Hawaii Attorney Legal Blog

Hawaii attorney Philip R. Brown has been selected by his peers to be included in the 2010 edition of The Best Lawyers in America. Obviously, he is delighted to have received this great honor.

"For over a quarter of a century, Best Lawyers has been regarded- by both the profession and the public-as the definitive guide to legal excellence in the United States. Selection to Best Lawyers is based on exhaustive and rigorous peer-review survey ... by the top attorneys in the country."

Admittedly, legal professionals may disagree as to the "definitive guide to legal excellence in the United States". Best Lawyers, Martindale Hubbell , The Bar Register of Preemenient Lawyers and the American Trial Lawyers Association can all make solid claims to be the definitive guide to legal excellence. Philip Brown has now received the highest rating from each of those legal guides.

Philip Brown is listed in The Best Lawyers in America under Commercial Litigation. Mr. Brown has the highest ethical/legal rating (AV) from Martindale Hubbell. Mr. Brown is also listed by the American Trial Lawyers Association in the Top 100 Trial Lawyers. Finally, Philip Brown is listed in the Bar Register of Preeminent Lawyers under Civil Trial Practice, Commercial Litigation, and Personal Injury.

Labels: Civil Procedure and Trial Practice, Commercial Litigation, Office News, The Legal Profession

Hawaii Courts strongly encourage arbitration. In fact, Hawaii Courts favor arbitration to such an extent that if there are three parties to a contract (and one didn't sign the agreement containing the arbitration clause) the Court will likely enforce the arbitration agreement (if the nonsignatory wants the agreement enforced).

That's right, in certain circumstances nonsignatories to an agreement have standing to invoke an agreement's arbitration clause. The Hawaii Supreme Court explained this principle in Luke v Gentry, Ltd., 105 Hawaii 241, 248 (Hawaii, 2004) as follows:

[W]e hold that a nonsignatory agent has standing to invoke an arbitration agreement if one of the following two conditions is met:

First, when the signatory to a written agreement containing an arbitration clause must rely on the terms of the written agreement in asserting its claims against the nonsignatory. Second, when the signatory to the contract containing a arbitration clause raises allegations of substantially interdependent and concerted misconduct by both the nonsignatory and one or more of the signatories to the contract.

Id. at 248.

Thus, if you have entered into an arbitration agreement in Hawaii, it appears that it will be enforceable by parties and non parties.

Moreover, if a Hawaii court holds that defendant has standing to invoke an arbitration clause, the court will stay the case pending the outcome of the arbitration. H.R.S. section 658A-7. Admittedly, the stay may be limited to the claim(s) subject to the arbitration that are severable. H.R.S. section 658A-7; Ueoka v Szymanski, 107 Hawaii 386, 396 (Hawaii, 2005). However, in order to promote judicial efficiency, the court will likely the remainder of the action (not just the claims subject to the arbitration) until the arbitrable issues are decided or the parties waive their right to arbitrate. Creative Telecommunications, Inc. v Breeden, 120 F.Supp.2d, 1225, 1242-43 (D.Haw., 1999)("[I]f non-arbitrable issues depend on arbitrable issues, or if resolution of arbitrable issues would render the district court's ruling on the non-arbitrable issues unnecessary, litigation on the non-arbitrable issues should be stayed pending arbitration.").

For a discussion of our Arbitration and Mediation Practice, please click
here.

Labels: Civil Procedure and Trial Practice, Mediation and Arbitration

Hawaii courts favor arbitration. Arbitration is a device in which the litigants agree to hire a private, independent third party to decide their case. It is generally accepted that parties will reduce litigation costs by arbitrating a matter, since the process will be streamlined. It is quite common for parties to agree to arbitrate in a contract, although any case may be resolved through arbitration (so long as all parties agree to do so).

If there is an arbitration clause in an agreement, courts are obligated to enforce it so long as the court determines that the dispute is subject to the clause in the agreement. H.R.S. section 658A-6, H.R.S. section 658A-7. Moreover, if (i) a party to the contract files a motion to compel arbitration or (ii) the court orders arbitration, then the court shall stay any proceeding that involves the same claim(s). H.R.S. section 658A-7.

Hawaii Revised Statutes ("H.R.S") section 658A-6 states the following:

(a) An agreement contained in a record to submit to arbitration any existing or subsequent controversy arising between the parties to the agreement is valid, enforceable, and irrevocable except upon a ground that exists at law or in equity for the revocation of a contract.

(b) The court shall decide whether an agreement to arbitrate exists or a controversy is subject to an agreement to arbitrate.

(c) An arbitrator shall decide whether a condition precedent to arbitrability has been fulfilled and whether a contract containing a valid agreement to arbitrate is enforceable.

(d) If a party to a judicial proceeding challenges the existence of, or claims that a controversy is not subject to, an agreement to arbitrate, the arbitration proceeding may continue pending final resolution of the issue by the court, unless the court otherwise orders.

Further, H.R.S. section 658A-7 provides,

(a) On motion of a person showing an agreement to arbitrate and alleging another person's refusal to arbitrate pursuant to the agreement:

(1) If the refusing party does not appear or does not oppose the motion, the court shall order the parties to arbitrate; and

(2) If the refusing party opposes the motion, the court shall proceed summarily to decide the issue and order the parties to arbitrate unless it finds that there is no enforceable agreement to arbitrate.

(b) On motion of a person alleging that an arbitration proceeding has been initiated or threatened but that there is no agreement to arbitrate, the court shall proceed summarily to decide the issue. If the court finds that there is an enforceable agreement to arbitrate, it shall order the parties to arbitrate.

(c) If the court finds that there is no enforceable agreement, it shall not, pursuant to subsection (a) or (b), order the parties to arbitrate.

(d) The court shall not refuse to order arbitration because the claim subject to arbitration lacks merit or grounds for the claim have not been established.

(e) If a proceeding involving a claim referable to arbitration under an alleged agreement to arbitrate is pending in court, a motion under this section shall be made in that court. Otherwise a motion under this section shall be made in any court as provided in section 658A-27.

(f) If a party makes a motion to the court to order arbitration, the court on just terms shall stay any judicial proceeding that involves a claim alleged to be subject to the arbitration until the court renders a final decision under this section.

(g) If the court orders arbitration, the court on just terms shall stay any judicial proceeding that involves a claim subject to the arbitration. If a claim subject to the arbitration is severable, the court may limit the stay to that claim.

