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

What does it mean when the attorney says I must pay "costs"?

Costs are typically any expense the attorney incurs while representing you. These expenses vary depending on the type of the case and the location of the witnesses. However, examples of these costs are as follows: photocopying, travel expenses, court reporter expenses, expert witness fees, postage, long distance telephone charges, legal research charges, parking, costs billed by medical provider, insurance company or other entity for copies of medical reports and/or billing statements.

In most contingency fee cases, the attorney agrees to advance payment for these costs, and the client remains responsible for reimbursement of said costs out of client's share of the proceed of any recovery obtained, whether by settlement or jury verdict. Any balance due and owing by client for costs advanced by attorney shall be deducted by attorney out of client's share of the proceeds of said recovery.

In cases where an attorney is retained on an hourly basis, attorneys advance payment of these costs. The client then reimburses attorneys by payment of a monthly billing statement which includes attorneys fees and costs for the monthly billing period.

Labels: Office News, The Legal Profession

An attorney may not represent a client against a former client in the "same or a substantially similar matter." The Hawaii Rules of Professional Conduct ("HRCP") Rule 1.9(a) Conflict of Interest: Former Client provides as follows:

A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interest are materially adverse to the interests of the former client unless the former client consents after consultation.

Hawaii Rules of Professional Conduct 1.9(a)(emphasis added).

Pursuant to HRCP Rule 1.10(a) Imputed Disqualification; General Rule

While lawyers are associated in a form, none of them shall knowingly represent a client when one of them practicing alone would be prohibited from doing so by rules 1.7, 1.8(c), 1.9 or 2.2.

"The objective of the disqualification rule is to 'preserve the integrity of the adversary process,' Evans v Artek Systems Corp., 715 F.2d 788, 791 (C.A.N.Y., 1983) citing Board of Education of the City of New York v Nyquist, 590 F.2d 1241, 1246 (2d Cir., 1979). By the same token, there are good reasons for requiring a "high standard of proof on the part of the one who seeks to disqualify his former counsel." Id. One reason is based on the notion that a client should have the right to freely choose his counsel and the other is based on the fact that disqualification motions cause delay to the case, which is generally frowned upon. Id.

The party moving for disqualification "has the burden of establishing (1) the existence of a prior attorney-client relationship with the attorney now sought to be disqualified; and (2) that that matter involved in the prior representation is substantially related to the matters embraced within the pending suit, wherein the attorney appears on the behalf of the opposing party." In re Jahore Inv. Co., Inc, 157 B.R. 671, 675 (D.Hawaii, 1985).

Courts in Hawaii and the Ninth Circuit have also held that if the burden is met by the moving party, then the there is a presumption that confidences were disclosed during the prior representation. Id. However, the Ninth Circuit has "sought to mitigate the harshness" of this presumption and made it rebuttable. Id. Therefore, "the Ninth Circuit requires that the evidence establish a 'reasonable probability' that confidential information was disclosed during the course of the prior representation." Id. Further, "disqualification may not be warranted where the 'professional relationship with [the former client] had been aborted before any significant work had been done. . .and before any discussions with the client other than the bare preliminaries of the representation were explored. . .'" Id. citing Trone v Smith 621, F.2d 994, 1000 (9th Cir., 1980).

As mentioned above, the moving party has a burden to show that there was a prior attorney-client relationship. Accordingly, in Davis v Wholesale Motors, Inc., the Hawaii Court of Appeals denied a Motion to Disqualify based on the failure of the moving party to show that a relationship existed. Davis v Wholesale Motors, Inc, 86 Hawaii 405, 424-425 (Hawaii.App., 1997). There was no evidence of any attorney-client relationship documented and "Nicolai [the moving party] could not remember what Lotsof [attorney] did with the documents [that the attorney allegedly reviewed for the moving party], how long the meeting lasted, or approximately when during the 1970s the meeting occurred." Id. (brackets added).

Labels: The Legal Profession

A lawyer owes his client basic duties and obligations. Although there are literally volumes written on this subject, there are certain Hawaii rules which are most basic. These include the duties (i) to keep the client informed, and (ii) of loyalty.

More specifically, Rule 1.4 of the Hawaii Rules of Professional Conduct ("HRPC") provides as follows:

(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. A lawyer who receives a written offer of settlement in a civil controversy or a proffered plea bargain in a criminal case shall promptly inform the client of its substance unless prior discussions with the client have left it clear that the proposal will be unacceptable.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

HRPC Rule 1.4.

With regards to an attorney's duty of loyalty, pursuant to the HRPC Rule 1.7(2)(b), lawyers may not represent multiple clients without full and adequate disclosure. More specifically, the Rule states as follows:

A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests unless:

(1) the lawyer reasonably believes the representation will not be adversely affected; and

(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

HRPC Rule 1.7(2)(b)(emphasis added).

In addition, HRPC Rule 1.8(g) states,

A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client consents after consultation, including disclosure of the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement.

HRPC Rule 1.8(g) (emphasis added).

Finally, HRPC Rule 1.13(e) provides as follows:

A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. If the organization's consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders.

