Nine Rules for Winning Your Case in the
North Carolina Court of Appeals
Judge K. Edward Greene
N.C. Court of Appeals
July 24, 1997
to the American Judicature Society, Charlotte, North Carolina
1. Preserve your record at the trial level. For example, object to the instructions of the trial judge; put the answer of the witness in the record, if the trial judge sustains an objection to your question; make sure the in camera hearing is recorded; articulate your specific reasons for objecting to the evidence being offered; articulate the basis for your motions for directed verdict, your motions for a new trial, etc. See generally N.C. R. App. P. 10(b)(1) (1997). Rule 10 provides that "to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context." Id. The Rule also provides that the party "obtain a ruling upon the party's request, objection or motion." Id.
A party may not assign error to a jury charge "unless he objects thereto before the jury retires to consider its verdict, stating distinctly that to which he objects and the grounds of his objection." N.C. R App. P. 10(b)(2). The trial judge is required to provide the parties with an opportunity to make their objections outside the presence of the jury, id., and the failure to so provide probably relieves the party from making such an objection.
If not preserved, the alleged error cannot be the basis of an assignment of error. If you have no basis for an assignment of error, you have no basis to appeal. Of course, in the area of criminal law, there is the concept of plain error, which allows a party to assert on appeal an error occurring in the trial court, even though not raised at trial. N.C. R App. P. 10(c)(4). To constitute plain error, however, the error must have been particularly egregious. There is no such thing as plain error in the context of civil law.
2. Give timely notice of appeal. The notice of appeal is not filed in the appellate courts, as in some states -- but in the clerk of court's office in the county where the order was entered. N.C. R. App. P. 3(a). You have 30 days in which to give your notice in civil cases -- that is 30 days after the entry of the order. N.C. R. App. P. 3(c). The 30 days is tolled in those instances where certain motions are filed, i.e., a Rule 59 motion for a new trial. N.C. R. App. P. 3(c)(4). The Court of Appeals has accepted as timely an appeal occurring later than 30 days after entry of judgment, when the party had objected to the entry of the judgment and the notice of appeal was taken within the 30 days from a subsequent judgment and stated that the appeal was from both the earlier and later judgment. Collins v. Collins, 125 N.C. App. 113, 114, n.1 (1997).
The notice must be specific as to what order you are appealing from, N.C. R. App. P. 3(d), and all parties to the action must be served. N.C. R. App. P. 3(a). There are special rules to appeal juvenile cases and termination of parental rights cases. See N.C.G.S. § 7A-289.34, -666.
There is the continuing problem of determining when the entry of judgment or order by the trial court is made, but do not take any chances with this. It is rarely a problem to appeal too early. An appeal filed too late is deadly -- as the appellate court is not vested with subject matter jurisdiction. An appellate court may not waive improper notice of appeal pursuant to Rule 2, which permits the appellate court to waive imposition of a rule "[t]o prevent manifest injustice to a party, or to expedite decision in the public interest." N.C. R. App. P. 2.
The time limit in criminal cases is 10 days after entry of the judgment. N.C. R. App. P. 4(a). The appeal can be either oral or in writing. Id. I suggest you always put it in writing, to avoid confusion.
3. Settle the Record on Appeal. The parties need to agree on what will be included in the record on appeal. See generally N.C. R. App. P. 11. Many appellants lose their case at this stage by not including in the record those items that are required for the appellate court to understand the case. For instance, a party may argue that the trial court erred in its jury instructions, but fail to include the jury instructions in the record.
The rules provide that if the parties cannot agree to what should be in the record, the trial judge who presided over the case being appealed will meet with the parties and order what will be included in the record. N.C. R. App. P. 11(c). This settlement is effectively a final decision, even though there is a right to seek review in the appellate courts by a petition for writ of certiorari -- a discretionary type of review. Rule 9 specifies what needs to the included in the record on appeal. For example, a record for a civil action must include: a statement identifying the trial judge, a copy of the summons, copies of the pleadings, copies of the issues and verdict, copy of the notice of appeal, and anything necessary for "establishing time limits relative to the perfecting of the appeal." See N.C. R. App. P. 9(a)(1). Of course the evidence "necessary" for an understanding of the appeal may be included as narrative or a verbatim transcript of the proceedings can be used. N.C. R. App. P. 9(a)(1)(e). And most importantly, a listing of the assignments of error. N.C. R. App. P. 9(a)(l)(k).
4. Assignments of error. The assignments of error shall "be stated at the conclusion of the record on appeal, in short form without argument, and shall be separately numbered." N.C. R. App. P. 10(c)(1). Each assignment shall be "confined to a single issue of law; and shall state plainly, concisely and without argumentation the legal basis upon which error is assigned." Id. It should direct the appellate court to the record where the error appears with "clear and specific record or transcript references." Id. Table 4 of Appendix C of the Rules sets out some good examples. For example: "The denial of defendant's motion to dismiss under Rule 12(b)(2) on the grounds that the uncontested affidavits show no grounds for jurisdiction existed." In our court, assignments of error are a real problem for appellants, as they either get argumentative or set forth no grounds in support of the contention. This rule violation is waivable pursuant to Rule 2.
