We are often asked about creating bookmarks in Adobe, so this post provides a brief explanation of the basics of creating bookmarks. PLEASE NOTE that under the current rules, you must create hyperlinks in your appellate briefs. For instructions on how to do that, visit our previous blog post on the topic.
So, why would anyone need to know about bookmarks? Two reasons come to mind. First, the proposed rules regarding electronic filing require the use of bookmarks. So, if you’re planning to participate in the pilot project, you’ll need to know how to use bookmarks. Second, for ease of navigation, we usually add bookmarks even when we’re proceeding under the current rules (in addition to the required hyperlinks). We do this because we’ve heard anecdotally that some judges prefer bookmarks to hyperlinks, and we think the proposed rule changes (which mandate bookmarks) support that view.
With that background in mind, we move now to the directions. (Note that in the screenshots below, we have simply used the Arkansas Supreme Court’s model appellant’s brief.)
Step 1: Open the bookmarks pane
Click the icon on the left side of the screen that looks like an old-school bookmark. (If you cannot see that icon, there is a very small right-facing arrow that you’ll need to click first.)
Step 2: Browse to the portion of the brief that you are bookmarking
At this point, you’ll simply browse to the part of the brief you want to bookmark. If you want to make Step 4 slightly easier, highlight the text at the beginning of that portion of the brief.
Step 3: Click the “New Bookmark” button
Once you’ve browsed to the page you’re bookmarking, click the “New Bookmark” button.
Step 4: Name your bookmark
If you highlighted the text in Step 2, then your bookmark will already be named. Otherwise, just type the name of the bookmark.
There are more advanced features to bookmarking (such as nesting), but those are outside the scope of this blog post.
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.
BriefComponents
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 Type
Word Count Limit
Appellant’s Brief
8,600
Appellee’s Brief
8,600
Reply Brief
2,875
Appellee’s/Cross-Appellant’s Brief
14,325
Reply/Cross-Appellee’s Brief
11,475
ORIGINAL POST
As Justice Rhonda Wood described it on Twitter, there was some “HUGE” news from the Arkansas Supreme Court this morning:
HUGE News from the Arkansas Supreme Court this morning. The day has arrived!! Now attorneys- go file those electronic records
IN RE ACCEPTANCE OF RECORDS ON APPEAL IN ELECTRONIC FORMAT AND ELIMINATION OF THE ABSTRACTING AND ADDENDUM REQUIREMENTS https://t.co/tc3RPQasiy
— JusticeRhondaWood (@JudgeRhondaWood) June 6, 2019
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!
In Barton v. Arkansas Department of Human Services, 2019 Ark. App. 239, the Arkansas Court of Appeals affirmed a circuit court’s termination of a mother’s parental rights to her three children. In doing so, the Court of Appeals gave an example of just how specific they expect objections to be at trial.
One of the pieces of evidence used against the mother in Barton was a psychological evaluation that recommended that the mother could not care for the children by herself. In the order terminating parental rights, the circuit court specifically stated that it had relied, at least in part, on the psychological evaluation.
On appeal, the mother argued that the psychological evaluation was inadmissible hearsay. The mother’s attorney had objected at trial, stating: “I will object unless the psychologist testifies,” and “[I]t’s my position that the psychologist needs to be here to testify.” Nevertheless, the Arkansas Court of Appeals refused to address the issue.
In refusing the address the issue, the Court of Appeals held that this objection was “vague.” Specifically, the Court of Appeals held that this objection could have been a hearsay objection, but it also could have been an authentication objection or a right-to-cross-examine objection.
This case shows the importance of being as specific as possible when raising objections. In fact, it is quite possible that this is one of those instances where everyone in the courtroom knew and understood what the objection was about, but it’s just not reflected in the record. Because Arkansas appellate courts are often very strict about objections, we always urge extreme caution when trying to preserve an objection for appeal.
The Second Annual 2019 Justice Donald L. Corbin Appellate Symposium will be held at the University of Arkansas School of Law in Fayetteville on Thursday, March 28th through Friday, March 29th, 2019.
Speakers this year include a number of federal and state court judges from courts across the country. The speakers for the event are as follows:
Mr. Howard Bashman, Offices of Howard J. Bashman
Mr. Kannon Shanmugam, Williams & Connolly
Judge Ralph R. Erickson, Eighth Circuit Court of Appeals
Chief Judge Lavenski Smith, Eighth Circuit Court of Appeals
Judge Duane Benton, Eighth Circuit Court of Appeals
Judge Jane Stranch, Sixth Circuit Court of Appeals
Mr. A. Clifford Edwards, Edwards, Frickle & Culver
Judge James Graves, Fifth Circuit Court of Appeals
Judge Michael Brown, Arizona Court of Appeals
Judge Lucinda Jesson, Minnesota Court of Appeals
Judge Robert Gladwin, Arkansas Court of Appeals
Judge Mary Briscoe, Tenth Circuit Court of Appeals
Joe Regalia, King & Spalding
Lee Rudofsky, Wal Mart
Tasha Taylor, Taylor & Taylor Law Firm
Abigail Perdue, Wake Forest University School of Law
The updated 2019 Timeline of an Arkansas Civil Appeal has just been released by Taylor & Taylor Law Firm, P.A. We have edited the timeline to include rule changes that have occurred since the last release.
To receive your very own timeline card in the mail, just email us at Attorney@TaylorLawFirm.com to request yours today.
One of the questions we receive quite frequently is about creating hyperlinks to the sections of a brief. With electronic filing of briefs now required, and with hyperlinks required as part of electronic filing, this is something every attorney filing appellate briefs in Arkansas must know.
