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, at least we could start the appeal immediately. Now we’ll be forced to follow the oral order indefinitely—who knows when the written order will be ever written. Uncertainty is bad.”

This is not a new debate. The legal process always has to balance the conflicting needs of “best” versus “final and certain.” Most of the time, it is the sort of tension that can not be eased. But this time, there is actually an easy fix. And what’s even better, the fix follows the mandate of Scoggin.


The Solution

The Court of Appeals in Scoggin reminded that oral renditions are not orders. Still, the practice of treating oral renditions as though they are orders persists among the trial lawyers and the trial courts, notwithstanding the Court of Appeals’ admonitions against it.

What if the trial judges prefaced every “oral ruling” with a short explanation of what the “oral ruling” really is: the judge’s current thoughts on how the judge might rule eventually, when he signs the written order. This simple instruction by a trial judge would bring the court in compliance with Appellate court rule in Scoggin:

I will now read into the record my preliminary thoughts on how I might rule. The law allows me to change my mind completely or partially before I sign the written order. After additional review of the file and the law, I might, in fact, do so. Until you receive a written order signed by me and stamped by the clerk, you must continue to follow whatever arrangements or orders are already in place.

What do you think?

Meanwhile, for more on oral orders, read my posts here and here and N.C. Lawyers’ Weekly here and again here.

La Dona È Mobile

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 be entirely different. The trial court judge can change his mind 180 degrees.

In SCOGGIN v. SCOGGIN, the trial court orally announced its disposition at the end of a custody trial: “custody to mother.” But the written order gave custody to father. Which is fine, said the Court of Appeals. As of today, a complete change of heart is the trial court’s prerogative.



What does Scoggin mean for the trial lawyers and appellate practitioners?

For one thing, the Scoggin decision emphasizes the point (which this humble blog has been tirelessly repeating for years, and which The Lawyers Weekly recently explained quite plainly) that the trial lawyers should stop yielding to the oft-made demands to comply with oral “orders.” (Still, the pressure to “do what the judge told us to do” is way too common.) After Scoggin, it is clear that there is no telling what the judge “told us to do” until the judge writes it down. In some ways, the trial lawyer’s job may have become easier. Or at least more clear.

For the appellate lawyers, though, the process just became a little less clear. Scoggin is the second nail in the coffin of the long-standing practice of filing the Notice of Appeal right after the oral order, and waiting for the written order to catch up with the record. Abels v. Renfro Corp., 126 N.C. App. 800, 804, 486 S.E.2d 735, 738 (1997) had authorized this convenient practice since—well—at least 1997. However, earlier this year, the Court of Appeals surprised the practitioners when it dismissed an appeal that did just that—had the Notice of Appel filed first and added the written order to the record when it was finally handed down. (MANNISE v. HARRELL)

The appellate process became less clear in light of the Mannise-Scoggin new line of cases. If one finds oneself in need of appealing before a written order is handed, should one file an amended Notice of Appeal after the written order? What if the written order is altogether different? Should one dismiss the appeal and start over?

Or, perhaps, the best lesson here is the power of positive thinking.

Indeed, by the time the written order comes down, one might find—as did the Father in Scoggin—that no appeal is needed at all, because what was a loss turned out to be a win!

What are your thoughts?

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. You can use a cite.

First time it happened to me was around 2012. We signed a consent order. Shortly after, my client’s ex appealed. In due course, Judge Bryant set her straight, my office popped a bottle of kvas, and I forgot all about appeals of consent orders. Until this week.

Which brings me to my point: in a two-page unpublished opinion, Judge Bryant says it again: “Can’t appeal a consent order.” The opinion is unpublished, but in every other respect, it is perfect: two pages with no side issues. Should anybody in your life decide to appeal a consent order, it is a good cite: Young v. Young, CoA 15-1126 (17 May 2016). Use it. Judge Bryant’s clerks maybe could use a break?

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 again and addressed what she had dubbed the “salient points.” Absent actually copying the challenged parts of the lower court’s order into her brief, it is not clear what more the O’Neal Appellant could have done. Because the Rules limit Appellants’ briefs-in-chief to 8,750 words, O’Neal presented a challenge for the future appellants.

