 Hey, we're back. We're live. I'm Jay Fidel. This is Think Tech Hawaii. And it's a Monday morning at 10 a.m., and we're doing life in the law because we like lawyers. We like life in the law. We think it's important for the community. And we are ramping up for the pro bono celebration on October 9th. Better be there. These three guys are going to tell us about it. We're calling this show Elder Law and Appellate Mediation and Pro Bono Programs. It's like a scrambled egg kind of program. We get everything. So let's see where we begin. Let's begin with Ann Marie. Good morning, Ann Marie. Thank you for joining us on Think Tech. Good morning, J.N. Thank you for having us. Thank you for recognizing our Appellate Mediators at the Appellate Mediation Program. Well, let's talk about that. So you have, you know, you have appeals. There are a lot of appeals. There's the Intermediate Court Appeals and there's the Supreme Court of Appeals, if you will. And those are hard fought cases. Obviously, somebody is unhappy with the result below. Usually, it snows to nose and there ain't no love there. On the other hand, in mediation, you try to make some love. You try to bring it together and make people see that the greater good. And you're running that program. Tell us about it. Well, the program started in 1995 and it was actually to rebuild confidence in the court system. And we need that now as much today as we did that many years ago. So it is also put into place to bring, to offer more access to justice because it's a different sort of access to justice. We're giving people a chance for a more, a process that they are involved in the outcome. And so they have a chance to work with mediators who are experienced, mediators who can actually provide suggestions and look at options that they may have thought of to settle the case out of court. So it's without the cost of litigation. And when I say cost, I mean emotional cost, financial cost, time, all of the resources that go into that. Yeah, people don't realize that writing a brief ain't cheap. We should have somebody doing it as a favor. But if you have to pay for a brief and then a second brief and a pellet argument, that's complicated, takes a lot of time. And it's always a bit of a deep breathing exercise when you get the bill. So this avoids all of that, am I right? Yeah, it supports all of that. And when you talk about the briefs, if you think about the cases that go into the program too, as you mentioned, once they're in the program, positions are pretty entrenched. You don't get to an appeal without thinking that you're right or somebody else is wrong or the court's already made a mistake. And so we step in and give them an alternative to going back to that process. We give them a different kind of process. And it takes a little bit of trust building to get them into that. But again, with our skilled mediators and the level of experience and credential they can bring to it, hopefully we can sort of move them from that impasse into something a little bit different. Yeah, so this is, we've talked about mediation in general here with Tracy Wilton and the like and the Mediation Center Pacific. And I'm sure there'll be some discussion of that in the program on October 9th, which is a webinar that ThinkTech is producing, I want to say at 10 o'clock in the morning. So the question, the question, the question really is, how does it differ? How does appellate mediation differ from the regular kind of mediation where you're in court and you haven't, you don't have a result from the court, you don't have an appeal pending, you're just slugging it out? Well, it differs. First of all, we have the ability to stay the process. We stay the briefing process, we stay the jurisdictional statements, we can stay and slow things down so people have a little bit more time to resolve the issues without the pressures of those deadlines. And there also it takes the focus off of the brief, which is who's right, how right am I, and how wrong was the judge in this case and how wrong is the other side. So we reshift the focus. We present them with, again, highly skilled mediators. And we, the biggest difference I would say between the lower court cases or the pre-mediation, pre-court cases, because a lot of the cases that eventually end up in appellate mediation, if they are settled at a lower court level, it's done. We never see it, right? And some of the cases in mediation, if you look at mediation settlement statistics across the United States, there are 75%, sometimes up to 90% settlement rates with some of the mediators that have the opportunity to help people settle cases. That's all great, but those are the cases that settle. So it's the ones that don't settle in mediation or that eventually make it up to our level that it's the level of difficulty. It's because there is either that much anger or that much determination to win, or by the time it's already gone through an appeal, they either have to, you know, finding a way to save face is very difficult. It's a matter of, okay, I have to go. I am convinced that I'm right. I've come this far. So we need a lot of unconventional thinking through the mediators. That's