Update on Alabama Appellate Practice & Procedure:

1. Deborah Alley Smith Update on Alabama Appellate Practice & Procedure: Avoiding Malpractice When Handling Appeals

2. Amendments to Rules of Appellate Procedure • Key Amendments Regarding Private Information • ARAP 28(d)(8) • Any documents filed with the Court that should not be made available to the public on an online electronic database must state at the top center of the front page, in bold lettering at least one inch in height, that the content is private under either ARAP 52 or ARAP 56

3. Amendments to Rules of Appellate Procedure • Key Amendments Regarding Filing • ARAP 11(a) • Appellee need not give notice to trial court when filing its response brief • Second copy of the record on appeal need not be filed in the appellate court, because records are now filed electronically • ARAP 25 • Amended to allow documents to be filed by way of third-party carrier • Tracks FRAP 25 • ARAP 31 • Amended to require the filing of one original and nine copies of briefs with the Supreme Court • ARAP 57 • Adopting the Interim Electronic Filing and Service Rule

4. Amendments to Rules of Appellate Procedure • Key Amendments Regarding New Filing Fees • ARAP 35A • Direct appeal • $200 • Petition for Permission to Appeal (ARAP 5) • $150 • Petition for Writ of Certiorari • $150 • Petition for Extraordinary Writ (ARAP 21) • $150

5. Recent Cases – Pitfalls to Avoid • Appealability – Final Judgments • General Rule: Appealable Final Judgments = ones that fully dispose of all claims. • Specific Pitfalls Related to Final Judgments: • Trial Court’s Failure to Tax Costs and/or Fees • Dismissals Without Prejudice • Trial Court’s Denial of a Motion to Dismiss • Separated vs. Severed Claims • Consolidated Cases • Rule 54(b) Orders

6. Recent Cases – Pitfalls to Avoid • Appealability – Interlocutory (“Non-Final”) Orders • Orders Related to Injunctions • Orders Regarding Motions to Compel Arbitration • Orders Regarding Appointment of Receivers • Orders Determining the Right to Public Office • Orders Denying Petitions to Intervene as of Right • Orders Regarding Class Certification Motions • Orders Regarding Motions for New Trial

7. Recent Cases – Pitfalls to Avoid • Perfecting an Appeal – Timely Filing • General Rule: The timely filing of a notice of appeal is a jurisdictional act. • Certain actions will toll the time for filing a notice of appeal: • Post-Judgment Motions under ARCP 50, 52, and 55 • Rule 59 Motions • Specific Pitfalls Regarding the Deadline for Filing an Appeal: • Rule 60 Post-Judgment Motions • Rule 62 Motions • Rule 59.1 “Denial by Operation of Law” After 90 Days

8. Recent Cases – Pitfalls to Avoid • Perfecting an Appeal – The Notice of Appeal • General Rule: The notice of appeal is filed in the trial court and must specify: • (1) the party taking the appeal • (2) the judgment or order appealed from • (3) the court to which the appeal is taken • Filed with the Notice of Appeal: • (1) a docketing statement (ARAP 3) • (2) the docketing fee (ARAP 12 & ARAP 35A) • (3) security for the costs on appeal (ARAP 7) • Specific Pitfalls Regarding the Notice of Appeal: • Appealing as to Multiple Parties • Technicalities of Filing the Notice

9. Recent Cases – Pitfalls to Avoid Staying Execution of the Judgment Pending Appeal General Rule: In most cases, Rule 62 provides an automatic stay of execution for 30 days following the entry of judgment. Supersedeas Bond: To stay the judgment pending an appeal, the party against whom the judgment was entered must post a supersedeas bond in the amount of 125% of the judgment (150% if the judgment is $10,000 or less) and have the bond approved by the clerk of the trial court.

