Chapter 1 Things You Need to Know
| Library | Handling Appeals in Arkansas (2022 Ed.) |
A. Introduction
B. Things You Need to Know
1. The Rules to Know
2. Arkansas Judiciary Website
(a) Appellate Update newsletters
(b) Court rules
(c) Docket search
(d) Oral-argument videos and other events
(e) Downloadable appellate court forms
(f) Model briefs
(g) Online guidance with grammar and citation
(h) Opinions and disciplinary decisions
(i) Judicial biographies and photographs
(j) Email notifications; social media
3. Admission Pro Hac Vice
4. The Clerk of Court
5. Technical Checks
6. How Long Will This Take?
(a) When will my case be submitted?
(b) Assignment of cases and writing responsibilities
(c) When will the court decide my case?
7. The Mandate
8. Awards of Costs and Attorney's Fees
(a) Attorney fees and costs not ordinarily recoverable
(b) Representation of indigents in criminal and certain civil appeals
(c) Attorney fees and costs for responding to defective briefs
(d) Costs upon affirmance or reversal
9. Electronic Filing
A. Introduction
The process of handling an appeal in Arkansas has been described as "a Serbonian Bog of formalistic procedures and traps." Ark. Lottery Comm'n v. Alpha Mktg., 2012 Ark. 23, at 10, 386 S.W.3d 400, 406 (Brown, J., dissenting) (citing Leon Holmes, Pitfalls of the Appellate Practice: Avoiding the Serbonian Bog, 35 ARK. LAW. 10 (Sum. 2000). While appeals are certainly a challenge, there aren't many accomplishments more rewarding than having an appellate court agree with the arguments you've made on appeal.
Of course, the opposite is also true. One of the most discouraging feelings is reading—and strongly agreeing with—the dissenting opinion in one of your cases. But perhaps even worse is reading an opinion and learning that the appellate court is not going to address the merits of your argument because of some procedural deficiency. Or worse, the court dismisses your appeal altogether.
The purpose of this handbook is to prevent the worst from happening so that you maximize the opportunity to prevail. This handbook highlights the pitfalls that trip up attorneys. Drawing from court opinions and court rules (both written and unwritten) and the authors' experience handling appeals, this handbook presents a useful guide to help you navigate the traps (or, if you buy into the Serbonian Bog metaphor, the marsh and quicksand) of handling an appeal in Arkansas.
This chapter starts that guide. And here we provide important information that doesn't always appear in the court rules or fit neatly within the categories of the handbook's other chapters.
B. Things You Need to Know
1. The Rules to Know
Court rules govern almost every core aspect of the appellate process—from the initiation of an appeal to the mandate that issues when a decision becomes final. The Arkansas Supreme Court Rules (ASCR) apply to all appellate cases (meaning appeals in the Court of Appeals, too). In addition, each appeal is governed by a second set of rules: the Arkansas Rules of Appellate Procedure-Civil (ARAP-Civ) for civil cases and the Arkansas Rules of Appellate Procedure-Criminal (ARAP-Crim) for criminal cases. Master them.
But don't stop there. The Arkansas Supreme Court also has issued several administrative orders that apply not only to cases in circuit courts but also to cases in the appellate courts. Administrative Order 19.1 covers the issue of redaction in all Arkansas cases, circuit and appellate. You must also know Administrative Order 21, which addresses electronic filing. Finally, there is often an interplay between the appellate rules and the circuit court rules. For example, Rules 54 and 59 of the Arkansas Rules of Civil Procedure sometimes play an outsized role in appeals.
So read—and reread—the rules. Do not rely on your memory or past experience. Old rules change. New rules are added. The Supreme Court's practice is to publish most proposed rule changes on the Arkansas Judiciary's website for public comment for a few months before deciding whether to adopt them. Sometimes, however, the Supreme Court makes rule changes effective immediately. If you don't monitor the Supreme Court's activity regularly, you should check the rules listed on the website. Rule changes, when they do come, are published first in per curiam orders. Look for per curiam opinions with regularity to stay informed.
As new or amended rules go into effect, the question of whether they apply retroactively may arise. The principles that govern the retroactivity of legislation also govern the retroactivity of court rules, and the "first principle of retroactivity ... is that retroactivity is a matter of legislative intent." Coots v. Bandera, 2016 Ark. App. 388, at 2-3, 499 S.W.3d 671, 672. In Coots, the Arkansas Court of Appeals held that an amendment to ARCP 4(i), which permitted more than one extension of time to serve a defendant in a civil case, applied retroactively. Id., at 5, 499 S.W.3d at 673; see also Jackson v. Sparks Reg'l Med. Ctr., 375 Ark. 533, 539, 294 S.W.3d 1, 4 (2009) (applying an amendment to ARCP 54(b)(5) retroactively so that the new rule would "serve its intended purpose").
2. Arkansas Judiciary Website
The official website of the Arkansas Judiciary—https://www.ar-courts.gov/ —contains a wealth of information for appellate attorneys. The homepage includes direct links to many popular items. The website also includes a search bar in the upper right corner you can use to find specific resources.
(a) Appellate Update newsletters
The Administrative Office of the Courts posts its newsletter, Appellate Update, on the website. The newsletter, published at various intervals, contains announcements of matters such as pertinent per curiam orders and proposed or newly effective rule changes. The newsletter also features highlights from recent cases (sometimes including cases from the United States District Courts for the Eastern and Western Districts of Arkansas, the United States Court of Appeals for the Eighth Circuit, or the United States Supreme Court). To locate the Appellate Update newsletter, do this: from the home page select "For Attorneys" (directly under the photograph of the Justice Building); then, under the "Case Resources" column, select "Appellate Updates." Or go to https://www.arcourts.gov/forms-and-publications/appellate-update.
(b) Court rules
The website contains a link to all Arkansas court rules, including those governing appeals. To access the court rules, do this: from the home page, select "For Attorneys"; then, under the "Case Resources" column, select "Court Rules." Or go to https://opinions.arcourts.gov/ark/cr/en/nav_date.do. You can also view the Arkansas Supreme Court's administrative orders by selecting the "Administrative Orders" link.
Be mindful that the rules on the website are not the official version. When you search for the most up-to-date version of the rules, also check another source (your legal research provider) to ensure you have the current version.
(c) Docket search
The website contains a link to Arkansas CourtConnect, which, in addition to allowing users to search the dockets in circuit and district courts that are online, also allows users to search for all publicly available (i.e., unsealed) cases in the Arkansas...
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