Opinion
Delivered May 15, 1989
In our per curiam order of December 19, 1988, we suspended our earlier order on the subject of doing away with the practice of abstracting the record for appeal and substituting a practice by which the parties would submit an appendix or appendices. We took that action because we wish to examine the possibility of changing from the use of legal size paper to letter size paper in all the courts, and we became aware that unless the changes occurred at the same time, appendices would likely be composed of paper of a different size from that of any brief we might permit to be filed, and that appendices might be composed of documents of varying paper sizes. The accompanying possible handling and storage problems made it seem a good idea to put off the changes until we had sought the recommendation of our Committee on Rules of Pleading, Practice, and Procedure (Civil).
We have now received a recommendation from the committee along with suggestions as to the rules which should be revised to accomplish the change in paper size.
In addition to the committee's recommendations, we have studied those submitted by lawyers, judges, law firms, and lawyers' associations submitted in response to our earlier request for comments on the basic rules we proposed for the purpose of moving to the system of appendices rather than abstracts. Many of those suggestions have been implemented in the amendments we publish today.
As we noted in our per curiam order of October 17, 1988, on this subject, we wish to have a trial period. These amendments will become effective this date, however, any case in which the appellant's brief is submitted or becomes due between now and December 31, 1989, may be presented in accordance with the rules in effect up until today. That will give this court sufficient time to observe the new practice. If we choose to retain the new system, we will be able to make that decision prior to the publication of the 1989 revision of the Rules Book which accompanies the Arkansas Code Annotated. The rules requiring appendices rather that abstracts may then be made permanent.
During the trial period an appellant will be in the position of choosing the manner in which the briefs will be presented. If the appellant chooses to present a brief with an appendix rather than an abstract, then the appellee will be required to proceed in accordance with the new rules. If the appellant chooses to work under the abstract system, the appellee will do so also.
While we may well decide, depending on the results of the trial period, to retain the abstracting practice, we will make permanent the changes with respect to paper size and doing away with printed briefs. Judges, clerks, lawyers, court reporters and others thus will have until January 1, 1990, to prepare to present all legal documents on 8 1/2" by 11" paper.
The purposes of these changes are to decrease the cost of appellate litigation, increase the ease and accuracy of the evaluation of cases at the appellate level, and provide uniformity as well as compatibility with the age of the word processor in the case of the paper size. We acknowledge and appreciate the comments we received from members of the bench and bar, and we count on continued cooperation as we evaluate the appendix system.
Amendment to the Arkansas Rules of Civil Procedure
The Arkansas Rules of Civil Procedure are amended by adding the following Rule 84:
Rule 84.
UNIFORM PAPER SIZE
All pleadings, motions, interrogatories, requests for admissions, responses to discovery requests, depositions, briefs, findings, judgments, orders, and other papers required or authorized by these rules shall be on 8 1/2" x 11" paper.
Amendment to Arkansas Supreme Court Administrative Orders
Administrative Order No. 2. is amended by redesignating the present subsection (e) as (f) and inserting subsection (e) to read as follows: (e) Uniform Paper Size. — All records prepared by the clerk shall be on 8 1/2" by 11" paper.
Amendment to the Arkansas Rules of Appellate Procedure
The Arkansas Rules of Appellate Procedure are amended by adding the following as Rule 10:
Rule 10.
UNIFORM PAPER SIZE
All notices of appeal, motions, orders, records, transcripts, and other papers required or authorized by these rules shall be on 8 1/2" x 11" paper.
Rules of the Arkansas Supreme Court and Court of Appeals
The Rules of the Arkansas Supreme Court and Court of Appeals are amended as follows:
Rule 4 (c)
Rule 4 (c) is amended to change the statutory reference to: Ark. Code Ann. § 16-67-321 (1987).
Rule 7 (a), (b), and (g)
The title of Rule 7 is amended to read: Briefs; Filing and Service.
The first sentence of subsection (a) is amended to read: 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 of the supreme court and court of appeals and furnish evidence of service upon opposing counsel. Each copy of the appellant's brief shall contain every item required by Rule 9 of these rules.
Subsection (b) is amended to read: Appellee's Brief. — The appellee shall file 17 copies of the appellee's brief within 30 days after the appellant's brief is filed and furnish evidence of service upon opposing counsel. If the appellee's brief has an appendix, it shall be compiled in accordance with Rule 9 of these rules and included in or with each copy of the brief.
Subsection (g) is amended to read: Briefs Furnished to Trial Judge. — It shall be the duty of the appellant and of the appellee, upon filing any brief in this court, to furnish a copy thereof to the trial judge who heard the case.
Rule 8, Title (a), (b), and (c)
The title of Rule 8 is amended to read: Briefs; Length, Size, Typing, and Duplicating.
Subsection (a) and the opening clause preceding it are deleted.
