Category: Appellate Practice Resources

Hallelujah! (In other words, the Arkansas Supreme Court is abolishing the abstract and addendum requirement.)

Arkansas Justice Building--Home of the Arkansas Supreme Court and Arkansas Court of Appeals
~ Andy Taylor

As we noted in our original post (below), the Arkansas Supreme Court has proposed a set of rule changes that abolish the abstracting and addendum requirement.  In the original post, we promised to provide updates and more details, so we’re doing that now. Before delving into those details, please note that these are proposed revisions, so they are subject to change.  However, if you can get your record in electronic format, you may participate in a pilot project using these rules.  So, with that said, here are the major changes (and, of course, review the per curiam before filing your brief; this is just a general overview):

The Biggest Change: Abolition of the Abstracting and Addendum Requirement

This, of course, is the biggest change.  Attorneys are no longer required to prepare an abstract or an addendum.  Rather, attorneys will refer to the relevant page number in the record.  As mentioned below, the record will now be comprised of two separate portions: a pleading portion and a transcript portion.  If you cite to the pleading portion of the record, use the format (RP 10), and if you cite to the transcript portion, use the format (RT 10).  The court has a computer program that converts those citations to links to the relevant portion of the record.

Preparation and Filing of the Record

As mentioned above, there will now be two portions of the record: pleadings and transcripts.  The record must be in electronic format (PDF), and each portion of the record must be sequentially numbered such that the first page of the PDF is the first page of the record.  This means that whatever the first page of the PDF is (cover page, table of contents, etc.), it must be page 1.Under the proposed rule, attorneys are still responsible for filing the record, but unlike in the past, the record can now be filed electronically.  

Brief Components

In addition to the elimination of the abstract and addendum, the informational statement (the form that included questions about the appeal and the brief) has been eliminated.  The jurisdictional statement has more specific requirements under the proposed rule than under the current rule.  There are also a couple of new sections: a request for relief and a certificate of compliance with Administrative Order No. 19 (relating to confidential information) and with the word-count limitations (discussed in more detail below).  Finally, the “statement of the case” has been replaced with the “statement of the case and facts.”  

Length Limitations

There are two significant changes to the length of the brief.  First, rather than limiting the statement of the case to a certain number of pages and the argument to a certain number of pages, the limitation is a global limitation that can be allocated in whatever way makes the most sense.  Second, the limitation is converted to a word limit, rather than a page limit. The word count includes the jurisdictional statement, the statement of the case and the facts, the argument, and the request for relief. All other portions of the brief are disregarded for purposes of the word count. Here are the limits:

Brief TypeWord Count Limit
Appellant’s Brief8,600
Appellee’s Brief8,600
Reply Brief2,875
Appellee’s/Cross-Appellant’s Brief14,325
Reply/Cross-Appellee’s Brief11,475

 

ORIGINAL POST

As Justice Rhonda Wood described it on Twitter, there was some “HUGE” news from the Arkansas Supreme Court this morning:

Arkansas Supreme Court

We’re still reading the per curiam, and it’s full of changes, 

but here’s a brief synopsis (you can expect a more detailed examination later).

 

First, effective immediately, attorneys may begin requesting electronic records from the circuit clerk, and the circuit clerk is required to provide the record in electronic format.

Second, the Arkansas Supreme Court published for comment revisions to the rules that accommodate these electronic records.  Those rules abolish the requirements of an abstract and addendum.  

Third—and here’s the best part—even though those rules are currently only published for comment (meaning they are not in effect yet), attorneys who choose to file their records electronically are permitted to file under the new rules as part of a pilot project.

As the Supreme Court noted in its per curiam, the abstracting requirement (and, to a lesser extent, the addendum requirement) had outlived their usefulness.  In our opinion, the abstract adds needless time and expense (both in attorney’s fees and printing costs) to the appellate process, it is confusing, and even a well-done abstract can’t effectively capture what occurred at trial.  This is a good move, and we look forward to seeing it fully implemented.  And you can rest assured that we will never order another paper record again!

First Annual Justice Donald L. Corbin Appellate Symposium to Be Held in March

~ Tasha C. Taylor

The Pulaski County Bar Foundation is presenting the first annual Justice Donald L. Corbin Appellate Symposium at the UA Little Rock Bowen School of Law on Thursday, March 29, 2018 and Friday, March 30, 2018.  The complete brochure and online registration form can be found here.

