4 March 2013 HAWAII BAR JOURNAL

By Rebecca A. CopelandThe February 2012 edition of the

Hawaii Bar Journal provided a roundupof the 2011 statistics for the Hawaiiappellate courts.1 This article considersthe statistics for 2012. Were there anychanges in the time it took the courts todispose of appeals in 2012? Did theHawaii Supreme Court and theIntermediate Court of Appeals releasemore opinions? Fewer? What other dif-ferences between 2011 and 2012 can begleaned?

Before providing the specific year inreview breakdowns, several factors thatinfluence the statistics should be noted:

• For practitioners, a client is typicallyconcerned with how long an appeal takesfrom the date the notice of appeal is filed.The filing of the notice of appeal signifiesthe start of what can sometimes be a longappellate journey for the parties to theappeal. Although an appellate case is ini-

tiated by the filing of the notice ofappeal,2 there are a number of factorsthereafter that may effect when a casereaches final appellate disposition.

•Examples of factors influencing the timeto disposition include: (1) when the clerk’srecord and transcripts from the lowercourt proceedings are filed;3 (2) whether aparty seeks a stay in the proceedings; and(3) whether one or more of the partiesobtains an extension of time to file anappellate brief.4 Generally, the effect thatthese events have on the time a case ispending is beyond the appellate court’scontrol.

In addition, the following rules havebeen applied to the calculation of the sta-tistics:

• The statistics are compiled using theinformation provided on the HawaiiJudiciary’s website (and as first published

on a monthly basis on the author’s blog).5

• Other than in providing the overall totaldisposition statistics, amended opinionsare not included in the opinion, memo-randum opinion, or summary dispositionorder tracking for each individual court’sstatistics.

Overall Appellate Court StatisticsThe appellate courts disposed of 961

appellate filings between January 1, 2012and December 31, 2012. The courtscombined issued 386 opinions, memo-randum opinions, and summary disposi-tion orders. Of the total 961 filings, 575ended through some kind of order otherthan an opinion. Examples of suchorders include the denial of reconsidera-tion, dismissal orders, and the grant ordenial of mandamus. The HawaiiSupreme Court disposed of 314 non-opinion filings. The Intermediate Courtof Appeals disposed of 261 non-opinion

2012 In ReviewHawaii Appellate Statistics

6 March 2013 HAWAII BAR JOURNAL

date at which time substitu-tions of judges may haveoccurred.7

In 2012, theIntermediate Court ofAppeals issued published

opinions in 31cases. Of thosecases, the aver-age dispositiontime from theassignment ofthe merit panelranged fromthree months to46 months, withan average time of 23months. The average dispo-sition time was also 688 daysor 99 weeks. The times areunderstandably longer whencalculated from the date thenotice of appeal is filed with

average times of 33 months, 139 weeks,and 973 days. Although the court cannotcontrol much of the delay that occursprior to the merit panel assignment, hav-ing some knowledge of the longer times –and how long an appeal will really take –is important to attorneys and their clients.The Intermediate Court of Appeals alsoissued 67 memorandum opinions and239 summary disposition orders in 2012.

The percentages of opinions, memo-

randum opinions, and summary disposi-tion orders as compared to 2011 remainedvery close. In 2012, 71% of the court’sdecisions were summary dispositionorders compared to 77% in 2011; 20%were memorandum opinions compared to13% in 2011; and 9% were publishedopinions compared to 10% in 2011 (seeChart 2).

In compiling the statistics in Chart 3,it is noteworthy that in July there were nopublished opinions by the IntermediateCourt of Appeals.

Hawaii Supreme Court StatisticsGenerally, appeals are heard by the

Hawaii Supreme Court on a discre-tionary basis – either through the filing ofan application for transfer or an applica-tion for writ of certiorari.8 After thecourt accepts review, there is typically nofurther briefing or other procedural land-marks that must be met.9 However, if thecourt requests additional briefing, thismay have an effect on the time it takes todispose of an appeal.10 Whether theHawaii Supreme Court decides to hear

oral argument may also effect thetime to disposition.11 For HawaiiSupreme Court opinions, the time todisposition is tracked from the datethe application for certiorari or trans-fer is filed.In 2012, the Hawaii Supreme Courtissued 41 published opinions. Ofthose cases, the average dispositiontime ranged from one month to 26months, with an average time ofeight months. The average disposi-tion time was also 227 days or 33weeks. Compared to 2011, theHawaii Supreme Court’s average dis-position time increased by twomonths – from six to eight months.

