Robert Thomas
Robert Thomas

BY ROBERT THOMAS – Here’s the latest decision from the Hawaii Supreme Court applying the “private attorney general” doctrine, which allows a prevailing party to recover fees and costs in certain limited circumstances.

In Kaleikini v. Yoshioka, No. SCAP-11-0000611 (May 2, 2013), the court awarded attorneys’ fees and costs incurred on appeal to the plaintiffs who prevailed in the case challenging the archaeological review for the $4+ billion Honolulu rail project.

In its earlier opinion, the court held that the review could not be segmented, and that the city should not have started construction on any part of the project until archaeological review for the entire project had been completed.

If this sort of thing is your bag, check it out. Highlights:

  • Ask the appellate court only for those fees and costs you incur in that court; if you want fees incurred in the trial court, seek them there.
  • The going rate for highly skilled and experienced attorneys in Honolulu is darned reasonable when compared to other jurisdictions (see p. 39-40).
  • The “lodestar” method (reasonable rate times reasonable time) is the default, and the court isn’t going to allow “enhancement” in cases not involving a fee-shifting statute (the private attorney general is a judge-made doctrine), and not involving a contingency fee. The goal of the private attorney general fee-shifting doctrine is to allow reasonable compensation to the prevailing lawyer, not to reward plaintiffs or their attorneys, especially those who ask for a 100% enhancement (i.e, a doubling of the presumptively reasonable lodestar amount).
See more:

Kaleikini v. Yoshioka, No. SCAP-11-0000611 (May 2, 2013)

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Robert H. Thomas is one of the preeminent land use lawyers in Hawaii. He specializes in land use issues including regulatory takings, eminent domain, water rights, and voting rights cases. He has tried cases and appeals in Hawaii, California, and the federal courts. Robert received his LLM, with honors, from Columbia Law School where he was a Harlan Fiske Stone Scholar, and his JD from the University of Hawaii School of Law where he served as editor of the Law Review. Robert taught law at the University of Santa Clara School of Law, and was an exam grader and screener for the California Committee of Bar Examiners. He currently serves as the Chair of the Condemnation Law Committee of the American Bar Association’s Section on State & Local Government Law. He is the Hawaii member of Owners’ Counsel of America, a national network of the most experienced eminent domain and property rights lawyers. Membership in OCA is by invitation only, and is limited to a single attorney from each state. Robert is also the Managing Attorney for the Pacific Legal Foundation Hawaii Center, a non-profit legal foundation dedicated to protecting property rights and individual liberties. Reach him at rht@hawaiilawyer.com He is also a frequent speaker on land use and eminent domain issues in Hawaii and nationwide. For a list of upcoming events and speaking engagements.