Arbitrations are heavily favored by Hawaii Courts. The Hawaii Supreme Court in Lee v Heftel explained the rationale behind this policy:

. . .[We] emphasize the importance of utilizing alternative methods of dispute resolution in an effort to reduce the growing number of cases that crowd our courts each year. This court has long recognized the strong public policy supporting Hawaii's arbitration statutes as codified in HRS Chapter 658. We have stated that the proclaimed policy . . . is to encourage arbitration as a means of settling differences and thereby avoiding lititgation. Any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration. As with any contract, the parties' intentions control, but those intentions are generously construed as to issues of arbitrability. The preeminent concern of Congress in passing the [Federal Arbitration] Act was to enforce private agreements into which parties had entered, [a concern which] requires that we rigorously enforce agreements to arbitrate.

Lee v. Heftel, 81 Hawaii 1,4 (1996)(no citations or brackets included).

For a discussion of our Arbitration and Mediation Practice, please click here.

Labels: Civil Procedure and Trial Practice, Mediation and Arbitration

In a lawsuit, Hawaii attorneys generally rely on two types of written discovery devices- interrogatories and document requests. Simply put, interrogatories are lists of questions that must be answered by the opposing party under oath. A discovery request lists categories of documents that must be produced for review by the opposing attorney. This blog will discuss each discovery device. A Hawaii party is required to timely respond to a Request for Answers to Interrogatories and to a Request for Production of Documents within thirty days after service of the request. If a party fails to respond to the discovery request within the thirty days, the party who served the discovery request may file a motion to compel answers to interrogatories or production. H.R.C.P. Rule 37(a)(2). However, under the Hawaii Model Rules of Professional Courtesy and Civility, Hawaii attorneys are required to "meet and confer" to attempt to solve any discovery issues before filing a motion to compel. If the "meet and confer" is unsuccessful, you may file a motion to compel. If the motion to compel is granted, the Court may award attorneys fees or costs (award the moving party's expenses incurred in obtaining the order compelling answers to interrogatories or production, including attorneys' fees, unless the court finds that the award of expenses would be unjust). Rule 37(a)(2) and (4), H.R.C.P.

Moreover, a "failure to serve objections to interrogatories and production of documents within the time period prescribed by the rule is a waiver of such objections." Bohlin v. Brass Rail, 20 F.R.D. 224 (E.D. Pa. 1957); Davis v. Romney, 53 F.R.D. 247 (E.D. Pa. 1971); United States v. Acres of the Land, 66 F.R.D. 570 (E.D. Ill. 1975); Perry v. Golub, 74 F.R.D. 360 (N.D. Ala. 1976); Fretz v. Keltner, 109 F.R.D. 303 (D. Kan. 1986; Brock v. Grace, 110 F.R.D. 58 (D. N.J. 1986). Consequently, a party's failure to respond within the thirty day period as prescribed by Rule 33, H.R.C.P., constitutes a waiver of any objections and all interrogatories must be answered in full and all documents requested must be produced.

Labels: Civil Procedure and Trial Practice

When filing a motion in Hawaii State Court, the motion and all of its supporting documents (memorandum in support of motion; affidavits or declarations; exhibits, and notice of hearing and certificate of service) are delivered to the Court. The Court sets a hearing date and time and returns it to the moving party. The party filing the motion is then responsible for conforming the motion and serving it on the opposing party. The process of obtaining a Court hearing may take a few days to a week depending on the Court's workload.

Motions will be heard upon eighteen (18) days written notice in accordance with Rule 7 of the Hawaii Rules of the Circuit Court. However, if you need an expedited hearing date, you should file an Ex Parte Motion to Advance Time for Hearing to the Court along with the motion. It is important to note that the motion must be served on parties not less than 18 days prior to the date of the oral hearing.

Pursuant to the Rule 7(b) of the Hawaii Rules of the Circuit Courts, (i) opposition memoranda by an opposing party must be served and filed not less than eight (8) days prior to the date set for the oral hearing and (ii) reply memoranda must be served and filed not less than three (3) days before the date of the oral hearing. When calendaring these two deadlines, it is important to be aware that, pursuant to Rule 6 of the Hawaii Rules of Civil Procedure:

When the period of time prescribed is less than 7 days, intermediate Saturdays, Sundays and holidays shall be excluded in the computation. As used in this rule, "holiday" includes any day designated as such pursuant to section 8-1 of the Hawaii Revised Statutes.

H.R.C.P. Rule 6(a).

Pursuant to Rule 7(g) of the Hawaii Rules of the Circuit Courts, all pretrial motions that request entry of judgment or dismissal of any claim shall be filed no later than fifty (50) days prior to the assigned trial date.

Click here to find other frequently asked civil litigation questions.

Labels: Civil Procedure and Trial Practice

When a foreign corporation has subjected itself to jurisdiction in the United States, exceptions to the general rule on the location of the deposition are often made. Id. at 466-67 citing Custom Form Mfg. v Omron Corp., 196 F.R.D. 333, 336 (S.D.N.Y., 2001). In considering whether a foreign corporation should be deposed in the United States rather than their own country, Courts have looked to "whether the time, expense, inconvenience of travel, presents a special hardship on the deponent, and the ability of the court to intervene should disputes arise." Id. citing Afram Export Corp. v Metallurgiki Halyps, 772 F.2d 1358, 1365 (7th cir., 1985). It appears that sophistication of the deposing party and disputes between the parties are weighed in considering the above mentioned factors. See Six West Retail Acquisition v Sony Theatre Management Corp., 203 F.R.D. 98 (S.D.N.Y., 2001).

Similarly, in Custom Form Mfg. v Omron, the Plaintiff sought to compel the Court to order that depositions be held in Indiana rather than Japan, which was the corporation's principal place of business. Custom Form Mfg. v Omron Corp., 196 F.R.D. at 336. In that case, the deposing party pointed out that "in Japan a witness cannot be compelled to produce anything, and also notes that Japanese laws forbid an employee, while on Japanese soil, from disclosing any information that its corporate employer may unilaterally label as a trade secret, even when the employee is under order of a United Stated Court to make such a disclosure." Id. The deposed party responded that this reading of Japanese law was unsupported and the Japanese discovery rules could be "averted by stipulations relating to the conduct of the deposition agreed upon in advance." Id. See also Dwelly v Yamaha Motor Corp., 214 F.R.D. 537, 541(D.Minn., 2003)("Having considered the respective arguments, we conclude that the deposition of a supplemental Rule 30(b)(6) deponent should be taken in location where the corporation, for whom the deponent testifies, is located. Our ruling would have been different, absent the Defendants' representation that they were waiving any insistence on adherence to Japanese procedures if the deposition were taken in Japan.") The Indiana District Court, after weighing the parties' arguments and a number of factors, concluded that "the best way to protect the discovery process in this case, and the best way to avoid sovereignty issues that might otherwise arise, is to compel that the Rule 30(b)(6) depositions of defendants' employees take place in the United States." Id. at 337. Further, "granting plaintiff's motion to compel depositions at the Indiana or Illinois location would require fewer of the participants involved on both sides of this matter to travel, this, in turn, would cut costs and provide an economic benefit for all." Id. at 338.

