Recent changes to appellate rules

 

Various changes to appellate rules and related procedures were implemented this month.  Some are worth noting before we slide into the New Year.  Do not take this list as comprehensive - these are the changes I thought worthy of mention.

At the beginning of December, the Administrative Office of the United States Courts posted amendments to federal rules of practice and procedure; these became effective December 1, 2025.  Fed. R. App. P. 6 ("Appeal in a Bankruptcy Case") and 39 ("Costs") were amended.  A PDF setting forth these amendments and providing commentary can be found here: CDOC-119hdoc45.pdf

On December 4, 2025, the Arkansas Supreme Court issued a per curiam opinion, 2025 Ark. 196, amending Ark. Sup. Ct. R. 4-3(a) and Ark. R. App. P.-Crim. 14.  In cases involving sentences of life imprisonment, appellate counsel are no longer required to make "a list of all rulings adverse [to the appellant] made by the circuit court...."  The court noted that it "can still identify issues that may require further briefing."  A concurring opinion encouraged the court to take the same action with regard to death penalty cases.

Arkansas's Administrative Office of the Courts adopted an Electronic Filing Rejection Policy effective December 9, 2025.  The policy governs when an item filed electronically can be rejected by authorized users.  A list of permissible reasons for rejection appears in the policy, which can be found here: Template

On December 11, 2025, the Arkansas Supreme Court published a per curiam opinion, 2025 Ark. 220, adopting Administrative Order No. 25: Artificial Intelligence.  The opinion is only two pages long and sets out the new administrative order in full.  I'm not going to summarize this document here - you need to read this for yourself.

And with that, I'll conclude my last post of 2025.  Thank you to each of you that have read this blog and commented to me in person - I really appreciated hearing from you.  Godspeed and Happy New Year!

Opinion highlights for the week of December 7, 2025

 

This last week of the 2025 Fall Term was productive.  On December 7, 2025, the Arkansas Court of Appeals handed down twenty-two decisions.  The next day, the Arkansas Supreme Court handed down six decisions along with a number of administrative per curiam opinions.  We'll look at one of those Supreme Court decisions and one of those Court of Appeals decisions.

Matthews v. State, 2025 Ark. 213, raises a couple of points relevant here.  The first is a fairly standard rejection of an argument not made in a motion for directed verdict.  "Matthews did not make this argument in his directed-verdict motion, and it is not preserved for review. As such, we do not reach [his] identification argument...." Id. at 5 (citations omitted).

Of more interest is the second point, a concurring opinion's disagreement with the majority's framing of the standard of review.  After quoting the majority's statement, found id. at 4-5, the concurring justice wrote:

[T]his is an incomplete rendering of our standard.  For over forty years, this court has consistently held that in reviewing whether substantial evidence supports a verdict on direct appeal, while we view the evidence in the light most favorable to the State, we do so upon a consideration of only the evidence that supports the verdict.

Id. at 8 (emphasis in original).  The concurring justice noted long-standing adherence to the italicized language; the court "must be careful not to stray from our longstanding precedent until it gives a result that is so patently wrong or manifestly unjust that a break becomes unavoidable." Id. at 9.  One other justice joined this concurrence.

Turning to the Court of Appeals, Walters v. Estate of Dockman, 2025 Ark. App. 595, involved application of an Arkansas Supreme Court decision previously causing some consternation on the lower appellate court.  The trial court stated that a case was "closed" without ruling on a pending contempt motion.  This implicated the Court of Appeals' jurisdiction - was the order appealed a final, appealable order?

The Court of Appeals held that it did have jurisdiction, citing Ark. R. App. P.-Civ. 2(a)(2) and McCain Mall v. Nick's Bar Louie, Inc., 2025 Ark. App. 505.  This latter case was previously discussed on this blog: https://areylaw.blogspot.com/2025/11/opinion-highlights-for-week-of-october.html  Here, the Court of Appeals majority opinion in Walters summarized and applied McCain Mall as follows:

 

[When McCain Mall was originally before the Court of Appeals] this court held that an appealed order was not final due to outstanding claims and counterclaims. McCain Mall petitioned the supreme court for review of this court’s decision and argued that, notwithstanding the pending claims and counterclaims, the circuit court’s order to the clerk “to close this case to further filings” made the order appealable pursuant to Ark. R. App. P.–Civ. 2(a)(2), which provides that an appeal may be taken from an order that, in effect, determines the action and prevents a judgment from which an appeal might be taken or discontinues the action. The supreme court apparently agreed with McCain Mall’s argument, and in a docket entry, it vacated this court’s opinion and remanded to this court for a decision on the merits.

 

Here, the circuit court did not rule on the contempt motion; however, it specifically addressed the motion, found the contempt motion was “not pending,” and declared the case “closed.” Pursuant to the supreme court’s cue in McCain Mall, we hold that these findings by the circuit court confer appellate jurisdiction in this case.

Walters, 2025 Ark. App. 595, at 9-10. (My apologies for the long block quote - but that summarizes the point better than I could.)

A dissenting opinion in Walters disagreed with the majority's application of McCain Mall.  It contended that the wording of the order in the latter case prevented an appealable judgment, but the wording of the order here did not.  The dissent also believed that the contempt matter remained alive.

That's enough for this Tuesday before Christmas.  With this post, I am caught up following my October vacation.  Over the next couple of weeks, I'll try to get to other matters before opinions start appearing again, such as rules changes recently issued.

Thanks for reading - and Merry Christmas!

New page: "Appellate Experience"

 

For some time, I've thought about listing my relevant appellate experience - I would like to keep up with the number of cases I've handled in various courts, and maybe others would find that useful to know, too.  That list is now posted on the "page" bar above, creatively titled "Appellate Experience."

