Summary
requiring us to first allow rebriefing before summarily affirming
Summary of this case from Howard v. C&L United Statesed Car LotOpinion
Delivered May 31, 2001
Today, we announce significant changes with regard to briefs and the record on appeal. Over a year ago, our Committee on Civil Practice submitted a proposal to replace abstracting the record with an appendix system. Spurred by the Committee's work, an alternative proposal to the wholesale replacement of the abstracting system was crafted by members of the appellate courts. Both proposals were published for comment on January 4, 2001. Many comments were submitted, and we thank all who took the time to comment on the issues.
The recurring theme in the comments and at the heart of the Committee's proposal was the need for appeals to be decided on the merits. We agree and have addressed this concern in amending Rule 4-2 (b) (3). Appeals will no longer be affirmed because of the insufficiency of the abstract without the appellant first having any opportunity to cure the deficiencies. The so-called "affirmance rule" is being essentially eliminated, except in the rarest circumstance where the appellant refuses or fails to comply after given the opportunity to cure a deficient abstract, addendum, and brief. A second issue was the contention that abstracting is behind the times and wasteful of attorney's time and client's money. With this contention, we cannot agree. It is essential for the appellate court to know the facts underlying the legal arguments in a brief. The appellate bench feels strongly that abstracting of testimony is beneficial to the judges' having confidence of their grasp of the record to facilitate a prompt and fair decision. In our view, the abstracting of testimony serves the Court well and is not an antiquated process. We know the judges benefit from it, and we believe that the time expended by attorneys is rewarded when writing the argument portion of the brief. Consequently, the abstracting of testimony will continue and the appendix system is not being adopted.
However, we are persuaded that the abstracting of pleadings, exhibits, and other written documents is not the best means to understand such materials. A better approach is to review the relevant papers themselves. In this case, abstracting is an unnecessary expenditure of time and money. In connection with the reduction of the abstract, the Addendum is being expanded as set out in Rule 4-2 (a) (7) to include not only the judgment, order, or decree appealed from, but also the relevant pleadings and other written documents. The abstract will be limited to relevant testimony and discussions.
Other changes include that the contents of the abstract and Addendum be included in the Table of Contents of the brief [R. 4-2 (a) (1)]; the statement of the case is being moved to immediately precede the argument portion of the brief [4-2 (a) (6) (A)]; and there must be references to the abstract and Addendum in the statement of the case and the argument. We encourage all appellate attorneys to read Rule 4-2 and the other rules carefully to become familiar with all the changes being made at this time.
In a sense, these changes are interim in nature because the rapid advancements in technology will eventually permit the electronic filings of record and briefs, and some of the issues with which we are struggling will disappear. But we believe the changes we announce today — an expanded Addendum, reduced abstract, and essentially the elimination of the "affirmance rule" — will benefit the appellate bench and bar and will improve the appellate process. We owe a great debt to the Committee for providing the impetus to bring these issues to the table.
Accordingly, we hereby amend Supreme Court Rules 2-3, 4-2, 4-3, and 4-4 and republish these rules as set out below. These amendments will be effective for cases in which the record is lodged in the Supreme Court or Court of Appeals on or after September 1, 2001. The Court is cognizant that the modification of the abstracting system as well as the other changes in briefing will require a period of adjustment. Thus, through March 1, 2002, the Clerk of the Court should be liberal in granting extensions pursuant to Rules 4-3 (k) and 4-4 (f) to enable parties to remedy problems with their briefs arising from the changes which we announce today.
Rule 4-2. Contents of briefs.
(a) Contents. The contents of the brief shall be in the following order:
(1) Table of contents. Each brief must include a table of contents. It should reference the page number for the beginning of each of the major sections identified in Rule 4-2(a)(2) — (7). The table of contents also should include references to the abstract listing the name of each witness with the page number at which the testimony begins, and references to the Addendum listing each document with the page number at which it appears.
(2) Informational statement and jurisdictional statement. The Informational Statement and Jurisdictional Statement required by Supreme Court Rule 1-2(c).
(3) Points on appeal. The appellant shall list and separately number, concisely and without argument, the points relied upon for a reversal of the judgment or decree. The appellee will follow the same sequence and arrangement of points as contained in the appellant's brief and may then state additional points. Either party may insert under any point not more than two citations which either considers to be the principal authorities on that point.
