The Legal Notepad

Kentucky Rules for Appellate Procedure Changes 4-1-26 – PART 2

Episode 17: Louisville attorneys Rob Mattingly and Kevin C. Burke are happy to provide an opportunity for 30 minutes of Kentucky continuing legal education credit. This episode of the Legal Notepad podcast is PART 2 of the discussion of amendments to the Kentucky Rules of Appellate Procedure (RAP) taking effect on April 1st, 2026. A major update to RAP 22 makes the civil appeal pre-hearing statement optional, removing a common "gotcha" that previously limited the issues a party could raise if they were omitted from the initial form. The new RAP 23 serves as a standalone rule highlighting the critical requirement to notify the Attorney General of any constitutional challenges in both the trial and appellate courts. RAP 30 provides more certainty for calendaring by clarifying that a reply brief is due 15 days after the last appellee brief is filed or due, while RAP 31 updates word limits for combined reply briefs. Further changes include RAP 32, which waives the statement of points and authorities for briefs under 1,750 words, and RAP 60, which corrects a clerical error regarding original actions. Finally, RAP 63 modifies supersedeas bond requirements by eliminating "damages for delay" and confirming that the trial court retains jurisdiction over all bond-related matters. Editor's Note: If you are an attorney and would like CLE credit for this episode, visit the Kentucky Justice Association website [https://www.kentuckyjusticeassociation.org/], click the Education and Training tab and look for the podcast. Jim Ray: Welcome back to this episode of the Legal of Notepad podcast. This is actually a continuation of something we started in Episode 16. So Rob and Kevin jumped into the Kentucky Rules for Appellate Procedure, which are going through some changes. In fact, effective April 1st, 2026, there were a number of amendments that are coming into play and they started discussing several of those. So this episode 17 is actually a continuation of that topic. So with that, I'll hand it back over to Rob and let's get going. Robert Mattingly: Alright, listeners. Jim is exactly right. Episode 17 is PART 2 to Episode 16. Starting April 1st of this year, 2026, there are several new revisions to the Rules of appellate procedure. We've got Kevin Burke in the studio and he is going through all of those with us. I've got to tell you, appellate law is not something I do. I tend to find that Kevin, can I call it a snooze fest? I don't mean to make fun of what you do. Kevin Burke: I mean, I understand. I can understand and appreciate that sentiment. Robert Mattingly: I mean, sometimes I'm like, give me a good contentious deposition. Kevin Burke: There you go. Robert Mattingly: Or a rowdy witness. What do you all do up on appeal? Are you like, man, I hope they say something mean in their brief. Kevin Burke: Basically. Yeah, that's it. It's more limited than what you're doing in the trial court where stuff happens blows up on a day-to-day basis. Yeah. So it's not like that. Robert Mattingly: You and I try to have a lot of fun for those that listen to Episode 16 [https://directory.libsyn.com/episode/index/show/99669608-cac2-40e7-98b5-8cc2de99860b/id/40605610], and please, if you haven't listened to Episode 16, you might want to stop this podcast and move over and listen to it. This is PART 2. Let me do the clerical stuff I have to do every time. This is going to be submitted to the Kentucky Bar Association for hopefully 30 minutes. That's our goal. 30 minutes of CLE. If you listen to Episode 16, that would've also been 30 minutes. So you would get a full hour on this. That should be approved through, as you all know, our CLE deadline of June 30th every year. So in this case, June 30th, 2026. And then usually what we'll do is renew them for a year. So hopefully you can get credit all the way through up to June 2027. I'll also remind us if you listen to that, number 16, we're trying to have a little fun. When you abbreviate Rules of Appellate Procedure, it is RAP. So, we have tried to work in, just to make this a little fun, various rap references, and we're trying to count them. So, if you hear them, email us and maybe we'll have a prize for whoever gets the count, right. Although I think we tend to probably give most of them away. Kevin, why don't you do this? Start by just giving us a quick review. Remember, this is going to be about 30 minutes, so give us a real quick review of what we covered in 16. Kevin Burke: Yeah, so these again are the rule changes that go into effect on April 1st, 2026. These are revisions to the complete overhaul of the rules that went into effect in 2023. So what we covered in our last episode, we covered what happens when you have multiple appellants, multiple appeals, and how those appeals can either be consolidated or heard together by, in the court of appeals, the same panel or in the Supreme Court, that they can be heard together even on the same day for oral argument purposes, that sort of thing. That was RAP 2. And then we covered some minor changes in RAPs 5 and 7 about initials, redactions, that sort of thing. Also, dismissals of appeals and what happens under certain circumstances. We also covered RAP 8, which is death substitution and amendment of parties, and what happens if your client dies or a party to the appeal happens to pass and what you need to do, what actions you need to take