Time ClockNo, this post is not a tribute to David Ives. In many appellate cases, it really is all in the timing.

Some appellate rules regarding timing are easy to state. The deadlines to file a notice of appeal, an opening brief, and a petition for discretionary review are relatively straightforward.

But other timing issues are less obvious. The most recent set of opinions from the Court of Appeals addresses several of these thornier problems.… Continue Reading

On Friday, the Supreme Court displayed how busy it has been this summer by releasing 17 authored opinions.  Justice Per Curiam (who is fond of affirming/reversing “for the reasons stated in the Court of Appeals” majority/dissent) was conspicuously absent.  Justice Earls and Justice Newby vied for the title of “Most Prolific Dissenter.”  And the Court released its first three opinions directly reviewing trial tribunal orders terminating parental rights—and for those wondering, all three opinions were decided by the Supreme Court by published opinion, but without oral argument.… Continue Reading

Appellate practitioners are familiar with the concept of moving to have the court publish an opinion that was initially issued as “unpublished.”  Much rarer is the reverse situation, where a party seeks to have an opinion that was published “demoted” to unpublished status.  And perhaps even rarer is to have that request for “unpublishing” made by a member of the Court. … Continue Reading

Twice this week the Fourth Circuit took the relatively unusual step of issuing published opinions on orders denying rehearing of a case.  Ordinarily such orders are not published for the simple reason that there is no accompanying written opinion to publish.  Not so this week, however.

On Monday the Court denied a request for panel rehearing and rehearing en banc in US v.Continue Reading

Our State Supreme Court issues a lot of unanimous opinions. But this month’s batch of opinions contained two interesting examples of an area in which the justices may disagree: statutory interpretation.

In State v. Fletcher, the Supreme Court was interpreting the scope of the phrase “oral intercourse” in a criminal statute. Not surprisingly, the Court “look[ed] first to the plain meaning of the words of the statute itself.”… Continue Reading

Memo to trial lawyers in North Carolina: Do not tell the jury that a witness is a liar.  And you also shouldn’t imply that opposing counsel and an opposing expert witness assisted that witness in committing perjury.

Such was the approach taken by the prosecution in a first-degree murder trial in Mecklenburg County. After the jury returned a guilty verdict on voluntary manslaughter, the Court of Appeals vacated the conviction and remanded for a new trial, holding that the State’s characterization in closing arguments of the Defendant as a liar, and his counsel and expert witness as supporting his dishonesty, was “grossly improper,” and that the trial court should have intervened ex mero motu.  Continue Reading

What is the Court of Appeals to do when the correctness of the trial court order being appealed turns on whether or not a certain document was presented to the trial court, but that document does not appear in the record on appeal?  That is the question that confronted the Court in State v. Cobb.  And in a split decision issued on Wednesday, the majority presumed that the record on appeal was correct and thus the trial court had erred.… Continue Reading

On June 9, 2017, the Supreme Court of North Carolina issued a unanimous opinion holding that when an employer admits the compensability of an injury under the Worker’s Compensation Act, the injured worker is thereafter entitled to a presumption that future medical treatments are causally related to the original compensable injury. Before the ink could dry on Wilkes v. City of Greenville, a “broad coalition of private and public organizations” convinced the General Assembly to essentially nullify the impact of the Supreme Court’s decision.… Continue Reading

Yesterday, the Court of Appeals published an opinion serving as a reminder that attorneys must always be mindful of preserving their trial court arguments for appeal. In State v. Walker, the Court addressed an appeal from judgments convicting the Defendant of three counts of assault with a deadly weapon with intent to kill inflicting serious injury (acronymed “AWDWWIKISI” in the opinion) and one count of attempted first degree murder. … Continue Reading

A case with a history of appellate rules issues, see here, can now add a few more to its tally.  In State v. Coxton the Court of Appeals originally dismissed a criminal defendant’s appeal for failure to give proper notice of appeal and further denied the defendant’s petition for writ of certiorari because it was filed more than eight months after the judgment being appealed from without any explanation for the delay.  … Continue Reading