Olsinski Law Firm team


While most litigation, be it civil or criminal, results in settlements of some kind, there are still numerous instances in which a case goes to trial and either or both parties are dissatisfied with the result. In these situations, the most typical solution is to appeal to a higher court. In North Carolina, there are two level of appellate courts: the Court of Appeals and the Supreme Court. It is important to keep in mind, that not every case can be appealed, and just because a party is unhappy with a result does not mean that case is appealable.

Who May Appeal?

In criminal cases, typically only a defendant may appeal because of the safeguards allowed by the 5th Amendment’s “double jeopardy” clause which prohibits trying a person twice for the same offense. If a defendant is acquitted, (found not guilty) the government is bound by that decision and cannot re-try that person for that same offense.

In civil cases, either party may appeal a decision or verdict to a higher court.

What Is Appealable?

Simply losing at trial does not make a case appealable. Parties must cite specific issues in which they feel an error was made either in a trial procedure or in the interpretation of law by a judge that prejudiced their case, and had that error not been made, a different result would have come about.

The Process for an Appeal

In both civil and criminal cases, usually parties must wait until a case is concluded before appealing a court’s decision. Typically, an appeal first must go to an appellate court, be it North Carolina Court of Appeals for state cases or the 4th Circuit Court of Appeals for North Carolina federal cases, for a ruling on issues before an appeal makes its way to the highest court, which is the North Carolina Supreme Court for state cases or the United States Supreme Court for federal cases.

If a party intends to appeal, there are very strict rules which detail the time frame in which each step must take place as well as the specific format in which documents must be prepared. The first step in any case though is to enter a Notice of Appeal. After this, a trial transcript must be prepared by the court reporter, the record on appeal must be settled by the parties, and briefs must be written in which the party claiming error (the appellant) sets for their basis for the appeal, and the party opposing the appeal (the appellee) argues against the appeal.

Occasionally an appellate court may request oral arguments, in which case attorneys for each side appear in person before the court to put forth their arguments and answer any questions the panel of judges pose.

Other Post-Trial Motions  Civil Cases

Civil trials are governed by the Rules of Civil Procedure, and it is these rules which provide, under limited circumstances, relief from a judgment.  These types of proceedings fall outside the realm of direct appeals as they are considered by the trial court, not the Court of Appeals.  Depending on the circumstances of a case, the type of relief offered by these rules include modifying the judgment or granting a new trial altogether.

Criminal Cases

Criminal cases are governed by the Rules of Criminal Procedure, and these rules provide for the most common form of post-conviction relief, which is called a Motion for Appropriate Relief.  The rules are very specific as to the situations in which a court can consider a Motion for Appropriate Relief, but if granted, the court could, among other options, dismiss a defendant's charges or grant a new trial.

An additional option available in criminal cases is a petition for a writ of habeas corpus. This procedure is used when a defendant has been convicted in state court and has exhausted all of his direct appeal rights. This petition must allege that the conviction was obtained in violation of his or her federal constitutional rights and is filed in federal courts to determine the validity of the allegation.

If you have been through the ordeal of a trial and did not obtain the desired outcome, your fight does not have to end there.

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