More Than a Footnote: What the Fourth Circuit Expects From Trial and Appellate Lawyers

Chris, a white man with brown hair, wears a pale blue shirt, purple tie and blue jacket. By Chris S. Edwards 

One of the hallmarks of skilled appellate advocacy is knowing when an argument is properly preserved. Whether you’re on the offensive or defensive side of an appeal, identifying preserved (and unpreserved) issues can make or break your case.

Because the Fourth Circuit issues relatively few precedential opinions, it can be tough to find clear, reliable guidance on how to preserve issues for appeal. This article highlights three recurring preservation pitfalls, outlines the rules that apply, and offers practical suggestions for staying out of trouble when waiver or forfeiture becomes a concern.

 

1. Motions in limine can preserve issues — but not always.

Trial lawyers frequently rely on motions in limine to streamline evidentiary rulings and keep trials running smoothly. But beware: in the Fourth Circuit, simply filing a motion in limine doesn’t automatically preserve the issue for appeal.

Take United States v. Williams, 81 F.3d 1321 (4th Cir. 1996). There, the defendant asked the trial court to resolve any spousal privilege concerns in a sidebar conference if they arose. The court never ruled on the motion, and when the defendant’s wife testified, the defense made no objection.

On appeal, the defendant tried to argue that the testimony was privileged. The Fourth Circuit rejected the argument — not because it lacked merit, but because it wasn’t preserved. The motion didn’t directly challenge the admissibility of the testimony, and no ruling was ever made. Worse still, no objection was lodged when the evidence came in.

The takeaway: a motion in limine preserves an issue only when (1) the exact argument raised on appeal was squarely presented to the trial court and (2) the court issued a definitive ruling on it. If the trial court’s response is unclear or the motion is denied, you’ll need to object again during trial to keep the issue alive.

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In Memory of Jackson (“Jack”) C. Bebber

Philip, a white man with brown hair, wears a white shirt, black suit and yellow tie.By Philip Isley

Editors Note:  On March 11, 2023, a car accident tragically claimed the life of Litigation Section Vice Chair Jack Bebber. On May 9, 2025, the Litigation Section was proud to honor his life and his service by dedicating a paver in the Liberty Garden at the Bar Center in his memory while also supporting the work of the North Carolina Bar Foundation. His good friend and former Litigation Section Chair Philip Isley made these remarks at the dedication ceremony.

My guess is that not many of you knew Jack well, but he passed away tragically on March 11, 2023. Jack was one of the best friends that I’ve ever made in my life. Our friendship – despite lasting for a little more than six years – was rich. It was full of laughter and hijinks, and sometimes we even talked about the law. Our friendship was one of the greatest things that ever happened to me.

The memorial event for Jackson C. Bebber was held on May 9, 2025, at the bar center.

At the time of his death, Jack was a 50-year-old attorney in only his ninth year of practice at the Van Winkle law firm in Asheville, whose members are here with us today. What Jack lacked in years of practice, he made up with his intelligence, his affable nature, his Adonis-like good looks, his ability to play any musical instrument with strings, and a sincere and deep curiosity and interest about anyone he ever met. He was the perfect candidate for the Litigation Section Council.

Isley is a white man with brown hair wearing a grey t-shirt, Laura is a white woman with blond hair, Jackson is a white man with brown hair wearing a blue baseball cap and yellow shirt, and Tami is a white woman with brown hair wearing a white shirt.

Pictured left to right are Isley, wife Laura, Jack Bebber and Tami Bebber. The group attended FloydFest (all one word) in Floyd, VA held on July 22, 2021.

Despite living in Asheville, he attended our meetings throughout the state, attended Judicial Conferences with me and others, and generally was a great ambassador for our Litigation Section. There is no doubt in my mind that Jack would have continued up the ranks in the Litigation Section Council and potentially the NCBA itself.

I never saw Jack in court. But I am told by many who knew him, litigated against him or with him, that Jack was one of the most naturally gifted litigators despite his lack of years in practice. He was beginning to hit his stride as one of the top eminent domain attorneys in North Carolina and even started a monthly “study hall” to teach and learn from other condemnation attorneys throughout the state.  Jack displayed ideals that our predecessors instilled in all of the members of the Litigation Section Council. Without a doubt, every recipient of the Litigation Section Council Advocate’s Award would have been proud to know Jack.

