Ain't it the truth

NY Times - What They Don’t Teach Law Students: Lawyering

Consider, for instance, Contracts, a first-year staple. It is one of many that originated in the Langdell era and endures today. In it, students will typically encounter such classics as Hadley v. Baxendale, an 1854 dispute about financial damages caused by the late delivery of a crankshaft to a British miller.

Here is what students will rarely encounter in Contracts: actual contracts, the sort that lawyers need to draft and file. Likewise, Criminal Procedure class is normally filled with case studies about common law crimes — like murder and theft — but hardly mentions plea bargaining, even though a vast majority of criminal cases are resolved by that method.

For the bloggers

PC World -

If you've ever copied an excerpt from an online publication and pasted it in a public place on the Internet, you're a bit safer today from being sued for copyright infringement thanks to the Democratic Underground

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When "shall" can mean "may"

This morning, the Garden Island headline, "Rapozo asks court to define ‘shall’" caught my eye.

The County Charter states the Salary Commission “shall” do one thing, but the county attorney said “shall” could mean “may,” providing ammunition in a battle among Kaua‘i County Council members stuck between upholding the charter and freezing county officials’ salaries another year.

...

Rapozo filed a complaint with the Fifth Circuit Court, seeking a declaratory judgment on the five-letter word. Is “shall” mandatory or directory?

“If you start saying ‘shall’ is not mandatory it really weakens the charter,” said Rapozo, adding that to him the charter is just as important as the state and federal constitutions.

This is something the Hawaii appellate courts have addressed before. Under the case law, "shall" can mean "may" when

(1) it obviously doesn't mean "must" in the context of the statute's purpose;

(2) reading it as "must" would lead to unjust consequences; or

(3) reading it as "may" doesn't harm any public or private advantage, right, or benefit.

In State v. Shannon, 185 P.3d 200 (Haw. 2008), the Hawaii Supreme Court said,

[I]t is a well-established tenet of our statutory interpretation that the use of the word “shall” generally indicates the legislature’s intention to make a provision mandatory, as opposed to discretionary. See Gray v. Admin. Dir. of the Court, 84 Hawai`i 138, 150 n. 17, 931 P.2d 580, 592 n. 17 (1997) (observing that “[t]he word `shall’ is generally construed as mandatory in legal acceptation”); Voellmy v. Broderick, 91 Hawai`i 125, 129-30, 980 P.2d 999, 1003-04 (App.1999) (declaring that “[t]he word `shall’ `must be given a compulsory meaning . . . and is inconsistent with a concept of discretion’” (quoting Black’s Law Dictionary 1375 (6th ed.1990) (other citation omitted))); but see Narmore v. Kawafuchi, 112 Hawai`i 69, 83, 143 P.3d 1271, 1285 (2006) (noting that “[w]hile the word `shall’ is generally regarded as mandatory, in certain situations it may properly be given a directory meaning” (quoting Jack Endo Elec., Inc. v. Lear Siegler, Inc., 59 Haw. 612, 616-17, 585 P.2d 1265, 1269 (1978) (citation omitted)))…

Additionally, this court has interpreted the word “shall” as “directory” rather than mandatory only where a three part test has been satisfied.

In Perry [v. Planning Comm'n of Hawaii County, 62 Haw. 666, 619 P.2d 95 (1980)], this court articulated a three-prong test for determining when the word “shall” may be interpreted as directory. First, “shall” can be read in a non-mandatory sense when a statute’s purpose “confute[s] the probability of a compulsory statutory design.” [Id.] at 676, 619 P.2d at 102. Second, “shall” will not be read as mandatory when “unjust consequences” result. Id. Finally, “the word `shall’ may be held to be merely directory, when no advantage is lost, when no right is destroyed, when no benefit is sacrificed, either to the public or to the individual, by giving it that construction.” Id. at 677, 619 P.2d at 103.

Leslie v. Bd. of Appeals of County of Hawai`i, 109 Hawai`i 384, 394, 126 P.3d 1071, 1081 (2006) (emphases added).

Electronic filing coming to the lower courts in Hawaii?

I sure hope so. Via Hawaii State Judiciary on facebook -

Comments wanted on proposed changes to Rules of Penal Procedure to allow for electronic filing