On Thursday, the Supreme Court of North Carolina issued its latest amendments to the North Carolina Rules of Appellate Procedure. The amendments impact word-count limitation applicable to appellate briefs and parental leave.
Rule 3.1 Supreme Court Briefs are Subject to Rule 28(j)’s Word Count Limitation
Historically, word-count limitations have not applied to appellate briefs filed in either direct or secondary appeals to the Supreme Court. In January 2019, the Supreme Court overhauled Appellate Rule 3.1 to reflect a shift of appellate jurisdiction over a subset of Rule 3.1 juvenile appeals from the Court of Appeals to the Supreme Court. As noted here, I was surprised to learn during a March 2019 CLE that the Supreme Court was interpreting Appellate Rule 3.1(f) to implement a word-count limitation for Rule 3.1 briefs filed in the Supreme Court. The September 2019 amendments now remove any doubt: Rule 3.1 briefs filed in either appellate court are subject to Appellate Rule 28(j)’s word-count limitation.
But what about “secondary” or “New” appellate briefs filed in the Supreme Court when a juvenile case is appealed to the Supreme Court after a decision by the Court of Appeals? My best guess continues to be that these “secondary” appellate briefs are not subject to a word-count limitation. For an explanation of my reasoning, see here (under the bullet point, “What About “New” Supreme Court Briefs?”).
Still, I would be interested to know if anyone had a different perspective on these secondary appellate briefs.
Parental Secured Leave
Under the prior secured-leave rule, attorneys practicing before our State’s trial and appellate courts were entitled to only three weeks of secured leave per year. New little humans are cute as a button, but terribly demanding—particularly during the first few months of their lives. And if you think due dates are unpredictable, try predicting adoption dates! Bottom line, the prior secured-leave rule was not friendly to new parents.
The Supreme Court has changed that. Amended Appellate Rule 33.1 (along with a corresponding change to Rule 26 of the General Rules of Practice) provides much-needed relief to sleep-deprived parents. Attorneys are now permitted to designate an additional 12 weeks of secured leave per year to take care of a child after its birth or adoption.
The new, parental-leave amendments have several family-friendly features:
Secured leave can be taken within 24-weeks of a child’s birth or adoption. Therefore, a two-attorney household could collectively use their 12-week, secured-leave periods to ensure that primary care of a child was being provided by a parent for the first six-months after a child’s birth or adoption.
Taking advantage of the 12 weeks of parental leave does not chip into the three weeks of secured leave previously afforded by Appellate Rule 33.1.
The amended rules encourage courts to adopt a flexible approach to secured leave, noting that “because of the uncertainty of a child’s birth or adoption date,” courts are expected to “make reasonable exception to the [secured leave designation] requirements so that an attorney may enjoy leave with the child.”
The more pronounced impact will be felt in the trial courts, where in-court appearance and depositions are common. In the appellate courts, this expanded, secured-leave policy prevents oral arguments from being scheduled while an attorney is on secured leave. Notice of appeal, record, and briefing deadlines are not impacted by the new amendments.
Still, I suspect that the appellate courts will be open to giving an attorney additional time to file an appellate record or brief when an appellate deadline falls within a secured-leave period. Attaching adorable newborn photos to a motion for extension of time are completely optional, but 99% effective at producing spontaneous smiles.
The Supreme Court appears eager to show off its family-friendly amendments. At 10:00 a.m., Tuesday, September 10, Chief Justice Beasley held a press conference on the new amendments. You can watch the presentation on Facebook Live.
Elizabeth Brooks Scherer counsel at Fox Rothschild, LLP. She is a North Carolina State Bar Board Certified Specialist in Appellate Practice. Beth has briefed and argued cases in both the North Carolina appellate courts and the U.S. Court of Appeals for the Fourth Circuit. She has also represented clients before the Supreme Court of the United States. Additionally, Beth assists and counsels attorneys throughout North Carolina in preparing their appeals, complying with rules of appellate procedure and correcting appellate rules violations.