Arkansas Court of Appeals Orders Rebriefing in Two Cases; Warns Appellate Attorneys of Pitfalls of Not Strictly Adhering to Rules

The Arkansas Court of Appeals ordered rebriefing today in the following two cases:

1. In Fowler v. State, 2010 Ark. App. 811, the Arkansas Court of Appeals ordered rebriefing because a portion of the judgment was excluded from the addendum.
2. In Snyder v. State, 2010 Ark. App. 817, the Arkansas Court of Appeals ordered rebriefing because petitions for revocation were not included in the addendum.

Concurring in the Fowler decision, Judge David M. Glover wrote separately to “emphasize our supreme court’s mandated consequences of noncompliance with our appellate briefing rules.”  For attorneys who engage in appellate practice in Arkansas, Judge Glover’s opinion is a reminder that “you can only play the game by the rules.”  He warns appellate attorneys to be careful when filing appellate briefs in Arkansas’s appellate courts:

Arkansas Supreme Court Rule 4-2(a)(8) (2008) is the fulcrum for both of our rebriefing orders. Our supreme court, in City of Cotter, 2009 Ark. 172, by per curiam order, enunciated the bright-line rule to which our panel today respectfully adheres. It really does not matter that in that case, Justice Brown, in dissent, finding that the court had become far too strict in its application of the abstract rule, stated, “We have crafted yet another procedural pitfall for the appellate lawyer, which in my judgment is largely unnecessary.” Quite simply, the rule must be followed.

Twenty years ago, United States Magistrate Judge Jerry W. Cavaneau (Recalled) referenced that lawyers love to talk about “pitfalls for the unwary” in an article addressing Rule 54(b) of the Arkansas Rules of Civil Procedure.  When abstracting for the Arkansas appellate courts, copier jams, basic oversights, and not adhering to the rules can be such pitfalls. I did not make the rules, but I know you can only play the game by the rules. Our rules are found in our Court Rules – Volumes 1 and 2. You really have to be careful out there, and wary. 

Fowler v. State, 2010 Ark. App. 811, at 2–3 (Glover, J., concurring) (emphasis added) (footnotes omitted).

In an attempt to put an end to the growing number of deficient briefs it had been receiving, the Arkansas Supreme Court amended Arkansas Supreme Court Rule 4-2 just last year.  Among other things, that amendment was meant to provide appellate attorneys in Arkansas with more guidance concerning the contents of the appellant’s addendum. See Arkansas Supreme Court Proposes Rule Changes as Possible Solution to Brief Deficiencies.  The amended version of Rule 4-2 went into effect on January 1, 2010. 

For more on this topic, view our previous posts:

• Arkansas Supreme Court Rule 4-2 Requires Appellant’s Addendum to be “Just Right” (May 27, 2010).
• Appellant’s Addendum in Appeal From Summary Judgment Decision Must Include, Inter Alia, the Documents on Which That Decision Was Based (March 2, 2010).
• Arkansas Supreme Court Proposes Rule Changes as Possible Solution to Brief Deficiencies (June 5, 2009).

–Tasha Taylor