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Come see about…who? Thoughts on the Supremes

Now that an opening looms on the Supreme Court of the United States, the thoughts of all who follow this blog turn to Justice Kennedy’s replacement.  Regardless of what can be said about the qualifications of the various contenders for the seat, one aspect of the announced selection process is heartening.  An unusually wide net is being cast. Consider some of those who have sat on that Court in the …Read More

Setting the Tone

Writing some opinions can be a daunting and sometimes downright unpleasant experience. Others, however, can be a pleasure, especially when the facts are unusual or offbeat.  In all cases, however, the judge or justice writing the opinion knows that case and its outcome are important to those involved.  For that reason, most judges who draft appellate opinions are careful to maintain a neutral tone when discussing the facts and the …Read More

The Appellate Judges Conference: Now It Can Be Told

If you are reading this, you probably have a pretty serious Jones for appellate law and practice. Assuming I’ve got you pegged correctly, the Appellate Judges Conference of the ABA lets you get in even deeper. Here’s a secret: You don’t have to be a judge to join the Appellate Judges Conference (AJC).  The AJC includes the Council of Appellate Lawyers and the Council of Appellate Staff Attorneys.  So if …Read More

A Smorgasbord of Opinions from the Court of Appeals

A number of intriguing opinions were issued by the Court of Appeals in its Tuesday, April 17, release. Rather than pouncing on one, I thought I would take a quick dip into a few. Barron v. Rafidi, an unpublished opinion with a pro se appellant, reinforces the importance of the Rules of Appellate Procedure.  The case arose as a dispute over real property.  The trial court granted summary judgment for …Read More

Road Trip! Road Trip!

In recognition of the Supreme Court of North Carolina’s 200th birthday, Chief Justice Martin recently announced that the Court is going to put on a road show.  North Carolinians living outside Raleigh soon will be able to watch the high court in action without having to travel far. For as long as anyone now living can remember, the Supreme Court routinely has sat in Raleigh, but it was not always …Read More

Who Needs Headnotes? We’ve Got Footnotes!

When I joined the Court of Appeals two decades ago and proudly circulated my first few draft opinions, then-Chief Judge Eagles took me aside and said he would only concur in the result of any opinion that contained a footnote. Though I eventually managed to sneak a few past him, I took his reasons to heart (at least for a while; you’ll find them in some of the opinions I …Read More

Appellate Courts’ Application of Rule of Appellate Procedure 2 In Criminal (and Civil) Cases

In its 6 February 2018 tranche of opinions, the Court of Appeals addresses Rule 2 of the Rules of Appellate Procedure at length in State v. Campbell.  Appellate Rule 2 allows suspension of the Rules of Appellate Procedure “[t]o prevent manifest injustice to a party, or to expedite decision in public interest.”  The analysis in Campbell gives helpful guidance as to when the rule may be invoked while at the …Read More

Motions in the Appellate Courts of North Carolina

In this post, I discuss motions filed in appeals docketed in the appellate division for review. Although uncontested motions are mentioned, the focus is on contested motions.  This post does not address matters such as petitions and stays. Lawyers often find motions practice in the appellate courts to be both frustrating and opaque.  A motion filed in the trial division is usually resolved by a hearing before or during the …Read More

The Long and Winding Road (with Apologies to the Beatles)

In the Court of Appeals’ latest batch of opinions, Beroth Oil Co. v. N.C. Department of Transportation, addressed the long-running issue of the applicability of the Map Act.  As you may have guessed, this show probably hasn’t run its course. Beroth Oil arises out of the Map Act, which the General Assembly passed in 1987.  Under the Map Act, the Department of Transportation can file corridor maps or plats in places …Read More

Does “Affirmed” Mean “Overturned?”: The Uncertain Binding Effect of 3-3 Split Opinions from the Supreme Court of North Carolina.

When less than a full complement of Supreme Court Justices considers a case being reviewed from the Court of Appeals, the result is sometimes an even split.  These days, the tie is usually announced in a per curiam opinion that includes such language as “Because the members of the Court are equally divided as to both issues, the holding of the Court of Appeals is left undisturbed and stands affirmed …Read More