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Archive for 2010

Our Firm at HSBA Annual Dinner

Saturday, November 13th, 2010

On November 6, 2010 the Hawaii State Bar Association held its annual dinner.  Our office was honored to purchase a table for such a worthy event.

Proceeds from this event benefited Volunteer Legal Services Hawaii as well as Young Lawyer Division (“YLD”) Service Projects. 

Two YLD continuing service projects are “Disaster Assistance Relief Manual,” which provides legal assistance to victims of disasters in Hawaii  and “Junior Judges.”  The Junior Judges Project is a program for the keiki, its purpose is to teach 3rd through 5th grade students facing tough choices to make good decisions.  It addresses such issues as cheating, destroying property, bullying, teasing, stealing, drugs and alcohol, and gangs and weapons.

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Civil Rights 42 U.S.C. § 1983

Tuesday, November 9th, 2010

The Bill of Rights, the first ten amendments to the United States Constitution, is a list of limitations on the Federal government’s power.  The Bill of Rights protects “unalienable rights” such as freedom of speech, press, association, and assembly.  Additionally, it provides for guaranteed procedures for those suspected or accused of committing crimes.  These include the right to be free from unreasonable searches and seizures, prohibitions of cruel and unusual punishment, and right to a speedy, public trial by an impartial jury.  Moreover, almost the entire Bill of Rights applies to the individual states (one exception is the 7th Amendment guarantee to a jury in a civil trial). 

Traditionally, the Bill of Rights was used as a shield.  That is, when a State or Federal government infringed on a person’s rights, the person whose rights were infringed upon would invoke a particular amendment at either a criminal or civil trial to prevent the government from taking the infringing action, or exclude evidence gotten through improper criminal procedures. 

 The Civil Rights Act of 1871 turned the Bill of Rights from a shield into a sword.[1]  Originally enacted to combat the Klu Klux Klan, the Civil Rights Act of 1871 creates a private right of action in Federal Court for a person whose civil rights have been violated.  42 U.S.C. § 1983 says the following:

 Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, Suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

 At the most basic level, in order for a plaintiff to have a 1983 claim, two prongs must be satisfied: (1) the person they are suing must have acted “under color” of state law, and (2) the plaintiff must have been deprived of a Constitutional or a federal statutory right.  It is important to note that 1983 operates against a person acting under color of state law who deprives a plaintiff of their federal or Constitutional right.  A claim against a person acting under color of federal law who deprives a plaintiff of their federal or Constitutional right is called a Bivens Action

 Finally, a successful § 1983 plaintiff can recover reasonable attorneys fees.  42 U.S.C. § 1988 states that “[i]n any action or proceeding to enforce a provision of section. . . 1983. . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs. . . .”

[1] See Marshall S. Shapo, Constitutional Tort: Monroe v. Pape and the Frontiers Beyond, 60 NW. U. L. Rev 277, 322 (1965).

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Hawaii’s 50th Traffic Fatality

Wednesday, November 3rd, 2010

We are saddened to report that according to today’s edition of the Star Advertiser, a 45 year old woman was struck by a vehicle yesterday morning at about 10:50 am near Waianae High School.  According to the article, she was crossing Farrington Highway near Alawa Place and died at Waianae Coast Comprehensive Health Center as a result of the accident.  The article also stated that she was Oahu’s 50th traffic fatality this year, up from 46 traffic fatalities this time last year.

You can find the article at: http://www.staradvertiser.com/news/breaking/106604978.html#

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Hawaii Injunctions

Saturday, October 30th, 2010

In Hawaii (and all around the U.S.), motions for injunctive relief are frequently used in matters where a party is attempting to seek some form of relief other than money.  For instance, an injunction was recently requested in HGEA v Lingle, 239 P.3d 1 (Hawai‘i, September 8, 2010) whereby the HGEA requested an injunction to prohibit the Governor from imposing furloughs on public employees.  In Hawaii Federal Court, “a plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”  Yamada v Kuramoto, CV. No. 10-00497 JMS LEK, 2010 WL 3984702, *2 (D. Hawaii, October 7, 2010).  A preliminary injunction, therefore, only “may issue where the likelihood of success is such that serious questions going to the merits are raised and the balance of hardships tips in plaintiff’s favor” and the other two elements (i.e. (i) irreparable harm and (ii) the injunction is in the public interest) are met.  Id. (citations, brackets, and quotations omitted).  However, “injunctive relief is an extraordinary relief that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.”  D.K. ex rel. Kellet v Lingle, CV. No. 09-00507 DAE LEK, 2009 WL 3415353, *1 (D. Hawaii, October 22, 2009). 