In compiling these statistics, it is notewor-thy that in June and September, therewere no published opinions issued by theHawaii Supreme Court.

During 2012, the Hawaii SupremeCourt also disposed of 106 applicationsfor certiorari. Of those, the court accept-ed certiorari in 41 cases, rejected certio-rari in 57 cases, and dismissed the certio-

filings. Overall, the Hawaii SupremeCourt issued 38 percent (or 363) of thetotal appellate dispositions, and theIntermediate Court of Appeals issued 62percent (or 598) of the total dispositions(see Chart 1).

Compared to 2011, the overall per-centage of total dispositions was up slight-ly for the Hawaii Supreme Court anddown slightly for the Intermediate Courtof Appeals. In 2011, the HawaiiSupreme Court issued 30 percent and theIntermediate Court of Appeals issued 70percent.

Intermediate Court of AppealsStatistics

Two disposition times are provid-ed for opinions issued by theIntermediate Court of Appeals: (1)from the date the notice of appeal isfiled, and (2) from the date the meritpanel is assigned. For those unfamil-iar with appeals, the merit panel is thepanel of judges assigned by the appel-late court clerk to consider the case.Under Hawaii Rules of AppellateProcedure, Rule 45(f), the appellateclerk assigns the merit panel random-ly upon the receipt of the last replybrief (or, if no reply brief is filed, thenfrom the date of a notice that no replybrief will be filed or the expiration ofthe time in which such brief couldhave been filed).6 The merit panelassignment is significant because it is atthat point that the court may consider thecase — although other factors may playinto when consideration occurs (forexample, stays or recusals and reassign-ments). In calculating the court’s statis-tics, original panel assignments govern thecalculated disposition time – not any later

Chart 1. Total 2012 Appellate Dispositions.

ICA62%

SDOs71%

Opinions9%

Memo Ops20%

HAWSCT38%

Chart 2. ICA Opinions.

Chart 3. Comparison of ICA Dispositions.

2011

Opinions31

Memo Ops67

SDOs239

Opinions32

MemoOps42

SDOs247

2012

0% 20% 40% 60% 80%

March 2013 HAWAII BAR JOURNAL 7

rari applications in 8 cases (see Chart 4).Although the rate of certiorari

acceptance is below fifty percent, it is stillhigh enough that parties may consider fil-ing an application worth the time, effort,and expense. According to fellow localappellate practitioner Peter V.N. Esser:“The high percentage of certs acceptedby the supreme court last year, oftenaccompanied by oral argument and pub-lished results, suggests that court has notonly created a new and powerful remedyfor appellate practitioners wishing tochallenge the Intermediate Court ofAppeals, but also contributed to thedevelopment of Hawaii common lawexpressed in detailed, well-reasoned opin-ions.”12

Separate OpinionsFor the first time in 2012, the separate

opinions issued by the appellate court jus-tices and judges were tracked on a month-ly basis and are compiled for the year here.The statistics tallied here include bothopinions (whether published or not) andorders. If a judge issued both a concur-rence and a dissent in the same case, theseparate opinion received a tally in eachcolumn. A judge also received a tally if heor she joined in a dissent or concurrenceissued by a fellow judge. Finally, separateopinions of circuit court judges are notseparately tallied, but two were issued: oneby Circuit Court Judge Kim and one byCircuit Court Judge Wilson.

In the Intermediate Court ofAppeals, Chief Judge Nakamura issuedtwo concurring opinions and one dissent;Judge Foley issued one concurring opin-ion; Judge Fujise issued no separate opin-ions; Judge Leonard issued one concur-rence and one dissent; Judge Reifurthissued one concurring opinion and twodissents; and Judge Ginoza issued two dis-sents. In the Hawaii Supreme Court,Chief Justice Recktenwald issued five

Chart 4. Cert Disposition.