when that happens. And you do have some pretty significant obligations when that happens. You can't just say, oh, let's just let it ride. Robert Mattingly: Well, as we talked about in 16, that revival and substitution is pretty tricky. So make sure you go back and listen to that. But no, Kevin, that's a great review. Go back and listen to that episode, get your CLE credit. With that, why don't we transition into today's topic? Kentucky Rules of Appellate Procedure – Rule 22 Robert Mattingly: All right, well, here we go. The first one we're going to cover today is Rule of Appellate Procedure (RAP), rule number 22. In relation to 22, Kevin, why don't you tell us what's popping? Kevin Burke: All right, what's popping? Jack Harlow. There we go. Jack, the local guy, Jack Harlow, local fellow, doing great. We're very, very proud of him. Shout out to him, he's Atherton High School graduate, same school my daughter graduated from, so just had to throw that out there. Robert Mattingly: Hashtag Jack Harlow. And if you're listening, Jack, send us an email. We can tell you how the Rules of Appellate Procedure works. Kevin Burke: Send us some good stuff, free stuff too. Robert Mattingly: Alright, jump in. Tell us what we got. Kevin Burke: Alright, so RAP 22 covers the pre-hearing procedure. So if you've handled an appeal, a civil appeal, you probably know that after you file the notice of appeal, you have to do something within a few days. In fact, 20 days after the notice of appeal, you have to file something called a civil appeal pre-hearing statement. And this has been around for a while. This was included in the 2023 overhaul of the rules. It's basically a form, it's an AOC form administrative office of the court's form, that you fill out. And the most important part of that form is always has been that you have to identify all the issues that you intend to raise in the appeal. Robert Mattingly: And that was a big deal. You had to do this pre-hearing statement, and if you left an issue off that pre-hearing statement under the old rule, you had problems. Kevin Burke: That was a big problem. So these were kind of gotcha issues where if you failed to identify that issue in this just standard AOC form, then you were limited in the issues you could raise later on in your brief when you filed your brief. So it actually limited the review, the standard of review. So you weren't like the court of appeals wouldn't say we're not going to consider it at all, but you were limited to what's called palpable error review. So if you didn't identify that issue, maybe it was a really good issue, could be a summary judgment issue where it would be de novo review, the court would look at it for the first time, that sort of thing. But if you didn't identify it as an issue in your pre-hearing statement and you briefed it later, you were limited to palpable error review, which is a really high, like it's got to manifest injustice, that sort of thing. Robert Mattingly: Yeah, you did not want to be there. Kevin Burke: You do not want to be under the palpable error rock, I can tell you that. So it really limited your ability to argue issues if you didn't identify them in this civil appeal pre-hearing statement. Robert Mattingly: And that's the old rule. That's the rule that I grew up with from the time of law school forward, you've probably done, I mean maybe a thousand times, but making sure you get the pre-hearing statement right. I know we've had discussions and you've talked to lawyers before, they're midway through the appeal and now they're calling you because they didn't do that pre-hearing statement right. And in the committee, the committee gets together. For those that don't recall from Episode 16, Kevin was on the committee that worked these rules that put them together and modified them, et cetera, and made these changes. So what was the committee's discussions on that rule? Why did you decide to change it and how does it work now? Kevin Burke: Yeah, so really the purpose, what the committee looked at was and considered was the purpose of the rule. The purpose of the rule was to expedite settlement discussions. So the identification of the issues gave notice to the opposing party of what issues you intended to brief down the road. And the court of appeals might have a pre-hearing conference where it gets the parties together to talk about potential settlement or maybe streamlining the issues or something along those lines. So the whole purpose was to facilitate settlement. But in practice, what had been happening was that there were fewer and fewer pre-hearing conferences scheduled. There are a number of reasons why that happened, but it just happened. So what ended up happening was people were filing these forms for really no good reason, and it limited, as we discussed, it limited your ability to present issues down the road in briefing. So the committee recognized that, and also the court of appeals recognized this too. It's like, well, isn't that just creating a needless gotcha by filing this form that limits you to the issues you identify in the form when there's really no corresponding benefit to the form as far as settlement discussions or anything along those lines. And so the committee's thought and the one that was adopted by the Supreme Court in the amendment that goes into effect April 1st is that, well, let's make it optional. So the good thing now is, is that if you still want to request a