Guidance on Filing Appeals in Civil Cases
Following a loss at trial, the attorney has to make a decision about whether to appeal the outcome.
A number of factors must go into this consideration: the likelihood of success on appeal, the facts and merits of the case, and what the client wants to do.
As these factors swirl, do not lose sight of the fact that there is a strict time limit in which to appeal. Under the North Carolina Rules of Appellate Procedure, Rule 3 (c), an appeal from a judgment or order in a civil action must be taken within thirty days after its entry. The time at which a judgment is “entered” is determined by Rule 58 of the Rules of Civil Procedure.
Likewise, under the Federal Rules of Appellate Procedure, the notice of appeal in a civil case must be filed with the district clerk within 30 days after the judgment or order appealed from is entered (FRAP Rule 3, 4).
Note that these time periods are tolled while the post-trial motions mentioned below are under consideration. The time to file an appeal runs from the entry of order disposing of the last of such post-trial motions.
Once the decision is made to appeal, the attorney must carefully review the Rules of Appellate Procedure. The appendices to these rules are an invaluable aid to the busy lawyer. The rules are specific even as to such matters as the format and style of filed documents. Appendix B sets forth the format and style requirements. Appendix A is a handy reference that sets out the timetable of Appeals with references to the applicable Rule. Appendix C sets out the required arrangement of the Record on Appeal. Appendix D provides forms for documents commonly submitted to the Appellate Courts. Appendix E provides guidance for the lawyer preparing the appellate brief.
It is imperative to sit down and carefully study the Rules. This is true whether it is your first or hundredth appeal. Failure to follow the rules may result in dismissal of the appeal. Wiseman v. Wiseman, 68 N.C. App. 252, 314 S.E.2d 566 (1984).
Following the close of evidence, a party may make a motion for a directed verdict (called a “motion for judgment as a matter of law” under the federal rules). See NCRCP 50 and FRCP 50.
If your motion for a directed verdict is denied, the case goes to the jury, and the jury finds against your client, you can make a motion for judgment notwithstanding the verdict (called a “renewed motion for judgment as a matter of law” under the federal rules).
Attorneys sometimes forget to make a motion for a directed verdict and/or a motion for judgment notwithstanding the verdict no later than 10 days after entry of judgment. However, if you win either of these motions, your client will prevail and you could avoid the cost of an appeal. Note, however, that you must make a motion for directed verdict at the close of evidence in order to later make a motion for judgment notwithstanding the verdict. This is true under both state and federal rules.
Note also that a party who moves for a directed verdict at the close of the evidence offered by an opponent (typically this is the defendant) must renew the motion at the close of all the evidence in order to preserve the right to move for a judgment notwithstanding the verdict.
If there were irregularities at trial, new evidence comes to light, or some other valid reason exists, you should consider making a motion for a new trial. See NCRCP 59 and FRCP 59. Generally, a motion for a new trial must be served not later than 10 days after entry of judgment.
Similarly, clerical mistakes, inadvertence, surprise, excusable neglect, fraud, and other valid reasons might provide grounds for filing a motion for relief from a judgment or order under NCRCP 60 and FRCP 60.
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