concurring. I concur in the majority’s decision to reverse and remand this case for a new trial because of the trial court’s erroneous application of Ark. Unif. R. Evid. 503 to the testimony of Dr. Stevens. The dissenting j udges argue that we should not have decided this issue. Although the dissent does not expressly say so, it seems to suggest that we ought to apply Supreme Court Rule 9(e)(2) and affirm this case because the appellant’s abstract of Dr. Stevens’ testimony regarding his treatment of Marcella Shelley is deficient. The dissent overlooks the trial court’s refusal to order Dr. Stevens to proffer his testimony into the record. Appellant’s counsel asked the trial court to issue such an order, and the trial court refused to do so. Because of this refusal, Dr. Stevens’ testimony of his treatment of Marcella Shelley was not in the record to be abstracted by appellant’s counsel. The dissent’s failure to recognize this fact produces a curious result — appellant is denied a new trial because his counsel could not perform the impossible task of abstracting nonexistent testimony. In their opinion, the dissenting judges cite five cases that set out the requirements of a proper appellate abstract. Of these, only two cases, Williams v. Owen, 247 Ark. 42, 444 S.W.2d 237 (1969), and Kitchen v. State, 271 Ark. 1, 607 S.W.2d 345 (1980), seem even remotely close on their facts to the instant case. As I read these two cases, their teaching is simply that counsel for appellants must abstract pertinent testimony in their briefs and cannot merely indicate, by references to page numbers, what pertinent testimony may be found in the record. The purpose of this rule is obvious — to spare appellate judges the burden of passing from office to office the single copy of the often massive trial record. This rule makes sense where there is pertinent testimony in the record. Because the testimony is in the record, counsel can abstract it. To insist, as the dissenting judges do, that this rule be applied to a record where the pertinent testimony was never allowed in the record in the first place creates a Catch-22 situation.1
As a final point, the dissent strikes off on this tack alone on its own motion. Not even the State, in its brief, bothered to call our attention to the so-called deficiencies in the appellant’s abstract that the dissent has seized upon. Obviously, the State agrees with this Court’s majority that no deficiencies exist warranting the application of Rule 9 to this case.
“Catch-22: a paradox in a law, regulation, or practice that makes one a victim of its provisions no matter what one does.” Webster’s New World Dictionary of the American Language, at 224 (2d ed. 1984).