Supreme Court of Arkansas.
Opinion delivered November 18, 2004.
The Arkansas Supreme Court Committee on Civil Practice has submitted its annual proposals and recommendations for changes in rules of procedure affecting civil practice. We have reviewed the Committee’s work, and we now publish the suggested amendments for comment from the bench and bar. The Reporter’s Notes explain the changes, and the proposed changes are set out in “line-in, line-out” fashion (new material is italicized; deleted material is lined through).
We express our gratitude to the Chair of the Committee, Judge Henry Wilkinson, its Reporter, Price Marshall, and the Committee members for their faithful and helpful work with respect to the Rules.
Comments on the suggested rules changes should be made in writing prior to January 15, 2005, and they should be addressed to: Clerk, Supreme Court of Arkansas, Attn.: Civil Procedure Rules, Justice Building, 625 Marshall Street, Little Rock, Arkansas 72201.
A. ARKANSAS RULES OF CIVIL PROCEDURERULE 3. COMMENCEMENT OF ACTION — “CLERK” DEFINED
(a) A civil action is commenced by filing a complaint with the clerk of the court who shall note thereon the date and precise time of filing.
(b) The term “clerk of the court” as used in these Rules means the circuit clerk and, with respect to probate matters, any county clerk who serves as ex officio clerk of the probate division of the circuit court pursuant to Ark. Code Ann. § 14-14-502(b)(2)(B). In counties where the county clerk serves as the ex officio clerk of any division of the circuit court, the filing requirement shall be satisfied when the complaint is filed with either the circuit clerk or the county clerk.
Addition to Reporter’s Notes, 2005 Amendment: Rule 3(b) has been amended. As the Rule states, in some counties the county clerk serves as the ex officio clerk of the probate division of the circuit court. Uncertainties have arisen in these circumstances about the effect of filing a pleading or paper with the wrong clerk. A sentence has been added to subsection (b) to make plain that, in these counties, a party complies with Rule 3(a) when the complaint is file marked by either the circuit clerk or the county clerk. This new provision accords with pre-Amendment 80 cases. Cf., Linder v. Howard, 296 Ark. 414, 415-18, 757 S.W.2d 549, 550-51 (1995) (the timely filing of a complaint in chancery court tolled the statute of limitations even through the case should have been brought in circuit court and was transferred there after the statute had run.). Similar clarifying language has been added to Rule of Civil Procedure 5(c)(1) (filing papers in general), Administrative Order Number 2 (clerk’s docket and filing), and Rule of Appellate Procedure-Civil 3(b) (filing a notice of appeal).
RULE 5. SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS
(a) Service: When Required. Except as otherwise provided in these rules, every pleading and every other paper, including all written communications with the court, filed subsequent to the complaint, except one which may be heard ex parte, shall be served upon each of the parties, unless the court orders otherwise because of numerous parties. No service need be made upon parties in default for failure to appear, except that pleadings asserting new or additional claims for relief against them shall be served in the manner provided for service of summons in Rule 4. Any pleading asserting new or additional claims for relief against any party who has appeared shall be served in accordance with subdivision (b) of this rule.
In an action begun by seizure of property, in which no person need be or is named as defendant, any service required to be made prior to the filing of an answer, claim or appearance shall be made upon the person having custody or possession of the property at the time of its seizure.
(b) Service: How Made.
(1) Whenever under this rule or any statute service is required or permitted to be made upon a party represented by an attorney, the
service shall be upon the attorney, except that service shall be upon the party if the court so orders or the action is one in which a final judgment has been entered and the court has continuing jurisdiction.
(2) Except as provided in paragraph (3) of this subdivision, service upon the attorney or upon the party shall be made by delivering a copy to him or by sending it to him by regular mail or commercial delivery company at his last known address or, if no address is known, by leaving it with the clerk of the court. Delivery of a copy for purposes of this paragraph means handing it to the attorney or to the party; by leaving it at his office with his clerk or other person in charge thereof; or, if the office is closed or the person has no office, leaving it at his dwelling house or usual place of abode with some person residing therein who is at least 14 years of age. Service by mail is presumptively complete upon mailing, and service by commercial delivery company is presumptively complete upon depositing the papers with the company. When service is permitted upon an attorney, such service may be effected by electronic transmission, provided that the attorney being served has facilities within his office to receive and reproduce verbatim electronic transmissions. Service by a commercial delivery company shall not be valid unless the company; (A) maintains permanent records of actual delivery, and (B) has been approved by the circuit court in which the action is filed or in the county where service is to be made.
(3) If a final judgment or decree has been entered and the court has continuing jurisdiction, service upon a party by mail or commercial delivery company shall comply with the requirements of Rule 4(d)(8)(A) and (C), respectively.
(1) All papers after the complaint required to be served upon a party or his attorney shall be filed with the clerk of the court either before service or within a reasonable time thereafter. The clerk shall note the date and time of filing thereon. However, proposed findings of fact, proposed conclusions of law, trial briefs, proposed jury instructions, and responses thereto may but need not be filed unless ordered by the court. Depositions, interrogatories, requests for production or inspection, and answers and responses thereto shall not be filed unless ordered by the court. When such discovery documents are relevant to a motion, they or the relevant portions thereof shall be submitted with
the motion and attached as an exhibit unless such documents have already been filed. The clerk shall not refuse to accept for filing any paper presented for that purpose solely because it is not presented in the proper form. In counties where the county clerk serves as the ex officio clerk of any division of the circuit court, the filing requirement for any pleading, paper, order, judgment, decree, or notice of appeal shall be satisfied when the document is filed with either the circuit clerk or the county clerk.
(2) If the clerk’s office has a facsimile machine, the clerk shall accept facsimile transmissions of any paper filed under this rule and may charge a fee of $1.00 per page. Any signature appearing on a facsimile copy shall be presumed authentic until proven otherwise. The clerk shall stamp or otherwise mark a facsimile copy as filed on the date and time that it is received on the clerk’s facsimile machine during the regular hours of the clerk’s office or, if received outside those hours, at the time the office opens on the next business day.
(d) Filing “With the Judge. The judge may permit papers or pleadings to be filed with him, in which event he shall note thereon the filing date and forthwith transmit them to the office of the clerk. If the judge permits filing by facsimile transmission, the provisions of subdivision (c)(2) of this rule shall apply.
(e) Proof of Service. Every pleading, paper or other document required by this rule to be served upon a party or his attorney, shall contain a statement by the party or attorney filing same that a copy thereof has been served in accordance with this rule, stating therein the date and method of service and, if by mail, the name and address of each person served.