Subsection (b) is redesignated as subsection (a). Its title and first sentence are amended to read: Briefs — Size — Paper — Type. — All briefs shall be typewritten or produced with word processing equipment. Briefs shall be of uniform size on opaque, unglazed 8 1/2 x 11" white paper and firmly bound on the left hand margin by staples or other binding devices.
The seventh sentence of subsection (a) [formerly (b)] is amended to read: Briefs not in compliance with this rule shall not be accepted by the clerk.
Subsection (c) is redesignated as subsection (b). The title and first two sentences are amended to read: Length of Argument. Unless leave of court is first obtained, the argument portion of the briefs shall not exceed 25 double-spaced pages. The Appellant's reply brief shall not exceed 15 double-spaced pages.
Rule 9, Title, (a), (b), (d), (e), (f) and (g)
The title of Rule 9 is amended to read: Briefs; Contents.
Subsection (a) is amended to read: Order of Contents. — The contents of the brief shall be presented in the following order:
(1) Table of Contents
(2) Table of Authorities Cited
(3) Jurisdictional Statement (if necessary)
(4) Preliminary Statement
(5) Points of Appeal
(6) Statement of the Case
(7) Argument
(8) Conclusion
(9) Appendix
Subsection (b) is amended to read: Contents Descriptions. —
(1) Table of Contents: The brief shall have a table of contents, including a table of contents of the appendix. If the appendix is bound separately it shall have a separate table of contents at its beginning, and the appendix table of contents need not be included in the brief.
(2) Table of Authorities Cited: This table shall include a list of the cases, statutes, and other authorities, with citations.
(3) Jurisdictional Statement: In cases appealed to the supreme court, there shall be a jurisdictional statement in compliance with Rule 29 (2) of these rules. The appellee's brief need contain no jurisdictional statement unless that of the appellant is contested.
(4) Preliminary Statement: The preliminary statement is a short (no more than three pages) summary of the facts of the case, the issues, and the disposition of the case in the trial court.
(5) Points of Appeal: The points of appeal shall be concise, numbered statements of the errors alleged to have been committed by the trial court. The points shall be presented in the order they are to be discussed in the argument portion of the brief. The appellee's brief shall contain responsive points numbered in the same order as the appellant's points to which each responds.
(6) Statement of the Case: The appellant's brief shall contain a concise statement of the case, without argument. This statement should provide the court an understanding of the nature of the case. It should summarize the evidence presented at the trial or hearing and should discuss the evidence in detail only when necessary to an understanding of the issue or issues being presented to the appellate court. The appellee's brief need not contain a statement of the case unless the appellant's statement is controverted or deemed insufficient. References to the testimony of named witnesses shall be made to the page of the designated record and the page of the appendix at which the testimony appears.
(7) Argument: The argument portion of the brief shall be composed of legal arguments on the points of appeal stated.
(8) Conclusion: Each brief shall contain a conclusion, labeled as such, in which the relief sought or opposed shall be stated, e.g., reversal and remand, reversal and dismissal, affirmance, and suggested alternatives, if any.
(9) The appellant's brief shall contain an appendix as described in subsection (d) of this rule. As noted in that subsection, the brief of the appellee need not contain an appendix.
Subsection (d) is amended to read: Appendix. — Following the argument portion of the appellant's brief, the appellant shall include an appendix, consisting of those portions of the designated record (see Rule 12 of these Rules and Ark. R. App. P. 6) the appellant deems dispositive of or directly relevant to the issue or issues on appeal. If an appellee is also a cross-appellant, the appendix with the appellee's brief shall include the items necessary to support the cross-appeal. An appellant's brief may include items in its appendix deemed necessary to respond to a cross-appeal. If one or more issues on appeal present questions of the sufficiency of the evidence to support factual determinations, only the portions of testimony and documents of record necessary to verify the statement of the case shall be included in the appendix. Each item in the appendix shall be a verbatim typed or photo copy from the record and each page of the appendix shall be clearly identified by reference to the page at which it appears in the designated record. Although the appendix is a part of the brief, it shall be paginated separately, and the parties may refer to it by page number, e.g. "appellant's appendix, p. 3." The appendix shall include, in the following order:
(i) a table of contents if the appendix is bound separately, and typed copies or legible photocopies of;
(ii) relevant pleadings;
(iii) relevant testimony, hearings transcripts, and exhibits;
(iv) relevant written motions and orders;
(v) the verdict or findings of fact, conclusions of law and judgment or decree;
(vi) relevant post trial motions and orders;
(vii) any relevant memorandum opinions of the trial court and any opinion of the Arkansas Court of Appeals if a decision of that court is to be reviewed;
(viii) if one or more of the trial court's instructions are challenged on appeal, the instructions, any portion of the transcript containing a discussion of the instructions, and any relevant requests for instructions;
(ix) the notice of appeal, as well as the petition for review if the case has been decided by the Arkansas Court of Appeals.