Moreover, in New Medium Technologies LLC. v Barco N.V , the Illinois District Court granted Plaintiff's Motion to Compel after it decided that "conducting depositions in Japan . . . would severely compromise-to put it mildly- the court's ability to intervene should problems arise." New Medium Technologies LLC. v Barco N.V., 242 F.R.D. at 467. Further, the Court was not persuaded by deponent's argument of "jet lag" because the witnesses were experienced businessmen who travel frequently. Id. at 468. Also, in response to deponent's argument that there absence would burden the corporation, the Court held that "highly placed executives are not immune to discovery, and the fact that an executive has a busy schedule cannot shield him or her from being deposed" and such result is the "cost of doing business in the United States." Id. at 469.

In addition, courts have allowed depositions of corporate defendants in alternate locations since "corporate defendants are frequently deposed in places other than the location of their principal place of business, especially when the deposition site is the forum most convenient to all parties and that which would best serves the general interest of judicial economy". Custom Form Mfg. v Omron Corp., 196 F.R.D. at 338 citing Sugarhill Records Ltd. v Motown Record Corp., 105 F.R.D. 166, 171 (S.D.N.Y., 1985).

Finally, with regard to how travel costs should be allocated between the parties, courts have broad discretion. New Medium Technologies LLC. v Barco N.V. F.R.D 462 at 468-69. However, "in considering who should bear the costs of depositions the court should keep in mind that the federal rules are to be construed to secure the just, speedy and inexpensive determination of every action." Custom Form Mfg. v Omron Corp., 196 F.R.D. at 338.

Labels: Civil Procedure and Trial Practice

With the rise of foreign corporations, the location of the deposition of a witness from a foreign corporation occasionally becomes an issue. The general local rule in Hawaii is that the deposition is conducted where the witness is located. Foreign corporations will almost always oppose travelling to Hawaii for deposition testing. However, Hawaii attorneys should not always concede this issue. There is a substantial body of law, concerning the site of depositions of foreign corporations. With respect to this issue, the Federal Rules of Civil Procedure Rule 30 (b)(6) provides as follows:

A party may in the party's notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. A subpoena shall advise a non-party organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization. This subdivision (b)(6) does not preclude taking a deposition by any other procedure authorized in these rules.

FRCP 30(b)(6).


In turn, "when an employee named in a deposition notice is a director, officer, or managing agent of [a corporate party], such employee will be regarded as a representative of the corporation. Thus, such deposition can be used against that corporate party at trial".

The general rule is that "a party may unilaterally choose the place for deposing an opposing party" subject to the any FRCP 26(c)(2) protective order providing otherwise. New Medium Technologies LLC. v Barco N.V. 242 F.R.D. 460, 465-66 (N.D. Ill., 2007). However, in instances where a party seeking to be deposed is a corporation defendant under FRCP 30(b)(6), the presumption is that the deposition should be taken at the corporation's principal place of business. Id.

The modern trend regarding this "presumption" indicates that it is not a presumption at all but rather a kind of rule that "facilitated determination when other relevant factors do not favor one side over the other." Id citing Bank of New York v Meridian BIAO Bank Tanzania Ltd., 171 F.R.D. 135, 155 (S.D.N.Y., 1997). Although "Courts have treated the 'presumption' with varying degrees of deference", "all are agreed that it may be overcome by a showing that 'peculiar' circumstances favor depositions at a different location." Id. Factors that the courts examine to overcome this presumption include "cost[s], convenience, and litigation efficiency [which] favor holding the deposition outside of the witnesses' district" (ie. the corporation defendant's principal place of business.) Id.

Labels: Civil Procedure and Trial Practice

There are certain things that I tell witnesses to remember when testifying in a deposition.

1. The Witness's testimony is under oath. Therefore, the Witness is subject to the penalty of perjury if she is untruthful. An example that most witnesses understand is when I remind them that former President Clinton's impeachment was not for his sexual improprieties, but for his untruthfulness in his testimony under oath about those improprieties.

2. The deposition will be used to preserve trial testimony. In Hawaii, the deposition testimony of a party may be admitted into evidence even if the party appears at trial. Thus, the deposition transcript may be used in two ways. First, to cross-examine the Witness during her trial testimony. Second, to read segments of the transcript into the trial record even after the Witness testifies. Thus, it is imperative that the Witness is as accurate as possible during the deposition and that she realize that her testimony at the deposition is as important as if she were testifying at trial.

3. The Witness should remember several guidelines when testifying. The first is to speak slowly and clearly. By reacting slowly to the question and formulating a response in a careful manner, the Witness can make sure that she answers only the pending question. Often in conversation, we not only answer the question that is asked, but we add additional unrequested information in our response. In a deposition, the best way to respond to a question is to answer only the question that has been asked.

4. I repeat- answer only the question that has been asked. I cannot stress this point enough. When a witness is deposed, she is in a defensive posture. It is not your job to educate your opponent. You are simply there to answer questions. The easiest way to accomplish this objective is to answer only the question that has been asked. The Witness should listen clearly to the question and answer only that question. The Witness should offer no additional information.

5. The Witness must not speculate. When answering only the question that is asked, the Witness should only give information about which she has personal knowledge. The opposing counsel may ask the Witness to speculate or guess about certain occurrences. If the Witness has no personal first hand knowledge, the Witness should simply say that she does not know. She should not guess.

6. The Witness should be emotionally and physically prepared for an eight-hour deposition. It may not last that long. Prepare for the worst, hope for the best. Although she will be sitting and answering questions, it is an exhausting procedure. She should wear comfortable clothing and be prepared to sit for an extended period of time. Defense counsel should insist on taking breaks every fifty-five minutes even if the Witness claims that she feels fine. The deposition is a marathon, not a sprint.

7. If the Witness does not understand a question, she should ask the examiner to rephrase it. If a witness does not understand a word used by opposing counsel, she should not guess as to its meaning. The Witness should simply ask opposing counsel to ask the question in a different way.

8. During the deposition if the Witness's attorney objects, the Witness should remain quiet until her attorney has completed his objection. Thereafter, the Witness should not speak until her attorney indicates that it is acceptable for her to answer the question. In a deposition, if the witness speaks immediately after her lawyer objects, and answers despite the objection, the answer will stand. It is therefore imperative that the Witness understand that if her attorney objects to a question, the Witness should refrain from speaking until her attorney indicates that she may answer.