In examining the above mentioned factors, “courts have consistently noted that because a showing of probable irreparable harm is the single most important prerequisite for the issuance of a preliminary injunction, the moving party must first demonstrate that such injury is likely before the other requirements for the issuance of an injunction will be considered.”  Dominion Video Satellite, Inc. v Echostar Satellite Corp., 356 F.3d 1256, 1260 (C.A. 10 (Colo.), 2004)(quotations and citations omitted)[1].  With respect to the injury requirement, “the party seeking the injunction must demonstrate that it will be exposed to some significant risk of irreparable injury . . . .  A plaintiff must do more than merely allege imminent harm sufficient to establish standing, he or she must demonstrate immediate threatened injury as a prerequisite to preliminary injunctive relief.”  Whitman v Hawaii Tug and Barge Corporation 27 F.Supp.2d 1225, 1229 (D. Haw., 1998).  Moreover, the law is well settled that “purely monetary injuries are not normally considered irreparable.”  Lydo Enterprises, Inc v City of Las Vegas, 745 F.2d 1211 1213, (C.A.Nev. 1984) citing Los Angeles Memorial Coliseum Comm’n v National Football League, 634 F.2d 1197, 1202 (9th Cir. 1980). 

In Hawaii State Court, “[t]he test for granting or denying temporary injunctive relief is three-fold: (1) whether the plaintiff is likely to prevail on the merits; (2) whether the balance of irreparable damage favors the issuance of a temporary injunction; and (3) whether the public interest supports granting an injunction.” Nuuanu Valley Ass’n v. City and County of Honolulu, 119 Hawai’i 90, 106 (Hawai‘i, 2008) citing Office of Hawaiian Affairs v Hous.  Cmty. Dev. Corp. of Hawaii, 117 Hawaii 174, 211 (2008). “[T]he more the balance of irreparable damage favors issuance of the injunction, the less the party seeking the injunction has to show the likelihood of success on the merits.”  Id.

[1] The reader should be aware the case Dominion Video Satellite, Inc. v Echostar Satellite Corp. was relied upon and cited by the Hawaii Federal Bankruptcy Court in In re Hawaiian Airlines, Inc., Bankruptcy No. 03-00817, 2006 WL 2864921, *5 (Brktcy. D.Hawaii, October 5, 2006).

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Philip R. Brown selected to Honolulu Magazine's Best Lawyers in Hawaii

Thursday, October 14th, 2010

Hawaii attorney Philip R. Brown was recently included in Honolulu Magazine’s 2010 edition of The Best Lawyers in Hawaii. 

Philip Brown is also listed in The Best Lawyers in America under Commercial Litigation. Mr. Brown also 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.

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Negligent Infliction of Emotional Distress in Hawaii

Thursday, October 7th, 2010

Negligent infliction of emotional distress (NIED) is an independent tort claim which arises when a tortfeasor causes emotional distress to another person resulting in a manifestation of physical injury.

Historically, a Plaintiff alleging a NIED claim was required to demonstrate that he suffered emotional distress which resulted in a physical injury.  In 1970, the Supreme Court of Hawaii held, in the landmark case Rodrigues v. State, that a claimant could bring a NIED claim based solely out of damage done to his home – the first state to abandon the physical injury requirement.  Rodrigues v. State, 52 Haw. 156, 172-74 (1970).  However, in 1986, the Hawaii State legislature abolished this cause of action, stating that “no party shall be liable” for NIED that “arises solely out of damage to property or material objects.”  H.R.S. § 663-8.9. 

