Supreme Court Issues Order Amending The North Carolina Rules Of Appellate Procedure: 2018 Holiday Edition

by Fox Rothschild LLP

It is beginning to feel like an bi-annual holiday tradition between me and our blog readers: another rule-update summary.  Yesterday afternoon, the Supreme Court issued its latest order amending the North Carolina Rules of Appellate Procedure.  The amendments impact Appellate Rules 3, 3.1, 4, 9, 11, 12, 13, 18, 26, 28, 30, 37, 41, brand new Appellate Rule 42, as well as Appendixes A, B, and D (whew)!

Based on my initial analysis, below is a summary of those amendments.

The appellant’s brief is now due 30 days from the filing (rather than mailing) of the printed record

Under the prior appellate rules, the appellant’s initial briefing deadline was tied to the appellate clerk’s mailing of the printed record to the parties. This prior rule was a remnant of a bygone era in which (1) the appellate clerk selected from the settled record a subset of documents to include in the printed record, and (2) the appellate court’s “typing pool” reproduced, formatted, and paginated those printed record pages.  Because the precise contents of the printed record were unknown when the settled record was filed, the appellant’s briefing deadline was tied to the mailing of the newly-created printed record.

In modern appellate practice, the printed record is basically produced verbatim from the settled record filed by the appellant.  Other than (1) affixing that iconic “goldenrod yellow” cover, (2) inserting the date the record was filed and mailed, and (3) dividing large printed records into multiple volumes, the printed record is essentially reprinted as filed by the parties.

Because of the new rule, appellants in the New Year will have a little less time to prepare and file their initial appellate brief.

I also suspect that this change may soon end the appellate clerk’s practice of physically mailing a printed record to the parties—and perhaps with it, the disappearance of that beloved “goldenrod yellow” cover.

Parties must now file only a single copy of record-related supplements

Under the old rules, parties were required to file one copy of the printed record and transcripts.  All other record documents had to be filed in triplicate (unless the document was e-filed in the Supreme Court, which has long accepted electronically filed records). 

In the New Year, the appellate courts appear to be beefing up their housekeeping practices by continuing to dispense with extra paper. Under the new rules, the appellant will only file a single copy of any Rule 9(d) Documentary Exhibits, Rule 11(c) Supplement, Rule 18 Supplement, or Rule 9(b)(5) Supplement.

While in the Court of Appeals parties cannot presently e-file most components of the record, I feel confident that the ability to electronically file all, if not most, record components is a feature that will be coming soon.

Overhaul to Appellate Rule 3.1

Rule 3.1 appeals have always seemed a bit like a three-headed monster.  For example, the process of settling the record bore little resemblance to the normal record-settlement process, with parties who disagreed about the contents of the record filing separate records on appeal.  As of January 2019, though, a subset of Rule 3.1 appeals (i.e., TPR cases) will be appealed directly to the Supreme Court. Because the old rule only contemplated direct appeals to the Court of Appeals, this jurisdictional shift necessitated a bit of a tweak to Appellate Rule 3.1.

Rather than applying a Band-Aid fix, the Supreme Court has given Rule 3.1 an overhaul.  A few noteworthy changes include:

  • Transcript Delivery. The court reporting manager and the court reporter now get a little extra time to prepare and deliver Rule 3.1 transcripts to the parties in indigent appeals (but a little less time in non-indigent Rule 3.1 appeals).
  • Service of Transcripts.  The court reporter is now required to serve copies of the appellate transcript on all parties to the appeal. This is a complete 180-degree change from the prior rule, which stated that the transcript only had to be served on the ordering party.  Issues regarding who is supposed to pay for the “appellee’s copy” of the transcript have plagued appellate practitioners for decades. This change basically means that in Rule 3.1 cases, the ordering party will purchase a single “appellate transcript” that the transcriptionist will be required to deliver to all parties. The ordering party’s per-page transcript price may increase a bit, but ultimately everyone will get a copy of the transcript.
  • Proposed Record Process. The process in Rule 3.1 appeals for serving a proposed record (as well as objections or amendments) now follows the basic structure found in Appellate Rule 11(c)—just on a more abbreviated schedule.  Nonetheless, the appellant now has an extra five days to serve the proposed record on appeal.
  • Record Disputes. When the parties to the appeal disagree regarding the contents of the record on appeal, the regular procedures for settling the record found in Appellate Rule 11 will be followed.  Consequently, parties in Rule 3.1 cases will no longer file separate appellate records when they disagree on content.  Instead, disputed content will usually be placed in a Rule 11(c) Supplement, while in more limited circumstances judicial settlement of the record may be necessary.
  • No separate briefing rule.  Although the old and new briefing deadlines are essentially the same (except that the appellant’s briefing deadline in Rule 3.1 cases has always been tied to the mailing of the printed record), the previous version of Appellate Rule 3.1 had a separate provision regarding the timing for filing appellate briefs.  New Rule 3.1 does not. Thus, the briefing requirements are governed by the same timing rules found in Appellate Rules 13 and 28(h).
  • Electronic filing mandatory.  Unless an exception is granted, appellate counsel is required to file all documents in Rule 3.1 cases electronically—which will include all record components in Rule 3.1 cases taken to the Court of Appeals.  This is a significant change from traditional practice, in which attorneys that were more comfortable with paper filings could continue to do so even after the advent of e-filing capabilities.
  • No-merit briefs.  Revised Rule 3.1 contains different language about no-merit briefs, but it does not appear to resolve the debate among Court of Appeals judges about how the appellate courts are to review such cases.  The Supreme Court may have decided to resolve those differences of opinion through the Rule 3.1 cases now making their way to the Supreme Court.
  • Oral arguments.  The revised Rules do not explain whether (or to what extent) oral arguments will be different for Rule 3.1 cases.  That is likely an example of the evolving nature of oral arguments in these appeals.
  • No priority (at least on paper) Old Rule 3.1 provided that those cases would be “given priority” over other cases before the Court of Appeals.  The revised Rule 3.1 contains no such language.