The planning committee–consisting of Dorcy Kyle Corbin, Jennifer Corbin, and Judge Herbert T. Wright, Jr.–has put together an outstanding program, which includes an impressive list of speakers, as shown in the lineup below:

2018 Corbin Symposium Speakers

 

Electronic Filing of Appellate Briefs is now Mandatory in Arkansas Appellate Courts

~ Andy Taylor

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.

Continue reading “Electronic Filing of Appellate Briefs is now Mandatory in Arkansas Appellate Courts” →

Toward a More Practical Approach to Preservation: Hardin v. Bishop

~ Andy Taylor ~ 1 Comment

In a December 2012 blog post, we questioned whether Bayer Cropscience LP v. Schafer, 2011 Ark. 518, represented a “possible departure from Arkansas’s strict preservation rules.” See Procedural Lessons from a $48 Million Dollar Appeal.  As readers of this blog will likely recall, the Arkansas Supreme Court in Schafer addressed whether the punitive damages cap, enacted by the legislature as part of the Civil Justice Reform Act of 2003, was constitutional.  The trial court had ruled from the bench that the cap was unconstitutional, and in its written order had implicitly held that the cap was unconstitutional (by upholding a jury verdict in excess of the cap).  However, the trial court had not addressed the constitutional argument in its written ruling, and in its ruling from the bench, the trial court had not stated which of two arguments it accepted in holding that the cap was unconstitutional.

In Schafer, the Arkansas Supreme Court held that the oral ruling from the bench was adequate.  The Court also held that the lack of an explanation for the trial court’s decision in its written opinion did not prevent the Arkansas Supreme Court from addressing the merits of the constitutional argument.  In our blog post from 2012, we noted that “[i]t will be interesting to see whether the Schafer preservation rule is followed by the Court in decisions to come.”  Last week, in Hardin v. Bishop, 2013 Ark. 395, the Arkansas Supreme Court fully embraced the ruling in Schafer, and overruled a handful of cases in the process.

The Facts

Although the more interesting part of the Hardin opinion (at least for appellate attorneys) is procedural in nature, a simplified summary of the facts is provided for context.  Hardin involved a brush fire that got out of control, damaging a tire shop and some electrical equipment owned by Entergy.  The fire had been started by Mr. Randy Wardlaw, who was burning brush on property that belonged to Ms. India Bishop.  The owner of the tire shop, along with Entergy, sued Mr. Wardlaw and Ms. Bishop (on the theory that Mr. Wardlaw was acting as Ms. Bishop’s agent).  In addition to compensatory damages, the plaintiffs sought to recover double damages under a fire prevention statute, Ark. Code Ann. § 20-22-304.

Ms. Bishop filed a motion for summary judgment, arguing that there was no question of material fact that Mr. Wardlaw had caused the damage, and further arguing that Mr. Wardlaw was not acting as her agent when he started the fire.  She also argued, in the alternative, that the fire prevention statute (which allowed the recovery of double damages) did not apply to her.  After a hearing, the trial court granted Ms. Bishop’s motion for summary judgment, but did not state a specific basis for the ruling.  The plaintiffs appealed to the Arkansas Court of Appeals, and the Arkansas Supreme Court accepted certification of the case to address the question of whether the plaintiffs’ arguments had been preserved for appeal, given that the trial court had not offered a specific basis for its ruling.

The Opinion: Hardin v. Bishop

In its opinion (written by Justice Courtney Hudson Goodson, who also wrote the majority opinion in Schafer), the Arkansas Supreme Court acknowledged that “the circuit court generally granted Bishop’s motion for summary judgment without ruling specifically on the arguments presented in the parties’ motions, briefs, and oral arguments.”  The Supreme Court pointed out, however, that the “primary argument” made by Ms. Bishop in her motion for summary judgment was that Mr. Wardlaw was not acting as her agent, and the plaintiffs’ primary argument was that there was a genuine issue of material fact with respect to whether he was acting as her agent.

