judgments on Appeal, and Other Mysteries of Appellate Practice: A Lunch-Hour Talk with Judge Katherine G. Leonard of the Hawaii Intermediate Court of Appeals
By: Christopher T. Goodin and Mitsuko T. Louie (Litigation Department, Cades Schutte LLP)

At the February 25, 2013 meeting of the HSBA Appellate and Litigation Sections, Judge Katherine G. Leonard discussed the topic of Appealable Judgments, Judgments on Appeal, and Other Mysteries of Appellate Practice. Specifically, Judge Leonard covered: (1) when judgments and orders are appealable; (2) the timing of entry of judgments on appeal; and (3) a recent Hawaii Supreme Court case on the summary judgment standard. These points are addressed in turn below.

1.

Appealable Judgments

When is a judgment or order appealable? A staff attorney at the Hawaii Intermediate Court of Appeals (the ICA) reviews each appeal to ensure that the underlying judgment or order was in fact appealable and that the court thus has appellate jurisdiction. In the last twelve months, the ICA dismissed 124 cases for lack of appellate jurisdiction. a. All Claims and Parties. The rules governing the appealability of judgments in civil circuit court matters are Hawaii Rules of Civil Procedure (HRCP) Rules 58 and 54. Generally, to be appealable, the judgment must dispose

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of all claims against all parties, unless the court grants certification under Rule 54(b). b. Separate Document. Additionally, the judgment must normally be reduced to a separate document pursuant to HRCP Rule 58. Thus, for example, a Rule 54(b) certification order is not itself appealable. The circuit court must also enter a separate judgment. However, the separate-judgment requirement is inapplicable in certain contexts. For instance, the requirement does not apply in district court generally or in arbitration-confirmation matters in circuit court. Notably, although the separatejudgment requirement does not apply to an arbitration-confirmation matter, if a separate judgment is entered in such a matter, both the order regarding confirmation and the separate judgment will be appealable. c. Collateral Order Doctrine. An order may also be appealable if it qualifies as a collateral order. The order must be conclusive on the issue presented, collateral to the merits of the case, and effectively unreviewable. An example is a sanctions order requiring a party or attorney to pay amounts immediately. d. The Forgay Doctrine. The Forgay doctrine5 is an exception to the finality requirement for appeals and it allows an appellant to immediately appeal a judgment for execution upon property, even if all claims of the parties have not been finally resolved. Ciesla v. Reddish, 78 Hawaii 18, 20, 889 P.2d 702, 704 (1995). e. Hawaii Rules of Appellate Procedure (HRAP) Rule 4(a)(3). Rule 4(a)(3) in some instances extends the time to appeal where a post-judgment motion is filed. The rule states in part: If any party files a timely motion for judgment as a matter of law, to amend findings or make additional findings, for a new trial, to reconsider, alter or amend the judgment or order, or for attorneys fees or costs, the time for filing the notice of appeal is extended until 30 days after entry of an order disposing of the motion; provided, that the failure to dispose of any motion by order entered upon the record within 90 days after the date the motion was filed shall constitute a denial of the motion.

Forgay v. Conrad, 47 U.S. 201, 12 L. Ed. 404 (1848). Page 7

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Judge Leonard noted a gray area in Rule 4(a)(3): When a motion is deemed denied by the failure of the trial court to act within 90 days, is the motion denied just for purposes of appeal or is it denied on the merits? What happens if the trial court enters an order granting the post-judgment motion after the 90-day period? In that circumstance, Judge Leonard suggested that a HRCP Rule 60 motion may be appropriate. f. Civil Family Court. There are special rules for appeals in civil family court cases. For example, divorce cases generally involve four parts and different parts are appealable at different times. Additionally, in family court cases, a party may be required by statute to file a motion for reconsideration before appealing. If the party fails to file a timely reconsideration motion, the party may lose his or her right to appeal. Finally, orders that infringe upon parental custody rights are immediately appealable. For a discussion on appealability in the civil family court setting, Judge Leonard referred to the HSBA Family Law Section Manual as well as Eaton v. Eaton, 7 Haw. App. 111, 748 P.2d 801 (1987). g. Criminal Court. In a criminal circuit court matters, a party may appeal a final judgment, a certified interlocutory order, or in some instances an order denying a motion to dismiss based on double jeopardy. A judgment is not final until it includes the adjudication of the merits and, if applicable, the sentence. If the sentence includes restitution, but the amount of restitution has not been determined, the judgment is not yet final. Unlike in circuit court, there are generally no interlocutory appeals in district court. An appeal normally requires a final written order. A member of the audience asked whether bail bond orders are appealable. Judge Leonard was inclined to think that such orders are not immediately appealable, but might be challenged through a writ of mandamus. h. Criminal Family Court. By statute, appealability rules applicable to criminal circuit court matters are also applicable to criminal family court matters. In juvenile criminal family court matters, the party seeking to appeal may first need to file a motion for reconsideration. i. Expediting the Second Appeal After the First Appeal was Dismissed. Suppose an appeal is dismissed for lack of jurisdiction, the trial court enters an amended judgment, and a second appeal is filed. The parties want to make up for lost time. Should they file a motion to expedite the second appeal? The ICA probably would not grant such a motion. Judge Leonard suggested that the parties file their briefs as soon as possible and avoid requesting briefing
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extensions. Completing the briefing triggers the ICAs internal guideline to decide cases within two years. Most cases are decided within that timeframe. The disposition time is influenced by the total number of cases, as well as by the number of priority cases (e.g., cases concerning incarcerated criminal defendants, cases concerning child custody issues), before the ICA. 2. Judgments on Appeal