9. The Witness must remember that the opposing lawyer is not your friend (no matter how courteous he may be).

10. Upon completion of the deposition, the Witness will be asked to review the transcript. If she wants to make changes to any answer at that time, she can. Therefore, once the Witness is given a deposition transcript it is imperative that the Witness and her counsel review it for its accuracy.

Labels: Civil Procedure and Trial Practice

Depositions are an essential aspect of civil litigation. Hawaii rules provide for many devices to obtain discovery. Depositions are one of the most effective. Specifically, H.R.S. Rule 26(a)- General Provisions Governing Discovery provides as follows:

(a) Discovery Methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission.

H.R.S. Rule 26(a)

A deposition allows one party to question another party or witness under oath. Depositions are recorded by court reporter and/or videotape. I personally believe that depositions are particularly useful discovery tools since they "may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness" at "the trial or upon the hearing of a motion or an interlocutory proceeding." H.R.S. Rule 32(a). In other words, deposition testimony is almost as important as trial testimony.

The Hawaii Rules provide that "any party may take the testimony of any person, including a party, by deposition . . ." H.R.S. Rule 30(a). However, "a party desiring to take the deposition of any person shall give reasonable notice in writing to every other party to the action." H.R.S Rule 30(b). The other parties to the action may also cross-examine the witness. H.R.S. Rule 30(c).

If a witness is served with a deposition subpoena, it should be taken seriously. The sanctions for failing to appear can be harsh. The party who noticed the deposition may file a motion requesting that the Court impose the following orders:

(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him or her from introducing designated matters in evidence;

(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.

H.R.S. Rule 37(b)(2).

An order dismissing the action against the party who fails to appear for his or her deposition is a particularly drastic remedy. However, these sanctions are necessary to ensure that witnesses appear for depositions and participate in the discovery process. The easiest way to avoid this outcome is to ensure that the witness appears for his deposition.

Labels: Civil Procedure and Trial Practice

In Hawaii, architect liability is generally limited to that which is recoverable by contract. Id. This is called the "economic loss rule". Id. In City Exp. Inc v Express Partners, 87 Hawaii 466, 469 (1998) the Hawaii Supreme Court discussed this rule as follows:

In the context of construction litigation, where a party is in privity of contract with a design professional, economic loss damages are limited to contractual remedies, and a [tort] negligence action may not be maintained.

Id .

The Hawaii Supreme Court defined economic loss as "those that pertain solely to the costs relating to the operation and value of the building itself" including but not limited to "additional costs, lost rent, the cost of remedying the alleged building defects, and the difference between the value of the building as designed and the value it would have had it had been properly designed." Id.

Design professionals may incur additional risk by also agreeing to act as a project supervisor. There is no general duty of an architect to supervise or inspect a project. Whether a contract imposes a duty on an architect to supervise a project depends on the terms of the contract. Moundsview Independent School District v Buetow & Associates Inc, 253 N.W.2d 836, 839 (Minn. 1977) (consideration whether architect breached duty of supervision requires initial examination of contract between architect and owner of construction project to determine scope of architect's supervisory obligation). See also Miller v Broken Arrow, 660 F.2d 450, 458 (C.A. Okl., 1981) (depending on contract of employment, architect may be held liable for failure to exercise care in execution of plans).

Often the scope of duties of a design professional are not well defined in the contract. In such cases, courts may examine other provisions in the contract to attempt to determine if the parties bargained for supervision of the project. For example, if the amount of the architect's fee is large enough, or the architect is given a lot of authority over the project, then it may indicate that the defendant was to assume duties with respect to inspection or supervision of construction that normally would not be required in a standard architect's agreement. See, e.g., Duncan v Pennington County Housing Authority, 283 N.W.2d 546, 548 (S.D., 1979); Loyland v Stone & Webster Engineering Corp, 514 P.2d 184, 188 (Wash App 1973) disapproved on unrelated grounds by Bayne v Todd Shipyards Corp., 568 P.2d 771 (Wash., 1977).

If there is no contract between an owner and the architect, then courts have turned to other contracts or practices between the parties to determine whether the architect owes a duty to the owner to supervise the project. Dickerson Construction Co. v Process Engineering Company, 341 So.2d 646, 650-51 (Miss 1977). See also Weill Construction Co. v Thibodeaux, 491 So.2d 166, 170-71 (La. App., 1986) (architect's duties were specified in standard contract between owner and general contractor).

Finally, construction specifications contained in a contract may include language indicating the scope of the architect's inspection or supervisory responsibilities. Moreover, the construction specifications may require the design professional's presence or approval before certain steps in the construction process may be commenced. Dickerson Construction Co., 341 So.2d at 650-51. Further, building specifications could require the architect to give approval before fill work is undertaken or concrete poured. The contract also could require that the architect is present at certain stages of construction and to perform a final inspection.

In general, while strictly performing design services liability may be limited by contract to the "economic loss rule". However, once the professional undertakes construction project supervision, entirely new potential liability arises.

Labels: Civil Procedure and Trial Practice

We are frequently asked whether we handle criminal cases. We do not. Allow me to explain. There are two types of cases, criminal and civil. It is important to understand this distinction especially when searching for the right attorney to handle your case.

A criminal case is when someone is charged with a crime- either a felony or a misdemeanor. If you are charged with a crime, the government must prove the case beyond reasonable doubt.

Civil litigation usually involves claims for financial damages or to enforce rights. Although the government may be a party in a lawsuit, civil cases typically involve private individuals or companies. Because the cost of litigation has grown through the years, private parties now explore mediation and/or arbitration.

For access to more information on the distinction between these cases, please refer to the following link: Civil v Criminal Cases

Labels: Civil Procedure and Trial Practice

The Court issues a temporary restraining order when a witness swears under oath that "a past act or acts of harassment may have occurred, or that threats of harassment make it probable that acts of harassment may be imminent." Hawaii Revised Statutes ("H.R.S.") 604-10.5(d). When swearing out the complaint the Court accepts the complainant's allegations as true. Unfortunately, this can lead to abuse since the complainant can obtain the temporary restraining order ("TRO") even if they will eventually be unable to meet the legal standard. Under Hawaii law, to obtain a restraining order, the complainant must demonstrate that he has been the victim of "harassment", which is defined as:

(1) Physical harm, bodily injury, assault, or the threat of imminent physical harm, bodily injury, or assault, or

(2) an intentional or knowing course of conduct directed at an individual that seriously alarms or disturbs consistently or continually bothers the individual, and that serves no legitimate purpose; provided that such course of conduct would cause a reasonable person to suffer emotional distress.

H.R.S. 604-10.5(b).

