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Both landlords and tenants have some difficult choices to make when faced with the possibility of an eviction. If you are a landlord or tenant, it is always a good idea to consider your options well in advance.
First, you should compare the costs and benefits of mediation before going to court. Mediation services will likely cost half or less than what you will pay in attorney fees, not counting court costs. If mediation fails you can still go to court for resolution.
There are two common types of landlord-tenant cases:
• Security deposit disputes. These are small claims cases. Attorneys cannot appear for trial unless the attorney is the landlord or tenant and is representing themself.
• Evictions. These are regular claims cases. An attorney may represent you.
In civil (noncriminal) matters, including landlord-tenant complaints, you do not have the right to a court-appointed attorney. You may hire an attorney or represent yourself in court.
Following the rule of law, both parties have the right to be heard by an impartial judge who treats them equally by upholding their legally guaranteed rights. This is part of the vital role our courts play in preserving and ensuring a fair and just society.
Along with equal legal rights, you have certain individual responsibilities, including being prepared to present your case if you go to court. If you are unable to do this effectively, you could face serious consequences, even if you have a viable legal claim.
If you choose to appear as a self-represented litigant (without an attorney), the judge must remain impartial, and cannot help you. It is therefore in your best interest to prepare for trial in advance.
The following suggestions can help, but are not legal advice:
• Remember, the judge does not know anything about your case. Write a step-by-step outline of what transpired so you can tell your story in a calm, coherent way. If you jump around and skip steps in the story, the judge may have difficulty understanding your position. Remain calm, be respectful to the judge, court staff and the other party, and you’ll present your case well.
• Gather as much evidence as you can to support your story. Make hard copies of your lease, receipts, invoices, emails, canceled checks, photos — anything showing what was agreed to or said. Print screenshots of any texts and download any videos; the judge cannot be expected to look at your phone.
• Mark all pieces of evidence as an “exhibit” (e.g. Exhibit A, Exhibit B, etc.). Make copies for the court, the judge and the other party.
• You may subpoena witnesses. Subpoena forms are available at the courthouse and on the Hawaiʻi State Judiciary website at www.courts.state.hi.us/.
• If you have witnesses, arrange to have them in court to testify on the day of trial. The judge may not give a written statement much weight if the witness is not available to answer questions.
• Be ready for trial on the date your trial is scheduled to start. Be prepared to make best use of the time you have.
There are no appeals for small claims. The more clearly you can state your case and show evidence to support your claims, the better your chances in court.
You may also find it helpful to review Hawaiʻi Revised Statutes, Chapter 521, Residential Landlord-Tenant Code, and Chapter 666, Landlord and Tenant.
For more information search “landlord-tenant claims,” “small claims questions and answers,” “regular claims,” “tips on going to court,” and “tips for participating remotely” at the Judiciary’s website.
Currently, low- and moderate-income landlords or tenants in Maui County may apply for a free attorney in eviction cases. At the courthouse, ask a volunteer court navigator how to request a free attorney for your eviction case. The nonprofit Volunteer Legal Services Hawai’i will determine if you qualify for the program.
Free legal assistance with landlord-tenant and other civil matters is available through the courthouse Self-Help Centers. For a consultation with a volunteer attorney, search “Second Circuit Self-Help Center” on the Judiciary’s website.
* The Honorable Kirstin M. Hamman is a judge in Hawaii’s Second Judicial Circuit. This column was written as part of National Judicial Outreach Week, which occurs annually in the first week of March, when judges engage with their communities to discuss the rule of law and the work courts do every day.
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