North Carolina Appellate Practice Blog

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

Latest from North Carolina Appellate Practice Blog - Page 2

Another week, another published ruling on an en banc rehearing petition from the Fourth Circuit.  Last week we saw Judge Niemeyer arguing in a published concurring opinion that en banc review should be denied so that the case of Gavin Grimm could proceed more quickly to the Supreme Court.  (Conversely, Judge Wynn concurred with the denial on the grounds that the panel majority was completely consistent with Supreme Court’s recent precedent, and thus there…
A few years ago I wrote about The Curious Cases(s) of the Published Denial of Rehearing.  In that post,  which focused on two published denials of rehearing from the Fourth Circuit in the span of a week, I noted a prior instance of this relatively rare occurrence in the much publicized case of Gavin Grimm (then known in the caption as “G.G.”), the transgender male Virginia high school student who sought to use the
The Fourth Circuit announced today that in-person oral arguments would continue to be suspended for the October 27-30 argument session.  As with the September session, cases assigned to pre-argument review “will be scheduled for argument by video-conference or teleconference, submitted on the briefs, or continued to a later session, at the direction of the panels in each case.” Link to announcement is here. –Patrick Kane…
Requesting that trial judges modify their judgments or orders is not for the faint of heart.  Informing a trial judge that he or she has likely goofed is not fun, but it is often necessary.  Indeed, the Appellate Rules usually force litigants to alert trial judges to potential errors in the hopes that they will fix their errors—saving valuable judicial and party resources by obviating the need for an appeal.  See Elizabeth Brooks Scherer &…
Matt blogged last week on Doe v. City of Charlotte, in which we were given multiple lessons in both how to and how not to handle an appeal.  Authoring Judge Dietz’s pre-bench experience as an appellate practitioner shows. This month, we were also treated to State v. Smith (No 119PA18, filed 14 August 2020), a helpful opinion from the Supreme Court detailing an aspect of issue preservation in criminal cases that the Court addressed earlier…
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…
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…