Addition to Reporter’s Notes, 2005 Amendment: Rule 5(c)(1) has been amended. In some counties, the county clerk serves as the ex officio clerk of the probate division of the circuit court. Ark. Code Ann. § 14-14-502(b)(2)(B). Uncertainties have arisen in these circumstances about the effect of filing a pleading or paper with the wrong clerk. A sentence has been added to subsection (c)(1) to make plain that, in these counties, a party complies with Rule 5 when the document is file marked by either the circuit clerk or the county clerk. Similar clarifying language has been added to Rule of Civil Procedure 3(b) (filing a complaint), Administrative Order Number 2 (clerk’s docket and filing), and Rule of Appellate Procedure-Civil 3(b) (filing a notice of appeal).
RULE 30. DEPOSITIONS UPON ORAL EXAMINATION
(a) When Depositions May Be Taken. After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination. Leave of court, granted with or without notice, must be obtained only if the plaintiff seeks to take a deposition prior to the expiration of 30 days after service of the summons and complaint upon any defendant or service made under Rule 4(e), except that leave is not required (1) if a defendant has served a notice of taking deposition or otherwise sought discovery, or (2) if special notice is given as provided in subdivision (b)(2) of this rule. The attendance of a witness may be compelled by subpoena as provided in Rule 45, but a subpoena is not necessary if the witness is a party or a person designated under subdivision (b)(6) of this rule to testify on behalf of a party. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.
(b) Notice of Examination; General Requirements; Special Notice; Methodof Recording; Production of Documents and Things; Deposition ofOrganization.
(1) A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs. If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced as set forth in the subpoena shall be attached to or included in the notice.
(2) Leave of court is not required for the taking of a deposition by plaintiff under subdivision (a) if the notice (A) states that the person to be examined is about to go out of this state, or is about to go out of the United States, and will be unavailable for examination unless his deposition is taken before expiration of the 30 day period, and (B) sets forth facts to support the statement. The plaintiffs attorney shall sign the notice and his signature constitutes a certification by him that to the best of his knowledge, information and belief, the statement and supporting facts are true. The sanctions provided by Rule 11 are applicable to the certification.
(3) The party taking the deposition shall state in the notice the method by which the testimony shall be recorded. Unless the court orders otherwise, it may be recorded by sound, sound-and-visual, or stenographic means, and the party taking the deposition shall bear the cost of the recording. Any party may arrange for a transcription to be made from the recording of a deposition taken by nonstenographic means. With prior notice to the deponent and other parties, any party may designate another method to record the deponent’s testimony in addition to the method specified by the person taking the deposition. The additional record or transcript shall be made at that party’s expense unless the court otherwise orders.
(4) Unless otherwise agreed by the parties, a deposition shall be conducted before an officer appointed or designated under Rule 28 and shall begin with a statement on the record by the officer that includes: (A) the officer’s name and business address; (B) the date, time, and place of the deposition; (C) the name of the deponent; (D) the administration of the oath or affirmation to the deponent; and (E) an identification of all persons present. If the deposition is recorded other than stenographically, the officer shall repeat items (A) through (C) at the beginning of each unit of recorded tape or other recording medium. The appearance or demeanor of deponents or attorneys shall not be distorted through camera or sound-recording techniques. At the end of the deposition, the officer shall state on the record that the deposition is complete and shall set forth any stipulations made by counsel concerning the custody of the transcript or recording and the exhibits, or concerning other pertinent matters.
(5) The notice to a party deponent may be accompanied by a request made in compliance with Rule 34 for the production of documents and tangible things at the taking of the deposition. The procedure of Rule 34 shall apply to the request. The court may on motion, with or without notice, allow a shorter or longer time.
(6) A party may in his notice and in the subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf and may set forth, for each person designated, the matters on which he will testify. A subpoena shall advise a nonparty organization
of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization. This subdivision (b)(6) does not preclude taking a deposition by any other procedure authorized by these rules.
(7) The parties may stipulate in writing or the court may upon motion order that a deposition be taken by telephone or other remote electronic means. For purposes of these rules, a deposition by such means is taken at the place where the deponent is to answer questions.
(c) Examination and Cross-Examination; Record of Examination; Oath;Objections. Examination and cross-examination of witnesses may proceed as permitted at the trial under the provisions of the Arkansas Rules of Evidence, except Rule 103. The officer before whom the deposition is to be taken shall put the witness on oath or affirmation and shall personally, or by someone acting under his direction and in his presence, record the testimony of the witness. The testimony shall be taken stenographically or recorded by any other method authorized by subdivision (b)(3) of this rule. All objections made at the time of the examination to the qualifications of the officer taking the deposition, to the manner of taking it, to the evidence presented, to the conduct of any party, or to any other aspect of the proceedings, shall be noted by the officer upon the record of the deposition; but the examination shall proceed, with the testimony being taken subject to the objections. In lieu of participating in the oral examination, parties may serve written questions in a sealed envelope on either the party taking the deposition in which event he shall (1) transmit such questions to the office, or (2) directly upon the officer, who shall propound them to the witness and record the answers verbatim.
(d) Schedule and Duration; Motion to Terminate or Limit Examination.
(1) Any objection to evidence during a deposition shall must be stated concisely and in a non-argumentative and non-suggestive manner. Absentexceptional circumstances, a party or a lawyer for a party A person may instruct a deponent not to answer only when necessary to preserve areasonable, good faith claim of privilege, to enforce a limitation onevidence imposed directed by the court, or to present a motion under paragraph (3) (4).
(2) The court may by order limit the time permitted for the conduct of a deposition, but shall must allow additional time if needed for a fair examination of the deponent or if the deponent or another party person
impedes or delays the examination.
(3) If the court finds that an any impediment, delay, or other conduct has frustrated the fair examination of the deponent, it may impose upon the persons responsible an immediate appropriate sanction, including the reasonable costs and attorneys’ fees incurred by any parties as a result thereof.
(3) (4) At any time during a deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the court in the district in which the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in Rule 26(c). If the order made terminates the examination, it shall may be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall must be suspended for the time necessary to make a motion for an order. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.
(e) Review by Witness; Changes; Signing. If requested by the deponent or a party before completion of the deposition, the deponent shall have 30 days after being notified by the officer that the transcript or recording is available in which to review the transcript or recording and, if there are changes in form or substance, to sign a statement reciting such changes and the reasons given by the deponent for making them. The officer shall indicate in the certificate prescribed by subdivision (f)(1) whether any review was requested and, if so, shall append any changes made by the deponent during the period allowed.
(f) Certification by Officer; Exhibits; Copies; Notice of Filing.
