We’ve all been there: you’ve been mediating all day, it’s 5:30 p.m. (or later), the parties just (finally) came to terms, and everyone is ready to go home. The mediator whips out a form, jots down the basic terms of the settlement, and hands you the form. You reach for your pen, and then ask yourself, “Shouldn’t my client be the one signing this?” Considering the increase in remote mediations since the start of the pandemic, there’s a good chance you and your client aren’t even together in the same room — or the same state. So do you sign? The North Carolina Court of Appeals just answered that question for you. After the decision in Mitchell v. Boswell, No. COA19-1077, 2020 WL 6437278 (N.C. Ct. App. Nov. 3, 2020), your client should definitely be the one signing the form.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00Constructionhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngConstruction2020-12-09 09:04:432020-12-09 09:11:02Don't Sign on the Dotted Line – Unless You're the Client
We have all experienced the dread of another Zoom meeting or Webex hearing, but why is it so hard to keep your energy and attention up when the webcam light is on?
And why are we so exhausted at the end of the day?
Before you step in front of the webcam for your next court appearance, it helps to consider some of the “digital drawbacks” and how you can minimize their impact on your advocacy.
Digital Drawbacks
Audio-visual delays. Even if the technology is working perfectly, microseconds of delay can impact how we communicate and how we are perceived. Research has shown that even small delays in the transmission of auditory and visual signals affect interpersonal perceptions. Delays of only 1.2 seconds led to perceptions that a person was less friendly or less focused.
Eye contact. We all know that it’s missing from our online interactions. It matters because there is robust psychosocial evidence that eye contact improves not only connection, but also memory.
Distractions. Going to court over Zoom or Webex is like walking into the courtroom with a giant mirror and placing it between you and the bench. It’s too easy to spend the entire time looking at yourself. Meanwhile, your listeners are facing their own struggles — kids, pets, coworkers, technology failures (or user errors), email notifications, and the temptation of multitasking.
“Zoom Fatigue.” We normally process non-verbal communications automatically. However, the small amount of non-verbal communication that makes it onto our screens must be consciously observed. That’s taxing. Added to that is the heightened stress caused by the increased emphasis on facial expressions and cues. This “cognitive load” (the use of working memory resources) means your mind will want a break more often than it did when everyone gathered in one place. Read more
E.D. Gaskins, Chair Hall of Fame Nominating Committee
The fall meeting of the Senior Lawyers Division, which took place on October 2, 2020, was highlighted by the induction of five new members into the NCBA Legal Practice Hall of Fame: Marshall Gallop Jr. of Rocky Mount, Judge Robert C. Hunter of Marion, Glenn Ketner Jr. of Salisbury, Pender McElroy of Charlotte, and Kenneth Moser of Winston-Salem. Both the inductees and their nominators made remarks.
This was the first (and, I hope, the last) virtual induction ceremony. This is the 32nd class of honorees since the inception of this recognition of a lifetime of exceptional practice and service to the profession and to the communities in which these honorees have practiced. The Selection Committee was pleased to have had a large number of well-qualified candidates from which to choose. This is the second year since the practice qualification for membership in the Hall of Fame changed from general practice to legal practice, thus increasing the number of potential nominees.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00Senior Lawyershttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngSenior Lawyers2020-12-07 11:46:562020-12-07 11:47:42Five New Hall of Fame Members Honored in Virtual Induction Ceremony
It is no secret that the COVID-19 pandemic has forced many, if not all, into some position of discomfort. From business closings to restrictions on in-person gatherings, many aspects of what we consider to be “normal life” have been removed. With much of this “normal life” taken away, it seems natural for us to focus on all the things we don’t have as a result of these circumstances.