(4) Table of authorities. The table of authorities shall be an alphabetical listing of authorities with a designation of the page number of the brief on which the authority appears. The authorities shall be grouped as follows:
(A) Cases
(B) Statutes/rules
(C) Books and treatises
(D) Miscellaneous
(5) Abstract. The appellant's abstract or abridgment of the transcript should consist of an impartial condensation, without comment or emphasis, of only such material parts of the testimony of the witnesses and colloquies between the court and counsel and other parties as are necessary to an understanding of all questions presented to the Court for decision. Depositions shall be abstracted in a similar fashion. For ease of abstracting, the court reporter shall provide the attorney, at cost, a copy of the transcript in an electronic form, e.g., a computer diskette, so that material may be electronically copied and placed in the abstract. (If the court reporter does not have the requisite equipment, then this requirement shall not apply.) Pleadings and documentary evidence should not be abstracted. On a second or subsequent appeal, the abstract shall include a condensation of all pertinent portions of the transcript filed on any prior appeal. Not more than one page of the transcript shall in any instance be abstracted without a page reference to the transcript. In the abstracting of testimony, the first person ( i.e., "I") rather than the third person ( i.e., "He, She") shall be used. The Clerk will refuse to accept a brief if the testimony is not abstracted in the first person or if the abstract does not contain the required references to the record. Whenever a map, plat, photograph, or other similar exhibit must be examined for a clear understanding of the testimony, the appellant shall reproduce the exhibit by photography or other process and include it in the Addendum with a reference in the abstract to the page in the Addendum where the exhibit appears unless this requirement is shown to be impracticable and is waived by the Court upon motion.
(6) Argument. (A) First, the appellant's brief shall contain a concise statement of the case without argument. This statement shall be denoted as the "Statement of the Case," shall ordinarily not exceed two pages in length, and shall not exceed five pages without leave of the Court. The pages of the statement of the case shall appear immediately preceding the argument and are not counted against the page limits of the Argument set out in Rules 4-1 (b) and 4-3 (e). The statement of the case should be sufficient to enable the Court to understand the nature of the case, the general fact situation, the action taken by the trial court, and must include page references to the abstract and Addendum. The Clerk will refuse to accept a brief if the required references to the abstract and Addendum are not included. The appellee's brief need not contain a statement of the case unless the appellant's statement is deemed to be controverted or insufficient.
(B) Second, arguments shall be presented under subheadings numbered to correspond to the outline of points to be relied upon. Citations of decisions of the Court which are officially reported must be from the official reports. All citations of decisions of any court must state the style of the case and the book and page in which the case is found. If the case is also reported by one or more unofficial publishers, these should also be cited, if possible. Reference in the argument portion of the parties' briefs to material found in the abstract and Addendum shall be followed by a reference to the page number of the abstract or Addendum at which such material may be found. The number of pages for argument shall comply with Rule 4-1(b).
(7) Addendum. Following the signature and certificate of service, the appellant's brief shall contain an Addendum which shall include true and legible photocopies of the order, judgment, decree, ruling, letter opinion, or Workers' Compensation Commission opinion from which the appeal is taken, along with any other relevant pleadings, documents, or exhibits essential to an understanding of the case and the Court's jurisdiction on appeal. In the case of lengthy pleadings or documents, only relevant excerpts in context need to be included in the Addendum. Depending upon the issues on appeal, the Addendum may include such materials as the following: a contract, will, lease, or any other document; proffers of evidence; jury instructions or proffered jury instructions; the court's findings and conclusions of law; orders; administrative law judge's opinion; discovery documents; requests for admissions; and relevant pleadings or documents essential to an understanding of the Court's jurisdiction on appeal such as the notice of appeal. The Addendum shall include an index of its contents and shall also be clear where any item appearing in the Addendum can be found in the record. The appellee may prepare a supplemental Addendum if material on which the appellee relies is not in the appellant's Addendum. Pursuant to subsection (c) below, the Clerk will refuse to accept an appellant's brief if its Addendum does not contain the required order, judgment, decree, ruling, letter opinion, or administrative law judge's opinion. The appellee's brief shall only contain an Addendum to include an item which the appellant's Addendum fails to include.
