Planning To Pursue An Appeal From A Business Court Decision? It’s A Jungle Out There!

Editor’s note: This is an updated version of the article that first appeared in the June 2016 edition of “The Litigator,” the NCBA Litigation Section newsletter. The article was updated Aug. 3, 2016.

By Beth Scherer and Matt Leerberg


When first established in 1995, the Business Court was touted as a way to make North Carolina’s “court system as responsive and predictable as the Delaware Chancery Court in dealing with complex corporate issues.”  The Business Court has largely delivered on its promise of ease of use and predictability based, in part, on assignment of cases to a single (and highly qualified) Business Court judge and an e-filing system that practitioners could utilize from any jungle paradise (with wi-fi access).  Practitioners must take heed, however.  At the end of each Business Court case lurks a menacing tiger: North Carolina appellate practice and procedure!

Over the past two years, at least seven different appellate traps have emerged for North Carolina Business Court cases, many of which have resulted in dismissal of appeals.  Those traps have been discussed extensively on our North Carolina Appellate Practice Blog (  This article summarizes several potential snares, with links to the detailed blog posts for those who seek more information about taming the beast.

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Waiting Game: How Long Does It Take the N.C. Court Of Appeals To Issue Opinions?

Rakes,KenzieBy Kenzie M. Rakes

I am often called upon to answer questions related to pending appeals because I recently completed a clerkship at the Court of Appeals of North Carolina. When asked how long it will take the Court of Appeals to issue an opinion, I always say it is impossible to know with certainty, but the court has an internal policy of trying to issue opinions within 90 days of the date the appeal is scheduled for argument. After being involved in an appeal as an advocate, I decided to determine how long it takes the court to issue opinions.

First, I calculated the number of days it took the Court of Appeals to issue opinions in 2015 by counting the days from the date the appeal was scheduled for argument (regardless of whether oral argument was granted) until the date the opinion was issued. Not all appeals have an argument date. For example, some opinions are issued after the Supreme Court of North Carolina remands the case or after the Court of Appeals grants a party’s petition for rehearing. If the appeal was not argued, I treated the date that the appeal was remanded or the date the petition for rehearing was granted as the argument date.

Based on this methodology, I determined that the court issued opinions an average of 77 days after argument in 2015. The median was 62 days.

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Prepping For Mediation: Practice Tips for Young Litigators

TierneyBy O. Craig Tierney Jr.

Editor’s note: This article appeared originally in The Advocate, the newsletter of the NCBA’s Young Lawyers Division.

When The Advocate asked me to write an article about helpful tips for having an effective mediation, I took some time to reflect on how my personal preparation and tactics for mediation have changed over the last 20-some years. Civil litigation/mediation slowly but surely morphed from a passive “Well, let’s show up and see if we can settle at mediation” attitude, to an active “What do we need to do prior to mediation to secure a favorable settlement?”

Fundamentally, your client cares little about litigation drama. Your client cares about getting a good result that is cost effective and timely. Mediation can deliver all of that in spades. But, like almost anything in life, getting there takes some work and prior planning. Several hours of careful thought, strategy and planning about 60 days prior to a mediation will greatly increase the chances of having a successful mediation.

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Cultural Exchange Missions: The Importance of Participation

Richard GabrielRichard Gabriel, a member of the NCBA’s International Law & Practice Section and frequent participant in the attorney exchange program, reflects on the 2010 excursion to Turkey in light of the recent terrorist attack at the Istanbul Atatürk Airport.

The world seems different at night, in the absence of the brightness of the daytime. So it was, late at night, not resting, up to grab a book and turn on the TV, sound muted out of respect for those asleep. Then the vision on the tube, eerily familiar, not really sure, and the crawler at the bottom of the screen announces yet again, a bombing at an airport.

The panic on the screen, all too familiar scenes of turmoil, fear, hurriedly hit the sound button, and then the realization: I have been there before, the airport at Istanbul, Turkey.

Thoughts come in a flood: Alp, were you there at the time of the explosion, meeting another group of visitors and preparing to show them your country?

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There’s No Place Like Home: Job Searching From an Out-Of-State Law School

2014_Lindquist_-005By Aaron Lindquist

When attending an out-of-state law school, the stress of job searching can make you wish you had the ability to click your heels three times to return home like Dorothy in “The Wizard of Oz.” As a recent law school graduate and licensed North Carolina attorney, I can say that there are options and ways to ease the stress of job searching from an out state law school. After leaving North Carolina to attend law school in Virginia, I knew that I would need to be intentional with my job search if I wanted to return to North Carolina.

Job Search Options at an Out-of-State Law School

There are four major sources that can be utilized to help ease the stress of job searching from out of state.

Career Services Offices. OK, you got me. This is the easy answer. Yet, I was surprised at how many of my fellow classmates failed to utilize the Career Services office. I had several students tell me that they never set foot in the Career Services Office other than for required events. Do not waste a convenient valuable resource that is included in the price of tuition. Become familiar with your Career Services office and utilize their job bank. I applied to a large number of North Carolina state court clerkships through my Career Services office. Additionally, I found a large number of jobs posted by small firms looking for new attorneys in North Carolina. On a related note, most Careers Services offices have reciprocity agreements with other Career Services offices around the country. If you are not sure that your Career Services office has a reciprocity agreement with a law school in your home state, go ask. You can only improve your chances of getting a job by asking.

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Five Things I Wish I’d Learned In Law School

Omer,DavidThis post originally appeared on the Law Student Division page, where you can find it and more advice for newly minted lawyers.

