Category: Arkansas Appellate Court Rules

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

~ Tasha C. Taylor ~ 4 Comments

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 Revises Rule 5-3 (Relating to Stays of Mandates When Petition for Writ of Certiorari to U.S. Supreme Court Is Filed)

~ Andy Taylor

Today, the Arkansas Supreme Court adopted proposed changes to Arkansas Supreme Court and Court of Appeals Rule 5-3.   The revisions had been proposed and published for comment on May 20 of this year.  In re Ark. Sup. Ct. and Ct. of App. Rule 5-3, 2010 Ark. 252.  Rule 5-3 relates to the issuance of a stay of a mandate (or the recall of a mandate) when a petition for writ of certiorari is filed at the United States Supreme Court. In re Ark. Sup. Ct. and Ct. of App. Rule 5-3, 2010 Ark. 408, at 1.  The proposed changes address concerns regarding the duration of such stays. Id.

Though appellate lawyers in Arkansas should review the entire text of the rule, below are the primary changes and clarifications resulting from the revisions:

  • The party seeking the stay must show that the petition for a writ of certiorari presents a substantial question, and that there is good cause for a stay or recall.  The previous rule required only that the party seeking the stay order a copy of the record from the Clerk and pay a $50 deposit for the record.  (This requirement remains in the new rule). Ark. Sup. Ct. R. 5-3(c)(1).
  • The stay will be no longer than ninety days, unless the Petition for Writ of Certiorari is actually filed.  (Ninety days is generally the deadline for filing a Petition for Writ of Certiorari with the U.S. Supreme Court. U.S. Sup. Ct. R. 13(1).)  The time period can be extended upon a showing of good cause.  If the Petition is actually filed, the stay remains in place until the Supreme Court’s final disposition of the case. Ark. Sup. Ct. R. 5-3(c)(2).
  • If the Petition for Writ of Certiorari is denied, the mandate issues immediately. Ark. Sup. Ct. R. 5-3(c)(4).