(8) Cover for briefs. On the cover of every brief there should appear the number and style of the case in the Supreme Court or Court of Appeals, a designation of the court from which the appeal is taken, and the name of its presiding judge, the title of the brief ( e.g., "Abstract, Addendum, and Brief for Appellant"), and the name or names of individual counsel who prepared the brief, including their addresses and telephone numbers.
(b) Insufficiency of appellant's abstract or Addendum. Motions to dismiss the appeal for insufficiency of the appellant's abstract or Addendum will not be recognized. Deficiencies in the appellant's abstract or Addendum will ordinarily come to the Court's attention and be handled in one of three ways as follows:
(1) If the appellee considers the appellant's abstract or Addendum to be defective, the appellee's brief should call the deficiencies to the Court's attention and may, at the appellee's option, contain a supplemental abstract or Addendum. When the case is considered on its merits, the Court may upon motion impose or withhold costs, including attorney fees, to compensate either party for the other party's noncompliance with this Rule. In seeking an award of costs under this paragraph, counsel must submit a statement showing the cost of the supplemental abstract or Addendum and a certificate of counsel showing the amount of time that was devoted to the preparation of the supplemental abstract or Addendum.
(2) If the case has not yet been submitted to the Court for decision, an appellant may file a motion to supplement the abstract or Addendum and file a substituted brief. Subject to the Court's discretion, the Court will routinely grant such a motion and give the appellant fifteen days within which to file the substituted abstract, Addendum, and brief. If the appellee has already filed its brief, upon the filing of appellant's substituted abstract, Addendum, and brief, the appellee will be afforded an opportunity to revise or supplement its brief, at the expense of the appellant or the appellant's counsel, as the Court may, upon motion, direct.
(3) Whether or not the appellee has called attention to deficiencies in the appellant's abstract or Addendum, the Court may address the question at any time. If the Court finds the abstract or Addendum to be deficient such that the Court cannot reach the merits of the case, or such as to cause an unreasonable or unjust delay in the disposition of the appeal, the Court will notify the appellant that he or she will be afforded an opportunity to cure any deficiencies, and has fifteen days within which to file a substituted abstract, Addendum, and brief, at his or her own expense, to conform to Rule 4-2 (a)(5) and (7). Mere modifications of the original brief by the appellant, as by interlineation, will not be accepted by the Clerk. Upon the filing of such a substituted brief by the appellant, the appellee will be afforded an opportunity to revise or supplement the brief, at the expense of the appellant or the appellant's counsel, as the Court may direct. If after the opportunity to cure the deficiencies, the appellant fails to file a complying abstract, Addendum and brief within the prescribed time, the judgment or decree may be affirmed for noncompliance with the Rule.
(c) Non-compliance. Briefs not in compliance with the format required by this Rule shall not be accepted for filing by the Clerk.
Rule 2-3. Petitions for rehearing.
(a) Filing and service. A petition for rehearing, a brief in support of the petition, and evidence of service of the petition, brief, and a certificate of merit stating that the petition is not filed for the purpose of delay, shall be filed within 18 days from the date of decision.
(b) Response. The respondent may file a brief on the following Monday (in the Supreme Court) or Wednesday (in the Court of Appeals) or within seven (7) days from the filing of the petition for rehearing, whichever last occurs, or may, on or before that time, obtain an extension of one (1) week upon written motion to the Court.
(c) Additional time. Neither party will be granted further time than as indicated above, except upon written motion to the Court and a showing of illness of counsel or other unavoidable casualty.
(d) Number of copies to be filed. Eight copies of the petition must be filed, and a copy must be served upon opposing counsel.
(e) Page length. In all cases, both civil and criminal, the petition and supporting brief, if any, including the style of the case and the certificate of counsel, shall not exceed ten 8 ½" x 11" double-spaced, typewritten pages and shall comply with the provisions of Rule 4-1(a), except that if the petition and supporting argument are not more than three pages, they need not be bound as set forth in Rule 4-1(a).
(f) Ground(s) stated. The petition must specifically state the ground(s) relied upon.