pre-hearing conference, you can, and you file a motion for a pre-hearing conference and you attach this AOC form. Robert Mattingly: Which makes sense. Kevin Burke: Which makes sense. You didn't take it away, we're not taking anything away from anybody. But now it's optional. So now, because it's optional, you're no longer limited to the issues identified in that statement. You don't have to file the statement at all if you don't want to. And you're not any worse for the wear if you don't. Robert Mattingly: And it eliminates a potential gotcha for lawyers that were so worried about what they were putting. Kevin Burke: That's right. And so it's just a plus for everybody here. You haven't taken anything away and yet you've removed, well, you have taken something away. You've removed a gotcha, a needless gotcha that really tripped people up. Because I can't tell you how many times I had that conversation with people who filed a notice of appeal, maybe didn't spell out their issues in the civil appeal pre-hearing statement, and then contacted me later and I was like, Hey, we have don't match up. Yeah, Houston, we have a problem kind of a thing where we need to do something here. So this eliminates that. Our goal as a committee from the get go, when we first started meeting 10 plus years ago, was to eliminate gotchas. I mean, some gotchas are there for a reason, right? Preservation rules are there for a reason. I'm not going to go into that for our purposes today. Robert Mattingly: But this shouldn't be one where you're just trying to get the case up on appeal. Kevin Burke: When you're filing a document that has no useful purpose and it's limiting you to the issues you brief later, that's a problem. So we felt this was a good accommodation. We're not preventing anybody from trying to settle a case. In fact, people should try to settle cases. So this doesn't take that away, but it makes it purely optional. So just to kind of go back, you file your notice of appeal, now you no longer have to file a pre-hearing statement within 20 days like you do under the current rule. Robert Mattingly: So in essence, in the word of, well, the poet Kris Kross… Kevin Burke: I believe that's right. Robert Mattingly: …It's no longer a hoop, you have to jump, jump through. Kevin Burke: That was on my top of mind, Rob. I mean, when is it not is a better question. Robert Mattingly: Well, I think we got a good idea on that when we are moving through the podcast. Is there anything else on, and that's a big change. Is there anything else on rule 22 that you want to discuss before we move on? And maybe, I think you and I talked off the record what it doesn't apply to. So maybe give us 30 seconds on the cases that it doesn't apply to and then we'll move on to the next rule. Kevin Burke: And so most of your ordinary civil cases, and by ordinary, I mean if we're talking about car wreck cases, we're talking about a premises liability case, ordinary negligence, all that stuff, that's when the rule applies. But there are a bunch of cases that it doesn't apply to. So it doesn't apply to, for example, criminal cases. It doesn't apply to class action cases. It doesn't apply to prisoner confinement appeals, election appeals, contempt appeals, extraordinary writ or family court matters. So that's a lot of different types of appeals. But for the folks, I have a feeling for the folks who are listening, most of the time they are confronted with a RAP 22 situation where they otherwise would have to file a civil appeal prayer hearing statement. And now it's purely optional. Robert Mattingly: Yes, statistically speaking, that would be the majority of our listeners. Kevin Burke: Right. Robert Mattingly: Alright well, I think that really covers RAP 22. So why don't we transition into the next one? Kentucky Rules of Appellate Procedure – Rule 23 Robert Mattingly: All right. So as we continue to move on, we are moving about 14 minutes through our podcast right now. We're moving on to RAP 23. And this is going to be involving notice to the attorney general. For those that know myself and Kevin, he is talking all the time about if you're going to challenge a statute constitutionally, you've got to put the attorney general on notice. He's involved in lots of cases where people simply didn't realize that was a rule. So he's trying to go back and fix things. So that's an issue. Hopefully most of our listeners know that's a thing. But the new rule does address that. For those at home and you're dealing with the pre-hearing statements and you're dealing with, when I put the attorney general on notice and all those kind of things, I do got to give a shout out. It's always best to hire an appellate lawyer. Let them do it for you. Kevin, in your opinion, if someone had to hire an appellate lawyer, who do you think they should hire? Kevin Burke: It's going to be me in the immortal words of Justin Timberlake. Robert Mattingly: Justin Timberlake. That's right. It's going to be me. And for the running joke through here, our paralegal, Lauren, who is out today doing other things and couldn't join us, she is a massive JT fan. Kevin Burke: And yeah, shout out to Lauren. Robert Mattingly: Shout out to the JT reference. So we did that. We did that for you. I don't know if that's really considered rap or not. Kevin Burke: No, I'd maybe say hip hop, that sort of thing. Robert Mattingly: But she might get mad if we say anything negative about JT. Kevin Burke: