the appellate record - december 2013

The Appellate Record, December 2013 Page 1

THE APPELLATE RECORD December 2013

FEATURED ARTICLE:

Make Your Point with Bullets

By: Deirdre Marie-Iha (Appellate Attorney)

Attorneys are a picky lot. You know who you are. Raise your hand if youve ever gotten into a heated debate with a colleague about the best font, whether to emphasize text with bold or underline, or the advisability of string cites. I will freely admit to participating in these discussions about the myriad small choices we make in producing our written work. I think these debates matter because together, these small choices add up to whether your document is easy to read. The idea I share here offers another way to accomplish that same critical goal.

For some reason, using bullet points as a formatting choice does not spark the same heated debates among attorneys as font choices. Perhaps this is because bullet points are underappreciated and underutilized. Do not number yourself

2013 HSBA Appellate Section Board:

Chair: Ms. Rebecca A. Copeland

Vice Chair: Mr. Mark J. Bennett

Secretary: Ms. Bethany C.K. Ace

Treasurer: Mr. Robert Nakatsuji

HSBA CLE Liaison: Ms. Mitsuko T. Louie HAWSCT Liaison: Mr. Matthew Chapman

ICA Liaison: Mr. Daniel J. Kunkel


among the attorneys who overlook this simple formatting option. Just look at what you can do with it:

Make your point with brevity and focus.

Organize a list in a way that is clean and easy to read.

Explain procedural developments that have focused the case.

List the reasons why the court should rule in your favor.

Summarize the legal or logical problems with your opponents arguments.

Highlight a set of great quotations.

I have two favorite ways to use bullet points. First, I use them to summarize our position in an introduction. I do this for nearly every filing that I draft of any degree of complexity, regardless of the court or the subject. Second, I like using bullets to summarize nationwide authority, especially when your argument depends on the strength of the persuasive authority. I do this in lieu of a string cite, which is bound to be ignored. Instead of having a citation with a great quote buried in a parenthetical, the quotation is made directly with a bullet point, and accompanied by the citation. This is a great way to emphasize a collection of great quotations.

From my experience with bullet points, I can make a few suggestions on how to go about using them to their best advantage. Consider these suggestions:

Use a hanging indent. This means the text does not wrap around the bullet; it forms in a clean line with the bullet off to the left.

Line up the bullet list with your regular paragraph indent, so it looks clean. You can do this by aligning the bullet itself with the paragraph indent, or aligning the text with the paragraph indent. (The second method will give you more space on each line.)

Make the verbs parallel, so that the bullets can be read together as a list or separately.

In filed documents, do not change the spacing. Bullets look nice single-spaced, but typically the rules do not allow it. I find the bullets themselves set off the text well enough without changing the spacing.

Use plain, circular bullets. Do not add gimmicks like arrows or check marks into a brief. It is distracting.

Use the right length of bullet list. In my experience bullet lists work well for three items minimum, and up to around six or seven maximum. The list altogether shouldnt be too long.


Use bullets sparingly. A full-sized appellate brief should have no more than two or three sets of bullets in it. Overuse will decrease the effectiveness of this formatting tool.

Finally, and most importantly, start your bullet list with an informative lead-in.1 This method is used to introduce a block quotation (or a bullet list). The lead-in is meaningful on its own, not just filler to start the quote. To do this, you assert something first, and then add the quote or bullet list to support the assertion. For example, dont start with The courts held . . . [followed by a bullet list]. This is boring and doesnt really tell you anything. Instead, start with something like this: The weight of the authority indicates [assertion]: [followed by a bullet list with relevant quotations].

The bullet list is versatile. It can summarize, organize, and persuade. When you have a list, there is no better way to make your point.

1 See Bryan A. Garner, The Winning Brief at 299 (1999).


Overview of the 2013 Term SCOTUS Cases On November 18, 2013, we were pleased to host our Section Vice-Chair and former Attorney General Mark J. Bennett, of Starn OToole, and Paul Alston, of Alston Hunt. The duo gave our members a preview of the United States Supreme Courts docket for this term including both civil and criminal cases.

