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 | What kinds of decisions can be appealed? |
A disappointed party may appeal from any kind of final order, judgment, or decree (we call this the "final order" rule). But it's also possible to appeal from an order that has an aspect of finality, i.e., which resolves matters in such a way that the order effectively ends the case on the merits or concludes a party's rights. For example, Arkansas permits appeals from orders granting or refusing a new trial, as well as orders disqualifying attorneys from further participation in a case, orders granting or denying class certification in class actions, and grants of summary judgment. See Ark. R. App. P. Civ. 2(a). (But be aware that other jurisdictions may not treat orders dealing with these matters as appealable orders.)
Examples of orders that are not appealable--because the case is not concluded at this point--include orders denying motions for default judgment, denying motions to dismiss, and denying summary judgment.
| How do I know which Arkansas appellate court will handle my appeal? |
The state of Arkansas has a two-tiered system of appellate courts--a supreme court and a court of appeals--but the division of appellate jurisdiction between these courts is handled differently from what you'll find in the systems that exist in the federal courts and in other states. Each court is a court of last resort for the class of appeals assigned to it. Unlike a federal circuit court of appeal, the Arkansas Court of Appeals does not provide an intermediate level of review, subject to later review by the supreme court.
The basic rule in Arkansas is that cases generally go to the court of appeals. Only a few classes of cases are appealed to the Arkansas Supreme Court, those which fit within one of eight enumerated categories, such as questions concerning Arkansas's Constitution, death penalty and life imprisonment, elections, and the discipline and regulation of attorneys. See Ark. Sup. Ct. R. 1-2(a).
The supreme court may also choose to accept an appeal that raises an issue of first impression or in which it finds strong policy concerns. For example, the supreme court will probably entertain questions involving substantial public interest, changing trends in the law, or substantial questions about the interpretation of a statute. See Ark. Sup. Ct. R. 1-2(b).
If the appellant selects the wrong court for his appeal, this is not a fatal error. Instead, the courts simply transfer it where it belongs, without a lot of fuss (even though it is somewhat rare for anything to happen in the appellate world without a fuss). Even if the case has properly been placed before the court of appeals, however, that court has the ability to certify the case to the supreme court if it feels the case involves a major public interest issue or a weighty legal principle that truly merits review by Arkansas's highest court. (The supreme court, however, may not agree and may send it back.) See Ark. Sup. Ct. R. 1-2(d).
This division of labor does not mean that the supreme court never reviews a decision of the court of appeals; the supreme court may grant a petition for review when it determines (1) that the case should have come to it in the first instance; (2) that the court of appeals should have certified the question to the supremes; or (3) when the court of appeals is deadlocked in a tie vote. See Ark. Sup. Ct. R. 1-2(f); Ark. Sup. Ct. R. 2-4. The courts' division of labor is predicated in part upon the ability of each court to handle a given number of cases. At present, the Arkansas Supreme Court is composed of seven justices, who sit en banc for each case that comes before it. The Arkansas Court of Appeals has twelve judges, who sit in panels of three to decide each case. The court of appeals therefore has the manpower and womanpower to handle a much greater number of appeals.
| How does an attorney initiate the appellate process? |
No appeal may be brought unless the party seeking appeal files a notice of appeal with the clerk of the trial court which entered the judgment, order, or decree. See Ark. R. App. P. Civ. 3(b). The notice of appeal must (1) name the party or parties taking the appeal; (2) designate the judgment, decree, or order appealed from; (3) if the appeal is taken to the Arkansas Supreme Court, set out the basis for that court's jurisdiction; (4) designate the contents of the record on appeal (e.g., pleadings, exhibits, transcripts); and (5) state that the appellant has ordered, and made the necessary financial arrangements to pay for, a transcript of the proceedings (which becomes part of the record on appeal). Ark. R. App. P. Civ. 3(e).
| How fast must I decide whether to appeal? What other time considerations affect my appeal? |
The appellant must file the notice of appeal within thirty days from the entry of the court's final order, unless timely post-trial motions are pending (e.g., JNOV motions, motions for new trial). Ark. R. App. P. Civ. 4(a), (b). In the event of a post-trial motion, the time for appeal begins to run with the grant or denial of the post-trial motion, or the expiration of 30 days, whichever comes first. Ark. R. App. P. Civ. 4(b)(1). If one files a notice of appeal before the disposition of any such pending post-trial motions, it will be treated "as being filed on the day after the entry of an order disposing of the last motion outstanding or the day after the motion is deemed denied by operation of law," and the party taking the appeal may amend the prior notice of appeal within thirty days. Ark. R. App. P. Civ. 4(b)(2).
| What is a "record," and what do I do with it? |
The term "record" refers to any pleadings, papers, or exhibits that were filed with the trial court, plus the transcript of any oral proceedings and testimony heard by the trial court. The appellate court is dependent upon this compilation of the trial court's records because of the appellate court's role as a reviewing court. The appellate court's powers are limited to a review of actions taken and decisions made by the trial court; if the trial court erred, the appellate court can correct that error. But if the losing party complains of some trial court action which is not apparent in the record, the appellate court can do nothing about it.The most significant documents contained in the record on appeal in a civil case are: (1) the complaint, together with any exhibits it references; (2) the answer, with its exhibits; (3) any subsequent pleadings; (4) the final judgment, decree, or order; (5) any post-trial decree or order; (6) the notice of appeal and designation of record; and (7) any transcripts of testimony taken at trial. See Ark. R. Sup. Ct. 3-3. (For contents of the record in criminal cases, see Ark. R. Sup. Ct. 3-4.)