Isley is pictured in the middle of the photo wearing a suit. He stands talking with other attendees outside the bar center. There are trees behind them.

Isley, center, speaks with attendees at the memorial service held on May 9.

After Jack’s death, I sent an email to the members of the Litigation Section Council about Jack’s passing. It was a shock to all, clearly. We all wanted to honor Jack in an appropriate fashion, which is how the idea of this paver came about. Our hope is that this paver will – in some small fashion – remind all who see it that Jack was indeed a great attorney and leader of the North Carolina Bar Association.

Jack Bebber died far too soon, and I still miss him a great deal. However, we should also recognize that knowing Jack for as long or as short as we did made us all better people.

Helen is a white woman with brown hair. She wears a blue and white dress and white jacket.

Heather Goldstein, a partner at the Van Winkle Law firm, addresses attendees at the memorial event held on May 9, 2025, at the bar center.

As I conclude my remarks, I would like to request that all of you keep Jack’s wife Tami, daughters Judy, Molly and Sally, his father Gary and mother Grace in your thoughts and prayers as they continue to grieve and deal with the loss of their beloved husband and father.

I want to again thank all of you for allowing me to honor such a special person to me, as well as the NCBA.

The Litigation Section dedicated a paver in the Liberty Garden at the Bar Center in Bebber’s memory.

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Think Twice – Avoiding Waiver of the Attorney-Client Privilege Through Issuance of a Press Release

Isabelle, a woman with brown hair, wears a red blouse.Joe, a white man with brown hair, wears a pale blue shirt, red tie and dark blue jacket.By Isabelle M. Chammas and Joseph A. Schouten

Your company has just been sued by a competitor for patent infringement, deceptive advertising, unfair competition, or any number of other business torts. The news spreads quickly across industry publications and blogs, leading to a flood of inquiries from concerned customers wanting to know if the stories have any merit. You feel compelled to issue a press release to reassure them and challenge the claims against your company.

While a press release can be an effective way to communicate your position, it’s crucial to consider the potential risks to your attorney-client privilege. A poorly worded press release can inadvertently waive this privilege, exposing confidential communications to your legal opponents.

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Pro Bono Opportunities to Help Those Affected by Hurricane Helene

By Matt Krueger-Andes

As you know, Hurricane Helene had a devastating impact on Western North Carolina. Recovery from this disaster will take years, and residents who have suffered losses from the storm need legal help getting back on their feet.

The North Carolina Bar Foundation has several ways that North Carolina litigators can offer assistance.

Consumer Protection Cases. First, DLS anticipates an increased need in the area of consumer protection and contractor fraud. Hurricane victims are being targeted by scammers, which has given rise to consumer/contractor fraud and related cases. Please use this DLS Volunteer Sign up Form to offer assistance on these matters. (There is a specific place on the form where you can indicate your willingness to assist with these matters.)

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Screen Time: Strategies for Effective Legal Writing in the Digital Age

By Chris S. Edwards

Judges in North Carolina’s state and federal appellate courts don’t reach for printed briefs much anymore (the Chief Judge of the Fourth Circuit, Albert Diaz, has said that he and his colleagues routinely read briefs only on their iPads). Instead, they read briefs just like you or I would, on a screen.

If judges are reading briefs on a screen, should that information change the way that we write briefs? I think so. Even though reading on paper has distinct advantages (readers comprehend information better and retain more of it when they choose paper over a screen), I’m guessing most judges would be hard-pressed to give up the convenience of screen reading.

That leaves one solution: because the way judges read has changed, so too must the way that lawyers write. So, how do we do that? Read more

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Come to Our Section CLE on November 30!

Donald, a white man with blond hair, wears a white shirt, yellow tie with beige squares, and a black suit.By Donald R. Pocock

I am pleased to serve as the chair of the section this year, and I am writing to encourage all of you to take advantage of the benefits the section has to offer.