We’ve put together a short set of instructions for hyperlinking. For this example, we are using the Supreme Court’s model brief. We use Adobe Acrobat Pro DC, but any modern PDF editing program (such as Foxit PhantomPDF; Nuance Power PDF) has the same functionality, and works basically the same way.
Step 1: Open the Hyperlinks Toolbar
In the “Find Your Tools Here” box (which is in the upper right-hand corner), type “link.”
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:
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.
The Arkansas Rules of Appellate Procedure–Civil provide that “[a]n appeal may be taken from a circuit court to the Arkansas Supreme Court from . . . [a] civil or criminal contempt order, which imposes a sanction and constitutes the final disposition of the contempt matter.” Ark. R. App. P.–Civ. 2(a)(13). But what about an order that imposes sanctions, but doesn’t hold anyone in civil or criminal contempt?
In Hancook Tire Co., LTD v. Philpot, 2016 Ark. App. 386, the parties were involved in an ongoing discovery dispute. Eventually, the plaintiff (Philpot) filed a “Motion for Sanctions for Spoliation and Concealment of Evidence.” A hearing was held on the motion, and the trial court eventually issued a letter opinion in which it stated that, because of “the multiple hearings that have been necessitated because of the Defendants obtuse and unnecessary abuse of the discovery process,” the trial court would impose Rule 37 sanctions (in the form of attorney’s fees) “to deter any future similar conduct.”
The trial court then entered an order awarding a total of $43,025 in attorney’s fees because Hankook’s “conduct in obstructing discovery has been egregious . . . . [and] to deter further such obstruction of discovery in this matter.” In the order, the trial court stated that “[t]his Order is a final Order for purposes of appeal.” A purported Rule 54(b) certificate appeared at the end of the order. (The Rule 54(b) certificate was rejected by the Court of Appeals in this case because it merely tracked the language of the rule, rather than making specific factual findings; we have previously blogged on this topic, and so therefore will not go into detail on that issue in this blog post.)
The question in the Hancock case is whether an order that imposes sanctions rises to the level of an order of contempt that would make that order a final order for purposes of appeal. In Hancook, the Court of Appeals held that such an order was not an appealable order. Specifically, the Court of Appeals held as follows:
Hankook’s notice of appeal cited to the contempt-with-sanctions provision as the basis to invoke appellate jurisdiction, but the trial court here did not hold Hankook “in contempt,” although it could have so determined as an appropriate sanction under Rule 37(b)(2)(D). Rather, the trial court here entered an order for attorney fees for discovery obstruction. This is not a final, appealable order.
This distinction is a fine line, so counsel must be careful when making the decision whether or not to file a notice of appeal from an order imposing sanctions. It would appear that had the order simply added a few words (stating that one of the parties or counsel was being held “in contempt”), this order would have been considered a final, and, therefore, appealable order. This is yet another reason that it is vital for counsel to closely and carefully read every order before deciding whether or not to file a notice of appeal from that order.
A cautionary note is in order, however. As we have mentioned before, in light of the opinion in Massinelli v. Massinelli, 2016 Ark. App. 90 (and the cases upon which it relied), counsel should always be cautious about deciding not to file a notice of appeal from an order that is arguably final, even if it appears to be nonfinal.
If you’ve followed this blog for very long, one of the topics that arises quite frequently is the issue of whether or not an order is a final, appealable order. This question often arises in family law cases, because there are so many moving parts in those cases. The decision of the Arkansas Court of Appeals in John v. Bolinder, 2016 Ark. App. 357, provides an example of such a case.
In John, an unmarried couple had one child together in 2010. In 2012, the trial court awarded primary custody to mom, with dad to have visitation (one week per month plus extended summer visitation) and also to pay child support. In 2014, the trial court modified the order to decrease dad’s nonsummer visitation to one weekend per month.
In late 2014, dad filed a motion for release of mom’s medical and psychological records. A few months later, dad filed a motion to modify child support, confirm the length of summer visitation, or modify the summer visitation. Dad also requested that his summer visitation be expanded, and that child support be reduced during the summer visitation.
At some point during this timeline, mom filed a motion for contempt against dad. A hearing was held on these matter in May of 2015, at which hearing the parties mentioned that this contempt motion was unresolved.
In June 2015, the trial court entered an order denying dad’s motion seeking the medical/psychological records and denying the motion to modify summer visitation (although the trial court did slightly modify the summer visitation schedule). The order did not address mom’s contempt motion, and it specifically reserved the issue of child support.
The question, then, is whether an order deciding visitation is final in a situation where a contempt motion and a motion to modify child support are outstanding. Dad argued that these issues (contempt and child support) were merely collateral matters not affecting the finality of the order. The Court of Appeals rejected this argument, relying on two cases: Burton v. Templeman, 2015 Ark. App. 101 (holding that an order denying a motion to modify visitation was not final where it specifically reserved a ruling on a motion for contempt) and Mitchell v. Mitchell, 98 Ark. App. 47, 249 S.W.3d 847 (2007) (holding that an order on “various post-divorce disputes” was not final where it specifically reserved a ruling on child support).
In light of this decision, there are two things to keep in mind when deciding whether to file a notice of appeal from a decision involving child custody and visitation. First, keep in mind that had the facts been slightly different, this order likely would have been a final order pursuant to Rule 2(d) of the Arkansas Rules of Appellate Procedure-Civil, which provides that “[a]ll final orders awarding custody are final appealable orders.” Second, in light of the opinion in Massinelli v. Massinelli, 2016 Ark. App. 90 (and the cases upon which it relied), counsel should always be cautious about deciding not to file a notice of appeal from an order that is arguably final, even if it appears to be nonfinal. The best option in this situation would probably be to try to obtain a Rule 54(b) certification to any order that leaves unfinished business.
ArkansasAppeals.com 