Report of the 2014 Civil Law Forum

• Publication year: 2015
• Citation: Vol. 19 No. 06

Report of the 2014 Civil Law Forum

(Ed. Note: The following Report of the 2014 Civil Law Forum was sponsored by the HSBA Committee on Judicial Administration. The Forum took place on Tuesday, October 21, 2014 at Alitiolani Hale, Supreme Court Building, Room 101. An outline of the Report is noted in the endnotes.¹)

INTRODUCTION

As described in the Hawaii State Bar Association ("HSBA") Board Policy Manual, the Committee on Judicial Administration ("JAC")²

maintains a close relationship with the judiciary on matters of mutual concern to the bench and bar, monitors and formulates recommendations to the Board concerning legislation affecting the judiciary, studies and reports on subjects of judicial conduct and discipline, and coordinates activities of the HSBA relating to improvement of the judiciary and administration of justice.

Following a successful 2013 Bench Bar Conference, the JAC developed a forum concept to focus on certain issues in the criminal area³ and separately in the civil area.⁴ The Civil Law Forum occurred on Tuesday, October 21, 2014 with the participation of 19 judges, seven court administrators, eight guests, and 54 attorneys.

WELCOME

Associate Justice Simeon R. Acoba (ret.) welcomed attendees and remarked that the interaction between the Judiciary and the bar benefits judges, lawyers, and ultimately clients and the public because the dialogue makes the judicial system more efficient and equitable. Justice Acoba thanked the members of the panels, the HSBA Committee on Judicial Administration, and the Judiciary staff. He described the Civil Law Forum as an adjunct to the bench-bar conferences and described the Judiciary's accessible, diligent, and receptive approach to responding to the bar's comments.

OPENING REMARKS

Chief Justice Recktenwald thanked the organizers and attendees. He noted that the earlier bench-bar conferences led to real changes, developments, and advances, including new or proposed rules regarding telephonic appearances, pro hac vice admissions, and electronic devices. Chief Justice Recktenwald has written articles for the Hawai'i Bar Journal explaining what was proposed at the conferences and what the Judiciary has done to respond. The Judiciary's commitment to the Civil Law Forum was reflected in the attendance of all four chief circuit judges and court administrators from across the state. The Civil Law Forum builds on the bench-bar conferences by allowing the Judiciary and bar to discuss issues in greater depth.

Chief Justice Recktenwald put the Civil Law Forum into context nationally. He described the increased focus in the last five years on reforming the civil justice system. For example, a 2009 report by the America College of Trial Lawyers, which includes several thousand attorneys from across the county, concluded that the civil justice system takes too long and costs too much. Having judges more actively involved in case management has always been raised, but the lack of resources is an issue. The 2009 report acknowledged the issue and suggested that the key may be to identify cases for which a higher level of management is appropriate. Certain jurisdictions have started pilot case management programs.

The Hawai4 Supreme Court has looked at reform in the area of electronic discovery. The Court asked the Hawai4 chapter of the American Judicature Society to look at the issue, and a committee chaired by Judge Katherine G. Leonard and William G. McGorriston proposed new rules on the subject. These rules were then considered by the Judiciary's Committee on Rules of Civil Procedure, which recommended rules that will go into effect on January 1, 2015.

Other reforms being considered and implemented outside of Hawaii include new Federal Rules of Civil Procedure that are pending before the Judicial Conference, and an expedited civil action program in Texas for cases worth less than $100,000. Chief justices in other states have formed a task force chaired by Chief Justice Thomas A. Balmer of Oregon that is considering a civil justice reform initiative. The task force will provide its recommendations next year.

Chief Justice Recktenwald asked attendees to share their thoughts on whether these initiatives should be considered for Hawai'i. Some initiatives might be premature at this point, but others, like mandatory initial disclosures pursuant to Federal Rules of Civil Procedure Rule 26, might be appropriate. It would be very helpful for the Judiciary to be informed of the attendees' sense of whether it is time to establish a task force.

But more important than a potential task force is the presence of the attendees at the Forum who convened to share their thoughts on making the civil litigation process fair and efficient in every case. Chief Justice Recktenwald stated that the presence of the attendees was very important to the Judiciary.

