Fundamentals of Prosecuting and Defending Lawsuits in Hawaii - Vol. 3 - Pre-Trial and Alternative Dispute Resolution

PRE-TRIAL EVENTS AND ALTERNATIVE DISPUTE RESOLUTION

No later than eight months after the Complaint is filed, the Plaintiff is required to file a Pretrial Statement.  By this time, the Plaintiff can provide a brief statement of the case, identify potential lay and expert witnesses, and inform the Court about any undisputed factual matters. The filing of a Pretrial Statement triggers multiple deadlines, including the Defendant’s Responsive Pretrial Statement, and the deadline for the Plaintiff to request a trial setting conference with the Court and the parties.

At the trial setting conference, the Court and the parties will compare schedules, discuss their availability, and ultimately select a trial date.  Working backward from the trial date, the Court will file a Scheduling Order setting forth the deadlines for disclosure of expert witnesses, lay witness depositions, written discovery cut-off, dispositive motions practice cut-off, motions in limine, final witness lists, and trial briefs.  Typically, the earliest of these deadlines occur approximately four months prior to trial.

During the months leading up to trial, the Court expects the parties to engage in good faith negotiations for early resolution of the case.  This type of out-of-court process is called Alternative Dispute Resolution and can take the form of Mediation, Arbitration, or even straightforward negotiation among the parties’ and their lawyers.

In Mediation, the parties will hire a neutral person called a “mediator” whose job is to assist the parties in reaching a consensus about how the case should be resolved (i.e., settled).  In Mediation, the parties are usually separated into different rooms.  The parties, who are accompanied by their respective lawyers, speak confidentially with the mediator regarding their case.  The mediator shuttles between the rooms and offers his/her opinion about the strengths and weaknesses of each party’s case.  Depending on the complexity of the case, mediation may take one or more sessions.  Ultimately, a good mediator with well-developed consensus building skills will be able to assist even the most strident parties reach an agreement.

In Arbitration (derived from the word “arbitrary”), the parties agree to hire a neutral person(s) called an “arbitrator” to decide issues of liability and damages.  The arbitrator acts as a judge and a jury, all rolled into one.  Arbitrations are less formal than trials, but usually follow similar rules to ensure a fair process.  This means that the parties are required to exchange evidence, submit an arbitration brief, appear at a mutually agreed upon location where the arbitration will occur, and participate in direct/cross examination and answer any questions the arbitrator(s) may have to aid in his/her ultimate decision.  By prior agreement, the parties are bound by the decision of the arbitrator.  One of the benefits of Arbitration is that it costs less and is faster than trial.

Protecting the Elderly from Financial Exploitation and Other Forms of Abuse

In several cases, the elderly have disinherited family members in favor of recent acquaintances who had befriended the elderly at church, a day-care center, or posing as a licensed medical provider. Some cases involve certain family members exerting undue influence over the elderly for the purpose of disinheriting other family members. Often times, elder abuse occurs when the elderly signs a Durable Power of Attorney, that purports to covey broad powers to the abuser, making financial exploitation highly probable. Other scams involve promising large financial benefits in return for “administrative payments” to the scammers. Protective arrangements may be necessary for the elderly that take certain decision-making functions out of their hands in appropriate cases.

Fundamentals of Prosecuting and Defending Lawsuits in Hawaii - Vol. 2 - Discovery

DISCOVERY: An Overview of a Lawyer’s Tools to Discover Relevant Facts

The second phase of a lawsuit begins when the parties attempt to discover and develop all the relevant facts of the case.  To this end, lawyers have multiple tools at their disposal to conduct “Discovery,” including:  (A) Depositions; (B) Interrogatories; (C) Document Production; (D) Admissions; (E) Expert Testimony.

A.    Depositions

Of all the discovery tools lawyers possess, most people are familiar with depositions.  A deposition is a very formal conversation between a lawyer and an individual (called, a “deponent” or “witness”), in which only the lawyer asks questions and the deponent’s job is to answer the lawyer’s questions.  The deponent’s testimony is made under oath and recorded by a court reporter.  Depositions are limited in scope to seven hours and do not typically occur in court.  Depositions are usually taken in the lawyer’s office or at some location agreed upon in advance.  The deponent is permitted to have a lawyer present at the deposition.  The deponent’s lawyer’s job is to make sure the lawyer conducting the deposition asks relevant, clear, and non-argumentative questions, and to make objections to protect the deponent’s rights and/or privileges.

