The Law Offices of Philip R. Brown

The Legal Profession As Seen by a First Year Hawaii Lawyer

2010-09-01T12:44:00.000-07:00

Justin Chu recently joined our firm. I asked him to write a blog about his experiences thus far. Here it is:

As written in a previous blog, I joined this office in July of 2010. Having graduated from law school in May of 2009 and passed the bar in November, this is my first associate attorney position. My blog entries, therefore, will be about the practice of law as seen by someone just out of law school.

Being a law student and being a law practice professional are, surprisingly, two very different experiences. In law school, there are no clients, no judges, and no opposing counsel – only other students and professors. Unless she takes it upon herself to participate in extracurricular activity, all of a law student’s legal writing takes place once a semester during exams. A law student’s finest legal thinking often takes place while wearing sweat pants and an old t-shirt.

To me, the greatest difference between the two experiences is the client. A lawyer’s work is driven by clients. This may seem obvious, but is something that I’m learning in my first year. The lawyer’s job is to best to accomplish his client’s goals. The one common question I always hear asked to potential new clients is “What is it that you want us to help you with?”

That question is not asked in law school. There are no clients, just final exams. A law student does not ask a client about what happened, or what the client would like accomplished. There are no facts to be discovered. The law student is given an objective prompt - the facts often describe a scenario involving multiple people that eventually lead to a conflict. The student is not to assume any facts not written in the question. The exam then directs the test taker to “Determine Person X’s liability.” After this, the law student applies his knowledge of the relevant law to the facts, makes an argument both for and against Person X, and finally gives an opinion of Person X’s probable liability/non-liability. This ends the question. There is no lawyer asking the client “What do you want us to help you with?” In law school, we never consider whether the client should settle his claim or pursue arbitration/mediation. In law school, the client always has unlimited funds, time, and determination to get his dispute all the way to a judge.

I have already found that this is not true in the real practice of law. Clients have limited funds and time. The facts of a client’s problem are not presented in a few well written, grammatically correct paragraphs. A lawyer must uncover those facts from his client, from the opposing party, from witnesses, and documents. An important question I have learned I must always ask myself while doing my work is “Is what I am doing cost efficient for the client?”

While going from school to practice is an adjustment, it is a welcome one. Meeting a client whose case I am working on gives me extra motivation to do my best, as it lets me know that I’m helping out real people with an important dispute in their lives. And, contributing to a successful motion or trial is a much more exciting experience than getting an A.

I am eager to continue to learn the ins and outs of practice and to share these experiences.

Hawaii Attorneys' Continuing Legal Education

2010-08-30T14:04:00.000-07:00

A new rule governing Hawaii attorneys was adopted this year. This rule provides that starting from January 1, 2010, all active members of the Hawaii Bar are required to complete at least 3 credit hours of approved Mandatory Continuing Professional Education (MCPE) each calendar year. The rule governing mandatory MCPE credits in Hawaii is Rule 22 of the Rules of Supreme Court of the State of Hawaii. Rule 22 also encourages that attorneys complete 9 or more credit hours per years of approved Voluntary Continuing Legal Education (VCLE). Attorneys are required to certify and report the completion of their MCPE and VCLE credits annually. To fulfill their MCPE and VCLE credits, attorneys may attend “[c]ourses and activities sponsored by the Hawaii State Bar Association (HSBA) or the American Bar Association, and classified by the HSBA as MCPE or VCLE.” Supreme Court Rule 22(f). Alternative means for Hawaii attorneys to meet their MCLE and/or VCLE credits are provided for in Rule 22(e) and are also subject to HSBA approval.

Comment to Rule 22 reveals the intent behind adopting this rule and provides as follows:

Continuing professional and legal education contributes to lawyer competence and benefits the public and the legal profession by assuring that attorneys remain current regarding the law, the obligations and standards of the profession, and the management of their practices. Voluntary continuing legal education is valuable to lawyers and attendance at courses is encouraged. These new rules are expected to result in a substantial increase in course attendance and participation in activities that earn MCPE and VCLE credit, with resulting enhancement of lawyer services to clients.

Comment to Supreme Court Rule 22.

For more information concerning this new rule, one could view the Hawaii State Bar Association website at http://www.hsba.org/MCLE.aspx.

Welcome Courtney Henderson

2010-08-27T19:29:00.000-07:00

The Law Offices of Philip R. Brown is happy to welcome Courtney Henderson. Ms. Henderson has her M.A in English Literature from the University of Toledo (2009) and her B.S. in Magazine Production Journalism from Florida A&M University (2008). Courtney is currently pursuing her doctorate at the University of Hawaii, in Linguistics, Language Documentation and Conservation.

Courtney will serve as a paralegal on many of our civil litigation matters and will use her journalism background to assist us with our blog. Obviously, we are delighted to have Courtney join our firm.

Hawaii Attorney Justin M. Chu joins the Law Offices of Philip R. Brown

2010-08-07T09:51:00.000-07:00

Hawaii attorney Justin M. Chu has joined our firm as an associate. Justin is a 2009 graduate of the University of Memphis School of Law. At the University of Memphis, Justin was on the Law Review where he also served on the Editorial Board as Business Editor. In addition, Justin received Cali Awards in Civil Rights and Fair Employment Practices.

Justin is a 2004 graduate of Vanderbilt University where he majored in Mathematics and minored in Computer Science. After graduation from Vanderbilt, Justin worked as a Consultant/Pharmacy Technician for Priority Healthcare Corp. While at Vanderbilt, Justin was a teaching assistant in Calculus. In short, Justin has an impressive, varied background and skill set that will only enhance his legal practice.

Justin Chu's practice with this office will focus on Civil Rights, Commercial Litigation and Civil Trial Practice cases.

Welcome Justin.

Katherine Leonard should be confirmed as our Next Chief Justice

2010-08-04T09:42:00.001-07:00

Intermediate Court of Appeals Judge, the Honorable Katherine Leonard, has been nominated by Governor Lingle to serve as our next Chief Justice of the Hawaii Supreme Court. On August 3, 2010 the Senate Judiciary Committee heard testimony to consider her qualifications. I attended the entire hearing and was honored to give testimony in support of Judge Leonard. Judge Leonard has broad support among the Hawaii legal profession. The Senate Judiciary Committee heard testimony in support of Judge Leonard from the Hawaii Attorney General, the Honolulu Prosecutor's office, the Public Defender's Office, former Hawaii Supreme Court Justice Klein, several retired Judges of the Hawaii Circuit Court, the Hawaii Women's Lawyers Association and several of her former law professors at the William H. Richardson School of Law. Many of Hawaii's most prominent attorneys also testified in strong support of Judge Leonard.

There also were some prominent critics of Governor Lingle's selection who gave testimony that Judge Leonard simply is not ready to be Chief Justice of the Hawaii Supreme Court. No witness questioned Judge Leonard's honesty, intellect, or work ethic. Although I have great respect for those individuals that testified against Judge Leonard's nomination, respectfully, I disagree. I have known Judge Leonard for seventeen years, since we were both associates at the Carlsmith Ball law firm. She is a tireless worker, has great intellect, and is devoted to the Judiciary. Although a few witnesses questioned whether Judge Leonard has the leadership qualities necessary to be Chief Judge, based on my personal knowledge of Katherine Leonard, I am ready to follow Judge Leonard's leadership.

Judge Leonard will be an excellent Chief Justice of the Hawaii Supreme Court.

Hawaii Attorney Boutique's Are Consumer Friendly

2010-03-01T17:47:00.000-08:00

National leaders have called this "The Great Recession". Since the fall of the real estate market on the mainland in 2008, our national economy has been in rough shape. Hawaii has also been hurt by this economic downturn.

The legal profession has also suffered from this tough economic climate. Several large law firms, including my former firm in New York City, have gone out of business. In a recent Los Angeles Times article, it was noted that like other industries, small agile law offices have been able to adapt more quickly to this new legal climate. Boutique law offices, like this one, were simply considered to be more "consumer friendly".

This does not suprise me. When I started this office in 1997, I knew that the future of the legal profession was more efficient, smaller law offices. In my opinion, the $700-1000 hourly rates charged by some major law firms are simply unsustainable.

Practicing law is like any other business. As we all try to navigate our way through the "Great Recession", the law firms that survive will be those that are most able to adapt to the changing market and be responsive to our clients.

Happy Holidays

2009-12-24T12:58:00.000-08:00

Happy Holidays from everyone in our office. It has been a tough year for the State of Hawaii and the United States. Still, our office has managed to weather the economic storm that has caused such pain across our great nation. I am grateful to our clients for their trust especially during this difficult period.

May you all have a safe and joyous holiday.

The Kaloko Dam Settlement

2009-11-03T16:47:00.000-08:00

The Kaloko Dam flood was a terrible tragedy, about which I previously posted in September of 2007. I am happy to report that we have reached a successful settlement, which will allow our clients to restore their idyllic property.

Our clients' property, on the island of Kauai, was severely damaged by the Ka Loko Dam flood. I represented one of the largest property owners damaged by the Ka Loko Dam flood. Admittedly, I was part of a team of plaintiffs attorneys. (A case this size had to be handled by a team of attorneys). The case allowed me to work with some of Hawaii's best attorneys. It was also an honor to watch the manner in which this difficult case was handled by the Court. As an advocate, I was not always pleased with every ruling, however, the way the Court controlled the litigation was inspiring. I also participated in the mediation skillfully handled by Warren Price and Keith Hunter. It was conducted over several months and involved multiple parties and insurance carriers. This complex case involved every imaginable issue of law and procedure. The attorneys for the plaintiffs and the defendants handled this difficult case with the highest degree of courtesy and professionalism.

In my September 2007 Kaloko Dam blog, I wrote the following:

We are very proud to represent this family in their pursuit for justice. In a few years, we intend to write a follow up to this blog in which we will describe how we helped our clients restore their beautiful Kauai landscape.

This outcome will allow our clients to restore their home to the condition it was in before the flood. I also hope that this settlement allows the Kauai community to continue the process of healing from this tragedy.

Hawaii Attorney Philip Brown selected to the Best Lawyers in America

2009-08-24T14:20:00.000-07:00

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.

"Costs" In An Attorney Fee Contract

2009-06-26T17:28:00.000-07:00

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.

