Fourth Circuit Finds Gag Order Fails First Amendment Scrutiny

By C. Amanda Martin

Those who watch Fourth Circuit opinions already know this, but the court recently released an opinion ordering the Eastern District of North Carolina to vacate a gag order entered in ongoing litigation related to North Carolina hog farms. In addition to the importance of the core ruling – overturning the gag order – the Fourth Circuit’s opinion is a powerful statement about the importance of First Amendment rights and the need for trial courts to dot all the i’s and cross all the t’s before taking away those rights.

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Navigating Trial Decisions Through an Appellate Framework

By Kip Nelson

Trial lawyers have a hard job, and it’s easy for appellate lawyers reviewing a cold record to find fault in the decisions made by their predecessors. As others have recognized, a symbiotic relationship can occur when a trial lawyer and an appellate lawyer work collaboratively during trial to reach the best solution for the client. A recent Court of Appeals decision, Boone Ford, Inc. v. IME Scheduler, Inc., No. COA16-750-2 (N.C. Ct. App. Nov. 6, 2018), provides two helpful reminders for appellate practitioners working at the trial level.

First, the Court of Appeals reiterated that a party cannot move for judgment notwithstanding the verdict unless the party previously moved for a directed verdict. This rule might seem counterintuitive for a party who is asserting a claim; normally one thinks of a motion for directed verdict as being brought by a defending party. Nevertheless, because the third-party plaintiff in Boone Ford had not moved for directed verdict, the court concluded that any argument regarding the third-party plaintiff’s Rule 50 JNOV motion was “not preserved for appellate review.”

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A Family Practice. A Cunning Nurse. Does Section 75-1.1 Apply To Her Conduct?

By Stephen Feldman

North Carolina law prohibits unfair or deceptive acts “in or affecting commerce.”

But “commerce” doesn’t include “professional services rendered by a member of a learned profession.” This quoted language comes straight from Section 75-1.1.

One clear takeaway from this language is that a professional’s treatment of a patient or client doesn’t violate Section 75-1.1. A medical malpractice plaintiff can’t get treble damages.

It’s less clear, however, whether this language applies to claims about conduct between or among medical professionals.

This post studies a recent Business Court decision on that issue. The decision comes from a case styled Alamance Family Practice, P.A. v. Lindley, 2018 NCBC 82 (N.C. Super. Aug. 14, 2018).

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The Litigation Section Needs You!

By Philip Isley

For the entire 26 years of my practice, I have been a litigator. While my practice also includes non-litigation matters such as lobbying and “legal crisis management” (a fixer, so to speak…), the core of what I do – and what I’ve done for my professional career – is litigate. I’ve also had the honor of being a local elected official for eight years, and I can tell you that being a litigator certainly helped me with the transition into politics/advocacy/service to others. Politics also made me a better litigator by teaching me that relationships matter – whether with your opposing counsel, the judiciary, the courthouse staff, or anyone else you may run into on a regular basis. Politics also taught me this very valuable lesson: You can accomplish a great deal if you do not seek or crave credit for your accomplishments. This lesson has probably done more for me in the past ten years than anything else.

Help us plan for the future at the Litigation Section strategic planning meeting Aug. 17. Click for details.

If someone had asked me what a litigator was supposed to do when I graduated from law school, my answer would have most assuredly been, “A litigator is a fighter.” I probably felt this way for the first six to ten years of practicing law. I did not recognize that in addition to fighting, litigation is also supposed to be about solving problems. When asked today what I do as a litigator, my response typically is, “I try to fix problems whether litigation is involved or not, because at the end of the day, litigation sucks!” Perhaps that is a little too strong, especially given that is what we all do in our chosen profession. But, in all seriousness, how many times has this thought run through your head since you’ve been practicing law? I bet you’ve thought this when you’ve had to deal with your obstreperous client, or when your opposing counsel drives you crazy, or the costs to litigate have grown exponentially, or the judge has ruled against you, or WHATEVER problem du jour you are dealing with that erupts in any case that you are currently handling. Let’s face it, litigation can be challenging, frustrating, expensive, unfair and long – even if you win your case. But often, it is also the best tool trying to fix (or end) civil disputes.