Any party to a lawsuit may notice and take the deposition of any other party, or any individual or entity that may possess relevant information to the case.  In commercial or business litigation, parties often engage in the practice of noticing a 30(b)(6) deposition, which is a short-hand way of saying a deposition of someone who represents the business entity.  In that situation, the party noticing the deposition must provide the business entity’s representative an overview of the topics that may be covered in the deposition.  This is done to ensure that the business entity’s representative is prepared and capable of answering questions that the lawyer may ask.  This formality does not occur in non-30(b)(6) depositions.

Depositions are used to gather facts and sort through issues that may not have been addressed in depth with the written discovery tools discussed later in this article.  If the case later proceeds to trial, lawyers will often use deposition testimony to point out any inconsistencies with the   deposition testimony and the statements the witness is making at trial to undercut the credibility of the witness.  As a result, preparing for depositions thoroughly and addressing questions clearly and concisely is paramount.

B.     Interrogatories

The term “interrogatory” is a lawyer’s way of saying “written question to another party.” When a lawyer prepares and serves a request for answers to interrogatories, the party served with the request has thirty (30) days to respond under oath.  Almost all parties that reach the discovery phase of litigation will prepare and serve interrogatories on the other parties in the lawsuit.  A party, however, only has sixty (60) interrogatories it can send to each other party.  In other words, a Plaintiff that has sued two defendants can send a total of 120 interrogatories, split evenly among both defendants.  Sometimes, at the very early stages of litigation, a party served with an interrogatory request may not know enough to answer each interrogatory completely.  To prevent prejudice to the requesting party from incomplete interrogatory responses, the answering party is required to supplement its answers on an ongoing basis.  The answering party’s attorney will likely review the responses and interpose objections to the form or scope of a request, or instruct the client not to answer, if answering the interrogatory would violate a privilege such as the attorney-client privilege. 

C.     Document Productions

Yet another useful tool in the lawyer’s toolbox is the Request for Production of Documents.  This discovery device allows a party to force another party to produce documents relevant to the claims or defenses asserted in the lawsuit.  In essence, this type of discovery permits the requesting party to see the responding party’s cards (i.e., relevant communications, documents, reports, emails, photographs, etc.).  Subpoenas duces tecum, a related discovery tool, can be used when a party seeks to obtain documents from an individual or entity not involved in the litigation.  A party that receives a request for documents is required to perform a thorough search of all sources and produce documents responsive to the request.  The right to refuse or withhold production of certain types of documents is extremely limited.  Only in circumstances where producing a document would violate law or one of the responding party’s privileges can a document be withheld.  The party refusing to produce the document must create a “privilege log” that describes the document or communication withheld without revealing its content.  Unlike interrogatory requests, a party may, subject to objection, propound an unlimited number of document requests. 

D.    Admissions

A party may serve Requests for Admissions upon another party in the lawsuit.  Requests for Admissions, or Admissions in short, is a method of targeting brief, binary, questions to another party.  The responding party may either “admit” or “deny” the requesting party’s statement, or respond by explaining why it can neither admit, nor deny the matter.  Admissions are used to pin down undisputed facts and winnow the factual field down to the core disputed issues.  Moreover, Admissions are commonly used to authenticate documents that may be used as evidence in trial. This has the benefit of reducing trial time and focusing the litigation. 

Notice to Hyundai and Kia Automobile Owners

If you own a 2011-2012 Kia Sportage vehicle or a 2011-2013 Hyundai Tucson, they may leak oil from a defective oil pan causing engine damage, fires, and even a crash should the engine fail at high-speeds. Certain Hyundai Sonatas and Santa Fe vehicles could have similar defects. At one point, more than three (3) million Hyundai and Kia vehicles were at a risk for engine fires that could have devastating effects.  Please contact us if your vehicle has suffered engine failure or been involved in a vehicle fire.

Fundamentals of Prosecuting and Defending Lawsuits in Hawaii - Vol. 1 - Pleadings

Admittedly, there are multiple different types of cases, adjudicated in various State Courts in Hawaii, so this series of posts attempts to decode the elements common to all.  Boiled down, a lawsuit involves the following five primary phases: (1) Pleadings; (2) Discovery; (3) Pre-trial Preparation and/or Alternative Dispute Resolution; (4) Trial; and (5) Post-Trial.  Please take note that for the purposes of this series, we will not delve into the appellate process, which occurs if one or both litigants (i.e., the parties involved in the lawsuit) elects to appeal a judgment or order of the Court.

