Sometimes you fall headlong into a chorus you thought you knew by heart—only to discover the bridge is where all the action is. For appellate practitioners, that action seems to be happening more and more in orders issued by...more
In appellate litigation, the written brief does most of the heavy lifting. It aims to convince the court that an error has occurred. But it is a cold document and cannot anticipate or respond to all of the panel’s questions....more
In National Collegiate Student Loan Trust v. Phelps, the Illinois Supreme Court held that a notice of appeal was untimely filed, where the half-sheet shows that the court entered judgment more than 30 days before....more
The Illinois Appellate Court recently held that a breach of fiduciary duty claim, brought by one sibling against another, was in effect a claim against their father’s estate and therefore time-barred....more
Yesterday, I posted on the State v. Hardaway case and the use of a “concurrence dubitante” by Judge Hampson to flag his concerns with the binding holding of the earlier-decided State v. Jenkins case. Having thought a bit...more
This blog has spent a lot of ink discussing file stamps. Indeed, two Halloweens ago we devoted an entire blog post to the ghoulish topic of missing file stamps and sua sponte dismissals. I’m happy to report that...more
Yesterday, the Supreme Court of North Carolina amended Appellate Rule 36(b) to conform with the General Assembly’s recent amendment to N.C. Gen. Stat. § 1-283. Under the Appellate Rules and by statute, settling the record...more
Here is a typical scenario. You appeal your case to a federal or state appellate court. The briefing is done and dusted. The case is argued. Everyone is patiently waiting for the appellate court’s decision. Then — voila — the...more
On July 22, 2025, the Virginia Court of Appeals issued a published order in Sisco v. Holtzman, Rec. No. 024025, clarifying the rules for assignments of error in appellate proceedings. Assignments matter. The Court of Appeals...more
Whether you're the appellant or the appellee, knowing when an argument is properly preserved goes a long way. The United States Court of Appeals for the Fourth Circuit publishes very few opinions, so finding a roadmap for...more
For many moons, North Carolina was one of the few jurisdictions in which the losing party at the Court of Appeals could pursue an appeal as of right to the Supreme Court if the party managed to snag a dissenting opinion from...more
Attorneys love rules. And our adversarial legal system functions best when both sides understand and follow common rules. So one Maryland appellate rule has always confounded me because it is routinely construed as meaning...more
Last week’s blog touched briefly on the need to provide appellate courts with an adequate record of trial court proceedings that are the subject of an appeal. Without an adequate record – in almost all cases, a verbatim...more
A dissenting opinion in the Court of Appeals has long been a litigant’s Golden Ticket, at least until a recent statutory change. The mere existence of the dissent bestowed an automatic right of appeal to the Supreme Court of...more
Civil lawyers love written notices of appeal. Have you ever heard a civil attorney say, “I wish I could orally notice an appeal”? Me neither. But the criminal trial bar overwhelmingly give oral notices of appeal in state...more
Big news out of the Court of Appeals for criminal practitioners. In State v. McLean, the Court of Appeals addressed a notice of appeal that was given orally the day after the trial ended and the defendant was sentenced. There...more
Long-time readers of this blog may remember the fun I’ve had finding photos reflecting the ups and downs of en banc rehearing in the Court of Appeals. The General Assembly first authorized en banc review in 2016, with the...more
Can an appellee say that the lower court got it wrong? If so, when? In many appeals, the alignment of interests is clear: the appellant is the party who disagrees with the ruling at issue, and the appellee is the party who...more
2024 amendment: Unveiling unpublished opinions - The Oklahoma Supreme Court’s recent amendment to Rule 1.200 on February 26, 2024, continues the court’s shift towards judicial modernization and transparency, allowing...more
In the days before digital printers, anyone who appealed a trial court ruling needed to find a printing company to print both his appellate brief and the record of the trial on an actual printing press so that it could be...more
The Appellate Rules Committee, of which I am currently chair, has been busy considering various amendments to the rules. The Committee has recommended certain changes, and the Supreme Judicial Court has now proposed...more
“Over there” in this context refers to the Orphans’ Court – theoretically a “division” of the Court of Common Pleas (the trial court) in each Pennsylvania county. Orphans’ Court matters include adoptions, name changes, will...more
The Commission on Nevada Rules of Appellate Procedure, created by the Nevada Supreme Court in 2021, and tasked with considering whether the Nevada Rules of Appellate Procedure (“NRAP”) should be updated, recently filed a...more
The year 2024 holds the potential for significant developments in the World Trade Organization (WTO) dispute settlement mechanism. With the upcoming 13th Ministerial Conference (MC13) in February, members may reach agreements...more
Thirty years ago, Justice Scalia famously described the Supreme Court’s Lemon test as “some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and...more