To Fight For Your Rights
Law Talk with Bill Powers - Honorable Lucy Noble Inman Episode 1 - Part 2
The Honorable Lucy Noble Inman of the North Carolina Court of Appeals joins Law Talk with Bill Powers, discussing:
- Standards of Review
- Findings of Fact
- Trial Techniques
- Preserving the Record on Appeal
Bill Powers: Well, it happens. I mean juvenile cases is a prime example where there's just someone that they forget to ... In Charlotte we used to flip a tape. I mean it was a little cassette. And then when you read yourself in the transcript, you're like, "Golly, I didn't realize that I was such a poor public speaker."
Judge Inman: Inaudible is a terrible thing to see in a transcript. The one protection I think you have at the appellate level is you have more than one judge reviewing the case. If there's a dissent or a concurring opinion, it causes whoever's writing the majority to go back and make sure that they've done their best to keep the recitation of the record true to the record. If a judge is dissenting, well usually, certainly for me this is the practice. I don't want to dissent if I'm not really sure about what the record is and what the law is.
So those disagreements actually I think improve our jurisprudence because they should be putting each judge through the paces of making sure that his or her analysis is intellectually honest.
Bill Powers: Right. For students of law and younger or less experienced lawyers, the appellate process, if you just say, "Your Honor, we respectfully enter notice of appeal," and you do your written notice of appeal in superior court and you ask for a copy of the transcript of the proceedings to be reduced to writing, there's a process for doing that. There's a process for getting extensions for that. The record on appeal is where you try to narrow down the legal issues. You do a factual recitation as you believe it. And then there's an opportunity to try to correct the transcript. That's what's being typed down when you're talking.
But that in and of itself, heck, I've tried a case before and said, "I don't remember exactly what I was thinking or what I said." It happens, especially you're doing a three-week trial and, boy, I don't care how good you are, it's literally impossible. So that gales up to Raleigh some things we can agree to, some things we can't agree to. If there's inaudible portions and the parties can't agree, you're kind of just stuck with what we got. It's a technology problem. I frankly in North Carolina really wish we had a little bit better technology on that because it's so hard to remember.
Judge Inman: Yeah. It could have been harder, but I learned an important lesson about using contractions when I speak in court. I was presiding in a first degree murder trial and it was really, really complicated. There were theories of acting in concert and theories of conspiracy and the felony murder rule. In instructing jurors on the basic instruction that you cannot decide any issue by majority vote, I said I believe you can't decide any issue by majority vote. Well, it came out in the transcript as you can. That was an issue for appeal and only because I gave the jurors written copies of the instruction did that case not get overturned.
Bill Powers: Right. Right.
Judge Inman: You just don't know when you're in the moment how it's going to sound. I never used contractions after that.
Bill Powers: That's a great idea in the markdown the different things. As a courtroom lawyer you get caught up in your argument and the thoughts. When I make an argument to the court, I want to make sure I do it as quickly as possible, as concisely as possible. When I make an argument to the jury, you're looking at body language and facial expressions. And then some courtrooms in North Carolina, and I've tried in a lot of different districts, are just are not set up for good recording. I think, for the record, the best courtroom I've ever tried a case in, I don't know if you've ever been there, is in Greenville, North Carolina. It's on the coast, where the judge on the bench and the jury is directly across from Your Honor.
The parties, the litigants, face each other on opposite direction. And then the witness is right probably in the middle so you can hear everything. Heck, I tried a case in New Bern one time where we had to bring a folding chair in for the alternate. There was just not room to ... It's a beautiful courthouse, but there wasn't the room. I'm not coming at my friends in New Bern. I had a great experience. But some courtrooms are set up better than others to be heard. If you're in Cabarrus County, there's a sweet spot. I think they've got a rounded ceiling where if you stand in one area of the courtroom and make the argument, the jury can hear it. But you got to be careful because sometimes they may hear things that you didn't intend them to hear.
