CHAPTER 16 MOTION PRACTICE IN THE ARKANSAS APPELLATE COURTS

• Jurisdiction: Arkansas

CHAPTER 16 MOTION PRACTICE IN THE ARKANSAS APPELLATE COURTS

Christian Harris¹

A. Introduction

B. The Rules Governing Motion Practice and Some Practice Pointers

1. The Rules
2. Practice Pointers

C. The Courts' Process for Handling Motions

D. Specific Motions

1. Motion for Extension of Time to File Brief
2. Motion to Dismiss Appeal
3. Motion to Expand Word Count
4. Motion to Correct or Modify the Record
5. Motion to Stay the Briefing Schedule
6. Motion to Disqualify a Judge or Justice
7. Failure to Perfect the Appeal: Motion to File a Belated Appeal/Motion for Rule on the Clerk

(a) Availability of relief: Generally, only in criminal and termination-of-parental-rights cases
(b) Which motion to file
(c) Consequences

8. Motion for Leave to File Amicus Curiae Brief
9. Motion to Withdraw as Counsel in Criminal, Juvenile-Delinquency, Involuntary-Commitment, or Dependency-Neglect Cases
10. Motion for Attorney Fees in a Criminal Case
11. Motion to Treat a Motion or Petition as a Case
12. Motion for Extension of Time to File Record/Petition for Writ of Certiorari to Complete Record
13. Motion to Take Judicial Notice of Supplemental Authority
14. Motion to Seal the Record
15. Motion for Oral Argument

E. Conclusion

A. Introduction

Like the circuit-court level, the emphasis in appellate motion practice focuses on substance, not form. Pack v. Clark, 2010 Ark. App. 756, at 6, 379 S.W.3d 676, 679 ("Courts should not be guided blindly by titles but should look to the substance of motions to ascertain what they seek. It would not be in the interest of justice and fair play to be blindly guided by the title of a motion or pleading."). ASCR 2-1, which governs motion practice on appeal, is brief by design, and you should not overlook the possibility for creative lawyering in motion practice.

This chapter considers and explains several of the more general motions presented to the appellate courts, and some that you may not have considered. When in doubt, follow the courts' rules; be creative, clear, and assertive in seeking your relief.

B. The Rules Governing Motion Practice and Some Practice Pointers

1. The Rules

Before drafting any submission, read ASCR 2-1. Here is a checklist of items to consider for all motions:

• All motions must be filed electronically through the AOC eFlex system. There are exceptions for pro se litigants and persons with disabilities or special needs that prevent electronic filing. ASCR 2-1(a).
• The format requirements of ASCR 4-1(a) apply; for example, the motion must be a searchable PDF. ASCR 2-1(a).

• Motions and responses must be double-spaced and have a 10-page limit, excluding exhibits. ASCR 2-1(h).
• Submit with your motion and response a short citation of statutes, court rules, or other authorities on which you rely. ASCR 2-1(e).
• You have 10 calendar days to respond to a motion. ASCR 2-1(d).
• The rules do not provide for replies in support of motions. If you try to file a reply, the clerk's office will not file it but will docket it so that it appears on CourtConnect. The court will know, however, that one has been "tendered"; the court may or may not consider it.
• Under Administrative Order No. 19, eliminate or redact confidential information from your motion and attachments. If the court needs the confidential information to decide the motion, then file unredacted copies of the material under seal. ASCR 2-1(f).

2. Practice Pointers

Here are three practice pointers, in no order of importance. First, of course, good writing matters—use plain language and contemporary formatting.

Second, develop a good relationship with the clerk and the chief deputy clerk of both appellate courts, especially if you frequently engage in appellate practice. That is especially true when you consider ASCR 1-7. It states that in cases where there is no provision made by statute or other rule for practice before the appellate courts, proceedings "shall be in accordance with existing practice." No one can tell you better what the existing practices are than the clerk's office. Clerk personnel cannot give you legal advice, but they will point you in the right direction, if they can. And they are happy to assist when possible.

Finally, if your motion is exceptionally complex, consider asking the court in your motion to submit it as a case, complete with a briefing schedule, just like a regular appeal. See infra § D.11.

In sum, remember that the goal of every appellate motion is the same: to convey the necessary information to the court as briefly, succinctly, and persuasively as possible. Become familiar with the rules governing motion practice, be creative, and when all else fails, call the clerk.

C. The Courts' Process for Handling Motions

How long will it take for the court to decide your motion? The terms of the appellate courts are roughly the same—spring term from January to July, and the fall term from August to December. As a practical matter, the motions are promptly heard except during summer recesses. But even during the summer recesses, the Supreme Court meets when needed to consider an emergency motion, and both courts meet once during the middle of the summer recess to consider motions.

You can track the progress on your motion by monitoring the docket on CourtConnect or by reviewing the weekly syllabus released by the clerk during the regular terms.

Between terms, all motions except those seeking extensions of time and calling for emergency relief are, generally speaking, held for consideration at the start of the next term. (This is why it is vital to say so if your motion seeks immediate or emergency relief, if it is in fact an emergency.) If your motion or other petition requires immediate action, that is, before the court would typically conference the motion, the clerk generally will contact you to advise of the appellate court's decision when it is reached.

D. Specific Motions

You can search CourtConnect by type of pleading using the "docket filings by date search" function. That function allows you to search, among other things, for all motions to dismiss an appeal filed in a certain year.

1. Motion for Extension of Time to File Brief

Strive to meet the briefing deadlines the courts set. If, however, you cannot meet the deadline, ask for an extension. ASCR 4-4(h)(2).² Your motion must set forth facts that support your request. Id. If an order says the extension is a "final" extension, the court means it; don't ask for another one.

Arkansas appellate practice has a unique "motion," the automatic seven-day extension. ASCR 4-4(h)(1). This motion is the only one that can be made orally—you simply call the clerk's office by the due date, receive the extension, and confirm it by letter to the clerk and counsel of record. Id. Rather than call, you can make the request by e-filing a letter to the clerk asking for the...