The opinion
David Newbern, Justice, concurring. The majority opinion is correct. The ruling on Mr. Hood’s directed-verdict motion renewal does not appear in his abstract of the record. As we limit our review of the record to that which is contained in the abstract, there was, so far as we allow ourselves to be concerned, no ruling on the motion. In view of the fact that the abstract shows that the trial continued after the motion was made, we may well be in contempt of common sense as Justice Brown allows in his concurring opinion. If so, it is not the first time.
The system of presenting the record to this Court through abstracting, and limiting our review to that which has been abstracted, has served this Court for a number of years. The abstracting method has indeed been a major contributor to our practice of keeping current despite a crushing load of cases. Anyone familiar with that system, however, must be aware that it has not been free of criticism and that resulting technical rulings have deprived this Court and our Court of Appeals of opportunities to rule on the merits of cases. We have always justified the system by repeating that there are seven justices on the Court and only one record of trial. See, e.g., Cosgrove v. City of West Memphis, 327 Ark. 324 , 938 S.W.2d 827 (1997); Duque v. Oshman’s Sporting Goods, 327 Ark. 224 , 937 S.W.2d 179 (1997). Thus, each of us must have an abstract of the record because it is too much trouble or too time consuming for us to share the record.
On the other side of the “only one record” coin, however, we often say we may “go to the record” to affirm. See, e.g., Hosey v. Burgess, 319 Ark. 183 , 890 S.W.2d 262 (1995); Haynes v. State, 314 Ark. 354 , 862 S.W.2d 275 (1993). We obviously mean that, even though the abstract does not contain an essential item, if we can find it in the record we may recognize its existence if the result is to affirm. There also have been instances, exemplified by Justice Brown’s concurring opinion in this case, in which time has been found by a justice to go to the record to see what happened at the trial. Apparently the justice who possessed the record while the case was on appeal in this Court had no objection to sharing it with Justice Brown. So long as all appellate judges and justices maintain offices near each other and near the Clerk’s Office — in our case all in the same building — records of trial are available to any who care to see them.
The time has come again to consider being less technical. In our per curiam order of July 15, 1996, entitled, “In re: Supreme Court Rule 1-2, and Other Matters Related to the Jurisdiction of the Supreme Court and the Court of Appeals,” we noted the expansion of the Court of Appeals and discussed the role each court should play in the context of revising the manner of dividing jurisdiction. We provided for the cover sheet as the first step in identification of cases which should come to the Supreme Court where they will be decided by seven justices sitting en banc as opposed to, usually, the panels of three judges in the Court of Appeals. With the expansion of the Court of Appeals that Court will soon be relieved of the burden of the large backlog of cases it has endured the last few years. Contemplated revisions of our rules will put an end to the Supreme Court’s having to decide as many as ten or twelve cases per week so as not to develop a backlog.
By a per curiam order of October 17, 1988, entitled “In Re: Revision of Rules of the Supreme Court,” we began an experiment in which parties to cases on appeal in this State were allowed to forego presenting abstracts and to present instead an expanded “statement of the case” to be supplemented as necessary with an appendix containing photocopies of crucial pages from the record of trial. The system we devised was much the same as those used in other states and by the federal courts. Our announced purpose was to alleviate our concern “about whether our system requiring abstracting of the record is worth the effort lawyers must devote to it, and thus the money litigants must invest in it, in each case.”
Our appendix system was flawed in some ways. For example, it did not require record-page references in the statement of the case, and it had no provision for presenting a joint appendix. The main reason we called a halt to it, however, was not that such problems were insoluable; rather, it was that lawyers could not seem to get used to the idea that the statement of the case was the primary replacement for the abstract and that the appendix was to be used only as a resource tool to resolve any potential or extant dispute about facts or what had happened at the trial. Lawyers who had been made justifiably paranoid by our decisions refusing to decide the merits of cases due to incomplete abstracts seemed to have the feeling they needed to present far more than was necessary in an appendix. Appellate judges complained of needing wheel barrows to carry briefs with their appendices. There seemed to be no realization on the part of attorneys who were not accustomed to that system through federal court practice that there was no draconian provision for affirmance in the event of an incomplete appendix.
We ended the appendix experiment by our per curiam order of June 10, 1991, entitled In Re: Revision of the Rules, which we concluded with the following language:
If we find a way to bring our case load and that of the Court of Appeals within reason, we may return to the appendix system, with some revisions, because we continue to wish to implement the goals stated in our original order. We would like our system to be as inexpensive and simple as possible. Under other circumstances we will be able to exercise the patience required to permit lawyers and litigants to become accustomed to the change and to fine tune it with revisions.
In a profession devoted to achieving justice and fairness through precedent, stability and rebanee upon the past are very important; unwillingness to change is a resulting trait. Given (1) the fact that this Court and our Court of Appeals may at last be in a position to exercise the patience necessary to facilitate a major change in the manner of presenting cases to us, (2) a better effort on our part to produce a less flawed appendix-system rule, and (3) a stronger effort to educate lawyers and litigants concerning the proper use of such a system, we should be able to decide our cases more often on their merits than on the failures of lawyers or litigants to tell us what is in a record of trial which is usually just down the hall and certainly present in our conference room as we hold our decisional conference.
If we and our Court of Appeals can find the fortitude to implement a system that will permit us to reach the merits of cases which hitherto have been caught in the abstract trap, the administration of justice in Arkansas will be better served.