A publication for policyholders of Lawyers Mutual LMLTODAY Liability Insurance Company of North Carolina

Assignments of (T)Error and Volume 28, Issue 2, Spring 2006 The Rule In this issue: WARREN T. S AVAGE

Beware Appellate must also cite to “specific record or transcript Golf as Life Practitioners! North references,” and each argument in an 2 Carolina Rule of appellant’s brief must then cite to specific Appellate Procedure, assignments of error. Historically, Appellate Understanding Rule 2, may be on Rules 10 and 28 were rarely invoked to 4 Underwriting life support. Until dismiss appeals, and the Court of Appeals recently, Appellate often used its discretionary power in Rule 2 allowed the Appellate Rule 2 to avoid strict application of appellate courts to the two rules so that an appeal could be Officers: Warren Savage, Carl Younger, President Claims Counsel admonish attorneys considered on the merits when the Court Gerald Arnold, Senior VP of Claims for minor and non- viewed the rules violations as minor or non- John Hester, VP of Claims prejudicial appellate rules violations while at prejudicial. See, e.g., Anthony v. City of Sharon Long, VP Underwriting the same time taking mercy and deciding an Shelby, 152 N.C. App. 144 (2002). Robert Neal, VP of Finance Louise Paglen, VP Risk Management appeal based on the merits. However, if you have followed our Court of Appeals’ I. Court Will Give No Quarter for Rules Directors: published and unpublished decisions through Violations Henry Mitchell, Chairman the past year, you will notice that the Court is However, the Court of Appeals has now Doris Bray now dismissing an alarming number of decided that it may rarely, if ever, use Glen Hardymon appeals for improper assignments of error in Appellate Rule 2 to overlook even minor William Holdford, Emeritus Tony Hornthal the record on appeal or for arguments in an violations of the appellate rules when it James Maxwell appellant’s brief that do not correspond determines that assignments of error in a Kenneth McAllister precisely to the assignments of error. While record on appeal are drafted improperly or are Eric Michaux such rules violations frequently have no not referenced appropriately in the subsequent Sharon Parker actual or perceptible effect on the Court’s brief. This shift in the Court’s approach to John Raper ability to understand the issues on appeal or assignments of error occurred very recently John Stevens Howard Twiggs, Emeritus the appellee’s ability to brief those issues, the following the decision in Viar v. N.C. Dept. of G. Gray Wilson Court of Appeals has concluded that it is now Transportation, 359 N.C. 400, 610 S.E.2d 360 Richard Wright compelled to dismiss appeals when the Court (2005). In Viar, the Supreme Court reversed a determines such violations are present. Court of Appeals decision that had noted Appellate Rules 10 and 28, taken violations of the appellate rules in the Lawyers Mutual Liability Insurance together, limit the scope of an appeal and the appellant’s assignments of error and brief, but Company of North Carolina Founded by arguments in an appellant’s brief to the elected to exercise its discretionary authority the North Carolina Bar Association in 1978 assignments of error specifically set out in the to reach the merits of the appeal under The contents of this newsletter are intended record on appeal. The assignments of error Appellate Rule 2. The Supreme Court for general information purposes only and should not be construed as legal advice or must be “confined to a single issue of law” reversed, finding that the Court of Appeals legal opinion on any specific facts or circum- and state “plainly, concisely and without opinion had improperly “created an appeal” stances. It is not the intent of this newsletter to establish a standard of due care for any argumentation the legal basis upon which for the appellant by ruling based on particular situation. Rather, it is our intent to advise our policyholders to act in a manner error is assigned.” Each assignment of error continued on page 3 that might well be above the standard of care in order to minimize a firm’s malpractice risk. www.lmlnc.com Golf as Life Going to the Next Hole