Happily, the North Carolina Court of Appeals today seems to have rejected the O’Neal’s approach.

In The North Carolina State Bar v. Simmons, the Court reviewed the appellant’s challenge to the findings of fact even though neither the appellant’s Brief-in-Chief, nor his Statement of Issues on Appeal contained any reference to the specific findings of fact he was challenging. Nevertheless, the North Carolina Court of Appeals concluded that the appellant’s challenge to the finding of fact was procedurally sufficient. The Court also explicitly confirmed that “assignments of error to specific findings of fact are not required.” The Court wrote:

No specific findings of fact were referenced as being in error. Nevertheless, we agree with Defendant that assignments of error to specific findings of fact are not required to properly challenge those findings. Simmons

In my view, Simmons correctly applies the Rules of Appellate procedure.

Of course, one panel of the Court of Appeals can not overrule another, and, consequently, Simmons does not erase O’Neal altogether. Nevertheless, Simmons’s clear statement that “assignments of error to the specific findings of fact are not required” likely signals that O’Neal’s decision was just an outlier.

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

Screen shot 2014-03-23 at 12.46.54 PM
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 to settle—but did not make a symmetrical command to the other side, Pamela’s estranged husband. Pamela felt that the judge had made up her mind that if the case does not settle, it’s Pamela’s fault.

Pamela’s concern grew deeper when the law firm representing her estranged husband faxed over an affidavit written by the trial judge. In the affidavit, the trial judge swore that Pamela remembered the settlement conference all wrong. The Judge swore that she did not command Pamela to make an offer, or, for that matter, did not take any part in any discussion as to when and who would make settlement proposal.

Pamela and the Judge obviously remembered the conference differently. Which of them had better memory? It would be nice to have a record, but the conference was not recorded.

But now Pamela was also wondering: why would the Judge’s affidavit come from the fax machine of the other side? Did the other side ask the judge to write it? Did they help the judge to write it? Hoping to ease her suspicions, Pamela made an inquiry. Getting no immediate response, Pamela sought guidance from the Judicial Standards Commission. Then she moved to recuse the judge. (Eventually, the ex-husband’s lawyers fessed up that they had asked the judge to prepare the affidavit. But they did not help write it, they said.) Appellant’s Brief in chief (filed 09/28/12).

Did Pamela remember the conference wrong? More importantly, was she wrong to worry that her lawyers did not learn that the judge was working on an affidavit until the other side’s lawyers faxed it over? How does one recuse a judge in North Carolina? What’s the standard? Under Lange v. Lange, 357 N.C.645, 588 S.E.2d 877, 880 (2003) a litigant can ask for substitution of a judge if a “rational person could have reasonably questioned the judge’s impartiality.” Would a “rational person” “reasonably question?” The trial judges of Pitt County decided “Absolutely not!”

Then they sanctioned Pamela’s lawyer for even asking.

About 20 states in the country—like Illinois, or California, for example—allow each litigant one peremptory challenge of his judge, no showing of cause necessary. Meaning, no questions asked. Professor Charles Geyh (Indiana University), an expert in the field, says the judges there like the system. A litigant wants another judge? Good riddance. No quibbling over who said what to whom. Definitely no sanctioning anybody for asking to recuse a judge. I think there’s a lot to say for the system. But nobody asked me. We have a different system. This is not even the part that keeps me awake at night.

Pamela’s lawyer (whom the trial court sanctioned for moving to recuse) did not want the blemish on her reputation. She hired a very competent appellate counsel and took the whole thing before the Court of Appeals.

Now comes the part of the North Carolina Court of Appeals’ opinion that keeps me awake. The Court wrote:

Because [Appellant] does not challenge any of the findings of fact, they are binding on appeal . . . O’Neal Opinion at 7.

If you are thinking the same way I do, you exclaim: “Why—oh why would the Appellant (represented by a seasoned and very competent counsel) not want to challenge the findings of fact?!” And you reach for the record. And you learn that the Appellant very much wished to challenge what she viewed as “page after page of harshly critical findings of fact.”

What went wrong? In order to challenge the findings of fact, the Appellant took the ordinary steps: listed the offending findings by number in the Issues; listed them by number in the Brief and addressed what she called the “salient points” in the Brief.

