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Appealing your Personal Injury Case

What is an Appeal?

In every personal injury case, the plaintiff has the right to a jury trial.  The outcome in any case is not guaranteed.  In some cases the outcome may not be the one intended or expected.  This is where the Appellate courts come in to play.  A case is heard on its merits at the trial level.  Each side presents evidence, examine and cross-examine witnesses, and argues the facts and the laws as it pertains to the case.  At the end of each party’s case, a judgment (verdict) is made by the trier of fact, either a jury or a judge.  If the party is dissatisfied with the judgment, the party may appeal.  In civil matters, either party can appeal, but—almost always—in a criminal matter only the defendant can appeal.

Whether the matter is a civil or criminal one, there must be a legal basis to file an appeal.  An appeal is not a new trial or a retrial of the case.  New evidence will not be considered by the appellate court, and its review is limited to the record from the trial court.  An appellate court will review the trial court’s record to determine if a judge made any procedural errors, an error in interpretation of law, or violated due process.  Only issues which were raised during the trial can be challenged at the appellate level.  As mentioned, no new evidence will be heard, nor will any new objections be raised.  It is often said that “the actions of the trial judge are on trial, not the actions of the parties to the original litigation.”

It is a popular misconception that there is a U.S. constitutional right to an appeal. The right to appeal may be inferred from Article I, Section 8 of the U.S. Constitution, but there is no absolute right to an appeal.  In fact, the Supreme Court has declined to recognize a due process right to appeal in civil and criminal cases.   Although, there may not be a constitutional right to an appeal, there may be state constitutional and statutory rights to an appeal.

Appeals Procedure

Appellate procedures vary from state to state, as well as at the federal court level.  An appeal can be filed once the trial court has rendered its final decision.  There are time limitations in which to do so, and failure to file an appeal within the time limitations will forever bar your right to an appeal.  In North Carolina, you have 30 days to file an appeal.  Likewise, an appeal must be filed within 30 days at the federal level, or 60 days if the U.S. is a party.

Appellate Court

The appellate process begins once the notice of appeal is filed.  The party filing an appeal is called the appellant (or petitioner).  The appellant must file a written argument, which is known as a brief.  The brief consists of the legal arguments upon which the appellant is seeking a reversal of the trial court’s judgment.  The appellee (or respondent) will then file a response to the appellant’s brief.  The appellant may have the opportunity to file a reply to the appellee’s response.

At the time of oral arguments, each party’s attorney is given an opportunity to argue their case before the appellate court.  In North Carolina, thirty minutes will be allowed for each party’s oral argument.  “Upon written or oral application of any party, the court for good cause shown may extend the times limited for argument. The court of its own initiative may direct argument on specific points outside the times limited. Counsel is not obliged to use all the time allowed and should avoid unnecessary repetition; the court may terminate argument whenever it considers further argument unnecessary.” North Carolina Rules of Appellate Procedure (30) (b) (1).  Similarly, the U.S. Supreme Court allows each party 30 minutes, but the federal courts only allow 10-15 minutes for each party’s oral argument.

Appellate Rulings

Generally, appellate courts will issue a written opinion (decision), especially when the opinion establishes a new precedent and/or a new interpretation of the law.  Rulings by an appellate court are exceedingly case-specific, but generally the court’s ruling may include the following:

Affirmed: The appeals court may affirm the lower court's judgment, which means the lower court’s decision was correct and it will stand;

Remanded: The case will go back to the trial court with specific instructions for additional proceedings.  The lower court must reconsider the case consistent with the appellate court's instructions;

Reversed: The higher court will reverse the trial court’s ruling when it determines that the trial court reached the wrong conclusion;

Vacated: A vacated judgment voids the trial court’s judgment;

No Error or No Prejudicial Error: The appellate court determines that the trial court reached the correct result or made no consequential mistakes (this applies in criminal cases). There are instances in which a legal error was made by the lower court, but the appeals court will determine that the error was harmless. A harmless error is one in which, although erroneous, would not have had any bearing on the case and would not have influenced or changed the outcome of the lower court’s judgment;

Dismissed: The reviewing court determines that the appeal will not be considered on the merits; and

New Trial: The trial court made prejudicial errors requiring another trial. (


In many instances, the appellate court’s ruling may include a combination of rulings:

NO ERROR IN PART; REVERSED AND REMANDED IN PART; DISMISSED IN PART, State of North Carolina v. Nicholas Nacoleon Harding, Court of Appeals of North Carolina, No. COA17-448 (March 2018).
NO ERROR, State of North Carolina v. Billy Ray Allen, Court of Appeals of North Carolina, No. COA17-661 (March 2018).
REVERSED AND REMANDED, Supreme Court of North Carolina. State of North Carolina V. Paris Jujuan Todd, No. 18A14-2 (June 2017).

There are two appellate courts in North Carolina.  The Court of Appeals is the intermediary appellate court, and the North Carolina Supreme Court is the state's highest appellate court.  Most of the Supreme Court’s cases originate from the Court of Appeals.  Some cases may go directly to the Supreme Court, bypassing the Court of Appeals altogether.  For instance, a defendant sentenced to death for a conviction of first-degree murder may appeal his conviction or sentence directly to the Supreme Court (

The lawyers at our firm are experienced in multiple areas of trial and appellate practice, both in civil and criminal matters.  Our experience and expertise are unparalleled.  If you have been charged with a crime, or have been convicted of one, call our office today to schedule a free consultation to review your case.  To discuss your case please contact us at (704) 714-1450.

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