As attorneys, we know that civil appellate work is an entirely different animal from any other type of litigation. The Supreme Court of Arkansas has issued comprehensive rules governing each step of the appellate process, from preparing the record to filing your reply brief.
This article is about complications in appellate work when there are problems with the record prepared for your appeal. There are two main problems that arise: (1) the Circuit Clerk or court reporter responsible for transcribing the hearings in your case may take too long to put the record together for you to file your appeal timely, or (2) the Circuit Clerk may make some technical error in putting your record together. Either way, a diligent attorney has to be aware of the record, its preparation, and its contents at every step of the appellate process.
What do you do if the Circuit Clerk takes too long to prepare the record? An appellant may file a motion for extension of time to file the record on appeal. Grant or denial of the motion is up to the Circuit Court, but it is your responsibility to communicate with the Circuit Clerk and court reporter preparing any transcripts for your appeal to determine whether the record will be available within the timeline set out in the Rules of Appellate Procedure.
A much more complicated issue arises if the record you request, obtain, and pay a lot of money for is missing an important document, such as any of the various documents necessary for the Court of Appeals and Supreme Court to confirm their jurisdiction. If the record is missing any of these documents, your appeal will be dismissed for lack of jurisdiction.
There are two documents you can file to complete the record. Rule 2-2 allows you to tender an appellate record late, then gives the Clerk of the Supreme Court discretion to accept or reject the tender of the record. Under the rule, you may then challenge the Clerk’s decision to deny your tender of the record by motion. Rule 3-5 allows you to file a petition seeking a Writ of Certiorari to Complete the Record. Conceptually, Rule 3-5 makes better sense for completing a record than Rule 2-2, which discusses filing the entire record late.
Whichever approach you choose to take, your motion or petition needs to be detailed. If you hire another attorney to handle your appeal, make sure you give them all the facts necessary to prepare a detailed motion or petition.
If there is a risk that your deadline to file your appeal brief will pass while you are waiting on a ruling on your motion or petition, you can also file a motion for an extension of time to file your brief.