Appellate Motions

Appellate motions are not that different from trial court motions. Not in function, anyway. When you practice before the Appellate court, you will have a lot of the same needs as in trial court: you will need more time or more space. Sometimes you might make a mistake, and will need to fix it.

In form, there are subtle differences, though. Appellate courts tend to be more persnickety than most trial courts. So you want to be sure your form is right.

First, you will look to the North Carolina Appellate Style Manual.

Of course, you probably already looked to the North Carolina Rules of Appellate Procedure.

Once you grasp the form, motions practice before the Court of Appeals is in many ways easier than in trial court.

First of all, the statistics is on your side. In 2011-2012, the North Carolina Court of Appeals allowed 3,460 motions, and denied only 428. Also on the plus side, the turn-around is quick. If you have a simple motion (for instance, an extension of time) you will likely get an answer the next day. The Court promises 1-2 day turn-around, but I have seen even the same-day decision (although that is, admittedly, rare).

I always find it reassuring to check the actual submissions (preferably the successful ones).

Here are a few examples. All of these motions below were granted by the North Carolina Court of Appeals. So dot and cross and mind your form.

Most likely, you will do just fine.

When you NEED MORE TIME:

Extension of Time to Deliver Transcript. Remember that the first motion for extension must be addressed to the trial court. All the following motion(s) are addressed to the Court of Appeals. Here is an example of an unopposed motion. If the other side is not agreeable, consider filing something like this, but notice that even though the Court of Appeals granted 4 extensions to deliver the transcript in this case, you are probably not going to be as lucky.

Extension of Time to Serve Proposed Record. Remember to address your first motion to the trial court. The following motions are addressed to the Court of Appeals. You might want to files something like this.

Extension of Time to Respond to Proposed Record. An appellee pressed for time to review proposed record, might want to file something like this.

Extension of Time to File Brief. Lately, the Court requires you to explain with particularity the personal and professional demands on your time that caused you to ask for an extension. A motion could look like this or this.

When you NEED MORE SPACE:

Motion for Enlargement of Word or Page Limit. Courts hate lengthy briefs, so think twice before you ask. But if you must, consider filing something like this or this.

When you go …   OOPS:

Motion Seeking to Amend / Supplement the Record Your office goofed and a key document is missing from the record? Or a document appeared after the record was filed through no fault of yours? You might want to file something like this or this.

Motion to Amend / Supplement the Rule 11 Supplement Same problem, but the document was supposed to be in the Supplement? File something like this.

Motion to Supplement or Correct the Brief. What if you accidentally filed the wrong version of the brief? Or your title page contains a really embarrassing typo? File something like this.

When you need to Pause the trial court’s ruling

Orders of the trial court must be followed as soon as they are written, signed, and stamped. It does not matter if the order has errors—your client still has to follow it until the Court of Appeals says otherwise. But it takes roughly a year to find out the Court of Appeals’ view—so what do you do meanwhile? Occasionally, you might be able to persuade the Court of Appeals to pause the trial court’s order for the year or so while your appeal is pending. Try a Petition for Writ of Supersedeas. A good one is here, and it was successful.

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