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Appeals in North Carolina Courts

In North Carolina, there are many contexts in which a person can "appeal" from a ruling. A criminal defendant who is found guilty in District Court can appeal to the Superior Court. A party in a small claims action can appeal to the District Court. (In fact, the case might go to non-binding arbitration after the small claims ruling, and a party can appeal from that ruling.) A person can also appeal from decisions of the North Carolina Industrial Commission (which handles tort claims against the State and handles workers compensation), and from various administrative agencies. Each of the appeals raises distinct considerations.

Oral argument at the North Carolina Court of Appeals.

Appellate law is constantly changing, by rule and by case law. For example, in October 2012 our Supreme Court clarified the rules for giving "notice of appeal" in criminal cases, in State v. Oates. A list of recent appellate cases can be found on this site.

One of the more common contexts in which a party appeals is from a ruling of the District Court or Superior Court, in which case the party typically appeals to the North Carolina Court of Appeals. The appellate process is a rather complicated process that is often misunderstood. The appellate court generally reviews the decision of the lower court only for errors of law, such as an error in the admission of evidence at trial. As a general matter, the appellate court does not weigh the evidence and make an independent decision of the case on the merits. (In other countries, such as France, the appellate court has greater ability to weigh the evidence.) It is therefore often difficult to obtain a reversal of an adverse decision at the trial level.

A party wishing to appeal a decision must be careful to "preserve" errors for appeal. The appellate court will generally review only the actions of the lower court; it generally will not review the failure of the lower court to act in the absence of a specific request, motion or objection presented to the lower court. It is therefore important at the trial level to object to inadmissible evidence, and to make appropriate motions, such as a motion for a directed verdict (where appropriate). In addition, the appealing party must comply with numerous rules to preserve the appeal, such as filing a Notice of Appeal in a timely fashion, and preparing the Record on Appeal. The failure to follow these rules can result in the loss of the right to appeal.

In North Carolina, an appeal from the trial level is to the North Carolina Court of Appeals. This appellate court hears cases on appeal by panels of three judges. Some cases have oral argument, but most do not. If one of the three judges dissents from the majority opinion, the decision can be further appealed to the North Carolina Supreme Court. Otherwise, appeal to the Supreme Court generally occurs only in cases where the Court allows a Petition for Discretionary Review, which statistically is quite rare.

John Kirby has worked on more than twenty cases at the appellate level. He has argued two cases before the North Carolina Supreme Court, and three cases before the North Carolina Court of Appeals. He also worked as a law clerk for the Chief Justice of the North Carolina Supreme Court from 1993-1994. He has also represented parties in administrative appeals.

The cases John Kirby has handled on appeal are listed below: