Attention appellate attorneys: recognizing that you might already feel a bit like Goldilocks–somewhat lost while meandering through a forest of rules and requirements to attempt to create the perfect brief–you will probably not feel as comforted as she was to hear the characterization “just right” with respect to creating the perfect appellant’s addendum.  That was the message at the conclusion of yesterday’s decision  in West Memphis Adolescent Residential, LLC v. J.T. Compton, et al., 2010 Ark. App. 450, — S.W.3d — (2010), which includes a notice “[f]or the benefit of the appellate bar” calling appellate attorneys to create addenda that are neither too big nor too small.

The Arkansas Court of Appeals explained that Rule 4-2(a)(8) requires that the documents contained in the appellant’s addendum not be too many or too few.  Rather, an addendum must contain only those documents necessary to an understanding of the issues on appeal or the appellate court’s jurisdiction:

For the benefit of the appellate bar, we note that WMAR has included many unnecessary documents in its addendum, such as multiple copies of the various contracts and leases; motions to dismiss and orders denying the motions; motions and orders on discovery disputes; motions in limine; scheduling orders; orders extending the time to respond to summary judgment motions; and protective orders. None of these documents were necessary to the arguments made on appeal. They total more than 150 pages of an addendum that contains 742 pages. Under Supreme Court Rule 4-2(a)(8), the contents of the addendum are to be limited to only those items necessary to an understanding of the issues on appeal or our jurisdiction. We have pointed out that an abstract and addendum can be deficient for containing too much material, as well as too little. See American Transp. Corp. v. Exchange Capital Corp., 84 Ark. App. 28, 129 S.W.3d 312 (2003); Miller v. Hometown Propane Gas, Inc., 82 Ark. App. 82, 110 S.W.3d 304 (2003).

West Memphis Adolescent Residential, LLC, 2010 Ark. App. 450, at 12, — S.W.3d —, — (emphasis added).

Arkansas Supreme Court Rule 4-2(a)(8) specifically requires that the addendum “shall not merely reproduce the entire record of trial court filings” but that it should contain those documents “that are essential for the appellate court to confirm its jurisdiction, to understand the case, and to decide the issues on appeal.” 

Arkansas Supreme Court Rule 4-2 was amended in 2009 to provide more guidance to appellate attorneys concerning, among other things, the contents of the appellant’s addendum. See previous blog post, 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.  Yesterday’s announcement to the appellate bar by the Arkansas Court of Appeals echos previous warnings from the Arkansas Supreme Court concerning deficiencies in briefs that led to the 2009 rule changes, which brought significant amendments to Rule 4-2, governing the contents of briefs on appeal. See, e.g., In re Appellate Practice Concerning Defective Briefs, 369 Ark. App’x 553 (2007); In Re: Arkansas Supreme Court and Court of Appeals Rules 4-1 and 4-2.

For those who are still wondering how to create an addendum that is “just right,” the first place to start is by reviewing Arkansas Supreme Court Rule 4-2(a)(8), which provides much more advice to attorneys than the rule previously did.  For example, Rule 4-2(a)(8) now contains a bulleted list of the documents that the addendum absolutely must contain, which provides a great starting point for determining which documents to include in an addendum.  Of course, each case is unique so there will most likely be other documents, outside of that list, that also must be included in order to create an addendum that includes all the documents in your case “that are essential for the appellate court to confirm its jurisdiction, to understand the case, and to decide the issues on appeal.” See Ark. Sup. Ct. R. 4-2(a)(8). 

–Tasha Taylor