5. File a good brief. The function of the brief is to "define clearly the questions presented to the reviewing court and to present the arguments and authorities upon which the parties rely in support of their respective positions." N.C. R. App. P. 28(a). If the issue is not discussed in the brief, even though an assignment or error is asserted, the issue is deemed abandoned. N.C. R. App. P. 28(b)(5). The brief should also contain a procedural history of the case along with "full and complete statement of the facts." N.C. R. App. P. 28(b)(3), (4). Only those facts "which are necessary to understand all questions presented for review, supported by references to pages in the transcript of proceedings, the record on appeal, or exhibits." N.C. R. App. P. 28(b)(4). The appellant is required to reproduce as appendixes to its brief: "those portions of the transcript of proceedings . . . to understand any question presented" and "relevant portions of statutes, rules, or regulations, the study of which is required to determine questions presented in the brief." N.C. R. App. P. 28(d)(1). There is a 35-page limit in the Court of Appeals, N.C. R. App. P. 28(j), and an 11 point type is to be used. See N.C. R. App. P. 26(g), see also Lewis v. Craven, 122 N.C. App. 143, 468 S.E.2d 269 (1996) (setting out how many letters on each line and how many lines per page).
The best advice I can give a brief writer: articulate the applicable standard of review. For example, is the appellate court's review de novo or is it bound by the decision of the trial court if supported by competent evidence. Also, limit your discussion to no more than five or so assignments of error. A brief that attempts to discuss a large number of assignments of error in a 35-page brief is ineffective. Maybe it can be done in the Supreme Court, where there is no page limitation, but I suspect it is a problem there as well. You do not want the court to feel as though you are wasting their time with frivolous arguments. It tends to discredit your good arguments.
6. Oral Arguments. The appellant is entitled to open and close the argument. N.C. R. App. P. 30(a). "oral arguments should complement the written briefs, and counsel will therefore not be permitted to read at length from briefs, records, and authorities." Id. Each side has thirty minutes to argue. N.C. R. App. P. 30(b)(1). If the members of the Court of Appeals panel "conclude that oral argument will not be of assistance to the court, the case will be disposed of on record and briefs." N.C. R App. P. 30(f)(2). The Supreme Court has a similar rule but rarely invokes it. N.C. R. App. P. 30(f)(1). The Court of Appeals uses it often. In fact, we hear about only 10% of the cases filed in the court. Lesson: Make sure your brief is good.
Here are some tips for oral argument: Pay attention to the questions of the judges. Those questions reflect the very issues the court is concerned with. This is your opportunity to influence them. Do not read! I suggest that you do not take anything other than an outline to the dais because there will be a tendency to rely on written material. Go straight to the major issues -- those on which you have the best shot of convincing the court. Do not attempt to cover each of your arguments. Save time for rebuttal and listen to the appellee's argument and address those points. Admit you could not find any law on point. Acknowledge the law that is against you. Argue public policy, why the court should rule in your favor, and the consequences of a ruling against you. Do not spend a lot of time on the facts -- just integrate them into your discussion of the law. Avoid citing cases in your oral presentation. Know and refer to the judges by name and remember that judges on the Supreme Court are known as "justices." Know also which side of the table to sit on (appellant sits on the judges' left). Be assertive in your argument and show to the court that you believe in what you are saying and that you know this case better than anyone. The fact is you should -- you have been living with this case for years, whereas the judges on the appellate court have just learned about it. This is your opportunity to teach them and do this in a respectful, helpful, and humble way.
7. Stays pending appeal. The perfecting of an appeal stays all further proceedings in the trial court. N.C.G.S. § 1-294 (1996). An appeal is actually perfected when it is docketed. But the perfecting of an appeal does not stay the execution on a judgment. Once perfected, it relates back to the giving of the notice of appeal. To avoid confusion, however, the best approach is to seek a stay of the execution or enforcement of the order appealed from. See N.C. R. App. P. 8(a). If denied or if time does not permit the filing of such a motion in the trial court, a writ of supersedeas can be filed in the appellate court. Id. The question is whether the writ is required to maintain the status quo.
8. Remember that you are an officer of the Court. Always be fair and open to the court. Tell them of cases that are directly on point and those against you.
9. Best defense can be a good offense. Be aware of your right to cross-assign error. See N.C. R. App. P. 10(d). Here you argue that an action or omission of the trial court "deprived the appellee of an alternative basis in law for supporting the judgment, order, or other determination from which appeal has been taken." Id. Of course, the appellee may also appeal, that is, seek to reverse some other aspect of the holding of the trial court.
Application of these principles in the Trial Court. With the exception that the Rules of Appellate Procedure do not apply to the trial court, the other ideas I have suggested are appropriate in the trial court. It is even more important at the trial court level that the written brief be concise and clear. Often the trial judge will need to read it on the spot or while on a lunch break. You can generally anticipate the tough issues that you will be faced with during the trial and it is always a good idea to have a brief ready for the court.
Best argument I have ever heard? The lawyer, who was arguing for the appellant, took no notes to the podium. He told the court why the case was important, not only to his client but to this State; explained what happened in the trial court and why that outcome was wrong and in need of correcting; and reviewed in specific terms the law that would support our ruling in his favor. He also forecast the argument of the appellee and told us why that was not consistent with current law and why it would represent bad public policy. Then, he encouraged questions and did not let them interfere with the flow of his argument. Instead, he used them to make his points.