Opinion
January 4, 2001
The Arkansas Supreme Court Committee on Civil Practice has submitted to the Court a proposal to replace abstracting the record with a statement of facts/appendix system similar to that employed in the federal appellate courts. The Committee has put much time into this proposal, and we thank them for their work on this project. The Committee's proposal affects the various Supreme Court Rules which are implicated in such a change in the method of preparing briefs.
As explained in the concurring opinion, as an alternative to the wholesale replacement of the abstracting system, we are also publishing for comment a proposed revision to Supreme Court Rule 4-2. This alternative proposal seeks to address some of the criticisms which have been directed to the abstracting system.
We publish both the Committee's proposal to adopt the statement of facts/appendix system and the modified abstracting proposal for comment from the bench and bar. For ease of reference, the changes are presented in "line-in, line-out" fashion.
Comments with respect to the two alternatives as well as the suggested rules changes should be made in writing prior to March 1, 2001, and they should be addressed to:
Clerk, Supreme Court of Arkansas Attn: Abstract/Appendix Justice Building 625 Marshall Street Little Rock, Arkansas 72201.
Glaze, J., concurring.
Tom Glaze, Justice, concurring. Today we are publishing for comment a new system of preparing appellate briefs, the statement of facts/appendix system proposed by the Committee on Civil Practice. Many of the court of appeals judges have expressed some reluctance in adopting any changes in the present abstracting procedure. While I know hard work has been expended by a number of attorneys and the Civil Practice Committee to offer an appendix system that would be an improvement to the one employed in 1991, there are justices and court of appeals judges who remain convinced that abandoning the abstracting procedure will ultimately result in adding to the difficulty of, and time consumed in, reading briefs. See In Re: Revision of the Rules, 306 Ark. 655 (1991) (where the court concluded that "[t]he reason for ending the appendix experiment at this time is that we have found that it adds to the difficulty of, and time consumed in, reading briefs.") As an alternative to the proposed appendix system, I have suggested some modest changes to our existing rules on abstracting and asked that these modifications be submitted for public comment and for consideration by the Committee on Civil Practice. In short, rather than completely abandoning our current abstracting system, these suggested changes would amend the system to address the complaints that have been raised over the years. Without taking a position regarding what, if any, changes should be made, the court has agreed to submit both the appendix system and this modified abstracting proposal for comment.
In accordance with the modified abstracting method, advocates would still prepare abstracts, abstracting relevant testimony and relevant colloquies between the court and the parties. The testimony, however, would no longer be abstracted in a first-person abridgment. Rather, the testimony would be abstracted in the same format in which it appeared in the transcript, that is, a question-and-answer format. Colloquies between the parties and the court would appear in the abstract as these matters appear in the transcript. Abstracting in this manner would reduce the possibility of erroneous interpretation of the testimony by the abstractor and would reduce the amount of time practitioners spend on abstracting by eliminating the need for transformation of the testimony into a first-person format. Abstractors would still provide some text in the form of introducing the witness or person speaking. Extraneous matters would not be abstracted, but any omissions would be noted in the abstract. Further, to aid in preparation of the abstract and to ease the current burden associated with abstracting, it is recommended that advocates obtain a copy of the transcript in an electronic format so that testimony may be electronically copied from the transcript and placed in the abstract.
Further, rather than abstracting orders, pleadings, exhibits, and documents, this modified abstracting method would require that those items be photocopied and placed in the addendum. Again, this would ease the burden placed on practitioners, who are currently required to retype orders, pleadings, exhibits, and documents for the abstract. At the same time, this method would obviously eliminate errors associated with improper abstracting. Irrelevant documents and pleadings would not appear in the addendum.
It is also proposed that the statement of the case be moved to the argument section of the brief. This would eliminate the duplication of efforts by practitioners in providing certain information in the statement of the case and then reiterating that same information in the argument.