The ICA normally waits to enter the judgment on appeal until after motions for reconsideration and motions for attorneys fees and costs have been decided. If the ICA enters judgment on appeal before the fees and costs are decided, there is a chance that the subsequent order on the fees and costs will not be reviewable by the Hawaii Supreme Court through an application for a writ of certiorari.

3.

Summary Judgment Under Ralston v. Yim

In Ralston v. Yim, 292 P.3d 1276 (Haw. 2013), the Hawaii Supreme Court held that the defendant did not meet his burden of production on a motion for summary judgment. According to Judge Leonard, the case did not break new ground, but it did provide a clear discussion of the summary judgment standard. Judge Leonard emphasized that the ICA will rely heavily on Ralston in reviewing summary judgment orders.

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February Published Appellate Opinions

In February, the Hawaii Supreme Court issued one published opinion and the Intermediate Court of Appeals issued two. Below is a brief synopsis of each: In State v. Spearman, SCWC-11-0000702 (Feb. 21, 2013), the HAWSCT held that the collateral estoppel principle of double jeopardy prevents re-litigating blood alcohol content in a driving under the influence offense based on the blood alcohol content method of proof, but not recharging defendant under impaired driving method of proof. In Lahaina Fashions, Inc. v. Bank of Hawaii, 30644 (Feb. 21, 2013), that ICA held that the circuit court correctly denied a motion requesting that the jury be given an opportunity to enter a new verdict because the jury had been discharged and was, therefore, incapable of amending its verdict. A verdict may no longer be amended following the acceptance and recordation of the verdict and the trial courts subsequent explicit discharge of the jury. The court also held that because jury error as to a question in the verdict reflected a misunderstanding of the legal effect of its answer rather than a clerical error, the error was not a basis for amending the verdict. In Perry v. Perez-Wendt, 30329 (Feb. 8, 2013), the ICA held that that the complaint did not make allegations related to public participation before a governmental body one of the two fundamental requisites for a lawsuit to be considered a SLAPP (strategic lawsuit against public participation) lawsuit under the Hawaii anti-SLAPP statute, HRS Chapter 634F. Specifically, the court held that communications with the Mayor, the Mayors Assistant, and the Members of the County Council did not qualify as testimony before a governmental body. The court also held that a complaint filed with the ODC is also not public participation before a governmental body because there is no oral or written testimony involved.

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Upcoming Events: March Appellate Section Meeting

Please join the HSBA Appellate and Litigation Sections for a joint meeting on March 25, 2013, from noon to 1:00 p.m., at the HSBA Large Conference Room. Our presentation will be "Socializing with a Purpose: Ethical Tips and Other Considerations for Networking, Rainmaking, and the Use of Social Media." The presenters will include Elijah Yip, former Litigation Section Chair and partner at Cades Schutte, and Rebecca Copeland, Appellate Section Chair and solo appellate practitioner. The presentation has been approved for 1.0 hour MCPE so come and receive part of your required CLE credit for free with friends, food, and an interesting topic! A light lunch will be provided. RSVP to the Appellate Sections Secretary, Bethany C.K. Ace, at bcka@hawaiilawyer.com.

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JEFS E-Filing Tip of the Month Notices of electronic filings are distributed through an email from JEFS. Be
sure to update your email address if it changes for any reason. JEFS notices of electronic filing also satisfy appellate service for those individuals and attorneys registered with JEFS. The JEFS system also allows for a secondary email address in addition to the primary one therefore, attorneys may input the email address of a paralegal, secretary, or other assistance who will automatically receive all notices of electronic filing as the secondary email recipient.

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), Christphoer Goodin, Mitsuko Louie, 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, 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 and Sabrina McKenna. Mark your calendars now for Friday, September 27, 2013.

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Members Law Firms Recognized by the Access to Justice Commission for their Pro Bono Efforts:

Alston Hunt Floyd &Ing

Damon Key Leong Kupchak Hastert

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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 April 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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