Real Estate Settlement Procedures Act (RESPA)

2009-06-03T20:00:00.000-07:00

The Real Estate Settlement Procedures Act (RESPA), 12 U.S.C.A Section 26, et seq, was enacted by Congress to "effect certain changes in the settlement process for residential real estate that will result:"

(1) in more effective advance disclosures to home buyers and sellers of settlement costs;

(2) in the elimination of kickbacks or referral fees that tend to increase unnecessarily the costs of certain settlement services;

(3) in a reduction in the amounts home buyers are required to place in escrow accounts established to insure the payment of real estate taxes and insurance; and

(4) in slight reform and modernization of local recordkeeping of land title information.

12 U.S.C.A. Section 2601(b).

A particular RESPA disclosure that must be made by a lender includes the following:

Each person who makes a federally related mortgage loan shall disclose to each person who applies for the loan, at the time of application for the loan, whether the servicing of the loan may be assigned, sold, or transferred to any other person at the time while the loan is outstanding.

12 U.S.C.A Section 2605(a)(emphasis added).

The failure of a lender to make the above disclosure establishes a private right of action for the borrower against the lender. Sanborn v American Lending Network, 506 F.Supp.2d 917, 923 (D.Utah, 2007).

Samantha Alana Brown

2009-05-15T19:43:00.000-07:00

A business associate recently asked me if I have been involved in a difficult trial recently, because I have not updated my blog since March 10, 2009.

The inactivity on my blog is not the result of being overworked from a trial. My failure to blog is the result of exhaustion caused by a far more happy occasion. I am proud to announce that on March 20, 2009 my wife Sarah and I were blessed with the birth of a daughter, Samantha Alana Brown. Samantha was six pounds ten ounces at birth. Currently her hobbies seem to be eating, sleeping and staring at a picture of hearts painted by her sister, Fiona.

Opportunity to Cure in a Services Contract

2009-03-10T19:20:00.000-07:00

A contracting party who fails to give proper notice and opportunity to cure any alleged breach, default, or defect (as expressly required in the contract) is in breach of the contract. See Kalaus v Prime Care Physician, 20 A.D. 3d 452, 454 (N.Y.A.D. 2 Dept., 2005)(Defendants breached the contract with plaintiff for failure to give plaintiff 30 days to cure plaintiff's breach as expressly provided in the contract. Plaintiff was awarded summary judgment on the issue of liability). The party who is held in breach for failing to give proper notice and opportunity to cure also loses any of its claims or defenses related to the other party's alleged breaches. Id. ("Based on the conclusion that that defendants breached the termination for cause provision of the employment agreement [for failing to give plaintiff notice of his breach and opportunity to cure], it is irrelevant whether the defendants did, in fact, have the requisite cause to terminate the plaintiff's employment.")(brackets added). See also The American Outdoorsman, Inc. v Pella Products, Inc., 144 P.3d 81, *8 (Kan.App., 2006)("[E]ven if American Outdoorsman's network change could be considered a material breach, Pella should not be allowed to assert this breach as a defense when it failed to give American Outdoorsman the opportunity to correct such breach.") Likewise, "an injured party that acts precipitously and terminates before it is entitled to do so loses its defense as well as the possibility of claiming damages for total breach, and will itself be liable for damages for total breach." Farnsworth on Contract section 8.18 (3d.ed., 2004).

Admittedly, the party breaching the contract could argue that (i) there was a mutual rescission of the agreement or (ii) it was orally modified. However, "to establish rescission by mutual consent, the contracting parties' acts and declarations must be inconsistent with the continued existence of the previous contract." AAA Uniform and Linen Supply, Inc. v. Barefoot, Inc., 17 S.W. 3d 627,629 (Mo.App. W.D. 2000) (emphasis added). Moreover, proof of these "acts and declarations" of "rescission must be clear, positive, unequivocal and decisive, and it must manifest the parties' actual intent to abandon contract rights." Id.

The second option, "a written contract can subsequently be orally modified if all of the requisites of a valid or enforceable agreement are met." Honolulu Federal Sav. And Loan Ass'n v. Murphy 7 Haw.App 196, 205 (Haw.App.1988). "A requisite is that the modification must be supported by new consideration." Id.

For a discussion of our Commercial Litigation Practice click
here .

Arbitration in Hawaii (Part 2)

2009-03-06T18:42:00.000-08:00

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.

Arbitration in Hawaii

2009-03-02T13:43:00.000-08:00

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.

Civil Discovery in Hawaii

2009-02-20T16:40:00.000-08:00

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.

Truth in Lending Act in Hawaii

2009-02-17T19:26:00.000-08:00

The Truth in Lending Act (TILA) found in 15 U.S.C.A. section 1601, et. seq. was enacted to "protect consumers and promote the 'informed use of credit.'" Washington v Americquest Mortgage.Co., 2006 WL 1980201, *6 (N.D.Ill., 2006). As such, TILA requires creditors to conspiciously disclose certain terms and costs information prior to a credit transaction. Id. This information includes, but is not limited to, the annual percentage rate and "finance charge," order of disclosures, and use of different terminology. 15 U.S.C.A. section 1632(a).

The Statute of Limitation on a TILA action is one year for closed ended credit cases pursuant to 15 U.S.C.A. section 1640. The exception to the one year statute of limitation is when the remedy sought is to enforce the right of rescission under 15 U.S.C.A. section 1635. 15 U.S.C section 1635 provides that in any consumer credit transaction in which a security interest is retained or acquired in any real property which is used as the residence of the person to whom credit is extended, the obligor has the right to rescind the transaction until midnight of the third business day following the consummation of the transaction or the delivery of the disclosures required by the Truth in Lending Act, whichever is later, by notifying the creditor of his intention to rescind. 15 U.S.C section 1635. 15 U.S.C section 1635 applies to loans on unimproved lots that are intended for recreational or residential use. Charnita, Inc. v. F. T. C., 479 F.2d 684, 686-87, (C.A.3, 1973).

For a link to commercial litigation areas regularly practiced by this office please click here.

Interference with Hawaii Business

2009-02-10T14:01:00.000-08:00

The tort of intentional interference with prospective economic advantage was examined by the Hawaii Supreme Court in Robert's Hawaii School Bus, Inc. v Laupahoehoe Transp. Co., Inc.

The primary objective of the tort of interference with prospective business advantage or opportunity is the protection of legitimate and identifiable business expectancies... Weighing against social and individual interests in protection of business expectancies and efforts to acquire property are the interests in legitimate business competition. That is, much of the common law is premised on the theory that competitors should have an opportunity to compete for business until such time as it is cemented by contract or agreement. Public and individual interests in free competition become particularly acute where a plaintiff anticipates, but is not yet assured, that a contractual or firm business relationship will materialize. Where the plaintiff's contractual relations are merely contemplated or potential, the public interest is best served by allowing any competitor the opportunity to divert those prospects to itself, so long as the means used are not themselves improper. Any contrary rule may tend to establish and perpetuate trade monopolies. As the "expectancy" becomes more remote or less firmly established, the interest in free competition among business persons becomes more compelling.

Robert's Hawaii School Bus, Inc. v Laupahoehoe Transp. Co., Inc., 91 Hawaii 224, 258-59 (Hawaii, 1999)(superseded by statute as stated by Hawaii Medical Ass'n v. Hawaii Medical Service Ass'n, Inc., 113 Hawai'i 77 (Hawai'i, 2006) on unrelated grounds)(citing 2 Joseph D. Zamore, Business Torts 12.01[2], at 12-5 to 12-6 (1999) (footnotes omitted) (emphasis added).

Further, the Hawaii Supreme Court provided that,

[T]he following elements have evolved into the tort of intentional or tortious interference with prospective business advantage: (1) the existence of a valid business relationship or a prospective advantage or expectancy sufficiently definite, specific, and capable of acceptance in the sense that there is a reasonable probability of it maturing into a future economic benefit to the plaintiff; (2) knowledge of the relationship, advantage, or expectancy by the defendant; (3) a purposeful intent to interfere with the relationship, advantage, or expectancy; (4) legal causation between the act of interference and the impairment of the relationship, advantage, or expectancy; and (5) actual damages.

Id. (emphasis added).

In Robert's Hawaii School Bus, Inc. v Laupahoehoe Transp. Co., Inc., the Hawaii Supreme Court used the above factors and upheld the trial court conclusion that plaintiff's claim for intentional interference with prospective economic advantage failed since "there was insufficient evidence to show that: (1) such conduct was designed to disrupt appellants' relationship with DAGS; (2) the relationship had the probability of ripening into a future economic benefit for STI; (3) STI would have been awarded the Big Island routes; and/or (4) STI was injured and suffered damages."

In many cases, the tort of intentional interference with prospective economic advantage comes down to whether "absent the interference, the [prospective business] relations were reasonably likely to develop." Looney v M-Squared, Inc., 586 S.E.2d 44, 49 (Ga.App., 2003). In Looney v M-Squared, Inc., the Court of Appeals of Georgia held that even with defendants' interference, plaintiff corporation failed to show that plaintiff would have formed the alleged relationship. Looney v M-Squared, Inc., 586 S.E.2d at 49. Instead, the evidence showed that the corporation "decided not to pursue" that relationship. Id.

As noted, causation is also an element that must be established. "In order to be liable, a defendant's interference must cause the loss or, in other words, a defendant's conduct must not only qualify as improper interference, it must also actually induce the third party to terminate its relationship with the plaintiff." The Film and Tape Works, Inc. v Junetwenty Films, Inc., 856 N.E.2d 612, 620-21 (Ill.App. 1 Dist., 2006) See also Gruber v. Victor, No. 95 CIV. 2285, 1996 WL 492991 at *21 (S.D.N.Y., August 28, 1996). "[T]o maintain an action for intentional interference with prospective economic advantage there must be some certainty that plaintiff would have gotten the contract but for the defendant's interference." (citing Mandleblatt v Devon Stores, Inc., 521 N.Y.S.2d 672, 677 (1st Dept., 1987)(internal quotation omitted).

In The Film and Tape Works, Inc. v Junetwenty Films, Inc., defendants produced evidence that the third party corporation would have done business with defendants regardless if defendants worked for plaintiff corporation or for themselves. Id. Basically, the third party would have done business with defendant regardless of the presence of plaintiff corporation. Id. As such, the Appellate Court of Illinois held that defendants' action did not cause any damages to plaintiff. Id.

Hawaii State Court Motions

2009-01-23T18:25:00.000-08:00

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.

Foreign Corporation Depositions in Hawaii (Part 2)

2009-01-21T19:33:00.000-08:00

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.

Foreign Corporation Depositions in Hawaii (Part 1)

2009-01-16T15:06:00.000-08:00

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.