I love golf. I love golf with friends. I took years for Van de Velde to recover from his love golf alone. I especially love golf in loss: the great irony being that he won one wonderful weather on a wonderful course — later tournament when someone else had a without cell phones. double bogey on the last hole. He won a recent My love for golf leads me even to watch tournament when he had a double, not a triple, golf on television. While others may obtain bogey on the last hole. However, even with pleasure from seeing professionals struggle as these difficulties, Van de Velde kept playing. they do, I often feel the pain of someone who He kept playing even when every time he has a double or triple bogey (for the non- plays, someone would note that he had lost the golfers, two or three over par). That pain is British Open on the last hole in disastrous

Carl Younger, President most evident in major tournaments. Perhaps fashion. He kept playing, and later won, even my most memorable “pain” was seeing Jean though people remember him most for a past “As attorneys, we Van de Velde have a triple bogey on the last failure. hole to lose the British Open, one of the four Few, if any of us, will be required to face are like golfers . . . most prestigious tournaments in the world. the same situation that Jean Van de Velde faces. As attorneys, we are like golfers. We have However, like us — as attorneys, he is in a The best attorneys, many cases or transactions to manage — just as profession that focuses on individual golfers have many holes to play. The best performance, often in isolation. Our and the best attorneys, and the best golfers, learn from their performance, like that of professional golfers, golfers, learn from “sub-par” performances. The best attorneys, is often magnified for “our public” — our and the best golfers, do not let events from one clients. Nevertheless, golf, and practicing law, their “sub-par” transaction or case, or one hole for golfers, gives the players other chances to perform affect their subsequent performance. and succeed. We all get “extra holes.” What performances.” Losing a major tournament, like attorneys greater hope can we have. That’s why I love losing a major case, can affect one for years. It practicing law, and playing golf, so much.

Are You Protecting Your Most Valuable Asset?

Your most important asset is your ability to earn income – it is the foundation of your financial security now, and for the future. A significant injury or illness can disrupt even devastate your financial world. Yet, less than 15% of American Workers protect their income.

The North Carolina Bar Association & Lawyers Insurance Agency presents For more information, please contact several affordable disability plans that can help you safeguard your finan- cial future: KEN HUDSON Lawyers Insurance Agency G Individual Disability – Own Occupation & Modified Own Occupation PO Box 1929Cary, NC 27512 definitions available with up to $15,000 monthly benefits. (919) 677-8900 or 1-800-662-8843 G Simplified Individual Disability – Streamlined underwriting (no medical Fax: (919) 657-0316 testing or financial verification) of the above policy with quick approval E-Mail: [email protected] for new or supplemental policies of $2,500 or less. G Group Disability – Guaranteed Issue (no medical underwriting) for Attorneys and employees with up to a $6,000 monthly benefit. Take a look at these discounted programs today!