(1) The officer shall certify that the witness was duly sworn by him and that the deposition is a true record of the testimony given by the witness. This certificate shall be in writing and accompany the record
of the deposition. The officer shall place the deposition in an envelope or package indorsed with the title of the action and marked “Deposition of (name of witness)” and, if ordered by the court in which the action is pending pursuant to Rule 5(c), promptly file it with the clerk of that court. Otherwise, the officer shall send it to the attorney who arranged for the transcript or recording, who shall store it under conditions that will protect it against loss, destruction, tampering, or deterioration. Documents and things produced for inspection during the examination of the witness shall, upon the request of a party, be marked for identification and annexed to and returned with the deposition, and may be inspected and copied by any party, except that (A) the person producing the materials may substitute copies to be marked for identification, if he affords to all parties fair opportunity to verify the copies by comparison with the originals, and (B) if the person producing the materials requests their return, the officer shall mark them, give each party an opportunity to inspect and copy them, and return them to the person producing them and the materials may then be used in the same manner as if annexed to and returned with the deposition. Any party may move for an order that the original be annexed to the deposition if it is to be used at trial.
(2) [U]nless otherwise ordered by the court or agreed by the parties, the officer shall retain, for the period established for transcripts of court proceedings in the retention schedule for official court reporters, stenographic notes of any deposition taken stenographically or a copy of the recording of any deposition taken by another method. Upon payment of reasonable charges therefor, the officer shall furnish a copy of the transcript or other recording of the deposition to any party or to the deponent; provided that it shall be the duty of the party causing the deposition to be taken to furnish one copy to any opposing party, or in the event there is more than one opposing party, a copy may be filed with the clerk for the use of all opposing parties, and the party filing the deposition shall give prompt notice of its filing to all other parties.
(g) Failure to Attend or to Serve Subpoena; Expenses.
(1) If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and another party attends in person or
by an attorney pursuant to the notice, the court may order the party giving the notice to pay such other party the reasonable expenses incurred by him and his attorney in attending, including reasonable attorney’s fees.
(2) If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena upon him and the witness because of such failure does not attend, and if another party attends in person or by an attorney because he expects the deposition of that witness to be taken, the court may order the party giving the notice to pay to such other party the reasonable expenses incurred by him and his attorney in attending, including reasonable attorney’s fees.
Addition to Reporter’s Notes, 2005 Amendments: Rule 30(d) has been amended and its subsections renumbered. For many years, Arkansas Rule 30 has been substantially similar to Federal Rule 30. The 2005 amendments to Rule 30(d) track changes made in 2000 to the Federal Rule and clarify the terms about behavior during depositions. The amendments confirm that the Rule’s limitations extend beyond parties to all persons present at a deposition. They also clarify when a privilege may be asserted against a question. Former subsection (2) has been divided into new subsections (2) and (3), and former (3) has been renumbered as (4). See generally, Advisory Committee Note, 2000 Amendments to FRCP 30(d). The Federal Rule’s presumptive limitation on the duration of any deposition to one seven-hour day has not been incorporated into the Arkansas Rule.
RULE 43. TAKING OF TESTIMONY
(a) Form. In all trials, the testimony of witnesses shall be takenorally in open court, unless otherwise provided by these rules or as otherwise provided by law. The court may, for good cause shown in compelling circumstances and upon appropriate safeguards, permit presentation of testimony in open court by contemporaneous transmission from a different location.
(b) Affirmation in Lieu of Oath. Whenever under these rules an oath is required to be taken, a solemn affirmation may be accepted in lieu thereof.
(c) Evidence on Motions. When a motion is based on facts not appearing of record, the court may hear the matter on affidavits presented by the respective parties, or the court may direct that the matter be heard wholly or partly on oral testimony or deposition.
(d) Interpreters. The court may appoint an interpreter of its own selection and may fix his reasonable compensation. The compensation shall be paid out of funds provided by law or by one or more of the parties as the court may direct, and may be taxed ultimately as costs, in the discretion of the court.
Addition to Reporter’s Notes, 2005 Amendments: Rule 43(a) has been amended in two ways. Continuing the substantial identity between the Arkansas Rule and FRCP 43, both of these changes mirror 1996 revisions of the Federal Rule. First, the requirement that testimony be taken “orally” has been eliminated. The amendment allows testimony through non-verbal means (i.e., writing, sign language, or computer) from a witness who is unable to speak. Second, a new provision has been added. That provision gives the circuit court discretion to allow testimony in open court from a different location by contemporaneous transmission. Two important requirements must inform that discretion: good cause shown in compelling circumstances and appropriate safeguards.
Because our legal tradition strongly prefers testimony in the fact-finder’s presence, the inconvenience to a witness of attending trial will not establish good cause or compelling circumstances. The amended Rule contemplates some unexpected event that makes attendance by the witness very difficult. Examples of such events include an accident, an illness, or the need for an emergency hearing. When the witness’s absence can be reasonably anticipated, a deposition should be the preferred method of securing the testimony. See generally, Advisory Committee’s Note, 1996 Amendment to FRCP 43(a).
The amended Rule also requires the circuit court to adopt appropriate safeguards when it allows testimony by contemporaneous transmission. Those safeguards should ensure accurate identification of the witness, protect against influence by persons present with the witness, and secure accurate transmission of the testimony.
RULE 50. MOTION FOR DIRECTED VERDICT AND FOR JUDGMENT NOTWITHSTANDINGVERDICT
(a) Motion for Directed Verdict or Dismissal When Made; Effect. A party may move for a directed verdict at the close of the evidence offered by an opponent and may offer evidence in the event that the motion is not granted, without having reserved the right to do so and to the extent as if the motion had not been made. A party may
also move for a directed verdict at the close of all of the evidence. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury. In nonjury cases a party may challenge the sufficiency of the evidence at the conclusion of the opponent’s evidence by moving either orally or in writing to dismiss the opposing party’s claim for relief The motion may also be made at the close of all of the evidence and in every instance the motion shall state the specific grounds therefor.
(b) Motion for Judgment Notwithstanding the Verdict.
(1) Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion.
(2) Not later than 10 days after entry of judgment, a party who has moved for a directed verdict may move to have the verdict and any judgment thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; or if a verdict was not returned, such party within 10 days after the jury has been discharged may move for judgment in accordance with his motion for directed verdict. A motion made before entry of judgment shall become effective and be treated as filed on the day after the judgment is entered. If the court neither grants nor denies the motion within 30 days of the date on which it is filed or treated as filed, it shall be deemed denied as of the 30th day.
(3) A motion for a new trial may be joined with a motion for judgment notwithstanding the verdict, or a new trial be prayed in the alternative. If a verdict was returned the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned, the court may direct the entry of judgment as if the requested verdict had been directed or may order a new trial.
(c) Same: Conditional Rulings on Grant of Motion.
(1) If the motion for judgment notwithstanding the verdict provided for in subdivision (b) of this rule is granted, the court shall also rule on
the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for the new trial. If the motion for a new trial is thus conditionally granted, the order thereon does not affect the finality of the judgment. In case the motion for a new trial has been conditionally granted and the judgment is reversed on appeal, the new trial shall proceed unless the appellate court has otherwise ordered. In case the motion for a new trial has been conditionally denied, the appellee on appeal may assert error in that denial; and if the judgment is reversed on appeal, subsequent proceedings shall be in accordance with the order of the appellate court.