We'll call it rap, if she wants it. I'm not going to get, nope, I'm not going to get cross with Lauren. Robert Mattingly: Why don't we agree he's the best rapper of all time? Kevin Burke: Of all time and the best artist. Robert Mattingly: I think, best artist ever. Kevin Burke: I think that would be okay. Robert Mattingly: Uh huh the shame is, she couldn't be here today and he stopped by earlier. I don't know if you remember seeing him walk in. Kevin Burke: I think I saw him come in. Robert Mattingly: Yeah, the crazy thing is he was wearing his Adidas. Kevin Burke: Yeah. Robert Mattingly: Run DMC. Kevin Burke: Run DMC. His Adidas. Robert Mattingly: So that's that. But he had to head straight back to Compton, NWA. Kevin Burke: Yeah, that's a shame. Straight back to Compton. Robert Mattingly: Straight out of Compton. Straight out of Compton. Kevin Burke: Straight out of Compton. Robert Mattingly: But that couldn't work that way or straight to? Kevin Burke: Straight back. Robert Mattingly: I don't know. It's hard to say to and from my hearing's, not great. Anyway. Alright, well let's get back to focusing the Bar's going to want us to cover enough minutes to get these credits. We are on RAP 23. Kevin, tell us all about it. Kevin Burke: Okay, so RAP 23 is a new rule. And so this is a standalone rule. It didn't exist before in the 2023 rules. There was no RAP 23. So this is brand new rule, standalone rule on attorney general notice. And this one is near and dear to my heart because as Rob said, I can't tell you the number of times that I get contacted by another attorney and they say, I've made a constitutional challenge. I made an argument why a statute is unconstitutional. And the first thing out of my mouth is, did you notify the Attorney General? And then there's a little bit of a quiet period and there's like no, and they said, well, why can't we just do it now? And I said, well, you had to do it in the trial court when you made the constitutional challenge. So this rule addresses notice to the Attorney general on appeal, but I want to make this clear. You must give notice to the Attorney General when you first raise a constitutional challenge in the trial court. So that means you need to send a copy of the complaint to the Attorney General. You need to send a copy of your brief, which would be, it could be a motion for summary judgment. It could be a motion for declaratory relief. It could be a response to a motion for summary judgment. Whenever it's first briefed, you need to send the copy of that brief to the Attorney General along with the complaint and let them know you are making a challenge constitutional challenge to a statute that has to be do it early and often. I don't know how else to emphasize that you have do that. Robert Mattingly: And does that go for the plaintiff's lawyer and the defense lawyer? Because sometimes the defense lawyer will raise a challenge. Kevin Burke: The party that's making the challenge, it's incumbent on them to alert the Attorney General. So yeah, if you're relying on a statute as a plaintiff and the defendant is challenging the statute is unconstitutional, it's their obligation to notify the Attorney General. As a plaintiff, you wouldn't want to give them a heads up to do that because later on you would argue they waived it because they never alerted the Attorney General. Robert Mattingly: There's something that both sides, the rule does apply to both sides. Kevin Burke: The rule applies both sides. Whoever's making the constitutional challenge, they have to give a notice. So again, fast forward, let's say you did the right thing, you gave notice to the Attorney General in the trial court and the statute is KRS 418.075. So that's the statute that requires you to give notice to the Attorney General in the trial court and you make a constitutional challenge. It specifies how you give that notice to the Attorney General and what the documents you have to send to the Attorney General. So again, KRS 418.075, you have to read that rule if you're making a constitutional. Robert Mattingly: So, for our listeners, obviously I was going to have RAP 23 in the case material. I'll also go ahead and include 418.075 in the case material too you want to make, because that rule now is just kind of codified, right? Kevin Burke: Right. Yeah. So this was because people are either unaware of the statute or they feel like when they appeal, they only need to look at the rules of appellate procedure. And that covers everything, which it doesn't, by the way. Statutes also inform appeals. So you have to be aware of statutory rules in addition to the rules of appellate procedure. And this was one the committee talked about for a good long time. It doesn't change existing practice at all, but what it does is it just highlights and throws it in the rule because so many people miss this rule. So many people miss giving notice to the attorney general and giving it the right way, that we just wanted to create a standalone rule that tracked exactly KRS 418.075 as far as how to give notice on appeal. So again, going back to the trial court, you've given notice to the Attorney General, let's say, and the trial court sent all the documents identifying your constitutional challenge, et cetera, et cetera, and you lost, okay, then you appeal and you think, well, I preserved, you might think to yourself, I've preserved everything. I already gave notice to the Attorney General, and you