Law Trends


Maui, Hawaii 96793
(808) 244-7444


Trends in Personal Injury Litigation

By James Krueger, Esq

No one who has never been one knows what it’s like to be a victim…until it happens. Personal injury litigation intimately involves people – average people – at one of the lowest points in their lives.  A wife kisses her husband goodbye to go to work.  She gets a call later that another driver entered the highway without looking and killed him. Life is fragile. Becoming a victim is an instant life transition for which there is no prior training.

Traumatized victims then discover one of the greater mismatches in the world: an average citizen resolving a claim with an insurance company. For lawyers like myself, serving as an interface and equalizer with an insurer to help victims reclaim their lives is incredibly motivating and profoundly seriously undertaken.

In my 42 years of practice, I have found that most clients, after suffering serious harm negligently caused by another and only after exhausting attempts to resolve claims with adverse liability insurers, come to visit despite being stigmatized by propaganda about so-called frivolous claims, which is a shibai. This is because Hawaii’s sense of ‘ohana has made going to an attorney a last resort, occurring after being put off by an insurer.

Regardless of the local or national economic downturn, man’s inhumanity to man continues. People run red lights and engage in negligent conduct. As no one is above the law, rich or poor, no one is immune to being killed or seriously injured.

The advent of sophisticated legal and detective television shows has sharpened the expectations and perspectives of jurors who now expect more from litigators.  This has had a positive impact on litigation – from how we lawyers comport ourselves to how well we represent clients.
Now and for the immediate future, the litigation system is in jeopardy as the number of experienced, competent attorneys is dangerously diminishing due to Alternate Dispute Resolution (ADR), which has made mediation or arbitration an efficient problem-solving procedure, inexpensive when compared to a court trial.  

The smaller cases on which younger lawyers used to cut their professional teeth are being settled without going to trial, reducing opportunities to learn the ins and outs of litigation.  Despite the seemingly beneficial impact of ADR, it remains to be seen whether society’s best interests are served when upcoming members of the trial bar may be unable to screw in a courtroom’s proverbial legal light bulb.

To preserve what has, over centuries, been a fundamental cornerstone of western society, our community must vigilantly maintain victims’ rights to seek fair, just and appropriate compensation for life-altering tragedies that you or your next door neighbor may suffer. A victim’s dignity must not be taken away because of societal apathy respecting protection of the rights of all of us – “Ask not for whom the bell tolls, ….”


Trends in Estate Planning

By: Heather K. L. Conahan, Partner, Loden & Conahan, LLLC

737 Bishop St.,
Suite 2990
(808) 524-8099



It is an unsure world out there, so why worry about estate planning? The current “financial crisis” is challenging us on how to plan for retirement, disability and death because our wealth is fluctuating widely from day to day. To add to the confusion, the estate tax law is set to change. The big questions are how and when.

No one is immune from the current financial crisis — from blue collar workers whose corporate-sponsored retirement programs have plummeted 30+ percent in value in the last year, to beneficiaries of a wealthy estate who face a large estate tax bill, but lack buyers for the estate’s real estate-heavy holdings. 

So although estate planning might seem like a low priority, back-burner issue…it shouldn’t be. Now, more than ever, you need to re-visit your estate plan and make sure it fits your current situation.

The current estate tax law, enacted in 2001, is simple. If you die in 2009, the first $3.5 million of your holdings is exempt from estate tax. But if you die in 2010, there is absolutely no estate tax, no matter what your net worth. If you are not inclined to die in 2010, then you are in trouble because on January 1, 2011 the estate tax roars back to life, and the credit is reduced from $3.5 million to $1 million.

Experts agree that Congress will act before year’s end, or early 2010, and hope the exemption will be frozen at $3.5 million. But the fight is politically charged on what amounts to a tax on the wealthy.

With many people unable to pay their mortgage,  paying an estate planning attorney to draft a Will or Trust seems remote – especially to dispose of assets likely worth much less now.

But in reality, now is the time to plan. If you already have estate planning documents, now is the time to review them. If your estate plan assumed a higher net worth, some of  your beneficiaries may get a disproportionately higher (or lower) inheritance than you intended. Having no Will or a Trust can be worse. It is possible that your heirs will be fighting (and spending precious dollars) over a diminished estate. So investing a little time and money into this effort today could save money and relationships in the future.


Pacific Guardian Center
Makai Tower 19th Flr.
Honolulu, Hawaii
(808) 537-6100

Trends in Commercial Litigation

By: Terence J. O’Toole, Litigation Director Starn O’Toole Marcus & Fisher

Trial lawyers are a different breed! We thrive in a competitive environment; prefer to be in a courtroom rather than at a desk; and, our world is measured by wins or losses – unless the case settles. Trying and winning a case before a jury is the gold standard!

Business trial lawyers occupy a specialty niche in the world of trial law, and business litigation involves a myriad assortment of business related disputes, including corporate/shareholder, hotel/hospitality, real estate/construction, banking, and class action issues. Business litigation is complex multi-party litigation which is document intensive and can involve very high stakes “bet your company” issues.  Trials can run for months.

Starn O’Toole Marcus & Fisher specializes in business litigation. Our trial lawyers practice what I like to refer to as the “bulls-eye” theory of trial law: Take the complex and make it simple. Try your case on the issues and facts that are in the center of the bulls-eye. No jury is going to vote for the lawyer who buries them in thousands of exhibits and who gets lost in the weeds. Every case has a simple story. We try to use it. Much like writing a short letter – it takes more time and thought to get it right.

Our firm is also unique and boutique. The transactional half of the firm specializes in corporate, real estate and other business matters for local, national and international clients. In addition to providing excellent legal services for our business clients, the transactional lawyers are an invaluable resource for the trial side in terms of expertise and substantive knowledge.

What are the trends in business litigation? Well, business litigation doesn’t change much even in a down economy. While clients are more careful now about how they spend their money, they are still willing to fight for principle and for a just result. Those clients who are willing to go to the mat want the best trial team they can hire.

To get the best, we make hiring one of our most important goals. We look for smart, energetic talent. Most members of our trial team are athletic or otherwise stay competitive in some aspect of their lives. You have to want to charge the castle in this business or you’re in the wrong job! 

As a triathlete, I often equate trial work with doing a triathlon. You need to be in excellent mental and physical shape. Trial is an endurance “sport” and the winner is often the one who has figured out the course and who can go the distance.