Chapter 7 Preparing and Filing the Record – Civil
Library | Handling Appeals in Arkansas (2015 Ed.) |
PREPARING AND FILING THE RECORD – CIVIL
Jess L. Askew III and Brett D. Watson
A. Introduction................................................................................................................. 7-2
B. Making the Record for Appeal – Practice Pointers.......................................... 7-3
C. Designating the Record – The Rules..................................................................... 7-5
D. When and How is the Record Filed?.................................................................... 7-7
1. Certain Interlocutory Appeals without Transcript.............................. 7-9
2. All Other Appeals without Transcript..................................................... 7-9
3. The Appeal Requires a Transcript.......................................................... 7-10
4. The Trial Court Grants an Extension..................................................... 7-10
5. Effect of a Post-Judgment Motion........................................................... 7-12
6. Multiple Parties and Multiple Post-Judgment Motions................... 7-13
7. What If the Clerk Cannot Compile the Record in Time?................. 7-14
8. What If You Have the Record but Cannot File It in Time?.............. 7-15
9. What If You Do Everything Right but the Appellate Clerk
Refuses to File the Record?....................................................................... 7-15
10. What If the Appellate Clerk Files Your Untimely Record?............. 7-16
11. What If You Need To File a Partial Record before
Filing the Complete Record?.................................................................... 7-16
12. What If the Same Case is Appealed Again?......................................... 7-17
E. Filing the Record in Administrative Appeals.................................................. 7-17
F. Correcting or Supplementing the Record......................................................... 7-18
G. Conclusion 7-19
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A. Introduction
All lawyers speak of “making a record,“ but few appreciate why it is so vitally important when it comes to an appeal. The record is the foundation for any successful appeal. The record reveals exactly what did (and did not) occur before the trial court or administrative agency. It is the only historical source to which the appellate court and the parties can turn to show what happened below. On appeal, if there is any question that turns on whether a motion was made, an argument presented, evidence proffered, a ruling made, an instruction refused, or any other of the myriad matters that occur at trial, the answer must lie in the record.
If the answer cannot be found in the record, then appellant cannot prevail on that question. It is appellant’s burden to demonstrate error, and if the record on appeal does not contain the predicate necessary to sustain appellant’s argument, appellant cannot carry his burden. If the record on appeal contains only a portion of what really happened, the parties and the court must live with that version unless the record is properly supplemented or corrected.
Although we intend this section to be helpful with all appeals, you should consult the section titled “Special Kinds of Appeals” for issues related to probate appeals, administrative and regulatory commission appeals, Department of Human Service appeals, i.e., dependency neglect cases, and election appeals. Portions of this section are inapplicable to those type appeals.
B. Making the Record for Appeal – Practice Pointers
The work of creating the record begins early. Long before the trial court shocks you with that terrible ruling, when your case is still fresh and dewy, you must attend to the process of making your record. The process is not difficult, but it requires good litigation habits and consistency.
· Make sure the court clerk files a copy of all your written motions and briefs. Always keep an extra file-marked copy in your file.
· Make your oral motions and arguments on the record. Even if you make a motion or argument informally in a conference with the judge, let the judge know you would like to place the proceeding on the record. Usually you will be able to do this next time the court reporter is available.
· Make sure the court makes a ruling, and make sure the ruling is on the record. City of Barling v. Fort Chaffee Redevelopment Auth., 347 Ark. 105, 123, 60 S.W.3d 443, 454 (2001) (refusing to rule on constructive fraud claim where there was no trial court ruling on the issue).
· If the court issues a “letter opinion,” make sure a copy finds its way into the clerk’s file and is file-stamped. See Winters v. Elders, 324 Ark. 246, 247-48, 920 S.W.2d 833, 834 (1996) (holding that where the letter opinion is omitted from the record, appellant, who has the burden to make the record, cannot demonstrate error).
· Always proffer excluded testimony or offer rejected jury instructions on the record. Lee v. Daniel, 350 Ark. 466, 475, 91 S.W.3d 464, 469-70 (2002) (refusing to consider whether the trial court should have permitted a witness to testify where the appellant did not proffer the witness’s testimony); Brown v. State, 320 Ark. 201, 204, 895 S.W.2d 909, 911 (1995) (holding that the failure to proffer a jury instruction to the trial court precludes the appellate court from reviewing the matter). If your excluded exhibit or jury instruction is written, hand it to the court reporter to be marked as a proffer. If your jury instruction is not written, read your proffered instruction into the record verbatim.
· State specific grounds for evidentiary objections. Although specific grounds are not required when the context makes the error obvious, ARE 103(a)(1); Thomson v. Littlefield, 319 Ark. 648, 893 S.W.2d 788 (1995), do not force your client to argue on appeal that the context excuses your failure to specify the grounds for objecting. Make it standard practice to state specific grounds.
· State specific grounds when moving for directed verdict. ARCP 50(a); Stacks v. Jones, 323 Ark. 643, 645, 916 S.W.2d 120, 121-22 (1996) (excessive-damages issue not preserved because appellant failed to state that ground in motion for directed verdict).
· Always renew your motion for directed verdict at the close of the evidence in a jury trial. ARCP 50(e); Advocat, Inc. v. Sauer, 353 Ark. 29, 50, 111 S.W.3d 346, 357 (2003) (failure to renew motion at conclusion of the evidence waives questions of sufficiency of the evidence).
Every trial lawyer should know the art of making a record for appeal just as thoroughly as he knows the art of cross-examination or introducing documentary evidence. Be prepared to make a record on every point of fact or law that is important to your case. Then in the thick of battle, when the trial court makes that ruling that guts your case and sends you reeling, you will have the presence of mind to make your record. This is the only way your case will survive to make it to the next round.
The Arkansas Supreme Court amended ARCP 50(e) effective January 1, 2009. Under the revised rule, only the...
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