The Arkansas Supreme Court next looked at the text of two rules.  First, the Court examined Rule 56(c)(2) of the Arkansas Rules of Civil Procedure, which provides that summary judgment is appropriate if the pleadings show that there is no genuine issue of material fact and that “the moving party is entitled to judgment as a matter of law on the issues specifically set forth in the motion.”  Second, the Court examined Rule 52(a) of the Arkansas Rules of Civil Procedure, which provides that “[f]indings of fact and conclusions of law are unnecessary on decisions of motions under these rules.”  (The Court also relied on this rule in reaching the merits of the case in Schafer.)  The Supreme Court appears to have drawn a distinction here between preservation when motions are involved and preservation in other types of cases, holding that “when a case does not involve a motion, we typically adhere to our well-established principle that the failure to obtain a ruling on an issue at the trial court level precludes a review of the issue on appeal.”

Based on these rules, the Supreme Court held that the agency issue was adequately preserved for appeal.  The agency issue had been raised by the parties in their motions and in their oral arguments before the trial court.  The trial court’s order stated that it was “[b]ased upon the adopted pleadings and argument of counsel,” and so the trial court’s order “encompassed the sole issue of agency presented to it . . . .”  Therefore, the agency issue was preserved.

Before moving to the merits of the plaintiffs’ argument regarding agency, the Arkansas Supreme Court acknowledged a line of cases in which the trial court had granted a motion for summary judgment and the Supreme Court had held that, in the absence of specific rulings on numerous claims, that the issue was not preserved for appeal.  In Hardin, the Arkansas Supreme Court held that “[t]o the extent that those cases and their progeny are inconsistent with the holding in the present case, we overrule them.”

The Takeaway: Appellate Practice Tips

This decision definitely relaxes the court’s prior strict preservation rules, and seems to adopt a more common-sense approach to preservation than perhaps has been used in the past.  In Hardin, the trial court had clearly based its decision on the agency issue.  In fact, the agency issue was the only issue raised in the briefs, other than Ms. Bishop’s argument that the statute allowing for double damages did not apply to her.  Because the trial court completely dismissed Ms. Bishop from the case (rather than simply limiting the amount of damages that could be awarded against her), it was clear that the trial court based its decision on Ms. Bishop’s agency argument.

This practical approach to preservation is certain to be welcomed by both trial counsel and appellate counsel.  Nevertheless, a word of caution is in order.  The Court in Hardin was examining a motion for summary judgment that examined only one issue.  In fact, the Arkansas Supreme Court noted two different times that the issue of agency was the “sole” issue raised in the motion for summary judgment, while noting that in the previous decisions that were inconsistent with Hardin, the motions involved “numerous claims.”  In addition, the Supreme Court noted that Hardin involved a motion, and seemed to draw a distinction with cases that do not involve a motion.  Therefore, the safest route still is to obtain a written ruling (along with a basis for the ruling, when the trial court will accommodate such a request) on any important argument that needs to be preserved for appellate review.

Related Posts:

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New Arkansas Appellate Court Rules Effective August 1, 2013

~ Tasha C. Taylor ~ 1 Comment

Arkansas attorneys filing briefs and motions in the Arkansas Supreme Court or Arkansas Court of Appeals should be aware that two new rules go into effect beginning today (August 1, 2013) that change the procedure for filing briefs and pleadings in Arkansas’s appellate courts.  Arkansas Supreme Court Rule 3-7 requires that a cover sheet now be included with case initiating documents (the initial record or pleading) and Rule 1-8 requires that briefs and pleadings now be submitted electronically in addition to the paper copies also required by the Court’s rules.  The following is a summary of the two new rules.  Of course, we advise that you review these rules in full prior to filing anything in Arkansas’s appellate courts.

Rule 3-7. Cover Sheet

Rule 3-7 of the Rules of the Arkansas Supreme Court and Court of Appeals requires that a case initiating cover sheet be filed with the Clerk of the Supreme Court and Court of Appeals whenever an initial record or pleading is filed in one of Arkansas’s appellate courts. See In Re Adoption of Supreme Court and Court of Appeals Rule 3-7. Cover Sheet, 2013 Ark. 277.

The following is an image of the new appellate court cover sheet—a link to the cover sheet form on the Supreme Court’s website (as well as instructions for completing the form) can be found here.

