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Navigating the Uncharted Course of the Electronic Appeal Pilot
By Kyle E. Burton and Paul Charton
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Burton Charton
If your latest journey through circuit court left your client bound to an unfavorable judgment, then you are probably considering whether an appeal is a viable escape plan. Until recently, there was only one route to an appeal. Even if you are comfortable taking that path, the time and expense of preparing the abstract and addendum probably figures into your viability analysis. Now you have another option. Much to the pleasant surprise of appellate practitioners, the Arkansas Supreme Court recently proposed what are probably the most significant changes in appellate practice since 1885—adoption of electronic appeal records and elimination of the abstract and addendum. 2 The proposed changes are currently undergoing testing as an optional “pilot project.” The authors hope the pilot project demonstrates efficiencies not only for litigants, but for the appellate courts as well. It is obvious that relieving lawyers and their clients of the onerous burden of converting trial transcripts to first-person narrative form and copying voluminous portions of appeal records will save them time and money. Less obvious is whether the change will be efficient for the appellate judges. Certainly, one could imagine that the success of the project, from an appellate judge’s perspective, may be whether the new system leads the court to relevant portions of the record in a manner that is at least as efficient, if not more so, than the abstract and addendum regime. That is one goal of the pilot-project’s rules and why practitioners’ careful attention to them is vital to the success of the project.
So, for now, you have an option. You can choose the familiar, but more expensive, paper route, or you can navigate the new, yet relatively uncharted pilot-project course that will hopefully save you and your clients some time and expense. The authors hope you choose the latter; therefore, we offer to guide the voyage. Together, perhaps we can help send the archaic abstract and addendum the way of the astrolabe. 3 Let’s begin. 4
I. The Gateway to the Pilot Project—The Electronic Appeal Record From our launching point at the unfavorable judgment, we set our sights on the gateway to the pilot project—the filing of an electronic appeal record. As the Supreme Court discussed, document digitization makes palatable the abandonment of the abstract and addendum. 5 That is because, unlike with a single paper record, the judges and their staff can simultaneously work from electronic files, thus eliminating the need to reproduce the relevant portions of the record in the abstract and addendum for each judge’s use. 6 As such, filing an electronic record is a prerequisite to participation in the pilot project. 7
(a) Requesting the Electronic Record With the electronic appeal record coordinates plugged into our GPS, we set out to promptly inform the circuit clerk and court reporter of our request to prepare the record in electronic format. The sooner we do so, the better. The electronic appeal record is more than just a scanned copy of the paper record. There are new formatting requirements designed to make it easier for appellate judges to locate relevant materials. 8 Circuit court staff are still learning these new requirements, and they will need time to get acquainted with them so they can prepare our record.
Not only do we promptly let circuit court staff know that we request the record in electronic format, we also take pains to alleviate any reluctance that the circuit court staff may have about preparing an electronic record. Despite the court’s straightforward command that, upon request, circuit court staff “shall provide the record in an electronic format,” 9 some are nevertheless hesitant to do so. We chalk this up to fear of the new process. In an effort to dispel this fear, we offer a copy of the pilot-project rules and a sample electronic record to use as a guide. 10 We also let them know that we would be glad to try to answer any questions that they may have, and that the staff at the Supreme Court Clerk’s office will review drafts of the record for compliance with format requirements.
Just like with paper records, once we have made payment arrangements for the record, we must file a notice of appeal within 30 days of the judgment. 11 Although not required by the rules, we reiterate our request for an electronic appeal record in our notice of appeal so that the request appears in the record. We provide a courtesy copy of the notice to the court reporter, and we calendar our deadline to file the appeal record at 90 days from the filing of the notice. 12 We also calendar intermittent ticklers to remind us to check in with circuit court staff regarding the status of the record.