PLEADINGS

A lawsuit begins when an individual or entity (such as a corporation) files a Complaint.  All lawsuits involve disputes among “parties,” which refers, collectively, to the Plaintiff and Defendant.  As their names suggest, the party who files the Complaint is called “Plaintiff,” and the responding party is called “Defendant.” 

The Complaint describes in broad strokes what the dispute between the parties is about, and typically sets out various legal or equitable “claims.”  Once the Complaint is served on the Defendant, the Defendant has twenty (20) days to file an Answer to the Complaint.  The Defendant, however, is not limited to only playing defense, it has the right to pursue a Counterclaim against the Plaintiff, if the Counterclaim is related to the Complaint.  

When a Plaintiff sues multiple Defendants, the Defendants can assert Cross-Claims against each other to shift potential liability.  If a Defendant believes another party is responsible for the dispute, but that party is not already a Defendant in the lawsuit, then the Defendant can file a Third-Party Complaint to bring in the absent party, thereafter called a “Third-Party Defendant.”

The pleadings phase typically concludes once all known parties have been served and are properly before the Court.

Why You Should Purchase Optional Uninsured/Underinsured Motorist Coverage

What is Uninsured/Underinsured Motorist Coverage?

Under Hawaii law, each auto insurance policy must include liability coverage of at least $20,000/person, $40,000/accident. Your liability coverage pays damages to others resulting from your covered negligence. Uninsured Motorist (UM) and Underinsured Motorist (UIM) coverage is essentially the “mirror image” of liability coverage. UM/UIM coverage protects you, other people named as insured under your policy, and your resident relatives from the negligence of others. Although UM/UIM coverage is optional under Hawai‘i law, insurers are nonetheless required to offer the coverage on every auto policy. To reject UM/UIM coverage, you must sign or initial a form confirming your rejection. If your current policy lacks UM/UIM coverage, it’s because you expressly chose not to buy it.

Reasons to Buy (Or Buy More) UM/UIM Coverage

1. Uninsured drivers are a significant problem in Hawaii. Check the dockets of Hawaii’s District Courts. Moreover, many vehicle owners can afford only the required minimum automobile liability insurance coverage ($20,000/person, $40,000/accident). That minimum coverage is frequently insufficient to fairly compensate victims of negligence. If you are seriously injured in an auto accident, the fair value of your liability claim against a negligent third-party could easily exceed the $20,000/person, $40,000/accident minimum on his or her auto policy.

2. Liability coverage usually comes with aggregate “per occurrence” or “per accident” limits in addition to “per person” limits. That means, if more than two injured people are covered by the same policy in the same accident, they will be forced to apportion the “per accident” limit and no one claimant can recover more than the per person limit. In other words, the more people injured at the same time under the same coverage, the less money each injured person can potentially recover in compensation. The maximum size of the pie is fixed; how much coverage each person can access is dependent on the number of slices and the size of the slice to which each person is arguably entitled.

For example, consider the horrific motor-vehicle/pedestrian collision on January 29, 2019 at the intersection of Kamakee Street and Ala Moana Boulevard. The driver of a pick-up truck allegedly lost control of his vehicle and hit several pedestrians waiting to cross the street, killing three and seriously injuring five others. Even if the allegedly negligent, intoxicated driver carried a responsible amount of auto liability insurance—say, with limits of $100,000/person, $300,000/accident—the five people seriously injured would be forced to share the total $300,000 per accident policy limit with the families/estates of the three people killed. In this sort of tragic situation, the surviving victims and families of the deceased end up grossly undercompensated for their losses, especially the wrongful death claimants. The hypothetical policy would pay out no more than $100,000 per death under the driver’s liability coverage, but under the circumstances the families/estates of the deceased would ultimately get even less after apportioning the $300,000 per accident limit among all other claimants.

3. UM/UIM coverage, similar to no-fault PIP coverage, often travels with you, protecting you and others insured under your policy when not in your insured vehicle. If you, others insured on your policy, and/or your resident relatives are injured while cycling, walking, or traveling in the vehicle of another, you will probably be able to access your UM/UIM coverage if there is no or insufficient coverage available through the negligent driver and/or through any other applicable automobile policies.