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A Site For Your Sore Eyes

By Martha J. Efird

On June 19, 2018, the North Carolina Judicial Branch rolled out the new public website for our courts (https://www.nccourts.gov). The site is the culmination of the work of the Discovery Phase of the web redesign project and recommendations in the final report of the North Carolina Commission on the Administration of Law and Justice (NCCALJ). During the process, NCCALJ invited comments and suggestions from state bar members, other agencies, and community users of the state court website, as they innovatively worked to bring the judiciary, the bar, and the citizens of North Carolina an effective, user-friendly website.

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Litigation Section Honors Ward Black With Its Advocate’s Award

Janet Ward Black of Ward Black Law in Greensboro was honored on Feb. 7 as the 10th recipient of The Advocate’s Award.

Janet Ward Black, left, accepts The Advocate’s Award from Litigation Section Chair Amanda Martin during a Section reception on Feb. 7.

Presented as merited by the Litigation Section of the North Carolina Bar Association, the award recognizes “superstars” of the section and the legal profession.

Amanda Martin, section chair, presented the award in Greensboro during a special reception held in conjunction with a meeting of the Litigation Section council.

Attorneys and staff from Ward Black Law also participated in the event. Black is the principal owner of the 36-person firm, which is one of the largest woman-owned law firms in the state, and the first woman to receive The Advocate’s Award.

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For Section 75-1.1, the Dividing Line Between Contract and Non-Contract Claims Can Be Fuzzy

By Stephen Feldman

North Carolina courts have, on several occasions, attempted to describe the dividing line between ordinary breach of contract claims and claims that allege “substantial aggravating circumstances” relating to a breach. The latter category of claims violate N.C. Gen. Stat. § 75-1.1.

This blog post unpacks a recent decision that sheds light on this dividing line. The case is Swift Beef Co. v. Alex Lee Inc., authored by U.S. District Judge Max Cogburn.

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N.C. Supreme Court Rules That Brokers May Testify on the Issue of Fair Market Value

By Allen N. Trask III

In a recent opinion, the North Carolina Supreme Court expanded the possibilities of allowable testimony about a property’s fair market value. In its decision in North Carolina Department of Transportation v. Mission Battleground Park, DST, 810 S.E.2d 217 (N.C. 2018), the court held that the trial court had improperly excluded the testimony of a commercial real estate broker regarding the fair market value of property condemned by the North Carolina Department of Transportation (“NCDOT”). This article briefly explores the case facts and the reasoning of the decision and also discusses how this ruling affects condemnation or other types of cases.

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Road Trip! Road Trip!

By Bob Edmunds

In recognition of the Supreme Court of North Carolina’s 200th birthday, Chief Justice Martin recently announced that the Court is going to put on a road show. North Carolinians living outside Raleigh soon will be able to watch the high court in action without having to travel far.

For as long as anyone now living can remember, the Supreme Court routinely has sat in Raleigh, but it was not always so. When established in 1819, the Supreme Court met in the state capitol. However, as North Carolina’s population grew, so did pressure to meet in a venue convenient to citizens in the western part of the State. In 1847, the General Assembly passed legislation requiring the Court to hold sessions in Burke County.

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Court of Appeals Allows Section 75-1.1 Claim in Context of Residential Real Estate Transaction

By Jeremy Falcone

Courts have generally excluded residential real estate transactions from North Carolina’s Unfair and Deceptive Trade Practice statute, section 75-1.1. A recent decision from the North Carolina Court of Appeals, called Capps v. McSwain, addressed this exemption. This post explores this decision—including the reasons behind the exemption.

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