one of the things they can bring to the table. I wouldn't say the process is different at all. As a matter of fact, our mediators are trained at the Mediation Center of the Pacific for the most part. So they're trained in the exact same process, but it's the level of difficulty and how unconventional and outside the box you can think about the settlement and what other resources they have access to. We saw a list of them. Are they all pro bono or do you have to pay them? They are all pro bono. And if you see that list, you can see the level of mediators. And we're providing people that can, you know, and do serve in other ways. They are commercial mediators through other non institutions, but through commercial organizations that make that available to people. So they serve the court. It's at the pleasure of the Supreme Court is how it's worded, but they really do feel a commitment to the community and a commitment to the courts. And having been in the court system and part of that institution, they see the value of taking some of these cases out of appeal and settling them to reserve the time for the cases that have to stay on appeal. Do I have to? Do I have to do mediation? Can I say, you know, Anne Marie, thank you very much, but no thank you. We can mandate it. So it's rare that if somebody said, I absolutely don't want to do it, that I would put it through, but we can mandate it. It is up to our program to decide whether or not the case should be mediated. But we do an extensive intake process to make sure that the people coming to the table, the council and the parties are coming in good faith to settle. And part of that is because we're taking the time of mediators who can be doing a number of other things in their lives, and they really are doing this out of passion. What percentage of the cases settle in mediation? In our program, we settle about 50. We're at 53% right now. And we have had over the course of the program, 750 cases come in, about an average of 30 cases per year. And 52% settlement actually nationwide is pretty high. We're quite proud of that. Do the parties ever misuse the system? For example, a brief is due tomorrow, and somebody says, hey, let's do mediation so I can get more time on my brief. And then we'll drop out of it later and say we can't make a deal. That ever happen? Let's give everybody the benefit of the doubt and say, I hope it doesn't. I'm assuming it doesn't. I think people will find different ways to use the system. But for the most part, we have people who really do enter in good faith. And that's part of my job doing the intake to make sure that they are. Because if I can do that, and I hate to be judgmental in advance, but sometimes you can sense it. And it's why waste a mediator's time. They're valuable. And one last question before we go to Lance, and that is, aren't you taking the opportunity of the appellate court away from making precedent? Suppose the appellate court is sitting there sort of rubbing its hands against you, oh, this is going to be a great case for important Hawaii state president. And you're depriving them of that. What about that consideration? That's an excellent question, Jay. And those cases we do not bring into the program. We approve those cases for the courts to determine what is necessary. Very good, very good. So there's good discretion there. Lance, go to you. What do you do in connection with appellate mediation? Well, actually, I'm the volunteer program coordinator for the appellate pro bono program, which almost all of the cases never go into appellate mediation. But actually, while Anne-Marie was speaking, it occurred to me that in the pro bono appeal in the program that I did before I became coordinator, that actually did go into the mediation program. So I was like, oh, yeah, actually, that's not true that they're completely exclusive of each other. But it's not always likely because the appellate pro bono program, which used to be a project that was started by Judge Copeland, the purpose of it was to allow prosa appellants and appellies to be represented by counsel so that they could be assisted in presenting their issues to the appellate court in a way that would allow them to have a fully meaningful appeal. So your function isn't exactly the same. You're not necessarily directed at mediation. You're trying to help people provide pro bono appellate counsel for them. That's right. Okay, now suppose I'm a million billionaire, okay, and I'm really unhappy with what happened in the court below. And I called you up and said, Lance, I like pro bono appellate counsel because I don't really want to spend any money on this. What do you say to me? Well, so the first part is you have to do, you have to qualify. And so there's a form that Voluntary Legal Services Hawaii has all interested persons do. And I think a millionaire would immediately be disqualified on income grounds. So it really is for people who cannot afford appellate counsel. That's one, that's one requirement. And then the other requirement is that it has to be the type of case that is within the program. So, you know, just because you have a case and you don't have enough money to hire appellate