4. UM/UIM coverage stacks on top of any applicable liability coverage. For example, say that you have UM/UIM policy limits of $100,000/$300,000. If you are injured by a negligent driver with the same limits under his or her liability coverage, you will be able to access up to an aggregate $200,000 for any injuries you suffer ($100K from the negligent driver’s policy and another $100K under the UM/UIM coverage on your policy). Your UM/UIM coverage begins paying when the liability coverage exhausts and will pay out up to the full amount of the coverage. Hawaii law on UM/UIM stacking is different from other states. For example, in California UM/UIM coverage gets “credit” for any amount paid by the underlying liability coverage, so the total amount you can recover under both policies will not exceed the limits of your policy. Lucky we live Hawai‘i.

5. Most insurance companies will give you the option to stack the UM/UIM coverage on your policy if you have more than one vehicle covered under that policy. In addition to UM/UIM coverage stacking on top of liability coverage, you can also elect to stack your UM/UIM coverage on your own policy. Such stacking multiplies the policy limits by the number of vehicles covered under the policy. For example, if you have three vehicles on a policy with UM/UIM limits of $20,000/$40,000, electing to stack the UM/UIM coverage results in effective policy limits of $60,000 per person, $120,000 per accident. Of course, stacking will also result in a higher premium, but the increase in premium will be less than if you did not stack and increased the policy limits to limits of $60,000/$120,000.

Why You Should Consider Buying More No-fault PIP Coverage

If you have automobile insurance in Hawaii, you probably know that Hawaii law requires you to carry a minimum of $10,000 in no-fault personal injury protection (“PIP”) coverage. PIP is optional on motorcycle policies. If your budget will allow, there are several reasons why you should consider increasing your PIP coverage.

What is no-fault PIP?

No-fault PIP, as the name suggests, covers the cost of medical treatment for injuries suffered in a motor vehicle accident regardless of who is at fault. PIP covers you and your passengers in your insured vehicle. PIP also covers health care treatment for pedestrians, bicyclists, and moped operators who are injured by a third-party’s insured vehicle.

Reasons to Buy More PIP

1. Dollar-for-dollar, PIP is arguably the best deal in insurance. Most automobile insurers sell extra PIP coverage in increments of $10,000, up to a limit of $50,000 or even $100,000. Purchasing extra PIP is generally inexpensive compared to other types of insurance, and PIP covers the activity which, for most people, poses the single greatest risk of traumatic bodily injury—motor vehicle use. If you have a good driving record, buying more PIP might add only a few dollars to your annual car insurance premium while significantly increasing your protection against the risks posed by uninsured and underinsured drivers.

2. The minimum required PIP coverage is insufficient protection when the cost of health care is rising much faster than the general rate of inflation. If you are seriously injured an automobile accident, you will likely require paramedic care and ambulance transportation to a hospital, examination by multiple doctors, and extensive testing, including pricey MRI and CT scans. You may also need surgery to repair fractures and/or need to stay one or more nights in a hospital. The cost of such care can exhaust $10K of PIP coverage within just hours of an accident.

3. PIP is often portable—you don’t need to be in your insured vehicle for your PIP to cover automobile-related injuries. If you are a pedestrian, cyclist, or moped operator injured by an uninsured driver, or you are injured while a passenger in an uninsured vehicle, your PIP will usually cover you. Plus, PIP can act as secondary coverage if you purchase more than required by law. With the rising rates of pedestrian-automobile accidents in Hawaii, if you are a pedestrian hit by a vehicle with only minimum PIP coverage, and you have purchased $50,000 in PIP on your own auto policy, your PIP will begin paying once the driver’s PIP coverage is exhausted, adding $40,000 for medical care if you need it.

4. PIP usually has no “per occurrence” coverage limit. What this means is that PIP coverage limits are usually “per person per accident,” so every injured person can access the full amount of the coverage, no matter how many people are injured. That differs from other types of automobile insurance, such as liability coverage, which is generally sold with a “per occurrence” or “per accident” maximum, despite the number of people injured. For example, if you and your three passengers are injured in an accident in your vehicle covered by $20,000 in PIP, all four of you will each have $20,000 in PIP available to pay resulting medical expenses.

5. PIP covers alternate forms of treatment often not covered by standard health insurance. Most private health insurance plans and government plans such as Medicare either do not cover chiropractors, massage therapists, and acupuncture, or the they charge an additional premium for doing so. PIP, however, usually covers such alternate therapies, giving injured people more options for recovery.