Of course, when the Judge evaluates the evidence, the complainant must establish his case by "clear and convincing evidence". H.R.S. 604-10.5(f); Luat v Cacho, 92 Hawaii 330, 341-33 (Hawaii App., 1999). The "clear and convincing" standard is a "degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the allegations sought to be established, and requires the existence of a fact be highly probable." Luat v Cacho, 92 Hawaii at 342.

When describing this clear and convincing standard of proof, the Hawaii Intermediate Court of Appeals wrote the following:

the interests of the alleged wrongdoer are deemed to be more substantial. Thus, the clear and convincing proof standard reduces the risk to the alleged wrongdoer of having his or her reputation tarnished erroneously by increasing the plaintiff's burden of proof. In this manner, the "standard of proof serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision."

... Under a clear and convincing standard of proof, an alleged victim would carry a heavy burden in proving that a protective order should issue.

Id. at 343 citing Coyle v Compton, 85 Hawaii 197, 208 (Hawaii App., 1997).

In other words, in a TRO hearing the complainant will be required to demonstrate "by clear and convincing evidence" that there is a "threat of serious physical harm" or an "intentional . . . course of conduct that would cause a reasonable person to suffer emotional distress". This is a far more serious standard than many people realize when swearing out a TRO complaint.

We have represented clients in many types of cases. For a discussion of this experience, please click the following link. Trials In Hawaii State Court

Labels: Civil Procedure and Trial Practice

On July 18, 2008 this blog discussed the Hawaii Statute of Limitations. One of the main areas of dispute among attorneys is the date on which a Statute of Limitations "accrues" or begins to run. In many cases, it begins to run on the day of the incident or the injury. However, in certain specific cases the Statute of Limitations is "tolled". Examples include the following:

1. The "Infancy Toll"- H.R.S. 657-7, as interpreted by Hawaii courts, allows a tolling of the statute of limitation for individuals that are under the age of eighteen (infants). Gorospe v Matsui, 72 Hawaii 377, 381 (1991). This tolling has been referred to as the "infancy toll" and provides that the statute of limitations begins to run when the "infant" reaches eighteen rather than "after the cause of action accrued." Id. See also Kahale v City and County of Honolulu, 104 Hawaii 341 (Hawaii 2004). The purpose is to give infants more time to bring their cause of action. Kahale v City and County of Honolulu, 104 Hawaii at 358.

2. The Discovery Rule - Hawaii Courts have "employed the 'discovery rule', holding that a cause of action accrues when the plaintiff discovers, or reasonably should have discovered, the elements giving rise to their claim." Dunlea v Dappen, 83 Hawaii at 33.

For example, The Hawaii Supreme Court in Dunlea v Dappen extended the "discovery rule" to childhood sexual abuse cases. Dunlea v Dappen, 83 Hawaii 28, 34 (Hawaii, 1996). In Dunlea, the plaintiff was a 45 year old victim of rape by her father. Id. at 30-31. At age 17, plaintiff reported the rape, but it was not until she was age 44 that she realized the causal connection between her psychological injuries and the rape. Id. In Dunlea, the defendant brought a Motion to Dismiss the Complaint based on the expiration of the statute of limitations which was granted by the Circuit Court. In reviewing the Circuit Court's decision to dismiss, the Hawaii Supreme Court held as follows:

[W]e agree that the issue of when Dunlea [plaintiff] discovered, or should have discovered, that her alleged injuries were caused by Dappen's [defendant] alleged actions is a question of fact for the jury, we cannot hold as a matter of law that Dunlea [plaintiff] ascertained her alleged injuries and their causal link to Dappen's [defendant] alleged actions more than two years before she asserted her claim, or that her failure to recognize her alleged injuries and the cause of those injuries sooner was unreasonable. Certainly, a reasonable jury could find that Dunlea [plaintiff] filed suit within two years of discovering her alleged injuries and the cause of those injuries, given their nature and circumstances. We therefore hold that the motion to dismiss was wrongly granted.

Id. at 36 (emphasis added).

The "discovery rule" has also been used to toll the statute of limitations in other circumstances which are unrelated to minors.

Labels: Civil Procedure and Trial Practice

One of the first steps you should take before filing a lawsuit is to determine whether the Statute of Limitations has expired. A Statute of Limitations is the time period that you have to file a claim with the Court. Although every case is different, and you should always consult an attorney to determine the viability of your claim, a few of the recurring Statute of Limitations questions that we encounter in our cases include the following:

In Hawaii, the Statute of Limitations for a Breach of Contract case is six (6) years. The Statute states as follows:

The following actions shall be commenced within six years next after the cause of actions accrued, and not after:

(1) Actions for the recovery of any debt founded upon any contract, obligation, or liability, excepting such as are brought upon the judgment or decree of a court; excepting further that actions for the recovery of any debt founded upon any contract, obligation, or liability made pursuant to chapter 577A shall be governed by chapter 577A;
(2) Actions upon judgments or decrees rendered in any court not of record in the State, or, subject to section 657-9, in any court of record in any foreign jurisdiction;
(3) Actions for taking or detaining any goods or chattels, including actions in the nature of replevin;
(4) Personal actions of any nature whatsoever not specifically covered by the laws of the State.

H.R.S. 657- 1.
The Statute of Limitations for most personal injury cases in Hawaii is two (2) years. Specifically, the Hawaii l
aw states as follows:

Actions for the recovery of compensation for damage or injury to persons or property shall be instituted within two years after the cause of action accrued . . .

H.R.S. 657-7.

The Statute of Limitations for Unfair and Deceptive Trade Practices is generally four (4) years according to H.R.S. 480-24. Finally, the Statute of Limitations for fraudulent misrepresentation in Hawaii is six (6) years. H.R.S. § 657-1(4); Eastman v. McGowen, 86 Hawaii 21, 27 (1997).

For further guidance in determining which Statute of Limitations may be applicable to your specific case, refer to Hawaii Revised Statutes 657.

Labels: Civil Procedure and Trial Practice

A case is started by filing by a Complaint. The party filing the Complaint is called the Plaintiff. In certain cases, a Plaintiff may decide to change his initial Complaint. There are many possible reasons that a Plaintiff may change or "amend" the Complaint (ie. the discovery of new evidence, a change in law, or even correcting a simple mistake). Hawaii Courts have specific rules for amending a Complaint. A Plaintiff may amend her Complaint once any time before an Answer or "responsive pleading" is served. Haw. R. Civ. P.15(a). However, if the amendment is sought after the Answer is filed, the Plaintiff must either obtain (i) written consent from the opposing party or (ii) permission from the Court.