counsel doesn't mean that you can come into the program. So the most of the cases have to do with family law. But the case that I and Bianca Isaki, we were co-counsel on that was a foreclosure case. I think we've had a couple of unemployment cases come through the program. So they're usually the types of cases where it's not just somebody has some abstract theoretical interest in whatever the outcome is, but in fact that they really do have a need for an advocate and they just don't can't afford one. And it would also benefit the courts to have an advocate more carefully go through the issues in the record. Sure, let him do the research for her as a case may be. So what about criminal stuff seems to me that most people who've been convicted of crimes don't have a lot of money and they're going to come to you and say, Lance, can you give us appellate counsel because we think they've done us wrong in the court below? What about the, you know, the public defender? What about the federal public defender? Don't you point them to organizations which are dedicated to, you know, defending criminals or do you provide counsel for the appeal? So this project program now was a project that's become a permanent program of the Supreme Court. It only deals with civil cases. So the criminal side is left to the current structure, the public defender, or occasionally other entities do that sort of thing or court appointed. There's quite a bit of court appointed, you know, appellate advocacy for criminal defendants. They work for free. I mean, we've seen a list and they work for free. And, you know, sometimes an appeal can be very time consuming, a lot of legal research. A hole in the law into which you port time, so to speak. That's right. So where do you get them from and how well qualified are they? So most of the people who are currently on our volunteer list are also members of the appellate section of the Hawaii State Bar Association, although any attorney that's watching that is interested in being a pro bono appellate advocate can email us and I'll add you to the list. One of the benefits is, and this is not a rule, but one of the benefits is that most of the cases that are briefed by somebody in the program eventually will end up getting an oral argument. But that's not always true. But the appellate courts have shown a strong preference for allowing oral argument. And of course, as you may know, the ICA, just because of the sheer caseload that they have has very few oral arguments. And so that's definitely a benefit for people who may not have a lot of appellate experience and want to get more experience or don't have any experience with oral argument before the appellate courts. And so that's sort of a little bit of a benefit or a reward for somebody who is willing to put in the time to go through the record and do the research of the case law. You talk about appellate argument going to intermediate court, or if you can get appellate argument in the intermediate court, the Supreme Court, in the time of COVID, let's try to make this relevant to the times in which we live. What happens these days? Is it done by Zoom? Is it done by WebEx? FaceTime? Or is it in person? Yeah, so I actually, not in the program, but I actually just did an oral argument, a pro bono oral argument before the Supreme Court, and they are doing it by WebEx, and it is streamed live over YouTube. And I have to say between doing it in person and doing it in WebEx, WebEx has some way to come to be similar to in person. I definitely would prefer to do an oral argument in person, but the truth is that it's much better to do it on WebEx than to have me have to fly over to Honolulu. I understand right now out of necessity, and it is sufficient for what's minimum needed in an oral argument, but definitely I think in person, unless WebEx can change how it presents itself, I definitely think that in person it's still better. Yeah, well, better for who though? Better for the winner. You think this is going to stick going forward? I mean, because it's appealing in a lot of ways, especially if you're a pro bono and you really don't have the time, but you like to do oral arguments, you like to test out your stuff with the judges. Wouldn't it be better to just make this permanent and allow it in all cases? Well, I definitely think in the trial courts, I have found that in hearings that I've had that it seems for the kinds of cases that I have that it's much, the online format is much more suitable than having to go in person. But when you have to check out the body language of five people and make sure that you are really hearing what they have to say and all the nonverbal nuances, it's a little bit more difficult. But maybe I needed to get a bigger screen. I see Chief Justice Rechtenwald has a giant mega screen. I took a picture of him being sworn in on his retention, and I didn't realize, but he's got this 50-inch or bigger screen, and maybe that was my mistake that I just used my computer screen. So quite possibly. Are you saying that he was sworn in by remote? No, I think he was sworn in in person, but they showed that the bench of the Supreme Court, and right in front of him was