Disclosure of Defects in Hawaii

2009-01-09T18:51:00.000-08:00

This blog will discuss (i) whether the seller of a home has a duty to disclose material facts regarding the property to a buyer and (ii) whether the realtor and/or seller of a home has a duty to disclose material facts regarding the property to a buyer. The short answer is that a seller has an absolute duty to disclose material facts to the buyer. Although this obligation is usually handled by the seller in the disclosure statement, the legal obligation arises from the common law and a variety of statutes.

For example, pursuant to HRS section 508, a seller (or an agent of a seller, ie. real estate agent) may be found liable for failure to disclose defects in property sold. HRS section 508D-1 requires "disclosure by seller (and extended to realtor) of "material facts" relating to property that are (1) within the knowledge or control of the seller, or (2) can be observed from a visible, accessible area, or are required under section 508D-15." Material fact is defined as "any fact, defect, or condition, past or present, that would be expected to measurably affect the value to a reasonable person of the residential property being offered for sale."
However, there are several defenses available to the seller. Accordingly, HRS section 508D-13 provides that:

Information in a disclosure statement that has not been disclosed or becomes inaccurate regarding a material fact as a result of an act, agreement, or occurrence (or otherwise becomes known to seller) after the statement is provided to the buyer does not violate this chapter.

Therefore, if the material defects arise after the buyer purchased the home, then there is no valid claim against the seller.

There must be evidence that the seller had prior knowledge of the defect. According to HRS section 508D-1, "the material fact that is required to be disclosed must be within the knowledge of the seller or visible to the seller."

Hawaii Attorney Conflicts of Interest

2009-01-06T18:06:00.000-08:00

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).

Hawaii Unlicensed Contractor Liability: 2

2009-01-02T18:11:00.000-08:00

In my previous blog I discussed whether, under Hawaii law, a homeowner must pay for services provided by an unlicensed contractor. This blog will consider whether a subsequent procurement of a Hawaii license by a previously unlicensed contractor can validate a contract that was agreed upon while the contractor was still unlicensed.

It is my opinion that a subsequent procurement of a license by an unlicensed contractor will not validate a previously illegal contract. I will explain. In Hawaii, a contract made with an unlicensed contractor is, as a matter of law, an illegal contract since it is in violation of HRS chapter 444. Therefore, it seems likely that if a contractor obtains a license after the contract is created, he still will not be able to collect payment for work performed while previously unlicensed. See HRS 444-22. The statute itself provides that the failure to obtain a license shall prevent such persons from recovering for work done or material and supplies so long as "such person failed to obtain a license. . .prior to contracting for such work." (emphasis added). The clear language of the statute indicates that a license must be obtained before the contract was made in order to prevent the harsh consequences of HRS 444-22.

Although there is no Hawaii case directly on point, this is consistent with other state court rulings applying statutes similar to Hawaii's existing law. The North Carolina Supreme Court interpreted their statute strictly, holding that a contract "cannot be validated by the contractor's subsequent procurement of a license." Brady v Fulghum, 308 SE.2d 327, 331 (NC, 1983) affirmed by Jenco v Signature Homes, Inc., 468 S.E.2d 533, 535 (NC. App., 1996), and Currin & Currin Const., Inc. v Lingerfelt, 582 S.E.2d 321, 324 (NC. App., 2003). That North Carolina Court also rejected the unlicensed contractor's argument of "substantial compliance." Id. North Carolina courts have consistently read the statute strictly and without exceptions. Admittedly, North Carolina has subsequently changed its statute which superseded this holding. The current North Carolina statute expressly allows payment to a contractor who subsequently procures a license so long as that contractor substantially complied with the licensing requirements. California has also changed their statute to allow for "substantial compliance by the contractor". As of the creation of this blog, the Hawaii legislature has not so modified its statute.

The plain language of the Hawaii statute provides that the failure to obtain a license shall prevent such persons from recovering for work done or material and supplies so long as "such person failed to obtain a license. . . prior to contracting for such work." (emphasis added). It is likely that a Hawaii court will enforce this statute strictly and require that the procurement of a license must be made before the contractor (i) agrees to do the work and (ii) begins performance.

Hawaii Unlicensed Contractor Liability

2008-12-23T17:12:00.000-08:00

We are occasionally asked whether an unlicensed contractor is entitled to collect compensation for work provided to a contracting party. A corollary of this issue is whether the monies already paid to the contractor must be refunded to the contracting party.

HRS 444-9 requires that no person shall "act or assume to act, or advertise" as a contractor (under the definition contained in HRS 444-1) without a license previously obtained by the licensing board. Further, HRS chapter 444 imposes penalties for violation of this statute, including but not limited to HRS 444-22. HRS 444-22 provides that:

The failure of any person to comply with any provision of this chapter shall prevent such person from recovering for work done, or materials or supplies furnished, or both on a contract or on the basis of reasonable value thereof, in a civil action, if such person failed to obtain a license under this chapter prior to contracting for such work.

HRS 444-22 prohibits unlicensed contractors from recovering for work performed, materials and/or supplies furnished. There is a strong public policy behind this rule. The Hawaii Supreme Court has explained this policy:

HRS chapter 444, providing for the licensing of contractors, expresses a very strong public policy that contractors in this state should apply for, and retrieve licenses, and the provisions of HRS 444-22, which are sweeping in their terms, are obviously intended to produce harsh results in furtherance of this policy.

Butler v Obayashi, 71 Haw. 174, 177 (1990).

It has been contended that parties contracting with unlicensed contractors should be barred from bringing suit since they too are parties to the illegal contract. However, the Hawaii Intermediate Court of Appeals ("ICA") in Jones v Phillipson found this argument unpersuasive. Jones v Phillipson, 92 Haw 117, 124-126 (1999). The ICA held that "a contract with an unlicensed contractor is not void ab initio, and this section [HRS 444-22] does not bar a member of the public, who is party to such a contract, from bringing suit to recover breach of contract damages from an unlicensed contractor". Id at 126. The ICA determined that any other result "would defeat the purpose of protecting the public by providing a shield from litigation for an unlicensed builder." Id; citing Domach v Spencer, 101 Cal.App.3d 308, 311 (1980) (In Jones the Hawaii Supreme Court cited Domach, a California case, because it recognized that the California statue was similar to the Hawaii statute).

Similarly, in Butler the Hawaii Supreme Court decided that, regardless of whether a contracting party knew that the contractor was unlicensed, an unlicensed contractor is still prohibited from recovering for work pursuant to HRS 444-22. Butler at 177. These two Hawaii cases, Butler and Jones, clearly establish that a party contracting with an unlicensed contractor may bring suit against the contractor regardless of whether they knew that the contractor was unlicensed.

In an analogous case, Domach v Spencer, the homeowners filed a claim against the contractor for breach of contract for failing to provide "workmanlike construction". Domach at 308. In that case, the contractor demanded greater compensation than was originally contracted for to complete the home. Id. at 310. Although the homeowners paid the contractor the agreed amount, at trial the homeowners demanded that all the monies be returned since the contractor was not licensed. The Domach court found in favor of the homeowners and awarded an amount necessary to pay for reparation of any "unworkmanlike" construction. Id. at 314. Regrettably, the Domach opinion does not explain the extent to which damages were awarded (including whether the homeowners were allowed to recover the money paid to the contractor or simply money paid for repair of the defective construction).

Hawaii Attorney Witness Preparation

2008-12-12T19:12:00.000-08:00

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.

Employer Liability in Hawaii

2008-12-10T16:28:00.000-08:00

In general, an employer may be held liable for the conduct of an employee acting within the scope of his or her employment. US v Hilton Hotels Corp., 467 F.2d 1000, 1004-1007 (C.A.9, 1972) See also Lucas v Liggett & Meyers Tobacco Co., 50 Hawaii 506, 480 (Hawaii, 1968)(A principal who puts a servant or other agent is a position which enables the agent, while apparently acting within his authority, to commit a fraud upon third persons is subject to liability to such third persons for the fraud.) Indeed, in certain cases a corporation may even be held responsible even if the acts of its employee or agent were done contrary to the corporation's policy or employer's instruction so long as it was within the scope of his or her "apparent authority". Id. It is not determinative if the employee or agent is acting in his or her own interest when committing the act, it will not relieve the employer of liability. See Lucas v Liggett & Meyers Tobacco Co., 50 Hawaii at 483.

In the alternative, if a Court deems that the employee's actions were outside the scope of employment, an employee may still be liable if "the conduct violated a non-delegable duty of the [employer], or... the [employee] purported to act…on behalf of the employer and there was reliance upon apparent authority, or [the employee] was aided in accomplishing the tort by the existence of the agency relationships". Hardwicke v Boychoir School, 902 A.2d 900, 919-920 (N.J., 2006) citing Restatement 2nd of Agency sec. 219(2)(c) to (d)(1958). Restatement 2nd of Agency sec. 219(2) specifically provides that:

(2) A master is not subject to liability for the torts of his servants acting outside the scope of their employment, unless:
(a) the master intended the conduct or the consequences, or
(b) the master was negligent or reckless, or
(c) the conduct violated a non-delegable duty of the master, or
(d) the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation.

Restatement 2nd of Agency sec. 219(2) (Emphasis added).

In Hardwicke v American Boychoir School, the plaintiff, a former student of the American Boychoir School, was sexually abused by school employees and brought an action against the school. Hardwicke v Boychoir School, 902 A.2d at 902. Relying on these principals, the New Jersey Supreme Court held that the boarding school, as employer, could be held vicariously liable for common-law claims for the child abuse committed by its employees. Hardwicke v Boychoir School, 902 A.2d at 920. In particular, the court in interpreting Restatement 2nd of Agency sec. 219(2)(d), held that when an employer delegates authority to an employee to "control the work environment" and the employee abuses that delegated authority, than the employer may be held vicariously liable. Id.

Additionally, in certain circumstances the employer may even be held liable for failing to detect and stop an employee's wrongdoing. US v Demauro, 581 F.2d 50, (2d Cir., 1978). See also Doe Parents v State, 100 Hawaii 34, 68 (Hawaii, 2002)(...if the State knew, or reasonably should have anticipated, that one of its employees would commit an intentional tort against a person to whom the State owed a duty of care, the State is liable for the negligence of those employees who were in a position to take reasonable precautions against the anticipated harm.). This claim of action is based on the negligence of the employer and/or employer's supervisors. Id.

Duties Owed By Hawaii Lawyers

2008-12-05T18:49:00.000-08:00

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.