Fortunately, that permission or "leave", as it is referred to in the rules, is to be "freely given when justice so requires." Haw. R. Civ. P.15(a). See also Hirasa v. Burtner, 68 Haw. 22, 26, 702 P.2d 772, 775 (1985) (stating same). A request for leave to amend may be made at any time. Kahalepauole v. Associates Four, 8 Haw. App. 7, 14, 791 P.2d 720, 724 (1990). Moreover, it is appropriate to grant the requested leave so long as there has been no undue delay, bad faith, or dilatory motive on the part of the movant, nor undue prejudice to the non-moving party. Bishop Trust Co. v. Kamokila Dev. Corp., 57 Haw. 330, 337, 555 P.2d 1193, 1198 (1976).

Both State and Federal Courts have recognized the generous standard in Rule 15 (a). In addition, the Ninth Circuit has held that the policy of favoring amendments should be applied with "extreme liberality." United States v. Webb, 644 F.2d 977, 979 (9th Cir. 1981). The purpose of this policy is primarily because the Courts favor giving a Plaintiff the opportunity to "test his claim on the merits" Foman v. Davis, 371 U.S. 178, 182 (1962). In other words, a party should be given his "day in Court", rather than limiting Plaintiffs claims through overly restrictive pleading rules.

Labels: Civil Procedure and Trial Practice

Today we had a hearing concerning diversity jurisdiction. In general, federal courts only have jurisdiction over two types of cases; (i) cases concerning a federal question (meaning that the case is based on federal law), and (ii) diversity cases. § 28 U.S.C. , § 28 U.S.C. .

For the federal court to have diversity jurisdiction over a case there must be two elements met; (i) the controversy must "exceed the sum of $75,000, exclusive of interests and costs" and (ii) be between "citizens of different states" or "citizens of a State and citizens or subjects of a foreign state" § 28 U.S.C. . Diversity of the parties requires that the plaintiffs and the defendants are from different states or countries. None of the plaintiffs can be "domiciled" in the same state or country of any of the defendants. Therefore, the threshold question in many cases become how do you determine a person's "domicile."

There are two things that are required in determining a person's domicile, (i) where the person is residing and (ii) whether the person intends to live there. Many factors can come into play like "current residence, voting registration and voting practices, location of personal and real property, location of brokerage and bank accounts, location of spouse and family, membership in unions and other organizations, place of employment or business, driver's license and automobile registration, and payment of taxes." Lew v Moss, 797 F2d 747, 749-750 (C.A.9., 1986). If the facts show that a person lives in a state or country and intends to stay there by meeting some of the factors mentioned above then that person will be deemed to be a domicile of that place for the purposes of determining diversity jurisdiction. If you are a plaintiff and your "domicile" state is not the same as any of the defendants (and your claim meets the jurisdictional minimum of $75,000), then the federal court likely has jurisdiction to hear your case.

Labels: Civil Procedure and Trial Practice, Commercial Litigation, Hawaii Real Estate Litigation, Personal Injury

Choosing the right Hawaii personal injury lawyer is one of the most important decisions a client will make when seeking compensation for injuries.
If you are searching for a personal injury lawyer in Hawaii, there are certain factors you should look for to make sure that you choose the personal injury lawyer that is right for you:

Select an attorney that is experienced with personal injury cases. By choosing a lawyer that is experienced in personal injury claims, you can be sure that he or she they will know how to handle your case. Not all attorneys are familiar with the nuances associated with civil litigation and personal injuries.

Select a lawyer with an effective track record. Make sure your attorney is capable of taking your case to trial. Not all personal injury attorneys are trial attorneys. I believe that the best way to obtain compensation for your injuries is to prepare your case for trial. If the defense attorney does not respect your counsel (and understand that you are ready and willing to go to trial), they will likely not negotiate in good faith.

Your personal injury lawyer should have many years of experience handling a wide variety of cases.

Select a personal injury lawyer that is in good standing with the Hawaii bar. You can visit the Hawaii State Bar Association (www.hsba.org) to confirm that the attorney you are considering is in good standing.

Make sure your attorney has malpractice insurance. It is your right to know whether your attorney has adequate malpractice insurance. If you ask your potential attorney whether he has this insurance, and he refuses to respond, simply hire another attorney.

Make sure that your personal injury attorney will take control of your compensation requests. Accident victims need time to heal. They should not be distracted by the "red tape" generated by the medical insurance industry. Your personal injury attorney should be ready and willing to assist you with these issues or you should hire a different attorney.

Finally, you should trust your attorney. The attorney client relationship is the same as any other personal relationship in the sense that there must be complete candor if it is to succeed. Tell your attorney what you are seeking and ask him or her if that is a realistic goal. And be skeptical of attorneys who are willing to promise you extraordinary results in your first meeting. Ask tough questions and listen to the responses. If your potential attorney is the right person for the job, he or she should certainly be able to respond clearly and honestly to your questions.

Good luck.

Labels: Civil Procedure and Trial Practice, Commercial Litigation, Hawaii Real Estate Litigation, Personal Injury, The Legal Profession

Occassionally, individual defendants try to hide assets by placing them in a corporation. In such cases, the attorney is forced to attempt to "pierce the corporate veil". The rule at common law was that, "officers, directors or shareholders of a corporation are not personally liable for the tortious conduct of the corporation or its other agents, unless there can be found some active or passive participation in such wrongful conduct by such persons." Cahill v. Hawaiian Paradise Park Corp., 56 Haw. 522, 526 (1975). However, in 1973, the Hawaii Supreme Court held that a "corporate entity should be disregarded because of circumstances that reveal that the shareholders treated and regarded the corporation as their alter ego." Kahili, Inc. v. Yamamoto, 54 Haw. 267, 271 (1973). This exception has since been called the "piercing the corporate veil" doctrine because it permits officers, directors, or shareholder to be found personally liable for their actions regardless of the general rule at common law.

There are two overarching elements required by most jurisdictions (including Hawai'i) to pierce the corporate veil. Id. First, there must be evidence that an individual in a corporation "treated and regarded the corporation" as his/her "alter ego", and "using the corporation as an agency or instrumentality or a conduit through which they were conducted his/her personal business." Kahili, Inc. at 271. Second, the circumstances must indicate that "recognition of the fictional corporation" would sanction a fraud or promote "injustice and inequity". Id.

There are many factors to consider in determining whether "the separate personalities of the corporation and the individual no longer exist" thus satisfying the first element of piercing the corporate veil. Associated Vendors, Inc. v. Oakland Meat Co., Inc., 26 Cal.Rptr. 806, 813-815 (Cal., 1962) cited by Murdock v. Ventures Trident II (Not Reported in Cal.Rptr.2d) 2003 WL 21246596. Generally, courts in Hawai'i have allowed for piercing of the corporate veil when there are enough factors satisfied to show that there were no separate identities between the corporation and an individual. For example, the Hawaii Supreme Court allowed for the "piercing of the corporate veil" when; (1) two shareholders owned all stock, (2) corporation was undercapitalized, and (3) shareholders' behavior in lease negotiations suggested they were acting for their behalf rather than for the corporation. Kahili, Inc. at 269-272.