On November 30, the section will be hosting a CLE called Threading the Needle. The program focuses on a variety of topics that are important for litigators, including deposing expert witnesses and making effective use of your own experts, preparing for and defending Rule 30(b)(6) depositions, and appellate considerations for the trial lawyer. The program will feature a panel including Judge Metcalf from the Western District, Chief Judge Bledsoe from the Business Court, and Judge Rozier from Wake County Superior Court, who will advise litigators about what they can do to improve their effectiveness and advocacy. This is an excellent program and provides five hours of CLE, including two hours of ethics relating to the use of artificial intelligence (AI). Please join us live at the Bar Center in Cary starting at 10 am or via Live Webcast. The program’s full agenda is available here. Section members can register for this program at a discounted price.

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IRS Attacks Tax-Deferred Attorney Fee Structures

Keith, a white man with brown hair, wears brown glasses, a white shirt, a yellow tie, and black suit.Chris, a white man with black hair, wears a white shirt, burgundy tie, and black suit.Mike, a white man with grey hair, wears a white shirt and navy suit.By Keith A. Wood, Chris W. Genheimer, and Michael J. Allen 

Sometimes publicity is a bad thing, and notoriety is even worse. That seems to be the case with respect to an apparent major change in the IRS’s views on the tax treatment of contingent fee deferral arrangements that plaintiffs’ attorneys often use.

Structured attorney fee deferral arrangements (also known as “fee structures”) have been around for decades. Almost 30 years ago, the U.S. Tax Court seemed to validate the deferred tax treatment of fee structures in its 1994 decision in Childs v. Commissioner, 103 TC 634 (1994), aff’d without published opinion, 89 F.3d 856 (11th Cir. 1996). From the time of that decision until December 16, 2022, the generally held belief was that a properly constructed fee structure would not be met with IRS disapproval.

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eCourts Pilot Kicks Off in Wake, Johnston, Lee, and Harnett Counties!

Connor, a white man with brown hair, smiles and is wearing a red tie, pale blue shirt and black blazer.By Rick Conner

After much anticipation and several postponements, eCourts is now live in the four pilot counties: Wake, Johnston, Lee, and Harnett.

All new filings in these counties, including subsequent filings in open cases, must be done via eFiling aka File & Serve. Attorneys can file pleadings, submit documents to the court, pay fees, search court records, and obtain file-stamped copies of filed documents using eFiling and Portal. Please see this announcement from the NCAOC.

Mecklenburg County will be next with an anticipated eCourts launch in May 2023, with other groups of counties to follow every 60-90 days thereafter.

For more information on eCourts, please see this informative site maintained by the NCAOC, which includes training information, FAQs, and the rollout plan.

Please be patient with your courthouse personnel as everyone adjusts to this new system. Good luck and enjoy!

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Changes to the Rules of Professional Conduct Regarding Client Confidentiality

Amy, a white woman with reddish-brown hair and bangs, wears a black blouse.By Amy Richardson 

The Supreme Court of North Carolina recently approved amendments to Rules of Professional Conduct 1.6 (Confidentiality of Information) and 1.9 (Duties to Former Clients). The amendments permit a lawyer to disclose information acquired during the representation of a former client if the information is contained in the public record and disclosure is not detrimental to the client. Prior to these amendments, an attorney was not allowed to disclose such information unless she had informed consent from the client.

In addition, the North Carolina Bar Council adopted and approved for transmission to the Supreme Court proposed amendments to Rule 1.15 and Rule 4.1. The proposed amendment to Rule 4.1 makes a technical correction to the language in the comment. The proposed amendments to Rule 1.15 contain new definitions of common ledgers used in monitoring a lawyer’s trust account and rearrange some parts of the rule for improved understanding and application. The Supreme Court has not yet acted on these amendments.

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eCourts Training Update

By Matt Van Sickle

Hello Litigation Section Members. We have received an additional update on eCourts training and implementation.

The Administrative Office of the Courts training schedule for the eCourts program can be found here. One point of clarification since the initial announcement is that the training is available for attorneys and legal staff. There remain options for virtual and in-person training, but please note that September’s live training for Wake County will take place in new locations.

The four pilot counties for eCourts are Harnett, Johnston, Lee, and Wake, and the AOC has announced a target implementation date of October 10, 2022. Once the program is live, all attorneys will have to use the eCourts File & Serve system for filings in those counties.

In addition to the AOC’s training, on September 15, 2022, the Litigation Section is hosting a CLE, online and live in-person in Cary, that will include a one-hour presentation from the AOC concerning eCourts. We encourage our members to take advantage of both the AOC’s training and the CLE.

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