HAWSCT's Goldilocks Rule of Appellate Procedure

In Omerod v. Heirs of Kaheananui, No. 27118 (Nov. 15, 2007), a quiet title action, the Hawaii Supreme Court clarified what is required for appellants to properly present their points of error on appeal under Haw. R. App. P. 28. The Court noted that one brief presented too little, while another brief presented too much.  See slip op. at 43-47.

Rule 28(b)(4) requires the appellant to state specific points of error, and point out to the appellate court where in the record the errors occurred and how objections were preserved.  The court noted that the brief of one set of appellants listed only "bald points of error," and provided only "cursory treatment of the points of appeal," and therefore did not comply with the rule.  On the other hand, the court noted that the brief of another set of appellants contained a long narrative, which claimed the whole trial court factual record was erroneous.  This was not the "summary" required by the rule. 

Appellate practitioners should think Goldilocks: not too much, not too little.  The text of Rule 28(b)(4) provides the guidelines:

Each point shall state: (i) the alleged error committed by the court or agency; (ii) where in the record the alleged error occurred; and (iii) where in the record the alleged error was objected to or the manner in which the alleged error was brought to the attention of the court or agency. 

Haw. R. App. P. 28.

The goal: give the court an easy to follow roadmap so it can understand what you claim are the mistakes made by the court below, and so it knows where to find them in the record.  If you don't, the Court may disregard your claims, as it did in this case.  See slip op. at 47.

The court also addressed another issue related to appellate practice, the "burden of persuasion" on appeal.  The appellants claimed that since the appellee's Answering Brief did not respond to an argument in the Opening Brief, the argument was "abandoned and waived."  Slip op. at 59.  The court noted that an appellee is not obligated to respond, and even if it does not do so, the court of appeals may decide that the decision below should be affirmed.  It remains the appellant's burden to demonstrate reversible error by a prima facie showing.  Id. at 61-62.

More on the other issues in the case in a separate post.