Depositions in Hawaii

2008-12-02T18:19:00.000-08:00

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.

Things for Which I am Thankful- 2008.

2008-11-26T18:56:00.000-08:00

This is our eleventh Thanksgiving in business. Two years ago I wrote a Thanksgiving blog listing the "Things for Which I am Thankful". Since this is the traditional season to give thanks, I thought it would try to expound on the things for which I am thankful.

1. I am thankful to all of my clients who have trusted me with their cases. I realize that when you select my office, usually to litigate against much larger law firms, it is because you have faith in me. I am always humbled by that trust. Clients have many options available to them and there are many fine lawyers in Hawaii. I am thankful to those many clients who have believed in me.

2. I am thankful that I live in Hawaii. Having practiced law for many years in New York City, I know just how lucky I am to be able to live and work in Honolulu. I have now lived in Hawaii for over fifteen years and I am confident that there is no place on earth that I would rather live.

3. I am thankful for my staff. Those of you that have interacted with my staff, know what a pleasure it is to work with them. They produce excellent work product and are dedicated to our clients. Almost weekly, a client or a member of the bar tells me how lucky I am. I agree and am grateful.

4. I am thankful that I practice law in the United States. It has been a rough few years for America. Although I am proud that in 2008 we had a historic election, I still think we are in for a few lean years, before the economy improves. However, although we have taken some "hits" recently, never forget that the United States has been an extremely positive force in history. Democracy was a "noble experiment" when this country was founded in 1776. Today, democracy has spread throughout the world. The Constitution of the United States, particularly the Bill of Rights, is one of the most important documents ever written. The American people take many of their basic civil rights for granted, because the Bill of Rights has been so actively enforced through the years. I am thankful that I am a member of a legal system that has so effectively protected our civil rights, that most Americans are able to take their civil rights for granted.

5. I am thankful that I am a Hawaii attorney. Being a lawyer is not always easy. Still it is a very rewarding profession. And if you follow the rules, it is a very noble profession. I am thankful that I have been given the honor and privilege to serve my clients in Hawaii.

6. Finally, I am thankful for my family. 2008 was an unbelievable year for me. On August 8, 2008 I was married. My wife, Sarah, is a wonderful woman. It is a "cliche" to call someone your "soulmate" but my wife Sarah is definitely my "soulmate". I am thankful that Sarah and her daughter Fiona have become a part of my life.

Happy Thanksgiving.

Design Professional Liability in Hawaii

2008-11-21T17:06:00.000-08:00

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.

Hawaii Landlord Liability

2008-11-18T19:20:00.000-08:00

The general rule regarding landlord liability is that a landlord "is not liable to his lessee or to others on the land for physical harm caused by any dangerous condition, whether natural or artificial, which existed when the lessee took possession." Restatement (Second) Torts 356.

Although it certainly appears from the plain language of this rule that a lessee or tenant may not have a case against their landlord if they are injured on rental property, there are exceptions to this rule.

Restatement (Second) Torts 358 is such an exception and provides as follows:

A lessor of land, who conceals or fails to disclose to his lessee any natural or artificial condition involving unreasonable risk of bodily harm to persons upon the land, is subject to liability for such harm caused thereby to the lessee and others on the land with the consent of the lessee or a sublessee after the lessee has taken possession, if

(a) the lessee does not know of the condition or the risk involved therein, and

(b) the lessor knows of the condition and realizes the risk involved therein and has reason to believe that the lessee will not discover the condition or realize the risk.

Restatement (Second) Torts 358; See also Restatement (Second) of Property, Landlord & Tenant 17.1 (emphasis added).

Relying on these Restatements for guidance, the Hawaii Supreme Court held that an "owner-lessor" has a "duty to warn the lessee of a known hazardous condition..." Kole v AMFAC, Inc., 69 Haw 530, 532-33 (1988). This is the current Hawaii law.

In addition to the landlord's duty to warn tenants or lessees of dangerous conditions on their property, Landlords may also owe a duty to eliminate the risk of harm foreseeably caused by the dangerous condition. The Hawaii Supreme Court explained this landlord duty and premises liability as follows:

In our view, the substance of our many cases, dealing with possessors of land, and their duty toward persons using the land, is that, if a condition exists upon the land which poses an unreasonable risk of harm to persons using the land, then the possessor of the land, if the possessor knows, or should have known of the unreasonable risk, owes a duty to the persons using the land to take reasonable steps to eliminate the unreasonable risk, or adequately to warn the users against it.

Corbett v. Association of Apartment Owners of Wailua Bayview Apartments, 70 Haw. 415, 417 (Hawaii,1989)(emphasis added).

Accordingly, based on our examination of this issue, we believe that a landlord will be held to a duty to a tenant or lessee to make a known dangerous condition on the property safe or to warn a tenant about a known dangerous condition. If the landlord fails to meet this duty, then the landlord risks liability. For a discussion of our Real Estate Litigation Practice click the following link, Real Estate Litigation.

Hawaii Civil Litigation

2008-11-14T18:58:00.000-08:00

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

This Election Will Influence The Supreme Court

2008-10-10T15:54:00.000-07:00

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.

The Hawaii Uniform Land Sales Practices Act

2008-10-03T17:43:00.000-07:00

Our office was recently granted partial summary judgment by the United States District Court for the District of Hawaii (Hawaii Federal Court) in a case involving the Hawaii Uniform Land Sales Practices Act.

Specifically, the Hawaii Land Sales Practices Act provides that "no person may offer or dispose of any interest in subdivided lands located in this State, or offer or dispose in this State of any interest in subdivided lands located without this State before a preliminary or final order registering the subdivided land is entered in accordance with the chapter." H.R.S. 484-4. The registration requirements are very detailed and comprehensive to ensure that Hawaii buyers are provided with thorough information regarding the property. Further, Hawaii courts have jurisdiction over claims and causes of action under this chapter if "any offer or disposition of subdivided lands is made in this State, whether or not the offeror or offeree is then present in this State, if the offer originates within this State or is directed by the offeror to a person or place in this State and received by the person or at the place to which it is directed." H.R.S. 484-17. Meaning that the law applies to outside sellers who target Hawaii residents.

In our recent decision, the Court found, as a matter of law, that the mainland sellers violated H.R.S 484 by failing to register a mainland development project with the State of Hawaii before offering the undeveloped lots to Hawaii residents.

Tenant's Duties in Hawaii

2008-09-05T18:41:00.000-07:00

In our September 3, 2008 entry we discussed the duties owed by a landlord to a tenant under Hawaii Law. A tenant owes certain duties to her landlord as well. A landlord is not responsible for repairing all defective conditions on the premises. Under Hawaii Law, a tenant is responsible for maintaining the premises. H.R.S 521-51 provides as follows:

Each tenant shall at all times during the tenancy:

(1) Comply with all applicable building and housing laws materially affecting health and safety;
(2) Keep that part of the premises which the tenant occupies and uses as clean and safe as the conditions of the premises permit;
(3) Dispose from the tenant's dwelling unit all rubbish, garbage, and other organic or flammable waste in a clean and safe manner;
(4) Keep all plumbing fixtures in the dwelling unit or used by the tenant as clean as their condition permits;
(5) Properly use and operate all electrical and plumbing fixtures and appliances in the dwelling unit or used by the tenant;
(6) Not permit any person on the premises with the tenant's permission to willfully destroy, deface, damage, impair, or remove any part of the premises which include the dwelling unit or the facilities, equipment, or appurtenances thereto, nor oneself do any such thing;
(7) Keep the dwelling unit and all facilities, appliances, furniture, and furnishings supplied therein by the landlord in fit condition, reasonable wear and tear excepted; and
(8) Comply with all obligations, restrictions, rules, and the like which are in accordance with section 521-52 and which the landlord can demonstrate are reasonably necessary for the preservation of the property and protection of the persons of the landlord, other tenants, or any other person.

H.R.S. 521-51.

Furthermore, if a tenant fails to comply with these duties, the landlord has the following option:

(a) If the tenant is in material noncompliance with section 521-51, the landlord, upon learning of any such noncompliance and after notifying the tenant in writing of the noncompliance and allowing a specified time not less than ten days after receipt of the notice, for the tenant to remedy the noncompliance:

(1) May terminate the rental agreement and bring a summary proceeding for possession of the dwelling unit or any other proper proceeding, action, or suit for possession if the tenant is in material noncompliance with section 521- 51(1); or
(2) May remedy the tenant's failure to comply and bill the tenant for the actual and reasonable cost of such remedy if the noncompliance can be remedied by the landlord by cleaning, repairing, replacing a damaged item, or the like, which bill shall be treated by all parties as rent due and payable on the next regular rent collection date or, if the tenancy has terminated, immediately upon receipt by the tenant.

H.R.S. 521-69 (emphasis added).

As such, the tenant is responsible for keeping the premises in "fit condition". The tenant is also responsible for using all of the electrical, plumbing fixtures, and appliances properly and keep them clean. If any defective condition results from improper care or usage by the tenant, he/she is responsible for fixing such conditions, not the landlord.

Hawaii Landlord Tenant Law

2008-09-03T20:25:00.000-07:00

The Residential Landlord-Tenant Code, Chapter 521, is the governing law in Hawaii for the Landlord-Tenant relationship (and found in Hawaii Revised Statutes (H.R.S.) 521). H.R.S. 521-8 defines "Landlord" as "the owner, lessor, sublessor, assigns or successors in interest of the dwelling unit...". H.R.S. 521-8. "Tenant" is "any person who occupies a dwelling unit for dwelling purposes under a rental agreement." Id.

A landlord owes certain legal obligations to its tenant(s). First, the "landlord shall, at the beginning of the term, deliver possession of the dwelling unit to the tenant..." H.R.S. 521-41. Further legal obligations include the following:

(a) The landlord shall at all times during the tenancy:

(1) Comply with all applicable building and housing laws materially affecting health and safety;
(2) Keep common areas of a multi-dwelling unit premises in a clean and safe condition;
(3) Make all repairs and arrangements necessary to put and keep the premises in a habitable condition;
(4) Maintain all electrical, plumbing, and other facilities and appliances supplied by the landlord in good working order and condition, subject to reasonable wear and tear;
(5) Except in the case of a single family residence, provide and maintain appropriate receptacles and conveniences for the removal of normal amounts of rubbish and garbage, and arrange for the frequent removal of such waste materials; and
(6) Except in the case of a single family residence, or where the building is not required by law to be equipped for the purpose, provide for the supplying of running water as reasonably required by the tenant.