a giant, giant screen. And so I realized at that point, like, oh, I should have gotten a big screen when I did my oral argument that may have made it easier. So when you engage somebody for, you know, for the group as an appellate pro bono, appellate lawyer, what are you looking for? I like to just remark that I think that appellate lawyers are different. It's a different practice. It's a different personality type. You know, for example, a jury trial lawyer, he's got this kind of crick in his neck because he's always looking at the jury. No matter what he says, he's turning over his shoulder, looking to see how the jury is reacting. The appellate lawyer has to learn how to say, yes, your honor, but... Yes, well, actually, the most important thing I think between the trial advocate and an appellate advocate is being able to recognize that the appellate judges are not jurors. And I think if you can grasp that and not treat appellate judges as jurors, you'll probably do just fine. But what we do first is we first put it out to the list and see if anybody... We give the facts of the case and just see if anybody is interested. Usually there is, but there's a few times where we don't get any responses. And then I actually go through and try to match people and see, okay, no, you didn't answer the call out, but I thought this might be something that would interest you. And so that's how it's gone. And I think there's only been one case so far as long as I've been the program coordinator that has come in that we haven't been able to partner somebody with. But otherwise, every case that comes in we've been able to find. And actually, I think it was now two months ago, they just had an oral argument where both sides, the mother and the father, were both represented by people in the program. That must have been interesting. Well, the people who argued had never argued before the Hawaii Supreme Court before. So I definitely think it was all the way around. It was a great experience. And I think it was very helpful for the parents because there's no way that if they were to argue in front of the Supreme Court, some of the very narrow and obscure areas of civil procedure, I think, would have totally been lost on the parents if they had to argue themselves. Let's move to Jim Peach. Jim, thank you for being so patient today. You're actually the guest today that's closest to where I am in my life because I'm getting older already. I know that doesn't happen to you or any of the others here today, but I want to know what you do in terms of helping people like me. Well, I'm the director of the University of Hawaii Elder Law Program. So we help a lot of different people in different age categories. We have several components to our Elder Law Program. And I thank you for having me on this morning because we're going to celebrate our 30th anniversary at the law school next year. So we're grateful to the community. We're grateful to the funders and we're grateful to the university, of course. Part of our program is teaching at the law school. We have several courses, Law Aging and Medicine, which is a basic overview of legal issues pertaining to older persons. Then we have a healthcare bioethics course, which is open to other professionals, including doctor of nurse practice students. So we'd like to help. Could you cover things like checking yourself out of the hospital when 57 doctors tell you that you should stay in the hospital for a few more days? You cover those ethical issues? Well, we do under the chapter of autonomy, self-determination, versus best interests and protection. So yes, we do. I think you're going to have some practical cases coming up here, at least in the newspaper. But let me ask, you know, what's the difference? Why do you draw a line between elder and non-elder? Isn't the law the same for everybody? Well, the law is the same for everybody, although there are programs that involve older persons, such as benefits for older persons, social security, Medicare, Medicaid. And so there are certain distinctions. But it's the impact of aging very often that we see in certain areas, such as diminished capacity, abuse, neglect, exploitation, disappointment at the end of life. COVID-19 has had a huge impact on the aging, as you know. And it's more dangerous, even rising to the highest levels of government. And those who can afford it the most, they still are impacted by it. But you can imagine the most vulnerable of our population are even more impacted, not only for health care, but also for assistance with issues relating to abuse, neglect, and exploitation. Because there's a lot of hidden things going on due to the isolation of older persons. Isolation of the elderly is one of the greatest causes of that can lead to abuse and neglect. I can imagine that's happening now, more now than the time of COVID. And it must be a real burden on some people. It is. And trying to get in contact with individuals who want help or need help, Zoom is great for our courses, for example. We even have an elder law clinic that we conduct via Zoom. And we've had several clients Zoom in, but it's not always very easy. And those were the younger old people, mostly, who