Ark. Clerk Pro Se Appeals Guide II

1. What is an appeal?

It is important to understand what an appeal is before deciding to file one. An

appeal is not a “redo” of the circuit court proceedings. The appellate courts will not

consider any new evidence or testimony. You cannot submit new documents or

photographs to prove the judge was wrong about the facts or that a witness was not

telling the truth. The circuit court, not the appellate court, is where evidence is

presented to establish facts about the case, and the appellate courts will not second-

guess the circuit court’s or the jury’s decision about whether a witness was telling

the truth.

So, then, what is an appeal? An appeal is an opportunity to ask an appellate

court to correct any legal errors that occurred in the circuit court proceedings. In

other words, the appellate courts’ job is to consider whether the circuit court made

any legal errors in light of the arguments and information available to the circuit

court at the time its decision was made. Therefore, the only evidence the appellate

courts will generally consider is the appeal record, which consists of the documents

filed in the circuit court, the transcripts of any circuit court hearings or trials, and the

exhibits submitted to the circuit court.

If you are the person appealing (the “appellant”), it is your responsibility to

find any legal errors made by the circuit court and to point out to the appellate court

where those errors can be found in the appeal record. Then, after highlighting those

errors, you can try to persuade the appellate court that the error justifies changing or

“reversing” the circuit court’s ruling. Your written appellate brief is your opportunity

to identify any legal error in the record and to persuade the court that the error

justifies reversal.

2. Can I speak directly to the appellate judges?

No. People often wish they could talk to a judge to explain their situation. But

this is not allowed. Direct oral communication about a case with a judge is allowed

only in a scheduled oral-argument hearing, and only a small percentage of cases are

orally argued. You may not talk to any of the appellate court judges or justices about

your case. Instead, your communication with the appellate judges must be through

documents you file in your case, and your appellate brief is your opportunity to make

your case.

3. Did you “preserve” the error?

The groundwork for a successful appeal must be laid in the circuit court. As

mentioned above, the appeal record is the only evidence the appellate courts will

consider. Appellate courts usually do not rule on issues that the circuit court did not

rule on. In other words, appellate courts will not hear new defenses or objections on

appeal that were not addressed in the circuit court. For example, if you did not object

to the admission of one of your opponent’s exhibits at trial or get a ruling on the

objection, the appellate courts are unlikely to consider on appeal whether the circuit

court erred in admitting the exhibit. This concept is known as “preservation of error.”

If you plan to appeal and raise a new issue on appeal that was not addressed in circuit

court, you may want to reconsider whether an appeal is worth your time and expense

because your appeal will probably not be successful.

4. Where do I file my appeal documents?

Your notice of appeal must be filed with the clerk of the circuit court, not with

the appellate court. The appeal record and all appeal-related documents you file after

the appeal record must be filed with the Office of the Clerk of the Supreme Court

and Court of Appeals (the “clerk’s office”) located at 625 Marshall Street, Suite 130,

Little Rock, Arkansas 72201. The clerk’s office is responsible for receiving

documents filed in appeals and reviewing them to ensure they comply with court

rules. The clerk’s office delivers the documents you file to the appellate courts for

consideration. Additionally, the appellate courts’ decisions are shared through the

syllabus, the public court docket, and via mail to the address on file. The clerk’s

office is your point of contact with the appellate courts.

The clerk’s office is a valuable resource. The clerk’s office employees can

provide helpful information about court rules and procedures. However, as court

employees, they are not allowed to give legal advice or opinions.

5. What rules do I need to know?

Two sets of court rules inform this guide: (1) the Arkansas Rules of Appellate

Procedure–Civil, and (2) the Rules of the Supreme Court and Court of Appeals of

the State of Arkansas. Other court rules and orders, such as the Arkansas Rules of

Civil Procedure, and Administrative Orders Nos. 2, 19, and 21 are also important in

appellate court cases. These rules and orders are available in the Supreme Court

Library and on the Arkansas Judiciary website at www.arcourts.gov.

6. What words do I need to know?

The following are definitions of important words related to appeals and used

in this guide:

Affirm—To uphold a lower court’s judgment on appeal. If an appellate court

decides a case is “affirmed,” it has decided the lower court’s decision remains

the same.

Appellant—A person who appeals a lower court’s decision, usually seeking

a reversal of that decision.

Appellee—A person against whom an appeal is taken. An appellee’s role is

typically to respond to an appeal. An appellee typically asks that the lower

court decision be affirmed.

Appellate record—Generally, a record of what occurred in the circuit court

that the appellate court reviews on appeal. An appellate record is typically

made up of (1) the documents filed in the circuit court, and (2) transcripts of

what occurred in any circuit court hearings or trials.

Appellant’s brief—A document prepared by an appellant that argues their

case. A brief contains a factual statement, legal arguments, and the legal

authorities in support of the arguments.

“Legal authorities” are sources of the law, including statutes, case law,

court rules, constitutional provisions, treatises, or other legal documents

cited in support of a legal argument.

Appellee’s brief—A document prepared by an appellee that argues their case.

It often includes legal arguments and the legal authorities in support of the

appellee.

