Category: Rule Changes

New Appellate Civil Rule 12: Substitution of Parties

There is now in place an appellate procedure rule permitting substitution of parties on appeal. Rule of Appellate Procedure-Civil 12 went into effect on January 1, 2018

Under Rule 12:

  • Substitution. If a party dies after the appellate court acquires jurisdiction of the case, the decedent’s representative may be substituted upon motion filed by the personal representative, any party, or the attorney for the deceased.
  • Suggestion of death. If there is no personal representative, any party may file a suggestion of death on the record. Unless a substitution motion is filed within 90 days, the court may dismiss the appeal or take other appropriate action.
  • Incompetency. If a party becomes incompetent, the party’s representative may be substituted on motion filed with the court.
  • Public officers. When a public officer is a party in his or her official capacity and dies or otherwise ceases to hold office while the case is pending, the officer’s successor is automatically substituted.

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New Rule 45.1: Subpoena for Interstate Depositions and Discovery

As of January 1, 2018, there is a new Rule 45.1 in the Arkansas Rules of Civil Procedure.

Rule 45.1 is an implementation of the Uniform Interstate Depositions and Discovery Act.  The UIDDA has been enacted in about 40 states.

Under Rule 45.1:

  • Procedure:
    • An attorney in a pending out-of-state case may have issued a subpoena (for attending a deposition or for records) in the state where the case is pending.
    • The attorney may then submit the out-of-state subpoena and an Arkansas subpoena form (with the same terms) to the Arkansas clerk.
    • The clerk will then issue the Arkansas subpoena without opening a case. The out-of-state attorney thus does not have to hire Arkansas counsel for the subpoena to be issued.
  • Objections. The Arkansas person served with the subpoena may serve a written objection to the subpoena or discovery sought. If that is done, the requesting party must get an order to proceed further.
  • Arkansas Jurisdiction. Arkansas jurisdiction is invoked (and an Arkansas case would be opened) if needed to enforce or resolve any issues regarding the subpoena.
  • Arkansas Law. The discovery conducted in Arkansas must comply with Arkansas law.

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New Rule 87: Limited Scope Representation

As of December 14, 2017, there is a new Rule 87 in the Arkansas Rules of Civil Procedure.

Under the new rule:

  • Scope of representation may be limited per Rule 1.2(c) of the Arkansas Rules of Professional Conduct.
  • A “notice of limited scope representation” should be filed at the initiation of a proceeding or beginning of the representation.
  • The notice is not required if representation is limited to drafting papers for an otherwise self-represented person. In that case, the attorney is not required to sign the drafted papers but must include a notation saying: “This document was prepared with the assistance of [insert name of attorney], a licensed Arkansas lawyer, pursuant to Arkansas Rule of Professional Conduct 1.2(c).”
  • Termination of the representation does not require court approval. It ends when the attorney files a “notice of completion of limited scope representation.” It must be served on the client.
  • Service is not required on limited-scope attorneys for matters outside the scope of representation.

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April 2015 Revisions to Rules 11 and 42

Effective April 1, 2015, significant changes were made to Rules 11 and 42 of the Arkansas Rules of Civil Procedure.

The changes were announced by the Supreme Court of Arkansas in a per curiam opinion (2015 Ark. 88) issued on February 26, 2015.

Here are some of the changes:

Ark. R. Civ. P. 42 – Punitive Damages Bifurcation 

Rule 42 now has a new paragraph (b)(2). It states that in any case before a jury in which punitive damages are sought, on the motion of any party and if warranted by the evidence, a bifurcated trial shall be conducted before the same jury.

The issues of liability and compensatory damages are to be decided in the first trial. The issue of liability for punitive damages may be decided in either the first or second trial. That is up to the discretion of the trial judge.

The issue of the appropriate amount of punitive damages can only be decided at the second trial. Evidence of the defendant’s financial condition cannot be admitted in the first trial unless relevant to some other issue.

Ark. R. Civ. P. 11 – Expert Testimony Certificate; Sanctions 

Rule 11 has been reorganized with additional paragraphs added for clarity.

It contains a new requirement under (b)(5) that when a claim or affirmative defense can only be established by expert testimony, the party certifies that it has consulted with an expert or learned in discovery of an expert’s opinion who (i) is believed to be competent under Ark. R. Evid. 702 to express an opinion in the action and (ii) concludes based on available information that there is a reasonable basis for the claim or affirmative defense.

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New Rule 8 Supersedeas Bond Limit

Steps

In its August 7, 2014 per curiam opinion (2014 Ark. 340), the Arkansas Supreme Court made a revision to Arkansas Rule of Appellate Procedure-Civil 8 that was effective as of that date. (The change stemmed from work of the Special Task Force on Practice and Procedure in Civil Cases.)

The revised Rule 8 adds provisions to the part of the rule concerning supersedeas bonds (paragraph (c)). Previously, the rule did not state a maximum amount for a supersedeas bond.

Pursuant to Ark.Code Ann. § 16-55-214, the rule now states that the maximum amount of a required bond is $25 million for any civil action “regardless of the amount of the judgment.”

However, also per the statute, the rule permits the trial court when necessary to enter orders preventing purposeful dissipation or diversion of assets in an attempt to evade the judgment. When necessary, the trial court may in such cases enter orders including requiring bond up to the full amount of the judgment. Continue reading New Rule 8 Supersedeas Bond Limit