As mentioned, it is important to also provide evidence that will convince the court that if it does not pierce the corporate veil, inequity and injustice or fraud will prevail. For example, if there is evidence that an individual was "manipulating the corporation" to "foster" her individual interests to the disadvantage of other members of her corporation, then it is only fair that she be found liable (personally) for her actions rather than the corporation. Riddle at 112. Furthermore, the Hawaii Supreme Court held that evidence that an individual used the corporation to commit fraud or another illegal act constitutes promoting inequity and injustice therefore justifies piercing of the corporate veil. Chung v Animal Clinic Inc., 63 Haw. 642, 646-647 (1981). Finally, actual fraud does not need to be shown, just that by "piercing of the corporate veil" the Court will prevent fraud or injustice. Associated Vendors, Inc. at 813.

Labels: Civil Procedure and Trial Practice, Commercial Litigation, Hawaii Real Estate Litigation, Personal Injury

Last month we received an arbitration award and judgment in excess of Six Million Dollars, against a mainland contractor on behalf of a mainland couple victimized while building their dream home on the island of Kauai. We persuaded the Arbitrator to award our clients treble damages pursuant to H.R.S. 480-2, the Hawaii Unfair and Deceptive Trade Practices Act. In awarding treble damages, the Arbitrator found that the contractor committed several Unfair and Deceptive Acts including the following:

a. At the time of the creation of the Agreement, the Contractors represented that they were licensed contractors. They were not.

b. Contractors collected $434,702.40 in unsubstantiated payments. The action of requesting payment for work that was not performed is both "unfair" and "deceptive."

c. Contractors represented to the homebuilders that they would retain qualified subcontractors and staff the project with craftsmen qualified to construct a residence of this size and magnitude. Contractors did not.

d. Representing that the Kauai House would be built like a specific Scottsdale, Arizona Home that had been viewed by our clients, and that materials and craftsmen used on the Scottsdale Home would be used on the Kauai House. They were not.

e. Contractors did not disclose all information required under H.R.S. § 444-25.5 (Supp.2000) which is a per se violation of H.R.S. § 480-2.

In addition, the Arbitrator found that since an individual contractor acted in his personal capacity, he was "jointly and severally liable with the corporation."

Obviously, we are very proud of the work that we performed to obtain this award for our clients.

Labels: Civil Procedure and Trial Practice, Commercial Litigation, Hawaii Real Estate Litigation

We are frequently contacted by potential clients outside Hawaii who are curious if they can be sued in Hawaii. Whether or not you can be sued in Hawaii depends on "Personal Jurisdiction."

Labels: Civil Procedure and Trial Practice

On May 23, 2007, I received my training in Electronic Case Filing and Public Access to Courts Electronic Records at the United States District Court for the District of Hawaii. In essence, this system allows attorneys and their staff to obtain case information from the Federal Courts using the internet. With this system, counsel has 24 hour access to Federal Court files, the ability to file documents at any time, immediate notification of filing, and the ability to serve parties electronically.

Ultimately, this should mean a cost savings to clients in Federal cases. How? In the old days (and still in Hawaii State Court), to obtain a Court document a paralegal would be forced to visit the courthouse and search the Court file to photocopy the relevant document(s). The photocopy fee at the U.S. District Court is fifty cents per page. My paralegals' time is also billable to the client. By contrast, under the new system, one of my paralegals can retrieve the document online from his or her desktop, and the printing cost is eight cents per page. A significant savings to the client.

There is also an environmental bonus to the electronic filing system. All the paper used in the legal system "kills a lot of trees." You would be shocked at the boxes of paper that we go through each month. The more documents that lawyers can file (and serve on our opponents) electronically, the less "trees we have to kill."

Perhaps someday the Hawaii State Court will adopt this system.

Labels: Civil Procedure and Trial Practice

In a lawsuit, the first document filed with the Court is usually the Complaint which contains, among other things, information on the parties involved and a concise statement of the facts of the case. The Complaint is accompanied by a Summons which is signed by a clerk of the Court. The next step involves service of the Complaint on the Defendant. According to Rule 4(1)-(8)of the Hawaii Rules of Civil Procedure, service of the Complaint can be made various ways depending on the type of defendant. These methods are listed in Rule 4 of the Hawaii Rules of Civil Procedure as follows:

(1) Upon an individual other than an infant or an incompetent person, (A) by delivering a copy of the summons and of the complaint to the individual personally or in case the individual cannot be found by leaving copies thereof at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or (B) by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process.

(2) Upon an infant, by delivering a copy of the summons and of the complaint personally (A) to the guardian of the infant's property or if there is no guardian of the infant's property or service cannot be made upon such guardian then as provided by order of the court and (B) if the infant be of the age of 16 years or over, also to the infant; and upon an incompetent person, by delivering a copy of the summons and of the complaint personally (A) to the guardian of the incompetent's property, or if the incompetent is living in an institution then to the director or chief executive officer of the institution, or if service cannot be made upon either of them, then as provided by order of the court, and (B) unless the court otherwise orders, also to the incompetent person.

(3) Upon a domestic or foreign corporation or upon a partnership or other unincorporated association which is subject to suit under a common name, by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant.

(4) Upon the State by delivering a copy of the summons and of the complaint to the attorney general of the State or to the assistant attorney general or to any deputy attorney general who has been appointed by the attorney general.

(5) Upon an officer or agency of the State by serving the State and by delivering a copy of the summons and of the complaint to such officer or agency. If the agency is a corporation, the copies shall be delivered as provided in paragraph (3) of this subdivision of this rule.

(6) Upon a county, as provided by statute or the county charter, or by delivering a copy of the summons and of the complaint to the corporation counsel or county attorney or any of his or her deputies.

(7) Upon an officer or agency of a county, by serving the county and by delivering a copy of the summons and of the complaint to such officer or agency. If the agency is a corporation the copies shall be delivered as provided in paragraph (3) of this subdivision of this rule.

(8) Upon a defendant of any class referred to in paragraph (1) or (3) of this subdivision of this rule, it is also sufficient if the summons and complaint are served in the manner prescribed by any statute.

