6/5/2018 MARK A. DAVIS DONNA STROUD NCADA Annual Meeting AS S O C I AT E J U D G E, N. C. C O U R T O F AP P E AL S

Transcription

1 2018 NCADA Annual Meeting MARK A. DAVIS A S S O C I AT E J U D G E N C C O U R T O F A P P E A L S DONNA STROUD AS S O C I AT E J U D G E, N. C. C O U R T O F AP P E AL S 1

2 A VIEW FROM THE BENCH Tips from a North Carolina appellate judge on a wide variety of topics designed to improve the briefwriting and oral advocacy skills of practitioners with cases before the North Carolina Court of Appeals. Know Your Audience. DON T: Make Your Briefs Any Longer Than They Need to Be. 2

3 Make Your Briefs as Organized as Possible. Be Aware of the Limits on Appellate Jurisdiction Understand What We Can and Cannot Do. 3

4 Craft Your Argument Based on the Applicable Standard of Review. DON T: Assume the Judges on Your Panel are Experts in the Legal Areas Governing Your Appeal. Be Logical --Frame Each Issue in Your Case as a syllogism. And avoid syllogistic fallacies! 4

5 DON T: Make Arguments Based on Sympathy. DON T: Argue Credibility. Keep Your Credibility Gauge On Full 5

6 DON T: Exaggerate the Applicability of Precedents. Try to Avoid. Avoid Typos in Your Briefs. 6

7 DON T: Let the Court See Friction Between You and Opposing Counsel. DON T: Repeat Arguments Reserve Footnotes for when they are really necessary. 7

8 Master the Record on Appeal. Avoid Unnecessary Dates and Facts in Your Briefs. Make Specific Citations in Your Brief to the Record on Appeal or Exhibits. 8

9 Make Sure You are Using the Correct Version of a Statute. Cite cases from other jurisdictions when appropriate. Include a LEGIBLE map if your case involves any issue regarding real property boundaries, location, etc. Actual map exhibit in actual Record on Appeal! 9

10 Show Your Math. DON T: Make arguments That Were NOT Made to the Trial Court. Use Good Judgment in Deciding Which Arguments to Raise on Appeal. 10

11 Challenge Specific Findings of Fact as Appropriate. Use Block Quotes Sparingly in Briefs File Petitions for Rehearing ONLY in Extraordinary Cases. 11

12 File Petitions for Rehearing ONLY in Extraordinary Cases. File Memoranda of Additional Authority as Soon as You Become Aware of the New Authority. Consider Filing a Reply Brief. 12

13 For Appellees Only. Follow in Your Brief the Organizational Structure of Appellant s Brief. Even if it s confusing. THEN add what you need to add. Address Every Argument Made by Your Opponent in your brief (but not necessarily at oral argument.) 13

14 TIPS FOR ORAL ARGUMENT DON T: Spend the Beginning Of Your Oral Argument Stating the Facts. DON T: Talk Over the Judges When They are Asking Questions. 14

15 Consider Visual Aids at Oral Arguments. Be Flexible in Your Preparation for Oral Argument. Try to Anticipate Questions You are Likely to be Asked at Oral Argument. 15

16 Answer Questions From the Bench Directly. Admit if You Don t Know the Answer to a Question Posed by the Panel. Bring a Cheat Sheet to the Podium. 16

17 Use Oral Arguments to Correct Any Mistakes You Have Made in Your Brief. Reserve Rebuttal Time at Oral Argument and Use It Wisely. Make Sure Your Oral Argument Presentation Takes Into Account Your Opponent s Presentation 17

18 KNOW HOW TO E-FILE! 1.Make sure that you have registered your address for e-filing and that you are using your registered address to file. 2. Check your password! Update if needed. 3. Please upload brief and appendix as ONE document (not separately). 4. If you receive a message that your login failed (your account has been locked) you need to call the Appellate Courts IT at (919) Consider Appellate Mediation. It s Free! About 50% of participating cases are settled! Questions? 18