United States Court of Appeals

One of the oft-recurring issues in appellate decisions is that of whether the ruling sought to be appealed is actually, at least at that time, appealable. This week, both the North Carolina Court of Appeals and the Fourth Circuit addressed this issue.

By an unpublished opinion in Sheppard v. Winston-Salem/Forsyth Cnty Bd. of Educ., the North Carolina Court of Appeals held that the Appellants’ appeal from the trial court’s order granting a motion to dismiss that disposed of some, but not all, of the Appellants’ claims was impermissibly interlocutory.… Continue Reading

“Brevity is appreciated.”  “A short brief can be very effective.” How many times have you heard appellate judges make statements like this about appellate briefs?  While I can most certainly understand an appellate judge’s desire for shorter briefs, a soon-to-be-published article in the Journal of Empirical Legal Studies examines whether more concise briefs are correlated with success on appeal.  The full paper is accessible here, but the abstract notes surprisingly that for civil appellants in the Ninth Circuit, “briefs of greater length are strongly correlated with success on appeal.… Continue Reading

A few weeks ago, one of my colleagues blogged on the topic of unpublished opinions in the North Carolina Court of Appeals.  The Maryland Appellate Blog released an interesting post today about the same phenomenon  in the Fourth Circuit.  The Maryland blog discusses the Fourth Circuit’s somewhat unusual practice of issuing unpublished opinions in cases where one of the judges dissents.  … Continue Reading

The Fourth Circuit Court of Appeals issued two opinions last week clarifying issues relating to notices of appeal.

In Jackson v. Lightsey, the Fourth Circuit addressed 1) whether a notice of appeal that failed to specify that the appeal was being made to the Fourth Circuit was sufficient to confer appellate jurisdiction, and 2) whether a notice of appeal that designated a 2013 order, but not a 2012 order, was sufficient to allow the Fourth Circuit to review the 2012 order. … Continue Reading

Yesterday, the Maryland Appellate Blog featured remarks from the Fourth Circuit’s newest federal appellate judge, Pamela Harris, on the Fourth Circuit’s collaborative culture.  The remarks from Judge Harris are particularly insightful because she had a robust appellate practice before joining the Fourth Circuit.  Want to know more about how Judge Harris approaches briefs and oral arguments?  What appellate tactics “go over like a lead balloon” at the Fourth Circuit? … Continue Reading

In June, we blogged on how a United States Supreme Court decision interpreting a North Carolina statute of repose had created some strange bedfellows in the General Assembly–which had almost immediately rushed to “clarify” North Carolina’s statute of repose.  The General Assembly’s “clarification” efforts were directed toward saving lawsuits pending in the Eleventh Circuit that had been brought by U.S. Marines and their families who had been exposed to toxic groundwater at Camp Lejeune.… Continue Reading

It was a pleasant surprise this morning to discover that the Maryland State Bar Association’s Maryland Appellate Blog was discussing a point of North Carolina appellate practice and procedure.

The impetus of the discussion was the United States Supreme Court’s recent decision in CTS Corp. v. Waldburger, where the Court was called on to decide whether the express preemption of state statutes of limitations set forth in the federal superfund environmental clean-up law known as CERCLA also applies to state statutes of repose. … Continue Reading

Jerry Hartzell recently published an article in the April 2014 issue of the North Carolina Advocates for Justice’s Trial Briefs. The article is entitled “Probability of Success on Appeal: Reversal Rates for the Fourth Circuit and the North Carolina Court of Appeals.”

The article is worth an independent read, but Jerry concluded that in 2013 “the North Carolina Court of Appeals reversal rate (in whole or in part) exceeded the Fourth Circuit’s reversal rate by a factor of ten.” … Continue Reading