In essence, a Plaintiff alleging damages for Negligent Infliction of Emotional Distress must demonstrate that there was a physical manifestation of the emotional harm.  Soone v. Kyo-ya Co., Ltd. 353 F.Supp.2d 1107, 1118 (D.Hawaii 2005).  There are, however, at least three exceptions to this rule, which have been specifically created by Hawaii courts.  These exceptions include where the plaintiff was exposed to HIV positive blood (John & Jane Roes, 1-100 v. FHP, Inc., 91 Hawai’i 470, 475-76 (1999)); where the defendant mishandled the corpse of the plaintiff’s loved one (Guth v. Freeland, 96 Hawai’i 147, 153-54 (2001)); and where parents’ child was molested by a teacher previously accused of child molestation (Doe Parents No. 1 v. State, Dept. of Educ. 100 Hawai’i 34, 69-71 (2002)).

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The Hawaii Dam Safety Act

Saturday, October 2nd, 2010

We successfully represented property owners damaged by the Ka Loko Dam breach that occurred on Kauai on March 14, 2006.  See our previous blogs dated  November 3, 2009 (http://legalblog.hawaii-attorney.net/2009/11/) and September 26, 2007 (http://legalblog.hawaii-attorney.net/2007/09/26/the-kaloko-dam-case/).  The Ka Loko Dam breach killed seven people.  The Dam Safety Act (HRS § 179D-1, et. al.) was revised in 2007 as a result of the Ka Loko Dam breach.  According to an article by KHON2, the State of Hawaii is planning to hold statewide hearings about proposed new dam regulation.  Ideally, these proposals will provide more effective regulations and oversight for existing dams and for the construction of new dams in Hawaii.  Please find below a link to this KHON2 article for more details. 


These hearings are long overdo. 

The Dam Safety Act provides that “the Legislature finds and declares that the inspection and regulation of all dams or reservoirs are properly a matter of regulation under the police powers of the State.”  HRS § 179D-2 (as amended in 2007).

The Legislative History of the Dam Safety Act succinctly states as follows:

This Bill provides for the inspection and regulation of construction, operation and removal of certain dams in order to protect the health, safety and welfare of the citizens of the State by reducing the risk of failure of such dams.

S.C. Rep. 325 Haw. House. Stand. Comm. Rpt. 365, Reg. Sess. (1987).

To fulfill this purpose, the Hawaii Legislature created certain procedures and duties to the board to affirmatively regulate dams in this State which are contained in HRS § 179D-6 (amended in 2007). 

Hopefully, the hearing will produce dam regulations and oversight far superior than those that existed prior to March 14, 2006 and those amended in 2007.

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Electronic Filing in Hawaii

Saturday, September 25th, 2010

Hawaii Courts Should Transition to “Paperless”

In the legal profession, we use an inordinate amount of paper.  All Hawaii attorneys should move toward a “paperless office” by utilizing the technology of scanning documents and electronic storage of documents.  Indeed, the use of electronic versions of documents has become increasingly sophisticated.  Electronic scanning of documents saves paper and helps the environment.  We continue to use our best efforts to go as “paperless” as possible by, among other things, storing files electronically and sending correspondence and documents via email transmittal.

Approximately four years ago, the Federal Court converted to electronic filing.  Rule 5.3 of Local Rules of Practice for the United States District Court for the District of Hawaii states as follows:

LR 5.3. Electronic Filing.

Pursuant to Fed. R. Civ. P. 5(d)(3), papers may be filed, signed, and/or verified by electronic means consistent with (a) these rules; (b) technical standards, if any, that the Judicial Conference of the United States establishes; and (c) any administrative procedure adopted by a general order of this court. A paper filed by electronic means in compliance with this rule is equivalent to a written paper for purposes of applying the Federal Rules of Civil Procedure and the Local Rules.

LR 5.3

This system allows attorneys to file documents online.  In order to do so, an attorney must take a mandatory class with a District Court to be trained in the practice of electronic filing.  Each of our attorneys and staff has completed this class.  The ease and convenience of electronic filing in the Federal Court is of enormous benefit and cost savings to our clients.  In the past, attorneys practicing in the Federal Court had the option of filing after “closing hours” only by depositing documents at a designated location by the entrance of the Federal Court.  Although this “drop box” allowed Hawaii attorneys to file documents after the closing of the clerk’s office, multiple paper copies of each filed document were submitted.  This was an enormous environmental waste.  By contrast, electronic filing allows an attorney to file any document online by scanning the document electronically and submitting it for electronic filing with the Federal Court.  Moreover, because of electronic filing, an attorney does not have to serve paper documents on opposing parties or counsel so long as the opposing party or counsel is also registered with the Court to file documents electronically.

