Chapter 10 The Abstract and Addendum

LibraryHandling Appeals in Arkansas (2021 Ed.)
CHAPTER 10 THE ABSTRACT AND ADDENDUM
Troy A. Price and Roger Rowe

A. Introduction

Experienced appellate lawyers know that providing the court a thorough but concise summary of the proceedings below goes hand-in-hand with presenting a persuasive argument. "User-friendly" briefs are more convincing. Judges are better able to focus on the advocate's contentions when they are not forced to divert their thoughts and energy to searching for background information, critical facts, or procedural developments. A deficiency in these abbreviated materials may be worse than annoying: picture a frustrated appellate judge laying aside your filing in mid-paragraph to determine whether your opponent's filing answers the background question the judge has in mind.

Arkansas appellate judges rely on counsel to abbreviate the record of proceedings below by means of an abstract and an addendum. The abstract is a condensed narrative of the testimony and oral statements, arguments, and rulings made in the circuit court. All of this is converted into a first-person narrative that is easier to absorb and follow. The addendum is a consecutively renumbered and indexed set of photocopies of relevant pleadings, motions, orders and other filings, and relevant exhibits placed in the record at hearings and trial. These photocopies are not from the lawyer's files; they are reproduced from the certified record docketed with the appellate court, and contain the page numbering placed by the circuit clerk. The abstract and addendum are bound with the brief or one of its volumes.

Everything necessary to sustain the party's arguments and the appellate court's jurisdiction belongs in the abstract or addendum. Exclude everything else.

Although the circuit-court proceedings and transcripts the parties designated are in the appellate record, Arkansas courts do not consult this record to decide appeals. Court procedures relieve appellate judges of the inconvenience and delay that would result from having each judge consult the entire record. See, e.g., Stroud Crop, Inc. v. Hagler, 317 Ark. 139, 142, 875 S.W.2d 851, 853 (1994), overruled in part by McCourt Mfg. v. Rycroft, 2009 Ark. 332, at 5, 322 S.W.3d 491, 495. (Bear in mind that the requirements for the abstract and the addendum were substantially revised in 2001. Older cases may discuss requirements — such as including verbal descriptions of photographs or maps in the abstract—that are no longer applicable.)

When a party submits a brief that fails to comply with the rules for the abstract and addendum, the appellate court may address the issue at any time. ASCR 4-2(b)(3). If the court determines that the abstract or addendum is deficient to the extent that the court cannot reach the merits, the court notifies the appellant and grants 15 days to correct the deficiency and file a replacement abstract, addendum, and brief. If the appellant fails to cure the deficiency, the court may affirm the judgment below for noncompliance. Id.

If the abstract or addendum contains defects in structure or form that are apparent to the clerk, the brief will not be accepted for filing. ASCR 4-2(c). Consider asking the clerk to check your brief for compliance with the rules several days before your brief is due. See Chapter 1, section (B)(5).

The appellate courts require strict adherence to ASCR 4-2(a)(5) and (8), and deficiencies in the abstract and addendum may result in mandatory rebriefing by the appellant. If a compliant brief is not filed after a rebriefing order, the order(s) on appeal may be affirmed for noncompliance. If rebriefing is ordered a second time in an appeal, a referral to the Committee on Professional Conduct may follow. Loggins v. State, 2010 Ark. 263, at 2; In re Arkansas Supreme Court and Court of Appeals Rules 4-1, 4-2, 4-3, 4-4, 4-7, and 6-9, 2009 Ark. 534, at 10-11 (Danielson, J., concurring) (enforcement of the rules should be a "high priority"); Ridenoure v. Ball, 2010 Ark. App. 572, at 2-4 (transcript of bench rulings included in addendum rather than abstract); Fowler v. State, 2010 Ark. App. 812, at 2-3 (Glover, J., concurring) (page of judgment of conviction missing from addendum because of jam in copier).

If the appellate court determines that deficiencies in the abstract or addendum need to be corrected, but complete rebriefing is not needed, the court will order appellant to file a...

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