Opinion
Opinion delivered January 19, 2006.
Based upon the court's experience, we have determined that the procedure for briefing by incarcerated pro se appellants is in need of revision. We have developed a proposed procedure which is set out below, and we now publish for comment from the bench and bar. The comment period shall expire February 20, 2006.
Comments should be in writing and addressed as follows: Clerk, Arkansas Supreme Court, Attention Pro Se Briefs, Justice Building, 625 Marshall Street, Little Rock, AR 72201.
ARTICLE IV. BRIEFS
Rule 4-7. Briefs in Postconviction and Civil Appeals Where Appellant is Incarcerated and Proceeding Pro Se
(a) Applicability. This rule shall govern pro se briefs filed by incarcerated persons in appeals of Rule 37 postconviction relief proceedings and civil appeals. Except for the provisions contained in this rule, briefs filed by pro se parties shall otherwise comply with the Rules of the Supreme Court and Court of Appeals.
(b) Style of briefs.
(1) Briefs — Size — Paper — Type. A pro se brief may be handwritten, typed or produced with computer or word processing equipment. A handwritten brief shall be clearly legible, shall not exceed thirty lines per page and fifteen words per line with left-hand and right-hand margins of at least one and one-half inches and upper and lower margins of at least two inches. Briefs shall be of uniform size on 8 1-2" x 11" 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. Typed 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 should be used sparingly. Carbon copies are not acceptable, but copies produced by offset printing, positive photocopy, or other dry photo duplicating process which produces a clearly legible black-on-white reproduction may be used. Each page in the brief should be numbered sequentially with Page 1 being the first page of the abstract.
(2) 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 or Addendum unless permitted by the Court upon motion. 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.
(3) Affidavit. If the pro se appellant received assistance in the preparation of the content of a brief, the brief shall also be accompanied by an affidavit that the appellant has prepared it without the paid assistance of any other prison inmate.
(c) Contents of briefs.
(1) Contents. The contents of the brief shall be in the following order:
(A) Abstract. The abstract is a summary of the testimony of the witnesses and other statements of the judge and attorneys contained in the transcript that are important to the understanding of the issues raised in the argument portion of the brief. Pleadings and documentary evidence should not be abstracted but should be included in the Addendum. It is the duty of the appellant to abstract such parts of the transcript, but only such parts, as are material to the points to be argued in the appellant's brief. The appellant in the abstract must summarize any testimony of witnesses, discussion between the judge and any person needed for an understanding of the issues. If parts of a prior trial or proceeding are important to the understanding of an issue, those parts of the transcript of that trial or proceeding must be included in the abstract. ( E.g., an appellant arguing in a Rule 37.1 appeal that his attorney failed to make an objection at trial must abstract the part of the transcript where that occurred.) The appellee may prepare a supplemental abstract if material on which the appellee relies is not in the appellant's abstract.
(B) Argument. The appellant shall state each issue to be argued and then set out the argument in support of that issue. If an argument refers to a particular place in the record, the page number for that place in the record shall be provided. All citations of decisions of any court must state the name of the case and the book and page where the case may be found. Reference in the argument portion of the brief to material found in the abstract and Addendum shall be followed by a reference to the page number on which the material can be found in the brief.
(C) Addendum. The appellant's brief shall contain an Addendum, which consists of photocopies of documents from the record. It is the duty of the appellant 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. The Addendum shall include true and legible photocopies of the original pleading, order from which the appeal is taken, and the notice of appeal. The Addendum shall also include any other relevant pleadings, jury instructions, documents, or exhibits essential to an understanding of the case. If parts of a prior trial or proceeding are important to the understanding of an issue, those parts of the record of that trial or proceeding must be included in the Addendum. ( E.g., an appellant arguing in a Rule 37.1 appeal that his attorney allowed an improper jury instruction at trial must include the jury instruction at issue in the Addendum.) The appellee may prepare a supplemental Addendum if material on which the appellee relies is not in the appellant's Addendum. Only documents that are part of the trial court record may be included in the Addendum.
(2) Cover for briefs. On the cover of the brief there should appear the docket number and name of the case, the name of the court from which the appeal is taken, the title of the brief (e.g., "Brief for Appellant"), and the name of the appellant.
(3) 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:
(A) 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.
(B) 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 thirty 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.
(C) 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. Mere modifications of the original brief by the appellant 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 its brief. If after the opportunity to cure the deficiencies, the appellant fails to file a complying abstract, Addendum and brief within the prescribed time, the trial court's order may be affirmed for noncompliance with the Rule.
(4) Non-compliance. Briefs not in compliance with this Rule shall not be accepted for filing by the Clerk. When a party submits a brief on time that substantially complies with these Rules, the Clerk shall mark the brief "tendered", grant the party a fourteen-day compliance extension, and return the brief to the party for correction. If the party resubmits a compliant brief within fourteen calendar days, then the Clerk shall accept that brief for filing on the date it is received.
(d) Number of briefs and time for filing.
(1) Briefs in chief. The appellant shall have 40 days from the date the transcript is lodged to file 17 copies of the brief with the Clerk.
(2) 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 serve a copy on the appellant.
(3) 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.
(4) Continuances and extensions of time. The Clerk or a deputy clerk may extend the due date of any brief by seven (7) calendar days upon oral or letter request. If such an extension is granted, no further extension shall be granted except by the Court upon a written motion showing good cause.