This saves the cost of producing and serving paper copies of documents.  Moreover, because of electronic filing, attorneys across the nation can access documents filed electronically with the Federal Court for a nominal charge.  This practice also saves costs for the time it would normally require attorneys and staff to physically view files at the Federal Court’s clerk’s office and allows us to conduct research anywhere via the internet.

Finally, cases filed in Federal Court may be monitored electronically on the PACER website.  In fact, some of our clients have signed up with this service simply so that they can monitor decisions as soon as they are filed by the Court.  Obviously, this allows the client more access to the Court system.  These benefits of electronic filing are available in the Federal Court system.

Regrettably, the Hawaii State Court system has not yet adopted electronic filing. The Hawaii State Court system should encourage this transition.

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Hawaii Attorneys Are Entitled to Fees In Collection of their Attorneys’ Fees

Thursday, September 23rd, 2010

“Generally, under the ‘American Rule’ each party is responsible for paying his or her own litigation expenses.”  Hall v. Laroya, –P.3d —, 2010 WL 3438726, *3 (Hawaii App., September 2, 2010)(citations omitted).  However, in Hawaii, Haw. Rev. Stat. §607-14 allows for an award of attorneys fees to the prevailing party “in all actions in the nature of assumpsit.” Haw. Rev. Stat. §607-14.  The amount of attorneys fees awarded pursuant to Haw. Rev. Stat. §607-14 “shall not exceed twenty-five percent of the judgment.”  Id

 Actions “in the nature of assumpsit” are generally actions that arise out of a contract (ie. breach of a contract).  As such, the Hawaii Intermediate Court of Appeal held on September 2, 2010, in Hall v. Laroya, that when a client promises to pay for legal services to his or her attorney, the “action to collect the fees he owes is ‘in the nature of assumpsit.’”  Hall v. Laroya, –P.3d —, 2010 WL 3438726, *3.  The Hawaii Intermediate Court of Appeal, in Hall v. Laroya, reviewed case law and the legislative intent of Haw. Rev. Stat. §607-14 and stated that case law, the broad language of Haw. Rev. Stat. §607-14, and the legislative history of the statute “support a determination that the award for attorneys’ fees is allowed where an attorney represents his or her firm in an assumpsit action.”  This, in turn, means that attorneys can recover attorneys fees accrued in their own action for the collection of attorneys fees.  So, if a party fails to pay their attorneys’ legal fees, the attorney may attempt to collect his or her fees from the client for the client’s action (if the clients’ action is in the nature of assumpsit) as well as collect for the fees that that attorney accrued in bringing and litigating the action to collect his or her fees. 

 *Please note that the opinion from Hall v. Laroya, –P.3d —, 2010 WL 3438726 (Hawaii App., September 2, 2010), which is discussed at length above, has not been released for publication in the permanent law reports as a petition for reconsideration in the Court of Appeals or a petition for Certiorari in the Supreme Court may be pending.

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Musings of a New Hawaii Lawyer

Tuesday, September 21st, 2010

Justin Chu recently joined our office.  I have asked Justin to periodically blog about his observations during his first year as an attorney.  The following is a such blog: 

A student transitioning from law school to first year attorney gets a sudden and unexpected lesson in physics – he learns about the relative value of time. 

In law school, the amount of time a student spends on studying or working on a particular project is a badge of honor.  Peers revere the library “weekend warrior,” whose battle wounds of baggy eyes, unkempt hair, and coffee stained teeth evidence their commitment to being the best in class.  Indeed, even if the immense amount of time spent in preparation does not result in the top grade or a winning mock trial argument, the student finds some comfort in knowing despite being beaten, he was not outworked.

 As I’ve transitioned from law school to law practice, I have learned that the way I work is different.  While hard work is certainly expected, I have learned that there is no virtue on spending a time working on a project that yields little benefit to the client.  Much like a poker player, who knows that having poker chips of high value is just as important as accumulating many of them, I am learning that the value of my work, and its contribution to the case at hand, is more important than simply accumulating billable hours.

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