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 No Mercy 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 However, if you have followed our Court of Appeals’ I. Court Will Give No Quarter for Rules Directors: published and unpublished decisions through Violations Henry Mitchell, Chairman the past year, you will notice that the Court is However, the Court of Appeals has now Doris Bray now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.