Useful articles: A. Michael Beaird, Citations to Authority by the Arkansas Appellate Courts, 1950-2000, 25 U. Ark. Little Rock L. Rev. 301 (2003)

When citing authority to an appellate court, you might prefer to cite those authorities most utilized by that court.  If the court doesn't rely legal encyclopedias, for example, you might not want to emphasize encyclopedias in supporting your argument.  But what are the citation preferences of the Supreme Court of Arkansas and the Arkansas Court of Appeals?  This article helps to answer that question.

Professor Beaird's study is an informative look at citation practices of our appellate courts.  A. Michael Beaird, Citations to Authority by the Arkansas Appellate Courts, 1950-2000, 25 U. Ark. Little Rock L. Rev. 301 (2003).  He examined six years' worth of Supreme Court opinions at ten-year intervals from 1950 to 2000.  For the Court of Appeals, he examined three years' worth of opinions at ten-year intervals from 1980 to 2000.

The study documents that citations to secondary authorities in general - with the exception of dictionaries - declined over time.  The use of dictionaries actually increased.  Beaird, supra, at 302.  Beaird notes the "implication" that "Arkansas practitioners no longer need to cite to secondary authority as much as before."  Id. at 313.  The article examines the use of specific secondary authorities, including treatises, law reviews, restatements, and legal encyclopedias; for most categories, he names specific publications that are used more frequently by our appellate courts.  Id. at 320-28.

Cites to out-of-state cases declined over the period under study.  Other states cited most often by our courts include New York (139 total citations by both courts), California (138), and Texas (111).  Id. at 314, 317.

Understandably, Beaird finds that our Supreme Court cites its precedents most frequently.  The Court of Appeals cited the Supreme Court most often immediately after its creation, but as the Court of Appeals developed its own body of caselaw, the percentage of citations to its own cases grew.  Id. at 315-16.

Beaird concludes "that practitioners should cite Arkansas cases and worry very little about citing secondary authority."  Id. at 331.  This seems intuitive, but it is worthwhile to study Beaird's support for this conclusion.

My impression is that Beaird's study still describes these courts' citation preferences two decades later.  I can think of one treatise that is cited occasionally: Antonin Scalia & Bryan A. Garner, Reading Law (2012).  You can find citations to other secondary authorities, but they seem rare.

Opinion highlights for the week of October 20, 2024

The Supreme Court of Arkansas handed down two opinions this week; the Arkansas Court of Appeals handed down seventeen opinions yesterday.  Two of those Court of Appeals decisions illuminate aspects of appellate practice and process.

Peters v. Woods, 2024 Ark. App. 499, involved a running family feud over money.  Without getting too far into the weeds, on May 25, 2021, the trial court entered an order against the father ("sanctions order").  He filed a notice of appeal of the sanctions order on June 23, 2021.  On July 20, 2021, the son filed a notice of removal to federal court.

Subsequently, in state court, the father filed an amended notice of appeal on July 22, 2021, adding an appeal of a preliminary injunction dated July 14, 2021.  He also moved to extend the time to lodge the appellate record on August 28, 2021; the trial court entered an order on September 3, 2021, extending this deadline to January 23, 2022.

All the while the federal proceeding was "live."  On September 24, 2021, the federal district court entered a remand order.

The Court of Appeals considered whether there was timely lodging of the record.  The record was originally due within ninety days of the father's June 23, 2021, notice of appeal.  While the circuit court could ordinarily extend that under Ark. R. App. P.-Civ 5(b), the federal removal complicated the issue: the circuit court lacked power to take action during the removal to federal court, and any actions taken by the circuit court during that time were void.  Peters, 2024 Ark. App. 499, at 7-9.

Thus, the circuit court's September 3, 2021, order extending the time to lodge the record was void.  Allowing for tolling during federal removal (which was proper), when the father finally lodged the record on January 20, 2022, he was still beyond his ninety-day time limit that began with the notice of appeal filed June 23, 2021.  His appeal was dismissed.

McCain Mall Co. v. Nick's Bar Louie, Inc., 2024 Ark. App. 502, is a little less involved.  The trial court entered an order expressly stating that it had considered all claims and counterclaims, as well as a motion to dismiss.  Findings were made.  The trial court concluded its order by instructing the clerk to close the case to further filings.

On appeal of this order, the Court of Appeals noted a jurisdictional problem: the trial court's order was not final.  "Our supreme court imposes a strict requirement that to achieve finality for purposes of appeal, the circuit court must dismiss or adjudicate by written order all the claims filed in a lawsuit - even when it appears that the court's order necessarily rendered an outstanding claim moot or impliedly dismissed it."  Id., 2024 Ark. App. 502, at 3.  While the trial court "issued findings, ... we cannot decipher how the court ruled on the claims and counterclaims."  Id.  In particular, the court read the parties' arguments as suggesting the counterclaims remained outstanding.  The appeal was dismissed without prejudice.