Chapter 17 Motion Practice in the Arkansas Appellate Courts

• Library: Handling Appeals in Arkansas (2021 Ed.)

CHAPTER 17 MOTION PRACTICE IN THE ARKANSAS APPELLATE COURTS Christian Harris

A. Introduction

No less than at trial, the emphasis in motion practice on appeal is 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, as well as some that you may not have considered. When in doubt, follow the courts' rules; but 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, it is good practice to read over Rule 2-1. Here is a checklist of items to consider for all motions:

• All motions must be written on 8½" by 11" paper.

• The correct number of clearly legible copies to file is eight for the Supreme Court and 14 for the Court of Appeals.

• All motions and responses must include a certificate of service and a certificate of compliance.

• Submit with your motion a short citation of statutes, court rules, or other authorities that you rely on.

• You have 10 calendar days to respond to a motion.

• You may not file a reply to a response to a motion.

• 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 four practice pointers, in no particular order of importance. First, of course, good writing matters — use plain language and contemporary formatting.

Second, once you have filed your motion, call the clerk and confirm the date on which your (or your opponent's) response is due. Ask the clerk when the appellate court will consider your motion.

Third, develop a good relationship with the clerk and the chief deputy clerk of both appellate courts, especially if you frequently engage in appellate practice. While the reasons for fostering this relationship are obvious, it 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. She cannot give you legal advice, but will point you in the right direction, if she can.

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.

In sum, remember that the goal of every appellate motion is the same: to convey the necessary information to the appellate courts 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 usually 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. The Arkansas Supreme Court's summer recess usually lasts from the 4th of July to the first Thursday after Labor Day. The Court of Appeals' summer recess usually lasts from the 4th of July to mid-August. These dates may vary as the courts separately set their recesses each year. But even during the summer recesses, the Supreme Court meets when needed to consider an emergency motion, and the Court of Appeals always meets once during the middle of the summer recess to consider motions.

During the term, the clerk forwards all of the week's motions to the justices (or judges) on Friday for consideration. The Supreme Court usually conferences motions and petitions on Wednesdays, while the Court of Appeals usually conferences motions and petitions on Tuesdays. Decisions on motions are usually handed down the next day (Wednesdays for the Court of Appeals and Thursdays for the Arkansas Supreme Court), just before oral argument.

Between terms, all motions except those calling for emergency relief are held for consideration at the start of the next term. (This is why it is vital to clearly state if your motion seeks immediate or emergency relief.) If your motion or other petition requires immediate action, that is, before the court would typically conference the...