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Fourth Circuit Holds that Trial Court Cannot Prevent Appellate Review of Decision by Vacating that Decision After Appellate Proceedings Have Commenced

In an opinion highlighting an interesting federal appellate jurisdictional issue, the Fourth Circuit on Monday vacated a “gag order” that had been entered by the district court.  That gag order, however, had already been vacated by the district court itself.  This raised the possibility that the Fourth Circuit was without jurisdiction to address the gag order, which had been challenged in the appellate court through a petition for a writ …Read More

Unpublished Fourth Circuit Per Curiam Opinion Involving Pro Se Litigant Rights Moving Towards the Supreme Court on the Backs of Legal Giants

Note: much of the information below comes from The American Lawyer’s October 23 “Daily Dicta,” by Jenna Greene. He started as a pro se plaintiff alleging First Amendment (and other) violations by a number of federal judges, an FBI agent, and a US Marshal.  Now William Bond has been represented by some of the heaviest of legal heavyweights as his case makes its way up towards the highest court in the land.  David Boies has …Read More

Fourth Circuit Judge Advocates for “Unpublishing” Panel Opinion, Simultaneously Lauds and Criticizes the Court

Appellate practitioners are familiar with the concept of moving to have the court publish an opinion that was initially issued as “unpublished.”  Much rarer is the reverse situation, where a party seeks to have an opinion that was published “demoted” to unpublished status.  And perhaps even rarer is to have that request for “unpublishing” made by a member of the Court.  In fact, the first and only time I’ve ever personally …Read More

What Does the Supreme Court of North Carolina Consider To Be a “Substantial Right”?

Those familiar with North Carolina appellate jurisprudence are well aware that what constitutes “a substantial right” for the purposes of conferring jurisdiction over an interlocutory order is an issue that is routinely addressed, oftentimes at length, in North Carolina appellate opinions.   So it was interesting to see the Supreme Court of North Carolina’s opinion in Krawiec v. Manly (released last Friday) in which the Court invoked substantial right jurisdiction over …Read More

The Curious Case(s) of the Published Denial of Rehearing

Twice this week the Fourth Circuit took the relatively unusual step of issuing published opinions on orders denying rehearing of a case.  Ordinarily such orders are not published for the simple reason that there is no accompanying written opinion to publish.  Not so this week, however. On Monday the Court denied a request for panel rehearing and rehearing en banc in US v. Brown, a case involving criminal sentencing and due process.  …Read More

Court of Appeals Continues to Clarify, This Time With Respect to Burden of Proving Timely Appeal

The North Carolina Court of Appeals has started off 2018 with a trend of clarification.  As we noted last week, in this year’s first batch of opinions the Court clarified the applicable standard of review for a trial court’s decision on whether a party has waived a contractual right to arbitration. And now after the year’s second batch of opinions was released earlier this week, appellate practitioners have further clarity: if …Read More

This Holiday Season, A Reminder Not To Forget The (File) Stamps

If you don’t put postage stamps on your holiday cards, they aren’t going to make it to their intended destinations. Similarly, if you don’t have a file stamp on the order you are attempting to appeal, you aren’t going to get a ruling on the merits from the appellate court.  At least that’s what the Court of Appeals held in its opinion on Tuesday in McKinney v. Duncan, involving an …Read More

What Can You Argue to a Jury About a Witness’ Credibility? North Carolina Supreme Court Provides Some Guidance

Memo to trial lawyers in North Carolina: Do not tell the jury that a witness is a liar.  And you also shouldn’t imply that opposing counsel and an opposing expert witness assisted that witness in committing perjury. Such was the approach taken by the prosecution in a first-degree murder trial in Mecklenburg County. After the jury returned a guilty verdict on voluntary manslaughter, the Court of Appeals vacated the conviction and remanded …Read More

Immunity, Interlocutory Appeals, and the Industrial Commission

The intersection between sovereign/governmental immunity and interlocutory appeals continues to provide ample fodder for this blog. Following on the heels of the Court of Appeals’ thought-provoking opinion two weeks ago in Union County v. Town of Marshville  (blogged about here ), today the Court addressed the issue in Foushee v. Appalachian State University. Foushee involved a wrongful death action brought against Appalachian State University.  Because the university is an arm of …Read More

More E-Filing News: Fourth Circuit Implementing “NextGen CM/ECF,” Users MUST Update Their Accounts

Recently the Supreme Court announced that it was taking a step forward technologically (see here).  Today, the Fourth Circuit made a similar announcement, revealing that effective November 13, 2017 the Court will go live on “NextGen CM/ECF.”  The most significant change accompanying the implementation of this updated filing system will be that users will have a single PACER account that will allow them to file (and simply view) documents in all …Read More