(g) Entire case not to be reargued. The petition for rehearing should be used to call attention to specific errors of law or fact which the opinion is thought to contain. Counsel are expected to argue the case fully in the original briefs, and the brief on rehearing is not intended to afford an opportunity for a mere repetition of the argument already considered by the Court.
(h) Previous reference in abstract or Addendum. In no case will a rehearing petition be granted when it is based upon any fact thought to have been overlooked by the Court, unless reference has been clearly made to it in the abstract of the transcript or the Addendum of the record prescribed by Rules 4-2 and 4-3.
(i) No oral argument. Oral argument will not be permitted on a petition for rehearing.
(j) Limited to one petition. A party may submit only one petition for rehearing.
(k) New counsel. Litigants will not be permitted to substitute new counsel for the purpose of filing a petition for rehearing. Additional counsel may, however, participate in a petition for rehearing, or in opposition to the petition, by joining with the original counsel in the petition and brief, or by obtaining permission of the Court by motion.
Rule 4-3. Briefs in criminal cases.
(a) Briefs in chief — When the state is the appellee. In criminal cases in which the State is the appellee and in which appellant is not indigent, the appellant shall have 40 days from the date the transcript is lodged to file 17 copies of the brief with the Clerk. Upon the filing of the brief, the appellant shall submit proof of service of two additional copies of the brief upon the Attorney General and one copy upon the circuit court.
(b) Briefs in chief — When the state is the appellant. In criminal cases in which the State is the appellant, the procedure shall be the same as in subsection (a) except the State shall file only 17 copies of the brief with the Clerk and furnish evidence of service upon opposing counsel and the circuit court.
(c) Appellee's brief. The appellee shall have 30 days from the filing of the appellant's brief to file 17 copies of the brief with the Clerk and such further abstract and Addendum as may be necessary to a fair determination of the case. Proof of service upon opposing counsel and the circuit court is required.
(d) Reply brief. The appellant shall have 15 days from the date that the appellee's brief is filed to file 17 copies of the reply brief and furnish evidence of service upon the opposing counsel and the circuit court.
(e) Page limits on briefs. The argument portion of the appellant's and the appellee's briefs shall not exceed 25 double-spaced typewritten pages including the conclusion, if any, with a 15 typewritten page limit upon the reply brief, except that if either limitation is shown to be too stringent in a particular case, and there has been a good faith effort to comply with the page limits, it may be waived on motion.
(f) Misdemeanor cases subject to dismissal. In misdemeanor cases, failure of the appellant to file a brief within the time limit renders the case subject to dismissal as in civil cases pursuant to Rule 4-5.
(g) Appellant's duty to abstract record. In all felony cases it is the duty of the appellant, whether represented by retained counsel, appointed counsel or a public defender, or acting pro se, to abstract such parts of the transcript and to include in the Addendum such parts of the record, but only such parts, as are material to the points to be argued in the appellant's brief.
(h) Court's review of errors in death or life imprisonment cases. When the sentence is death or life imprisonment, the Court must review all errors prejudicial to the appellant in accordance with Ark. Code Ann. Sec. 16-91-113(a). To make that review possible, the appellant must abstract, or include in the Addendum, as appropriate, all rulings adverse to him or her made by the circuit court on all objections, motions and requests made by either party, together with such parts of the record as are needed for an understanding of each adverse ruling. The Attorney General will make certain and certify that all of those objections have been abstracted, or included in the Addendum, and will brief all points argued by the appellant and any other points that appear to involve prejudicial error.
(i) Preparation of briefs for indigent appellants. When an indigent appellant is represented by appointed counsel or a public defender, the attorney may have the briefs reproduced by submitting one double-spaced typewritten manuscript to the Attorney General and one to the Clerk not later than the due date of the brief. In such instances, the time for the filing of the Attorney General's brief is extended by five days.
(j) Withdrawal of counsel.
(1) Any motion by counsel for a defendant in a criminal or a juvenile delinquency case for permission to withdraw made after notice of appeal has been given shall be addressed to the Court, shall contain a statement of the reason for the request and shall be served upon the defendant personally by first-class mail. A request to withdraw on the ground that the appeal is wholly without merit shall be accompanied by a brief including an abstract and Addendum. The brief shall contain an argument section that consists of a list of all rulings adverse to the defendant made by the circuit court on all objections, motions and requests made by either party with an explanation as to why each adverse ruling is not a meritorious ground for reversal. The abstract and Addendum of the brief shall contain, in addition to the other material parts of the record, all rulings adverse to the defendant made by the circuit court.