Under this method, when material in the abstract and addendum is referenced in the argument portion of the brief, the material is to be followed by a reference to the page number of the abstract or addendum at which such material appears. Many appellate advocates do this already. However, this is added as an aid to the court. Moreover, this requirement has the salutary effect of alerting counsel that if they are relying on particular material in their argument, then it must appear in either the abstract or addendum.
Finally, in order to assist counsel in avoiding a flagrantly deficient abstract, this proposal contains a nonexclusive list of matters that must be abstracted. Also, it is recommended that appellees prepare a supplemental abstract or addendum if they rely on materials not found in the appellant's abstract and addendum, unless they contend on appeal that the appellant's abstract or addendum is flagrantly deficient.
In essence, this modified abstracting method would result in the creation of an abstract and addendum that closely corresponds to the record filed with the appellate court. Such changes would address many of the complaints that have been raised against the abstracting system. Furthermore, it is my firm belief that these proposed changes would require a much shorter learning curve for the practitioner and would in fact ease the burden of preparing appellate briefs. While adopting this proposal would require some minor revisions of other rules, including Rules 2-3, 4-1, 4-3, and 4-4, at this time the court is publishing only Rule 4-2 as it would appear with the proposed changes.
CHANGES IN SUPREME COURT RULES TO REPLACE ABSTRACTING SYSTEM WITH APPENDIX SYSTEM PROPOSED BY THE COMMITTEE
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 calendar 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 withinseven (7) 7 calendar 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) 1week 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, in cases in the Supreme Court, 14 copies must be filed in cases in the Court of Appeals, 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 8-1/2" 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 statement of facts . 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 record one of the parties referred to that fact in the party's statement of facts prescribed by Rules 4-2 4-2.1and 4-3, or in argument, and provided the Court with an adequate reference to the appendix, addendum, or record.
(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 3-1. Preparation of the Record.
(a) Definition of Record. The term "record" in civil cases, and as used in these Rules, refers only to the pleadings, judgment, decree, order appealed, transcript, exhibits, and certificates. (a) (b) Generally. General Information. All records shall begin with the style of the court in which the controversy was heard, the name of the judge presiding when the decree, judgment or order was rendered and its date, the names of all the parties litigant, and the nature of the suit or motion. For example: "Trial before A.B., judge of _____ court on the ___ day of ________, 19___; John Doe, Plaintiff vs. Action on Promissory Note" Jane Doe, Defendant
(b) (c) Dates. Whenever an order of the court is mentioned, the date shall be specifically stated, rather than by reference to the day and year "aforesaid."
(c) (d) Duplications. No part of the record shall be copied more than once. When a particular record occurs, a reference should be made to pages in the preceding part of the record.
(d) (e) Depositions. When depositions are taken on interrogatories and included in the record, the answers must be placed immediately after the questions to which they are responsive. (e) (f) Record on Second Appeal. When a cause has been once before the Court and a record is again required (for the purpose of correcting error which occurred on retrial), the second record shall begin where the former ended; that is, with the judgment of the appellate court, which should be entered of record in the trial court, omitting the opinion of the appellate Court. The appeal or supersedeas bond should be the last entry included.
(f) (g) Table of Contents. Every record shall include a table of contents, which refers to pages in the record where the matter identified is copied. For example:
Complaint ........................................ Page 1
Exhibit A (note of J.B. to C.F.) ................. Page 3
Answer ........................................... Page 4
Exhibit B (deed from A to B) ..................... Page 5
Decree (or judgment) ............................. Page 6
(g) (h) Fee for Index. Clerks may add to their fee for the record a reasonable charge for these items where no charge is fixed by statute.
(h) (i) Record Fee and Costs Certified. The fee for the production of the record must be certified in all cases; in addition, all costs in the trial court must be reported, and by whom paid.
