APPELLATE LAW
The North Carolina Court of Appeals and Supreme Court hear appeals from the trial level in North Carolina’s 100 counties. Appeals are heard by a three-judge panel. Most appeals cannot be filed until there has been a final adjudication on the merits of a given case. Any Court of Appeals decisions that aren’t decided by a unanimity have an automatic right to appeal to the North Carolina Supreme Court. The North Carolina Supreme Court may also exercise its discretion to entertain any appeal from the Court of Appeals, should it see fit to do so.

The Fourth Circuit Court of Appeals entertains appeals from the federal district courts of Maryland, West Virginia, Virginia, North Carolina, and South Carolina. The United States Supreme Court hears appeals from the Fourth Circuit.

Special procedural rules apply for the North Carolina Court of Appeals and Supreme Court as well as the Fourth Circuit Court of Appeals.

Trey has handled numerous appeals at the North Carolina state court appellate level and the Fourth Circuit Court of Appeals.


Who has the right to appeal a case?

All parties have a right to ask for judicial review of a judgment rendered by a judge and/or jury at the trial level. However, mere dissatisfaction with the outcome is not a basis for appeal—some reversible error must have been committed.

How do I know if I have grounds for an appeal?

You should first consult the lawyers who handled your case at trial or, if you weren’t represented by counsel, you should locate a lawyer with appellate experience. It may also be wise to ask another lawyer to review your case for a fresh, objective perspective. Some questions to ask when examining whether there is a basis for appeal are:
  • Did the judge misinterpret the law?
  • Did the judge misapply the law to the facts?
  • Did the judge admit evidence that should not have been allowed?
  • Did the judge refuse to admit relevant evidence?
  • Did the judge enter a judgment that wasn’t supported by the greater weight of the evidence?
  • Should the judge have overturned the jury’s verdict?
  • Was the judge’s decision within his/her sound discretion or does the law require a different outcome?

Where should my appeal be filed?

For state court cases, appeals are filed with the North Carolina Court of Appeals in Raleigh, NC; the Fourth Circuit Court of Appeals in Richmond, VA entertains appeals from the federal district courts of Maryland, West Virginia, Virginia, North Carolina, and South Carolina.

How do I appeal my case?

To properly perfect an appeal, a Notice of Appeal must be filed in the trial court within thirty (30) days of entry of the judgment or order from which an appeal is taken. Various other rules and deadlines dictate the procedure that must be followed thereafter and care should be taken to follow those requirements precisely. Click here for the procedural rules for the North Carolina Court of Appeals and Supreme Court and here for the Federal Rules of Appellate Procedure and Local Rules of the Fourth Circuit Court of Appeals.

The deadline for filing my appeal has passed—is there any way to still appeal my case?

Maybe. For cases appealed to the North Carolina Court of Appeals and Supreme Court, Rule 21 of the Rules of Appellate Procedure permits parties to petition for a writ of certiorari to have an untimely case heard. To be successful, the North Carolina Court of Appeals and Supreme Court will likely require the appealing party to make some showing of excusable neglect or other justification for the untimely filing.

In federal cases, the right to appeal is permanently lost if the deadline is not met.

What is the process for an appeal?

Generally speaking, an appeal is initiated by filing a Notice of Appeal with the trial court. The appealing party then pays the court reporter to prepare the transcript of the trial or hearing that is appealed. The appealing party prepares a record on appeal (a comprehensive set of all relevant documents) and confers with the other parties to determine whether additional documents should be included.

Once the record is settled, the appealing party files a brief explaining the reversible errors it believes the trial court committed and what the proper result should have been. The other parties then have an opportunity to file their briefs in response and, shortly thereafter, the appealing party files a reply brief.

The court of appeals will then decide whether to allow oral argument by the parties or render a decision based on the arguments raised in the briefs.

After due consideration of all parties’ positions, the court of appeals will file a written opinion. If the opinion is “published” it will constitute binding legal authority for not just the instant case, but also future cases with similar issues. If the opinion is “unpublished” it only affects the case on appeal.

What should I include in the record on appeal?

All relevant pleadings and documents considered by the trial court and bearing on the issues on appeal should be included in the Record on Appeal. Rule 9 of the North Rules of Appellate Procedure and Rule 10 of the Federal Rules of Appellate Procedure specify exactly what must be included. The transcript of the pleadings is filed separately in appeals from state courts, but included in the record on appeal at the federal level.

Should the trial transcript be included in the record on appeal?

If only portions of the transcript are relevant to the appeal, those portions may be included in the record on appeal. If a verbatim transcript of the entire proceeding is needed, it should be filed separately, with relevant portions attached as appendixes to the briefs.

For federal appeals, the transcript is included in the record on appeal.

What do I do if I forgot to include something in the record on appeal?

A party may file a motion to amend the record on appeal and courts of appeal generally allow them. Care should be taken, though, to avoid mistakes, since the failure to include documents or filings will not be viewed favorably by the appellate courts.

Do all cases have oral arguments?

No. Appellate courts have the discretion to decide whether oral argument will be of assistance to the court. If, for example, the issues raised on appeal are frivolous, involve well-settled legal principles, or do not advocate for a change in the current status of the law, the appeals court may dispense with oral arguments and decide the case on the basis of the briefs.

How long do the judges have to make a decision?

Appeals are typically lengthy endeavors and the appellate courts may take as much time as necessary to file an opinion. From the time the Notice of Appeal is filed, it may be a year or longer until the case is decided. The North Carolina Court of Appeals, North Carolina Supreme Court, and the Fourth Circuit Court of Appeals, as a general rule, render a decision within three to six months after oral argument.
Other questions about this or whether you have a claim? Click here