Appellate Practice for Trial Work
A trial lawyer recently described appellate practice to me as “a lot of rules and timelines” that are “really complicated.” The good news is there are lawyers who enjoy appellate practice. The better news is if you are a trial lawyer, you do not have to know all the intricacies of appellate practice.
There are four main things trial lawyers need to know about appeals:
1. Appellate Deadlines. This looks like the easiest thing to know. In civil cases, rule 3 of the North Carolina Rules of Appellate Procedure gives you 30 days to file and serve notice of appeal from the judgment you want to appeal. In criminal cases, rule 4 gives you 14 days (you can also give oral notice in court). If you do not file and serve your notice of appeal in time, you have lost the right to appeal.
But looks can be deceiving. There are two exceptions to the deadline.
First, certain motions can toll the deadline to appeal. A rule 60 motion to set aside a judgment does not toll the deadline to appeal. Wallis v. Cambron, 194 N.C. App. 190, 192-93, 670 S.E.2d 239, 241 (2008). (If I wrote in all capital letters, I would write this in all capital letters). Rule 50(b) or 52(b) motions generally do toll the deadline to appeal.
A rule 59 motion for a new trial or to amend a judgment might toll the deadline—but only if you follow the rule closely. Your motion must cite the specific rule 59 grounds you are alleging and explain how those grounds apply. You cannot use rule 59 to amend non-final (i.e., interlocutory) orders. Doe v. City of Charlotte, ___, N.C. App. _____, ____ 848 S.E.2d 1, 7 (2020). (Again, all caps). You cannot use rule 59 as a substitute for appeal; the motion must be based on one of errors listed in Rule 59(a). Smith v. Johnson, 125 N.C. App. 603, 606, 481 S.E.2d 415, 417, disc. review denied, 346 N.C. 283, 487 S.E.2d 554 (1997).
Second, if the order is not a judgment (i.e., it is not a final order) you do not have to immediately appeal it.
2. Interlocutory Appeals. An appeal of a non-final order is called an interlocutory appeal.
Trial court orders are of two varieties: final and interlocutory. A final order disposes of all claims against all parties. E.g., Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994). Any other order is interlocutory. Normally, you must wait to until a final order is entered to appeal an interlocutory order. There are three cases when you can immediately appeal an interlocutory order.
First, the order is final as to some (but not all) claims or parties and the trial court certifies under Rule 54(b) that there is no just reason to delay the appeal. Second, one of the grounds listed in N.C.G.S. §§ 1-277 or 7A-27(b)(3) exists. Third, the order affects a substantial right and that right will be lost, prejudiced, or inadequately preserved without an immediate appeal. The substantial right doctrine is tricky. Even our courts admit the test “is more easily stated than applied.” Waters v. Qualified Pers., Inc., 294 N.C. 200, 208, 240 S.E.2d 338, 343 (1978).
The Appellate Rules Committee has an excellent guide on appealing interlocutory orders. Regardless of the legal standard for appealing an interlocutory order, practical concerns can often drive the decision to appeal an interlocutory order. These practical concerns typically look like weighing the cost of an appeal now and the risk of having the Court of Appeals dismiss the appeal as interlocutory against the harm to your client if you wait to appeal.
3. Issue Preservation. This is one of the most important aspects of appeals for a trial lawyer to know
If you do not make an argument at the trial court, you generally cannot make the argument at the Court of Appeals. E.g., Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934). Rule 10 of the Rules of Appellate Procedure requires you to make a “timely, request, objection, or motion stating the specific grounds for the ruling [you] desire.” There are issues that are preserved as a matter of law and, in criminal cases, errors so grave you need not object (i.e., plain error—which only applies in criminal cases). These issues may save you after the fact. But do not rely on them.
If you understand two concepts, you will understand much of issue preservation. Those concepts are timeliness and the record.
Timeliness is simple. If you want the court to do something, you must ask them to do it at the appropriate time. And the court has to decide whether to do it. You need a timely objection or motion and a ruling on that objection or motion. This is most important at trial. For example, when the other side offers inadmissible evidence, you must object, and the court must rule on the objection. If you do not object before the evidence is admitted or the court does not decide the objection, you likely have not preserved that issue. And the Court of Appeals probably will not review issues you did not preserve. This is true of motions practice too: your motion must be timely, and the court must rule on it. Moving for a new trial 20 days after the trial is over and the judgment is entered will not preserve your issues.
The record is slightly more complicated. When the Court of Appeals reviews your case, they only review certain documents you give them. To prove you have preserved an issue, the “specific grounds” for the “ruling you desire” and the court’s actual ruling on that issue need to be in those documents. Those documents are the record, transcripts, and a narration.
Getting issues in the record is the simplest. Write a brief or a motion explaining what you want the court to do and why. Submit it to the court. When the court rules against you, get a written order saying that. Whoever represents your client on appeal should make sure the motion, the brief (if there is one), and the order are all in the record on appeal. If the motion, brief, and order are in the record, the Court of Appeals can see what you asked for, why you asked for it, and what the trial court did. That shows the Court of Appeals you preserved your issues.
Getting issues in a transcript is fairly simple too. Make sure your hearing or trial is recorded or a court reporter is present. Tell the judge what you want her to do and why. Make sure the judge actually rules on your request (i.e., “granted”, “denied,” “sustained,” or “overruled”). Having that in the transcript means the Court of Appeals can see you preserving your issues. You can wait up to 14 days after you file notice of appeal to order the transcript. But why wait? Order a transcript as soon as you know you are going to appeal.
If you cannot get a transcript and your issue is not in the record, you may be able to use a narration. A narration is a statement about what happened at a hearing or trial. Narrations are very uncommon. You should not rely on narrations to preserve issues because opposing counsel does not have to agree to your narration.
4. Offers of Proof. Offers of proof are really a type of issue preservation. But they are complicated enough they need their own section.
The problem is fairly simple. You’re at trial and you have critical evidence. You try to get the judge to admit the evidence. Opposing counsel objects and the judge sustains the objection. When you go the Court of Appeals, you want to say, “I would have won if the judge admitted my evidence.” But how is the Court of Appeals supposed to know what your evidence would have been if the judge admitted it?
Offers of proof resolve this issue. After the judge has sustained an objection, ask to make an offer of proof. Be respectful—you are basically telling the judge you might appeal her decision. Do not treat offers of proof as opportunity to reargue the objection. You might get away with just telling the judge what your evidence would have been. But why take the risk? Our courts say the “preferred” way to do an offer of proof is by giving the court your evidence. If it is witness testimony, have the witness testify (without the jury present, obviously). If it is a document, give the document to the clerk.
If the judge gives you a hard time about an offer of proof, show the judge Rule 103(1) of the Rules of Evidence, Rule 43(c) of the Rules of Civil Procedure, and (in criminal cases) N.C.G.S. § 15A-1446. These rules explain that you must make an offer of proof for the record to preserve your issue. You’re not being a sore loser (at least you shouldn’t be); you’re making sure your issues are preserved if you want to appeal.
This article does not cover every aspect of appellate practice—which is why you should hire an appellate attorney to at least consult on your appeal. But these four points can help make sure you do not lose your appeal before the briefs are even filed. That will go a long way to ensuring the Court of Appeals decides your case on the merits instead of on a procedural defect and getting a decision on the merits is the first step to winning on the merits.
Dan Gibson is a partner with Stam Law Firm in Apex, NC. His practice focuses on civil litigation and appeals. His most recent published opinions are Fund Holder Reports v. N.C. Treasurer, 854 S.E.2d 64 (2020) and Mitchell v. Boswell, 851 S.E.2d 646 (2020).