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

Robert Klein