When it comes to briefing, we know we should be accurate, clear, and concise (and persuasive, of course). For many of us, brevity is the real challenge—a challenge word limitations are quick to highlight. One strategy to address this challenge is the use of internal cross-references. The phrases “see infra” and “incorporated herein by reference” have become commonplace in legal writing. These phrases, however, carry some risk in the appellate arena.

Under Rule 28(b)(6) of the North Carolina Rules of Appellate Procedure, the argument section of an appellant’s brief must include the appellant’s contentions “with respect to each issue presented. Issues not presented in a party’s brief, or in support of which no reason or argument is stated, will be taken as abandoned.”

Although the use of internal cross-references does not automatically run afoul of this Rule, certain uses may result in unintentional issue abandonment. For example, this week in Digh v. Digh, an unpublished North Carolina Court of Appeals decision, the Court declined to address certain issues where the appellant merely incorporated by reference his arguments from prior sections of his brief without offering “substantive arguments in support.” Just how much additional “substance” would have been needed to avoid issue abandonment, however, is not clear.

What have your experiences been with our appellate courts? Are others aware of instances where referring back to prior sections of a brief, without more, resulted in issue abandonment?

– Corinne Berry Jones