The large majority of appeals in this state first go to the North Carolina Court of Appeals. The Court consists of 15 judges, and they review cases in panels of 3. Those panels turn over every month, allowing different combinations of judges over time.
When the Court of Appeals issues a decision, the decision is usually a 3-0 unanimous vote of those three judges. In the rare event that one of the judges disagrees with the other two, so that the vote is 2-1, the losing party has the absolute right to further appeal at the N.C. Supreme Court. But, what are the options for the losing party when the decision is a unanimous 3-0?
Unfortunately for those folks, the options are extremely limited. In civil matters, the losing party can file a petition for rehearing with the Court of Appeals. In my experience, these petitions are rarely granted outright. Sometimes they result in a slight amendment to the Court’s decision instead of a full re-do of the appeal, but even then the substance of the decision usually does not change.
The losing party can also file a petition “en banc” for the entire Court of Appeals — all 15 judges — to rehear the case. This option has only been on the books for a few years, but I am fairly certain that a petition for en banc rehearing has never been granted. Literally never.
Finally, the losing party can file a petition for discretionary review. This firm assisted the attorney for a losing party in a jurisdictional case this past winter in preparing such a petition, which was granted and resulted in the reversal of the Court of Appeals decision (which had gone against them). So particularly in civil cases, there is reason to hope that a loss at the Court of Appeals is not the end of the road. Unfortunately for criminal appellants, the N.C. Supreme Court has been very resistant to granting those petitions. In a conversation with other attorneys recently, I heard that over 60 petitions by criminal defendants had been ruled on in 2023, and not a single one had been granted.
Ultimately your best shot of success on appeal is to “win the first time” at the Court of Appeals, so it is important to hire the best appellate attorney from the start.