Prior to the initial date of initial occupancy, the landlord shall inventory the premises and make a written record detailing the condition of the premises and any furnishings or appliances provided. Duplicate copies of this inventory shall be signed by the landlord and by the tenant and a copy given to each tenant. In an action arising under this section, the executed copy of the inventory shall be presumed to be correct. If the landlord fails to make such an inventory and written record, the condition of the premises and any furnishings or appliances provided, upon the termination of the tenancy shall be rebuttably presumed to be the same as when the tenant first occupied the premises.

H.R.S. 521-42 (emphasis added).

Moreover, "the landlord, upon written notification by the tenant of any defective condition on the premises...shall commence repairs of the condition within twelve business days of the notification with a good faith requirement that the repairs will be completed as soon as possible." H.R.S. 521-64(c). If a landlord fails to commence such repairs, "the tenant may immediately do or have done the necessary work in a competent manner and upon submission to the landlord of receipts amounting to at least the sums deducted, deduct from the tenant's rent no more that $500 for the tenant's actual expenditures for work done to correct the defective condition." H.R.S. 521-64(d).

Celebrities and Their Pets Fashion Show

2008-08-26T17:42:00.000-07:00

I am proud to announce that on September 6th and 7th I will be participating in the "Celebrities and Their Pets Fashion Show". It will be held during the Sixth Annual Hawaii Woman Expo at the Blaisdell Exhibition Hall. My West Highland Terrier "Mike" and I will be "strutting our stuff" on the "dog walk" at 12:30 p.m. on September 6th and 7th. Mike will be modeling a fashion by designer Monica Shigenaga, owner of Cocojor (Cocojor.com), a pet friendly company that features authentic Hawaiian wear for dogs of all sizes.

My participation in this fashion show is to support the fine efforts of the Hawaii Dog Foundation. The purpose of this foundation is to provide dogs a safe, temporary home until adoption. This foundation is supported entirely by volunteers. To find out more about the Hawaii Dog Foundation, please visit their website, Hawaii Dog Foundation.

Hawaii Restraining Orders

2008-08-04T18:54:00.000-07:00

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

Interference With Hawaii Contracts

2008-07-29T17:50:00.000-07:00

In certain specific cases, a Plaintiff may bring a claim if someone has interfered with a prospective business advantage. The Hawaii Supreme Court has addressed the required elements of this tort in Hawaii as:

[T]he following elements have evolved into the tort of intentional or tortious interference with prospective business advantage: (1) the existence of a valid business relationship or a prospective advantage or expectancy sufficiently definite, specific, and capable of acceptance in the sense that there is a reasonable probability of it maturing into a future economic benefit to the plaintiff; (2) knowledge of the relationship, advantage, or expectancy by the defendant; (3) a purposeful intent to interfere with the relationship, advantage, or expectancy; (4) legal causation between the act of interference and the impairment of the relationship, advantage, or expectancy; and (5) actual damages.

Robert's Hawaii School Bus, Inc. v Laupahoehoe Transp. Co., Inc., 91 Hawaii 224, 258-59 (Hawaii, 1999).

With regards to determining whether there is a "valid business relationship or a prospective advantage or expectancy," the law is well settled that a "unilateral belief and hope that a contract would result" is "inadequate to sustain a cause of action" for tortious interference with prospective business expectancy. Gore v Shepard, 50 P.3d 705, 710-11 (Wyo., 2002) "A reasonable probability of a contract [ie. business advantage] is shown if there is a reasonable assurance of a contract in view of all of the circumstances." Id. (brackets added); See also, Sea-Pac Co., Inc. v United Food and Commercial Workers Local Union 44, 699 P.2d 217, 220 (Wash., 1985)("the plaintiff must show that the future opportunities and profits are a reasonable expectation and not based on merely wishful thinking.").

Moreover, the Defendant must have actually caused Plaintiff to lose a prospective business advantage. Proof of causation comes down to whether "absent the interference, the [prospective business] relations were reasonably likely to develop". Looney v M-Squared, Inc., 586 S.E.2d 44, 49 (Ga.App., 2003). Therefore, "in order to be liable, a defendant’s interference must cause the loss or, in other words, a defendant's conduct must not only qualify as improper interference, it must also actually induce the third party to terminate its relationship with the plaintiff." The Film and Tape Works, Inc. v Junetwenty Films, Inc., 856 N.E.2d 612, 620-21 (Ill.App. 1 Dist., 2006) See also Gruber v. Victor, No. 95 CIV. 2285, 1996 WL 492991 at *21 (S.D.N.Y., August 28, 1996). "[T]o maintain an action for intentional interference with prospective economic advantage there must be some certainty that plaintiff would have gotten the contract but for the defendant's interference." (citing Mandleblatt v Devon Stores, Inc., 521 N.Y.S.2d 672, 677 (1st Dept., 1987)(internal quotation omitted).

Hawaii Mediation

2008-07-25T19:32:00.000-07:00

Mediation has become a very effective litigation tool in Hawaii. We are asked about the possiblity of a mediation by clients and potential clients almost daily. Although mediation is practiced throughout the United States, the people of Hawaii, with their unique cultural history, seem particularly well-equipped to effectively use mediation. Although I was trained to practice law in New York, I moved to Hawaii in 1993. I have personally observed that Hawaii has a strong preference to mediation and that some of our finest jurists actively participate in this process.

For those unfamiliar with this practice, Mediation is a device in which parties to a dispute agree on an impartial third person who guides the litigants to a settlement using various negotiation and/or communication techniques. Although Mediation may serve several purposes, the overall goal is to assist the parties to find a way to solve their own problems usually through a negotiated settlement.

The selection of the mediator is critical. I believe that the parties should look for the following factors in a mediator:

1. The mediator has no conflict of interest. Obviously, if the mediation is to succeed, the litigants have to be able to rely that the mediator is completely unbiased and is attempting to guide them to a fair resolution of their dispute.

2. The mediator has adequate time to devote to the case. In Honolulu, some of the most talented mediators must be retained months in advance. If the potential mediator does not have time to devote to your case, find another mediator.

3. The mediator should be able to meet the parties’ expectations with regard to timing. Some cases absolutely must be resolved immediately. Counsel should take this into consideration when selecting a mediator.

4. The mediator should be completely candid and honest with all aspects of the process. If the potential mediator neglects to tell you about an important conflict until the mediation has begun, you may need a new mediator.

5. The mediator must be qualified. The goal is to settle the dispute. It does not necessarily aid the process if the mediator is a friend of all of the lawyers. The mediator does not have to be your friend. His or her job is simply to find a way to settle your case.

Finally, the litigants should understand that if a mediation is to be successful, they likely must be willing to compromise. If your litigation posture is such that you must "destroy" the opposing party, you certainly will not do so in a mediation. If you are not prepared to compromise, you are likely not ready to mediate.

For a description of our experience in mediations and arbitrations, please click the following link:
Mediation and Arbitration in Hawaii

Tolling the Hawaii Statute of Limitations

2008-07-22T19:15:00.000-07:00

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.

Hawaii Statute of Limitations

2008-07-18T18:57:00.000-07:00

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.

Hawaii Real Estate

2008-07-15T15:30:00.000-07:00

One of the questions I am frequently asked is whether I believe the value of real estate in Hawaii will decline. The fact is, I am a trial attorney and rely on real estate experts to advise me about issues related to the value of Hawaii real estate and the duties that real estate professionals owe to their clients. However, like almost everyone else, I read about real estate. In the July 11, 2008 issue of The Pacific Business News ("PBN"), there was a very interesting article concerning the price of home sales in Hawaii. According to the PBN, the prices of homes in Hawaii dipped, while condo prices actually rose because the available volume declined sharply. The article states as follows:

While the number of home sales around Hawaii dropped by an average of 29 percent during the first half of this year, compared with 2007, prices remained resilient in most markets with single-family homes showing small declines and condominiums showing increases.
Condo prices so far this year are up on all islands, by as much as 10 percent, as prices ease back on single-family homes. Sales on Oahu are down by more than 26 percent compared with the first six months of 2007, but prices are on a par with that period. The Big Island and Kauai saw the greatest drops in the number of sales, especially Kauai, where single-family homes sales were 40 percent lower than the first half of last year.

http://www.bizjournals.com/pacific/stories/2008/07/14/story6.html

Future Hawaii Attorney

2008-07-11T19:58:00.001-07:00

When we started this office ten years ago, we decided to hire support staff who aspire to, one day, become attorneys. By so doing, we believed that we could be a positive influence on future Hawaii attorneys. I am proud to say that to date, we have had three former staff members become attorneys after working for me. My legal assistant, Cheryl-Ann Miyamoto, recently left the firm in order to attend the University of Hawaii William S. Richardson School of Law this fall semester. I am grateful to Cheryl for her hard work and wish her well in her future legal career. I am confident that in three years, Cheryl-Ann will be our fourth staff alumnus to pass the bar.

The newest member to our legal family, Fiamma Rago, recently moved to Honolulu from Pittsburgh, Pennsylvania. Fiamma graduated from The Pennsylvania State University in December, 2007 with a dual Bachelor of Arts degree in Political Science and Philosophy. Fiamma seems genuinely excited to begin her legal career with this office. Although Fiamma has only been with us for a short time, I am already thoroughly convinced that she will be an excellent lawyer. When Fiamma enters law school in 2010, it is my sincere hope that she will have seen, from my example, that the legal profession is not only rewarding, but honorable.

Good luck Cheryl. Welcome Fiamma.

I Have A Pulse

2008-07-08T20:10:00.000-07:00

A friend recently e-mailed me the link to an article from the June 22, 2008 Honolulu Star Bulletin.com column in which reporter Erika Engle wrote the following:

Certain blog authors' possession of an actual pulse may be questionable,...
****
A completely unscientific perusal of other large local firms websites didn't turn up blog links, but Honolulu attorney Philip R. Brown has one. His most recent entry was in February.

http://starbulletin.com/2008/06/22/business/engle

Ms. Engle seems to question, based on the recent inactivity of my blog, whether I have an "actual pulse". Although it is common for people to wonder whether trial attorneys actually have a heart beat, my doctor assures me that my pulse is fine. Still, Ms. Engle is correct about the inactivity of my blog. This office has been very busy the last few months and we have simply failed to update our blog. This is not an excuse, simply an explanation. So, there will now be far more activity on this blog. And not just so that we can prove to Erika Engle that I have a pulse.