However, I would like to challenge everyone to find the positive in what seems like so much negative — to discover the light in what seems like so much darkness. I propose that we concentrate on identifying the things that we still do have under these difficult circumstances, instead of lamenting what we don’t have. More than anything, I want to suggest that we all remain intentional about being thankful for the little things. Let’s make gratitude our new attitude.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00NCBA YLDhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngNCBA YLD2020-12-04 16:30:072020-12-04 16:30:48Being Thankful for the Little Things
In the “olden” days, before September 2019, some felt that dealing with the Rules Review Commission (RRC) and the Office of Administrative Hearings (OAH) kind of cramped their rule-writing style. Many will recall the seemingly endless corrections of “which” to “that” or from “including but not limited to” to “including.” And then there were the poison pill words ending in “ly” that regularly tripped up rule-writers. Frustration was often an undercurrent.
At least a partial and helpful solution came to fruition in September 2019. At that time, RRC and OAH approved a Style Guide. The stated purpose of the Style Guide is “to assist agencies adopting rules, members of the public in understanding them, and the Rules Review Commission in reviewing them as provided by law.”
The goal of the Style Guide is to “make a better Administrative Code.” The Guide comprehensively covers topics “ranging from formatting to word selection” with the intent to improve “consistency, accessibility, and efficiency.”
The Style Guide has now been in use more than a year. OAH and RRC want “to ensure it is meeting [the rulemaking community’s] needs.” Action requested: OAH and the RRC are looking for feedback on the Style Guide. In particular, they would like to know if there are points in the Guide needing clarification or issues not addressed that you wish had been addressed. To submit suggestions and requests for changes, send your comments via email to [email protected]. All ideas must be submitted by 5 p.m. on Friday, Jan. 8, 2021.
This is your chance! Make a difference. Review the Style Guide for the first or umpteenth time and send in your comments.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00Administrativehttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngAdministrative2020-12-04 10:57:082020-12-04 12:31:33Call to Action: A Chance to Improve Writing of Rules "In Style"
The NCBA’s Appellate Practice Section invites you to attend a virtual presentation celebrating the life, achievements, and legacy of Supreme Court Justice Ruth Bader Ginsburg, told through three of her former clerks. Our panelists will discuss the experience of clerking for Justice Ginsburg, her tremendous legacy to the legal profession, and her impact on them personally. The event will take place on Friday, December 18, from 12 to 1:30 p.m. Please use the link below to register to attend by noon on Thursday, December 17. We encourage you to invite others to attend the event as well.
This event is part of the Appellate Practice Section’s new “Appellate Insights” program, which will present speakers on a variety of topics of interest to appellate practitioners and the North Carolina bar. We hope you can join us for this and future events.
Register for the event using this link. Please note that you must be logged in to your NCBA account to complete your registration.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00Appellatehttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngAppellate2020-12-03 11:43:462020-12-04 16:21:01Join the Appellate Practice Section in Celebrating Supreme Court Justice Ruth Bader Ginsburg
One of the biggest risks contractors and subcontractors face on construction projects is liability for consequential damages, although many of them may not even know about that risk, much less understand it. Consequential damages are damages which flow indirectly from a breach of contract and are typically related to delays in performance and delays in completion of a project. Such damages can be huge. In fact, it can represent a bet-the-company risk. However, many contractors and subcontractors enter into contracts every day without even knowing the risks they face with respect to such damages. It is important to ensure that your clients know, understand and evaluate this risk on every project. Click here to read the article.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00Constructionhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngConstruction2020-12-03 11:42:492020-12-03 11:42:49Consequential Damages in Construction – The Silent Killer
Is there a member of your firm or a fellow attorney who should be recognized for his or her pro bono service this year? Have you participated in pro bono projects throughout the year? If so, please consider submitting a nomination for the 2020 Bankruptcy Pro Bono Award!