I. ENVIRONMENTAL COURT UPDATE

Associate Justice Wilson provided an update on the Environmental Court, which he described as a concept on the verge of being implemented.

Justice Wilson asked attendees to ask themselves why they were in Hawai'i and what they cared about. One concern that has been engraved in the Hawai'i Constitution is the protection of the environment and, more specifically, natural beauty. This concern led to the creation of the Environmental Court. Like Vermont, the only other state with an Environmental Court, Hawai'i has turned to the Judiciary to implement its environmental values. Other values that have been implemented through federal and state judiciaries include safe working conditions, equal treatment of races and genders, and the rights of the accused.

The idea for the Environmental Court was conceived on Maui. The resulting legislation, Act 218, provides a new tool for the Judiciary, but the Environmental Court will really be a new tool for the entire bar. Court matters may include review of environmental impact statements, for example.

Act 218 stated that environmental disputes were dealt with in a variety of courts, leading to inconsistent application of the laws. To provide the necessary vigilance and stewardship, Act 218 created the Environmental Court and assigned it broad authority. Justice Wilson will present a report at the end of December regarding the number of cases that would qualify for the Court and the Court's implementation plan. He asked attendees to provide their constructive criticism and ideas.

Article XI, Section 1, of the Hawai'i Constitution requires a balance between development and the conservation of natural beauty and natural resources. Under Act 218, this balance must be specifically addressed by the Judiciary Article XI, Section 9, protects individuals' environmental rights. Because of these provisions, the Hawai'i Environmental Court will be unique to Hawai'i as well as a model for other states.

Act 218 places responsibility for stewardship of natural resources among the Judiciary the civil bar, and the criminal bar. Statistics show that most of the cases before the Environmental Court will be criminal cases. For example, the Environmental Court will be responsible for enforcing criminal provisions regarding clean parks, clean water, and protections for fish and coral.

Any suggestions by the Bar for the Judiciary would be gladly received.

In response to a question regarding the Environmental Court judges, Justice Wilson noted that Act 218 requires that judges be designated to the court. Designations will be made by the chief judges of each circuit, subject to approval by Chief Justice Recktenwald. Justice Wilson explained that judges will be designated on the district court and circuit court levels. The number of cases that these judges will hear is difficult to determine.

II. DISCOVERY DISPUTES

Summary: The U.S. District Court's Local Rule 37.1 would expedite the resolution of simple discovery disputes while minimizing the burden on trial judges and the fiscal impact on the Judiciary.

Steven J.T. Chow, who co-chairs the HSBA's Judicial Administration Committee with Justice Acoba, provided some background on the committee, which strives for improvement of the Judiciary and the administration of justice. Chow explained that, through Justice Acoba's leadership as co-chair for the last two years, the committee has developed the bench-bar conferences, the Criminal Law Forum, and the Civil Law Forum. Discussions during the bench-bar conferences have led to the development and exploration of new rules. The Judiciary, under the leadership of Chief Justice Recktenwald, has followed up on every topic discussed to explore the feasibility of potential reforms.

One topic discussed was discovery disputes. The bench-bar conferences looked at developing a procedure that would expedite resolution of discovery disputes while minimizing the burden on trial judges and the fiscal impact on the Judiciary. One suggestion was to implement a rule like that of the U.S. District Court's Local Rule 37.1.

Judge Kevin S.C. Chang described the history of Local Rule 37.1. Local Rule 37.1 was drafted by Magistrate Judge Barry M. Kurren after attending a conference on the mainland more than twenty years ago. There is a now a version of Local Rule 37.1 in every federal district court in the country.

Local Rule 37.1 is one of the few federal court rules that would translate well in state court. The rule is effective because it begins with attorney cooperation. Local Rule 37.1(a) requires counsel to confer in good faith to attempt to limit or eliminate the need for a discovery motion or expedited assistance. Counsel must certify compliance with this requirement before they can take advantage of the expedited procedure.

The expedited procedure in Judge Chang's courtroom is for counsel to call the courtroom manager, who sets the deadline for letter briefs in three to five days. Counsel provides simultaneous letter briefs, limited to five pages in length. Some lawyers will incorporate other briefing but, if too much...