(i) (j) Clerk's Record and Reporter's Transcript-Paper Size and Preparation. The transcript must be prepared in plain typewriting or computer or word processor printing of the first impression, not copies, on 8-1/2" x 11" paper. The record, as defined in subdivision (a) paragraph (n) of this Rule, shall be fastened on the left of the page. All transcripts shall be prepared by certified court reporters and comport with the following rules:
(1) No fewer than 25 typed lines on standard 8-1/2" x 11" paper;
(2) No fewer than 9 or 10 characters to the typed inch;
(3) Left-hand margins to be set at no more than 1-3/4";
(4) Right-hand margins to be set at no more than 3/8";
(5) Each question and answer to begin on a separate line;
(6) Each question and answer to begin at the left-hand margin with no more than 5 spaces from the "Q" and "A" to the text;
(7) Carry-over "Q" and "A" lines to begin at the left-hand margin;
(8) Colloquy material, quoted material, parentheticals and exhibit markings to begin no more than 15 spaces from the left-hand margin with carry-over lines to begin no more than 10 spaces from the left-hand margin;
(9) All transcripts to be prepared in the lower case;
(10) All depositions prepared for use as evidence in any court to comply with these Rules, except that the left-hand margin is to be set at no more than 1 3/4" and bound on the left.
(k) (l) Folding of Record. Records must be transmitted to the Clerk without being folded or creased.
(1) (m) Surveys. Real property surveys which form a part of the record shall not be fastened to the record.
(m) (n) Record in Volumes. Where the record is too large to be conveniently bound in one volume, it shall be divided into separate volumes of convenient size and numbered sequentially.
(n) Definition of Record. The term "record" in civil cases, and as used in these Rules, refers only to the pleadings, judgment, decree, order appealed, transcript, exhibits, and certificates. (o) Record in Electronic Format. The record may be prepared in a searchable, electronic format complying with technical standards and regulations adopted by the Administrative Office of the Courts. Any record prepared in this format must be capable of being printed in paper form without loss of content or appearance.
Rule 4-1. Style of Briefs.
(a) Briefs-Size-Paper-Type. All briefs shall be type written or produced with computer or word processing equipment. Briefs shall be of uniform size on opaque, unglazed 8-1/2" x 11" white paper and firmly bound on the left hand margin by staples or other binding devices. If staples are used, they should be covered by tape. Briefs shall be double-spaced, except for quoted material, which may be single-spaced and indented. Footnote lines, except quotations, shall be double-spaced. Use of footnotes is not encouraged, and they should be used sparingly. Carbon copies are not acceptable, but copies produced by offset printing, positive photocopy, or other dry photoduplicating process which produces a clearly legible black-on-white reproduction may be used. Each page shall be numbered, and both sides of the page may be used. The margin at the top, outer edge, and bottom of each page shall be not less than one inch, and the margin at the binding edge shall be wide enough to allow the text to be read easily. The style of print shall be either mono-spaced, measured in characters per inch, not to exceed 10 characters per inch, or produced in a proportional serif font, measured in point sizes, not to be less than 12 points. Commercial organizations or members of the bar maintaining equipment for duplicating may submit to the Clerk samples for prior approval. If the Clerk is satisfied that such duplicating process will produce documents which conform to the specifications of this Rule, it will be approved.
(b) Length of argument. Unless leave of the Court is first obtained, the argument portion of a brief shall not exceed 25 double-spaced pages including the conclusion, if any. The appellant's reply brief shall not exceed 15 double-spaced pages and shall not include any supplemental abstract unless permitted by the Court upon motion. 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. Motions for an expansion of the page limit must set forth the reason or reasons for the request and must state that a good faith effort to comply with this Rule has been made. The motion must specify the number of additional pages requested.
(c) Pro se briefs. Where the appellant in a criminal appeal is entitled to representation by counsel, pro se briefs will be accepted only when the appellant has filed an affidavit stating that the appellant has knowingly and intelligently refused the services of an attorney on appeal. Such a brief shall also be accompanied by an affidavit that the appellant has prepared it without the paid assistance of any other prison inmate.
(d) Non-compliance. Briefs not in compliance with this Rule shall not be accepted by the Clerk.