were able to Zoom in. Although we did have a couple in their 90s who Zoomed in, and they were more technically adept in some of our law students. So it's a mix. The problem that I see, let me sort of throw this at you to see what the environment is like. It surprised me a few years ago to find that there were not enough geriatric doctors around town. And that if you wanted to find one to help you in a geriatric area of medical practice, it was hard to find one. And then I kind of surmised that that's the same thing for lawyers who specialize in elder law. They're not that many lawyers who are around, who you can look them up in the yellow pages. I mean, not a geriatric lawyer. That's a no. Well, there's some of us around that fit that description. Gotcha. But an elder law lawyer, right? So it's not in a phone book. And furthermore, query whether you can make a decent living as an elder law lawyer. And maybe not. And so I would guess, just a guess, that there's a shortage of them too. Well, we have a very vigorous elder law section in the Hawaii State Bar Association. And we're trying to get it more into their telephone book when people are asking for referrals. Because the elder law, the concept of elder law is still evolving. And you have a lot of people in elder law who make a very good living, but they seem to specialize in the area of benefits and getting access, but not only access but qualifying for benefits. And so the reputation in the past for some folks in this area hasn't been too good where they are gaming the system, more or less, to qualify for Medicaid transfers of assets and such. But everybody should in the area of estate planning family should, family law should be an elder law attorney, because that's the demographic. That's the fastest rising group of clients that they have. So that's why we teach elder law at the university. But we do have marvelous elder law attorneys in the system. As far as geriatric medicine, I do teach geriatric fellows at the medical school. And we have one of the finest geriatric medicine training programs, but it's about money. As you mentioned for lawyers, but it's also about money for geriatricians. We train the highest quality geriatricians in the world. And then many of them leave to go to other places where they can where where they can afford to live and where the reimbursement may be a little better. But yes, there's a lot of work to be done in enhancing legal access and healthcare access for older persons. Couldn't the organizations that support the medical expenses and for that matter the legal expenses for doctors and lawyers that provide elder advice and representation, couldn't they have an effect on this? For example, I remember that if you have a claim under social security, your client wants you to make a claim with social security. The lawyer gets either little or none. And you cannot take money from the client. You have you have very limited opportunity to recover your time. And so the lawyers won't do that. They won't they won't represent people in social security claims. If you ease that up, you would by definition allow more service just by by easing it up. Well, it has been eased up considerably over the years. One example is for veterans claims. In the past, it used to be the your fee was limited to $10 or something of that nature, ranging way back in time. But now with equal access to justice on the appellate level, especially, you're finding that more people do have access to legal services that just a few years ago, they wouldn't have had. So there's a growing bar of social security and elder and veterans law individuals in the bar who have gathered together and they have quite quite a large bar association, for example, with the Court of Appeals for Veterans Claims Bar Association, a very large organization. So little by little, because of the EJA, the Equal Access to Justice Act, which makes it tolerable for attorneys to wait long periods until they get paid. But eventually, if they do win or there is some positive aspect about their case. So for example, remand back to the to the agency, then it is getting better. But you're absolutely right. And that's why we rely a lot on our pro bono colleagues in the community, such as the volunteer legal services Hawaii, the then money is not an object, and you don't get hung up on that. That's right. And we do have excellent legal services partners in the community, including the Legal Aid Society. Now, the Legal Aid Society took over our traditional main funding source. I won't get into that, the city of County of Honolulu unexpectedly and suddenly just cancelled our contract with them. But luckily, it went to the Legal Aid Society. And they have individuals who are skilled in such federal benefit areas as social security. Let's move to Ann Marie for a minute because we don't have much time left. Ann Marie, I think what we're all talking about here today is not equal justice under the law, but equal access to justice under the law. It's a refinement of the slogan over the over the years, Supreme Court Courthouse, which says equal justice under the law. And you guys are directly involved in that. I mean, all three