Appellate Court Cover Sheet

Rule 1-8. Courtesy Electronic Copies

In an effort to move toward electronic filing in Arkansas’s appellate courts, the Arkansas Supreme Court and Court of Appeals are now requiring appellate attorneys to provide a courtesy electronic copy in PDF format of essentially all pleadings and briefs filed in those Courts. See In Re Adoption of Supreme Court and Court of Appeals Rule 1-8. Courtesy Electronic Copies, 2013 Ark. 256.  Note that this is in addition to the paper copies that are required by the Courts’ rules.  This new rule will apply to all motions, petitions, writs, briefs, responses, and replies. See Ark. Sup. Ct. R. 1-8(a).

Filing of the PDF document by email is not permitted under Rule 1-8.  Rather, appellate attorneys will be required to submit the PDF documents on external media (CD, flash drive, etc.) and will also be required to serve a copy on the other party.

It is important to note that compliance with Administrative Order 19 is still required with the PDF versions of documents that will be filed.  Furthermore, a very specific file naming convention is mandated by the rule.

Rule 1-8 also requires that appellate attorneys include in the paper version of the documents filed a Certificate of Compliance and Identification of Paper Documents not in PDF Format.

Anyone filing documents in the Arkansas Supreme Court or Arkansas Court of Appeals beginning today will need to carefully review this new rules before doing so.

PRACTICAL TIP: If you do not already have software installed on your computer that will allow you to easily convert Word documents to PDF format, there is free software available for download at the following two sites (our firm currently uses the Cute PDF software, which works great):

Procedural Lessons from a $48 Million Dollar Appeal

~ Tasha C. Taylor ~ 1 Comment

On December 8, 2011, the Arkansas Supreme Court handed down its decision in Bayer Cropscience LP v. Schafer, 2011 Ark. 518.  The Court’s decision is significant for a number of reasons, not the least of which are a couple of procedural issues that might be easily overlooked upon first glance in light of the Court’s holding overruling Arkansas’s punitive damages caps.

Punitive Damages Cap Declared Unconstitutional

“We hold that section 16-55-208 is unconstitutional under article 5, section 32 as it limits the amount of recovery outside the employment relationship.”

In a decision that affirmed a $48 million dollar judgment in favor of Arkansas rice farmers, the Arkansas Supreme Court ruled that the punitive damage limitations contained in Arkansas Code Annotated section 16-55-208 are unconstitutional. Schafer, 2011 Ark. 518, at 12.

That statute, passed by the Arkansas General Assembly as part of the Civil Justice Reform Act of 2003, provided for each plaintiff a cap on punitive damages in the amount of $250,000 or three times the amount of compensatory damages (not to exceed $1,000,000). See Ark. Code Ann. § 16-55-208.

In its opinion, the Arkansas Supreme Court observed that the Arkansas Constitution gives the Arkansas General Assembly the power to limit the amount of recovery “only in matters arising between employer and employee.” Schafer, 2011 Ark. 518, at 12.  Article 5, section 32 of the Arkansas Constitution, as amended by amended 26, provides the following:

The General Assembly shall have the power to enact laws prescribing the amount of compensation to be paid by employers for injuries to or death of employees, and to whom said payment shall be made.  It shall have power to provide the means, methods, and forum for adjudicating claims arising under said laws, and for securing payment of the same. Provided that otherwise no law shall be enacted limiting the amount to be recovered for injuries resulting in death or for injuries to persons or property; and in case of death from such injuries the right of action shall survive, and the General Assembly shall prescribe for whose benefit such action shall be prosecuted.

Ark. Const art. 5, § 32.

On appeal, Bayer argued that article 5, section 32 of the Arkansas Constitution referred only to compensatory damages and not to punitive damages.  The Arkansas Supreme Court, however, disagreed: “Although compensatory and punitive damages serve differing purposes, an award of punitive damages is nonetheless an integrant part of ‘the amount recovered for injuries resulting in death or for injuries to persons or property.’” Schafer, 2011 Ark. 518, at 12 (quoting Ark. Const art. 5, § 32).  Accordingly, the Arkansas Supreme Court held that section 16-55-208 is unconstitutional under the Arkansas Constitution because it limits the amount of recover outside the employment relationship, which is expressly prohibited by article 5, section 32.

