ArkansasAppeals.com

The Arkansas Supreme Court has recently issued a per curiam opinion making electronic filing of appellate briefs mandatory as of January 1, 2018.  In its per curiam, the Court made a few changes and clarifications to the pilot project (which had been in place since September 15, 2016).  The Court also slightly modified the method for requesting clerk’s extensions.  We’ve posted the details of these changes (along with a couple of forms) below.  As always, this is just a summary, so please refer to the text of the rules themselves when filing a brief.

Overview of Electronic Filing of Briefs

Here are the key points you need to know if you are filing a brief electronically:

• Briefs are filed through the eFlex system.
• The brief must be electronically filed prior to midnight on the due date.
• The table of contents must contain hyperlinks to the beginning of each major section of the brief.  The “major sections” are:
  • Informational statement and jurisdictional statement;
  • Points on appeal;
  • Table of authorities;
  • Abstract;
  • Statement of the Case;
  • Argument; and
  • Addendum.
• After the brief is accepted by the court, you must file six paper copies of the brief with the clerk’s office.  In our discussions with the clerk’s office, they have indicated that they prefer that attorneys simply print the file-marked copies (rather than printing clean copies and having the clerk’s office file-mark them).
• The paper copies are due five calendar days after the brief is filed.  Note that this time period begins with the brief is filed, and not when the brief is accepted by the clerk’s office.
• We are still serving paper copies of the brief on opposing counsel.  We believe that there is some ambiguity about this in the rules.  Rules 4-4(b)-(e) discuss “service upon opposing counsel,” and seem to imply that the service will be in paper format.  Administrative Order 21, on the other hand, states that “[r]egistered users of the electronic filing system consent to electronic service of electronic documents as the only means deemed to constitute service and such notice of filing is valid and effective service of the document on the registered users and shall have the same legal effect as service by conventional means.”  Until there is some clarity on this, we are continuing to serve opposing counsel in paper format.  We have included a sample of our certificate of service below.

Changes to the Clerk’s Extension

The clerk’s extension may now be requested electronically or by telephone (although the clerk’s office prefers electronic requests).  We have included a sample request for a clerk’s extension below.

Distinction from Electronic Filing of Briefs in the Federal System

If you are accustomed to electronic filing in the Eighth Circuit, there is one key distinction to keep in mind: The five-day period for filing of paper briefs in the state system begins the day the brief is filed, and not the day the brief is accepted by the court.  As an example, if you file a brief in the state system on a Friday afternoon, and the brief is not accepted until Monday, your paper briefs are due on Wednesday.

Changes and Clarifications from the Pilot Program

There are a couple of changes or clarifications from the pilot program:

• The number of paper copies to be filed with the court has increased from three to six.
• The new rule clarifies which sections must be linked in the table of contents.  (The rule under the pilot project required “hyperlinks to each section of the brief.”)  Under the new rule, it is clear that you are only required to link to the “major sections” of the brief, which are outlined above.  This means, for example, that you do no have to link to the beginning of a certain witness’s testimony in the abstract, or to the individual points in your argument section.  Nevertheless, the best practice is probably to link to these parts of the brief for the court’s convenience, which is what we typically do.

Sample Certificate of Service

Here is our certificate of service for electronic filing of briefs:

CERTIFICATE OF SERVICE

The undersigned attorney does hereby certify that a true and correct copy of the foregoing will be served on the following counsel of record via eFlex on this __ day of ___________, 201__, pursuant to Administrative Order No. 21, § 7(a).  Additionally, a true and correct copy of the foregoing will be served upon the following via U.S. Mail, First Class Postage prepaid, within five (5) calendar days of the electronic filing of this brief:

 

[Insert Opposing Counsel Name and Address]

The undersigned attorney does hereby further certify that a true and correct copy of the foregoing will be served upon the following via U.S. Mail, First Class Postage prepaid, within five (5) calendar days of the electronic filing of this brief:

[Insert Trial Judge’s Name and Address]

[Insert Signature Block]

Sample Clerk’s Extension Letter

Here is the text we are currently using when we file an electronic request for a clerk’s extension:

Pursuant to Arkansas Supreme Court Rule 4-4(f)(1), please accept this letter as our electronically filed request for a seven-day clerk’s extension, making the [insert Appellant’s Brief, Appellee’s Brief, etc.] due on [insert new due date].