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THE APPELLATE RECORD December 2012

2012 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. Linden Joesting HAWSCT Liaison: Mr. Matthew Chapman ICA Liaison: Mr. Daniel J. Kunkel

FEATURED ARTICLE:
Preservation of Error
By: Mitsuko Takahashi and Christopher Goodin (Cades Schutte)

The Hawaii State Bar Associations Appellate Section held its monthly meeting on November 7, 2012, at the HSBAs Conference Room, where guest speaker Edward C. Kemper, Esq., presented a program on the topic of Preservation of Error. Mr. Kemper is a practicing trial attorney in Honolulu and is one of the contributing authors to the 2012 Hawaii Appellate Practice Manual. The following is an overview of the practice pointers discussed by Mr. Kemper and members of the Appellate Section during the program.

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Standard Jury Instructions. The standard jury instructions were adopted, but not endorsed, by the Hawaii Supreme Court. Thus, objections to a standard jury instruction should still be made if you feel that you have a good faith basis for the objection. Objections should be followed by your proposed alternative to the instruction or, if based on misstatement of the law, the correct statement of the law. Findings of Fact/Conclusions of Law. Objections to findings/conclusions are not technically required for preservation purposes, but objections will ensure that your argument is preserved. In civil actions, file objections to the opposing sides proposed findings/conclusions in addition to filing your own proposed findings/conclusions. In criminal actions, submit proposed findings if representing the defendant. If your appeal involves an issue that relates to a large number of findings, consider quoting only the most critical ones you want to highlight and then listing the remainder by number and indicating that they are attached in the appendix. Discovery Disputes. To preserve discovery disputes related to improper and incomplete responses, a motion to compel should be filed. Ruling on Masters Report. Ensure that you timely object to a Masters Report (and be aware that that report may not cover the entire case, and the probate courts adoption of the report may be ambiguous). Improper Admission of Evidence. Even if your motion in limine has been granted, make an objection if the opposing party attempts to admit the evidence.

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Decisions/Judgments Filed by Opposing Party. A court may ask a party to draft the decision/judgment. Although Rule 22 of the Rules of the Circuit Court provides that you do not need to object to a decision filed by an opposing party, file an objection to be safe. Waiver of Objection. The argument that a party waived its objection and failed to preserve error may be an issue to argue in your Answering Brief. Plain Error. The appellate courts appear to be more receptive to plain error in criminal cases. In contrast, reliance on plain error in civil cases is rare.

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Year In Review - 2012


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

2012 was an exciting year! Most importantly, this year saw the formation of the HSBAs Appellate Section. The inaugural Board of the Section worked hard throughout the year to make the Section a success, and they succeeded. During 2012, the Appellate Section sponsored the first Appellate Practice Manual to be published in Hawaii since 1988. Contributors to the Manual include Bethany C.K. Ace, Calvert G. Chipchase, Michelle N. Comeau, Rebecca A. Copeland (editor and contributor), Matthew T. Evans, Tred R. Eyerly, Charles A. Foster, Edward Kemper, Benjamin E. Lowenthal, Marissa H. Luning (editor), JohnAnderson L. Meyer, G. Richard Morry, Mitsuko Takahashi, Micheal Tanoue, and Robert H. Thomas. This year, the Section also sponsored the implementation of an Appellate Pro Bono Pilot Project, in conjunction with the Hawaii Access to Justice Commission and the Hawaii Judiciary. The program will match low to moderate income pro se clients with appellate practitioners for appeals before the Intermediate Court of Appeals and the Hawaii Supreme Court. In addition to helping pro se clients, the program will provide opportunities for Hawaii attorneys to brief and argue cases before the Hawaii appellate courts. Each month, we provided our Members with a newsletter that included many informative and interesting topics written by our some of our Members. The Section also unveiled a website: www.hawaiiappellatesection.org. The website contains educational materials from the Sections various CLE events, and also serves as a central location where both attorneys and non-attorneys may go to obtain information on appellate practice in Hawaii. The Section also hosted montly meetings and events that featured a number of important topics to appellate practitioners. We were fortunate to have many distinguished guests give presentations.

