THE END OF AN ERA? ABOLISHING THE ABSTRACT REQUIREMENT FOR ARKANSAS APPELLATE BRIEFS.

• Author: Burchfield, Jessie Wallace

1. INTRODUCTION

   For more than a century, the Arkansas Supreme Court has required the appellant to prepare and file a condensed version of the record--an abstract--when initiating an appeal. (1) Not surprisingly, that abstracting requirement has often been a source of frustration for appellate attorneys and judges in Arkansas. (2) Indeed, members of the Arkansas appellate bar have tried to change or abolish the abstracting requirement over the decades, but those efforts always failed. (3)

   Yet the time for change might finally be here. On June 6, 2019, the Arkansas Supreme Court published for comment proposed rules that would eliminate the abstract and addendum requirements. The court's order simultaneously announced a pilot project authorizing parties to immediately proceed under the proposed rules in cases with electronically filed records. (4) The announcement was met with praise by many in the Arkansas legal community. (5) This article examines the history of the abstracting requirement, including both problems arising from the rule and prior reform efforts, and then discusses the pilot project and proposed new rules.

2. HISTORY OF THE ABSTRACTING REQUIREMENT

   The Arkansas Supreme Court began requiring an abstract in Rule LX of its 1885 rules. (6) Rule X of those rules provided that appellant's failure to comply with Rule IX would result in either dismissal of the appeal upon appellee's motion or affirmance of the ruling below. (7) Prior to this rule change, appellants were required to file only a copy of the record. (8)

   Arkansas was not an outlier in 1885; requiring an abstract was once a common practice in many jurisdictions. (9) Before 1938, the federal rules and many state rules required a narrative summary of the testimony. (10) However, the Committee on Improvement of Appellate Practice of the American Bar Association recommended doing away with the abstracting requirement, and this recommendation was adopted by the ABA in 1938." The recommendation stated that "abstracts of the record should not be required, but that such matters in the record as the parties desire to bring to the attention of the court should be set forth in appendices to the brief, either by summarized statement or quotation." (12)

   By the time of a 1949 report examining acceptance of the 1938 ABA recommendations, several states had already eliminated the abstracting requirement, and Arkansas was in a minority. (13) However, the authors of the report noted that only ten states that had done away with the abstracting requirement were requiring summaries or quotations from the record as part of the brief, which was also recommended. (14) The committee reasoned that in those jurisdictions with no abstracting requirement and no requirement for inclusion in the brief of summaries or quotations from the record, the reviewing court would be forced to closely examine the entire record, making submission of a "sufficient number of copies of the record... a matter of necessity." (15) The inefficiency and undesirability of justices having to examine the entire record has been one of the most-cited arguments in favor of the Arkansas abstracting requirement. (16)

   In 1953 the Arkansas General Assembly passed Act 555, purporting to simplify civil appeals. (17) Section 10 of the Act made provision for a party to "prepare and file... a condensed statement in narrative form of all or part of the testimony." (18) The section also provided that any other party to the appeal could require submission of the testimony in question-and-answer format if not satisfied with the narrative. (19) Section 12 of the Act required omission of "all matters not essential to the decision of the questions presented by the appeal" (20) and warned parties not to unnecessarily demand the question-and-answer format if the narrative summary sufficed, providing for the imposition of costs for violating this requirement. (21) Section 12 also clearly set out the rule that "[w]here the record has been abbreviated by agreement or without objection from opposing parties, no presumption shall be indulged that the findings of the trial court are supported by any matter omitted from the record." (22)

   The Arkansas Supreme Court, perhaps in response to Act 555, (23) revised Rule 9 in 1954, adding a requirement that a preliminary statement of the case and a list of the points on appeal precede the appellant's abstract and brief. (24) Rule 9 became Rule 4.2 when the rules of the Arkansas Supreme Court and the Arkansas Court of Appeals were revised and renumbered effective May 1, 1993. (25)

   By the year 2000, only Arkansas, Oklahoma, and Oregon still required a narrative abstract. (26) Illinois rules permitted an appellate court to require an abstract, but in practice the court "never call[ed] for an abstract." (27) Oklahoma is the only other state that still requires a narrative summary of the record. (28) The Oregon rule now requires only an excerpt of the record, stating "[a] 11 documents or parts of documents must be copies of documents included in the record, rather than summarized or paraphrased." (29) The Illinois rule was amended in 2017 to remove all references to an abstract. (30)

