Judges repeatedly tell us that the brief is our best vehicle to explain our view of the case and why the law is in our client’s favor. Unfortunately, it is also a potential trap. In that vein, the North Carolina Court of Appeals recently released several decisions that give helpful reminders to those who are writing briefs.
I. TO CITE OR NOT TO CITE
Under the appellate rules, citation to unpublished opinions is “disfavored” and should only be used if you believe “that an unpublished opinion has precedential value to a material issue in the case and that there is no published opinion that would serve as well.” N.C. R. App. P. 30(e)(3). However, that rule should not prevent you from citing to unpublished opinions in appropriate circumstances. Indeed, the Court of Appeals is willing to rely on unpublished opinions that are especially helpful. In one recent case, the court relied on two unpublished opinions because they were “particularly relevant.” In another case, the court relied on two unpublished opinions to “illuminate” a point it was making. Similarly, the court relied on unpublished opinions from federal courts to interpret Pennsylvania law because the decisions were “persuasive.” All in all, you should not be afraid to cite to an unpublished opinion if it helps your argument.
In addition, make sure that you cite things to which the court has proper access. In State v. Cheek, the defendant cited to research articles on the validity of eyewitness identifications. However, the articles were not presented to the trial court or included in the record on appeal. Therefore, the Court of Appeals could not consider them.
II. PRESENT THE STANDARD(S) OF REVIEW
The appellate rules require an appellant’s brief to include “a concise statement of the applicable standard(s) of review for each issue.” N.C. R. App. P. 28(b)(6). This, of course, refers to the appellate standard of review and not necessarily the trial court standard of review. Still, the two are related. In many appeals, the real question presented is for the appellate court to review under the appellate standard whether the trial court properly applied the trial court standard. Practitioners should therefore be careful not to abandon discussion of the trial court’s standard of review when appropriate.
In Greer State Bank v. Evans, the defendant appealed the trial court’s grant of summary judgment in favor of the plaintiff. On appeal, the defendant argued that he properly pleaded counterclaims of breach of contract and breach of fiduciary duty. However, even if the elements of the claims were pleaded, the Court of Appeals affirmed the trial court’s order because the defendant failed to demonstrate a genuine issue of material fact. Even though the appellate standard of review would be the same, the trial court’s standard of review was significantly different.
III. DON’T GO TOO FAR
That being said, your arguments should always be based on the record. In Hennessey v. Duckworth, the defendant’s attorney made several factual statements based “upon information and belief” and based upon his own personal recollection. Although such a caveat is appropriate for some pleading purposes, the Court of Appeals found it “wholly inappropriate” in an appellate brief. “Appellate counsel should make arguments based on the facts in the record, not ‘upon information and belief.’”
Similarly, the court faulted the State of North Carolina for referring to facts that were not in the record – including a fact that could be considered highly relevant such as a witness’ admission of perjury. The court did not consider this fact in its analysis and admonished that the State “should not have alluded to this fact in its brief.”
In addition, remember to base your arguments on the current state of the law. In State v. Glaspie, the court criticized the State for relying on outdated arguments regarding assignments of error.
Finally, remember to keep a professional tone throughout the brief. Although litigation is emotional, a brief’s facts should be “non-argumentative” and the argument itself should be appropriate for the appellate proceedings. The Court of Appeals gave this important reminder:
We note with extreme dismay the unprofessional tone adopted throughout plaintiff’s brief to this Court. The language was demeaning, derisive, and disparaging toward defendant’s witnesses who testified before the Industrial Commission, as well as directly toward one or more of the Commissioners. We do not repeat the offensive language here, as it became a matter of public record upon the filing of the brief. However, the contemptuous tone of plaintiff’s brief appears to be an attempt to obfuscate the legal issues to be decided by this Court.