Possible Departure from Arkansas’s Strict Preservation Rules?

The ruling on the punitive damages caps is monumental in and of itself, but what makes it even more interesting is the Court’s analysis of how it was able to reach the merits of that decision, which was an issue that split the Court 6-1.

In her concurring opinion, Justice Karen Baker explained that while she agrees with the outcome reached by the majority, she would not have reached the merits of the constitutionality of Arkansas Code Annotated section 16-55-208 because she did not believe that issue was preserved for appellate review. Schafer, 2011 Ark. 518, at 24–25 (Baker, J., Concurring).  Justice Baker argued that because the circuit court ruled on the constitutionality of that statute from the bench and entered no written opinion concerning that issue, it was not preserved for appellate review. Id.  In support of her opinion, Justice Baker cited to a number of cases in which the Arkansas Supreme Court has previously declined to rule on constitutional issues that had been ruled on from the bench only and that had not been included in the written orders. See, e.g., Boellner v. Clinical Study Ctrs., LLP, 2011 Ark. 83, at 23, ___ S.W.3d ___, ___ (holding that the constitutional issue presented in that case was not preserved for appellate review because “[a]lthough the circuit court ruled on this issue from the bench, the final, written order did not address this issue.”).

In footnote 5, Justice Courtney Hudson Goodson, writing for the majority, responded to Justice Baker’s concurring opinion concerning the issue of the constitutionality of the punitive damages cap: “Despite the concurring justice’s protestations to the contrary, it is without question that the issue concerning the constitutionality of the statutory cap on punitive damages is preserved for appeal.”  Schafer, 2011 Ark. 518, at 14 n.5.  In this case, the constitutional issue was raised in a pretrial motion and discussed in a hearing, at which time the circuit court orally declared from the bench that the statute in question was unconstitutional.  According to the Arkansas Supreme Court, its preservation rules “require nothing more.”  Id.

The majority went on to explain that “[a]lthough considered the better practice for a circuit court to explain its decision, findings of fact and conclusions of law are not necessary with regard to decisions on motions.” (emphasis added). Id.  In footnote 5, the majority further explained that if the concurrence was correct in its view, then the Court would also have been precluded from reaching the merits of the circuit court’s decisions in a couple of other issues regarding motions in this appeal, as the circuit court also disposed of those other motions by ruling from the bench. Id.  The Court’s conclusion is that “the circuit court’s failure to specify the ground upon which it found the statute unconstitutional does not deter us from performing our duty to review the circuit court’s decision.” Id.

Although couched as a decision rooted in precedent, Justice Baker seemed to view the Arkansas Supreme Court’s decision to reach the merits of the constitutional issue in this case as a departure from the Court’s strict preservation rules.  It will be interesting to see whether the Schafer preservation rule is followed by the Court in decisions to come.  Regardless of whether it is cited in future decisions, there can be no doubt that it will be cited in numerous appellant’s briefs in the months and years to come.

Perfecting the Notice of Appeal in Light of Posttrial Motions

“A notice of appeal must be judged by what it recites and not what it was intended to recite.” 

Among other arguments on appeal, Bayer also challenged the $42,000,000 punitive damages award as excessive under the U.S. Constitution.  The Arkansas Supreme Court refused to reach this issue because it held that it was not preserved for appellate review. Schafer, 2011 Ark. 518, at 23.

Bayer made its arguments to the circuit court concerning the excessiveness of the damages award in its posttrial motion for new trial and remittitur. Id.  Because the circuit court did not take action on the posttrial motion within the 30-day window allowed pursuant to Rule 4(b)(1) of the Arkansas Rules of Appellate Procedure—Civil, that motion was deemed denied at the expiration of the 30-day period. Id. at 23–24.  When the Bayer defendants filed their notices of appeal (all of which were identical), they failed to state in the notices of appeal that the appeal was being sought from both the judgment that was entered as well as the denial of the motion for new trial and remittitur. Id.  The Arkansas Supreme Court held that it is necessary to file a notice of appeal from the denial of the posttrial motion in order to appeal from the issues raised therein. Id. at 24.  According to the Court, unless the notice of appeal references both the final judgment and the deemed-denied ruling, the only appealable matter will be the original order. Id.