10. Recent Cases – Pitfalls to Avoid • Cross Appeals • General Rule: If a timely notice of appeal is filed by any party, any other party may file a notice of appeal within 14 days of that notice, or within the original time for appeal, whichever is later. • Specific Pitfalls Regarding Cross Appeals: • Adverse Aspects of Judgment not Included as Issues on Appeal by Appellant • Appellee’s Intention to Seek Enlargement of Own Rights or Lessening of Rights of Adversary • Defending the Trial Court’s Ruling

11. Recent Cases – Pitfalls to Avoid • Special Procedures for Appealing Arbitration Awards • General Rule: • ARCP 71B • Within 30 days of arbitration award, file notice of appeal in the circuit court • Clerk will enter the arbitration award as the final judgment of the court • Any party opposed must then file a Rule 59 motion to set aside or vacate within 30 days of the entry of the judgment • ARAP 4(e) • Within 42 days of the order granting or denying Rule 59 relief, a party may appeal as a matter of right • Specific Pitfalls Related to Appealing Arbitration Awards: • Valid Grounds for Challenging Arbitration Awards • Prerequisites for Judicial Review of Arbitration Awards

12. Recent Cases – Pitfalls to Avoid • Petitioning for Extraordinary Writs • Timeframe for Filing: The presumably reasonable time for filing is 42 days. • Tolling the Timeframe: Motions to reconsider and petitions for permission to appeal do not toll the presumptively reasonable timeframe for filing. • Outside the Presumptively Reasonable Timeframe: Petitions filed outside of 42 days must include a statement of circumstances constituting good cause for consideration. • Contents of Petition: The evidentiary basis for the appellate court to make a ruling must be attached. • Specific Pitfalls Related to Extraordinary Writ Proceedings: • Failure to Attach Necessary Evidentiary Basis May Result in Summary Denial • Fictitious Parties and Statute of Limitations Arguments • Writs Related to Discovery Orders

13. Recent Cases – Pitfalls to Avoid • The Record on Appeal • General Procedure: • Within 7 days of filing notice of appeal, appellant must designate portions of the record, and complete a transcript purchase order and pay the estimated cost of the transcript to the reporter • Appellee has 7 days after that to designate additional portions of the record • Trial court clerk has 28 days to assemble the clerk’s record • Court reporter has 56 days to complete the transcript • Within 7 days after the completed transcript is filed, the clerk of the trial court must compile the entire record on appeal • The clerk’s certificate of completion initiates the briefing schedule

14. Recent Cases – Pitfalls to Avoid • The Record on Appeal • Specific Pitfalls Related to the Record on Appeal: • Burden of Offering a Sufficient Record • Supplementing the Record • Evidence Not in Record

15. Recent Cases – Pitfalls to Avoid • Arguments Available on Appeal – Waiver/Preservation of Error • Arguments Not Raised Before Trial Court • NB: It is better to present arguments for the first time in a post-judgment motion to the trial court, where the trial court has discretion to consider them, rather than on appeal, where the appellate court will not consider them. • Unsupported Arguments Raised on Appeal • Sufficiency of the Evidence Arguments • Exemption to General Rule Regarding Sufficiency of the Evidence Arguments • Arguments Regarding Evidence Necessary to Raise Jury Question • Evidentiary Objections vs. Motions in Limine

16. Recent Cases – Pitfalls to Avoid • Specific Issues • Jurisdiction • Absence of Indispensable Parties • Lack of Subject Matter Jurisdiction • Void Judgments

17. Recent Cases – Pitfalls to Avoid • Specific Issues • Constitutionality • Constitutional Questions Irrelevant to Resolution of Case

18. Recent Cases – Pitfalls to Avoid • Specific Issues • Negligence of Attorney • Imputing Attorney Negligence

19. Recent Cases – Pitfalls to Avoid • Specific Issues • Damages and Remittitur • Remitting Compensatory Damages Award

20. Recent Cases – Pitfalls to Avoid • Arguments Available on Rehearing • Limited Scope of Review on Rehearing • On the one hand, do not restate what was argued in the principal briefs • On the other hand, do not raise new arguments not previously presented

21. Q&A