Key Changes to NC Rules of Appellate Procedure

By Laura Graham

On Jan. 1, 2017, a comprehensive revision of the North Carolina Rules of Appellate Procedure took effect. The revised Rules apply to all cases appealed on or after Jan. 1. The revised Rules include some brand new provisions, and they also incorporate several changes that had been in effect for some time pursuant to stand-alone orders of the North Carolina Supreme Court.[1]  The revised Rules are available here: http://www.aoc.state.nc.us/www/public/html/pdf/therules.pdf.

No doubt, attorneys who regularly handle appeals have already scoured the revised Rules for brand new changes. But for the benefit of the rest of us, I’ve chosen to highlight five provisions in the revised Rules; the first three are new changes, and the other two are codifications of prior stand-alone changes.

• New font requirements for documents filed with the Court of Appeals and Supreme Court

Courier is out!  For many of us who grew up using manual typewriters, this may seem surprising. But there are reams of articles describing how non-proportional fonts like Courier make text harder to read,[2] and many jurisdictions’ appellate rules now prefer or require use of a proportional font.[3]  North Carolina’s new Rule 26(g)(1) states:  “All printed matter must appear in font no smaller than 12-point and no larger than 14-point, using a proportionally spaced font with serifs.”  The new rule gives two examples of permissible fonts, Constantia and Century.

• Word counts replace page limits for briefs

Rule 28(j) requires the use of word counts for all briefs submitted to the North Carolina Court of Appeals; page limits are out. Principal briefs may not exceed 8,750 words, and reply briefs and amicus briefs may not exceed 3,750 words. And you can’t get around the word count by using footnotes, because footnotes are included in the word count (as are citations). “Covers, captions, indexes, tables of authorities, certificates of service, certificates of compliance with this rule, counsel’s signature blocks, and appendices” are not included in the word count. Counsel must include a certification (placed right before the certificate of service) that the brief complies with the word count limit. Counsel may rely on “word counts reported by word-processing software, as long as footnotes and citations are included in those word counts.”

So how do these word counts correlate to the number of pages in a brief?  Of course, that’s impossible to say with specificity; it depends on what font you use. If you use 14-point font, you will end up with more pages than if you use 12-point font. There are many online tools for converting word counts to pages, but most of them don’t have options for Constantia or Century.[4]  And in the end, there’s no good reason to worry about how many pages you end up with. The whole point of word counts is to level the playing field; no matter what font and size each party chooses, both parties have the same amount of “air time” for their arguments.

• New procedure for en banc hearings in the Court of Appeals

 Effective Dec. 22, 2016, a new rule, Rule 31.1, allows a party to seek an en banc hearing in the Court of Appeals. The moving party must prove that en banc review is “necessary to secure or maintain uniformity of the court’s decision” and that “the case involves a question of exceptional importance.” A party can move for en banc consideration either before the case is heard by the panel or after the issuance of a panel opinion. The court may request new en banc briefs, but the parties are not entitled to file such briefs as of right.

• Changes to rules regarding reply briefs (effective April 15, 2013 per stand-alone order)

Previously, a reply brief was permitted only if (1) the court requested one or (2) the appellee raised new or additional issues in its brief. Rule 26(h) broadens the policy regarding reply briefs, generally permitting them; however, a reply brief must be “limited to a concise rebuttal of arguments set out in the appellee’s brief” and must not “reiterate arguments set forth in the appellant’s principal brief.”  While the word count for reply briefs is 3,750 words, Rule 26(h) permits the appellant to request an extension of the word count “to address new or additional issues presented for the first time in the appellee’s brief.”

• Changes to rules regarding exhibits (effective April 15, 2013 per stand-alone order)

The new Rules incorporate several prior changes to Rule 9, which governs the inclusion of exhibits in the record on appeal. Documentary exhibits can be included in the printed record or made part of the record by filing three copies with the clerk of the appellate court. Rule 9(d)(3) requires that social security numbers be deleted or redacted from copies of exhibits that are part of the record on appeal. While many attorneys may have been doing such redacting even before it was required, failure to do it is now a rules violation, so extra attention is warranted when reviewing all exhibits before filing the record.

These changes, and many others, require appellate practitioners to exercise some due diligence to become informed. Fortunately, we have many resources to help us in this effort. I myself am indebted to Allegra Collins, an appellate practitioner with Allegra Collins Law, who serves on the Appellate Rules Committee of the North Carolina Bar Association; her post about the revised Rules gave me the idea for this column, and she generously reviewed a draft of the column for accuracy. I am also indebted to Beth Scherer, an appellate practitioner with Smith Moore Leatherwood, current member and past Chair of the Appellate Rules Committee, who offers excellent coverage of these rule changes (and a wealth of other helpful posts) on the North Carolina Appellate Practice Blog, at http://www.ncapb.com/.

This article appears in the February edition of North Carolina Lawyer.

[1] The last comprehensive revision of the Rules was in July 2009.

[2] See, e.g., https://lawyerist.com/115103/hey-hey-ho-ho-19th-century-fonts-got-go/, which relies heavily on information in Matthew Butterick’s excellent book, Typography for Lawyers.

[3] Federal Rule of Appellate Procedure 32(a)(5) permits use of proportional or monospace type; if proportional type is used, it must be 14-point or larger.

[4] See, e.g., http://wordstopages.com/  (offering conversions only for Arial, Calibri, Comic sans MS, Courier New, Times New Roman, and Verdana).