Chapter 1 Things You Need to Know

• Library: Handling Appeals in Arkansas (2015 Ed.)

THINGS YOU NEED TO KNOW

Coleen M. Barger & Julie DeWoody Greathouse

A. Introduction..................................................................................................... 1-1

B. Things You Need to Know.......................................................................... 1-2

1. Rule #1: Read the Rules.................................................................. 1-2

2. Arkansas Judiciary Web Site........................................................... 1-3

3. I’m Not from Around Here: Admission Pro Hac Vice............ 1-8

4. Your New Best Friend: The Clerk of Court............................... 1-8

5. Getting a Technical Check............................................................... 1-9

6. How Long Is This Going to Take?.............................................. 1-10

7. A Good Mandate Is Hard to Find............................................... 1-12

8. Show Me the Money: Getting Paid or Reimbursed.............. 1-13

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A. Introduction

Handling an appeal is a daunting task, whether the case is set in an appellate court in Arkansas or in the federal system, and whether this is your first appeal or your fiftieth.

Fortunately, you are now reading a book that addresses all you need to know about Arkansas appeals, a book whose goals are to provide expert guidance, lessen your fears, and make the task of handling an appeal less daunting.

This chapter highlights the things that don’t necessarily appear in the rules or fit neatly within the categories of the book’s other chapters. This chapter identifies several categories of things you need to know—or might not otherwise easily discover. The remaining chapters of the book will provide you with helpful detail on every aspect of handling an appeal.

B. Things You Need to Know

1. Rule #1: Read the Rules

Court rules govern almost everything—from the beginning to the end of the appellate process, from the initiation of an appeal to the appellate court’s mandate issued when its decision becomes final. Two sets of rules govern every Arkansas appeal. If yours is a civil case, read the Arkansas Rules of Appellate Procedure–Civil (ARAP–Civ). If yours is a criminal case, read the Arkansas Rules of Appellate Procedure–Criminal (ARAP–Crim). But don’t stop yet; for either type of case, also consult the Arkansas Supreme Court Rules (ASCR), which apply to all appellate cases.

Read—and then re-read—the rules. Do not rely upon your memory or past experience. Rules change. New rules are added. In the short period between December 2004 and July 2006, for example, the Arkansas Supreme Court amended 10 of the existing rules governing appeals and added three new rules.

New and amended administrative orders and court rules: Appellate rules continue to be added and amended. The Supreme Court’s practice is to publish, on the Arkansas Judiciary’s official website, most proposed rule changes for public comment for a few months before deciding whether to adopt them. In some instances, however, the Court makes immediate rule changes.

The current edition of this book, Handling Appeals in Arkansas, was originally published in 2007, but it is updated annually by means of this cumulative supplement. Because the two volumes of the Arkansas Code Annotated Court Rules are published only once a year, and because even online databases and web sites—including rules available on the Arkansas Judiciary web site—may not immediately reflect recent rule changes, the following list identifies administrative orders or court rules that have been substantively modified since January 1, 2007.

New or amended orders and rules are listed below, in alphanumeric order, with their titles (if any), and in parentheses, the date(s) of the per curiam order(s) affecting the order or rule. If an order or rule has been amended more than once, the changes are listed in reverse chronological order:

Administrative Orders

· Administrative Order 6 (May 27, 2010) (adding subsections (d)(7)–(9) to allow for the recording and broadcasting of oral arguments of the Supreme Court and Court of Appeals; lists specific exceptions to the recording/broadcasting policy, including timely objections by counsel, parties, or witnesses, and certain types of cases, including juvenile matters in circuit court as well as hearings in probate and domestic relations)

· Administrative Order 19 (Oct. 23, 2008) (confidentiality of addresses and phone numbers for petitioners requesting anonymity in domestic-abuse cases); (Feb. 22, 2007) (public access to court records)

· Administrative Order 19.1 (Oct. 23, 2008) (redaction of administrative records created and maintained by the judicial branch)

· Administrative Order 21—Electronic Filing (June 23, 2011) (amending subsection (3)(g) to prescribe a nonrefundable $20 filing fee for all civil actions and misdemeanors electronically filed in appellate courts); (June 17, 2010) (establishing policies and procedures governing electronic filing in Arkansas courts, including the appellate courts)

Arkansas District Court Rules

· ADCR 6, “Contents of answer; time for filing” (May 24, 2012) (providing a 30-day response time for cross-claims and counterclaims)

· ADCR 9, “Appeals to circuit court” (Oct. 9, 2008) (clarifying procedures for de novo appeals from district courts, county courts, and certain administrative bodies)