Honolulu Attorney Philip Brown Selected to American Trial Lawyers Association

2008-02-15T14:43:00.000-08:00

I am honored to have been selected to the American Trial Lawyers Association (ATLA). This honor is explained in the American Trial Lawyers Association's website as follows:

The American Trial Lawyers Association, is a national organization composed of the Top 100 Trial Lawyers from each state. Membership is obtained through special invitation and is extended only to those attorneys who exemplify superior qualifications, leadership, reputation, influence, stature, and profile in the trial lawyer legal community.

http://www.theatla.com/about.html

Although ATLA typically selects 100 lawyers from each state, when I received notification of this honor, ATLA explained that because of the limited size of the Hawaii bar ATLA had only selected 50 qualified attorneys from Hawaii. Naturally, I was flattered to have been included on this list.

The American Trial Lawyers Association is a prestigious organization, dedicated to recognizing those trial lawyers who represent their clients vigorously and judiciously. I am humbled to have been named to ATLA.

"When one door closes, another opens...."

2008-01-23T18:24:00.000-08:00

Since the opening of this office in 1997, I have been blessed with excellent support staff. I am especially proud that two of my former assistants have moved on to graduate from law school, and are now fine attorneys. And so it is with mixed emotions that I announce the resignation of my friend, Jennifer Brantley.

Jennifer was the friendly voice many of you will recall hearing when calling this office. Although I will miss seeing her each day, I am proud that Jennifer has now fulfilled her lifelong dream of becoming a Teacher. I will also miss her daughter, Cheyenne, who used to "camp out" in our conference room when "daycare" was an issue for her mom. Although, I expect great things in the future from Jennifer, I expect even "greater" things from Cheyenne.

Although I am saddened by Jennifer's resignation, I am happy to announce the arrival of the newest member of our family, CherylAnn Miyamoto. Cheryl joins us with a very strong academic background and has just completed work with the Hawaii Legal Aid Society. Since Cheryl appears to be extremely interested in the legal profession, it is my personal hope that she will be our next staff member to go on to Law School. It is also my personal goal that by working in this office, CherylAnn, will understand that the practice of a law can truly be an honorable profession. Finally, Cheryl brings another "first" to this office. Cheryl's husband, Tyson, is a member of the Honolulu Police Department. I am confident that Cheryl will be an excellent addition to our family.

Aloha Jennifer and Cheyenne. Aloha CherylAnn and Tyson.

Theft of a Corporate Opportunity

2007-11-06T16:04:00.000-08:00

We have represented clients alleged to have been involved in a "theft of a corporate opportunity." As most people know, "a corporate officer or director is under a fiduciary duty of individual loyalty, good faith and fair dealing in conducting corporate business." Racine v Weisflog, 477 N.W.2d 326, 329 (Wis App., 1991). One of the primary duties is that a corporate officer cannot divert assets of the corporation and use them for the officer's personal advantage.

In Hawaii, the "corporate opportunity" doctrine has been explained as follows:

If there is presented to a corporate officer or director a business opportunity which the corporation is financially able to undertake, is, from it nature, in the line of the corporation's business and is of practical advantage to it, is one in which the corporation has an interest or a reasonable expectancy, and, by embracing the opportunity, the self-interest of the officer or director will be brought into conflict with that of his corporation, the law will not permit him to seize the opportunity for himself.

Lussier v Mau-Van Development, Inc., 4 Haw.App. 359, 368 (Hawaii App., 1983)(Citing Guth v Loft, Inc., 5 A.2d 503, 511 (Del.Ch., 1939).

If an officer or director diverts a "corporate opportunity" for his or her own personal gain, then such action may constitute a breach of the officer or director's fiduciary duty to the corporation (ie. the duty of loyalty). The damages for such breach may include, (i) recovery of any profits earned (usually with the imposition of a constructive trust on the property taken), (ii) compensatory damages, and/or (iii) injunctive relief.

Congratulations Effie!

2007-10-13T09:48:00.000-07:00

We are very proud to announce that attorney Effie Steiger has passed the Hawaii bar. Effie is already a member of the Nevada bar and moved home to Honolulu this past summer. We are very excited to have Effie working with us. Like everyone else in this office, the focus of Effie's practice will be Civil litigation, primarily commercial and real estate litigation.

Congratulations Effie. We expect great things from you in the future.

Amending a Complaint in Hawaii

2007-10-05T12:05:00.000-07:00

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.

Our Ten Year Anniversary

2007-10-03T19:19:00.000-07:00

On October 1, 2007, we celebrated the ten year anniversary of the opening of this law office. When I was working as an associate for a New York law firm, it was my dream to open my own boutique office. This office is the culmination of that dream. Of course, when I was practicing law in New York City, I never imagined that twenty years later my boutique office would be in Honolulu, Hawaii. For this fact, I am especially thankful.

I am also grateful for my friend and office manager, Warren Fabro. Warren started this office with me in 1997, and has been working with me since the Bank of America litigation with the late David Schutter, Esq.. I am thankful to Warren, both for his friendship and hard work. I know that my personal success is, in large part, the result of our collective effort. As we approach our second decade, this office will continue to provide excellent, personalized service to our clients. Although we will grow in the next ten years, this office will remain near its current size, since I intend to be actively involved in all of my clients' cases.

Finally, I wish to thank all of the clients who trusted me to handle their affairs during the first ten years of this office. I know that there are many options available to you in my profession. I am always humbled by the faith that you place in me. I look forward to working with you all in the next decade.

Diversity Jurisdiction In Hawaii Federal Court

2007-09-28T19:12:00.000-07:00

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.

The Kaloko Dam Case

2007-09-26T16:58:00.000-07:00

Before

After

Our practice on Kauai continues to grow. We have been retained by a family whose property on the island of Kauai was severely damaged by the Ka Loko Dam flood. Prior to the flood, our clients' home was surrounded by a lush tropical oasis. Beautiful landscaping nestled their spacious home from outsiders creating the ideal Kauai sanctuary.

Then, on March 14, 2006, the Ka Loko Dam breached, and almost 400 million gallons of water, 1.6 million tons, rushed down from the reservoir above towards Kilauea Bay, wiping out everything in its path, including trees and buildings. Most tragically, seven people lost their lives.

Our clients lost their home's beautiful idyllic landscape in a matter of seconds. What was once an area flourishing in island vegetation was replaced with dirt and rubble. The massive trees and beautiful native plants on the property were uprooted and swept away with the rest of the landscape.

We are very proud to represent this family in their pursuit for justice. In a few years, we intend to write a follow up to this blog in which we will describe how we helped our clients restore their beautiful Kauai landscape.

The Hawaii Bar Exam

2007-07-25T17:15:00.000-07:00

For the last few weeks, attorney Effie Steiger has been on a break from this office as she studied for the Hawaii State Bar exam. Although Effie is licensed to practice law in Nevada, Hawaii law requires that she take our bar exam before may appear in a Hawaii state court. So yesterday and today, Effie has been busy taking the Hawaii State Bar exam. I am positive that Effie will pass, and look forward to her return to the office later this week.

Once she is a Hawaii attorney, we expect to see great things from Effie Steiger in her career.

Selecting the Right Hawaii Personal Injury Attorney

2007-06-29T18:14:00.000-07:00

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.

Our Law Office Staff in the Honolulu Media

2007-06-22T18:12:00.001-07:00

My April 10, 2007 blog entry concerns the acting career of our Office Manager, Warren Fabro. In the summer of 2006, Warren appeared in a major supporting role to Richard Chamberlain in the Hawaii Opera Theatre's fine production of The King and I (which played to sold out audiences at the Neal Blaisdell Concert Hall). I was very excited to learn that Warren was recently cast in a supporting role in Hawaii Opera Theatre's production of Rodger and Hammerstein's South Pacific which opens in late July, 2007. We can all look forward to another fine production from Warren and Hawaii Opera Theatre this summer.

I am also proud of one of my legal assistants, who recently began her "television career." Jennifer Brantley volunteers as the Fundraising Manager for a non-profit organization called HonoluluMommies.com ("HM"), a local chapter of The Mommies Network. This group is an online community that provides free support to all moms, regardless of age, working or marital status. On June 21, 2007, Jennifer appeared on the KHNL's Morning Show to discuss HM's fundraiser, The Mother of All Chases, which takes place on June 23, 2007. Portions of the funds raised will be used for HM's charitable events, as well as fund newly created educational seminars for its members. A portion of the proceeds will also be used by The Mommies Network to ensure that members will continue to receive its excellent services for free.

In my April 10, 2007 blog, I wrote that Warren Fabro was the "real star of our office." I am happy that Jennifer Brantley will now be acting in a "supporting role."

Advice For a Recent Law School Graduate

2007-06-14T17:29:00.000-07:00

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.

Piercing the Corporate Veil in Hawaii

2007-06-08T18:31:00.000-07:00

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.

Six Million Dollar Award in Construction Litigation on Kauai

2007-06-01T19:35:00.000-07:00

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.

Personal Jurisdiction Over Nonresidents in Hawaii

2007-05-30T19:36:00.000-07:00

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."

The Plaintiff has the burden of establishing personal jurisdiction over a nonresident defendant. Ziegler v Indian River Country, 64 F.3d 470, 473 (9th Cir., 1995) However, "the Plaintiff need only make a prima facie showing of jurisdictional facts" to avoid dismissal. Schwarzenegger v Ford Motor Co., 374 F.3d 797, 800 (9th Cir., 2004). If Plaintiff is successful in making a prima facie showing on the motion to dismiss, Plaintiff "must eventually establish jurisdiction by a preponderance of the evidence either at a pretrial evidentiary hearing or at trial." Hi-Pac. Ltd. v Avoset Corp., 980 F.Supp. 1134, 1137 (D.Haw., 1997).

"In determining whether [the plaintiff] has met this burden, uncontroverted allegations in [the] complaint must be taken as true, and 'conflicts between the facts contained in the parties' affidavits must be resolved in [the plaintiff's] favor for purposes of deciding whether a prima facie case for personal jurisdiction exists." AT&T Co. v Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir., 1996)( quoting WNS Inc. v Farrow, 884 F.2d 200, 203 (5th Cir., 1989).

