Report of the Judicial Administration Committee on the 2015 Bench-bar Conference
| Publication year | 2016 |
Contents:
I. Introduction
A. Professional Courtesy and Civility
B. Principles of Professionalism for I Hawaii Judges
C. Reform of the Civil Justice System
D. Topics Applicable to Civil or Criminal Proceedings
II. Common Questions Discussed
A. Guidelines of Professional Courtesy and Civility for Hawaii Lawyers
1. Circuit Court - Civil Groups 1 and 2 Discussion
2. Circuit Court - Criminal Group Discussion
3. District Court - Criminal Group Discussion
4. District Court - Civil Group Discussion
B. Principles of Professionalism for Hawaii Judges
1. Circuit Court - Civil Groups 1 and 2 Discussion
2. Circuit Court - Criminal Group Discussion
3. District Court - Criminal Group Discussion
4. District Court - Civil Group Discussion
III. Specific Questions Discussed A. Circuit Court Civil Groups 1 and 2
1. Court-Appointed Mediators and Court-Appointed Masters
2. Appointment of Arbitrators and Scope of Powers
3. Compelling or Encouraging Insurers and Other Potentially-Obligated Third Parties to Participate in Court-Ordered Mediation
4. Hoohiki - Online Access to Case Information
5. Reform of the Civil Justice System
B. Circuit Court Criminal Group
1. Transcripts
2. Delay of Judgment Until After a Restitution Hearing
3. Serving Subpoenas Via Email
4. Interpreters
5. Expedited Bail Reports
6. Lack of Parking at First Circuit Court
7. Issuing Bench Warrants for Individuals in Custody
8. Penal Responsibility Issues
9. Single Motion Hearing Days
10. Amendment to Lesser Charges Without Corresponding Reduction in Bail
C. District Court Civil Group
1. Motions to Set Aside Defaults
2. Summary Possession Return Hearings
3. Signatures on Orders
4. Pretrial Briefs
5. Appellate Authority for Civil District Court Cases
6. Issues with Pink/Yellow Correction and/or Bounce Slips
7. Court Calendars
D. District Court Criminal Group
1. JIMS and JEFS Issues
2. Restitution Hearings and Orders
3. Infractions and Underlying Criminal Charges
4. Serving Subpoenas Via Email
5. Piecemeal Trials
6. Designating Courtrooms As "Private" and "PD"
7. Pleading No Contest v. Guilty
8. Miscellaneous Conference Participants
I. INTRODUCTION
The Judicial Administration Committee of the Hawaii State Bar Association ("HSBA') is charged with the responsibility of making recommendations for the improvement of the judiciary and the administration of justice. To fulfill this responsibility the Committee convenes a conference, usually every two years, of lawyers invited by the Committee and judges and administrative court personnel designated by the Hawaii Supreme Court Chief Justice to consider selected matters of current interest to the bench and the bar and to make recommendations for consideration by the HSBA and the Judiciary that the conference participants believe will improve the administration of justice in Hawaii courts.
The 2015 Bench-Bar Conference was held on October 23, 2015, at the Hawaii Convention Center. The participants represented members of the bench and the bar involved in civil and criminal matters in both the circuit courts and district courts in each of the state's judicial circuits. In all, there were 149 participants, consisting of 124 lawyers and 25 judges and court administrators. The Conference was divided into five sections or groups: two groups considered civil matters in the circuit courts, three additional groups separately reviewed civil proceedings in the district courts, criminal proceedings in the circuit courts, and criminal proceedings in the district courts. The separate reports of each section or group (and the combined report of the two circuit court civil groups) are submitted below.
The 2015 Conference considered topics of common interest and importance to all participants, whether they practice or preside in civil or criminal proceedings and whether they do so in the circuit court or the district court.
The common topics were the Guidelines of Professional Courtesy and Civility for Hawaii Lawyers and the Principles of Professionalism for Hawaii Judges.
