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Tuesday, November 28th, 2006
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)
Tags: Civil Procedure and Trial Practice, Commercial Litigation, Complaint, Hawaii, Hawaii Real Estate Litigation, Hawaii Rules of Civil Procedure, Rule 4 of the Hawaii Rules of Civil Procedure, Rule 4(1) - (8) of the Hawaii Rules of Civil Procedure, Service, Service Complaint Corporation, service complaint partnership, Summons, The Legal Profession
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Monday, November 20th, 2006
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.
Monday, November 13th, 2006
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.
Tuesday, November 7th, 2006
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.
Thursday, November 2nd, 2006
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.
Thursday, November 2nd, 2006
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.
Tuesday, September 19th, 2006
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.
Tuesday, September 12th, 2006
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.
Tags: Civil Procedure and Trial Practice, Commercial Litigation, Hawaii Real Estate Litigation, The Legal Profession
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Tuesday, September 5th, 2006
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.
Tags: Civil Procedure and Trial Practice, Commercial Litigation, Hawaii Real Estate Litigation, The Legal Profession
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Tuesday, August 29th, 2006
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.