(b) Format of the Electronic Record After several follow-up conversations with circuit court staff, we finally receive the electronic record with one day to spare before the deadline. We quickly review the record to ensure compliance with the pilot-project rules. The court reporter’s transcript is properly contained in a PDF file that is separate from the circuit clerk’s PDF file, and each file is smaller than 30 megabytes. 13 Both files are searchable and include the requisite bookmarks that serve as an interactive table of contents, making it easy to view any document in the files with just one click of a mouse. 14 Trial exhibits are properly scanned and located in the court reporter’s file behind the transcript. 15 While the record is mostly compliant, we notice that the pagination of the circuit clerk’s file is adrift. More specifically, the complaint, rather than the cover of the record, is identified as page one. 16 It is important for the cover to be page one for a couple of reasons. First, it will be much easier for the court to find in the record the documents we cite in our brief if the PDF’s pagination is consistent with the pagination printed on the documents in the record. Also, the Administrative Office of the Courts is developing a software application for the appellate courts’ use that recognizes citations in the briefs and creates hyperlinks from those citations to the electronic record. If the record is paginated incorrectly, that software will not work properly. Thus, compliance with the new pagination requirements is vital to demonstrating efficiency for the Court, and we must have this issue corrected.
Upon contacting the circuit clerk about correcting the pagination, we learn that a key employee is on vacation and it may not be possible to correct the pagination before our 90-day deadline expires. What do we do? The safest approach to this problem is to attempt to file the noncompliant record so as to avoid the procedural default that results if the record is not filed by the deadline, and the record can be corrected at a later date. 17
(c) Filing the Electronic Record Filing the electronic record via eFlex is relatively simple when the aggregate size of the files is less than 100MB. 18 Once we log in, we select “new case” and the appropriate appellate court. After we enter information about the parties and counsel, we then upload the appellate cover sheet. After that, we select the “Record Lodged $” document type and upload the first part of the circuit clerk’s portion of the record. 19 For every file uploaded thereafter, we select the “Multipart Document” document type and upload the court reporter’s transcript. When we are finished uploading the files, we click the “submit the filing” button.
Sure enough, upon submitting the electronic record, the Supreme Court Clerk notices the pagination problem and informs us that it must be corrected before the record will be accepted for filing. She also documents the timely attempt to file the record and requests that we resubmit the corrected record, ideally within seven days. A few days later, the circuit clerk provides us the corrected record, and we successfully resubmit it to
eFlex. When we receive an automated email informing us that the filing was accepted, we celebrate our passage through the gateway to the pilot project.
II. Briefing the Electronic Record
Now that we have successfully traversed the gateway of the pilot project by acquiring and filing an electronic appeal record, we must prepare a brief. Since we are now able to bypass the abstract and addendum, the course is all downhill from here. However, at this point, it is helpful to take advantage of the bird’s-eye view this high ground offers as we prepare to blaze our trail through the new terrain.
(a) Replacing the Abstract and Addendum As we prepare our descent, it is helpful to think about the function of the abstract and addendum as well as the tools that replace them. As with all appeals, to win, our appellant’s brief must demonstrate three vital things: (1) that we have successfully invoked the appellate court’s jurisdiction; (2) that the circuit court committed legal error; and (3) that the error justifies the relief we seek on appeal. But the court is not going to take our word for it. We must prove these things using the record, which is the only evidence the court is going to consider. In the past, we used the abstract and addendum to reproduce the relevant information in the appeal record as we attempted to prove jurisdiction and reversible error. As discussed above, reproduction of the record in the abstract and addendum is now unnecessary. Instead, the abstract and addendum are replaced by an updated jurisdictional statement and a more robust statement of the case and facts. The appellate court will be counting on us to use those new sections to direct its attention to the relevant portions of the record through the use of citations. Thus, complete and accurate pinpoint citations to the pertinent pages of the electronic record are essential.
(b) The Importance of Citation Format Not only must the pinpoint citations to the record be complete and accurate, it is imperative that a specific citation format be used throughout the brief. The software application that the appellate court will likely be using to link the citations in our brief to the appellate record will not work correctly if the citation format is incorrect. All citations to the record should be placed between parenthesis. Any citation to the court reporter’s transcript should include the letters “RT” followed by the page number, and any citations to the circuit clerk’s portion of the record should include “RP” followed by the page number. For example, a citation to page 57 of the court reporter’s transcript should read “(RT 57).” A citation to page 35 of the circuit clerk’s file should read “(RP 35).” When formatted this way, the application will recognize the text as a citation to the record and create hyperlinks from the brief to the referenced pages. 20 Having familiarized ourselves with the new terrain, we delve into the record in search of adverse rulings that might support an appeal. As we do so, we gather a list of citations to all information of jurisdictional significance and a list of all information that will be necessary for the court to understand and decide the issues on appeal. A good rule of thumb is to include all information that we would have abstracted or included in the addendum if we were briefing the case under the rules for paper records.