(2) The party whose verdict has been set aside on motion for judgment notwithstanding the verdict may serve file a motion for a new trial pursuant to Rule 59 not later than 10 days after entry of the judgment notwithstanding the verdict.
(d) Same: Denial of Motion. If the motion for judgment notwithstanding the verdict is denied, the party who prevailed on that motion may, as appellee, assert grounds entitling him to a new trial in the event the appellate court concludes that the trial court erred in denying the motion for judgment notwithstanding the verdict. If the appellate court reverses the judgment, nothing in this rule precludes it from determining that the appellee is entitled to a new trial or from directing the trial court to determine whether a new trial shall be granted.
(e) Appellate Review. When there has been a trial by jury, the failure of a party to move for a directed verdict at the conclusion of all the evidence, because of insufficiency of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict. If for any reason the motion is not ruled upon, it is deemed denied for purposes of obtaining appellate review on the question of the sufficiency of the evidence.
Addition to Reporter’s Notes, 2005 Amendment: Rule 50(c)(2) has been clarified by substituting the word “file” for the word “serve.” Under Rule 59, a motion for a new trial must be made in writing and filed with the clerk. Rule of Civil Procedure 59(b)(c). This amendment removes the potentially confusing reference to service of the motion and harmonizes this part of Rule 50 with Rule 59.
B. ADMINISTRATIVE ORDER NUMBER 2 — DOCKETS AND OTHER RECORDS(a) Docket. The clerk shall keep a book known as a “civil docket,” designated by the prefix “CV”; a book known as a “probate docket,” designated by the prefix “PR”; a book known as a “domestic relations” docket,” designated by the prefix “DR”; a book known as a “criminal docket,” designated by the prefix “CR”; and a book known as a “juvenile docket,” designated by the prefix “JV”. Each action shall be entered in the appropriate docket book. Cases shall be assigned the letter prefix corresponding to that docket and a number in the order of filing. Beginning with the first case filed each year, cases shall be numbered consecutively in each docket category with the four digits of the current year, followed by a hyphen and the number assigned to the case, beginning with the number “1”. For example:
criminal CR2002-1 civil CV2002-1 probate PR2002-1 domestic relations DR2002-1 juvenile JV2002-1
All papers filed with the clerk, all process issued and returns thereon, all appearances, orders, verdicts and judgments shall be noted chronologically in the dockets and filed in the folio assigned to the action and shall be marked with its file number. These entries shall be brief, but shall show the nature of each paper filed or writ issued and the substance of each order or judgment of the court and of the returns showing execution of process. The entry of an order or judgment shall show the date the entry is made. Where there has been a demand for trial by jury it shall be shown on the docket along with the date upon which demand was made. In counties where the county clerk serves as the ex-officio clerk of any division of the circuit court, the filing requirement for any pleading, paper, order, judgment, decree, or notice of appeal shall be satisfied when the document is filed with either the circuit clerk or the county clerk.
(b) Judgments and Orders.
(1) The clerk shall keep a judgment record book in which shall be kept a correct copy of every final judgment or appealable order, or order affecting title to or lien upon real or personal property, and any other order which the court may direct to be kept.
(2) The clerk shall denote the date and time that a judgment, decree or order is filed by stamping or otherwise marking it with the date and time and the word “filed.” A judgment, decree or order is entered when so stamped or marked by the clerk, irrespective of when it is recorded in the judgment record book.
(3) If the clerk’s office has a facsimile machine, the clerk shall accept facsimile transmission of a judgment, decree or order filed in such manner at the direction of the court. The clerk shall stamp or otherwise mark a facsimile copy as filed on the date and time that it is received on the clerk’s facsimile machine during the regular hours of the clerk’s office or, if received outside those hours, at the time the office opens on the next business day. The date stamped on the facsimile copy shall control all appeal-related deadlines pursuant to Rule 4 of the Arkansas Rules of Appellate Procedure — Civil. The original judgment, decree or order shall be substituted for the facsimile copy within fourteen days of transmission.
(4) At any time that the clerk’s office is not open for business, and upon an express finding of extraordinary circumstances set forth in an order, any judge may make any order effective immediately by signing it, noting the time and date thereon, and marking or stamping it “filed in open court.” Any such order shall be filed with the clerk on the next day on which the clerk’s office is open, and this filing date shall control all appeal-related deadlines pursuant to Rule 4 of the Arkansas Rules of Appellate Procedure — Civil.
(c) Indices. Suitable indices of the civil, probate, domestic relations, criminal, and juvenile dockets and of every judgment or order referred to in Section (b) of this rule shall be kept by the clerk under the direction of the court.
(d) Other Books and Records. The clerk shall also keep such other books and records as may be required by law and as directed by the Supreme Court.
(e) Uniform Paper Size. All records prepared by the clerk shall be on 8 1/2″ x 11″ paper.
(f) Clerk Defined. When used herein, the term clerk refers to the clerks of the various circuit courts of the state; provided, that in the event probate matters are required by law to be filed in the office of county clerk, then the term clerk shall also include the county clerk for this limited purpose.
C. ARKANSAS RULES OF APPELLATE PROCEDURE — CIVILRULE 3. APPEAL — HOW TAKEN
(a) Mode of Obtaining Review. The mode of bringing a judgment or order to the Supreme Court or Court of Appeals for review shall be by appeal. An appeal from any final order also brings up for review any intermediate order involving the merits and necessarily affecting the judgment. An appeal from an order disposing of a post judgment motion under Rule 4 brings up for review the judgment and any intermediate order involving the merits and necessarily affecting the judgment, as well as the order appealed from.
(b) How Taken. An appeal shall be taken by filing a notice of appeal with the clerk of the circuit court that entered the judgment, decree, or order from which the appeal is taken. In counties where the county clerk serves as the ex officio clerk of any division of the circuit court, the fling requirement shall be satisfied when the notice of appeal is fled with either the circuit clerk or the county clerk. Failure of the appellant or cross-appellant to take any further steps to secure review of the judgment or decree appealed from shall not affect the validity of the appeal or cross-appeal, but shall be ground only for such action as the appellate court deems appropriate, which may include dismissal of the appeal or cross-appeal. If, however, the record on appeal has not been filed pursuant to Rule 5 of these rules, the circuit court in which the notice of appeal was filed may dismiss the appeal or cross-appeal upon petition of all parties to the appeal or cross-appeal accompanied by a joint stipulation that the appeal or cross-appeal is to be dismissed.
