Litigation

A Practitioner's Note on Arkansas's No-Citation Rule, Highlighted by Today's Decision in Dodson

By H. William Allen et al.

Today's per curiam in Dodson v. Norris highlights a textual subtlety of Rule 5-2: the plain text of the rule does not bar citation of unpublished decisions from other jurisdictions.

Rule 5-2 of the Supreme Court and Court of Appeals of Arkansas states, in pertinent part (emphasis supplied):

Opinions of the court of appeals not designated for publication shall not be published in the Arkansas Reports and shall not be cited, quoted or referred to by any court or in any argument, brief, or other materials presented to any court (except in continuing or related litigation upon an issue such as res judicata, collateral estoppel, or law of the case).

(A note on the words "court of appeals" after the jump.)

The rule creates an interesting situation: advocates are free to tell the Arkansas Supreme Court what, for example, the Idaho Court of Appeals held via unpublished opinion on a certain issue, and even urge adoption of that court's reasoning. But advocates are not allowed to tell the Arkansas Supreme Court  what its own Court of Appeals held on the same issue.

Of course, the opinions of the Idaho Court of Appeals and the Arkansas Court of Appeals are equally binding on the Arkansas Supreme Court, that is, not at all.

The reference to "the court of appeals" certainly refers to the Arkansas Court of Appeals, consistent with the context of the rules and all of the other mentions of "the court of appeals" in the Rules. It is interesting that "Court of Appeals" is generally capitalized elsewhere in the rules, but not here.

Full post as published by Arkansas Business Litigation Blog on April 10, 2008 (boomark / email).