(c) General Organization of the Brief Once we zero in on our strongest points for reversal and have gathered our lists of citations to the record, it is time to prepare the brief. Under the pilot-project rules, our appellant’s brief must be consecutively paginated with the cover being page one so that the PDF’s pagination is in sync with the pagination printed on the documents. 21 It should also be bookmarked and include a table of contents, a points on appeal section, a table of authorities, a jurisdictional statement, a statement of the case and the facts, an argument, a request for relief, a certificate of service, and a certificate of compliance with Administrative Order Number 19 and with the pilot-project’s word-count limitations. 22 We start by drafting the points on appeal before moving on to the jurisdictional statement.
(d) The Jurisdictional Statement The pilot-project’s jurisdictional statement is significantly revised. The outdated informational and jurisdictional statement form is no more. Instead, we are to provide a “brief statement, supported by citations to applicable authority and to the pages of the appellate record, demonstrating the appellate court’s jurisdiction.” 23 Thus, we must prove to the court that we have timely perfected an appeal from an appealable order. Because we are appealing from a final order under Rule 2(a)(1) of the Rules of Appellate Procedure-Civil, we cite that rule and identify the parties involved, the claims asserted, the orders disposing of each of the claims, the judgment, the notice of appeal, and the date the record was filed. For each, we pinpoint cite to supporting pages in the appeal record using the citation format discussed above. At the end, we indicate that we believe our case is appropriately filed in the Court of Appeals as we have no basis for Supreme Court jurisdiction under Supreme Court Rule 1-2.
(e) The Statement of the Case and the Facts
With the jurisdictional statement complete, we move on to the statement of the case and facts. Like with the jurisdictional statement, the statement of the case has undergone significant revision. No longer is it a device used to tell the court about the “nature of the case” and the “general fact situation.” 24 Instead, this new statement of the case and the facts is more akin to the abstract in that it must include “all material factual and procedural information” that is “essential to understand the case and decide the issues on appeal.” 25 This is where we must wade through the factual weeds and tell the court about the good, the bad, and the ugly in an impartial manner “without argument.” 26 Nevertheless, as we draft our statement of the case and facts, we want to keep in mind that our goal is to prove that reversible error occurred. Thus, we certainly want to identify with specificity our pertinent motions and objections and the court’s rulings on them to demonstrate that we preserved the issues for appeal. And because we assert a challenge to the sufficiency of the evidence and an evidentiary error that is subject to harmless-error analysis, our case warrants a thorough summary of the evidence. Again, we pinpoint cite to supporting pages in the appeal record using the citation format discussed above.
(f) The Argument and Request for Relief Our next task is to prepare the argument. Little has changed with respect to the rules regarding the argument except that we must now cite directly to the record rather than to the abstract and addendum. 27 Thus, we arrange the argument according to the sequence of points on appeal, direct the court to the applicable authority and standards of
review, and argue that we are entitled to relief. After the argument, we must conclude with a specific request for relief, and we therefore ask the court to reverse the judgment and dismiss appellee’s complaint, or, in the alternative, to reverse and remand for a new trial. 28
(g) Word-Count Limitations With the bulk of the brief prepared, we enter the final stretch. This involves confirming and certifying that the brief is compliant with the pilot-project’s word-count limitations. For this, we use our word-processing software to count the words contained in the jurisdictional statement, statement of the case and the facts, the argument, and the request for relief. Combined, these sections can be no longer than 8600 words. 29 Once that is complete, we prepare for landing by completing the cover, the table of contents, the table of authorities, the certificate of service, and the bookmarks to each section of the brief. 30 After some final editing, our journey is concluded when we submit the brief to eFlex and receive email notification confirming that the brief is approved for filing.