I've had judges in addition in court tell me, "Speak up," and, "Don't use the Latin maxims," which I tend to use. And then you said the contractions. If I say [Latin], I have to stop and go, "Okay, the expression of one thing to the exclusion of others." I will tell the court reporter how to spell that out later. So I've really tried to limit that myself. Let's talk-
Judge Inman: We could probably use more Latin at the appellate courts, I'll just say.
Bill Powers: That's about my limit. I'm a Campbell lawyer, so there's certain things that we learn. [Latin] and things like that. There was an opinion that came out and, as you feel comfortable, it's an opinion that already come out. I'm not aware if there's any other litigation on it. If there is, I will let you tell me. But this comes from the question of how long it may take to get an opinion out. Sometimes people don't understand. It's not like people are just sitting on their hands. You're very selective in the cases that you give for oral arguments.
Some cases have new precedential value that have not been addressed before. I think nothing falls more squarely than the Crossman case in North Carolina because it involved technology and the Sedona Principles and things like that. As you feel comfortable, can you tell me a little bit about, and maybe not that case but in general, the process that these cases go through. Because that case has implications, in my humble opinion, of lasting literally for decades. It was a case of first impression and I'll let you ... You're the one that ruled on it or wrote the opinion on it, excuse me. So tell me a little bit about that, that process, the mindset, and how those things work with you on the bench.
Judge Inman: Well, whenever notice of appeal is taken and Crossman concerned a dispute about discovery, boy, do trial judges generally not feel happy when they hear they've got a discovery motion on their calendar because it's a big he said/she said and sometimes can seem like petty disputes over something the lawyers should be able to work out. But Crossman had to do with documents that were in computer drives that a large institutional defendant claimed included attorney/client privileged documents. eDiscovery and Sedona Principles concern ways that you can use computer programming to identify responsive documents that would take much longer for people to go through the paper and look at.
But the institutional defendant said, "Wait a minute. A computer cannot make the final decision about, well, there's something is privileged or not. You cannot turn these documents over to the other side." Normally, the court of appeals does not hear appeals about discovery dispute before a trial is over. It's called an interlocutory appeal. But when it involves a substantial right, and your right to protection of your attorney/client privilege is one of those rights, then we get involved and look at it. That case, like many civil cases, one party, in this case it was the institutional defendant, because the trial judge had said, "You need to go through this process and then the documents will go to this document examiner," filed notice of appeal with the court of appeals.
There's then preparing the record, which is were all the exhibits at the trial court looked at? Where's the transcript of the hearing? That gets prepared and then you settle with your opponent about do you agree that this is fair? Is there something else you think needs to be on the record? Usually the parties can agree on that. If not, the trial judge just settles the record and the record comes to the court of appeals. Then a briefing schedule is issued and the appellant has a deadline to file an opening brief. Appellee then has a deadline that is some period of time after the appellant's opening brief to file an opposition brief. And then the appellant has an opportunity to file a reply brief.
That can take months usually to get through. The judges don't see the record on appeal or briefs until all the briefs are in. The staff counsel at the court of appeals has looked through the record and the briefs to make sure everything is together. So by the time I as a judge would get the records and briefs in a case, it's already been pending for months. What happens next is the judge and the judge's law clerks will read the briefs and the record. I try to do this as soon as possible because we'll have calendars of either nine cases or 12 cases. If I have a case like the Crossman case, and then I have three other cases which are obviously important, every case is important to parties, but which are governed by black letter law, I can spot the issues and say, "This is not going to take so long to do. This is not going to take so long to do. This is not going to take so long to do. This looks complicated. I need to look at it."
A law clerk will be writing a research memo about these difficult issues. The cases may or may not be set for oral argument. If lawyers don't ask for oral argument, likely it's not going to be set for oral argument. If the staff counsel's office doesn't see it as an issue of first impression, probably not going to get set for oral argument. But the judges can upon reviewing the case say to themselves, "This is a difficult case. I don't think the difficult issue is answered in these briefs. I think we're going to need to do further research." I'm really loathe to sandbag lawyers by deciding a case based on authority that nobody briefed.