Don’t Let Your Opponent Bury You Under a Mountain of Business Records in Lieu of Answering Interrogatories

By Isaac Thorp

You have served interrogatories about the defendant’s construction of a defective roadway. The defendant responds to several of them by stating, “[T]he information sought by this interrogatory may be ascertained by a review of the construction diaries and other records. These documents are available for review, inspection and copying.” You arrive at defense counsel’s office to inspect the documents, and you’re directed to a storage room that contains 200 unlabeled boxes. “Good luck!” says his secretary, as she closes the storage room door. Is this proper?

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Senate Bill 698 Proposes Two-Year Terms For All North Carolina State Judges and Justices

By Molly Martinson

On October 17, 2017, North Carolina State Senator Rabon filed a bill in the State Senate to amend the North Carolina Constitution to limit terms of office for all state judges and justices to two years.

Currently, Article IV of the North Carolina Constitution provides that District Court judges are elected to four-year terms (N.C. Const. art. IV, sec. 10), whereas Superior Court judges, Court of Appeals judges, and Supreme Court justices are elected to eight-year terms (N.C. Const. art. IV, sec. 16).  Senate Bill 698 would amend the North Carolina Constitution to limit all such terms to two years.  Senate Bill 698 further provides that all terms of office for judges and justices both elected and appointed prior to July 1, 2018 shall expire on December 31, 2018.  Finally, the bill proposes that this constitutional amendment be put to a vote during the 2018 statewide primary election.

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Pro Se Responsive Pleading By Corporation/LLC Insufficient To Avoid Default

By Matthew D. Lincoln

North Carolina statute N.C.G.S. Section 84-5 prohibits corporations and limited liability companies from practicing law in this state. This prohibition occasionally arises in the litigation context when an entity—usually domiciled in another state—serves a pro se answer (or other response) to a complaint filed in a North Carolina court. Given that a plaintiff’s goal usually is to obtain a judgment as quickly and efficiently as possible, what should the plaintiff do in this situation?

In short, the plaintiff should file a motion asking the court (i) to strike the defendant’s responsive pleading, and (ii) for entry of default and default judgment. Seeking all such relief in one motion may seem aggressive in light of the court’s inclination to have disputes decided on the merits. Fortunately, however, for plaintiffs finding themselves in this scenario, there is authority supporting the award of such relief in a single hearing.

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A 12(b)(6) Motion Asserted As Part Of An Answer Will Not Suffice, At Least Not In The NC Business Court

By Rick Conner

Have you ever included a Rule 12(b)(6) motion to dismiss in your answer, with the intention of filing a more formal motion or submitting a detailed brief later? If so, you should be aware of a recent decision by Judge Michael L. Robinson of the North Carolina Business Court which casts further doubt on the legal legitimacy of this practice.

In New Friendship Used Clothing Collection, LLC v. Katz, 2017 NCBC 71 (N.C. Super. Ct. Aug. 18, 2017), one of the defendants, Katz, filed an answer on the response deadline which indicated that his first defense was a “Motion to Dismiss under Rule 12(b)(6).” Three days later, he filed a more lengthy 12(b)(6) motion with a supporting brief. Plaintiffs contended that Katz’s motion should be denied because the motion, filed after Katz’s answer, was untimely under Rule 12(b).

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New NC Law Adds Predictability To Litigation Involving Business Contracts

By Michael J. Parrish

North Carolina businesses commonly enter into contracts to buy or sell goods and services west of Murphy, north of Mount Airy, south of Charlotte, and even east of Ocracoke. When contracts such as these extend beyond state lines, businesses should intentionally assess and negotiate terms commonly called “choice of law” and “choice of forum” (or “forum selection”) provisions. These terms are up-front agreements to determine which state’s laws will govern any potential dispute relating to the contract, and in which state any potential lawsuit will be filed.

When potential disputes turn into actual litigation, choice of law and choice of forum provisions can be critical. For example, one state’s law may be more favorable to one of the parties, one of the parties could gain an advantage by litigating on its “home turf,” or one of the parties could save travel and business interruption cost by having the lawsuit filed nearby, rather than out of state. It isn’t uncommon for North Carolina businesses doing business with an entity from another state to see the advantage of applying North Carolina law and requiring litigation to occur in North Carolina.

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Lunch-hour CLE With a Rock Star: The Slants Front Man Talks About the Legal Battle To Name His Band

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Spend your Monday lunch hour chatting with a rock star while earning CLE/CPE credit. Register for the webcast “A Name Worth Fighting For: How Naming My Band The Slants Got Me To the Supreme Court,” featuring rocker Simon Tam, presented by the NCBA CLE Department. Members of the NCBA  Intellectual Property Law, Litigation, and Sports & Entertainment Law sections enjoy a discounted rate.

Tam, founder and bassist of The Slants, will talk about how his fight with the U.S. Patent and Trademark Office over his band’s name led to a U.S. Supreme Court case. The webcast discussion runs from noon to 1 p.m. on Monday, Sept. 18. Tam will answer audience questions and speak frankly about racism, legal troubles and his incredible stories of playing in the world’s “first and only Asian-American dance rock band.”

Here’s a preview of Monday’s conversation, based on a Q&A with Joyce Brafford, NCBA’s  Distance Learning Manager for CLE.

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The U.S. Supreme Court Limits Discovery Sanctions to Compensation, Not Punishment

By Neil Bloomfield

It is not every day the U.S. Supreme Court pays attention to matters that affect the practice of discovery, but that day came with Goodyear Tire and Rubber Co. v. Haeger, 137 S.Ct 1178 (April 18, 2017). Writing for a unanimous Court, Justice Kagan explained that when a court exercises its inherent power to sanction bad-faith conduct by ordering a party to pay the other side’s legal fees, the award is limited to the fees that would not have been incurred but for the sanctioned party’s conduct.

The Court’s decision provides useful guidance, but leaves open interesting questions that litigants and district courts will be wrestling with for years to come.

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Prepare (some) for Mediation


By Paul T. Flick

Mediation is an alternative dispute resolution process used in lieu of formal procedures, where a neutral mediator attempts to help the parties come to a mutually acceptable agreement. The mediator can facilitate negotiations, review positions, exchange offers, point out the best and worst possible outcomes, etc. It is mostly an informal process, but typically follows a general pattern of holding an opening session where all parties and their lawyers are present and then holding separate caucuses.

Lawyers should prepare for mediation ahead of time, but not overdo it. While all mediations are different and rely some on the style and skill of the mediator for a successful mediation, proper preparation by the lawyers for the parties sets the table for a successful, or unsuccessful, mediation.

So, in short, how should a lawyer prepare for mediation?

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The Chair’s Comments: New Year, New Focus, New Blog

By C. Amanda Martin


Networking and education. If you’ve ever wondered why most people belong to the NCBA Litigation Section, it’s networking and education. Quite a few of you answered our recent survey – 164 of you, to be exact – and overwhelmingly that’s what you said. Over half said that you’d be most likely to attend a Section meeting if it had some kind of substantive program. About half of you said you would be most likely to attend a Section CLE if it were closely related to your field. (That answer sounds obvious, but it beat out CLEs that were inexpensive or in fun or close locations.) And asked what you most valued or would like to see in our Section, again and again you answered “CLE or other high quality education” and “networking opportunities.”

You’ve spoken, and we’ve listened. Your Section Council got together at the first of this month in a planning and brainstorming session to discuss how we can best serve you and give you what you want. Here is what we came up with.

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