There are two basic stages in an Arkansas lawsuit: Trial and Appeal. A trial is where you present the facts of your case to a judge, who will decide who wins. An appeal, however, is where you ask another judge to reverse the first judge’s decision because of a specific error that the first judge made. So if you want to make an appeal, it will be good to be familiar with appeal procedure.
The most important thing to know about appeals is that you don’t want to have to make one. Appeal procedure is complicated, costly, and risky. An appellate court isn’t going to look at all the facts; instead, it just looks to see if the trial judge completely blew it. Even if the trial judge made a weird call or an unwise call, that’s normally not enough to win.
You’ve really got to show that the trial judge messed up. I say all that to make one simple point: Hire the best trial lawyer that you can afford. If possible, win your case at trial.
If you don’t win at trial, the first step is to consult with an appellate lawyer and determine what issues may be solved with certain post-judgment motions. These motions might include a motion for reconsideration, motion to vacate, or motion for a new trial. This is an important discussion to have even before the judge’s decision is written down in an order; in certain instances, you can ask the judge to be more specific. (This can be a good thing or a bad thing. Again, it’s important to have a wise appeals lawyer to make this decision.)
Note: In certain instances, you don’t have to wait until the end of trial to appeal a decision. In these situations, you can ask the trial court to certify your question as one that is immediately appealable. There are certain requirements for this to be met, which can be found in Rule 54 of the Arkansas Rules of Civil Procedure.
Okay, enough wind-up. Once the decision comes down and you’re ready to appeal, you have to file a notice of appeal with the trial court within 30 days. This notice of appeal needs have some very specific things, which a good appeals lawyers will know how to handle. Before you can file the notice of appeal, however, you’ve got to order the transcript(s) from the judge’s court reporter. These can be pretty darn expensive, which is why you can’t just dabble with the idea of an appeal. Arkansas law requires you to make a significant financial commitment before even getting in the door. And you may or may not have actually had enough time to research all the issues by the time you’ve got to order the transcript. You’ve got to have the transcript ordered and the notice of appeal filed within 30 days after the judge’s decision is “entered” or filed with the clerk.
Around this time, you’ve also got to get a certified edition of all the things that were filed in the case. In some counties, you do this through the clerk. In some counties, you do this through the court reporter. There’s not necessarily a rule on it.
Once you’re able to compile all that information, the circuit clerk will certify that the record is correct. From that point it is the appellant’s (the person bringing the appeal) job to make sure that this record is given to the clerk at the Arkansas Supreme Court. This is what it means for the record to be “lodged.” The appellant must lodge the record within 90 days of filing the notice of appeal. (In certain circumstances, the trial judge may allow the appellant more time to lodge the record.) The record is just everything that happened at trial.
Once the record is lodged, the case is officially within the appeals court’s jurisdiction. The trial court can no longer do anything with the case. (That's not always exactly true but it's mostly true. I'm just trying to get through this blog.)
When the record is lodged, the appellant has 30 days to file a brief. The brief can be a huge task, and it includes all the arguments for why the trial judge should be reversed, an organized copy of all the important documents called an “addendum,” and the infamous “abstract.” This word strikes fear and discomfort into the hearts of all lawyers. An abstract is simply a first-person retelling of what went on in the transcript, whereas the transcript contains a complete record of everything that was said in the courtroom. For example, these things would likely be excluded in an abstract: someone asking for a glass of water, the question-and-answer format in a transcript, pleasantries between people in Court, etc. The abstract is an intimidating task because it takes so long and is tedious.
The appellant has several opportunities to extend the time for filing the brief. Once the brief is filed, however, the person who won at trial and who is defending against the appeal (the “appellee”) now has thirty days to file a brief. Because the abstract and addendum have already been prepared, the appellee doesn’t need to do it again unless the appellant messed it up. The appellee can also request extensions in which to file the brief. Once that brief is filed, the appellant has one last shot to make an argument in a reply brief. After that, the briefing (arguing, basically) portion of the appeal is over.
After the briefing is closed, the case will be submitted to the Arkansas Court of Appeals or, in certain instances, the Arkansas Supreme Court. The Arkansas Supreme Court only hears certain types of cases on appeal.
When the Arkansas Court of Appeals makes its decision, either party can submit a “Petition for Rehearing,” which basically just asks the Court to consider the case again. A party can also submit a “Petition for Review,” which asks the Arkansas Supreme Court to hear a case on which the Arkansas Court of Appeals has made a decision. The Arkansas appellate courts do not grant these petitions very often. As with trial, it is always best to win as early as you can; the more times that you are told “no,” the less likely your chances of ever seeing a “yes.”
After the period for reviews and rehearings is over, the Arkansas Supreme Court’s clerk issues a “mandate,” which basically just tells the trial court what to do with its decision.
This is a broad overview of the appeal procedure in Arkansas, and it is just the tip of the iceberg. An appeal is not an issue you can handle without a lawyer. If you have a question about whether you should appeal, please contact us, preferably before the trial.