The picture above has no relationship to my appellate experience.  That's Jana Cason on the left, and my former boss, Legislative Auditor Roger Norman, in the middle.  It was a pleasure to work with these folks as Legal Counsel for Arkansas Legislative Audit for sixteen years.  And I just like the picture!

Opinion highlights for the week of November 30, 2025

The Arkansas Supreme Court handed down three decisions on December 4, 2025; this followed the Arkansas Court of Appeals' release of eighteen decisions the previous day.  But this week, some of the more interesting reading can be found in concurrences and a dissent.

Recall Evans v. Harrison, 2025 Ark. 164, discussed here in a post dated November 7, 2025.  Briefly, the dissent in Evans claimed that the majority raised an issue for the first time on appeal, and questioned whether criminal defendants would be allowed the same opportunity.

This issue was revisited in a concurrence and a dissent issued upon denial of a petition for review in Wheeler v. State.  The dissent - published at 2025 Ark. 197 - would have granted the petition for review to allow Wheeler "to raise his double jeopardy claim on appeal.  After the majority's decision in Evans v. Harrison... where it sua sponte raised a constitutional issue, how can we not allow a defendant to raise a constitutional issue on appeal?" Id. at 1.  The dissent read Evans "to contradict or call into question our long-held precedent that we do not consider arguments (constitutional or otherwise) that were not preserved and raised at the trial court." Id. at 1 n.1.

The concurrence - published at 2025 Ark. 196 - was authored by the justice who wrote Evans.  The concurrence denied that Evans "upend[ed] this court's precedent concerning a defendant's obligations in a criminal prosecution and appeal." Id. at 1.  Evans was distinguished as involving "(1) full adversarial development, (2) repeated opportunities to brief the controlling constitutional issue, and (3) a structural problem implicating the validity of every local ballot initiative in Arkansas." Id. at 2.  To the concurrence, that situation is distinguishable from "an individualized double-jeopardy defense arising from a single prosecution." Id.

No other justice joined these two opinions.  If you haven't read Evans yet, I highly recommend it, and suggest that you follow up with these two opinions.

Turning to the Court of Appeals, a concurrence to a decision to grant a rule on the clerk opened with this sentence: "Dear Criminal Defense Lawyers: Please Do Better."  This concurrence is published at Whitt v. State, 2025 Ark. App. 588.  The author notes a "lack of  care shown to jurisdictional details, like the rather mundane but critical task of filing a record on appeal on time" and a concern with "the failure to file a timely notice of appeal when directed to do so." Id. at 1.  The concurrence closes with this warning: "Referrals to the appropriate authority will increase if this trend is not arrested, and quickly so.  You are on notice." Id.

Thank you for reading.

Opinion highlights for the week of November 16, 2025

The Arkansas Court of Appeals announced fifteen decisions on November 19, 2025.  The Arkansas Supreme Court handed down four opinions the next day.  Three cases are noted here.

In Tate v. State, 2025 Ark. 186, Tate argued on appeal that the cumulative effect of alleged errors in admitting evidence affected his trial.  The Supreme Court found that this argument was not preserved for review.

[A]n appellant asserting a cumulative-error argument must show that there were objections to the alleged errors individually and that a cumulative-error objection was made to the trial court and a ruling obtained.  The record reflects that Tate did not make a cumulative-error objection at trial and did not obtain a ruling.  We will therefore not consider the argument.

Id. at 14.  This is useful guidance on preserving a cumulative-error argument for appeal, although the opinion does not specify when the cumulative-error objection itself must be made at trial.

The Court of Appeals remanded the case to settle and supplement the record in Criswell v. State, 2025 Ark. App. 563.  The court was concerned about the legality of Criswell's sentence in this revocation case.  There were two counts against Criswell; the original sentencing order and the revocation sentencing order both reflected that a habitual-offender enhancement applied to one count, but not the other.

The problem was that, without the sentencing enhancement applied to the other count, Criswell's sentences - both originally and upon revocation, as to this count - were too long, and thus illegal. 

 

While the failure to check the habitual-offender box for Criswell’s possession-of-a-controlled-substance charge on both sentencing orders may well have been a mere clerical error, we do not make that decision ourselves. In Jacobs v. State, 2023 Ark. App. 21, we were presented with similar questions regarding the factual bases for the circuit court’s imposition of an extended term of imprisonment. In that case, we remanded the matter to the circuit court with instructions for it to settle the question as to what, if any, clerical errors existed as to the sentencing order and to correct the sentencing order nunc pro tunc if clerical errors were found to exist.

Criswell, 2025 Ark. App. 563, at 4.  The case was remanded to settle the record by ensuring proper application of the sentencing enhancement and to correct any errors.

Finally, in Minor Child v. State, 2025 Ark. App. 552, the Court of Appeals considered whether the notice of appeal properly designated the order appealed.  The notice stated that MC appealed the October 25 "deemed denial" of a post-trial motion; in fact, an order had been entered on October 11 denying that motion.

The court noted a Supreme Court holding: "The supreme court has held that when it is clear what order the appellant is appealing from given the issues raised in the notice of appeal, an inaccurate date listed for the order appealed from in the notice of appeal is merely scrivener's error." Id. at 4.  After referencing a couple of its own cases, the court concluded:

 

 Here, appellant’s amended notice of appeal did not specifically identify the October 11 order denying his motion, but it was timely as to that order and stated that he was appealing the denial of his motion. We hold that the notice of appeal is effective to appeal the denial of his motion.

Id. at 4.

Thank you for reading.