North Carolina Appellate Practice Blog

Fox Rothschild's blog about practicing law in North Carolina state and federal appellate courts

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By: Fox Rothschild LLP

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Zack Dawson
Robert Edmunds
Liz Hedrick
Patrick M. Kane
Matthew Krueger-Andes
Matthew Nis Leerberg
Fox Rothschild LLP
Kip D. Nelson
Fox Rothschild LLP
Beth Scherer
Troy Shelton

Latest from North Carolina Appellate Practice Blog

The Fourth Circuit has extended its suspension of the Local Rule 36(a) requirement that published opinions have oral argument.  Effective immediately, Chief Judge Gregory has extended Standing Order 20-01, originally adopted on March 23, 2020, to allow for published opinions without argument in “cases assigned for pre-argument review, tentatively calendared, or calendared for argument while in-person argument sessions are suspended due to the coronavirus.”  On July 22, 2020, the Fourth Circuit had suspended in-person oral…
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If life gives you lemons make lemonade poster in vintage style, vector illustration
COVID-19 interrupted the plans of many North Carolina law students.  In-person classes (Cancelled).  Students (Sent home).  Summer internships (Postponed, shortened, or cancelled). In the midst of these upheavals, the Court of Appeals showed aspiring advocates how to turn lemons into lemonade.  Judges Richard Dietz and Phil Berger, Jr. created a five-week, no-cost, online seminar for law students.  The topic?  North Carolina appellate practice and procedure.  The series consisted of interactive lectures, small group break-outs, and…
A lot of mistakes can be fixed, but those depriving an appellate court of jurisdiction are not usually among them.  Unless the appellate court deems the appeal to raise issues of great importance and to present a compelling case for reversal, jurisdictional errors are usually fatal. Those exceptions are rare.  But this week, a panel of the North Carolina Court of Appeals found Doe v. City of Charlotte to be just such a case. In…
In Batson v. Kentucky, 476 U.S. 79 (1986), the U.S. Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment prevents prosecutors in criminal cases from exercising peremptory challenges to excuse prospective jurors solely on account of their race.  As illustrated by State v. Campbell COA18-998-2, filed 21 July 2020, application of that 1986 decision is not easy. Campbell was charged with first-degree murder but apparently his trial was not tried capitally…
Can a party “manufacture” appellate jurisdiction for an otherwise interlocutory appeal through the voluntary dismissal of remaining claims?  That question was generally answered in the negative by the Supreme Court in 2017 in Microsoft Corp. v. Baker, 137 S. Ct. 1702 (2017).  There, the Court held that  plaintiffs could not subvert the final-judgment requirement for appellate jurisdiction from 28 U.S.C. § 1291 to shortcut their way to an appeal of class certification by simply dismissing…
It doesn’t take long for those who read judicial opinions to come across an unsigned, “per curiam” decision. Many decisions from the U.S. Supreme Court, federal circuit courts, and our state Supreme Court are short-ish opinions that are not ascribed to a single judge or justice. There is a long history of using such opinions “by the court.” The most recent batch of opinions from the Court of Appeals included 5 unpublished per curiam opinions…
The Petition Tracker has been updated with the Supreme Court’s most recent allowed petitions for discretionary review. Although there were some special orders, the Court only allowed two petitions outright. One arose from the Industrial Commission, and the other involves the Raleigh Housing Authority. The Petition Tracker has also been updated to include the Court’s merits decisions on petitions that were granted. Of the petitions granted since January 2019, 6 were affirmed, 7 were reversed,…
Introduction Arbitration can be less costly and more efficient than litigation. For this reason, businesses often prefer to arbitrate their disputes, and include arbitration provisions in their contracts. North Carolina courts generally enforce these provisions, citing the state’s “strong public policy favoring the settlement of disputes by arbitration.” Johnston Cnty. v. R.N. Rouse & Co., 331 N.C. 88, 91 (1992). Against this backdrop, the Court of Appeals’ recent decision not to enforce an arbitration agreement…
The future is now, and the NCBA Appellate Practice Section wants to help you be ready.  With the state’s appellate courts, and other courts around the country, going to remote videoconference hearings because of the Coronavirus pandemic, a special program has been put together for May 27.  It is described as follows: Appellate Practice Section Panel Preparing for WebEx Oral Arguments in NC Appellate Courts You are invited to join the Appellate Practice Section…
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Last year, I blogged about State v. Ellis where a passing motorist gave a Highway Patrol trooper the middle-finger salute and was arrested for his trouble.  A divided Court of Appeals allowed the defendant’s conviction to stand.  The case made it to the Supreme Court, which recently issued an opinion reversing the conviction. A quick recap of our story.  A trooper was assisting motorists when he noticed that the passenger in a car driving by had extended…