Noteworthy cases this term include:

Natl Labor Relations Board v. Canning: a recess appointments case that will test the power of the President to fill vacancies during the Senates recesses in service;

Michigan v. Bay Mills Indian Community: whether a state has the right to regulate off-reservation commercial activities of an Indian tribe that may have implications in Hawaii if a native Hawaiian governing entity is ever given recognition akin to an Indian tribe;

Hall v. Florida: a case that challenges the test currently used to judge

whether a defendant qualifies as mentally retarded for purposes of determining if carrying out an execution is constitutional Florida uses a test under whether a 70 IQ or greater is not considered mentally retarded;

McCutcheon v. Federal Election Commission: testing the constitutionally

permissible limits of campaign contribution by individuals;


Kansas v. Cheever: a Fifth Amendment case on whether the state may put on evidence to rebut a mental competency defense if the statements are compelled because they were made during a court-ordered mental evaluation of the defendant;

Town of Greece v. Galloway: testing the constitutionally of a citys decision

to start each city council meeting with a prayer and the failure to give a fair opportunity to various religious affiliations;

McCullen v. Coakley: reproductive rights case that attacks a law prohibiting

protesters from gathering within 35 feet of abortion clinics that may narrow the ability to place such restrictions;

Navarette v. California: whether an anonymous tip is sufficient cause to

allow a police officer to stop a motorist or must the officer make his own observations of reckless driving;

Bond v. United States: whether the chemical weapons treaty (the Chemical

Implementations Act) can support a conviction of a woman who tried to poison her friend (who was pregnant with the defendants husbands child) for illegally transmitting a chemical weapon, a case that will test the limits of the governments ability to pass necessary and proper legislation

Summaries of these and the other cases to be heard by SCOTUS this term are available at SCOTUS blog (http://www.scotusblog.com/case-files/terms/ot2013/?sort=mname). Mahalo to Mark and Paul for joining us!


Year In Review - 2013 By: Rebecca A. Copeland (Law Office of Rebecca A. Copeland, LLC)

2013 was another an exciting year for the HSBA Appellate Section! I was honored to serve a second term as Chair of the Section along with my fellow Board Members Mark Bennett, Bethany Ace, Robert Nakatsuji, and Mitsuko Louie. I was also wonderful to continue to work with our two appellate court liaisons Matthew Chapman and Daniel Kunkel. The Board worked hard to make 2013 another great year, and the work paid off.

During 2013, the Appellate Section sponsored the Federal Appellate Practice Manual, published in conjuctio with the HSBA and unveiled at this years Bar Convetion. Contributors to the Manual included Bethany C.K. Ace, Kimberly Asano, Lisa A. Bail, Calvert G. Chipchase, Honorable Richard Clifton, Clare Connors, Rebecca A. Copeland (editor), John Duchemin, Douglas D. Frederick, Christopher T. Goodin, Steven Gray, Mitsuko T Louie (editor and contributor), Marissa H. Luning (editor), G. Richard Morry (editor), Lisa Woods Munger, Mark M. Murakami, E. Kumau Pineda-Akiona, Brett C. Rowan, Monica Suematsu, Robert H. Thomas, and Elijah Yip.

This year, the Section also continued to sponsor the implementation of an Appellate Pro Bono Pilot Project, in conjunction with the Hawaii Access to Justice Commission and the Hawaii Judiciary. The program will match low to moderate income pro se clients with appellate practitioners for appeals before the Intermediate Court of Appeals and the Hawaii Supreme Court. In addition to helping pro se clients, the program will provide opportunities for Hawaii attorneys to brief and argue cases before the Hawaii appellate courts.

Each month, we provided our Members with a newsletter that included many informative and interesting topics written by our some of our Members. The Section also continued to maintain its website: www.hawaiiappellatesection.org. The website contains educational materials from the Sections various CLE events, and also serves as a central location where both attorneys and non-attorneys may go to obtain information on appellate practice in Hawaii.


The Section also hosted monthly meetings and events that featured a number of important topics to appellate practitioners. We were fortunate to have many distinguished guests give presentations.

In January, Hawaii Supreme Court Justice Sabrina S. McKenna and Hawaii Supreme Court Staff Attorney Shellie Park-Hoapili discussed the topic Writs of Mandamus and Other Extraordinary Writs in the Hawaii Supreme Court;

In February, Intermediate Court of Appeals Judge Katherine G. Leonard discussed the topic Appealable Judgments, Judgments on Appeal, and Other Mysteries of Appellate Practice.