(c) Joint or Consolidated Appeals. If two or more persons are entitled to appeal and their interests are such as to make joinder practicable, they may file a joint notice of appeal or may join in the appeal after filing separate, timely notices of appeal and they may thereafter proceed on appeal as a single appellant. Appeals may be consolidated by order of the Supreme Court upon its own motion or upon motion of a party.
(d) Cross-Appeals. A cross-appeal may be taken by filing a notice of cross-appeal with the clerk of the circuit court that entered the judgment, decree or order being appealed.
(e) Content of Notice of Appeal or Cross-Appeal. A notice of appeal or cross-appeal shall specify the party or parties taking the
appeal; shall designate the judgment, decree, order or part thereof appealed from and shall designate the contents of the record on appeal. The notice shall also contain a statement that the appellant has ordered the transcript, or specific portions thereof, if oral testimony or proceedings are designated, and has made any financial arrangements required by the court reporter pursuant to Ark. Code Ann. § 16-13-510(c). The notice shall also state whether the appeal is to the Court of Appeals or to the Supreme Court; and if to the Supreme Court, the appellant shall designate the applicable subdivision of Supreme Court Rule 1-2(a) which gives the Supreme Court jurisdiction. This declaration shall be for the purpose of placing the case with one court or the other for preliminary administration. It shall not preclude the appellant from filing his or her Brief pursuant to Supreme Court Rules 4-3 and 4-4 in the alternative court if that is later determined by the appellant to be appropriate.
(f) Service of Notice of Appeal or Cross-Appeal. A copy of the notice of appeal or cross-appeal shall be served by counsel for appellant or cross-appellant upon counsel for all other parties by any form of mail which requires a signed receipt. If a party is not represented by counsel, notice shall be mailed to such party at his last known address. Failure to serve notice shall not affect the validity of the appeal.
(g) Abbreviated Record; Statement of Points. If the appellant does not designate for inclusion the complete record and all the proceedings and evidence in the action, he shall serve with his notice of appeal and designation a concise statement of the points on which he intends to rely on the appeal.
Addition to Reporter’s Notes, 2005 Amendment: Rule 3(b) has been amended. In some counties, the county clerk serves as the ex officio clerk of the probate division of the circuit court. Ark. Code Ann. § 14-14-502(b)(2)(B). Uncertainties have arisen in these circumstances about the effect of filing a notice of appeal with the wrong clerk. A sentence has been added to subsection (b) to make plain that, in these counties, a party complies with Rule 3 when the notice of appeal is file marked by either the circuit clerk or the county clerk. Similar clarifying language has been added to Rule of Civil Procedure 3(b) (filing a complaint), Rule of Civil Procedure 5(c)(1) (filing papers in general), and Administrative Order Number 2 (clerk’s docket and filing).
RULE 5. RECORD — TIME FOR FILING
(a) When Filed. The record on appeal shall be filed with the clerk of the Arkansas Supreme Court and docketed therein within 90 days from the filing of the first notice of appeal, unless the time is extended by order of the circuit court as hereinafter provided. When, however, an appeal is taken from an interlocutory order under Rule 2(a)(6) or (7), the record must be filed with the clerk of the Supreme Court within thirty (30) days from the entry of such order.
(b) Extension of Time.
(1) If any party has designated stenographically reported material for inclusion in the record on appeal, the circuit court, by order entered before expiration of the period prescribed by subdivision (a) of this rule or a prior extension order, may extend the time for filing the record only if it makes the following findings:
(A) The appellant has filed a motion explaining the reasons for the requested extension and served the motion on all counsel of record;
(B) The time to file the record on appeal has not yet expired;
(C) All parties have had the opportunity to be heard on the motion, either at a hearing or by responding in writing;
(D) The appellant, in compliance with Rule 6(b), has timely ordered the stenographically reported material from the court reporter and made any financial arrangements required for its preparation; and
(E) An extension of time is necessary for the court reporter to include the stenographically reported material in the record on appeal.
(2) In no event shall the time be extended more than seven (7) months from the date of the entry of the judgment or order, or from the date on which a timely postjudgment motion is deemed to have been disposed of under Rule 4(b)(1), whichever is later.
(3)If the appellant is unable to obtain entry of an order of extensionEven if the appellant has not exhausted his or her right to seek extensions of the record due date from the circuit court, before expiration of the period prescribed by subdivision (a) of this rule or a prior extension order, the appellant may file with the clerk of the Supreme Court a petition for writ of certiorari pursuant to Rule 3-5 of the Rules of the Supreme Court and Court of Appeals.
(c) Partial Record. Prior to the time the complete record on appeal is filed with the clerk of the Arkansas Supreme Court as provided in this rule, any party may docket the appeal to make a motion for dismissal or for any other intermediate order by filing a partial record with the clerk. At the request of the moving party, the clerk of the circuit court that entered the judgment, decree, or order from which the appeal is taken shall certify the portion of the record designated by that party as being a true and correct copy. It shall be the responsibility of the moving party to transmit the certified partial record to the clerk of the Arkansas Supreme Court.
Addition to Reporter’s Notes, 2005 Amendment: Rule 5(b)(3) has been revised and clarified. This amendment overrules the Supreme Court’s decision in Coggins v. Coggins, 353 Ark. 431, 108 S.W.3d 588 (2003) (per curiam). In that case, the Court divided four to three in interpreting the 2003 Amendment to Rule 5(b)(3). The Coggins majority dismissed the appeal without reaching the merits. It held that an appellant may not file a partial record and petition for certiorari unless one of two requirements was satisfied: the appellant must either have exhausted the seven months of record extensions available from the circuit court or demonstrate an inability to obtain an extension from the circuit court for some other reason. Coggins, 353 Ark. at 435, 108, S.W.3d at 590-91.
This amendment clarifies that Rule 5(b)(3) establishes no exhaustion or inability requirement on petitions for certiorari to complete a partial appeal record. Under the long-standing practice of Arkansas’s appellate courts, no such requirements existed. Arkansas law obligates lawyers to file an appeal record on time to establish appellate jurisdiction. E.g., Seay v. Wildlife Farms, Inc., 342 Ark. 503, 509, 29 S.W.3d 711, 715 (2000). Missing that deadline in a civil case means that the parties will not receive a decision on the merits. Ibid. To promote decisions on the merits, our Rules should allow lawyers to file a partial record, secure appellate jurisdiction, and then complete the record promptly by certiorari. This amendment reinstates this salutary practice.
RULE 6. RECORD ON APPEAL
(a) Composition of Record. The record shall be compiled in accordance with the rules of the Arkansas Supreme Court and Court of Appeals.