would be wrong if you think that because the statute imposes an additional obligation once you appeal. Okay, so once you appeal, and this is what's spelled out in RAP 23. Now once you appeal, you have to again give notice to the Attorney General, you have to send a copy of your notice of appeal, the initiating document in the court of appeals. That's usually a notice of appeal. We're going to talk about original actions in a bit that if you file an original action writ petition making a constitutional challenge, you have to send that to the Attorney General and you have to identify the basis of your constitutional challenge. So again, all of that is spelled out in RAP 23. We wanted to include it in the rules because frankly, the committee just felt people just miss this for some reason and it doesn't change. Robert Mattingly: But here's what I did. It took what the statute was already there, and said you have to do this. But as an appellate lawyer and KJA talks about this all the time, people just forget to notice the Attorney General. So it basically just puts a big bold star on it. Alert. Alert. You need to be doing this, you need to be doing this. And literally, unless you're just at home sitting on gin and juice and not paying attention at all, just like Snoop Dogg, it's kind of hard to miss now. Right? Big alert. Kevin Burke: Big alert. This is an underline, triple underline highlight, whatever you want to call it. That's what this rule does. And frankly, under the old rules, it was a little confusing because the note there was a reference to noticing the Attorney General. That's actually in RAP 22, which we just talked about in pre-hearing procedure. And it said that you had to give notice to the Attorney General in the pre-hearing statement. So it gave the illusion that you didn't have to do other things the statute required, if you just sent a copy of the pre-hearing statement to the Attorney General. So that was a little confusing. Robert Mattingly: It was because it makes it sound like you're checking the box even though you're not. Kevin Burke: Even though you're not. Robert Mattingly: But of course we just talked about for all that really paid attention, you don't even have to do a pre-hearing statement now. Kevin Burke: And so these two, RAP 22 and RAP 23 kind of work together. We removed that limited provision for notice to the Attorney General. That was in RAP 22. And then we included the rule that tracked the statute precisely. RAP 23 is a standalone. Robert Mattingly: Well, I really like this change a lot. I like it because it is the big sirens and warnings. Do this. It takes away the trap. It also eliminates the unclarity. Is that a word? Kevin Burke: I mean it's lack of clarity. Robert Mattingly: I don't think it is. I think we just made it up. That should be a rap song. Kevin Burke: I think it would be great. Robert Mattingly: Unclarity of the Mind, by Kevin and Rob. Kevin Burke: Yeah, that's right. I like it. Robert Mattingly: It clarifies what was previously unclear where you thought you were complying because you put in your pre-hearing statement because it kind of suggested that even though it didn't really say, and now all that's done. So hopefully people are listening to the podcast share with your friends. Kevin Burke: Yes, please. I mean, out of these two episodes that we're doing, I would say if you read all the amendments, read all the rule amendments, but that's a lot to ask. That's a lot to ask. People have limited time so RAP 23 is the most important, and it's the most significant change, not because it actually changes what people should be doing, but because it highlights what people should have been doing all along and they really haven't been doing. I can't tell you how many opinions come out where an opinion will say, well, we would consider this issue, but you didn't put the Attorney General on notice. And that can have serious implications, not just for your case, but for other cases. Robert Mattingly: And quite frankly, I think Boyz II Men would say, and then that would be the end of the road, Kevin Burke: And that's the end of the road for you on a constitutional challenge, if you do not alert the attorney general, for sure. Robert Mattingly: All right, Kevin, so we're doing great. We got about 10 minutes left, so that'll give us 30 minutes of really good quality CLE time. Kevin Burke: Oh, can I add just one more thing on this? So I also want to clarify that this applies to appeals. It also applies as we just referenced to original actions. So Rob, you're familiar with, you've got a bad verdict or a bad judgment that's entered, you take a notice of appeal. Robert Mattingly: Well, thanks for saying I'm familiar with that. Kevin Burke: I mean, I'm not saying all the time. I'm saying it's maybe happened once. Robert Mattingly: I get the analog. How about that? Kevin Burke: Or I'll say, Rob, you're more familiar with having to defend an appeal from getting an excellent verdict. So you're not a stranger to the appellate process. Robert Mattingly: I understand the process. Kevin Burke: But there are some circumstances where there's a discovery issue or something that happens before there's a judgment entered or that dismisses a claim or after a verdict or end of the case kind of situation. There are certain circumstances where you have to file what's called an original action in the court of appeals, usually that might involve an important discovery