In March, Elijah Yip, former Litigation Section Chair and partner at Cades

Schutte, Even R. Shirley, discussed "Socializing with a Purpose: Ethical Tips and Other Considerations for Networking, Rainmaking, and the Use of Social Media";

In April, Ninth Circuit Judge Richard Clifton, Clare Connors of Davis Levin,

and Mark M. Murakami of Damon Key Leong Kupchak Hastert discussed Federal Appellate Practice;

In May, ACLU Senior Staff Attorney Daniel M. Gluck and Robert Thomas of

Damon Key Leong Kupchak Hastert discussed Amicus Practice; In June, our guest was the Hawaii Supreme Courts newest Associate Justice,

Richard W. Pollack; In July, Retired Hawaii Supreme Court Justice Steven H. Levinson and

Intermediate Court of Appeals Judge Daniel R. Foley discussed the United States Supreme Court decisions in DOMA and Proposition 8 cases;

In August, Intermediate Court of Appeals Associate Judges Lawrence M.

Reifurth and Lisa M. Ginoza discussed Transitioning from Trial to Appeal; In November, Mark J. Bennett, of Starn OToole, and Paul Alston, of Alston

Hunt gave us a preview of the United States Supreme Courts docket for this term.

We also hosted our Third Annual Meeet & Greet with the Hawaii Suprepme

Court and Intermediate Court of Appeals in October, and we will finish out the year hosting Intermediate Court of Appeals Chief Judge Craig H. Nakamura for our year-end meeting, another joint endeavor with the Litigation Section.

The overall goal of the Section continued to be providing appellate practitioners with educational opportunities in order to improve appellate practice


in Hawaii. To that end, Members who attended all of our monthly meetings receive their three MCPE credits free of charge. Members also received VCLE credits periodically throughout the year. The Section also continued to give our Members the opportunity to meet each other a chance to get to know other attorneys who share the same passion for appeals.

I would like to thank everyone who helped to make 2013 a successful year. A special mahalo goes out to our Section members and members of the Hawaii Judiciary who donated their time on the Appellate Manual, the monthly newsletters, and who spoke at our monthly meetings and the Bar Convention.

Finally, Id like to send a special mahalo to the Members of the Hawaii appellate courts, including Chief Justice Recktenwald and Chief Judge Nakamura, for their continued support of the Section and who helped make the Section a success. Without their continued support the Section would not be what it is today.

I look forward to another fun and exciting year! Mahalo.


This Month in Appellate History

The following United States Supreme Court Justices assumed office in December: Bushrod Washington, Alfred Moore, Salmon P. Chase, Ward Hunt, William Burnham Woods, Horace Gray, David Josiah Brewer, Henry Billings Brown, Edward Douglass White, Rufus Wheeler Peckham, Oliver Wendell Holmes, Jr., William Henry Moody, Horace Harmon Lurton, Willis Van Devanter, Joseph Rucker Lamar, Pierce Butler, and John Paul Stevens.

JEFS E-Filing Tip of the Month The Notes field is available for writing notes to the clerk of court, and

allows for a more descriptive or longer title of a document to be provided (for example, a fuller title or a fuller list of the filing parties names if there are many). Remember that the text entered into the Notes field is considered public record.


November Published Appellate Opinions

In November, the Hawaii Supreme Court issued four published opinions, and the Intermediate Court of Appeals also issued three (although one was in a consolidated case). Below is a brief synopsis of each:

In Flores v. State, SCWC-12-0000359 (November 29, 2013), the HAWSCT held that in a case where the defendant was charged with and convicted of the greater offense of kidnapping, the Circuit Court should have given a jury instruction on the lesser included offense of unlawful imprisonment in the first degree, but that the failure to give the instruction was not harmless error.

In State v. Maharaj, SCWC-29520 (November 18, 2013), the HAWSCT held that a conviction for operating a vehicle under the influence of an intoxicant was improper because the state failed to allege the requisite state of mind and because the charge did not allege an essential fact[] constituting the offense charged.

In State v. Getz, SCWC-12-0000009 (November 8, 2013), the HAWSCT held that where the defendant was convicted of robbery, the circuit court erred in failing to give the jury a unanimity instruction.