(b) Transcript of Proceedings. On or before filing the notice of appeal, the appellant shall order from the reporter a transcript of such parts of the proceedings as he has designated in the notice of appeal and make any financial arrangements required by the court reporter pursuant to Ark. Code Ann. § 16-13-510(c). If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or contrary thereto, he shall include in the record a transcript of all evidence relevant to such finding or conclusion. If the appellant has designated less than the entire record or proceeding, the appellee, if he deems a transcript of other parts of the proceedings to be necessary, shall, within ten (10) days after the filing of the notice of appeal, file and serve upon the appellant (and upon the court reporter if additional testimony is designated) a designation of the additional parts to be included. The appellant shall then direct the reporter to include in the transcript all testimony designated by appellee.
(c) Record to be Abbreviated. All matters not essential to the decision of the questions presented by the appeal shall be omitted. Formal parts of all exhibits and more than one copy of any document shall be excluded. Documents shall be abridged by omitting all irrelevant and formal portions thereof. For any infraction of this rule or for the unnecessary substitution by one party of evidence in question and answer form for a fair narrative statement proposed by another, the appellate court may withhold or impose costs as the circumstances of the case and discouragement of like conduct in the future may require; and costs may be imposed upon offending attorneys or parties. Where parties in good faith abbreviate the record by agreement or without objection from opposing parties, the appellate court shall not affirm or dismiss the appeal on account of any deficiency in the record without notice to appellant and reasonable opportunity to supply the deficiency. Where the record has been abbreviated by agreement or without objection from opposing parties, no presumption shall be indulged that the findings of the circuit court are supported by any matter omitted from the record.
(d) Statement of the Evidence or Proceedings When No Report was Made orthe Transcript is Unavailable. If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best means available, including his recollection. The statement shall be served on the appellee, who may serve objections or proposed amendments thereto within ten (10)
days after service upon him. Thereupon the statement and any objections or proposed amendments shall be submitted to the circuit court for settlement and approval and as settled and approved shall be included in the record on appeal by the clerk of the circuit court that entered the judgment, decree, or order from which the appeal is taken.
(e) Correction or Modification of the Record. If any difference arises as to whether the record truly discloses what occurred in the circuit court, the difference shall be submitted by motion to and settled by that court and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the circuit courteither before or after the record is transmitted to the appellate court, or the appellate court on proper suggestion, motion, or on its own initiative, may direct that the omission or misstatement shall be corrected, and if necessary, that a supplemental record be certified and transmitted. All other questions as to form and content of the record shall be presented to the appellate court. No correction or modification of the record shall be made without prior notice to all parties.
Addition to Reporter’s Notes, 2005 Amendments: Rule 6(e) has been amended in three ways: it changes Arkansas law about which court — circuit or appellate — has jurisdiction to correct or modify the record in a case on appeal; it requires notice to all parties before any court alters the record; and it clarifies that the parties should proceed by motion when seeking to alter the record.
Amended Rule 6(e) preserves jurisdiction in the circuit court to correct or modify the record after a party files a notice of appeal and before the party files the record with the clerk of the Supreme Court and Court of Appeals. The 2005 amendment eliminates the circuit court’s jurisdiction to alter the record after it has been filed. From that point forward, the appellate court has jurisdiction to correct or modify the record or remand to the circuit court for it to consider doing so.
This amendment overrules in part both the Supreme Court’s recent decision in Gore v. Heartland Community Bank, No. 03-791, 2004 WL 743802 (8 April 2004), and Davie v. Smoot, 202 Ark. 294, 150 S.W.2d 50 (1941). Applying former Rule 6, Gore allowed a circuit court to modify the record while the case was pending in the Supreme Court. Davie is a pre-Rules case, which holds that trial courts have continuing jurisdiction to correct records even while a case is on appeal. As noted by the concurring opinion in Gore, the former
version of Rule 6 confused parties and created an untenable situation: simultaneous jurisdiction in the appellate court and the circuit court to alter the record on appeal. The better practice is to have a bright jurisdictional line, which the amended Rule provides. Moreover, amended Rule 6 preserves the appellate courts’ often-used authority to remand the case to the circuit court to settle the record.
The last sentence of the amended Rule is new. As both opinions in Gore pointed out, the former version of Rule 6(e) contained no requirement of notice to the parties before any court modified the record. The better practice is for all parties to have the opportunity to be heard on proposed changes. The amended Rule requires notice of all proposed changes to the record.
Finally, amended Rule 6(e) clarifies that parties should seek modifications and corrections of the record by motion. That requirement will help provide notice and achieve the Rule’s purpose: to make the record on appeal accurately reflect what happened in the circuit court.
D. RULES OF THE ARKANSAS SUPREME COURT AND THE ARKANSAS COURT OF APPEALSRULE 4-2. CONTENTS OF BRIEFS
(a) Contents. The contents of the brief shall be in the following order:
(1) Table of contents. Each brief must include a table of contents. It should reference the page number for the beginning of each of the major sections identified in Rule 4-2(a)(2)-(8). The table of contents also should include references to the abstract listing the name of each witness with the page number at which the testimony begins and references to the Addendum listing each document with the page number at which it appears in the Addendum.
(2) Informational statement and jurisdictional statement. The Informational Statement and Jurisdictional Statement required by Supreme Court Rule 1-2(c).
(3) Points on appeal. The appellant shall list and separately number, concisely and without argument, the points relied upon for a reversal of the judgment or decree. The appellee will follow the same
sequence and arrangement of points as contained in the appellant’s brief and may then state additional points. Either party may insert under any point not more than two citations which either considers to be the principal authorities on that point.
(4) Table of authorities. The table of authorities shall be an alphabetical listing of authorities with a designation of the page number of the brief on which the authority appears. The authorities shall be grouped as follows:
(C) Books and treatises
(5) Abstract. The appellant’s abstract or abridgment of the transcript should consist of an impartial condensation, without comment or emphasis, of only such material parts of the 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. Depositions shall be abstracted in a similar fashion. For ease of abstracting, the court reporter shall provide the attorney, at cost, a copy of the transcript in an electronic form, e.g., a computer diskette, so that material may be electronically copied and placed in the abstract. (If the court reporter does not have the requisite equipment, then this requirement shall not apply.) Pleadings and documentary evidence should not be abstracted. On a second or subsequent appeal, the abstract shall include a condensation of all pertinent portions of the transcript filed on any prior appeal. Not more than one page of the transcript shall in any instance be abstracted without a page reference to the transcript. In the abstracting of testimony, the first person (i.e., “I”) rather than the third person (i.e., “He, She”) shall be used. The Clerk will refuse to accept a brief if the testimony is not abstracted in the first person or if the abstract does not contain the required references to the record. Whenever a map, plat, photograph, or other similar exhibit must be examined for a clear understanding of the testimony, the appellant shall reproduce the exhibit by photography or other process and include it in the Addendum with a reference in the abstract to the page in the Addendum where the exhibit appears unless this requirement is shown to be impracticable and is waived by the Court upon motion.