The Appellant’s counsel (supported by 5 other members of the bar, including yours truly) moved for rehearing and asked what needs done to properly challenge findings of fact after O’Neal:

… Appellant respectfully requests that this court clearly and expressly state what the required procedure is, if for no other reason than to warn future litigants. Appellant’s Petition for Rehearing at 9.

But the North Carolina Court of Appeals did not answer. The North Carolina Supreme Court denied Appellant’s Petition for Discretionary Review.

So what do we do now?

I do not have a good solution. Take a highlighter to the challenged findings and later reference them in the Brief as “the text highlighted in green?” Copy the text of the challenged findings of fact verbatim in the Proposed Issues? What I would really love to do would be to copy the offending findings verbatim in the Brief. Of course, to paraphrase the words of actress Gadget,

Uh-oh, I think we need a bigger box… I mean, longer Briefs.

If you are appealing from an order with page after page of facts that you need to challenge, all I can do is refer you to the Motion’s section of this Blog: there are some good examples of Motions for Enlargement of Word or Page limit.

Signed, Sealed, Delivered

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 ambitious we will learn to pronounce the word “certiorari.” It will be that sort of a CLE. If you are an appellate practitioner, I encourage you to stay away because I will not be able to reach my audience over your snoring.

I was preparing my CLE Powerpoint when my mother came in with the daily portion of unsolicited advice.

“Tell them an oral order is not actually an order,”—she said. “Tell them what a valid order is!”

“Mother,”—I said,—”they are lawyers. They can tell from a valid order. They read Rule 58.”

“As if,”—she said. Then she mumbled something about Marko and West and left the room.

North Carolina Court of Appeals yesterday returned an opinion, proving once again the oldest of all truths: Mom was right. I have to talk about Rule 58.

In re Thompson Court reversed 6.5 years worth of orders by two state court divisions. The Court of Appeals’ opinion also has the effect of unraveling a bankruptcy proceeding resting on these decisions. All of this could have been avoided with a simple refresher of Rule 58.

For six and a half years, the clerk and the trial court of In re Thompson built their “law of the case” on the shaky foundation of a 2007 un-filed writing signed by the court’s clerk. Remarkably, there is no dispute that this writing was “devoid of any stamp-file or other marking necessary to indicate a filing date.” Nevertheless, the trial division insisted that this writing somehow qualified as an order, or, as the trial court emphatically put it, a “clear[] rul[ing].” The clerk and the trial court shamed and punished the litigant who tried to push the simple proposition: a writing devoid of a file stamp can not operate as an order. It cannot be enforced. It cannot be appealed. The proposition did not take with the trial division.

This put the litigant in a tricky position. The un-filed 2007 writing could not be appealed, because it was not an order. But the lower court enforced it as an order and ultimately sanctioned the litigant’s attempts to protest, calling the protests “baseless” litigation.

Reversing the trial court’s sanctions and unraveling the slew of orders entered on the basis of the 2007 writing, the Court of Appeals reminded that under Rule 58 of the North Carolina Rules of Civil Procedure, and order must be a


Signed and


In contrast, the 2007 writing by the clerk in In re Thompson was only two-thirds on its way to becoming an order. In other words, not an order. A propos of non-orders, the Court of Appeals also reminded that the events like an oral pronouncement also were not real orders. Which means that oral pronouncements cannot be appealed, or enforced between the litigants. West v. Marko, 130 N.C. App. 751 (1998).

I am adding Rule 58 to my agenda. Jury whisperers who come to my class are not quitting until each of them can tell from a valid order. Maybe it will save someone a little trouble down the road. Who knows: maybe the CLE on basics can actually make a difference.

Financial Affidavits Do Not Need to Speak Through the Microphone Either

TimeTime. 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 line of wife’s affidavit) Isn’t it $75?” Wife: “Oh, yes, $75.

Wife’s Lawyer: (tapping his finger on the next line of the affidavit) And your electric bill averages?

Wife: (reading her own affidavit) “$125?”

This goes on until the entire affidavit is read into the record, the day ends, or the trial judge wakes up and suggests that the affidavit just be admitted already.