Rule 1.13(e)

A Note to HRPC Rule 1.7 establishes that if a conflict of interest arises, then the lawyer should withdraw. Further, the Note to HRPC Rule 1.13 provides that, if a lawyer represents an organization and any of its constituents, a conflict arises when,

...the organization's interest may be or become adverse to those of one or more of its constituents. In such circumstances the lawyer should advise any constituent whose interest the lawyer finds adverse to that of the organization of the conflict or potential conflict of interest, that the lawyer cannot represent such constituent, and that such person may wish to obtain independent representation. Care must be taken to assure that the individual understands that, when there is such adversity of interest, the lawyer for the organization cannot provide legal representation for that constituent individual, and that discussions between the lawyer for the organization and the individual may not be privileged.

HRPC Rule 1.13 Note [8].

It is clear from the rules that an attorney must disclose if there is a conflict of interest in his representation of a client. This includes an explanation of the risks and consequences related to dual or multiple representations of parties arising by either, (i) when the attorney represents two or more clients (ie. co-defendants) in the matter, or (ii) when the attorney represents an organization along with a constituent(s). In particular, if an attorney represents dual parties, the participation and consent of each party concerning settlement offers is essential.

Labels: The Legal Profession

As November 4th approaches, the issues in this election become more defined. Although the candidates and media seem focused on the economy, it should not be forgotten that our next President will be responsible for the appointment of Supreme Court Justices. Indeed, a President Obama or President McCain could, in fact, appoint three out of the nine Justices. In a recent article on CNN.com, Bill Mears, wrote as follows:

Many court watchers think any vacancy in the high court over the next four years would probably involve three left-leaning justices. John Paul Stevens is 88, but appears to be in good health, and court sources say he has no intention of retiring. Ruth Bader Ginsburg is 75 and has had past health problems, but she too has told friends she enjoys serving on the court. And David Souter, who turned 69 last month, has made no secret of his disdain of the Washington life and would be happier in his New Hampshire homestead. But his colleagues and friends say that while he is an extremely private man who does not reveal much personally, he has given no indication of leaving the bench anytime soon.

"The importance of the speculation is that all three of them are on the court's list of possible retirements," Goldstein said. "Nobody on the right is really thinking of leaving."

For the entire article click, Election Could Decide Future of the Federal Courts.

Although this has been a difficult campaign, my hope is that both candidates will respect that the founding fathers intended the Supreme Court to be the third branch of the United States government. It may be naive, but perhaps President Obama or President McCain will select Supreme Court Justices based not on a "litmus test" created by special interest groups, but based entirely on the qualifications of each individual jurist. We shall see.

Labels: The Legal Profession

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

A friend recently asked for advice for a young person graduating from law school. I did my best to provide these thoughts:

This is just the start of your career. Don't get discouraged if it doesn't begin exactly like you thought that it would. When I was a young associate in NY City, I would think to myself, "I took out all of these student loans just to become a lawyer, and now I spend my life working as a lawyer just to pay off my student loans." However, as time passed, and my career blossomed, I became very thankful that I took out (and have now paid off) those student loans.

True, I still spend most of my days in an office or in court (while a few lucky people are enjoying the sun). And admittedly, my dream job was not to be a lawyer (but who really has their dream job). I mean the Los Angeles Dodgers already have a coach, and I don't think that the Dodgers would be considering me even if they needed a new one. I was born to a middle class family and was destined to work my entire life.

So, if I was to live a happy, fulfilling life as a lawyer, I knew that I was the only one who could make that happen for me. In 1997, I started my own law practice and have been in business ever since. I run the office the way that I believe a law office should be run. I make sure that my staff is happy. I am proud of my work. And I couldn't have owned my own office right out of law school. Especially, doing the variety of cases that we handle. All of the work that I did for those large law firms, prepared me for the work that I do in my office in Hawaii.

The moral is that this is just the start of your journey. The job you currently have is not necessarily where you will end up. My journey began in giant law firms in NY and Virginia and, in 22 years, took me to my own office in Hawaii. Attorneys have to find the practice in which they feel most comfortable. Some attorneys like big firms, other like small firms. Some people thrive doing criminal law, while others would be miserable. Each new lawyer must look within herself and decide what she needs in life to be fulfilled, and then go for it.

Above all, strive to be happy. And when you find happy, don't try too hard to improve on happy. In fact, don't mess with happy.

Labels: The Legal Profession

It is wrong to stereotype people. Thankfully, our society is good at identifying and condemning bigotry. Nevertheless, anti-lawyer jokes and rhetoric have become an acceptable part of American culture.

Now I'm the first to admit that my profession is flawed. There certainly are attorneys who abuse the system. That does not mean that all lawyers are corrupt. Individual doctors have been convicted of Medicaid fraud. No one would ever suggest that all doctors are corrupt because of the crimes of the few. There are attorneys that I would rank among the finest people I have ever known. The legal profession is honorable when practiced honorably.