(6) Statement of the Case. The appellant’s brief shall contain a concise statement of the case without argument. This statement shall be denoted as the “Statement of the Case,” shall ordinarily not exceed two pages in length, and shall not exceed five pages without leave of the Court. The pages of the statement of the case shall appear immediately preceding the argument and are not counted against the page limits of the Argument set out in Rules 4-1 (b) and 4-3 (e). The statement of the case should be sufficient to enable the Court to understand the nature of the case, the general fact situation, the action taken by the trial court, and must include page references to the abstract and Addendum. The Clerk will refuse to accept a brief if the required references to the abstract and Addendum are not included. The appellee’s brief need not contain a statement of the case unless the appellant’s statement is deemed to be controverted or insufficient.
(7) Argument. Arguments shall be presented under subheadings numbered to correspond to the outline of points to be relied upon. For each issue, the applicable standard of review shall be concisely stated at the beginning of the discussion of the issue. Citations of decisions of the Court which are officially reported must be from the official reports. All citations of decisions of any court must state the style of the case and the book and page in which the case is found. If the case is also reported by one or more unofficial publishers, these should also be cited, if possible. Reference in the argument portion of the parties’ briefs to material found in the abstract and Addendum shall be followed by a reference to the page number of the abstract or Addendum at which such material may be found. The number of pages for argument shall comply with Rule 4-1(b).
(8) Addendum. Following the signature and certificate of service, the appellant’s brief shall contain an Addendum which shall include true and legible photocopies of the order, judgment, decree, ruling, letter opinion, or Workers’ Compensation Commission opinion from which the appeal is taken, along with any other relevant pleadings, documents, or exhibits essential to an understanding of the case and the Court’s jurisdiction on appeal. In the case of lengthy pleadings or documents, only relevant excerpts in context need to be included in the Addendum. Depending upon the issues on appeal, the Addendum may include such materials as the following: a contract, will, lease, or any other document; proffers of evidence; jury instructions or proffered jury instructions; the court’s findings and conclusions of law; orders; administrative law judge’s opinion; discovery
documents; requests for admissions; and relevant pleadings or documents essential to an understanding of the Court’s jurisdiction on appeal such as the notice of appeal. The Addendum shall include an index of its contents and shall also be clear where any item appearing in the Addendum can be found in the record. The appellee may prepare a supplemental Addendum if material on which the appellee relies is not in the appellant’s Addendum. Pursuant to subsection (c) below, the Clerk will refuse to accept an appellant’s brief if its Addendum does not contain the required order, judgment, decree, ruling, letter opinion, or administrative law judge’s opinion. The appellee’s brief shall only contain an Addendum to include an item which the appellant’s Addendum fails to include.
(9) Cover for briefs. On the cover of every brief there should appear the number and style of the case in the Supreme Court or Court of Appeals, a designation of the court from which the appeal is taken, and the name of its presiding judge, the title of the brief (e.g., “Abstract, Addendum, and Brief for Appellant”), and the name or names of individual counsel who prepared the brief, including their addresses and telephone numbers.
(b) Insufficiency of appellant’s abstract or Addendum. Motions to dismiss the appeal for insufficiency of the appellant’s abstract or Addendum will not be recognized. Deficiencies in the appellant’s abstract or Addendum will ordinarily come to the Court’s attention and be handled in one of three ways as follows:
(1) If the appellee considers the appellant’s abstract or Addendum to be defective, the appellee’s brief should call the deficiencies to the Court’s attention and may, at the appellee’s option, contain a supple-mental abstract or Addendum. When the case is considered on its merits, the Court may upon motion impose or withhold costs, including attorney fees, to compensate either party for the other party’s noncompliance with this Rule. In seeking an award of costs under this paragraph, counsel must submit a statement showing the cost of the supplemental abstract or Addendum and a certificate of counsel showing the amount of time that was devoted to the preparation of the supplemental abstract or Addendum.
(2) If the case has not yet been submitted to the Court for decision, an appellant may file a motion to supplement the abstract or Addendum and file a substituted brief. Subject to the Court’s discretion, the Court will routinely grant such a motion and give the appellant fifteen
days within which to file the substituted abstract, Addendum, and brief. If the appellee has already filed its brief, upon the filing of appellant’s substituted abstract, Addendum, and brief, the appellee will be afforded an opportunity to revise or supplement its brief, at the expense of the appellant or the appellant’s counsel, as the Court may, upon motion, direct.
(3) Whether or not the appellee has called attention to deficiencies in the appellant’s abstract or Addendum, the Court may address the question at any time. If the Court finds the abstract or Addendum to be deficient such that the Court cannot reach the merits of the case, or such as to cause an unreasonable or unjust delay in the disposition of the appeal, the Court will notify the appellant that he or she will be afforded an opportunity to cure any deficiencies, and has fifteen days within which to file a substituted abstract, Addendum, and brief, at his or her own expense, to conform to Rule 4-2 (a)(5) and (8). Mere modifications of the original brief by the appellant, as by interlineation, will not be accepted by the Clerk. Upon the filing of such a substituted brief by the appellant, the appellee will be afforded an opportunity to revise or supplement the brief, at the expense of the appellant or the appellant’s counsel, as the Court may direct. If after the opportunity to cure the deficiencies, the appellant fails to file a complying abstract, Addendum and brief within the prescribed time, the judgment or decree may be affirmed for noncompliance with the Rule.
(c) Non-compliance. Briefs not in compliance with the format required by this Rule shall not be accepted for filing by the Clerk. When a party submits a brief on time that substantially complies with these Rules, the Clerk shall mark the brief “tendered”, grant the party a seven-day compliance extension, and return the brief to the party for correction. If the party resubmits a compliant brief within seven (7) calendar days, then the Clerk shall accept that brief for filing on the date it is received.
RULE 4-3. BRIEFS IN CRIMINAL CASES
(a) Briefs in chief — When the state is the appellee. In criminal cases in which the State is the appellee and in which appellant is not indigent, the appellant shall have 40 days from the date the transcript is lodged to file 17 copies of the brief with the Clerk. Upon the filing of the brief, the appellant shall submit proof of service of two additional copies of the brief upon the Attorney General and one copy upon the circuit court.
(b) Briefs in chief — When state is the appellant. In criminal cases in which the State is the appellant, the procedure shall be the same as in subsection (a) except the State shall file only 17 copies of the brief with the Clerk and furnish evidence of service upon opposing counsel and the circuit court.
(c) Appellee’s brief. The appellee shall have 30 days from the filing of the appellant’s brief to file 17 copies of the brief with the Clerk and such further abstract and Addendum as may be necessary to a fair determination of the case. Proof of service upon opposing counsel and the circuit court is required.
(d) Reply brief. The appellant shall have 15 days from the date that the appellee’s brief is filed to file 17 copies of the reply brief and furnish evidence of service upon the opposing counsel and the circuit court.