2 LMLTODAY Continued from page 1 CALENDAR Upcoming CLE Programs: arguments that were not the subject of Broderick, — N.C. App. —, — S.E.2d Lawyers Mutual is proud to the appellant’s actual assignments of — (COA05-103)(January 17, 2006) announce its CLE seminar error. (Judge Wynn’s concurrence). schedule for Fall 2006: In the last 12 months, the Court of The most illustrative case of the Appeals has cited Viar in over 45 Court of Appeals’ unyielding September 8, 2006 opinions, most frequently dismissing an application of the appellate rules after Sheraton Imperial RTP appeal because of perceived Viar is Walker v. Walker, — N.C. App. shortcomings in assignments of error or — , 624 S.E.2d 639 (2005). In an appeal October 20, 2006 a brief’s reference to and argument of where the appellant raised dozens of Hilton Greenville the assignments of error. The Court of assignments of error that referenced Appeals is doing so even in appeals each individual finding and conclusion November 3, 2006 where appellate rules violations do not in a final order, the Court of Appeals Grove Park Inn impede comprehension of the issues on dismissed the appeal due to perceived appeal or frustrate inadequacies in December 1, 2006 the appellate the specificity of In the last 12 months, the Charlotte Renaissance process. For the assignments. example, in cases Court of Appeals has cited The Court stated, such as Wendt v. Viar in over 45 opinions, “The office of an Thomas, No. assignment of A brochure with program content and reg- COA04-1651, most frequently dismissing error, as both the istration form will be mailed this summer. (November 1, rule and the 2005), and May v. an appeal because of innumerable cases * Dates and locations for Winter 2007 will Down East Homes interpreting it be released this Fall. perceived shortcomings in of Beulaville, — plainly show, is to N.C. App. —, 623 assignments of error or a state directly, S.E.2d 345 (2006), albeit briefly, the Court of brief’s reference to and what legal error is Appeals dismissed complained of words, assigning error should not be an appeals for vague argument of the assignments and why.” Id., at afterthought that gets attention only a or overly broad of error. 642 (emphasis few hours before a lawyer serves the assignments of added). proposed record on appeal. Instead, the error that act “like a post-Viar cases dictate that lawyers take hoopskirt –covers everything and II. What Should You Do? significant time earlier in the appellate touches nothing,” even though the Walker and the other post-Viar process than they may be accustomed to appellees in those cases had not opinions of the Court of Appeals have and outline the issues that they will ulti- complained about the inadequacy of the sent a resounding signal to appellate mately argue in the appellant’s brief at assignments. The decisions citing Viar lawyers that assigning error on appeal the same time that they draft assign- consistently assert that the Supreme requires special attention with a clear ments of error. Lawyers who don’t take Court has now mandated that Appellate eye towards the issues that will actually this important step risk drawing Rule 2 may not be used by the appellate be argued in the appellant’s brief. motions to dismiss from appellees that courts to overlook rules violations. The Although an appellate lawyer has prob- are familiar with the post-Viar line of application of Appellate Rules 10 and ably not done all of her research at the cases, or having their appeals dismissed 28 after Viar is now so strict that one time she serves the proposed record on on the Court of Appeals’ own initiative. member of the Court of Appeals has appeal, she must now have a concrete implored the Supreme Court to understanding of the issues she will reconsider the necessity of assignments argue in her appellant’s brief when she of error at all. See Broderick v. drafts her assignments of error. In other

LMLTODAY 3 PRESORTED First Class US Postage PAID Permit No. 729 Cary, NC 27513 PO Box 1929, Cary, NC 27512-1929

LMLTODAY

A publication for policyholders of Lawyers Mutual Liability Insurance Company of North Carolina

standards

e operate with high ethical ethical high with operate e W Integrity: Integrity:

. fairly serve we those treat will e W Fairness: Fairness:

Here today. Here tomorrow. Here today. Here ession prof Stability: Stability: innovative personal service and products. and service personal innovative

service. and other services primarily to the legal the to primarily services other and profession at reasonable cost through cost reasonable at profession

We provide efficient and quality quality and efficient provide We o be a leading provider of insurance of provider leading a be o T Service: o meet the insurance needs of the legal the of needs insurance the meet o T

: : ION: ION: S VI S: E U AL V E OR C MISSION

1-800-662-8843 and we’ll be happy to fax or mail you an application. an you mail or fax to happy be we’ll and at us Call , ,

Application. You may find the application on our website (www.lmlnc.com). website our on application the find may You Application.

A.

Yes, you certainly do need to be added to the new firm’s policy by filling out a Supplemental a out filling by policy firm’s new the to added be to need do certainly you Yes,

new firms policy? firms new

Q. If I join a new firm and I have my own solo policy, is it necessary for me to be added to the to added be to me for necessary it is policy, solo own my have I and firm new a join I If

office also needs to be in North Carolina. North in be to needs also office

A. Yes, you should have a North Carolina License and also reside in North Carolina. Your primary Your Carolina. North in reside also and License Carolina North a have should you Yes,

insurance with Lawyers Mutual? Lawyers with insurance

A

Q. . Is it necessary to be a North Carolina licensed attorney to apply for professional liability professional for apply to attorney licensed Carolina North a be to necessary it Is &

Q . . . . . U U NDERWRITING NDERSTANDING .