Arkansas Rules of Appellate Procedure–Civil

· ARAP–Civ 2, “Appealable matters; priority” (May 24, 2012) (adding new subsection (f) for permissive interlocutory appeals from orders compelling production of work-product or privileged documents and information); (Feb. 2, 2012) (clarifying that the rule’s reference to appeals from orders disposing of postjudgment motions applies only to orders specifically identified in ARAP–Civ 4(b)(1); (June 3, 2010) (adding subsection (a)(13) to provide for review by process of appeal, rather than by writ of certiorari, of final orders of contempt that impose sanctions); (Oct. 9, 2008) (amending subsection (c)(2) to clarify circuit court’s retention of jurisdiction to conduct further hearings)

· ARAP–Civ 3, “Appeal—How taken” (May 24, 2012) (clarifying that the rule’s reference to appeals from orders disposing of postjudgment motions applies only to orders specifically identified in ARAP–Civ 4(b)(1); (June 3, 2010) (reformatting subsection (e) to create appellate checklist; adding subsection (e)(vi) to require a statement—in all but interlocutory appeals—that an appellant or cross-appellant abandons any pending but unresolved claims, in effect dismissing with prejudice such “stray claims”)

· ARAP–Civ 5, “Record—Time for filing” (May 24, 2012) (giving circuit court authority to extend the time for filing the record on appeal when circuit clerk needs additional time to compile the record)

· ARAP–Civ 6, “Record on appeal” (Sept. 24, 2009) (amending section (b) to give a cross-appellant ten days for designating additional record materials); (Oct. 23, 2008) (concerning access to any sealed portion of appellate record)

· ARAP–Civ 11, “Certification by parties and attorneys; frivolous appeals; sanctions” (Oct. 23, 2008) (adding certification element indicating compliance with Administrative Order 19’s redaction requirements)

Arkansas Rules of Appellate Procedure–Criminal

· ARAP–Crim 2, “Time and method of taking appeal” (Nov. 15, 2007) (clarifying that a notice of criminal appeal must be filed with circuit clerk)

· ARAP–Crim 3, “Appeal by state” (Nov. 15, 2012) (limiting interlocutory appeals by the State to pretrial orders in felony prosecutions granting a motion under ARCrP 16.2 to suppress seized evidence, suppressing a confession, or granting a motion under ARE 411(c) to allow evidence of victim’s prior sexual conduct); (Feb. 9, 2011) (adding new subsection (d) to clarify that the “correct and uniform administration of the criminal law” requirement applies only to appeals brought under this rule’s subsection (a)(1) (order granting motion to suppress seized evidence), subsection (a)(2) (orders suppressing a confession or allowing evidence of victim’s prior sexual conduct), or subsection (b) (non-interlocutory appeals brought by State following misdemeanor or felony prosecutions))

· ARAP–Crim 4, “Time for filing record, contents of record” (Sept. 18, 2008) (adding subsection (b) regarding defendant’s date for filing record; adding subsection (c) to provide for extensions of time; relettering former subsection (b), “Exhibits,” as subsection (d) and adding sentence directing that motion to seal should accompany any record in a child pornography case which contains photographs, DVDs, or other visual media; adding subsection (f) to clarify that State cannot request an extension of time to file the record when it takes an appeal pursuant to ARAP – Crim 3)

· ARAP–Crim 16, “Trial counsel’s duties with regard to appeal” (May 27, 2010) (amending subsection (a) to require that motion to be relieved as counsel or motion for appointment of counsel must clearly state whether notice of appeal has been filed, thus enabling the circuit court to determine whether it has jurisdiction to consider motion); (Feb. 22, 2007) (permitting State to recoup indigent transcript costs when defendant moves to substitute retained counsel for appointed counsel)

Arkansas Rules of Criminal Procedure

· ARCrP 36, “Appeals from district court to circuit court” (Feb. 22, 2007) (amending subsection (c) to require, at minimum, certified copy of docket sheet for record)

Arkansas Supreme Court and Court of Appeals Rules

· ASCR 1-2, “Appellate jurisdiction of the Supreme Court and Court of Appeals” (Oct. 23, 2008) (adding confidential information questions to Informational Statement)

· ASCR 1-8, “Courtesy Electronic Copies” (June 6, 2013) (adding new rule that requires all motions, petitions, writs, briefs, responses, and replies filed with the appellate courts to be submitted in electronic PDF format and paper format; requiring, among other things,

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