Rule 4-2. 4-2.1. Contents of Briefs.
(a) Contents. The contents of the brief shall be in Except as provided in Rule 4-3 for certain criminal cases, briefs shall contain the following sections, in this order:
(1) Table of contents. Each brief must include a table of contents. It should reference provide the page number for the beginning of each of the major sections identified in Rule 4-2(a)(2)-(8) subdivision (a)(2)-(7) of this rule. Within the abstract section of the brief, it should reference the page number for the beginning of each witness' testimony and should note the page at which each pleading and document is abstracted.
(2) Informational statement and jurisdictional statement. The Informational State-ment and Jurisdictional Statement required by Supreme Court Rule 1-2(c).
(3) Statement of the case facts . The appellant's brief shall contain a concise statement of the case facts, without argument. This The statement, ordinarily not exceeding two pages in length, shall not exceed five pages without leave of the Court. The statement of the case should be sufficient to enable the Court to read the abstract with an understanding of should briefly indicate the nature of the case, thegeneral fact situation proceedings below, and the action taken by the trial court. The statement shall also contain, in narrative form, an impartial summary of all the facts necessary for the Court to understand and decide the issues on appeal, as well as page references to the addendum, appendix, and record for all material facts. Those references must be adequate for the Court to locate easily the documents, testimony, and other record materials that support the factual summary. In most cases, the statement should be approximately 10 pages long and shall not exceed 25 pages without leave of the Court. The appellee's brief need not contain a statement of the case unless the appellant's statement is deemed to be controverted or insufficient facts unless the appellee is dissatisfied with the appellant's statement. If the cross-appellant is also the appellee, the statement shall not exceed 25 pages without leave of the Court.
(4) Points on appeal. Following the appellant's statement of the case facts, 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.
(5) 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 Statutes and Rules
(C) Books and treatises Treatises
(D) Miscellaneous
(6) Abstract. The appellant's abstract or abridgment of the record should consist of an impartial condensation, without comment or emphasis, of only such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to the Court for decision. A document included in the Addendum pursuant to Rule 4-2(a)(8) should not be abstracted. A document, such as a will or contract, may be photocopied and attached as an exhibit to the abstract. However, the document or the necessary portions of the document must be abstracted. Mere notation such as "plaintiff's exhibit no. 4" is not sufficient. On a second or subsequent appeal, the abstract shall include a condensation of all pertinent portions of the record filed on any prior appeal. Not more than two pages of the record shall in any instance be abstracted without a page reference to the record. 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. In the abstracting of depositions taken on interrogatories, requests for admissions, and the responses thereto, and interrogatories to parties and the responses thereto, the abstract of each answer must immediately follow the abstract of the question. Whenever a map, plat, photograph, or other similar exhibit, which cannot be abstracted in words, must be examined for a clear understanding of the testimony, the appellant shall reproduce the exhibit by photography or other process and attach it to the copies of the abstract filed in the Court and served upon the opposing counsel, unless this requirement is shown to be impracticable and is waived by the Court upon motion. (7) (6) Argument. 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 Arkansas Reports, the official reports reporter. 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. The number of pages for argument shall comply with Rule 4-1(b).
(8) (7) Addendum. After Following the Argument argument, (and after the signature and certificate of service if they are contained in the brief), the appellant's brief shall contain an Addendum which addendum that shall include true and legible photocopies of the order, judgment, decree, ruling, letter opinion, or administrative law judge's opinion, from which the appeal is taken. It should be clear where any item appearing in the Addendum can be found in the record. An item appearing in the Addendum should not also be abstracted. Pursuant to subsection (c) below, the Clerk will refuse to accept an appellant's brief if it does not contain the required Addendum. In addition to the order or similar document, the appellant's addendum may also include up to 25 pages of other particularly important record materials. The appellee's brief shall only contain an Addendum to include an item which the appellant's Addendum fails to include. may also include an addendum of up to 25 pages of similar record materials, but shall not include any item that appears in the appellant's addendum. The addendum shall contain a table of contents and be separately paginated from the brief, and each page shall contain the corresponding page number from the record. If an item required by this subdivision is omitted from the addendum, the Court will refer to the record for the missing information. (9) (b) Cover s 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 and Brief for Appellant" "Appellant's Brief"), and the name or names of individual counsel who prepared the brief, including their addresses and telephone numbers.