"To subject a nonresident defendant to suit, both the long-arm statute of the state in which the Court sits and constitutional due process requirements must be satisfied" Television Events & Marketing, Inc. v Amcon Distributing Co., 416 F. Supp.2d 948, 956-957 (D.Haw., 2006). "Because Hawaii's long-arm statute reaches to the full extent permitted by the Constitution, the Court need only determine whether due process permits the exercise of personal jurisdiction." Id. (citing Schwarzenegger, 374 F.3d at 800-801. "The Due Process Clause protects an individual's liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful contacts, ties, or relations." Burger King Corp v Rodzewicz, 471 U.S. 462, 471-472 (1985) In order to meet the due process requirement, the Court has to have "either general jurisdiction or specific jurisdiction" over the defendant. Doe v American National Red Cross, 112 F.3d 1048, 1050 (9th Cir., 1997); Robinson Corp v. Auto-Owners Ins. Co., 304 F. Supp.2d 1232, 1236 (D. Haw., 2003) (citation omitted).

General jurisdiction requires that defendant's contact with the state be "continuous, systematic, and substantial." Resnick v Rowe, 283 F.Supp.2d 1128, 1135 (D.Haw., 2003)(citing Helicopteros Nacionales de Columbia, S.A. v Hall, 466 U.S. 408, 414-416 (1984), Data Disc v Inc. v Sys. Tech. Assoc., Inc., 557 F.2d 1280, 1287 (9th Cir., 1977) In U.S. ex.rel. McCarthy v. Straub Clinic and Hosp. Inc., 140 F.Supp.2d 1062, 1702 (D.Hawaii, 2001), the United States District Judge, Honorable David Ezra, addressed the concepts of general and personal jurisdiction as follows:

"A defendant's contacts with a state must be such that it "should reasonably
anticipate being haled into court there." Sher, 911 F.2d at 1361. This could
arise in one of two ways. First, if the defendant's contacts with the state are
"substantial," or "continuous and systematic," the court may exercise general
jurisdiction over it, regardless of whether the *1072 contacts is related to the
cause of action. Id. Second, if (1) the defendant takes some action to purposely
"avail himself " of the privilege of conducting activities in the forum, thereby
invoking the benefits and protections of the forum's laws," (2) the cause of
action arises out of the defendant's contacts with the state, and (3) it would
be reasonable to do so, the court may exercise specific jurisdiction over the
defendant." Id. See also Sinatra v. National Inquirer, Inc., 854 F.2d 1191 (9th Cir.1988).

Electronic Filing in Hawaii Federal Court

2007-05-24T18:18:00.000-07:00

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.

Sellers Right to Cure under the Hawaii UCC

2007-04-30T19:39:00.000-07:00

Over the past few weeks, I have addressed the sale of goods in Hawaii under the Uniform Commercial Code. Article Two of the Uniform Commercial Code has been adopted in every state (except Louisiana) and governs contracts for the sale of goods. Hawaii has adopted the Uniform Commercial Code. Obviously, the express terms of a contract for the sale of goods will control the manner in which the sale is to be carried out. If the seller tenders goods that are not timely rejected by the buyer, the buyer is obligated to make payment pursuant to the terms of the sales contract. What constitutes effective "rejection" by the buyer is discussed in my entry of April 23, 2007. This blog entry concerns the rights of a seller to cure any defects alleged by a buyer.

A seller has the right under the UCC to cure a buyer's rejection of nonconforming goods if; (1) "the time for performance has not expired" or, (2) there were "reasonable grounds to believe" the imperfect tender "would be acceptable" as suitable substitution. HRS § 490:2-508. The seller must also "seasonably notify the buyer of his intention to cure." HRS § 490:2-508. "Curing" by the seller basically entails repairing and/or replacing the good to make it conforming and free of defect(s). This ensures that a buyer gets what he bargained for in the contract and allows seller to "avoid injustice...by reason of a surprise rejection by the buyer." Comments to HRS § 490:2-508.

If a seller seasonably notifies the buyer of its intention to cure an alleged defect, the buyer must not interfere. If a seller attempts to cure the nonconformity but is frustrated by the buyer in his attempts (ie. is prevented from picking up the good) then the buyer may be deemed to have accepted the nonconforming goods and waives his right to have the good cured. See Contours, Inc. v Lee, 10 Haw.App. 368 (1994). Moreover, if the buyer has used or modified the allegedly defective good before it could be cured, in some circumstances, Courts have determined that the buyer has waived its right to seek compensation.

Sellers and buyers should document all of their communication concerning efforts to cure (if you are the seller) or efforts to obtain a cure (if you are the buyer). Too often business persons hold written documents in disdain (as mere formalities) and, therefore, fail to protect themselves by documenting their reasonable efforts to solve a problem. It is wise for a businessperson to solve their own problems, and being reasonable is always the best course of action. But it may not do you any good to be the most reasonable party to a transaction, if you cannot prove that you were the most reasonable party. Any good trial lawyer will tell you that the outcome of a case is not always determined by what actually happened, but what the attorneys can prove through admissible evidence. The easiest way to ensure that you will be able prove that you were the most reasonable party to a transaction is to put all your communications in writing (and save your emails). And, of course, be the most reasonable party in all of your transactions.

Rejection of Hawaii Goods Under the UCC

2007-04-23T20:27:00.000-07:00

Under the Uniform Commercial Code ("UCC"), a breach of a sales contract may occur when a seller delivers non-conforming goods to the buyer. It is the buyer's burden of proof to establish this breach once goods are accepted. H.R.S. § 490:2-601. Upon delivery and acceptance of goods, the buyer is obligated to pay the contract price to the seller. H.R.S. § 490:2-401. Specifically, tender of delivery requires that the seller place and hold conforming goods at the buyer's disposition and give the buyer any notification reasonably necessary to enable him to take delivery. H.R.S. § 490:2-503

Upon delivery of a non-conforming good by the seller, the buyer has three options; 1) reject the goods, 2) accept the goods, or 3) accept any commercial unit and reject the rest. H.R.S. § 490:2-601. For a buyer to adequately reject the goods, the goods must be truly non-conforming or the rejection will be considered wrongful and may give the seller "immediate remedies for breach." H.R.S. § 490:2-602 including comments.

A buyer may reject goods if they "fail in any respect to conform to the contract." (H.R.S § 490:2-601) But that rejection "must be within a reasonable time after their delivery or tender", and the buyer must "seasonably notif[y] the seller." H.R.S. § 490:02-602. The importance of this provision cannot be overemphasized. A buyers failure to timely reject nonconforming goods has been found to constitute a waiver of the right of rejection. Also to be effective, a rejection requires a "clear and unequivocal act," and not merely a request for cure. Matrix v Jolie, 2005 WL 1074774 at 6 (N.Y.City Civ.Ct., 2005), citing Hooper Handling, Inc. v. Jonmark Corp., 267 A.D.2d 1075, 1076 (N.Y.A.D. 4th Dept., 1999); Sears Roebuck & Co. v. Galloway, 195 A.D.2d 825, 827 (N.Y.A.D. 3d Dep., 1993).

The notice of rejection must be "clear and unequivocal". A buyer's "mere complaints" about the goods were not sufficient notice of rejection. If the buyer does not reject the goods pursuant to H.R.S. § 490:2-602, then the buyer is deemed to have accepted the goods. H.R.S. § 490:2-602. Moreover, the buyer's use of the goods and failure to return the goods regardless of his "mere complaints" constituted acceptance. Maggio Importato, Inc. v Cimitron, Inc. 189 A.D.2d at 664. Mere complaints also are ineffective in revocation of acceptance. Swift Spinning Mills v. B&H Apparel, 2003 WL 942610 at 2 (S.D.N.Y., 2003) ("Although [buyer] may have informed [seller] that the denim streaked, there is no evidence that it revoked its prior acceptance. All denim has defects, and if a buyer wants to revoke acceptance of a fabric, it has to involve more than merely complaining of those defects.").

This rule is also supported by H.R.S. § 490:2-605 which requires a buyer to "state in connection with rejection, a particular defect" or risk waiving his objection to acceptance.

The UCC is a road map for buyers and sellers to follow in the event they have a dispute involving a contract for the sale of goods. A buyer or seller should state their objections to a transaction clearly, unequivocally and in writing. If it is cost efficient, consult with your attorney before proceeding. Retain copies of everything. These days, copies of email communication can be as valuable as any other writing. If you have any doubt whether it should be saved, print it out and show it to your lawyer.

The Uniform Commercial Code in Hawaii

2007-04-18T17:11:00.000-07:00

The Uniform Commercial Code (UCC), Article 2, governs all contracts for the sale of goods in Hawaii under Title 27, Chapter 490, Article 2 of the Hawaii Revised Statutes ("HRS"). The purposes of the UCC are:

(1) To simplify, clarify, and modernize the law governing commercial transactions;(2) To permit the continued expansion of commercial practices through custom, usage, and agreement of the parties; and (3) To make uniform the law among the various jurisdictions. HRS § 490:1-103.

Prior to the creation of the UCC, each state had its own (and sometimes conflicting) laws concerning the sale of goods. The UCC brought ease and consistency to the sale of goods throughout the United States regardless of where the buyer and seller are located. The UCC has been broadly interpreted and amended in order to adapt to changing times. Indeed, 49 of the 50 states have adopted Article 2 of the UCC (sales). Louisiana is the only state that has not fully passed Article 2 of the UCC.

How does a buyer or seller know if the UCC governs its transaction? There must be a valid contract for the sale of goods.

What is a contract? A valid contract requires an offer, acceptance, and consideration. An offer is a commitment communicated to an identified person containing definite terms. Acceptance is agreement to the terms of the offer by a person to whom the offer was made. Consideration is an exchange of the bargain (i.e. goods) for a benefit (ie. money).

What is a sale? The answer to this question and many other are found in the UCC. "A 'sale' consists in the passing of title from the seller to the buyer for a price." HRS § 490:2-106.

What is a good? "Goods means all things (including specially manufactures goods) which are movable at the time of identification to a contract for sale. The term includes the unborn young of animals, and growing crops, and other identified things attached to realty." HRS § 490:2-105.

As a commercial litigation attorney for over twenty years, I have had many cases involving the UCC. Over the next few weeks, I will address certain UCC issues commonly encountered in Hawaii.

The Real "Star" of Our Office

2007-04-10T23:27:00.000-07:00

Many of our friends and clients know that my office manager, Warren Fabro, is a top rate legal professional. Warren does his job well every day. Each week I am told how lucky I am that he works with me. I know how fortunate I am. What many of our clients do not realize is that Warren is also an accomplished actor. And although Warren may kill me for doing this, allow me to sing his praises.

Warren's professional acting career took off in 1988 in the film, Aloha Summer. Admittedly, the film never won any Academy Awards, but it is a very entertaining movie and Warren appears on the video cover. In fact, the NY Times wrote that "Aloha Summer is a magnificently photographed delight for surf-movie aficionados." Besides it is the only film that showcases both Warren's fighting and surfing skills.

