Can’t Appeal Your Own Consent.

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?

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

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, the Paper mistakenly reported that I was personally held in contempt and was appealing that order. In April of this year, the Paper conducted additional independent investigation, and found that there was no such order in the first place. On April 21, 2014, 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 opposing counsel (North Carolina Lawyers Weekly…

Uh-oh. I Think I Need a Bigger Box.

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 her trial judge commanded that Pamela make an offer…

Signed, Sealed, Delivered
Screen shot 2014-04-13 at 7.52.13 PM

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 of I get really…

Financial Affidavits Do Not Need to Speak Through the Microphone Either
Time

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

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…

The Thirteen Words of Hennessey

A lot of divorce lawyers have this rule: do not take the case if you are not the first lawyer. Of the “ten signs she’s a problem client,” firing a previous counsel is at the top of the list. And if the client is on her third lawyer—well, that’s like a mark of shame, a regular fleur-de-lis on her shoulder. Personally, I never bought into the hype. I’ve been lawyer number five. It went fine. And why should a client have to stay with the same lawyer? It’s fine to change restaurants, hairdressers, girlfriends, courthouses. Some even change—so help…

Got Served?
A case based on bad service is like a city built on a volcano. Sooner or later, you have to vacate.

Service of process is a thankless task. Ever received a card from a client grateful for your masterful perfection of service? Never happens. But make a mis-step—and you will hear from the client. Or end up on the news—and not in a good way. A case based on bad service of process is like a city built on a volcano. Sooner or later you have to vacate. No service—no jurisdiction. It’s a void order. You may recall Hamilton v. Johnson, a recent opinion by the North Carolina Court of Appeal. The Court vacated a cluster of orders from an…

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