6. PIP usually pays 100% of the cost of reasonable and necessary treatment incurred within 72 hours of a covered accident, up to the coverage limit, and unlike most health insurance plans, PIP generally does not have any deductible or co-pay requirement. (After 72 hours, PIP pays based on the worker’s compensation fee schedule, a drawback discussed below. Some insurers will slightly reduce premiums if you elect a deductible or co-pay on your PIP coverage—an option you should decline because the miniscule savings do not justify the added risk.)

7. You probably won’t need to reimburse your automobile insurer for PIP payments from a bodily injury settlement. If your injuries are caused by a negligent third party, and you are paid to settle your resulting liability claim, most health insurance plans, whether public or private, will seek reimbursement from you for any benefits duplicated in the settlement (i.e., you will not be able to get double recovery). If your health insurer pays bills for which you later recover money in settlement, your health insurer will ask you for a refund. If you settle your case for general damages only, net of the covered loss deductible, however, most auto insurers will not pursue a reimbursement claim for PIP benefits paid.

8. The statute of limitations (SOL) for any third-party personal injury claim related to your PIP covered treatment is extended to two years from the date of the last PIP payment. Depending on the extent of your injuries and the duration of your treatment, the more PIP coverage you have, the longer the (SOL) will be extended after the date of the motor vehicle accident.

Although there are many compelling reasons to increase your PIP coverage, PIP has a few downsides and potential pitfalls which you should be aware of:

As mentioned above, do not select the deductible, co-pay, or managed care options on your PIP coverage, if your insurer offers them. You will save very little on your premium and regret the choice if you are injured and need to use the coverage.

Some doctors and other health care providers will not accept PIP beyond the first 72 hours following an auto accident, during which period PIP pays the full “retail” amount billed. As mentioned above, for treatment rendered outside the 72-hour window, PIP pays claims based on the highly discounted worker’s compensation fee schedule established by the State. If you need long-term rehabilitative care, such as physical therapy, you will need to find a provider that accepts PIP. Be prepared to call around.

No matter how much PIP coverage you carry on your auto policy, be aware that your treatment, depending on the severity of your injuries, could exhaust your PIP coverage. As you treat for your injuries, you need to be aware of how much PIP you have remaining available and be sure to inform your health care providers to begin billing your personal health insurance plan when and if PIP exhausts. If you fail to advise your health care providers to begin billing your personal health plan upon PIP exhaustion, you may get stuck paying the bills yourself. Most private health plans will reject claims for charges more than one year old.

Why contingent fees in injury cases benefit clients

Personal injury cases are torts—wrongful acts, whether intentional or accidental, that result in an injury to another person. Attorney fees in tort cases are usually incurred on a contingency basis. That means the attorney fees, which are usually a percentage amount, are paid out of any settlement, judgment, or award achieved by the lawyer for the client. If there is no recovery, no attorney fees are owed. This arrangement offers peace of mind to the client, reflects the investment an attorney necessarily makes in a tort case, and ultimately results in a fair apportionment of any recovery obtained.

The contingency fee often varies depending on the specific type of case. In motor vehicle collision cases, the standard fee is one-third (33.33%), while in other situations, such as trip-and-fall and medical malpractice cases, the fee can range up to 40% or more. The difference in fee reflects the relative difficulty of the type of case. For example, liability in motor vehicle collision cases is usually easier to prove, especially where a police report squarely ascribes liability on one or more other parties. Medical malpractice cases, however, can be much trickier and demand more time, effort, and expertise from a lawyer. It is also commonplace for the contingency fee to increase if the case goes to trial, because preparing for and conducting a trial can consume weeks of a lawyer’s time.

The benefits of a contingency fee arrangement to the client are manifold:

Because no attorney fee is earned if no recovery is obtained, the client can be sure his or her attorney believes the case has merit and that damages sufficient to justify the attorney’s efforts can be recovered. There is no danger an attorney will take the case merely to bill hours or needlessly drag out litigation in the face of a fair offer to settle.

The interests of the client and the lawyer are clearly aligned: both want to achieve maximum fair value of the tort claim because the lawyer’s fee is a fraction of the amount recovered. The larger the settlement, award, or judgment, the better the client is compensated and the more the attorney earns.

No matter how many hours the attorney invests in the case, the attorney fee will never be higher than the percentage agreed in advance. There is no danger that attorney fees will consume the recovery.

Overall, contingency fees promote trust between attorney and client by creating a common interest and objective.