Between the Gaps of Trial Courts’ Orders

SCOGGIN v. SCOGGIN is the case that lets a judge change his mind after the oral rendition. Whatever the trial judge said in court matters not: the written order can be completely different. This spurred a debate among lawyers. The Debate “A great rule!” said some lawyers. “If your judge, upon studied reflection, sees that his oral ruling was wrong, he will correct himself. Surely, in the end, you’d rather have the best decision possible. Why should a judge be stuck with a rendition that he realizes was wrong?!” “Because this leads to uncertainty,” objected other lawyers. “In the olden days, if the trial judge was wrong,…

Between the Gaps of Trial Courts’ Orders
    12/04/2016   Orders, Orders You Can't Appeal

SCOGGIN v. SCOGGIN is the case that lets a judge change his mind after the oral rendition. Whatever the trial judge said in court matters not: the written order can be completely different. This spurred a debate among lawyers. The Debate “A great rule!” said some lawyers. “If your judge, upon studied reflection, sees that his oral ruling was wrong, he will correct himself. Surely, in the end, you’d rather have the best decision possible. Why should a judge be stuck with a rendition that he realizes was wrong?!” “Because this leads to uncertainty,” objected other lawyers. “In the olden days, if the trial judge was wrong,…

La Dona È Mobile
    10/18/2016   Appellate Procedure, Child Custody, Citations for Obvious Points, Orders

What if a trial judge announces an order on the record, then goes home and has a change of heart? Sure, he already told the lawyers and the litigants that Mother can have the custody of the kids, but he did not actually put it in writing. Can the judge back out? If  he said that custody goes to Mother, can he wake up the next day and write an order giving custody to Father? The Court of Appeals today spoke plainly on the subject. Somewhat surprisingly, the answer is “yes.”  The oral pronouncement means nothing at all. The written order can…

Can’t Appeal Your Own Consent.
    05/21/2016   Appellate Procedure, Citations for Obvious Points, Orders You Can't Appeal

It is a truth acknowledged among all lawyers: the more obvious the point, the harder it is to find a good cite. For a long time, I could not find authority for the obvious proposition: you can’t appeal a consent order. You might ask: “Why would you want a case for thaaaat?! Who’d be simple enough to appeal a consent order?” Oddly, people appeal consent orders with decent regularity. I do not know why that is. Maybe the clients find themselves consenting in court to all sorts of things they later come to regret. Courts are disorienting that way. Whatever the reason, it happens. A lot….

8,750 Words Is All It Takes, After All?
    05/06/2014   Appellate Procedure, Potential Pitfalls

I wrote in this earlier post that O’Neal v. O’Neal, 738 S.E.2d 190 (2013) may have created a new hurdle for the appellants in North Carolina. The North Carolina Court of Appeals in O’Neal criticized the Appellant’s attempt to challenge the trial court’s findings of fact. Ultimately, the Court of Appeals even refused to review that challenge to the findings of fact. That was unexpected because the Appellant in O’Neal had taken all the ordinary steps to accomplish her challenge. In her Issues on Appeal, she listed the offending findings by number; in her Brief-in-Chief, she listed the findings by number…

Appeal That Wasn’t
    05/01/2014   Attorneys, Contempt, News, Sanctions

North Carolina Lawyers Weekly published a correction regretting its errors in coverage of one of my appeals—an appeal which never existed. In January 2014, North Carolina Lawyers Weekly reported that I was personally held in contempt and was appealing that order. In April of this year, North Carolina Lawyers Weekly conducted additional independent investigation, and found that there was no such order in the first place. On April 21, 2014, North Carolina Lawyers Weekly corrected its earlier publications, wanting its readers to know: Attorney Aylward was not fined $4,600 (North Carolina Lawyers Weekly regrets the error) Attorney Aylward did not insult the…

Uh-oh. I Think I Need a Bigger Box.
    03/23/2014   Appellate Procedure, Attorneys, Motions, Potential Pitfalls, Recuse a Judge, Sanctions

A year ago, the North Carolina Court of Appeals handed down an opinion in O’Neal v. O’Neal, a small domestic case. The O’Neal opinion keeps me awake at night. When I need to pull an all-nighter, I sometimes re-read a couple of pages, and it shakes me right up. I thought the appellate bar would say something about O’Neal, but it went quiet. Pamela O’Neal moved to recuse the trial judge—historically speaking, an unremarkable occurrence in the North Carolina domestic courts. Pamela first perceived bias at a settlement conference when the trial judge presiding over her case commanded Pamela…

Signed, Sealed, Delivered
    02/05/2014   Appellate Procedure, Interlocutory Appeals, Potential Pitfalls, Sanctions

I signed up to teach a CLE about the basics of appellate practice. When I say “the basics,” I am not being modest. I will speak to the practitioners who never ever want to sign up for the username on the Court of Appeals’ website. Ever. The sort of warriors who win their trials the old-fashioned way—before the jury. We will talk about the meaning of “interlocutory,” and where one goes to find the record, and why some of the published opinions are called “unpublished,” and why a “remand” is rarely a good thing. And if I get really…

Financial Affidavits Do Not Need to Speak Through the Microphone Either
    01/12/2014   Affidavits, Alimony, Child Support, Introducing Records, Rules of Evidence

Time. We have so little of it. We waste so much of it on direct. We do not have to. If you do any work in divorce courts, you are familiar with the excruciatingly dull business of live testimony of needs and expenses. In every support trial, you hear lawyers helping clients read their own affidavits out-loud into the record. Hours are wasted on this unnecessary exchange: Wife’s Lawyer: And turning to page three, line two, what is your monthly water bill? Wife: I am sorry, I do not remember. Wife’s Lawyer (tapping his finger on the page and…

Business Records Do Not Need to Speak Through The Microphone
    12/21/2013   Introducing Records, Rules of Evidence

Do you need to introduce business records—bank statements, company business journals, diary of a call-girl with her clients’ names and charges, records of the daily weight-checks for the tiger cubs in Dream World, list of tardies that the child’s school keeps? Do you wake up in the middle of the night wondering whether to subpoena the custodian of—as Rule 803(6) puts it— memorandum, report, record, or data compilation kept in the course of a regularly conducted business activity of a business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit? Good news: the North Carolina Court…

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