3. JUSTIFICATION OF THE ABSTRACTING RULE

   An important justification for Arkansas's abstracting requirement has been the need for the reviewing court to have access to the relevant facts impacting the issues on appeal. As famed legal scholar Karl Llewellyn wrote about appellate advocacy, "[t]he court is interested not in listening to a lawyer rant, but in seeing, or discovering, from and in the facts, where sense and justice lie," emphasizing that "[t]he court does not know the facts, and it wants to." (31) Arkansas Supreme Court Associate Justice David Newbern similarly observed that "[n]othing is more important in the process of deciding an appeal than the procedural and adjudicative facts of the case." (32)

   In a 1905 opinion, the Arkansas Supreme Court reasoned that the abstracting requirement saved the litigant money by not requiring the entire record to be reproduced, but instead requiring that it be fully abstracted "so that each judge of the court may have the case in a condensed form" leaving out "extraneous matters and abandoned questions" and presenting only the "real questions." (33) The judges believed that by complying with the rule, attorneys could present their appeals "concisely and strongly" and also aid the court. (34)

   Arkansas Supreme Court Justice George Rose Smith asserted that the abstracting requirement was "purely practical," pointing out that the record as a whole contains "captions and signatures to pleadings, their verification, irrelevant testimony, interlocutory orders, and so forth" that are unnecessary for understanding the issues on appeal and that "some condensation of the record is absolutely essential." (35) In a 1978 case, the court advised, "If the lawyer in preparing the abstract will remember that the Supreme Court Justices have never heard of his case until they pick up the brief to read it, the lawyer will have a better comprehension of what is required in abstracting." (36) Two decades later, Justice Newbern agreed that the record must be presented to the appellate court in a "condensed document that objectively depicts what happened to cause the appellant to allege that reversible error occurred in the trial court." (37)

4. PROBLEMS WITH THE ABSTRACTING RULE

   Many attorneys and judges would agree with Justice Smith's assertion that the abstracting requirement "creates more problems for the court and for the appellate bar than all the court's other rules put together." (38) Twenty years ago, two members of the Arkansas Supreme Court Committee on Civil Practice enumerated several problems with the Arkansas abstracting requirement:

   * expense to litigants; (39)

   * difficulty for attorneys; (40)

   * appellate decisions not based on the merits of the cases; (41)

   * a "Catch-22" between under- and over-inclusiveness in abstracts; (42)

   * inconvenience for appellate judges and their law clerks; (43)

   * availability of the record; (44) and

   * potential for the introduction of inaccuracies or distortions of the record. (45)

   Matters not properly abstracted would not be considered. As the court declared in an 1892 case,

   [t]he appellant argues that the court erred... but his exception on that score has not impressed him as being serious enough to require him to point out the error by setting out the prayers in his abstract in accordance with the rules. We therefore take it as a waiver of the objection." (46) In an 1893 case, referencing evidence alluded to in the appellant's brief as insufficient but not abstracted, the court stated that "[t]he rules of practice do not make it our duty to explore the transcript for... evidence... omitted; and, as it is not before us, we presume, in favor of the decrees, that the court's second, third, and fourth findings are correct." (47) In a 1948 case, the court defended the rule and reiterated that "reasonable enforcement of this rule of procedure is absolutely necessary to the orderly and efficient dispatch of the business of the court." (48) This "reasonable enforcement" has continued through the decades. (49) Because courts refuse to consider an issue that isn't properly abstracted, attorneys feel forced to abstract even marginally relevant materials just in case, making abstracts "too damn long," (50) which defeats the goal of condensing the record. (51)

   Historically, one of the most serious problems with the abstracting rule was the harsh outcome for appellants if an abstract was found flagrantly deficient. Prior to 2001, a flagrantly deficient abstract would lead to an automatic affirmance of the result below. (52) This rule was enforced rigorously (53) and was decried by the appellate bar as one of the three biggest problems in Arkansas appellate procedure. (54) A leading practitioner bemoaned the fact that "[i]nsufficient...