ArkansasAppeals.com

The per curiam handed down by the Arkansas Supreme Court on June 4, 2009—In Re: Arkansas Supreme Court and Court of Appeals Rules 4-1 and 4-2–voices the Court’s frustration with deficiencies in appellate briefs that have been filed over the past few years:

Two years ago, this court highlighted problems relating to attorneys’ failure to comply with the rules for appellate briefs. In re Appellate Practice Concerning Defective Briefs, 369 Ark. App’x 553 (2007). Our warning apparently went unheeded. We continue to have to order rebriefing. In the 2006-07 court term, we ordered rebriefing in eleven cases, in the 2007-08 term, nine, and thus far in the current term, nineteen. In an attempt to aid appellate attorneys, we asked our Committee on Civil Practice to review Supreme Court and Court of Appeals Rule 4-2, which governs the contents of briefs, abstracts and addendums, and to submit a special and expedited report suggesting amendments to the rule.

The Committee has discharged its assignment. We have reviewed the Committee’s work and have made some revisions of our own. . . . 

The Court’s proposed changes to Rules 4-1 and 4-2 include the following:

• A change to the font size for briefs from 12 points to 13 points;
• More guidance concerning the content of abstracts;
• Requirement that a court reporter “shall provide the appellant at a nominal charge an electronic copy of the transcript;”
• More guidance concerning the contents of addendums;
• Requirement that brief covers must now include the facsimile numbers and e-mail addresses of the attorneys preparing the briefs.

Perhaps the most significant changes are those proposed rule changes concerning brief deficiencies.

In its 2007 per curiam decision, In re Appellate Practice Concerning Defective Briefs, the Court warned that it might return to its former rule of affirmance based on deficient briefs:

Six years ago, this court amended its Supreme Court Rules to eliminate the harshness of an affirmance based on deficient appellate briefs. With this current raft of nonconforming briefs, and the time wasted and expense incurred, this court may be forced in the near future to return to its former rule of affirmance.

The Court’s 2009 per curiam proposes the following addition to Rule 4-2: “When an abstract or addendum is insufficient, the appellate court shall not go to the record to affirm or reverse the trial court’s decision.” In Re: Arkansas Supreme Court and Court of Appeals Rules 4-1 and 4-2.

The Court’s proposed rules provide for sanctions for attorneys who have been given the opportunity to cure deficiencies, but fail to do so: 

(c) Noncompliance. (1) Briefs not in compliance with the format required in Rules 4-1 and 4-2 shall not be accepted for filing by the Clerk. When a party submits a noncompliant brief on time that substantially complies with the these Rrules governing briefs, the Clerk shall mark the brief “tendered,” grant the party a seven-day compliance extension, and return the brief to the party for correction. If the party resubmits a compliant brief within seven (7) calendar days, then the Clerk shall accept that brief for filing on the date it is received.   

(2) If after a brief has been accepted for filing, it is determined that an appellee’s brief is deficient or an appellant’s brief is deficient in areas not addressed in Rule 4-2(b)(3), the court may give the party fifteen days to cure the noncompliance under the procedure described in Rule 4-2 (b)(3). If the problem is not timely corrected, then the court will take appropriate action, including affirming the judgment or decree at cost to the appellant, or otherwise giving judgment according to the requirements of the case.

(3) After the opportunity to cure deficiencies has been afforded pursuant to Rule 4-2(b)(3) or (c)(2), attorneys who fail to comply with the requirements of this rule shall be referred to the Office of Professional Conduct, and in addition, may be subject to any of the following: (A) contempt, (B) suspension of the privilege to practice before the Supreme Court or Court of Appeals for a specified time or until the attorney can demonstrate a satisfactory competency of the rules, or (C) imposition of any of the sanctions listed in Rule 11(c) of the Rules of Appellate Procedure-Civil.

In Re: Arkansas Supreme Court and Court of Appeals Rules 4-1 and 4-2, (June 4, 2009) (emphasis added).

For a complete list of proposed changes to Rules 4-1 and 4-2, view the Court’s June 4, 2009 per curiam–In Re: Arkansas Supreme Court and Court of Appeals Rules 4-1 and 4-2.

Anyone wishing to comment on the suggested rule changes must submit your comments before August 1, 2009 to: Leslie W. Steen, Clerk, Supreme Court of Arkansas, Attn.: Civil Procedure Rules, Justice Building, 625 Marshall Street, Little Rock, Arkansas 72201.

–Tasha Taylor