Reject54%

Dismisssed7%

Accept39%

Your Local Bond Specialistproviding License, Notary, and Bail bonds in Hawaii for more than 30 years.See how easy the processcan be. Download theapplication from our web-site and apply for a newbond now. Just fill out the form and fax!

• Same Day Service• Same Day Answers• Same Day Issue• Same Day Delivery• Same Day Pick Up

James Waldron Lindblad, CBA | Bonding Agent808.522.1960 | toll free 800.701.2245 | www.808bond.com

550 Halekauwila St., Suite 303, Honolulu, Hawaii 96813

Meeting and Beating Mainland Firms Prices

March 2013 HAWAII BAR JOURNAL 9

concurring opinions and nine dissents;Justice Nakayama issued five concur-rences and eight dissents; Justice Acobaissued 17 concurring opinions and 20 dis-sents; Justice McKenna issued two con-currences and two dissents; Justice Duffyissued one dissent; and Justice Pollackissued no separate opinions (see Chart 5).

ConclusionKnowing how long an appeal may

take – whether in the Intermediate Courtof Appeals or in the Hawaii SupremeCourt – is an important factor that attor-neys and their clients should consider in

evaluating whether to seek review by ahigher court. An appeal that may takebetween six months and several yearsmay be expensive, time-consuming, andcan inflict an emotional toll on the par-ties. There are other factors attorneysand their clients should consider, includ-ing whether an appeal will be successful,the importance of the appeal, and thepotential outcome. Whether the time todisposition ranks higher or lower on thescale of issues to consider may only beanswered on a client-by-client basis.Nevertheless, when comparing the 2011and 2012 statistics there is one constant –the Hawaii appellate courts continue tomaintain a large caseload and that case-load will impact the time it takes to dis-pose of your appeal.__________________

1 Copeland, Hawaii Appellate Statistics — 2011

In Review, 16 Haw. B. J. 4 (Feb. 2012).2 Haw. R. App. P. 4(a)(1) (“When a civilappeal is permitted by law, the notice of appealshall be filed within 30 days after entry of thejudgment or appealable order.”); Haw. R. App. P.4(b)(1) (“In a criminal case, the notice of appealshall be filed within 30 days after entry of thejudgment or order appealed from.”). 3 The Clerk’s Record is filed 60 days after thenotice of appeal is filed, unless the completerecord cannot be transmitted by then and theclerk obtains an extension. Haw. R. App. P.11(b)(1). The transcript is filed between 45 daysand 60 days after the notice of appeal is filed,unless the court reporter obtains an extension oftime. Haw. R. App. P. 10(b)(1)(E).4 Haw. R. App. P. 26(b) (“The Hawaii appel-late courts, or any judge or justice thereof, for

good cause shown upon motion may extend thetime prescribed by these rules for doing any act,or may permit an act to be done after the expi-ration of such time.”); Haw. R. App. P. 29(a)(“Upon timely (1) oral request, or (2) writtenmotion, or (3) letter request by a party, the appel-late clerk shall grant one extension of time for nomore than 30 days for the filing of an opening oranswering brief and no more than 10 days forthe filing of a reply brief.”); Haw. R. App. P. 29(b)(“Motions for further extensions of time to filebriefs will be approved by a judge or justice onlyupon good cause shown.”).5 http://www.courts.state.hi.us; www.recor-donappeal.com. 6 Haw. R. App. P. 45(f)(1) (If no reply brief isfiled, then the merit panel is assigned “uponreceipt of a notice that the last reply brief will notbe filed, or upon expiration of the time when thelast reply brief could have been filed.”) For con-solidated appeals, the merit panel assigned to theoldest related appeal is used, or if there was noprior merit panel assignment, the clerk followsthe same procedure as described above. Haw. R.App. P. 45(f)(2).7 See Haw. Rev. Stat. §§ 602-55 (Supp. 2011)

Chart 5.