issue or an issue of attorney-client privilege or work product, that sort of thing. And so there can be constitutional challenges associated with those issues. So if you are the petitioner in those circumstances, the person filing the original action, you have to comply with RAP 23 as well. And that means putting the Attorney General on notice in the trial court when that issue is first raised. And it also means, again, notifying the Attorney General when you filed that original action. So I just wanted to clarify. Robert Mattingly: No, that's very important. Kevin Burke: It not only applies to appeals, but any kind of appellate, any kind of filing in an appellate court, not just a notice of appeal or appeal as a matter of right. Robert Mattingly: Got it. Okay. That's great. Well, that is important, and this is one that we really just want to pause and make sure everybody gets because it just comes up all the time. Okay, well good. Let's transition over to the next ones. Kentucky Rules of Appellate Procedure – Rule 30 Robert Mattingly: Okay, so here we go. Moving on, moving on in. I think we're getting ready to cover RAP 30, is that right, Kevin? And we need to go about another seven minutes, six, seven minutes. And I know we have several rules, but we're getting into the ones that we can probably move through kind of quickly now. So jump in and tell me what we need to know about RAP 30 brief filing deadlines. That's important. Kevin Burke: So these are minor changes we made about the filing, really, again, clarifications of the existing rules of the 2023 rules. And this is just one situation with a reply brief. So you're the appellant, you get the last word, you get to file a reply brief, but you might have multiple appellees, right? So you might have let's say three or four parties that are filing separate appellee briefs. Well, when is your reply due? You have a reply brief. So not only are you concerned about timing for your reply, let's say appellee number one files within 30 days, even though they have 60 days to file, they file early because they're go-getters. Robert Mattingly: Well, maybe they have a vacation coming up or something, right? Kevin Burke: Something like that. So they're like, I want to get this out of the way. They file on day 30. And then you have another who's like, I'm going to file on the 45th day, and then another who waits files it on the full 60th day, the due date. So when is your reply due? Because normally it's due 15 days after the single appellee brief is due. Robert Mattingly: Which has always been hard because it's hard for planning purposes. We plan things out of lawyers. So you're like, all I know is 15 days after they get it done. When are they going to get it done? Kevin Burke: Right. So, the old rule wasn't really clear on this point. It's like, well, one, you get additional words in your reply brief. If there are multiple appellees briefs, that's one thing. So the normal reply brief allows you 1,750 words, but you get another 1,750 words if there's an extra appellee. But anyway, this clarified timing and what it says is that the reply, whether it's 1,750 or more words, depending on multiple appellees is due, no later than 15 days after the last appellee brief is filed or due to be filed, whichever is later. So you get the benefit of the latest possible time when your 15 days starts. Does that make sense? Robert Mattingly: So does it mean that I can go, when I'm calendaring things out, I can say it's due to be filed 60 days or whatever it is, and I have 15 days from there, so I don't need to go, but if they file it five days early, then I got to back mine up, which could affect you could be in trial, you could have depositions, you could have a vacation, could have whatever it is, but now you can calendar it out to make sure that you do it at the appropriate time? Kevin Burke: That's exactly right. And that's the whole thing because you want that kind of, especially people like me who do appeals regularly, you want to calendar things. We calendar reply briefs when we file our appellant's brief. So we want to know, we want some certainty. This builds in a little bit more certainty. Robert Mattingly: Well, I think it's a great rule change. And Kevin, you're going to know this one because before this, it was complete uncertain. And I would sit there and I think this is insane in the brain. Kevin Burke: Insane in the membrane. Cypress Hill, yeah. Robert Mattingly: We're still working through and run PART 2 of this, and we're still pulling in new people. That is a very good rule. Now, to all our listeners, you should now be able to calendar that and not lose sleep wondering, Hey, it's a floating deadline. So that's a great change. Kevin, I actually very much appreciate you and the committee making that. We still got a few more minutes, but I would like to get through some of these last ones. These last ones are relatively quick, but try to move us through. Where are we going on? Kentucky Rules of Appellate Procedure – Rule 31 Kevin Burke: So RAP 31. So one we have that includes the change on RAP 7 on motions about expungements. So that just applies it to briefs about using an initial about orders granting an expungement that you have to use the initials. Okay, so that covers this for briefs. Great. It changes. It mostly keeps, the word limits the same on briefs except for one, a combined cross appellee and appellant reply is now 19,250 words. Let