The Pro Bono Committee for the Bankruptcy Law Section is now seeking nominations for the 2020 Pro Bono Award to be presented at the Section’s upcoming annual meeting. The outstanding individual achievement award will be given to at least one Bankruptcy Section member who has actively participated in pro bono activities during 2020. All nominations must be submitted by Thursday, Dec. 31, 2020. Please see the nomination form for more information. Self- and third-party nominations will be accepted. We look forward to honoring this year’s award winner!
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00Bankruptcyhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngBankruptcy2020-12-03 11:29:082020-12-03 11:52:21Seeking Nominations for the 2020 Bankruptcy Pro Bono Award
Equitable subrogation as a remedy has been an established common law doctrine in the United States for over a century.[i] Recognized as a “legal fiction,” equitable subrogation arises in situations “whereby an obligation, extinguished by a payment made by a third [party], is treated as still subsisting for the benefit of this third [party], so that by means of it one creditor is substituted to the rights, remedies, and securities of another.”[ii] Equitable subrogation is used “only to further an equitable result” and its use “will be denied where it would lead to an uncontemplated and inequitable result or where it would work any injustice to the right of others.”[iii] The doctrine is highly favored by courts and given a liberal application due to it being “sufficiently elastic to meet the ends of justice.”[iv] It is now applied in a variety of legal contexts and in many jurisdictions across the United States, including North Carolina. Most commonly, the doctrine is invoked in mortgage priority disputes that arise during mortgage foreclosure actions.[v] In November of 2019, a divided panel of the North Carolina Court of Appeals in U.S. Bank Nat’l Ass’n v. Estate of Wood held for the first time that a party in North Carolina could assert the doctrine of equitable subrogation in the real estate purchase transaction context, resulting in a novel expansion of the doctrine under North Carolina law.[vi] Read more
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00RealPropertyhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngRealProperty2020-12-02 14:48:182021-01-04 11:33:43Note: Consistency is Key: The Court of Appeals of North Carolina Extends Equitable Subrogation in Real Estate Purchase Transactions in U.S. Bank Nat’l Ass’n v. Estate of Wood
A U.S. District Court decision issued on Nov. 25, 2020, is a good illustration of the rule that if a Complaint implicates the possibility of coverage, the insurer’s duty to defend cannot be eliminated by extrinsic evidence that demonstrates no coverage, and if it is determined that the insurer’s refusal to defend was unjustified, it will be obligated to pay the underlying judgment. In Craige v. Gov’t Employees Ins. Co., 1:19-cv-408 (M.D.N.C. 2020), two insurers refused to defend based on their investigation that the defendant driver did not qualify as an insured of the policies because he was not a resident of the named insureds’ household. The Court ruled that the insurers are now liable for the underlying judgment against the driver because the Complaint and available evidence put the insurers on notice of a possibility of coverage.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00InsuranceLawhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngInsuranceLaw2020-12-02 14:47:322020-12-02 16:05:00Duty to Defend Triggered by Extrinsic Evidence
Don’t Sign on the Dotted Line – Unless You’re the Client
Construction Law SectionWe’ve all been there: you’ve been mediating all day, it’s 5:30 p.m. (or later), the parties just (finally) came to terms, and everyone is ready to go home. The mediator whips out a form, jots down the basic terms of the settlement, and hands you the form. You reach for your pen, and then ask yourself, “Shouldn’t my client be the one signing this?” Considering the increase in remote mediations since the start of the pandemic, there’s a good chance you and your client aren’t even together in the same room — or the same state. So do you sign? The North Carolina Court of Appeals just answered that question for you. After the decision in Mitchell v. Boswell, No. COA19-1077, 2020 WL 6437278 (N.C. Ct. App. Nov. 3, 2020), your client should definitely be the one signing the form.
Read more
Remote Advocacy – Tips for Success
Featured Posts, Litigation SectionWe have all experienced the dread of another Zoom meeting or Webex hearing, but why is it so hard to keep your energy and attention up when the webcam light is on?
And why are we so exhausted at the end of the day?