Concur

Rec

kten

wal

d

Nak

ayam

a

Aco

ba

McK

enna

Poll

ack

Duf

fy

Rec

kten

wal

d

Nak

ayam

a

Aco

ba

McK

enna

Poll

ack

Duf

fy

Dissent

25

20

15

10

5

0

10 March 2013 HAWAII BAR JOURNAL

(governing panels and substitute judges for theIntermediate Court of Appeals) and 602-10(Supp. 2011) (governing full court, oral argu-ment, and substitute justices for the HawaiiSupreme Court).8 Haw. R. App. P. 40.1 (certiorari); Haw. R.App. P. 40.2 (transfer); accord Haw. Rev. Stat. §§602-58 (Supp. 2011) (governing applications fortransfer) and 602-59 (Supp. 2011) (governingapplications for writ of certiorari).9 Haw. R. App. P. 40.1(i) (“If the supremecourt accepts the application for a writ of certio-rari, the case shall be decided on the record andbriefs previously filed.”). For cases heard by theHawaii Supreme Court by transfer from theIntermediate Court of Appeals, the same filingand briefing requirements apply. See Haw. R.App. P. 40.2(a); and Haw. R. App. P. 40.2(g)(“Unless otherwise ordered by the supreme courtwhile an application for transfer is pending, thesubmission and processing of an application fortransfer shall not stay the time in which a partymuch act under any provision of these rules.”).10 Haw. Rev. Stat. § 602-59(d) (Supp. 2011)(“Supplemental briefs shall be accepted fromparties only upon the request of the supremecourt.”). For transfer cases, the parties gothrough the same procedural milestones and fil-ings as cases heard by the Intermediate Court ofAppeals. See Haw. R. App. P. 40.2(a)(2) (“Anapplication . . . for an appeal may be submittedno earlier than 10 days after the filing of therecord on appeal and no later than 20 days afterthe last brief is filed or could have been filed.”);Haw. R. App. P. 40.2(g) (“[T]he submission andprocessing of an application for transfer shall notstay the time in which a party must act under anyprovision of these rules.”).11 Haw. R. App. P. 40.1(i) (“The supremecourt may limit the question on review, mayrequest supplemental briefs, and may set the casefor oral argument.”): Haw. R. App. P. 40.2(e)(“There shall be no oral argument on an appli-cation for transfer unless ordered by the supremecourt.”); Haw. R. App. P. 40.1(f) (“There shall beno oral argument on an application for a writ ofcertiorari unless requested by the court.”).12 The quotation is taken from an email sent byMr. Esser to the author.

Rebecca A. Copeland is a solo appellatepractitioner who concentrates her practice in theareas of appeals and appellate litigation. Shemaintains an active blog devoted to appeals atwww.recordonappeal.com, where she compiles thestatistics used for this article. Every month sherounds of the appellate courts’ statistics, includingthe time to disposition for Hawaii appeals. She isalso the Founder and 2012-2013 Chair of theHawaii State Bar Association’s Appellate Section,a Member of the City and County of Honolulu’sZoning Board of Appeals, and an AdjunctProfessor at the University of Hawaii’s WilliamS. Richardson School of Law teaching first yearlaw students in the art of appellate advocacy.

We've been there. Stress can turn to depression. Stress and Depression can accelerateself-medicating in about 15-18% of lawyers, and that can lead to disaster. We are hereas a safe place you can turn to. Let us help you back to a brighter future. The servicesare free and strictly confidential, and communications are privileged.

Call 531-2880 • Neighbor Islands, call 800-273-8775www.hawaiiaap.net • sdixon@interpac.net

overwhelming you?Pressures of the law

&Mediation

Dan BentMediator & ArbitratorDispute Prevention and Resolution, Inc.1003 Bishop Street • Pauahi Tower Suite 1155 Honolulu, HI 96813

“Believe and act as if it were impossible to fail.”

- Charles Kettering, Inventor

Arbitration

For over 20 years, we have achieved record results in all upscale neighborhoods!For a complimentary market analysis, callPatricia Case today at 526-CASE!