me tell you why that changed. First of all, there was a lot of math involved. I won't go into that. Robert Mattingly: That's, I'm sitting there thinking I've always wanted 19,500. Kevin Burke: Right? And it 250 short. How did they come up with 19,250? I promise you there's logic. There is a method to the madness, but the old rule only allowed 8,750. It was kind of a glitch in the rules. It should have been more than that. That 8,750 is what an appellant's reply brief is right now. And this is a combined brief. You're doing two briefs in one. So limiting it to just one brief, it was a glitch. Robert Mattingly: That was a glitch in the matrix. Kevin Burke: So we just changed that to make, to update it to the word count and make it 19,250. Robert Mattingly: So, and I know we're going faster because we want to move the rapping, but let's be clear, because word count's important. Kevin Burke: Yeah. Robert Mattingly: What is the word count now? What numbers do people need to know? Kevin Burke: Oh my gosh. For normal, normal appeal, appellant's brief is 8,750 words. appellee brief, 8,750 words. Reply brief is 1,750 as long as you're responding to a single appellee. Now, there are all sorts of funky situations. Robert Mattingly: But that's enough that they would know. Kevin Burke: Right. Robert Mattingly: Then we have rule 31 that now gives us the 19,250. In the very limited case that you are doing what? Kevin Burke: That you're doing a combined cross appellee and appellant reply. Robert Mattingly: So they're combining. And when you do it, so hopefully our listeners, we've slowed down a little bit. So you got those numbers, but it's in that last scenario that you'd want to go with the updated rule. Is that right, Kevin? Kevin Burke: That's exactly right. Robert Mattingly: Alright, good. We only have a couple more. So why don't we just come and finish that. We'll go a few minutes long, but let's knock these out. Kevin Burke: One clarification. So that is a combined brief, a combined cross appellee and appellant reply brief for the Supreme Court. I should clarify, there's a different number for the court of appeals that rule change was the Supreme Court. That's for Supreme Court briefing only. There's 10,500 is for the combined, the equivalent brief and the court of appeals is 10,500. Robert Mattingly: Anyway, again, that's the reason why I don't do appeal work. I just call Kevin. Kevin Burke: Bottom line, read the rule, and you'll know how many words you have. So going next to RAP 32, I think we're on right now. Kentucky Rules of Appellate Procedure – Rule 32 Robert Mattingly: We are on RAP 32. Yeah. Kevin Burke: So all this is a small change. It just says briefs of 1,750 words or less do not require a statement of points and authorities. That was unclear before, whether you had to include a table or whatever. Now you don't. Okay? And it doesn't matter what kind of brief you're filing, if it's 1,750 words or less, you don't need a statement of points and authority, Robert Mattingly: Which makes sense. Kevin Burke: Yeah, makes sense. Kentucky Rules of Appellate Procedure – Rule 60 Robert Mattingly: Okay, good. We have two more RAP 60 original actions proceedings. What do we want to know? Kevin Burke: Yeah, so we talked about original actions a little earlier. This just solved a clerical error that was in the old rule. The old rule referred to RAP 40, which is not original actions. And so we clarified. Robert Mattingly: So the only change in RAP 60, but you'll see it changed in the notes, is that it referenced a wrong rule and they just corrected the rule. So nothing anybody really needs to be concerned about. And then I think the last one we're on is RAP 63, and then our listeners will be totally up to speed. They'll be up to speed with it all. So give us just one or two minutes on what we got here, Kevin. Kentucky Rules of Appellate Procedure – Rule 63 Kevin Burke: So, supersedeas bond, that means an appeal bond, okay? If you're in the fortunate position, you're a plaintiff, you got a good verdict, the defendant has to post a bond if they want to prevent you from executing on the judgment while they appeal. So that's what this rule covers is how the bond works and how much a party is posting a bond needs to post. And this just made one minor change. It eliminated the requirement that the bond amount include damages for delay. So it includes the principal amount of the judgment it include still includes interest on the judgment, et cetera. But it includes this language about delay damages, which really was unnecessary anyway. Robert Mattingly: Good. So it just really clarifies that supersedeas bond. If the other side is posting a bond in a case that you have, go ahead and read that and make sure that it's there, but I think it's pretty straightforward. I do like the fact that it also says the trial court retains the jurisdiction over that because sometimes we do get into those post verdicts, and I think that's in there now that it explicitly keeps it in the trial court. So we don't have that to worry about. Is that right? Kevin Burke: That is correct. Trial court retains jurisdiction on all matters concerning the bond. Robert Mattingly: That's great. Well, that's a great change. Well, Kevin, first of all, let me just thank you for your insights. Or I guess finally, let me just thank you for your insight. The fact that you're on the committee and that you can come in here today and go over this