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6/5/2018
1
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?