(b) Insufficiency of Appellant's Abstract. Motions to dismiss the appeal for insufficiency of the appellant's abstract will not be recognized. Deficiencies in the appellant's abstract will ordinarily come to the Court's attention and be handled as follows: (1) If the appellee considers the appellant's abstract to be defective, the appellee's brief may call the deficiencies to the Court's attention and may, at the appellee's option, contain a supplemental abstract. When the case is considered on its merits, the Court may impose or withhold costs 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 and a certificate of counsel showing the amount of time that was devoted to the preparation of the supplemental abstract. (2) If the case has not yet been submitted to the Court for decision, an appellant may file a motion to supplement the abstract 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 and brief. If the appellee has already filed its brief, upon the filing of appellant's substituted abstract 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 direct. (3) Whether or not the appellee has called attention to deficiencies in the appellant's abstract, the Court may treat the question when the case is submitted on its merits. If the Court finds the abstract to be flagrantly deficient, or to cause an unreasonable or unjust delay in the disposition of the appeal, the judgment or decree may be affirmed for noncompliance with the Rule. If the Court considers that action to be unduly harsh, the appellant's attorney may be allowed time to revise the brief, at his or her own expense, to conform to Rule 4-2(a)(6). 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.
(c) Non-compliance. Briefs not in compliance with the format required by this Rule rule shall not be accepted for filing by the Clerk.
Rule 4-2.2. Appendices. (a) (1) Appellant's appendix. The appellant shall file an appendix with the opening brief. The appendix should include only those parts of the designated record that are dispositive of, or directly relevant to, the issues on appeal. The entire designated record should not be reproduced in the appendix. Even in cases challenging the sufficiency of the evidence, the entire transcript should not be reproduced in the appendix. Rather, the appendix should only include true and legible photocopies of the essential pleadings, exhibits, jury instructions, testimony excerpts, and other parts of the clerk's record and the transcript that the Court will need in deciding the issues on appeal. (2) Appellee's appendix . If the appellee considers the appellant's appendix to be incomplete, the appellee may file an appendix. The appellee's appendix shall contain only record materials not included in the appellant's appendix that the appellee believes are necessary for the Court to resolve factual disputes or to understand the case. If the appellee has cross-appealed, an appendix is required unless the appellant's appendix includes the record materials necessary to disposition of the cross-appeal. (3) Sufficiency of appendix. A party who prepares an appendix should endeavor to provide the Court with a copy of the important parts of the designated record, but no more than that. Because the Court will refer to the record on appeal for information that has not been included in the appendix, an omission is not fatal. If an appendix exceeds more than 100 pages in length and contains record materials not relevant to the issues on appeal, the court may direct that it be revised or impose on the attorney, or on a party acting pro se, a financial penalty payable to the Clerk. An appendix that exceeds 250 pages in length shall not be submitted unless the Court, on motion and for good cause, so orders. (b) Substituted appendix . If a party omits an item from the appendix, then the party may file a substituted appendix at any time prior to submission of the case if all parties agree in writing or the Court upon motion so orders. After submission, a substituted appendix may be filed only with leave of Court. The substituted appendix shall contain all of the material in the original appendix as well as the new material. (c) Binding, cover, and organization . Appendices shall be bound separately from the brief. They shall be of uniform size on opaque, unglazed 8-1/2" x 11" white paper and firmly bound on the left-hand margin with staples or other binding device. If staples are used, they should be covered with tape. The cover of every appendix shall contain the information required by Rule 4-2.1(b), substituting the title of the appendix (e.g., "Appellant's Appendix," "Appellee's Appendix," "Appellant's Substituted Appendix") for the title of the brief. Materials in an appendix should be arranged in the order in which they appear in the record as required by Rules 3-3 and 3-4. Each appendix shall contain a table of contents and be paginated. Each page of the appendix shall also contain the corresponding page number from the record. (d) Non-compliance . Appendices not in compliance with this rule shall not be accepted for filing by the Clerk. (e) Exception-Record in electronic format. If the record on appeal has been prepared in a searchable, electronic format pursuant to Rule 3-1(o), the requirements of this rule shall not apply and no appendices shall be filed unless the Court so orders.