Arkansas Court of Appeals—This court is the intermediate appellate court

for Arkansas. Most appeals of circuit court decisions are appealed to this

court. However, not all appeals go directly to the Court of Appeals. A reading

of the Arkansas Rules of the Supreme Court and Court of Appeals, Rule 1-2

will help illustrate this point.

Arkansas Supreme Court—This court is the top appellate court for

Arkansas. There is no right of appeal from the Court of Appeals to the

Supreme Court. Under Rule 1-2, some cases are filed originally in the

Supreme Court. Some Court of Appeals decisions may be reviewed by the

Supreme Court after a party files a “petition for review.” And some cases may

be decided by the Supreme Court when the Court of Appeals certifies and

transfers the case to the Supreme Court.

Case caption—The portion of a court paper stating the names of the parties,

the name of the court, the case number, and the title of the document (for

example, Appellant’s Brief). The caption is usually on the first page of any

court paper that’s filed. Sometimes it’s called the “case style.” Example

below:

Circuit court—In Arkansas, circuit courts are general jurisdiction trial courts.

They decide many civil, criminal, probate, domestic relations, and juvenile

cases.

Circuit court clerk—In Arkansas, circuit court clerks are the official keepers

of the circuit court’s records for the circuit court of the county where the case

is filed.

Clerk’s Office of the Arkansas Supreme Court and Arkansas Court of

Appeals—The Clerk’s Office of the Supreme Court and Court of Appeals is

the official keeper of records for the appellate courts. The Clerk’s Office is

where people file appellate court documents to be reviewed by the appellate

court. This office may provide filers with information on the types of

documents it can accept, but it can never give filers legal advice. For example,

the clerk’s office cannot help with legal strategy for the case or what legal

arguments to use in your documents.

Court reporters—These professionals make sure that all words spoken

during a court proceeding are accurately recorded. This allows a written

transcript to be created so the parties and the appellate court can review

exactly what was said at a circuit court proceeding, like a hearing or trial.

Error—A mistake in law or fact in a court’s judgment, opinion, or order. In

appeals, “error” can refer to “reversible error,” which affects a litigant’s or

party’s rights or case’s outcome and may be grounds for reversal if the party

properly objected.

File* (*verb)—When you deliver a legal document to a court clerk for

placement into the official record, and the clerk enters it into the record, it’s

been “filed.”

Filing fee—An amount of money required to be paid to a court clerk before a

legal proceeding may start.

In forma pauperis—A legal term used in Arkansas that refers to a party’s

inability to proceed because that person cannot afford to pay for court costs

and fees. A party that is found to be “in forma pauperis” by a court will likely

have court costs and fees waived.

Interlocutory order—An order related to an intermediate issue in a case; an

order other than the final order.

Judgment—A court’s final decision of the rights and obligations of parties in

a lawsuit.

Decree—traditionally, a court’s judicial decision that is similar to a

judgment or an order.

Order—a court’s written direction or command.

Litigant—A “party” or person that is directly involved in a lawsuit.

“Lodging” of an appellate record*—The point when a record is officially

accepted by the Clerk of the Arkansas Supreme Court and Court of Appeals.

A record must be lodged by the clerk’s office for the appellate court to have

jurisdiction over the case.

*Note—To “file” an appellate record and to “lodge” an appellate record

are the same thing at the Arkansas Supreme Court and Arkansas Court

of Appeals.

Motion—A written request to a court to make a specific ruling or order.

Response to a motion—A written document responding to a motion.

Pro se—This term means “for oneself.” It is the term that refers to litigants

who are representing themselves in a court case.

Received stamp—This is a mark placed by the clerk’s office confirming the

receipt of court documents, illustrating the time and date the document

arrived. A received stamp is not to be mistaken with a file stamp.

Remand—To send a case back to the court from which it came for further

action.

Reply brief—A brief in which the appellant responds to issues and arguments

raised in an appellee’s brief. Reply briefs are not required; however, many

appellants file them.

Reversal—An appellate court’s overturning of a lower court’s decision. A

reversal could overturn all or a portion of a circuit court’s judgment, order, or

decree.

Standard of review—The amount of weight or deference given to a circuit

court’s decision by one of the appellate courts when reviewing a decision of

the lower court.

Stay—An order to suspend or halt all or part of a legal proceeding or judgment

that came out of a legal proceeding. For example, a “stay pending appeal.”

Supersedeas bond—A type of bond that a court requires from an appellant

who wants to delay payment of a judgment until an appeal is over.

Tender or Tendered—This is a term used in the clerk’s office that describes

a formal presentation of a document that is awaiting a court decision to accept

the document. A document will usually be tendered at a time consistent with

the “received stamp.” If the court instructs the clerk’s office to accept the

tendered document, the document will be filed.

Writ—A court’s written order commanding the person who receives it to do

or not do some specified act. An “extraordinary writ” is a writ issued by a

court exercising unusual or discretionary power. For example, there are writs

of certiorari, habeas corpus, mandamus, and prohibition. Read Arkansas Rules

of the Supreme Court and Court of Appeals, Rule 6-1 on extraordinary writs.