The Appellate Record -- March 2013

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The Appellate Record, March 2013 Page 1

THE APPELLATE RECORD

March 2013

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 can’t 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.

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




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 shouldn’t do. It shouldn’t be full of clutter. Here’s a secret: the

court rules do not require you to repeat your case caption.1 Once is enough—on 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

1 Hawaii Rules of Appellate Procedure (HRAP) 32(a); Federal Rules of Appellate2 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




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 can—and

should—be in normal English.

An introduction shouldn’t be boring. This is hard. There’s 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, it’s 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 1½ 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 don’t 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

didn’t 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, evenif the rules don’t require it).

3 Or worse, such as “COMES NOW THE FILING BY RESPONDENT-APPELLANT-

DEFENDANT ABC CORPORATION, INC., HEREINAFTER REFERRED TO

“APPELLANT”).” There is no requirement you refer to your client in this long-

winded fashion. Doing so will derail any attempt to make your introduction crisp,

clean, and persuasive.




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 you’ve written the

rest of it. So begin at the beginning, if you wish. But circle back to those first two

paragraphs after you’ve completed at least a first draft of the rest of your brief, and

make sure your introduction actually summarizes what you’ve 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?

4 Justice William Bablitch, Wisconsin Supreme Court, from Mistakes to Avoid on

Appeal, ABA Journal Sept. 1988 (emphasis added).




This Month in Appellate History Ø On March 2, 1932, United States Supreme Court Associate Justice Benjamin

N. Cardozo assumed office.

Ø On March 3, 2011, Sabrina S. McKenna was sworn in as Associate Justice of

the Hawaii Supreme Court.

Ø 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.




Appealable Judgments, Judgments on Appeal, and Other

Mysteries of Appellate Practice: A Lunch-Hour Talk with

Judge Katherine G. Leonard of the

Hawai‘i 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 Hawai‘i 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 Hawai‘i

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 forlack of appellate jurisdiction.

a. All Claims and Parties. The rules governing the appealability of

judgments in civil circuit court matters are Hawai‘i Rules of Civil Procedure

(“HRCP”) Rules 58 and 54. Generally, to be appealable, the judgment must dispose




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 separate-

judgment 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 Hawai‘i 18, 20, 889 P.2d 702, 704 (1995).

e. Hawai‘i 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 attorney’s 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.

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




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 asEaton 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 afinal 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 wasDismissed. 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




extensions. Completing the briefing triggers the ICA’s 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

Hawai‘i 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 Hawai‘i 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.




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

court’s 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 agovernmental 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 Mayor’s 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.




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 Section’s Secretary, Bethany C.K. Ace, at

[email protected].




JEFS E-Filing Tip of the Month Ø Notices of electronic filings are distributed through an email from JEFS. Be

sure to update your email address if it changes for any reason.

Ø JEFS notices of electronic filing also satisfy appellate service for those

individuals and attorneys registered with JEFS.

Ø 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 year’s 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), ChristphoerGoodin, 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 Section’s time at this

year’s 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 willinclude 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.




Member’s Law Firms Recognized by the Access to

Justice Commission for their Pro Bono Efforts:

Alston Hunt Floyd &Ing

Damon Key Leong Kupchak Hastert




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)




Appellate Section Website:

The Appellate Section’s website includes useful appellate resources, includinghandouts from prior monthly meetings, copies of this newsletter, and power point

presentations from the Appellate Section’s 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 Judiciary’s 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 for

purchase at the link below.

http://www.hsba.org/resources/8/Manuals/Publications%20List%20Fillable%20(upd

ated%209-1-2012).pdf




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

Section’s Chair Rebecca A. Copeland at [email protected]

The Appellate Record is presented

as a courtesy to the Members of the

Hawaii State Bar Association’s

Appellate Section by its Board.

Mahalo and enjoy!

Documents

The Appellate Record -- March 2013