(e) Page limits on briefs. The argument portion of the appellant’s and the appellee’s briefs shall not exceed 25 double-spaced typewritten pages including the conclusion, if any, with a 15 typewritten page limit upon the reply brief, except that if either limitation is shown to be too stringent in a particular case, and there has been a good faith effort to comply with the page limits, it may be waived on motion.
(f) Misdemeanor cases subject to dismissal. In misdemeanor cases, failure of the appellant to file a brief within the time limit renders the case subject to dismissal as in civil cases pursuant to Rule 4-5.
(g) Appellant’s duty to abstract record. In all felony cases it is the duty of the appellant, whether represented by retained counsel, appointed counsel or a public defender, or acting pro se, to abstract such parts of the transcript and to include in the Addendum such parts of the record, but only such parts, as are material to the points to be argued in the appellant’s brief.
(h) Court’s review of errors in death or life imprisonment cases. When the sentence is death or life imprisonment, the Court must review all errors prejudicial to the appellant in accordance with Ark. Code Ann. Sec. 16-91-113(a). To make that review possible, the appellant must abstract, or include in the Addendum, as appropriate, all rulings adverse to him or her made by the circuit court on all objections, motions and requests made by either party, together with such parts of the record as are needed for an understanding of
each adverse ruling. The Attorney General will make certain and certify that all of those objections have been abstracted, or included in the Addendum, and will brief all points argued by the appellant and any other points that appear to involve prejudicial error.
(i) Preparation of briefs for indigent appellants. When an indigent appellant is represented by appointed counsel or a public defender, the attorney may have the briefs reproduced by submitting one unbound double-spaced typewritten manuscript to the Attorney General and one to the Clerk not later than the due date of the brief. In such instances, the time for the filing of the Attorney General’s brief is extended by five days.
(j) Withdrawal of counsel.
(1) Any motion by counsel for a defendant in a criminal or a juvenile delinquency case for permission to withdraw made after notice of appeal has been given shall be addressed to the Court, shall contain a statement of the reason for the request and shall be served upon the defendant personally by first-class mail. A request to withdraw on the ground that the appeal is wholly without merit shall be accompanied by a brief including an abstract and Addendum. The brief shall contain an argument section that consists of a list of all rulings adverse to the defendant made by the circuit court on all objections, motions and requests made by either party with an explanation as to why each adverse ruling is not a meritorious ground for reversal. The abstract and Addendum of the brief shall contain, in addition to the other material parts of the record, all rulings adverse to the defendant made by the circuit court.
(2) The Clerk shall furnish the appellant with a copy of the appellant’s counsel’s brief, and advise the appellant that he or she has 30 days within which to raise any points that he or she chooses, and that this may be done in typewritten or hand printed form and accompanied by an affidavit that no paid assistance from any inmate of the Department of Correction or of any other place of incarceration has been received in the preparation of the response.
(3) The Clerk shall serve all such responses by an appellant on the Attorney General, who shall file a brief for the State, pursuant to sections (e) and (I) of this Rule, within 30 days after such service and serve a copy on the appellant, as well as on the appellant’s counsel.
(4) After a reply brief has been filed, or after the time for filing such a brief has expired, the motion for withdrawal shall be submitted to the Court as other motions are submitted. If, upon consideration of the motion, it shall appear to the Court that the judgment of the circuit court should be affirmed or reversed, the Court may take such action on its own motion, without any supporting opinion.
(k) Continuances and extensions of time.
(1) The Clerk or a deputy clerk may extend the due date of any brief by seven (7) calendar days upon oral request. If such an extension is granted, no further extension shall be entertained except granted except by the Clerk for compliance with these Rules as provided in Rule 4-2 (c) or by the Court upon a written motion showing good cause.
(2) Stipulations of counsel for continuances will not be recognized. Any request for an extension of time (except in (k)(1)) for the filing of any brief must be made by a written motion, addressed to the Court, setting forth the facts supporting the request. Eight copies of the motion are required. Counsel who delay the filing of such a motion until it is too late for the brief to be filed if the motion is denied, do so at their own risk.
RULE 4-4. FILING AND SERVICE OF BRIEFS IN CIVIL CASES
(a) Appellant’s brief. In all civil cases the appellant shall, within 40 days of lodging the record, file 17 copies of the appellant’s brief with the Clerk and furnish evidence of service upon opposing counsel and the circuit court. Each copy of the appellant’s brief shall contain every item required by Rule 4-2. Unemployment compensation cases appealed from the Arkansas Board of Review may be submitted to the Court of Appeals for decision as soon as the transcript is filed, unless the petition for review shows it is filed by an attorney, or notice of intent to file a brief for the appellant is filed with the Clerk prior to the filing of the transcript.
(b) Appellee’s brief — Cross-appellant’s brief. The appellee shall file 17 copies of the appellee’s brief, and of any further abstract or Addendum thought necessary, within 30 days after the appellant’s brief is filed, and furnish evidence of service upon opposing counsel and the circuit court. If the appellee’s brief has a supplemental abstract or Addendum, it shall be compiled in accordance with Rule 4-2 and
included in or with each copy of the brief This Rule shall apply to cross-appellants. If the cross-appellant is also the appellee, the two separate arguments may be contained in one brief, but each argument is limited to 25 pages.
(c) Reply brief — Cross-appellant’s reply brief. The appellant may file 17 copies of a reply brief within 15 days after the appellee’s brief is filed and shall furnish evidence of service upon opposing counsel and the circuit court. This Rule shall apply to the cross-appellant’s reply brief except it must be filed within 15 days after the cross-appellee’s brief is filed.
(d) Evidence of service. Briefs tendered to the Clerk will not be filed unless evidence of service upon opposing counsel and the circuit court has been furnished to the Clerk. Such evidence may be in the form of a letter signed by counsel, naming the attorney or attorneys and the circuit court to whom copies of the brief have been mailed or delivered.
(e) Submission. The case shall be subject to call on the next Thursday (in the Supreme Court) or Wednesday (in the Court of Appeals) after the expiration of the time allowed for filing the reply brief of the appellant or the cross-appellant.
(f) Continuances and extensions of time.
(1) The Clerk or a deputy clerk may extend the due date of any brief by seven (7) calendar days upon oral request. If such an extension is granted, no further extension shall be entertained except granted except by the Clerk for compliance with these Rules as provided in Rule 4-2(c) or by the Court upon a written motion showing good cause.
(2) Stipulations of counsel for continuances will not be recognized. Any request for an extension of time (except in (f)(1)) for the filing of any brief must be made by a written motion, addressed to the Court, setting forth the facts supporting the request. Eight copies of the motion must be filed for Supreme Court cases and fourteen copies of the motion must be filed for Court of Appeals cases. Counsel who delay the filing of such a motion until it is too late for the brief to be filed if the motion is denied, do so at their own risk.