Potential Pitfalls

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…

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

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meaning of “interlocutory,” and where one goes to find the record, and why some of the published opinions are called “unpublished,” and why a “remand” is rarely a good thing.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…

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?

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…

Johnson v. Johnson—New Pitfalls in Pension Valuations?

If any of your cases involve defined benefit plans, you are probably relying on Bishop v. Bishop, 440 S.E.2d 591 (1994)—the North Carolina Court of Appeals’ classic. Bishop has been the divorce practitioners’ staple for almost twenty years. Bishop‘s five step approach has never been officially overruled—or received any negative treatment for that matter. But do not let the Westlaw’s Shepard lull you into a false sense of security. You will want to read the last week’s Court of Appeal’s opinion in Johnson v. Johnson. Although the Johnson Court does not explicitly distinguish Bishop, and even appears to follow Bishop…

‘Best Efforts’ in Contracts—A Subjective Standard?

Barker v. Barker is a case that has significance far beyond family law. Joseph Barker agreed to pay for his daughter’s college bills, so long as she “diligently applied” herself in school. When Joseph received Holly’s college reports, he learned that Holly (a) had finished her Fall 2011 semester with a 1.000 GPA, (b) was on academic probation for the first three semesters of school; and (c) was enrolled in 16.5 hours but earned only 7.5 hours of credit. In the Spring 2011 semester, Holly improved her GPA for a cumulative GPA of 2.000, narrowly escaping academic probation. Not surprisingly,…

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