Before you step in front of the webcam for your next court appearance, it helps to consider some of the “digital drawbacks” and how you can minimize their impact on your advocacy.
Digital Drawbacks
Five New Hall of Fame Members Honored in Virtual Induction Ceremony
Senior Lawyers DivisionHall of Fame Nominating Committee
The fall meeting of the Senior Lawyers Division, which took place on October 2, 2020, was highlighted by the induction of five new members into the NCBA Legal Practice Hall of Fame: Marshall Gallop Jr. of Rocky Mount, Judge Robert C. Hunter of Marion, Glenn Ketner Jr. of Salisbury, Pender McElroy of Charlotte, and Kenneth Moser of Winston-Salem. Both the inductees and their nominators made remarks.
This was the first (and, I hope, the last) virtual induction ceremony. This is the 32nd class of honorees since the inception of this recognition of a lifetime of exceptional practice and service to the profession and to the communities in which these honorees have practiced. The Selection Committee was pleased to have had a large number of well-qualified candidates from which to choose. This is the second year since the practice qualification for membership in the Hall of Fame changed from general practice to legal practice, thus increasing the number of potential nominees.
Read more
Being Thankful for the Little Things
Law Student Division, Young Lawyers DivisionBy Trey Ellis
It is no secret that the COVID-19 pandemic has forced many, if not all, into some position of discomfort. From business closings to restrictions on in-person gatherings, many aspects of what we consider to be “normal life” have been removed. With much of this “normal life” taken away, it seems natural for us to focus on all the things we don’t have as a result of these circumstances.
However, I would like to challenge everyone to find the positive in what seems like so much negative — to discover the light in what seems like so much darkness. I propose that we concentrate on identifying the things that we still do have under these difficult circumstances, instead of lamenting what we don’t have. More than anything, I want to suggest that we all remain intentional about being thankful for the little things. Let’s make gratitude our new attitude.
Read more
Call to Action: A Chance to Improve Writing of Rules “In Style”
Administrative LawIn the “olden” days, before September 2019, some felt that dealing with the Rules Review Commission (RRC) and the Office of Administrative Hearings (OAH) kind of cramped their rule-writing style. Many will recall the seemingly endless corrections of “which” to “that” or from “including but not limited to” to “including.” And then there were the poison pill words ending in “ly” that regularly tripped up rule-writers. Frustration was often an undercurrent.
At least a partial and helpful solution came to fruition in September 2019. At that time, RRC and OAH approved a Style Guide. The stated purpose of the Style Guide is “to assist agencies adopting rules, members of the public in understanding them, and the Rules Review Commission in reviewing them as provided by law.”
The goal of the Style Guide is to “make a better Administrative Code.” The Guide comprehensively covers topics “ranging from formatting to word selection” with the intent to improve “consistency, accessibility, and efficiency.”
The Style Guide has now been in use more than a year. OAH and RRC want “to ensure it is meeting [the rulemaking community’s] needs.” Action requested: OAH and the RRC are looking for feedback on the Style Guide. In particular, they would like to know if there are points in the Guide needing clarification or issues not addressed that you wish had been addressed. To submit suggestions and requests for changes, send your comments via email to [email protected]. All ideas must be submitted by 5 p.m. on Friday, Jan. 8, 2021.
This is your chance! Make a difference. Review the Style Guide for the first or umpteenth time and send in your comments.
Join the Appellate Practice Section in Celebrating Supreme Court Justice Ruth Bader Ginsburg
Appellate PracticeThe NCBA’s Appellate Practice Section invites you to attend a virtual presentation celebrating the life, achievements, and legacy of Supreme Court Justice Ruth Bader Ginsburg, told through three of her former clerks. Our panelists will discuss the experience of clerking for Justice Ginsburg, her tremendous legacy to the legal profession, and her impact on them personally. The event will take place on Friday, December 18, from 12 to 1:30 p.m. Please use the link below to register to attend by noon on Thursday, December 17. We encourage you to invite others to attend the event as well.