Lawyers must take it upon ourselves to improve the image of our profession. One way is to lead by example. Former Hawaii State Bar President Wayne Parsons addressing the Hawaii bar, recently wrote the following:

The maintenance of the highest standards of professionalism in the law, in the country that has inspired the people of the world with the "rule of law", begins with respecting what we do each day, respecting ourselves and respecting the law enough that we will not tolerate anything but excellence in what we do, demand ethics that are impeccable and respect people - attorneys and non-attorneys - that we encounter each and every day in and out of work.

I agree wholeheartedly with Mr. Parsons. Attorneys must demand ethics from ourselves, our clients, and our opponents. Once this respect permeates the system, our profession will regain its rightful stature with the public.

Labels: The Legal Profession

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

When hiring an attorney, make sure that he is covered by malpractice insurance. It is your absolute right to ask your potential attorney about this issue. Admittedly, the lawyer may refuse to respond. If he does refuse, just don't hire that attorney.

This is an important consumer protection issue. The Hawaii State legislature has attempted to pass a law requiring mandatory disclosure of malpractice coverage by attorneys. I have written to the Hawaii State Bar supporting this disclosure requirement. The Hawaii State Bar has consistently opposed this legislation. I am not exactly sure why. After all, I presume that all of the good lawyers in Hawaii carry malpractice insurance. Indeed, the Hawaii Bar Presidents usually are from very successful practices, so why are they preventing the public from knowing which lawyers do not care enough about their clients to have insurance coverage?

This is a simple consumer protection issue. It is illegal to drive a car without insurance presumably to ensure that the victims of car accidents are compensated. Shouldn't we protect the consumers of legal services in the same way? If a lawyer makes a mistake that hurts his or her client, do we not want to make sure that the victim can be compensated?

So like so many other aspects of life in the Twenty First Century, since the government refuses to take action to protect you, you must protect yourself. Do not hire a lawyer unless he or she can confirm that they carry malpractice insurance.

Labels: The Legal Profession

Since I was trained to practice law in New York City, clients often consult with me because they want their attorney to be aggressive. Admittedly, when it is necessary to protect my clients interest, I can be very aggressive. However, an experienced litigator, who is actually concerned with protecting his client, must not allow zealousness to overrule common sense.

When a client contacts my office, it is usually because they are embroiled in a dispute with an individual or company. As with any legal dispute, emotions are magnified and it is important that I remain calm and view the dispute in an objective manner. Sometimes this is easier said than done, especially when the potential client has done absolutely nothing wrong and their opponent is clearly taking advantage of them.

Often, during my initial consultation, the potential client is understandably very angry. It is at this critical moment that a good litigation attorney must counsel his clients to try to remain calm. And this may be especially difficult since, in the initial interview, the attorney may not have the relationship necessary to make the client feel at ease.

I have had potential clients arrive at my office with a detailed plan of action for me to undertake. However, it is important for the client to understand that each action will result in attorney's fees and costs that must be paid. Therefore, like any good attorney, I explain to the client, not only the potential ramifications of the desired action, but the attorney's fees and costs associated with the action.

Although it would be a far more profitable for me to simply follow my clients instructions regardless of the cost, it is my absolute ethical duty to counsel my client about the cost of their desired agressive strategy and, if possible, offer less costly alternatives. I am confident that I am not the only lawyer that follows this procedure. If your attorney doesn't counsel you on the cost of litigation, and offer you less expensive altervatives, you may wish to consider new representation.

Labels: The Legal Profession

I frequently hear of lawyers telling potential clients that their case is a "slam dunk" in the intial interview. Personal injury victims have informed me of potential attorneys that can place a value on their injuries before the attorneys have even reviewed medical records. Prospective clients should be wary of lawyers who promise too much in the first interview. Lawyers cannot predict the future. If a lawyer has the telepathic ability to guarantee your outcome, and you are absolutely cetain that he is not lying to you, then hire that lawyer. In fact, if he has psychic power, you should also ask him to select your next investment.

In truth, a lawyer meeting you for the first time, cannot accurately tell you the outcome of your case. There are literally hundreds of variables that will effect your case, many of which cannot possibly be determined in the initial meeting. For example, what kind of witness will you be? You may be perfectly charming in the intial interview, yet fall apart under the pressure of prolonged litigation. How strong a witness will your opponent be? Has the attorney reviewed all of the material documents in your case? I've had very few cases, in my twenty one years of legal practice, in which the potential client brought all material documents to the initial interview. Yet, without reviewing all of the material documents, it is virtually impossible to predict the outcome of a commercial case. If it is a personal injury matter, what do the medical reports say about the victim's injuries? It is impossible to accurately value a personal injury claim without reviewing the extent of the physical injuries, as confirmed in those reports.

If your potential attorney makes elaborate promises about the outcome of your case in your initial interview, you should become very concerned. An experienced, honest attorney will admit that there is no guarantee in our imperfect legal system. When selecting an attorney, see who gives you straight advice. You wouldn't trust a doctor who told you that smoking was good for your lungs. Don't shop for the lawyer who is most willing to tell you what you want to hear.

Labels: The Legal Profession

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