Warren's film credits also include the movie, Picture Bride (which starred Tamlyn Tomita and Cary-Hiroyuki Tagawa). The LA Times called Picture Bride, "a gentle and eloquent tale of perseverance that blossoms finally into the most tender of love stories". It is an important film about the period between 1907 and 1924, when more than 19,000 Japanese women immigrated to Hawaii to marry Japanese sugar-cane workers. These couples knew little of each other beyond an exchange of photos. Picture Bride is based on some of the actual experiences of many such women. I am very proud that Warren appears in this film.

Another important credit for Warren was the miniseries Blood & Orchids. This miniseries starred Kris Kristofferson, Sean Young and Madeline Stowe. It told the story of four Native Hawaiian youths wrongly accused of attacking the wife of a naval officer in 1937. Based on the Massie case, it handled the difficult questions raised when four Hawaiian youth were tried by an all white Court in 1930's Hawaii. Warren ably plays one of the wrongly accused youths.

Warren has also had a distinguished television career. Last year he took off time from work to appear on the NBC crime drama, Hawaii. You may recall Warren's character running from the police through the streets of Chinatown only to be cornered in a seedy bar. Soon thereafter, Warren confesses his part in a plot to rob tourists at the Honolulu airport. Surprisingly, Warren was completely believable as a low life thug preying on unsuspecting tourists.

Warren's other television credits include Magnum PI (Tom Selleck was the second best looking guy on the show); Jake and the Fatman; and One West Waikiki.

In the summer of 2006, Hawaii audiences had the treat of watching Warren appear in a major supporting role to Richard Chamberlain in the Hawaii Opera Theatres fine production of The King and I. I was honored to attend the final performance. I am sure that I was not the only audience member who felt that Warren more than held his own with all of the other fine professional dramatic actors on the stage.

So that is a quick summary of Warren Fabro's major acting accomplishments. Those of you who know Warren, understand that he would never "sing his own praises". That is just one of the reasons that he is such a unique person. So the next time Warren assists you, remember, he is not just an excellent legal professional, Warren is also an accomplished actor.

Welcome to Our New Attorney

2007-04-04T13:24:00.000-07:00

We are pleased to welcome Effie A. Steiger as an associate effective April 3, 2007. Ms. Steiger recently completed a clerkship for the Honorable Stefaney Miley. Ms. Steiger is a 2006 graduate of the University of Nevada - Las Vegas, William S. Boyd School of Law. She graduated from the University of Hawaii in 2002 with her B.A. in Political Science.

Ms. Steiger is licensed to practice law in Nevada and will take the Hawaii Bar exam in August, 2007.

It's Always Nice To Hear "Thank You"

2007-03-30T18:09:00.000-07:00

When you've practiced law for over twenty years, you have to become "thick skinned." Certainly, the legal profession deserves some of the criticism that it receives from the public. However, I believe that many attorneys try to do their best each day to serve their clients and potential clients. I know that I do.

It is always nice to hear from people who are grateful for your assistance. There are two recent examples of which I am proud to share. The first involves an Army specialist with the 1st Battalion, 27th Infantry Regiment. This fine young man will soon be serving our country in Iraq. He had been swindled out of several thousand dollars by a man pretending to be a car dealer. When I learned that my new client was scheduled for a tour of duty in Iraq, I agreed to handle the case "pro bono," a Latin phrase which means "for the public good." In other words, I agreed to do the case for free.

I am happy to report that I was able to obtain title to the car for my client. Although I expected nothing in return, in March 2007, I was honored to receive a Certificate of Appreciation from the 1st Battalion, 27th Infantry Regiment of which my client is a member. I was further honored at a ceremony in which I was asked to speak to the Battalion. The first thing I noticed, was that most of the soldiers were young enough to be my children. Yet, they will soon be risking their lives in Iraq. Although my client was very grateful for my work, as I explained to his battalion, the service that I provided to him was nothing compared to the service that the men and women in the armed forces provide to all of us.

The second example that I would like to share is a very nice letter from a potential client. This potential client is a respected business man on the Big Island of Hawaii. After discussing his case with him, I determined that it would not be cost-effective for him to pay me to fly to the Big Island for his trial. I referred him to a very fine attorney in Kona who I thought would handle his case effectively yet in a more cost-efficient manner. I expected nothing in return. It was my professional duty to advise this potential client of his legal rights. Nevertheless, on March 29, 2007, I received the following letter from that potential client:

"I am taking this time to thank you for the conversation we had and the fact that you actually showed you cared. It meant a great deal to me. It's not often you find people of your quality and caring in the business world. You should be very proud. I know I am proud to have met you."

Obviously, that letter made my day. The next time you hear someone "bad mouth" lawyers, please remember that many of us care a great deal about our profession.

In Defense of Lawyers

2007-01-12T18:26:00.000-08:00

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.

Service of a Complaint in Hawaii

2006-11-28T18:01:00.000-08:00

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)

Things for Which I am Thankful

2006-11-20T19:25:00.000-08:00

This is our ninth Thanksgiving in business. It seems like yesterday that we started this office. It was only a few nights ago that I realized that our ninth anniversary had already passed. Since this is the traditional season to give thanks, I thought it would be appropriate to prepare my list of the things about my legal practice for which I am thankful.

1. I am thankful to all of my clients who have trusted me with their cases. I realize that when you select my office, usually to litigate against much larger law firms, it is because you have faith in me. I am humbled by that trust. You have many options available to you and there are many fine lawyers in Hawaii. Thank you for believing in me.

2. I am thankful that I live in Hawaii. Having practiced law for many years in New York City, I know just how lucky I am to be able to live and work in Honolulu. There is no place on earth I would rather live.

3. I am thankful for my staff. Those of you that have interacted with my staff know what a pleasure it is to work with them. They produce excellent work product and are dedicated to our clients. Almost weekly, a client or a member of the bar tells me how lucky I am to have them working with me. I agree and am grateful.

4. I am thankful that I practice law in the United States. It has been a rough few years for America. Unfortunately, I think we are in for a few more tough years, before things improve. However, never forget that the United States has been an extremely postive force in history. Democracy was a noble experiment when this country was founded in 1776. Today, democracy has spread throughout the world. The Constitution of the United States, particularly the Bill of Rights, is one of the most important documents ever written. Americans take many of those rights for granted. I am thankful that I am part of a legal system that has so effectively protected our civil rights, that Americans are able to take their civil rights for granted.

5. I am thankful that I am a Hawaii attorney. Being a lawyer is not always easy. Still it is a very rewarding job. And if you follow the rules, it is a very noble profession. I am thankful that I have been given the honor and privilege to serve my clients in Hawaii.

Happy Thanksgiving

Make Sure Your Lawyer Has Malpractice Insurance

2006-11-13T17:49:00.000-08:00

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.

A Counselor and An Attorney At Law

2006-11-07T17:04:00.000-08:00

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.

Lawyers Cannot Guarantee Results

2006-11-02T17:16:00.000-08:00

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.

Our Inactivity

2006-11-02T17:14:00.000-08:00

Sorry for the inactivity. We have been experiencing technical difficulties with our blogging capabilities. We think we have corrected the problem and our back on line.

Collecting Your Attorney's Fees in Hawaii

2006-09-19T10:44:00.000-07:00

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.

Summary Judgment in Hawaii

2006-09-12T20:20:00.000-07:00

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.

Unfair and Deceptive Trade Practices in Hawaii

2006-09-05T18:12:00.000-07:00

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.

Mediation in Hawaii

2006-08-29T13:51:00.000-07:00

As most Hawaii Attorneys know, mediation has become a very effective litigation tool in Hawaii. Although mediations occur throughout the United States, the people of Hawaii with their unique cultural history, seem particularly well-equipped to effectively use mediation.

Mediation is a process in which parties to a dispute agree on an impartial third person who guides the litigants to a settlement using various negotiation and/or communication techniques. Although Mediation may serve several purposes, its overall goal is to help the parties settle their own problems.

The selection of the mediator is critical. Parties should look for the following factors in a mediator:

1. The mediator has no conflicts of interests.

2. The mediator has adequate time to devote to the case.

3. The mediator should be able to meet the parties' expectations with regard to timing.

4. The mediator should be completely candid and honest with all aspects of the process.

5. The mediator must be qualified.

If you can be sure that your potential mediator meets these factors, he or she may be right for your case.

2006-08-22T12:40:00.000-07:00

This is the first entry into my legal blog. I have decided to write this blog to discuss issues in the Hawaii legal community that I feel are important. I also hope that my clients, potential clients and friends will learn about my philosophy concerning the practice of law. Therefore, for my initial blog, I felt it prudent to discuss that philosophy.

I graduated from Washington & Lee University School of Law in 1985. At the start of my career I worked for very large law firms on some major cases. In the 1980's, it seemed that a team of lawyers was necessary to handle a big case. Indeed, when I first became an attorney, my job typically was to sit in a law library and perform research for older, more experienced lawyers. Since computer legal research was in its infancy in the 1980's, it was necessary to spend countless hours in large law libraries researching hardbound volumes hoping to find one case that could help your client. Computerized legal research has dramatically changed the practice of law forever.

In 2006, it is not necessary to be represented by a legal team. When I started my own law office in 1997, I decided not to purchase a law library. All of my legal research in my office is performed via the internet. As my clients know, I litigate effectively against much larger law firms. This is a fact. I am able to do so, not because I am vastly superior to other attorneys, but because I use technology. I do not need a team of lawyers to assist me. My clients do not have to finance that team. I believe that this is the future of the practice of law. Technology has changed almost every industry in the world. The legal profession is not immune from the efficiencies of technology.

However, each attorney should be vigilant to ensure that technology improves the services we provide to our clients. Lawyers can serve clients more effectively if we rely upon ourselves, rather than a staff of associates. Of course, recent technological advances can weaken client services. Indeed, it is now possible for an attorney to become more isolated from their clients by being overly dependent on technology. Some lawyers use answering machines and email as buffers between themselves and their clients. It also troubles me that there are lawyers who have their legal documents "ghost" written by attorneys who do not even work for their law firms (or even practice in their jurisdiction). Although technology has forever changed the legal profession, an attorney cannot allow technology to compromise the quality of legal services provided to his or her clients.

So as I enter my new life as a blogger, I am optimistic that this will be a positive force for the discussion of legal issues facing Hawaii attorneys and our clients. I welcome your comments.