H.R.C.P. 4(1) - (8)

Labels: Civil Procedure and Trial Practice, Commercial Litigation, Hawaii Real Estate Litigation, The Legal Profession

Under the American Rule, each litigant pays its own attorneys fees. I have been practicing civil litigation for over twenty years, and nothing seems to anger clients more about the American legal system than when they are forced to pay thousands of dollars in attorneys fees and costs simply to prove that they didn't do anything wrong. Fortunately, under Hawaii law, in certain commercial cases, the prevailing party may recover some or all of its attorneys fees from the losing party. HRS § 607-14, states as follows:

§ 607-14 Attorneys' fees in actions in the nature of assumpsit, etc. In all the courts, in all actions in the nature of assumpsit . . . there shall be taxed as attorneys' fees, to be paid by the losing party and to be included in the sum for which execution may issue, a fee that the court determines to be reasonable . . . . The court shall then tax attorneys' fees, which the court determines to be reasonable, to be paid by the losing party; provided that this amount shall not exceed twenty-five per cent of the judgment.
* * * *

The above fees provided for by this section shall be assessed on the amount of the judgment exclusive of costs and all attorneys' fees obtained by the plaintiff, and upon the amount sued for if the defendant obtains judgment.

Haw. Rev. Stat. § 607-14 (emphasis added).

There are certain key points regarding this statute about which each client should be made aware, including the following:

1. Plaintiff's recovery of attorneys fees is capped at twenty five percent (25%) of the judgment awarded. Thus, for example, if the plaintiff is awarded a judgment of $100,000, the plaintiff's recovery is capped at 25% of $100,000 or $25,000.

2. The defendant's recovery is capped at 25% of the damages unsuccessfully sought by plaintiff. Thus, for example, if the plaintiff seeks $100,000, the defendant's potential award is capped at $25,000.

3. If the plaintiff doesn't specify the amount that he is seeking and it is impossible for the Court to determine the damages sought by the plaintiff, the prevailing defendant may be awarded all of its reasonable attorneys fees. Thus, the plaintiff is highly encouraged to specify early in the case the damages that plaintiff is seeking to ensure that if the plaintiff is unsuccessful, the attorneys fees award is capped.

4. The Hawaii Supreme Court has held that the attorneys fees award under HRS § 607-14 is not discretionary. The Court must award attorneys fees to the prevailing party.

5. The statute only applies to cases concerning "assumpsit" damages. The Hawaii Supreme court has defined an "assumpsit" case as a claim "for the recovery of damages for the non performance of a contract . . . as well as quasi contractual obligations." Schulz v. Honsador, Inc. 67 Haw. 433 (1984). Although this law only applies to matters of "assumpsit," it has been applied to various types of litigation including breach of contract, breach of fiduciary duty, and legal malpractice so long as they concern (i) an attempt to recover damages and (ii) a contractual arrangement.

Unfortunately, Hawaii does not have a similar attorneys fee provision in personal injury cases. Moreover, although HRS § 607-14 is not the only Hawaii law that allows for the recovery of attorneys fees. Therefore, when analyzing a case, a Hawaii attorney should also explore other theories that may allow the recovery of attorneys fees. Those theories will be discussed in subsequent entries of this blog.

Labels: Civil Procedure and Trial Practice, Commercial Litigation

In certain cases, clients can prevail in a case by filing a Motion for Summary Judgment.

Under Rule 56(c) of the Hawaii Rules of Civil Procedure, summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Summary judgment can be defeated if a party shows that a genuine and material issue of fact is in dispute, State v. Midkiff, 49 Haw. 456, 421 P.2d 550 (1966).

[S]ummary judgment is only appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Hawaii Rules of Civil Procedure ( HRCP) Rule 56(c) (1990). "A fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties." Hulsman v. Hemmeter Dev. Corp., 65 Haw. 58, 61, 647 P.2d 713, 716 (1982) (citations omitted). Konno v. County of Hawaii, 85 Hawaii, 61, 70, 937 P.2d 397, 406 (1997) (quoting Dunlea v. Dappen, 83 Hawaii 28, 36, 924 P.2d 196, 204 (1996)).

"The evidence must be viewed in the light most favorable to the non-moving party." State ex rel. Bronster v. Yoshina, 84 Hawaii 179, 186, 932 P.2d 316, 323 (1997) (citing Maguire v. Hilton Hotels Corp., 79 Hawai'i 110, 112, 899 P.2d 393, 395 (1995)). "[W]e must view all of the evidence and the inferences drawn therefrom in the light most favorable to [the party opposing the motion]." Maguire, 79 Hawaii at 112, 899 P.2d at 395 (citation omitted). State Farm Mutual Automobile Insurance Co. v. Murata, 88 Hawaii 284, 287-88, 965 P.2d 1284, 1287-88 (1998) (citation omitted) (brackets in original); See also United States Steel Corp., 82 Hawaii at 38-39, 919 P.2d at 300-01.

"The moving party bears the ultimate burden of persuasion. This burden always remains with the moving party and requires the moving party to convince the court that no genuine issue of material fact exists and that the moving party is entitled to summary judgment as a matter of law." Pioneer Mill Co., Ltd. v. Dow, 1999 WL 174460, 6 (Haw. 1999). "The moving party's burden of proof is a stringent one, since the inferences to be drawn from the underlying facts alleged in the relevant materials considered by the court in deciding the motion must be viewed in the light most favorable to the non-moving party." Id. at 7. "Summary judgment is a drastic remedy. To avoid improperly depriving a party to a lawsuit of the right to a trial on disputed factual issues, summary judgment must be "cautiously invoked." Id. at 6.

Although Courts grant summary judgment in only the strongest cases, for obvious reasons, its an outcome that we are always trying to achieve.

Labels: Civil Procedure and Trial Practice, Commercial Litigation, Hawaii Real Estate Litigation, The Legal Profession

Hawaii Revised Statutes § 480-2 provides a powerful tool to protect investors or consumers who have been injured by misleading or deceptive advertising. The Hawaii Supreme Court has concluded that if advertising has a "capacity to mislead" it may violate the Hawaii Unfair and Deceptive Trade Practices Act.

The reason this tool is so helpful to investors or consumers is two-fold. First, it is much easier to prove a violation of H.R.S. § 480-2 than it is to prove a claim of fraud. Unlike a fraud claim, to prevail in a H.R.S. § 480-2 case, the victim does not have to demonstrate that the advertiser intended to mislead the consumer. Indeed, the consumer must only demonstrate that the advertising has a "capacity to mislead." A far easier standard of proof.

The second reason H.R.S. § 480-2 is so important in the protection of Hawaii consumers is the damages that are recoverable. An investor or consumer injured under H.R.S. § 480-2 may recover actual damages trebled (multiplied by three), attorneys fees and costs. Obviously, when faced with the prospect of paying treble damages and attorneys fees, a company in Hawaii should be highly motivated to truthfully advertise its products. As such, H.R.S. § 480-2 is a vital weapon in the fight for truth in advertising.

Labels: Civil Procedure and Trial Practice, Commercial Litigation, Hawaii Real Estate Litigation, The Legal Profession