III. Some Final Words of Encouragement Thank you for allowing us to take this journey with you through the uncharted course of the electronic appeal pilot project. We encourage everyone to give the pilot project a try and to provide comments and suggestions for improving the process. 31 With your insights and careful attention to detail, perhaps the pilot project will demonstrate efficiencies for not just litigants, but for the appellate courts as well. That, in turn, will hopefully propel final adoption of the proposed rules and expand access to Arkansas appellate courts by decreasing the costs of taking appeals.
Endnotes: 1. Any opinions expressed in this article are those of the authors and not the authors’ employer. The authors can be reached by email at Kyle.Burton@arcourts.gov and Paul. Charton@arcourts.gov. 2. See In Re Acceptance of Records on Appeal in Electronic Format and Elimination of the Abstracting and Addendum Requirements, 2019 Ark. 213 (per curiam). 3. The astrolabe is a medieval instrument that was “used to make astronomical measurements, typically of the altitudes of celestial bodies, and in navigation for calculating latitude, before the development of the sextant.” See Astrolabe, Oxford Dictionaries, available at https://premium.oxforddictionaries.com/definition/english/astrolabe. 4. For purposes of this article, our hypothetical appeal is a civil appeal. However, the pilot-project is available for all types of appeals, including criminal appeals. 5. See In Re Acceptance of Records on Appeal in Electronic Format and Elimination of the Abstracting and Addendum Requirements, 2019 Ark. 213, at 4-6. 6. Id. 7. Id. at 1-3. Just like with paper records, the appellant’s attorney is responsible for acquiring and filing the electronic appeal record. However, the Court announced that it is exploring the feasibility of having circuit clerks transmit the record directly to the appellate court clerk via a more automated process. Id. at 6. 8. The pilot-project’s rules are located at pages 9-29 of the order and in “line-out, linein fashion” at pages 30-63. Id. at 9-63. 9. Id. at 2. 10. You may obtain sample electronic records and briefs by contacting the Supreme Court Clerk’s office or by visiting the Arkansas Judiciary’s website at https://www.arcourts. gov/courts/clerk-of-the-courts. 11. Ark. R. App. Pro.-Civ. 4(a) (2019). 12. Ark. R. App. Pro.-Civ. 5(a) (2019). 13. In Re Acceptance of Records on Appeal in Electronic Format and Elimination of the Abstracting and Addendum Requirements, 2019 Ark. 213, at 25. Had either the circuit clerk’s file or the court reporter’s file been larger than 30MB, it would have been necessary to divide them into separate files that are each less than 30 MB. If either portion is divided, the pagination of the latter files, including the PDF’s pagination, must continue from where the prior file ended. 14. Id. at 25. 15. Id.. at 26. 16. Id. at 9. 17. O’Fallon v. O’Fallon, 335 Ark. 229, 231, 980 S.W.2d 246, 247 (1998) (holding record timely filed where tendered to clerk before the 90-day deadline, returned to attorney for correction, and resubmitted to the clerk as corrected after the expiration of the 90-day deadline). 18. You should contact the Supreme Court Clerk’s office for filing assistance if the aggregate size of the record is larger than 100MB. 19. For felony appeals and other appeals that do not require the payment of a filing fee,
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the “Record Lodged” document type should be selected instead of the “Record Lodged $” document type. 20. The authors note that the software application is still under development and that the citation format could change in the future. Therefore, we recommend contacting the clerk’s office to confirm the correct format prior to filing a brief. 21. In Re Acceptance of Records on Appeal in Electronic Format and Elimination of the Abstracting and Addendum Requirements, 2019 Ark. 213, at 14. 22. Id. at 14-16. 23. Id. at 15. 24. Sup. Ct. R. 4-2(a)(6)(2019). 25. In Re Acceptance of Records on Appeal in Electronic Format and Elimination of the Abstracting and Addendum Requirements, 2019 Ark. 213, at 15. 26. Id. 27. Id. at 16. 28. Id. 29. Id. at 17. 30. Id.. at 14. 31. You may email comments and suggestions regarding the pilot project to eROAcomments@arcourts.gov.
