Fifteen Things You Must Know About Appeals By Brandon J. Harrison
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ot enough is written about handling appeals in Arkansas, at least not in places where many lawyers are likely to look. Because The Arkansas Lawyer reaches thousands of bar members, it is a good place to discuss some basic points on appellate advocacy. What can you expect from this article? First, I hope to serve a shot of espresso, not a large cappuccino to be long savored. My goal here is simply to revive your appreciation for appellate advocacy in general and give some practice tips along the way. Regardless of your appellate experience, if your interest is piqued or renewed at the end of our 15-point journey, great. If you are a lawyer who has handled few appeals and learn that there are appeal-related skills to develop and apply, then this article will have done its job. At every turn, however, know that there are important zigs and zags I cannot cover in this article. As a final introductory point, I call your attention to an Arkansas Bar Association publication that concentrates on appellate law and practice. Handling Appeals in Arkansas is the product of the thoughts and advice of many Arkansas judges, justices, and appellate lawyers. Law professors contributed too. I encourage you to read deeply in it from time to time — preferably before you handle many more appeals. Handling Appeals in Arkansas will teach you new things and reinforce that which you already know. Here are 15 things you must know about appeals.1 10
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1. Be sure the court has jurisdiction. In the beginning . . . there was jurisdiction. How could a lawyer fail to ensure that the appellate court has jurisdiction over an appeal? A “no brainer” you say? In theory, but not in fact. Almost weekly you can read about the Arkansas Supreme Court or Arkansas Court of Appeals dismissing appeals because the court lacks jurisdiction. Our courts raise this issue even when the parties do not. The bulk of these dismissals involve the untimely filing of a notice of appeal or an appeal from an order that is not yet appealable. A friendly reminder is due here: the latter category often includes a party who does not properly follow Arkansas Rule of Civil Procedure 54. Fortunately, absent atypical circumstances, dismissals for lack of a final, appealable order are without prejudice. Failing to file a timely notice of appeal is, however, a more dire oversight. Do not do it. There are other reasons why our state appellate courts may lack jurisdiction to decide the merits of an appeal. But if you timely file a proper notice of appeal in the circuit court (and the record with the appellate court) then you will avoid most jurisdictional problems. Again, part of the “proper notice” requirement I just mentioned is that you appeal from a final order. What you think is “final” may not square with the particular appellate court’s jurisprudence on final, appealable orders. Many times it is just that the record was not made to speak officially what everyone knows occurred. (For example, after the cir-
cuit court orally granted your nonsuit motion did you get an order entered?) Trial lawyers are often swept up in the strong currents and time demands of litigation and do not ensure that finality, from an appellate court’s perspective, is created before a notice of appeal is filed. Finality has multiple strands. Those strands cannot be covered here in detail; just know for now that they do exist and that you must learn them. This segues to an important task. Appellate lawyers start small. By this I mean you should review the record (which is sometimes simply the pleadings and court papers the trial lawyer has in the working file) and ensure that the circuit court has entered an appealable order. Taking the time to review what occurred before an appeal is pursued saves time and money later. To learn more about jurisdiction as it relates to appellate advocacy in the civil context, you should read Chapters 5 and 7 in Handling Appeals in Arkansas. I close this point with a suggestion concerning federal appellate-court practice. The jurisdiction requirement applies equally to the United States Court of Appeals for the Eighth Circuit. But there are differences between state and federal appellate-court practice. Do not assume that one court system’s practice is the same as another. Always ask yourself, “Does the appellate court have jurisdiction over my issue?” If yes, go forward. If no, do what you can to resolve the problem. Finally, be courageous enough to forgo an appeal if you are reasonably sure that