This event is part of the Appellate Practice Section’s new “Appellate Insights” program, which will present speakers on a variety of topics of interest to appellate practitioners and the North Carolina bar. We hope you can join us for this and future events.
Register for the event using this link. Please note that you must be logged in to your NCBA account to complete your registration.
Consequential Damages in Construction – The Silent Killer
Construction Law SectionOne of the biggest risks contractors and subcontractors face on construction projects is liability for consequential damages, although many of them may not even know about that risk, much less understand it. Consequential damages are damages which flow indirectly from a breach of contract and are typically related to delays in performance and delays in completion of a project. Such damages can be huge. In fact, it can represent a bet-the-company risk. However, many contractors and subcontractors enter into contracts every day without even knowing the risks they face with respect to such damages. It is important to ensure that your clients know, understand and evaluate this risk on every project. Click here to read the article.
Seeking Nominations for the 2020 Bankruptcy Pro Bono Award
BankruptcyIs there a member of your firm or a fellow attorney who should be recognized for his or her pro bono service this year? Have you participated in pro bono projects throughout the year? If so, please consider submitting a nomination for the 2020 Bankruptcy Pro Bono Award!
The Pro Bono Committee for the Bankruptcy Law Section is now seeking nominations for the 2020 Pro Bono Award to be presented at the Section’s upcoming annual meeting. The outstanding individual achievement award will be given to at least one Bankruptcy Section member who has actively participated in pro bono activities during 2020. All nominations must be submitted by Thursday, Dec. 31, 2020. Please see the nomination form for more information. Self- and third-party nominations will be accepted. We look forward to honoring this year’s award winner!
Read more
Note: Consistency is Key: The Court of Appeals of North Carolina Extends Equitable Subrogation in Real Estate Purchase Transactions in U.S. Bank Nat’l Ass’n v. Estate of Wood
Real PropertyI. Introduction
Equitable subrogation as a remedy has been an established common law doctrine in the United States for over a century.[i] Recognized as a “legal fiction,” equitable subrogation arises in situations “whereby an obligation, extinguished by a payment made by a third [party], is treated as still subsisting for the benefit of this third [party], so that by means of it one creditor is substituted to the rights, remedies, and securities of another.”[ii] Equitable subrogation is used “only to further an equitable result” and its use “will be denied where it would lead to an uncontemplated and inequitable result or where it would work any injustice to the right of others.”[iii] The doctrine is highly favored by courts and given a liberal application due to it being “sufficiently elastic to meet the ends of justice.”[iv] It is now applied in a variety of legal contexts and in many jurisdictions across the United States, including North Carolina. Most commonly, the doctrine is invoked in mortgage priority disputes that arise during mortgage foreclosure actions.[v] In November of 2019, a divided panel of the North Carolina Court of Appeals in U.S. Bank Nat’l Ass’n v. Estate of Wood held for the first time that a party in North Carolina could assert the doctrine of equitable subrogation in the real estate purchase transaction context, resulting in a novel expansion of the doctrine under North Carolina law.[vi]
Read more
Duty to Defend Triggered by Extrinsic Evidence
Insurance Law SectionA U.S. District Court decision issued on Nov. 25, 2020, is a good illustration of the rule that if a Complaint implicates the possibility of coverage, the insurer’s duty to defend cannot be eliminated by extrinsic evidence that demonstrates no coverage, and if it is determined that the insurer’s refusal to defend was unjustified, it will be obligated to pay the underlying judgment. In Craige v. Gov’t Employees Ins. Co., 1:19-cv-408 (M.D.N.C. 2020), two insurers refused to defend based on their investigation that the defendant driver did not qualify as an insured of the policies because he was not a resident of the named insureds’ household. The Court ruled that the insurers are now liable for the underlying judgment against the driver because the Complaint and available evidence put the insurers on notice of a possibility of coverage.
Read more