After ordering the record from the trial court's clerk and court reporter, the appellant's attorney must normally deliver the completed record to the clerk of the supreme court within 90 days of the filing of the notice of appeal; the appellant may, however, ask the trial court to grant an extension of time (not to exceed seven months). See Ark. R. App. P. Civ. 5; Ark. R. App. P. Civ. 7. One way or another, however, the appellant's attorney must get the record to the clerk's office by the applicable deadline, or the appeal will be dismissed.
| What is an "abstract"? |
A peculiarity of Arkansas practice is the requirement that counsel for the appellant prepare an impartial condensation of the record on appeal, called the abstract. See Ark. R. Sup. Ct. 4-2(a)(6). The function of the abstract is to give the appellate judges a condensed reference tool, because they will not resort to examining the single copy of the actual record on appeal at the clerk's office. See Davis v. Peebles, 313 Ark. 654, 857 S.W.2d 825 (1993).The abstracting rule was significantly amended in 2001. Appellants now should abstract only "testimony of the witnesses and colloquies between the court and counsel and other parties as are necessary to an understanding of all questions presented to the Court for decision." All pleadings, motions, and other documentary parts of the record should be photocopied and placed in the Addendum instead of being abstracted. These changes took effect on September 1, 2001.
The Court has also significantly changed its existing approach to abstracts deemed insufficient. Under Rule 4-2(b)(3), the appellant will be given an opportunity to cure the deficiencies. The appellant risks automatic affirmance of the lower court order only if the abstract is not corrected after the appellant receives notice to do so.
| What is an "addendum"? |
The Addendum includes not only a photocopy of the order being appealed from, but also copies of relevant pleadings and other written documents, including any orders being appealed from and the notice of appeal. Items appearing in the Addendum are not to be abstracted.
| What determines whether I'll get to orally argue my case? |
In general, if you ask for oral argument in a timely and correct way, you'll get it. Such a request must be made in writing and is due at the time the party files its brief. See Ark. R. S. Ct. 5-1(a). The court may, however, deny your request for oral argument if it finds any of the following: (1) the appeal is frivolous; (2) the dispositive issue or set of issues has been decided authoritatively; or (3) the briefs and record adequately present the facts and legal arguments, and oral argument would not significantly aid the decision-making process. If your argument request is turned down on one of these grounds, it's time to worry about your appeal's chances for success. Id.It's also possible that you'll get oral argument even if you don't want it. An Arkansas appellate court is vested with the power to require that a case be orally argued when the court thinks it necessary and appropriate. See Ark. R. S. Ct. 5-1(a).
| Where do I find the rules that govern the handling of appeals in Arkansas? |
Three sets of court rules govern appellate advocacy in the state of Arkansas: the Rules of the Arkansas Supreme Court and Court of Appeals, applicable to every appeal; the Rules of Appellate Procedure--Civil, which apply to civil appeals only; and the Rules of Appellate Procedure--Criminal, which, not surprisingly, apply just to criminal appeals.
Your best source for researching the rules is on the Internet, at the Arkansas Judiciary web site, which has the full text of all Arkansas court rules. The advantage of using this site is that any amendments are posted there, on a special page for rule changes and administrative orders, as soon as the court releases them. Always be sure to check the rule change page if you're unsure whether a rule may have been recently amended, or if it's a rule you haven't looked at in a while.
If you're doing manual research, you will find the texts of these rules in the most current edition of the Court Rules volume of the Arkansas Code Annotated. This volume is published once a year, but it is not supplemented by pocket parts. Therefore, if the court has amended, repealed, or added a new rule since the volume was printed (and the court amends the rules frequently), you will find you can't rely on solely the printed text of the rule in the Court Rules volume.
Alternatively, you can search the AR-RULES database in WestLaw, or the ARRULE database in LEXIS (STATES library). Neither of these databases is immediately updated, however, when the court changes the rules.
| What kinds of information can I find in the court rules? |
Let's begin with the Arkansas Rules of Appellate Procedure. The civil rules list the various kinds of appealable orders. The civil rules also provide the technical information that guides an attorney in determining how and when to file an appeal, including the compilation and filing of the record.
The criminal rules are a bit more complex. Not only do they govern which orders can be appealed (those from convictions and those from certain interlocutory orders) and the timing and method of taking an appeal, they also deal with specialized criminal matters, such as providing for bail on appeal, appeals of death sentences, and the duties of trial counsel in continuing to represent a convicted defendant. We will not cover the rules of criminal appeals in this course. If you ever handle a criminal appeal, obtain the rules and read them very carefully.
In contrast to the Rules of Appellate Procedure, the Rules of the Arkansas Supreme Court and Court of Appeals deal with the shape and form of the actual appeal as it is presented to the court, from brief to oral argument. These rules cover matters ranging from the division of appellate jurisdiction between the Arkansas Supreme Court and the Arkansas Court of Appeals, to the specific requirements for drafting and formatting briefs, to the procedure for requesting oral argument. Other sections of the supreme court/court of appeals rules provide guidance to court personnel on the preparation of the record on appeal.
| Where can I get even more information about handling an Arkansas appeal? |
The Appellate Practice committee of the Arkansas Bar Association has produced an informative handbook, Handling Appeals in Arkansas. This handbook covers all the basics of appellate procedure in the Arkansas courts and includes the most commonly needed forms. The UALR Law Library keeps a copy of this manual on reserve.