(2) The Clerk shall furnish the appellant with a copy of the appellant's counsel's brief, and advise the appellant that he or she has 30 days within which to raise any points that he or she chooses, and that this may be done in typewritten or hand printed form and accompanied by an affidavit that no paid assistance from any inmate of the Department of Correction or of any other place of incarceration has been received in the preparation of the response.
(3) The Clerk shall serve all such responses by an appellant on the Attorney General, who shall file a brief for the State, pursuant to sections (e) and (i) of this Rule, within 30 days after such service and serve a copy on the appellant, as well as on the appellant's counsel.
(4) After a reply brief has been filed, or after the time for filing such a brief has expired, the motion for withdrawal shall be submitted to the Court as other motions are submitted. If, upon consideration of the motion, it shall appear to the Court that the judgment of the circuit court should be affirmed or reversed, the Court may take such action on its own motion, without any supporting opinion.
(k) Continuances and extensions of time. (1) The Clerk or a deputy clerk may extend the due date of any brief by seven (7) days upon oral request. If such an extension is granted, no further extension shall be entertained except by the Court upon a written motion showing good cause.
(2) Stipulations of counsel for continuances will not be recognized. Any request for an extension of time (except in (k)(1)) for the filing of any brief must be made by a written motion, addressed to the Court, setting forth the facts supporting the request. Eight copies of the motion are required. Counsel who delay the filing of such a motion until it is too late for the brief to be filed if the motion is denied, do so at their own risk.
Rule 4-4. Filing and service of briefs in civil cases.
(a) Appellant's brief. In all civil cases the appellant shall, within 40 days of lodging the record, file 17 copies of the appellant's brief with the Clerk and furnish evidence of service upon opposing counsel and the trial court. Each copy of the appellant's brief shall contain every item required by Rule 4-2. Unemployment compensation cases appealed from the Arkansas Board of Review may be submitted to the Court of Appeals for decision as soon as the transcript is filed, unless the petition for review shows it is filed by an attorney, or notice of intent to file a brief for the appellant is filed with the Clerk prior to the filing of the transcript.
(b) Appellee's brief — Cross-appellant's brief. The appellee shall file 17 copies of the appellee's brief, and of any further abstract or Addendum thought necessary, within 30 days after the appellant's brief is filed, and furnish evidence of service upon opposing counsel and the trial court. If the appellee's brief has a supplemental abstract or Addendum, it shall be compiled in accordance with Rule 4-2 and included in or with each copy of the brief. This Rule shall apply to cross-appellants. If the cross-appellant is also the appellee, the two separate arguments may be contained in one brief, but each argument is limited to 25 pages.
(c) Reply brief — Cross-appellant's reply brief. The appellant may file 17 copies of a reply brief within 15 days after the appellee's brief is filed and shall furnish evidence of service upon opposing counsel and the trial court. This Rule shall apply to the cross-appellant's reply brief except it must be filed within 15 days after the cross-appellee's brief is filed.
(d) Evidence of service. Briefs tendered to the Clerk will not be filed unless evidence of service upon opposing counsel and the trial court has been furnished to the Clerk. Such evidence may be in the form of a letter signed by counsel, naming the attorney or attorneys and the trial court to whom copies of the brief have been mailed or delivered.
(e) Submission. The case shall be subject to call on the next Thursday (in the Supreme Court) or Wednesday (in the Court of Appeals) after the expiration of the time allowed for filing the reply brief of the appellant or the cross-appellant.
(f) Continuances and extensions of time. (1) The Clerk or a deputy clerk may extend the due date of any brief by seven (7) days upon oral request. If such an extension is granted, no further extension shall be entertained except by the Court upon a written motion showing good cause.
(2) Stipulations of counsel for continuances will not be recognized. Any request for an extension of time (except in (f)(1)) for the filing of any brief must be made by a written motion, addressed to the Court, setting forth the facts supporting the request. Eight copies of the motion are required. Counsel who delay the filing of such a motion until it is too late for the brief to be filed if the motion is denied, do so at their own risk.