Rule 4-3. Briefs and Appendices in Criminal Cases.
(a) Briefs in chief Opening brief 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 trial court.
(b) Briefs in chief Opening brief 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 trial 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 Clerkand such further abstract as may be necessary to a fair determination of the case. Proof of service upon opposing counsel and the trial 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 trial 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 provide statement of facts and appendix . 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 record, but only such parts of the record as are material to the points to be argued in the appellant's brief state the facts pursuant to Rule 4-2.1(a)(3) and provide an appendix pursuant to Rule 4-2.2 so that the Court can conduct its review. (h) Appendices. The appellant shall file 17 copies of the appendix with the appellant's opening brief. The appellee shall file 17 copies of an appendix, if any, with the appellee's brief. Any party filing a substituted appendix shall file 17 copies. When it is filed, 1 copy of every appendix shall be served on each party. If the record on appeal has been prepared in a searchable, electronic format pursuant to Rule 3-1(o), no appendices shall be filed unless the Court so orders. (h) (i) 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 appellant's brief, after the statement of facts, shall contain an additional section entitled "Statement of Adverse Rulings." In that section, the appellant shall describe all rulings adverse to him or her made by the trial court on all objections, motions and requests made by either party, together with such and refer to the parts of the appendix, addendum, and record as are needed for an understanding of each adverse ruling. The Attorney General will shall make certain and certify that all of those objections have been abstracted and will rulings have been described adequately in the appellant's statement of adverse rulings and supported by references to the addendum, appendix, and record. If the Attorney General cannot so certify, then the Attorney General may move the Court to order the appellant to file a substituted brief containing a complete statement of adverse rulings with adequate references, or the Attorney General may supplement the appellant's statement in the State's brief. The Attorney General shall brief all points argued by the appellant and any other points that appear to involve prejudicial error.
(i) (j) 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 5 calendar days.
(j) (k) 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 briefincluding an abstract. The brief shall contain an argument section that consists of a list of all rulings adverse to the defendant made by the trial court on all objections, motions and requests made by either party with an explanation as to why each adverse ruling and appendix complying with this rule and with Rules 4-2.1 and 4-2.2. The argument section of the brief shall explain why each of the trial court's ruling listed in the statement of adverse rulings is not a meritorious ground for reversal. The abstract section of the brief shall contain, in addition to the other material parts of the record, all rulings adverse to the defendant made by the trial 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 calendar 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 trial court should be affirmed or reversed, the Court may take such action on its own motion, without any supporting opinion.
(k) (l) Continuances and extensions of time.
(1) The Clerk or a deputy clerk may extend the due date of any briefand appendix by seven (7) 7 calendar 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. Counsel should confirm any Clerk's extension by letter to the Clerk with a copy to all other counsel of record.
(2) Stipulations of counsel for continuances will not be recognized. Any request for an extension of time (except in (k)(1) subdivision (l)(1) of this rule) 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 and Appendices in Civil Cases.
(a) Appellant's brief. In all civil cases the appellant shall, within 40 calendar 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 4-2.1. 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 thought necessary, within 30 calendar 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, it shall be compiled in accordance with Rule 4-2 and included in or with each copy of the brief. This Rule subdivision 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 calendar days after the appellee's brief is filed and shall furnish evidence of service upon opposing counsel and the trial court. This Rule subdivision shall apply to the cross-appellant's reply brief except it must be filed within 15 calendar days after the cross-appellee's brief is filed.