The following is a timeline of the post-trial procedural events that occurred in this case:

  • May 5—Judgment Entered
  • May 19—Bayer timely filed motions for judgment notwithstanding the verdict, new trial, and remittitur.
  • June 18—Motions deemed denied.
  • July 19—Each Bayer defendant filed separate and timely notices of appeal from the judgment entered on May 5, 2010.

See Schafer, 2011 Ark. 518, at 8.

To have preserved this issue for appeal, each of the Bayer defendants could have explained in their notices of appeal that they were appealing from both the May 5th judgment and the lower court’s denial of its motion for new trial and remittitur in the notice of appeal it filed on July 19th.  Another option would have been to file a notice of appeal within 30 days of the date the judgment was entered in this matter.  Then, following the deemed-denied date of June 18th, Bayer could have filed an amended notice of appeal within 30 days of June 18th that indicated that it was appealing from both the May 5th judgment and the denial of its motion for new trial and remittitur.

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Ten Tips to Remember When Filing Your Next Notice of Appeal

~ Tasha C. Taylor ~ 3 Comments

Appellate attorneys suggest that you start thinking about the appeal of your client’s case from the moment you file the initial pleading.  The reality is that a lot of lawyers don’t start thinking about the appeal until they are drafting the notice of appeal.  If that’s you, then these ten tips are meant to help when you’re preparing your next notice of appeal.  Although not an exhaustive list of the steps necessary to properly file a notice of appeal, these ten tips will help you jump-start your review of some of the relevant rules.

  1. The notice of appeal must be filed within 30 days of the date the judgment from which you are appealing is entered, and not the date from which it was signed. See Ark. R. App. P.–Civil 4(a).
  2. If the notice of appeal is filed after the circuit court announces its decision, but prior to the entry of the final judgment, your notice of appeal will be treated as though it was filed on the day after the judgment is entered. See Ark. R. App. P.–Civil 4(a).
  3. Effective July 1, 2010, the notice of appeal is required to state, among other things, that “the appealing party abandons any pending but unresolved claim.” Ark. R. App. P.–Civil 3(e)(vi); see also Ark. R. Civ. P. 54(b); see also The Rule 54(b) Trap: Dealing with Non-final Orders in Cases with Multiple Claims or Multiple Parties.
  4. The notice of appeal must designate the specific judgment or judgments from which the appealing party is appealing. See Ark. R. App. P.–Civil 3(e)(ii); see also, e.g., Hall v. Arkansas Dept. of Human Services, 101 Ark. App. 417, 278 S.W.3d 609 (2008) (holding that orders not mentioned in the notice of appeal are not properly before the appellate court).
  5. You must contact the Court Reporter to make financial arrangements to pay for the transcript prior to stating that you have done so in the notice of appeal—and, it’s a good idea to follow up with a letter or email acknowledging that you have done so. See Ark. R. App. P–Civil 3(e)(iv).
  6. The notice of appeal can state that you are appealing directly to the Arkansas Supreme Court, but only in appropriate cases. See Ark. R. App. P–Civil 3(e)(v); see also Ark. Sup. Ct. R. 1-2(a).
  7. You are required to serve a copy of the notice of appeal or notice of cross-appeal upon counsel for all other parties by a form of mail that requires a signed receipt (and not by regular first class mail).  Don’t forget to change your certificate of service to indicate that you have complied with this rule. See Ark. R. App. P.–Civil 3(f).
  8. If the appellant does not designate the entire record and all the proceedings and evidence in his case, then, in addition to the notice of appeal and designation of record, he is required to also serve a concise statement of the points on which he intends to rely on the appeal. See Ark. R. App. P.–Civil 3(g).
  9. The timely filing of a notice of appeal is jurisdictional; thus, the appellate court is required to raise the issue of subject-matter jurisdiction on its own motion. See, e.g., Stacks v. Marks, 354 Ark. 594, 127 S.W.3d 483 (2003) (appeal dismissed where the Court determined on its own motion that the notice of appeal was untimely).
  10. Notices of appeal in the context of post-judgment motions can be tricky, tricky, tricky.  There is no one rule or tip to  summarize the variety of problems that can arise when trying to properly file a notice of appeal in the context of post-judgment motions.  If you plan to file any post-judgment motions in your client’s case, don’t do so before you carefully study the rules and case law with respect to how those motions can affect the deadlines for properly filing the notice of appeal.