Why can’t we stop doing that? The local rules require affidavits of needs and expenses, and so the affidavits get prepared. After these financial affidavits are compiled, verified, filed and served, they become competent evidence. Much like the affidavit of business records custodian about which I blogged a few weeks ago, the clients’ affidavits do not need to be read into the microphone. We should stop doing that.

This is not a new point. The North Carolina Court of Appeals had said so over five years ago. Row v. Row, 185 N.C. App. 450, 460, 650 S.E.2d 1, 7 (2007).A few weeks ago, the Court of Appeals repeated the same point in Parsons v. Parsons (N.C. App. December 17, 2013).

Louise Parsons prepared, filed and served her affidavit of needs and expenses. And that was good enough, said the Court. Contrary to what her husband’s overzealous lawyers tried to argue, Ms. Parsons did not need to also read it out-loud. Husband’s lawyers—who tried to argue that there was no “evidence” of Louise’s expenses were wrong because they “faile[d] to recognize that the affidavit itself is evidence,” said the North Carolina Court of Appeals.

Reading affidavits out-loud through the microphone takes hours, even days in some cases.  If we just agree that the trial court judge can read for himself, we can all go home days ahead of schedule. Parsons might just be the answer to the divorce courts’ financial crunch.

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 of Appeals just made your life easier. Simon v. Simon, CoA 13-249 (December 3, 2013) reiterates that no live witness testimony is necessary to introduce the 803(6) records. Just bring an affidavit of a custodian. Track the 803(6) language. That will do it. Simon, Slip Op. at 15-16.

I know that this is not exactly a first impression issue. But in Simon the matter of affidavit vs. live testimony was dispositive. Ms. Simon did not bring a live witness to introduce her husband’s payment journals. What she did bring, however, was an affidavit of the custodian which tracked all the requirements of Rule 803(6). The Iredell County judge Edward Hedrick IV excluded the journals for lack of—as he colorfully put it,

testimony from this witness stand through that microphone.

The North Carolina Court of Appeals disagreed. Writing for the Court, Judge Elmore reiterated that the affidavit of a custodian of records gave sufficient foundation. Simon is remanded for consideration of the excluded records.

I do not know about you, but I am crossing the business records off the list of things that keep me awake at night.

The Thirteen Words of Hennessey

BurnA 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 us—our litigation support providers. Divorce lawyers represent people brave enough to carry on without their spouses.

Why should a woman brave enough to ditch a husband stay with her lawyer “for better or for worse?” Should the discriminating and persnickety really be always dubbed “a problem client”?

I think not!

Still, the trial courts do not usually see it my way. The trial courts are receptive to the argument: “Your Honor, Ms. Jane Doe is on her fifth lawyer.” As if somehow firing a lawyer reflects an indisputable character flaw, a bad deed, punishable even by sanctions. But why should changing multiple counsel be a sanctionable offense or at the very least evidence of bad faith? Should it?

Last week, the North Carolina Court of Appeals spoke on the matter in Hennessey v. Duckworth 13-629 (N.C. App. December 3, 2013). The answer is a resounding “NO!”

For the trial lawyers: Repeat these 13 words when you client gets blamed for changing counsel:

A litigant may wish to change counsel for many reasons, some perfectly valid. . . .

Writing for the Court, Judge Stroud added that, naturally, not all reasons are perfectly valid. Some are foolish or even in ‘bad faith.

But the important point is that the mere fact of changing counsel was not by itself sufficient to punish Mr. Duckworth (which was exactly what the trial court had done, and which was an error).

Importantly, this counsel-counting business is dictum, which the Court was ‘compelled to note.’ Why is that notable? Because the Court of Appeals went out of its way to tell us that changing lawyers is OK, and to give us—the trial lawyers—the quote. So if you are not the first lawyer for your client, I add the thirteen words of Hennessey to your flashcards, ready to quote every time the other side stands up to snitch that you are “Jane Does’s third lawyer.” Reply loudly and proudly:

A litigant may wish to change counsel for many reasons, some perfectly valid. . . .

I know I will.

P.S. Clients thinking of changing counsel, however, would be well served to consider the dangers and costs of transfer. Read more in the hilarious new release here and here. Or go straight to the Amazon page.