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

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!

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.

eCourts Training is Here!

By Matt Van Sickle

Hello Litigation Section Members. I am honored to serve the Litigation Section as Chair for the 2022-23 Bar Year, and will provide a roadmap for the coming year in another post.

The purpose of today’s post is to let you know the Administrative Office of the Courts has released the schedule for the initial rounds of eCourts training, taking place in September. There will be virtual options, and in-person training will take place in Cary and Lillington. If you have not kept up with the eCourts program, the four pilot counties for the program are Harnett, Johnston, Lee, and Wake. Once the program is live, all attorneys will have to use the eCourts File & Serve system for filings in those counties. The training announcement from the Administrative Office of the Courts can be accessed here.

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Nominate a Colleague for an NCBA Pro Bono Award

By Karsin Williard

Each year, the North Carolina Bar Association recognizes members for their substantial contributions to pro bono service in North Carolina. The nomination deadline for 2021-22 NCBA Pro Bono Award recognition is February 18. Please consider nominating a colleague for pro bono recognition.

You can find more information and a nomination form here. These are the award categories:

William Thorp Pro Bono Service Award: Presented to an NCBA member attorney who practices in North Carolina and has provided substantial legal services, in excess of the aspirational goals of Rule 6.1, with no expectation of receiving a fee, to a client or client group that could not otherwise afford legal counsel. The nominee should have engaged in the direct delivery of legal services to clients or a client group over an extended period of time and those efforts should be ongoing. Nominees must not be employed on a full-time basis by an organization that has as its primary purpose the provision of free legal services to the poor.

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What You Need to Know about Remote Depositions in 2022

By PJ Puryear

With Covid came a new chapter in most litigators’ lives: remote depositions. There are no doubt lovers and haters of this development, but there is also no doubt this technological development is here to stay. Accordingly, everyone needs to be aware that N.C. Gen. Stat. § 10B-25, which authorized “emergency video notarization” and opened the door to this practice, has expired. There does appear to be a workaround, however.

Originally set to expire in March of last year, the General Assembly modified the statute to extend to December 31, 2021. Unfortunately, the General Assembly adjourned before Omicron ruined all of our well-laid holiday plans (and perhaps your plans for returning to in-person depositions), and before they could pass legislation continuing a court reporter’s ability to swear in a witness remotely. If you haven’t been to the Secretary of State’s webpage in the last two weeks, you haven’t seen Secretary Marshall’s notice to the public on this: “Notice: The temporary Emergency Video Notarization Law expired on 12/31/21 at 12:01 am. ALL notarial acts, traditional and electronic, revert to the original law requiring in-person, physical presence by the principal or principals.”

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Fraudulent Wire Transfers: Who Bears the Loss and How to Prevent Becoming A Victim

By Kevin J. Stanfield

Cybercriminals exploited remote work during the COVID-19 pandemic.

In 2020, the FBI’s Internet Crime Complaint Center (IC3) saw a record 70% increase in the number of reported internet scams and losses exceeding $4.2 billion, due in part to the pandemic driving more commercial activities online and increasing remote work. According to the FBI, one of the most popular methods to steal money from businesses and individuals during the pandemic involved phishing scams and email account compromises.[1]

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