Arkansas Supreme Court Reminds Appellants to Abstract Summary-Judgment Hearings
[W]e note that [appellant] has failed to abstract the February 7, 2006 hearing before the circuit court on the summary judgment motion. [Appellant] explains in its abstractors' notes that it did not abstract the hearing because there are no colloquies between the circuit court and counsel as are necessary to an understanding of the questions presented on appeal. We disagree.
Vimy Ridge Muni. Water Imp. Dist. No. 139 v. Ryles, No. 06-1028.
This small paragraph of dicta raises a recurring issue in Arkansas appellate practice:
The Court has reiterated many times, of course, that it is "resolute and consistent in holding that all material information must be included in the abstract and that we will not be placed in the position of having seven justices scour the one record for absent information.” Baptist Health v. Murphy, 365 Ark. 115, ___ S.W.3d ___ (February 2, 2006).
An appellant often faces the choice of whether to include seemingly uninportant information in the abstract. In making this decision, one might empathize with the observation of Professor Watkins and Judge Marshall:
Abstracting poses something of a Hobson's Choice for lawyers. If the appellant's attorney omits something from the abstract, the appellate court will not reach the issue. Consequently, the tendency is for the attorney to abstract virtually everything in the record, even material of marginal relevance to the issues on appeal.
John J. Watkins & Price Marshall, A Modest Proposal: Simpify Arkansas Appellate Procedure by Abolishing the Abstracting Requirement, 53 Ark. L. Rev. 37, 45-46 (2000). As this week's decision demonstrates, the dilemma persists despite the Court's softening of the old practice of summary affirmance. E.g., MacNeil v. Lillard, 79 Ark. App. 69, 71, 86 S.W.3d 389, 390 (2002) ("[T]he court must now allow rebriefing before summarily affirming [in light of] [t]he modification of the abstracting rules set out in In Re: Modification of the Abstracting System, 345 Ark. Appx. 626 (2001)).
Ultimately, it seems that Judge Crabtree’s advice continues to hold true: "If you argue it, abstract it." Terry Crabtree, Abstracting the Record, 21 U. Ark. Little Rock 1, 10 (1998).