A. Professional Courtesy and Civility
In 2004, the Hawaii Supreme Court decided that it would attempt to influence the behavior of lawyers in areas that defy rule-making: professional courtesy and professional civility - principally, if not entirely, related to lawyers engaged in litigation. Rule-making generally requires that the conduct required and the conduct prohibited be reasonably definable and not of its nature discretionary or unlimited. Acts of discourtesy are limited only by the imagination of the actor, and lawyers have almost unlimited imaginations. Moreover, the professional behavior that the Supreme Court sought to address is largely discretionary - matters of accommodation and consideration that extend beyond the requirements of the Rules of Court and the Code of Professional Responsibility (for example, granting an adversary an extension of time in addition to the period permitted by an applicable rule).
The Court wisely decided to adopt guidelines. The Guidelines of Professional Courtesy and Civility for Hawaii Lawyers are "aspirational" and were adopted in the hope that they would "assist all in the legal profession and the justice system in conducting themselves in a manner that is fair, efficient and humane."1 One might think that it is demeaning to members of a so-called learned profession to remind them, as the preamble to the Guidelines states, that "[t]he practice of law is an honorable and dignified profession" and provide instruction on matters of courtesy and civility. It would, however, be worse to fail to instruct those in need of such instruction.
The Guidelines admonish lawyers not merely to adhere to the Rules of Court, but, in discretionary matters, to accommodate the interest of others when doing so will not diminish the interest of their own clients. For example, when scheduling various matters, lawyers should "consider the scheduling interest of opposing counsel, the parties, witnesses, and the court" and not "withhold consent to a request for scheduling accommodations"; a "lawyer should agree to reasonable requests for extensions of time when the legitimate interests of his or her client will not be adversely affected"; a lawyer should refrain "from using the mode, timing or place of serving papers primarily to embarrass a party or a witness"; and he or she "should not use any form of discovery, the scheduling of discovery, or any other part of the discovery process as a means of harassing opposing counsel or the opposing party."2
The Guidelines deal with the quality of professional behavior, not compliance with rules. For example, a lawyer's dealing with non-party witnesses "should be courteous and designed to leave the witness with an appropriately good impression of the legal system"; in court, a lawyer "should conduct himself or herself in trial and hearings in a manner that promotes a positive image of the profession, assists the court in properly reviewing the case, and displays appropriate respect for the judicial system"; and the lawyer who manifests courtesy and civility "[d]oes not engage in any conduct during a deposition that is likely to offend others necessarily present and would violate prevalent standards of behavior injudicial proceedings."3
There were clear differences among the participant groups concerning whether professional discourtesy or lack of civility was a problem and whether anything needed to be done to promote or enforce adherence to the Guidelines. The civil circuit court groups were of the view that incivility is rare but not non-existent. There was, however, no consensus among or within those groups as to the magnitude of the problem. On the other hand, the district court civil group reported that for the most part, civility is not an issue. The circuit court criminal group also reported that incivility and discourtesy were not a major problem or a concern among the circuit court criminal lawyers. The district court criminal group expressed concern that motions were being filed without an adequate basis, but did not attribute the problem to a lack of compliance with rules or an improper standard of behavior. Rather, the group believed that problem arose when filing counsel has not yet received or reviewed discovery made available by opposing counsel, and proceeded to consider the potential benefits of pre-trial conferences, setting motion deadlines, and providing discovery electronically.
The circuit court civil groups-the only groups that perceived a problem worthy of significant discussion—identified two types of primary offenders: repeat offenders and young attorneys. It was suggested that a number of steps could be taken to emphasize the importance of the Guidelines and the court's expectation that the Guidelines will be followed. First, judges could attach the Guidelines to the court's trial setting order or other appropriate order and take the opportunity to express the court's expectation that the Guidelines will be followed. Second, seasoned/supervising attorneys could, and should, take responsibility for and guide junior attorneys in adherence to the Guidelines. (With regard to advising lawyers in matters of civility, Judge Gary Chang, in an informal, but entertaining piece in the Hawaii Bar Journal, provided the following: "The mighty [referring to 'strong' lawyers] cast compassion and compliments. The weak hurl insults and one-up-manship. Be the mighty!"4) Finally, more attorneys should advise their clients that adherence to the Guidelines should never be equated with weakness or a lack of vigor in protecting the client's interest.
There was a sharp division within the Conference concerning the status of the Guidelines; that is, whether the Guidelines should continue as standards of behavior, or whether an attempt should be made to convert the Guidelines into specific and enforceable rules. One of the groups...
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