By David G. Omer

Law school is a strange creature.  You spend three long years sacrificing your sleep, your credit rating, your relationships, and your sanity.  In return, you get the opportunity to take the bar exam and start a career where you get to challenge yourself every day, help countless people, and maybe even make a little money along the way.  As you’ve (hopefully) learned, law school is all about filling your brain with points of law and forcing you to think your way around the gray areas.  For all the substantive information you pick up during your time as a law student, however, there are some important things that get left along the wayside.  As a recently licensed lawyer in North Carolina, I appreciate the opportunity to fill you in on a few things I didn’t learn until I made it out into the “real world.”

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Road Warriors: All-Time Favorite Vietnamese Food In Matthews

By James Walker

Road Warriors is back and is celebrating its 15th anniversary with the new 24th edition. The column, a long-standing feature in the Workers’ Compensation Section newsletter, Course & Scope, focuses on lunch eateries around the state. This special anniversary and celebration of Road Warriors revving up its engines again is devoted to my all-time favorite, Ben Thanh Vietnamese Restaurant. All the tips and comments from our membership have made Road Warriors possible. Please email me at with your favorite lunch stops and they may appear in following editions. If you take a moment to write a review, we’ll put it in the next edition if possible.

Ben Thanh Vietnamese Restaurant

1806 Windsor Square Drive

Matthews, NC 28105

(704) 566-1088

Ben Thanh has been a perennial favorite Asian restaurant in the Charlotte area for many years. And no wonder. The very best of Charlotte’s Vietnamese presence is on display at my all-time favorite restaurant. It’s like a journey through time to another era and to an exotic, mysterious tropical destination.

Ben Thanh’s family owned restaurant has its roots in the former Saigon of then South Vietnam. The culture and food are vastly different from the North, being a tropical region in the Mekong River Delta. The popularity of the flavorful, healthy food from this region has spread wildly around the world, with the beef and rice noodle soup phó having legions of followers.

Phó is seductively simple: rice noodles in an herbal/spiced broth, topped with various cuts of beef in different stages of doneness. When served, the patron garnishes the bowl with Thai basil, lettuce, bean sprouts and cilantro. Hot peppers are optional. Careful here, especially with the little red, nuclear tipped Thai chilies. Try Ben Thanh menu item No. 24 to have phó.



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‘Making A Murderer’ Defense Attorneys Hope To Spark Change

Having binge-watched Making a Murderer during January’s epic snow, my law-partner husband and I attended the DPAC presentation: “Dean Strang and Jerry Buting: A Conversation on Justice.” Dean is a UVA Law graduate, as is my husband. Jerry is a UNC Law graduate, as am I. My husband taught Jerry contracts and UCC.  On that cold January day, we felt an affinity for both. When the NCBA arranged a member event outing including a pre-presentation meeting with Dean and Jerry, pictured above, we said “Count us in!”

As the world now knows, Dean and Jerry defended Steven Avery against murder charges in the tragic death of Teresa Halbach in Manitowoc County, Wis.  The Netflix documentary about the case is an internet sensation.  The public conversation about the separate convictions of Steven Avery and his nephew Brendan Dassey includes the topics of wrongful conviction, police misconduct and prosecutorial misconduct.  The documentary generated so much interest that a petition to pardon Steven Avery addressed to President Barack Obama (who has no authority in this state case) garnered more than half a million signatures.

During our private meeting with Dean and Jerry and the public presentation, lots of questions were asked about the case. One of interest to me was how two defense attorneys ended up in a documentary filmed during a murder trial. The answer: Laura Ricciardi and Moira Demos began their work with the Avery family before either Dean or Jerry were engaged as counsel.  The film crew was a reality when their representation began.  They did not choose it. They had trepidation about it.  Both now believe that it has cast light where light must be cast.

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Google Proposes the Creation Of a Woman Lawyer Emoji, But Why?

If you had to draw a picture of an attorney, what would it look like?  How would your drawing of a male attorney compare to one of a female attorney?

I love emoji. I admit it.  And while they are fun, some academics are contemplating whether emoji may develop into a new language altogether and change our written communication to look less like a novel and more like a comic book.  While it’s easy to express happiness with 🙂 and sadness with 🙁 , how do you express a more complex idea or concept like a profession?  These are the new concepts we are all facing, and regardless of who we blame for the rise of emoji (cough cough *Millennials* cough cough), we need to start getting used to the idea that words+graphic=communication.

How might lawyers be affected?

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Single Platform Seeks Smart Lawyer: The Case for the iPhone-Only Law Office, Part 1

When was the last time you checked your phone? Was it in the last hour? The last 15 minutes? The last 5? Are you reading this article on your phone right now? Chances are, if you’re a Boomer or a Millennial, you check your phone more than 20 times a day (even during meal times). In fact, according to a report based on a recent Nielsen Poll, the worst offenders aren’t teenagers, they’re people aged 25-54.

Now, I’m not here to cast aspersions, or to chastise you in front of your peers. Just the opposite, in fact. I know that none of us are likely to untether from the grid. We use our phones to respond to clients, take notes at depositions, videochat with remote business associates. We have good reasons to be on our phones, and we’re not going to stop using them. So we must create business practices that adhere to the current reality. And for this reality, I postulate that we create iPhone Only law offices. Why?

  1. Lawyers use mobile devices, and ignoring the implications of working on a smartphone is irresponsible.
  2. Using a single platform is better for almost any business, including law firms.
  3. Security, Security and … Security.

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