Post on 03-Apr-2018
7/29/2019 The Appellate Record -- March 2013
http://slidepdf.com/reader/full/the-appellate-record-march-2013 1/16
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
7/29/2019 The Appellate Record -- March 2013
http://slidepdf.com/reader/full/the-appellate-record-march-2013 2/16
The Appellate Record, March 2013 Page 2
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
7/29/2019 The Appellate Record -- March 2013
http://slidepdf.com/reader/full/the-appellate-record-march-2013 3/16
The Appellate Record, March 2013 Page 3
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.
7/29/2019 The Appellate Record -- March 2013
http://slidepdf.com/reader/full/the-appellate-record-march-2013 4/16
The Appellate Record, March 2013 Page 4
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).
7/29/2019 The Appellate Record -- March 2013
http://slidepdf.com/reader/full/the-appellate-record-march-2013 5/16
The Appellate Record, March 2013 Page 5
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.
7/29/2019 The Appellate Record -- March 2013
http://slidepdf.com/reader/full/the-appellate-record-march-2013 6/16
The Appellate Record, March 2013 Page 6
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
7/29/2019 The Appellate Record -- March 2013
http://slidepdf.com/reader/full/the-appellate-record-march-2013 7/16
The Appellate Record, March 2013 Page 7
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).
7/29/2019 The Appellate Record -- March 2013
http://slidepdf.com/reader/full/the-appellate-record-march-2013 8/16
The Appellate Record, March 2013 Page 8
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
7/29/2019 The Appellate Record -- March 2013
http://slidepdf.com/reader/full/the-appellate-record-march-2013 9/16
The Appellate Record, March 2013 Page 9
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.
7/29/2019 The Appellate Record -- March 2013
http://slidepdf.com/reader/full/the-appellate-record-march-2013 10/16
The Appellate Record, March 2013 Page 10
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.
7/29/2019 The Appellate Record -- March 2013
http://slidepdf.com/reader/full/the-appellate-record-march-2013 11/16
The Appellate Record, March 2013 Page 11
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
bcka@hawaiilawyer.com.
7/29/2019 The Appellate Record -- March 2013
http://slidepdf.com/reader/full/the-appellate-record-march-2013 12/16
The Appellate Record, March 2013 Page 12
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.
7/29/2019 The Appellate Record -- March 2013
http://slidepdf.com/reader/full/the-appellate-record-march-2013 13/16
The Appellate Record, March 2013 Page 13
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
7/29/2019 The Appellate Record -- March 2013
http://slidepdf.com/reader/full/the-appellate-record-march-2013 14/16
The Appellate Record, March 2013 Page 14
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)
7/29/2019 The Appellate Record -- March 2013
http://slidepdf.com/reader/full/the-appellate-record-march-2013 15/16
The Appellate Record, March 2013 Page 15
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
7/29/2019 The Appellate Record -- March 2013
http://slidepdf.com/reader/full/the-appellate-record-march-2013 16/16
The Appellate Record, March 2013 Page 16
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 rebecca@copelandlawllc.com
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!