North Carolina’s appellate lawyers enjoyed an hour chock-full of insights from Justice Dietz and Chief Judge Dillon this morning during the NCBA’s annual appellate-practice CLE.  Did you miss it?  Here are some highlights.

Motions to Dismiss Appeals

Both the Supreme Court and the Court of Appeals are open to motions to dismiss appeals for lack of jurisdiction.  This has implications for appellants and appellees alike.  If an appeal presents an appellate jurisdictional issue, an appellee may wish to move to dismiss the appeal, as opposed to waiting to address it in the merits brief.  An appellant, on the other hand, may wish to file a pre-emptive “conditional” petition for writ of certiorari embracing the jurisdictional uncertainty and asking for the court to consider the appeal even if it finds no appeal as of right.

And remember:  the Court of Appeals considers motions to dismiss appeals via a rotating “motions panel,” the identity of which is anonymous for 90 days.

Substantial Rights

Unlike in federal court, North Carolina allows a variety of non-final orders to be immediately appealed.  One key pathway allows an appellant to appeal an order that deprives it of a substantial right that will be lost absent immediate review.

Historically, the “substantial rights” caselaw was more developed in the Court of Appeals than the Supreme Court.  More recently, though, the Supreme Court has provided more guidance as well.  In Gardner v. Richmond County, the Supreme Court outlined what level of detail is needed in a Statement of Grounds for Appellate Review in the appellant’s brief.  Then, in Land v. Whitley, the Supreme Court dug more deeply into why certain types of immunity orders are immediately appealable. 

The lesson is this:  don’t just identify the substantial right in your appellant’s brief; explain why that right will otherwise be lost, citing to recent Supreme Court cases in support.

Oral Arguments

The North Carolina Appellate Pro Bono Program has been quiet of late.  Same with the Supreme Court’s more informal system of assigning cases to lawyers pro bono.

There’s a push to reinvigorate both.  Stay tuned!

Motions for Extension

Long-time readers may recall the time period when the Supreme Court was denying extension requests because it was caught up and needed the cases. 

We learned another tidbit this morning.  When the Supreme Court conferences on a batch of cases, the justices claim opinions using something like a fantasy-football draft, with the order determined at random.  Alas, the best cases might all be gone by the time Justice No. 7 draws.  In exchange, Justice No. 7 doesn’t draft in the final round.  Aha!  That explains why the court tends to hear, say, 13 cases in a given week.  In other words, cases are often heard 6 mod 7.  If one case gets delayed by an extension, that messes up the modular arithmetic.

Artificial Intelligence

The Court of Appeals is receiving an onslaught of AI filings from pro se litigants.  Could a nominal filing fee slow that down?

–Matt Leerberg