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In January, we kicked off the year with Intermediate Court of Appeals Chief Judge Craig H. Nakamura. Chief Judge Nakamura spoke to a packed conference room on appellate motions practice, providing our Members with important information and practice tips. We were pleased to co-host the meeting with the HSBA Litigation Section. In February, the Section hosted former Hawaii Attorney General Mark J. Bennett (now with Starn OToole, and the Sections Vice-Chair). Mr. Bennett discussed oral argument from the practitioners perspective and provided the Members with educational insights from his own experience with oral arguments before the Hawaii Supreme Court and the United States Supreme Court. In March, the Section was pleased to have Ninth Circuit Judge Richard Clifton as our guest. Judge Clifton provided tips on oral argument from the courts perspective with his topic Ten Things Lawyers Should Know about Oral Arguments. In April, our guests were Ms. Elizabeth Kent, Director of the Judiciary Center for ADR, and Mr. Charles Hurd, co-chair of the HSBA ADR Section and appellate mediator, discussing the Hawaii Appellate Mediation Program. In May, now retired Hawaii Supreme Court Justice James E. Duffy, Jr., retired Hawaii Supreme Court Justice Steven H. Levinson, and long-time appellate practitioner Peter Esser provided useful information and practice tips on the cert practice before the Hawaii Supreme Court. In June, our Members received free MCPE credit on the topic of access to justice with our guests Hawaii Supreme Court Justice Acoba and Intermediate Court of Appeals Judge Foley. In July, we hosted a panel consisting of United States District Court Judge J. Michael Seabright, Intermediate Court of Appeals Chief Judge Craig H. Nakamura and Associate Judge Daniel R. Foley, and former Hawaii Attorney General Mark J. Bennett (now with Starn OToole, and the Sections Vice-Chair) to discuss the United States Supreme Courts decision in National Federation of Independent Business et al. v. Sebelius, Secretary of Health and Human Services et al., No. 11-393 (June 28, 2011) also known as Obamacare. In August, Mr. Donn Fudo of the Department of the Prosecuting Attorney and Mr. Paul Alston of Alston Hunt Floyd & Ing joined us to
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discuss interesting cases that will be tackled by the United State Supreme Court this term. In September, the Section enjoyed its first round of CLE programs at the annual HSBA Bar Convention. The Appellate Section's program included presentation of the Hawaii Appellate Practice Manual, including topics such as standards of review, pre-requisites for appeal, the effect of appeal on trial court jurisdiction, stays pending appeal, oral argument, attorneys fees, record on appeal, applications for certiorari and transfer, and electronic filing through the JEFS system. The Convention program culminated in a distinguished appellate panel comprised of Chief Justice Mark E. Recktenwald, Associate Justice Simeon R. Acoba, Jr., Chief Judge Craig H. Nakamura, Associate Judge Katherine G. Leonard, and State Solicitor General Girard D. Lau. The appellate panel answered questions focused on ethical appellate practice. In October, Members attended our annual Meet & Greet at the Hawaii Supreme Court Courthouse, and mingled with members of the Hawaii Supreme Court, the Intermediate Court of Appeals, their staff attorneys, and law clerks. This is the second year weve hosted this event, and it was once again success. In November, we rounded out the last regular meeting of the year with long-time appellate pracitioner Mr. Ed Kemper discussing preservation of error. We will finish out the year hosting Hawaii Supreme Court Chief Justice Mark E. Recktenwald for our year-end meeting, another joint endeavor with the Litigation Section. When the Section was created, one of the overall goals was to provide appellate practitioners with educational opportunities in order to improve appellate practice in Hawaii. To that end, each monthly meeting (other than the Meet & Greet) provided an opportunity for our Members to obtain VLCE or MCPE credit and most of the time for free. The Section was also formed to give our Members the opportunity to meet each other a chance to get to know other attorneys who share the same passion for appeals. We very much hope that we have accomplished this goal. I would like to thank everyone who helped to make 2012 a successful first year for the Appellate Section, including my fellow Board members Mark Bennett, Bethany Ace, and Robert Nakatsuji. Id also like to thank our liaisons Linden Joesting (who organizing the CLE every month for our meetings), Matthew Chapman (who serves are our liaison with the Hawaii Supreme Court) and Daniel
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Kunkel (who serves as our liaison with the Intermediate Court of Appeals). I am pleased to announce that the current Board and Liaisons will continue in their positions for 2013. Id like to thank our former Secretary Christi-Anne Kudo Chock and our former Intermediate Court of Appeals liaison Elizabeth Zack. Additional thanks goes out to our Members who donated their time on the Appellate Manual, the monthly newsletters, and who spoke at our monthly meetings and the Bar Convention. Finally, Id like to send a special mahalo to the Members of the Hawaii appellate courts, including Chief Justice Recktenwald and Chief Judge Nakamura, who helped make the Section a success. Without their generous support when the Section was first formed, and their continued support, the Section would not be what it is today. I look forward to another fun and exciting year! Mahalo.

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Upcoming Events: December Appellate Section Meeting


The Appellate Section will join with the Litigation Section for our end of year luncheon. The event will be held on Thursday, December 13, 2012, from Noon to 1:30 at the Plaza Club. Our guest will be Hawaii Supreme Court Chief Justice Mark E. Recktenwald.

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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 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 January 2013 edition of The Appellate Record!

If you are interested in contributing to our newsletter in any way, please contact Rebecca A. Copeland at rac@hawaiilawyer.com

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