(d) Appendices. The appellant shall file 17 copies of the appendix with the appellant's opening brief. The appellee shall file 17 copies of an appendix, if any, with the appellee's brief. Any party filing a substituted appendix shall file 17 copies. When it is filed, 1 copy of every appendix shall be served on each party. This subdivision shall apply to cross-appellants. If the record on appeal has been prepared in a searchable, electronic format pursuant to Rule 3-1(o), no appendices shall be filed unless the Court so orders. (d) (e) Evidence of service. Briefs and appendices 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 and appendix have been mailed or delivered. (e) (f) 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) (g) Continuances and extensions of time.
(1) The Clerk or a deputy clerk may extend the due date of any briefand appendix by seven (7) 7 calendar 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. Counsel should confirm any Clerk's extension by letter to the Clerk with a copy to all other counsel of record.
(2) Stipulations of counsel for continuances will not be recognized. Any request for an extension of time (except in (f)(1) subdivision (g)(1) of this rule) 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 6-7. Taxation of Costs.
(a) Affirmance. The appellee may recover brief costs not to exceed $3.00 per page; , with total brief costs not to exceed $500.00 $200.00. The appellee may also recover appendix costs incurred at the following rates: $0.10 per page per copy, $2.00 binding per copy, and $2.00 cover per copy. Total appendix costs shall not exceed $600.00 and shall be taxable only for the 17 copies filed with the Court and the required copies served on other parties. Substituted appendix costs are not taxable.
(b) Reversal. The appellant may recover brief costs not to exceed $3.00 per page; , with total brief costs not to exceed $500.00, $200.00. The appellant may also recover the filing fee of $100.00, and the certified costs of the transcript. , and appendix costs as provided in subdivision (a) of this rule. Substituted appendix costs are not taxable.
(c) Affirmed in part and reversed in part-Law. In cases at law, the appellant is entitled to the appeal costs if a reversal is ordered, and a substantial recovery is made.
(d) Affirmed in part and reversed in part-Chancery Cases . In chancery cases, the Court may assess appeal costs according to the merits of the case. (e) Imposing or Withholding Costs. Whether the case be affirmed or reversed, the Court will impose or withhold costs in accordance with Rule 4-2(b).
CHANGES TO RULE 4-2, CONTENTS OF BRIEFS, PROPOSED BY THE CONCURRING OPINION
(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)-(8) (7). Within the abstract section of the brief, it should reference the page number for the beginning of each witness's testimony. Within the addendum of the brief, it and should note the page at which each order, judgment, decree, ruling, letter opinion, exhibit, pleading, and document is abstracted appears.
(2) Informational statement and jurisdictional statement. The Informational Statement and Jurisdictional Statement required by Supreme Court Rule 1-2(c).
(3) Statement of the case. The appellant's brief shall contain a concise statement of the case, without argument. This statement, ordinarily not exceeding two pages in length, shall not exceed five pages without leave of the Court. The statement of the case should be sufficient to enable the court to read the abstract with an understanding of the nature of the case, the general fact situation, and the action taken by the trial court. The appellee's brief need not contain a statement of the case unless the appellant's statement is deemed to be controverted or insufficient. (4) (3) Points on appeal. Following the appellant's statement of the case, the 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.
