Live Blogging The HAWSCT Superferry Oral Arguments 12.18.08

Another reminder: tomorrow morning, the "Hawaii Superferry" litigation is back in the Hawaii Supreme Court Round 2, with oral arguments scheduled to commence at 9 a.m.  I'll be attending the arguments, and technology and typing skills permitting, live blogging it.

Visit this page to sign up for an email reminder, or just visit at 8:45 a.m. on Thursday, November 18, to tune in. You don't need special software, just a web browser.

For those not familiar with appellate oral arguments, here's a short primer/FAQ:

Why oral argument? -  Appellate oral argument has been described as the Court's "conversation with counsel" about the case and the law.  Oral argument can illuminate legal or logical problems not evident from the briefs and which may not otherwise be discovered, distill arguments by testing them, and allow the advocates to respond to the Court’s specific concerns. See, e.g., Blair v. Harris, 98 Haw. 176, 186, 45 P.3d 798, 808 (2002)
(Acoba, J., concurring and dissenting in part) ("A dialogue among the members of the court and counsel, which is the essence of oral argument, enlivens the written briefs, heightens our awareness of what is significant to the parties, and invigorates our analytical senses.").

Questions from the bench - The Hawaii Supreme Court is considered a "hot" court, meaning the Justices have beforehand read the briefs, applicable law, and precedents, and use the argument to ask questions, usually a lot of them. The advocates do not have much opportunity to deliver a scripted argument. This is not like a trial, where the advocates are usually allowed to make an uninterrupted closing argument to the decisionmakers. The Justices' questions are usually very pointed and specific, and may involve what appear to be arcane or technical points. They may also ask hypothetical questions, since the Court is concerned with not only the result in the particular case before it, but the impact of their  decision on the law, if any.

Time - The Court generally allocates 1/2 hour per side, for a total of one hour of argument (which may be extended at the Court's discretion, but it rarely is). If there is more than one party aligned on one side of an argument, the usual practice is to split the half-hour between them. In other words, in this case where there are two appellees (the State and Superferry), unless the Court commands otherwise, they will split 30 minutes.

How many Justices - The Hawaii Supreme Court sits "en banc" meaning all five Justices will consider the case.  With the upcoming retirement of Associate Justice Steven H. Levinson, he has been recused, and Circuit Judge Michael A. Town has been assigned to fill his place on this case.

Parties/Arguments - In this case, there are three major parties, the Sierra Club/Maui Tomorrow, the State of Hawaii Department of Transportation, and the Hawaii Superferry.  There are also at least two appeals or cross-appeals, as far as I can tell: Sierra Club's appeal centering on the constitutionality of Act 2, and the separate issues of whether Sierra Club was entitled to attorneys fees and if so, how much.  I've posted the main briefs on the Act 2 issue along with a repost of the Court's summary of the issues here.  I also may be posting addditional briefs in the case later today, so stay tuned.

Decision time - Last time this case was up before the Court, it issued an order just hours after oral argument. Will that happen again this time around?  Unlikely, although there are no set rules for when the Court must decide a case, so anything is possible. Since the Court became a discretionary review court in 2006 its docket has moved fairly quickly, but last time's "same day" decision was an exception, not the rule.

"Play Ball!" - After the clerk calls the case "(Hear ye, hear ye, hear ye..."), the Chief Justice will signal to the Appellants' attorney, "counsel, you may proceed," and off we go, usually with the traditional introduction by the arguing attorney, "May it please the Court."

Appellant-Appellee-Rebuttal - The arguments usually follow this script: the appellants' attorney leads off, generally reserving a few minutes of his or her 30 minutes for rebuttal.  In rare cases, the attorney simply presents a summary of the case and the applicable law, and asks for whatever relief his client is seeking. After the appellants' attorney's time is up, the appellees do the same, followed by any rebuttal or reply time reserved by the appellants. 

Predictions? - It is a mistake to base a prediction on the outcome or a Justice's vote based on his or her questions.  Often, "devil's advocate" questioning is used to develop the legal and logical contours of an advocate's position, or even to try and communicate via the advocate to a fellow Justice who may not agree with the questioner.