In US Bank Natl Assoc. v. Castro, SCWC-11-0001104 (November 8, 2013),

the HAWSCT held that where the bank sought a judgment and writ of possession from the district court, the court properly exercised subject matter jurisdiction over the case because the Castros failed to demonstrate that title to the subject property would come into question.

In State v. Alangcas, 30109 (November 29, 2013), the ICA upheld the constitutionality of Hawaiis electronic enticement of a child statute, concluding that the statute is not unconstitutionally overbroad and vague, and that it does not violate the dormant commerce clause.

In Christian v. State, CAAP-11-0000147 (November 27, 2013), the ICA held that the ability to attack a conviction for operating a vehicle under the influence for the failure to include the public-road element of the crime does not apply over two years after the conviction on collateral review.

In In re Arbitration between HTSA and State of Haw., DOE, CAAP-11-0000065 (November 26, 2013), the ICA held that the circuit court erred in partially


vacating an arbitration award that had been in favor of HTSA on the basis of sovereign immunity and statutory prohibition. The court also held that public policy did not bar the award. According to the ICA, [a]n arbitrators error in construing an agreement or misinterpreting applicable law is not sufficient ground for overturning an arbitration award.


Upcoming Events: December End of Year Luncheon

On Friday, December 13, 2013, from noon to 1:00, the Appellate Section will hold its End of Year Luncheon at the Pacific Club, a joint endeavor with the HSBA Litigation Section. Our guest will be ICA Chief Judge Craig Nakamura.

The deadline to RSVP is Monday, December 9, 2013.

The cost of the event will be $10.00 per person, payable at the door.

Seating is limited, so please let us know by sending an email to Bethany Ace at [email protected].


Useful Appellate Links: The Hawaii Judiciary: www.courts.state.hi.us United District Court for the District of Hawaii: www.hid.uscourts.gov United States Court of Appeals for the Ninth Circuit: www.ca9.uscourts.gov United States Supreme Court: www.supremecourt.gov Hawaii State Bar Association: www.hsba.org Blogs by our Members: www.hawaiilitigation.com (by our Member Louise Ing) www.hawaiioceanlaw.com (by our Member Mark M. Murakami) www.hawaiiopinions.blogspot.com (by our Member Ben Lowenthal) www.insurancelawhawaii.com (by our Member Tred R. Eyerly) www.inversecondemnation.com (by our Member Robert H. Thomas) www.hawaiiappellatelaw.com (by our Member Charley Foster) www.recordonappeal.com (by our Chair Rebecca A. Copeland)


Appellate Resources: HAWAII APPELLATE SECTION WEBSITE: The Appellate Sections website includes useful appellate resources, including handouts from prior monthly meetings, copies of this newsletter, and power point presentations from the Appellate Sections programs at the 2012 and 2013 HSBA Bar Coventions. www.hawaiiappellatesection.org

HAWAII APPELLATE PRACTICE MANUAL: The Hawaii Appellate Practice Manual (2012) includes information for filing appeals in Hawaii, including how to e-file documents on the Judiciarys E-Filing System, how to supercede a judgment, and how to brief and argue cases. The manual also includes useful appellate forms. The Manual was co-sponsored by the Appellate Section and the Hawaii State Bar Association, and is available through the HSBA. FEDERAL APPELLATE PRACTICE MANUAL: The Federal Appellate Practice Manual (2013) includes valuable information and insight into practicing appeals in the federal arena, with special emphasis on the United States Supreme Court and United States Court of Appeals for the Ninth Circuit. The Manual was co-sponsored by the Appellate Section and the Hawaii State Bar Association, and is available through the HSBA. HAWAII APPELLATE PRACTICE MANUAL SUPPLEMENT: Appellate Motions Practice a supplement to the 2012 Hawaii Appellate Practice Manual, offering insight and practice tips into state appellate motions practice, and including additional forms. The Supplement was co-sponsored by the Appellate Section and the Hawaii State Bar Association, and is available through the HSBA.


Stay tuned for the January 2014 edition of The Appellate Record!

If you are interested in contributing to our newsletter in any way, please contact the Sections Chair Rebecca A. Copeland at [email protected]

The Appellate Record is presented as a courtesy to the Members of the Hawaii State Bar Associations Appellate Section by its Board. Mahalo and enjoy!

the appellate record - december 2013

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