Monday, May 06, 2013, 7:46 PM

Interview with the Honorable Mark A. Davis, North Carolina Court of Appeals

We recently sat down with the Honorable Mark A. Davis with the North Carolina Court of Appeals for a conversation about his path to the bench, life at the Court, and his thoughts on appellate practice.  Read on for more details. . . .

Judge Davis received his undergraduate and law degrees from the University of North Carolina and then went on to serve as a law clerk for the Honorable Franklin T. Dupree at the United States District Court for the Eastern District of North Carolina.  Upon completion of his clerkship, Judge Davis spent 13 years as a litigator at Womble Carlyle Sandridge & Rice before moving to the Attorney General’s office, where he spent five years in the Special Litigation section.  While he was at the AG’s office, Judge Davis added to his significant civil experience by also working on criminal appeals.  Prior to his appointment to the bench on December 31, 2012, Judge Davis spent two years serving as General Counsel for Governor Beverly Perdue. 

            Judge Davis told us that serving as a judge on the Court of Appeals is his “dream job,” as he has loved appellate law since his clerkship with Judge Dupree.  Before coming to the bench, Judge Davis had quite a busy appellate practice, handling between 60-70 appeals at both the state and federal levels.  During this time, he participated in approximately 20 oral arguments at the North Carolina Court of Appeals, five State Supreme Court arguments, and five Fourth Circuit arguments.

            For Judge Davis, the most rewarding aspect of his job is the purity of the appellate process.  Judge Davis loves that each time he is assigned a new case, he is handed a set of facts about which he knows almost nothing and within approximately 90 days his chambers has issued an opinion that represents the best efforts of the judges and staff on the Court, free of any bias or partisanship and uninfluenced by any outside interests. 

By contrast, Judge Davis told us that the hardest part about being a judge on the Court of Appeals is handling the cases that come to the court under Rule 3.1 of the North Carolina Rules of Appellate Procedure.  These are the cases that deal with the abuse, neglect, and dependency of children.  Judge Davis explained that he takes his role in these cases very seriously and that these cases keep him up at night, knowing that he is one of three votes that often determine whether a parent gets to keep custody of his or her child.

We asked Judge Davis to impart some sage advice for appellate lawyers practicing in North Carolina, and he gave us a great list:

-          Know your standard of review.  Don’t just parrot the standard in your brief, but actually use it and write your brief with the standard in mind.

-          Appreciate that the Court has limited time.  Be concise.  At oral argument, you should assume the judges are familiar with the facts and want to jump right into the legal arguments.

-          Know the record.  If you weren’t the lawyer that tried the case in the trial court, you still need to know your facts, and know where to find them in the record.

-          Always accurately cite cases.  If you misrepresent the holding or facts of a case cited in your brief, be aware that the Judge or his clerk will find it, and they will remember it.

-          Don’t prepare for oral argument by memorizing a speech.  Be prepared to jump right into an issue when asked by the Judges even if it’s not how you planned.  Chief Justice John Roberts once explained that he used to write his arguments on different index cards and then each time he practiced his argument, he would flip through them in different order each time. That way, when the time for oral argument came, he was prepared no matter which direction the questioning took.

-          Keep it professional, even when the other side doesn’t do a great job.  The best lawyers are the ones who dismantle the other side’s arguments brick by brick but do so professionally and respectfully, without being shrill. 

Finally, when we asked Judge Davis to identify some his “pet peeves” he hates to see on the bench, the number one thing he mentioned was something we can all avoid:  typos!  As Judge Davis eloquently put it, you can’t control the facts or the law but you can control proofreading and you can always have an error free brief.  We’d say those are words to live by.

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