Failure to place a copy of a part of the record in the appendix will not preclude the court from referring to it, but the court will not consider itself obligated to go beyond reading the briefs and included or separate appendices to decide a case.
Subsection (e) is amended to read: Appellee's Appendix. — The appellee's brief may include an appendix if the appellee finds that the appellant's appendix is insufficient to provide the documents necessary to understand the case. The appellee's appendix need not contain all of the items required in (d) above for the appellant's appendix, but shall contain only copies of those parts of the record, other than those in the appellant's appendix, deemed by the appellee to be necessary to understand the case or resolve factual disputes.
Subsection (g) is amended to read: Cover for Briefs. — On the cover of every brief there shall 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., Brief for Appellant), and the name or names of counsel filing the brief.
Rule 10
The first sentence of Rule 10 is amended to read: If a brief has not been filed by the appellant in a civil case within the time allowed by Rule 7 of these rules, the court may dismiss the appeal or affirm the judgment or decree.
Rule 11, Title, (a), (f), and (g)
The title of Rule 11 shall read: Briefs; Criminal Cases.
Subsection (a) is amended to read: Briefs in Chief — When the State Is the Appellee. — In criminal cases in which the state is the appellee, the appellant shall, within 40 days after the transcript is lodged, file with the clerk of the supreme court and court of appeals 17 copies of the appellant's brief as in civil cases and submit proof of service of two additional copies on the Attorney General, who shall have 30 days after the filing of the appellant's brief to file 17 copies of the State's brief including such further appendix as may be necessary to a fair determination of the case, and who shall furnish evidence of service of a copy of the State's brief upon opposing council.
Subsection (f) is amended to read: Appellant's Duty to File Brief. — The argument portion of the appellant's brief shall not exceed 25 double-spaced pages, with a similar 15 page limit upon the reply brief, except that either limitation may be waived on motion stating that the appellant has attempted to draft the brief within the limits and has failed to be able to do so, giving reasons. The State's brief shall comply with the same limits and exception. See subparagraph (g) with respect to indigents' briefs.
When the sentence is death or life imprisonment, the court will review all errors prejudicial to the appellant. At the close of the argument portion of the appellant's brief, the appellant will list, with references to the record and appendix, all objections, decided adversely to the appellant, which were not discussed in the argument portion of the brief. The Attorney General will make certain that all such objections have been noted by the appellant and will list any omitted and brief all points argued by the appellant and any other points favorable to the appellant deemed by the Attorney General to have merit.
Subsection (g) is amended to read: Briefs for Indigent Appellants. — When an indigent appellant is represented by appointed counsel or public defender, his attorney may have the brief prepared for submission by submitting the typed, double-spaced, manuscript to the Attorney General not later than the due date of the brief.
Rule 12 (i)(1) and (10)
The title and opening three sentences of subsection (i) are amended to read: First Impression Print. — The record must be made out in plain typewriting of the first impression, not copies, on 8 1/2" x 11" paper and fastened at the top of the page. All transcripts shall be prepared by certified court reporters according to the following rules:
Subsection (i)(1) is amended to read: No fewer than 22 typed lines on standard 8 1/2" x 11" paper.
Subsection (i)(10) is amended to read: All depositions prepared for use as evidence in any court shall comply with these rules, except that the left-hand margin is to be set at no more than 1 3/4" and binding may be on the left.
Rule 16 (c)
Rule 16 (c) is amended to read: Briefs — Time for Filing. — Briefs are required as in other cases. The time for filing briefs, as provided in Rule 7, is to be calculated from the date on which the petition is filed.
Rule 17 (b)
Rule 17 (b) is amended to read: Issues of Law Only Involved. — When the issues involve questions of law only, the parties shall file briefs as in other cases. The time for filing briefs is to be calculated, as provided in Rule 7, from the date on which the issues are joined.
Rule 20 (e) and (h)
Subsection (e) is amended to read: Petition — Form. The petition and supporting brief, if any, shall conform to the formal requirements for briefs found in Rule 8.
Subsection (h) is amended to read: Matters of Fact. — In no case will a petition for rehearing be granted when based on a fact alleged to have been overlooked by the court, unless reference has clearly been made to it in the petitioner's brief.
Rule 24 (e)
Subsection (e) is deleted.
The following rule is added:
Rule 30
UNIFORM PAPER SIZE
All briefs, motions, pleadings, records, transcripts, and other papers required or authorized by these rules shall be on 8 1/2" x 11" paper.
Inferior Court Rules
The Inferior Court Rules are amended by adding the following Rule 11.
Rule 11.
UNIFORM PAPER SIZE
All briefs, motions, pleadings, records, transcripts, and other papers required or authorized by these rules shall be on 8 1/2" by 11" paper.
HICKMAN, J., dissents.
Appointments to Committees