Revised Appeal Information Statement

Appellate Rule 41, which addresses Appeal Information Statements, has been gutted. It now provides simply:  “The appellant must complete an Appeal Information Statement using the electronic-filing site at before the appellant’s brief is filed.”  Embedded in this sentence is a lot of new features:

  • An AIS must be electronically completed at;
  • An AIS is now due before the filing of the appellant’s brief, and
  • An AIS is now required in direct appeals to both Court of Appeals and the Supreme Court.  It would also presumably be required in a secondary appeal to the Supreme Court following a decision by the Court of Appeals.

The current Appeal Information Statement Form on the Court’s website (1) is restricted to appeals pending before the Court of Appeals, (2) is due “at or before” the time for filing the appellant’s brief, and (3) can be mailed.  As amended Appellate Rule 41 does not take effect until January 1, 2019, I suspect that the appellate courts will push out a new and improved online AIS form in the coming week. So stay tuned.

If you have not done so already, get your e-filing privileges lined up!   The appellate courts are moving another step further into the world of mandatory e-filings.

Introducing a New (and Improved) Appellate Rule 42: Sealed Items and Confidential Information

Back in 2009, the Supreme Court consolidated Appellate Rule 42 into Appellate Rule 1 and, in the process, reserved Rule 42 for future use. The future is here.

As of January 2019, Rule 42 will govern the handling of sealed items and confidential information in the appellate courts.  The beginning of this blog post listed numerous appellate rules being affected by these 2019 amendments.   Most of those amendments relate to the Supreme Court’s decision to take privacy-related requirements out of individual rules and, instead, move them all into newly created Rule 42.  Appellate Rule 42 has several important features:

  • Once Sealed, Always Sealed.  Items sealed in the trial tribunal remain under seal in the appellate courts.  Rather than filing a motion, counsel must attach a copy of the order, statute, or other legal authority that authorized the sealing of the item in the trial tribunal.
  • Automatic Sealing Categories.  Certain types of appeals (whether appeals of right or appeals of grace) are automatically sealed, regardless of their confidentiality status in the trial tribunal.  The types of appeals governed by this provision are as follows:
    • Abuse, neglect, dependency, and termination of parental rights;
    • Juvenile delinquency appeals; and
    • Any appeal under 7A-27 involving a sexual offense committed against a minor.
  • Stipulations.  Parties must insert a stipulation in the record regarding the agreed-to pseudonyms that the parties will use when referring to minors in their briefs, petitions, and motions.
  • Motions to Seals.  When an item was not sealed in the trial tribunal or automatically by operation of Rule 42, parties may move the appellate court for permission to seal the item.
  • New Notice for Sealed Documents.
    • Sealed documents must include the following notice on the first page: “UNDER SEAL AND SUBJECT TO PUBLIC INSPECTION ONLY BY ORDER OF A COURT OF THE APPELLATE DIVISION”
    • If the document under seal is included within another document, then this notice must also be displayed at the top of the first page of that other document. In other words, if a party attaches a sealed record document to its appellate brief, then the first page of the appellate brief must contain the notice as well.
    • Non-documentary exhibits filed under seal must be submitted in a box or envelope that contains the notice.
    • The previous notice mandated under old Appellate Rule 3.1 is no longer required.
  • Expanded List of Protected “Identification Numbers.” 
    • Under the old rules, only Social Security numbers were specifically required to be redacted.
    • Under new Rule 42, the following numbers must either be excluded or redacted from all documents filed in the appellate courts.
      • Driver license numbers,
      • Financial account numbers,
      • Social Security numbers, and
      • Tax identification numbers
    • The Rule also recognizes an exception whenever one of the above numbers is “necessary to the disposition of the appeal,” in which case a party must move to seal the document in which the number appears.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Fox Rothschild LLP | Attorney Advertising

Written by:

Fox Rothschild LLP

Fox Rothschild LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at:

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit
  • New Relic - For more information on New Relic cookies, please visit
  • Google Analytics - For more information on Google Analytics cookies, visit To opt-out of being tracked by Google Analytics across all websites visit This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at:

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.