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2018 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

MARK A. DAVIS

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

DONNA STROUD

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A VIEW FROM THE BENCH

Tips from a North Carolina appellate

judge on a wide variety of topics designed to

improve the brief-writing and oral

advocacy skills of practitioners with cases

before the North Carolina Court of

Appeals.

DO:

Know Your Audience.

DON’T:Make Your Briefs Any Longer Than They Need to Be.

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DO:Make Your Briefs as Organized

as Possible.

DO:Be Aware of the Limits on Appellate Jurisdiction

DO:Understand What We Can andCannot Do.

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DO: 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.

DO:Be Logical --Frame Each Issue in

Your Case as a syllogism.

And avoid syllogistic fallacies!

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DON’T:Make Arguments Based on Sympathy.

DON’T:

Argue

Credibility.

DO:

Keep Your

Credibility Gauge

“On Full”

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DON’T:

Exaggeratethe ApplicabilityofPrecedents.

DO:Try to Avoid

.

DO: Avoid Typos in Your Briefs.

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DON’T: Let the Court See FrictionBetween You and Opposing Counsel.

DON’T:RepeatArguments

DO: Reserve Footnotes for when they arereally necessary.

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DO: Master the Record on Appeal.

DO:Avoid Unnecessary Dates and Facts in Your Briefs.

DO:Make Specific Citations in Your Brief to the Record on Appeal or

Exhibits.

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DO:Make Sure You are Using the Correct Version of a Statute.

DO: Cite cases from other jurisdictions when appropriate.

DO: Include a LEGIBLE map if your case involves any issue regarding real property boundaries,location, etc.

Actual “map” exhibit in actualRecord on Appeal!

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DO:Show Your Math.

DON’T: Make arguments That Were

NOT Made tothe Trial Court.

DO:Use Good Judgment in Deciding Which

Arguments to Raise on Appeal.

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DO:Challenge Specific Findings of Factas Appropriate.

DO:Use Block Quotes Sparingly in Briefs

DO:File Petitions for Rehearing ONLYin ExtraordinaryCases.

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DO:File Petitions for Rehearing ONLY in Extraordinary Cases.

DO:File Memoranda of Additional Authority as Soon as YouBecome Aware of the NewAuthority.

DO:Consider Filing a ReplyBrief.

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For Appellees Only….

DO: Follow in Your Brief the Organizational Structure of Appellant’s Brief….

Even if it’s confusing.THEN add what youneed to add.

DO:Address Every Argument

Made by Your Opponent in your brief (but not necessarily at

oral

argument.)

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TIPS FOR ORAL ARGUMENT

DON’T:Spend the Beginning

Of Your Oral

ArgumentStating

the Facts.

DON’T:Talk Over the Judges When They are Asking Questions.

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DO:Consider Visual Aidsat OralArguments.

DO:Be Flexible in Your Preparation

for Oral Argument.

DO:Try to Anticipate Questions You are Likely to be Asked

at OralArgument.

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DO:Answer Questions From the Bench Directly.

DO:Admit if You Don’t Know the Answer to a Question Posed by the Panel.

DO:Bring a“Cheat Sheet” to the Podium.

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DO:Use Oral Arguments to Correct Any Mistakes

You Have

Made in

Your Brief.

DO:Reserve Rebuttal Time at Oral Argument andUse It Wisely.

DO: Make Sure Your Oral

Argument Presentation TakesInto Account Your Opponent’s Presentation

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DO: KNOW HOW TO E-FILE!1.Make sure that you haveregistered your email address for e-filing and that you are using your registered email 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) 831-5708.

DO: Consider Appellate Mediation.It’s Free!

About 50% of participatingcasesare settled!

Questions?