CHAPTER 7 PREPARING AND FILING THE RECORD—CIVIL

• Jurisdiction: Arkansas

CHAPTER 7 PREPARING AND FILING THE RECORD—CIVIL

Brett D. Watson¹

A. Introduction

B. Making the Record for Appeal—Practice Pointers

C. The Format of the Record

1. Electronic format

2. Two parts to most records

3. Page numbering

4. Word-searchable and bookmarked

D. Designating the Record

1. Designate the record in the notice of appeal

2. What if the appellant cannot make financial arrangements with the court reporter?

3. What if the appellant does not designate the entire record?

4. How much of the record should an appellant designate?

5. What if there was a prior appeal in the same case?

E. When and How to File the Record

1. The general rule

2. Exceptions to the general rule

(a) Injunctions and receiverships

(b) Extensions to file the record

3. What if the circuit clerk or court reporter cannot compile the record within the seven-month maximum?

4. What if you have the record but cannot file it in time?

F. When to file a Partial Record before the Complete Record

G. The Appellate Clerk Refuses to File the Record

H. Filing the Record in Administrative Appeals

I. Correcting or Supplementing the Record

J. Conclusion

A. Introduction

All lawyers speak of "making a record," but few appreciate why it is so 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 at the circuit 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 a question 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 the circuit court, the answer must lie in the record.

If the answer is not in the record, then the appellant cannot prevail on that question. If the record does not contain the predicate necessary to sustain the argument, the appellant cannot carry the burden of showing error. And if the record contains only part of what really happened, the parties and the court must live with that version unless the record is supplemented or corrected.

Although we intend this section to be helpful with all appeals, consult Chapter 15 for issues regarding probate appeals, administrative and regulatory commission appeals, election, and other special kinds of appeals. Chapter 19 instructs on dependency-neglect appeals. Parts of this section do not apply to those appeals.

B. Making the Record for Appeal—Practice Pointers

The work of creating the record begins early. Long before the circuit 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. You can usually do this next time the court reporter is available. If time does not permit waiting for the court reporter or in the unlikely event the judge refuses, file a letter with the clerk that notes the judge's refusal and memorializes the points raised in chambers.

• Make sure the court makes a ruling and that 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 circuit-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); In re Adoption of H.L.M., 99 Ark. App. 115, 118, 257 S.W.3d 587, 590 (2007) (refusing to consider a letter opinion from the circuit court addressing a motion to set aside an order of dismissal because the letter was not file-marked and thus not part of the record).

• 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 circuit 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 circuit 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 proffered instruction is not written, read it into the record verbatim.

• In a jury trial, move for a directed verdict at the close of the evidence on claims or defenses asserted against you to preserve your right to challenge the sufficiency of the evidence on appeal. ARCP 50(e). It is not necessary, however, for parties who have the burden of proof on a claim or defense to move for a directed verdict to challenge the sufficiency of the evidence on appeal. Id.; Mitchell v. Fells, 2010 Ark. App. 663, at 6, 376 S.W.3d 543, 546 (recognizing that a party with the burden of proof on a claim need not move for a directed verdict to appeal an adverse ruling based on the sufficiency of the evidence).

• State specific grounds for evidentiary objections. Although specific grounds are not required when the context makes the ground apparent, ARE 103(a)(1); Thomson v. Littlefield, 319 Ark. 648, 652, 893 S.W.2d 788, 791 (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. And always do your best to state the prejudice your client will face if your objection is overruled.

• Identify specific grounds when moving for directed verdict; tie your motion to a claim's elements. ARCP 50(a) ("A motion for directed verdict shall state the specific grounds therefor."); 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 the motion for directed verdict).

• Always renew your motion for directed verdict at the close of all the evidence, including any rebuttal, 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 rebuttal evidence waives questions of sufficiency of the evidence).

All trial lawyers should know the art of making a record for appeal just as thoroughly as they know the art of cross-examination or introducing documentary evidence. Be prepared to make a record on every point of fact or law important to your case. Then in the thick of battle, when the circuit court makes that ruling that guts your case and sends you reeling, you will have the presence of mind to make your record. That is the only way your case will survive to the next round.

C. The Format of the Record

1. Electronic format

For all notices of appeal filed after June 1, 2021, the record must be in electronic format. ARAP-Civ 7(b); ASCR 3-1(j); In re Final Rules for Acceptance of Records on Appeal in Electronic Format and Elimination of the Abstracting and Addendum Requirements, 2020 Ark. 421, at 1. But if a party is pro se or has a disability or special need that prevents them from filing the record electronically, then the record can be filed conventionally. ARAP-Civ 7(b), (c). And items that cannot be put into electronic format should be filed conventionally. ARAP-Civ 7(b)(5); ASCR 3-1(k). Examples are documents "of unusual bulk or weight" and CDs, DVDs, and thumb drives. ASCR 3-1(k).

2. Two parts to most records

The clerk's part and the court reporter's part of the record are separate. ARAP-Civ 7(a); ASCR 3-1(f). The clerk and court reporter will each send you their part of the record by e-mail, an electronic link, thumb drive, or some other method.

3. Page numbering

The cover sheet of the clerk's part is Page 1, and the cover sheet of the court reporter's part is Page 1. ASCR 3-1(f). Thus, the PDF page numbers correspond to the record page numbers. ARAP-Civ 7(b)(2). For example, the page of the circuit clerk's record numbered "8" will be the eighth PDF page. The circuit clerk's part of the record and the court reporter's part of the record will each have its own table of contents. ASCR 3-1(g).

4. Word-searchable and bookmarked

The circuit clerk and court reporter must save the record as word-searchable PDF documents. ARAP-Civ 7(b)(1). The clerk must bookmark the record at each document, and the court reporter must bookmark the record at the beginning of each witness's testimony. Id. Those are the minimum standards for bookmarks. The rules do not prohibit other helpful bookmarks; for example, to the page where each exhibit was introduced, not just to the exhibit itself.

If the clerk's or court reporter's part of the record is 30 MB or larger, then...