(5) (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
(6) (5) Abstract. The appellant's abstract or abridgment of the record the transcript should consist of an impartial condensation, without comment or emphasis, of only such material parts of the pleadings, proceedings, facts, documents, and other matters in the record 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. The testimony and colloquies should appear in the abstract as such material appears in the transcript, that is, with regard to witness testimony, in its question-and-answer format as it appears in the transcript, and, with regard to colloquies between the court and counsel and other parties, as such colloquies appear in the transcript. Omissions in the abstract of testimony found in the transcript shall be noted in the abstract by reference to the transcript pages on which such omitted testimony appears. The abstractor shall also include in the abstract other relevant information, such as the identity of the party speaking and whether testimony is presented on direct or cross examination. The appellee should prepare a supplemental abstract if material on which the appellee relies is not in the appellant's abstract, unless the appellee contends on appeal that appellant's abstract or Addendum is flagrantly deficient. For ease of abstracting, it is recommended that the abstractor obtain from the court reporter 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. A document included in the Addendum pursuant to Rule 4-2(a)(8) should not be abstracted. A document, such as a will or contract, may be photocopied and attached as an exhibit to the abstract. However, the document or the necessary portions of the document must be abstracted. Mere notation such as "plaintiff's exhibit no. 4" is not sufficient.Depositions shall be abstracted in a similar fashion. On a second or subsequent appeal, the abstract shall include a condensation of all pertinent portions of the record transcript filed on any prior appeal. Not more than two pages one page of the record transcript shall in any instance be abstracted without a page reference to the record 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. In the abstracting of depositions taken on interrogatories, requests for admissions, and the responses thereto, and interrogatories to parties and the responses thereto, the abstract of each answer must immediately follow the abstract of the question. Whenever a map, plat, photograph, or other similar exhibit, which cannot be abstracted in words, must be examined for a clear understanding of the testimony, the appellant shall reproduce the exhibit by photography or other process and attach it to the copies of the abstract filed in the Court and served upon the opposing counsel, unless this requirement is shown to be impracticable and is waived by the Court upon motion. (7) (6) Argument. First, the appellant's brief shall contain a concise statement of the case without argument. This statement, ordinarily not exceeding two pages in length, shall not exceed five pages without leave of the Court. The statement of the case should be sufficient to enable the court to read the abstract with an understanding of the nature of the case, the general fact situation, and the action taken by the trial court, and should include page references to the abstract and addendum. The appellee's brief need not contain a statement of the case unless the appellant's statement is deemed to be controverted or insufficient. Second, A 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).
(8) (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, or letter opinion, or administrative law judge's 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. It should be clear where any item appearing in the Addendum can be found in the record.If upon motion it is shown that it is impracticable or impossible to photocopy a relevant exhibit, this requirement may be waived by the Court. The appellee should prepare a supplemental Addendum if material on which the appellee relies is not in the appellant's Addendum, unless the appellee contends on appeal that appellant's abstract or Addendum is flagrantly deficient. An item appearing in the Addendum should not also be abstracted. Pursuant to subsection (c) below, the Clerk will refuse to accept an appellant's brief if it does not contain the required Addendum. The appellee's brief shall only contain an Addendum to include an item which the appellant's Addendum fails to include.
(9) (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 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. Motions to dismiss the appeal for insufficiency of the appellant's abstract will not be recognized. Deficiencies in the appellant's abstract or Addendum will ordinarily come to the Court's attention and be handled in either of two 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 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 and a certificate of counsel showing the amount of time that was devoted to the preparation of the supplemental abstract.
(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 treat the question when the case is submitted on its merits. If the Court finds the abstractor Addendum to be flagrantly deficient, or to cause an unreasonable or unjust delay in the disposition of the appeal, the judgment or decree may be affirmed for noncompliance with the Rule. To the extent that these items are material to an understanding of all questions presented to the Court for decision, the following materials must be abstracted or placed in the Addendum to avoid the abstract or Addendum being considered flagrantly deficient: a contract, will, lease, or any other document; an adverse ruling and the objection or motion on which the adverse ruling was based; a pretrial hearing; voir dire; the trial or hearing; proffers of evidence; jury instructions or proffered jury instructions; the court's findings and conclusions of law; relevant pleadings or documents essential to an understanding the Court's jurisdiction on appeal such as the notice of appeal. If the Court considers that action to be unduly harsh, the appellant's attorney may be allowed time to revise the brief, at his or her own expense, to conform to Rule 4-2 (a)(6) (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.
(c) Non-compliance. Briefs not in compliance with the format required by this Rule shall not be accepted for filing by the Clerk.