What most people think of when they think of a family law case in North Carolina is two trial attorneys, in court, arguing about how property or money is to be divided or what a shared custody schedule looks like. That certainly is the day-to-day practice for most family law attorneys, but what happens if the order the court enters after that trial is somehow wrong? Can a trial court’s order be appealed to another court if the decision in the trial court is wrong? The short answer is that many decisions from the trial court may be appealed to the North Carolina Court of Appeals if the trial court has made an error of law or of fact. The long answer is “it depends.” Some orders are immediately appealable whereas others are not appealable until a later time. Knowing what is appealable and when is the first thing that an attorney handling a family law appeal needs to know. But it’s not the only thing that an attorney handling a family law appeal needs to know.
There is a lot of differences between what happens at the trial level in a family law case and what happens at the appellate level in a family law case. To begin with, appeals are governed by a separate set of rules than are trials. There are also many specific deadlines in appeals, that if missed may cause you to lose your right to appeal completely. The different rules and procedures are just the start of the differences between how a trial court case is handled and how an appeal case is handled. Many attorneys understand that procedures and rules may be different, but unless they regularly handle family law appeals, they may not understand that there is a fundamentally difference in the type of advocacy involved at the trial level and at the appellate level. The type of argument that is persuasive in the trial court may not be persuasive in the appellate courts. Because the Court of Appeals primarily focuses its analysis on whether errors of law were committed by the trial court, the Court of Appeals does not make a determination of what the facts in a particular case are. In other words, the focus in an appeal is on legal questions. Many trial attorneys who do not regularly handle appeals will go into an appeal with the same approach they took at trial and will make their trial arguments to the Court of Appeals all without understanding that those arguments are not what are persuasive in the appellate courts.
Another big difference between trial advocacy and appellate advocacy is that in trial most of the argument is done orally and in front of the trier of fact whereas in an appeal, most of the argument is done in writing oral argument is only allowed in a small percentage of the cases. So that means that an appellate attorney must be well-versed in the skills involved in written advocacy – that includes an understanding of the specific and sometimes esoteric seeming rules that govern the way in which that written argument must be presented and some skill with storytelling and presenting a compelling argument only on paper.
Whether you are the party who wants to appeal the trial court’s decision or are the party against whom an appeal has been filed, you should consult an appellate attorney. Because the appeals process is so specialized, it’s important to retain an attorney who has extensive knowledge and experience in this area – ideally an attorney who has been certified by the North Carolina State Bar as an expert in appellate law. The North Carolina State recognizes several areas of law as ones for which an attorney may become certified as a specialist; to be recognized as a specialist, an attorney must have had significant experience in that practice area, must be reviewed by other attorneys, and must take an examination to test knowledge. Family law and appellate practice are two such specialty areas. Rebecca Watts is one of only four attorneys in North Carolina who is double board certified as a specialist in both family law and appellate practice. She has handled more than 60 appeals to the North Carolina Court of Appeals and the North Carolina Supreme Court and has the knowledge, experience, and expertise necessary to navigate a family law appeal. If you need representation for a family law appeal in North Carolina, Collins Family & Elder Law Group can help you.
