When you are waiting on an decision from the North Carolina Court of Appeals, if you are like me, you anxiously scour the new opinions every other Tuesday morning. And on such occasions, the next best thing to seeing a favorable ruling in your case is coming across a favorable opinion in another case on the exact same issue that the Court will be addressing in your case. When this happens, Rule 28(g) of the North Carolina Rules of Appellate Procedure provides a mechanism to bring this newly-decided, relevant case to the Court’s attention through the filing of a “memorandum of additional authority.” If the case that you are notifying the Court about is on all fours with your case, or close to it, you will be tempted to explain this to the Court in the memorandum of additional authority. RESIST THIS TEMPTATION. Rule 28(g) specifically states that “the memorandum may not be used as a reply brief of for additional argument, but shall simply state the issue to which the additional authority applies…” The Court of Appeals takes this language seriously, and if you need confirmation of that check out Whitaker v. Akers, 137 N.C. App. 274 (2000), in which the Court cautioned a party who submitted a memorandum of additional authority about the parameters of Rule 28(g), or State v. Cunningham, 140 N.C. App. 315 (2000), where the Court actually struck the State’s submission of additional authority because it contained a “lengthy parenthetical summary of the case’s relevance on a particular issue.” If you need a go-by for a memorandum of additional authority, I encourage you to consult the North Carolina Appellate Style Manual. Happy Friday!
Thanks to Steve Russell, friend of the NCAPB, for the blog idea.