of you were involved in that. And for that matter, let me say that the Bar Association, although it's not a perfect picture, is involved in that because that's where you get your your balance of your lawyers from. Can you comment on how that affects you and your way of thinking? How it affects your organization, you know, the mission of providing equal access? Well, there's a couple of things I wanted to bring up regarding this because it's important. The access to justice and one of them is directly related to the technology and what COVID has provided as a benefit, I suppose, is that we're all forced to use something different to reach out to the other islands. So our neighbor island access is so much better now, giving access to those people statewide through our program. Now we do have mediators statewide so they can help, but we might have four mediators on the entire big island and I have 35 mediators here on Oahu so I can give access to excellent mediation through the technology we have. On the other hand, I just did a mediation last week and it involved people statewide and even some people on the mainland. It was beautiful that we could use Zoom to bring them together, but what's missing is some of the body language and also it sort of highlighted the inability for some people on the big island, say, that don't have the hardware. They can't afford the hardware. They don't have the band with so it also highlights the inability to really give equal access. One suggestion that came up in an earlier program on this series is to have the judiciary provide what do you want to call it, access rooms. Rooms with a laptop, sort of a duty laptop where a member of the public who has no equipment can come in and use it and that equalizes that level to playing field. Let me move to Lance, to take a pivot on what Emery was saying. What about the community? What about the quality of life, the quality of justice as it appears to the ordinary person in the street in Hawaii? Are we providing adequate access to justice here? How far does these programs go? How far does your program go in order to make the average person feel that he or she has access? Yeah, I think that the Access to Justice Commission has done a remarkable job with what is available. I think to echo something a little bit of what Jim said, over the last seven or 10 years, the amount of funding from all state sources for legal service providers has been cut more than half. And so what's happened is that all of the legal service providers in the state have had to basically maintain their level of services with half the amount of money and that has had an impact. So yeah, I do think that to the extent that we're able to do these free things, we're doing it, but really that the legislature does need to consider, reconsider how legal services are funded, these kinds of cases, especially with unemployment is a great example. I mean, I do the self-help center every week on Maui for an hour and every week there's at least one person that is calling to ask about how to do an unemployment appeal. I have 100,000 people who are applying for claims. There's no way that all of these people are going to know what they're doing. And so that's just an area where it's like. Well, I hear you and that's going to be helpful. You go forward. I predict you're going to have more business. And so you, Anne-Marie, let's go to James for the final word. Okay. I give you Charles Dickens and the Christmas Carol. I give you the ghost of Christmas future. I give you the end of all these programs. They are defunded in the time of COVID. There's no money to pay for them and they're over. Okay. What happens to our society then? Well, our society is going to be judged on how we, how we help the most vulnerable, including older persons. We already see that over across the nation that people are saying, well, if the elderly die, they die or keep them locked up so we can go about doing our own business. But that's not equal access for older persons to society. And you can't just keep them locked up in a nursing home or in their homes. So I would say that much benefit, we will see much benefit from technology. Our website, even if we can't be there at all times, hopefully our websites will continue. And we've added quite a lot, including about COVID-19 on our website. What is your website, Jim? Our website is the Hawaii, University of Hawaii website, Hawaii.edu, and then a slash U-H-E-L-P, University of Hawaii Elder Law Program. And we have... Okay. Anne-Marie, we're at a time. What's your website? Just Google ACR, or you can do ACR Hawaii, C-A-D-R Hawaii in the court system. It's very long because it has to do with the dot gov and courts and everything. Okay. Well, listen to what you're saying over and over again and write it down. Lance, what's your website? Tell us. Sure. So if attorneys are interested, they can email me directly. I'm in the bar directory. But if somebody wants to seek the services of the program, they can email appellate at v-l-s-h dot o-r-g, Volunteer Legal Services Hawaii dot org. Lance Collins, James Peach, Anne-Marie Smoke. Thank you very much for joining us this morning. Aloha. Thank you.