Originally published in the Volume 15, Issue #2 of the Arkansas Bar Association’s Young Lawyers Section newsletter, In Brief, available at the following link:  http://issuu.com/arkansas_bar_association/docs/inbrief_spring11?mode=embed&layout=http%3A%2F%2Fskin.issuu.com%2Fv%2Flight%2Flayout.xml&showFlipBtn=true.  Republished here with permission.

Judge Posner, the Blue Book, and Arkansas Citation Resources

~ Andy Taylor

Judge Richard Posner, of the U.S. Court of Appeals for the Seventh Circuit, created quite a stir lately with his law review article in the Yale Law Journal, in which he criticized the Blue Book’s citation format.  Though his article criticizes many aspects of the Blue Book (its size, for example), he is particularly critical of its system of abbreviation:

An example that I have picked literally at random is “C.Ag.” What does “C.Ag.” stand for? Why, of course, the Código de Águas of Brazil. Now suppose one had occasion to cite the Código de Águas. Why would one want to abbreviate it? The abbreviation would be meaningless to someone who was not a Brazilian lawyer, and perhaps to Brazilian lawyers as well (but do  they abbreviate  Código de Águas “C.Ag”?).  The basic rule of abbreviating, ignored by the authors of The Bluebook, is to avoid nonobvious abbreviations: don’t make the reader puzzle over an abbreviation, as  The Bluebook does routinely. Consider “Temp. Envtl. L. & Tech. J.,” “ILSA J. Int’l & Comp. L.,” “Emp. Rts. & Emp. Pol’y J.,” and “AIPLA Q.J.” These are names of journals. Now try figuring out “B.T.A.M. (P-H),” “A. Ct. Crim. App.,” “A.F. Ct. Crim. App.,” “C.G. Ct. Crim. App.,” “N-M  Ct. Crim. App.,” “Ne. Reg’l Parole Comm’n,” and “Cent. Ill. Pub. Serv. Co.” What is the point? It’s as if there were a heavy tax  on letters, making it costly to write out Coast Guard Court of Criminal Appeals instead of abbreviating it “C.G. Ct. Crim. App.”

Judge Posner is so dissatisfied with The Bluebook that he has drafted his own citation manual, which is used by the clerks who assist him in drafting his opinions.  The manual is approximately three pages long (or, in Judge Posner’s words, “one one-hundredth  the length of  The Bluebook”).

While Arkansas appellate attorneys might not want to rely on Judge Posner’s 3-page manual when drafting appellate briefs in Arkansas, there are resources available to Arkansas attorneys (in addition to the Blue Book) that can assist with proper citation in appellate court briefs.  The website of the Arkansas Reporter of Decisions provides several of these resources: 

  • The House Style Guide–One of the most helpful resources provided by the Reporter of Decisions is the House Style Guide, which is the style guide used by the Arkansas appellate court judges and their law clerks when drafting opinions.  The House Style Guide provides information on Arkansas citations as well as punctuation, word usage, possessives, and other grammar and stylistic conventions used by Arkansas’s appellate courts.
  • Citations Guidelines–For a brief overview of citations to opinions of the Arkansas Supreme Court and Arkansas Court of Appeals, the Citations Guidelines page is also helpful.  
  • Citations Page–the Citations Page provides more detailed citation examples, including examples of citations to opinions of appellate courts of all 50 states, along with various rules, law reviews, and other materials.

For more information about how use the new citation format in Arkansas pursuant to Arkansas Supreme Court Rule 5-2(d)(2), check out our previous blog post on the topic, Using Arkansas’s New Citation Format.

If you want even more information about using citations in Arkansas trial court and appellate court briefs, the UALR William H. Bowen School of Law will be hosting a free CLE on Monday, March 7 at 11:30.  The CLE, entitled Citation Insights: The Bluebook, the ALWD Citation Manual, and the Arkansas Supreme Court’s Citation Rules and Practices, will be presented by Professor Coleen Barger.  Attorneys who attend can receive 1 hour of CLE credit.  There is no charge for the CLE, but there is a $5 charge for lunch.  If you plan to attend, please email Haley Walker at hewalker@ualr.edu.

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