with us is great. To our listeners, remember, go back and listen to 16 [https://directory.libsyn.com/episode/index/show/99669608-cac2-40e7-98b5-8cc2de99860b/id/40605610] and 17. Remember, if you ever want all the case notes, that would be in this case, the Rules of Appellate Procedure that we referenced. We have them highlighted to specifically work in and show you the changes. We also mentioned the KRS notice on the Attorney General. If you send either myself an email, robertmattinglyattorney@gmail.com, or you send Kevin one at kevin@burkeneal.com, we can send you all those files but here very quickly, we'll work towards getting that CLE approval. And I would leave you with this. Remember, read these rules on appeal, follow these rules. Think about hiring an appellate lawyer like Kevin, because quite frankly, if you mess them up and you call him late, he's going to give you a very clear, very specific answer. If you've already messed up and you're calling him and he's going to say, I'm really sorry, but I can't be your Superman. Kevin Burke: There you go. Eminem M. Robert Mattingly: Eminem M. See you next time everybody. Jim Ray: Friends, this is podcast producer Jim Ray, and as Rob mentioned, we are offering CLE credit for this episode, so we are still waiting on the activity number. If you are an attorney and you would like CLE credit for having listened to this episode, go ahead and just email Robert Mattingly. His email address is robertmattinglyattorney@gmail.com. Once we have the activity number assigned, we'll be sure to send that right over to you. As always, thanks for listening to this episode of the Legal Notepad podcast. Robert Mattingly: And just a reminder to all of our attorneys, these podcasts are always free, but if you want to obtain CLE credit, the Kentucky Justice Association has worked with the Kentucky Bar Association for approval of the CLEs. Again, to get that credit, you simply go to kentuckyjusticeassociation.org. That's the KJA website. Click on education and training, select podcast, and add it to your cart. In Closing That's a wrap on today's discussion. We hope you found the discussion insightful. As always, we encourage you to share this episode with your colleagues. If you'd like the case notes, please sent us an email request and we'll be happy to email you the file including the cases, rules, etc. If you are an attorney and would like CLE credit for this episode, visit the Kentucky Justice Association website [https://www.kentuckyjusticeassociation.org/], click the Education and Training tab and look for the podcast. You can follow our podcast on a variety of platforms including, Spotify, iHeartRadio, Amazon Music, Audible, Apple Podcasts and many more. Thanks for taking the time to listen. For more information about the Law Offices of DeCamillis and Mattingly, PLLC Address: 138 S. Third Street, Louisville, KY 40202 (across from The Old Spaghetti Factory) Phone: (502) 589-2822 Website: DeCamillisMattingly.com [https://www.decamillismattingly.com/] To Contact Kevin Burke: Website: BurkeNeal.com [https://burkeneal.com/] Phone: (502) 709-9975 Until next time, go find one thing you can do to change the world! The Kentucky Bar Association Requires Us to State "This is an advertisement."

Kentucky Rules for Appellate Procedure Changes Effective 4-1 -2026 – PART 1

Episode 16: Louisville attorneys Rob Mattingly and Kevin C. Burke are happy to provide an opportunity for 30 minutes for Kentucky continuing legal education credit. This PART 1 episode of the Legal Notepad podcast features appellate attorney Kevin Burke discussing amendments to the Kentucky Rules of Appellate Procedure (RAP) that take effect April 1st, 2026. Kevin, who served on the committee that drafted these updates, explains that RAP 2 clarifies how multiple appellants are handled, advising practitioners to file separate notices of appeal to maintain individual briefing word limits. Changes to RAP 5 and 7 specify that initials should only be used for appeals from expungement orders, rather than any case involving an expungement, and clarify that a voluntary dismissal of an appeal does not automatically end a cross-appeal. A significant update to RAP 8 addresses the potential "gotcha" of party substitution after death, requiring that revival motions be filed in the appellate court if the case is fully on appeal. The rule further clarifies that if a case is split between jurisdictions, the motion to substitute must be filed in both the trial and appellate courts to ensure the action is properly maintained. These amendments provide necessary clarifications to the major 2023 rules overhaul and are intended to assist lawyers in meeting their annual CLE requirements. Editor's Note: If you are an attorney and would like CLE credit for this episode, visit the Kentucky Justice Association website [https://www.kentuckyjusticeassociation.org/], click the Education and Training tab and look for the podcast. TODAY'S LEGAL QUESTION: Producer Jim begins with, "Hey, Kevin and Rob, we've received a number of emails from listeners who have received notice from the Kentucky Bar Association referencing the Kentucky Rules of Appellate Procedure, because there are some amendments that are going to go into effect April 1st, 2026. Can you guys talk about that?" Rob Mattingly: Yeah. Producer Jim, that is a great question and you are correct. There are a number of Kentucky Rules of Appellate procedure. Kevin, that's hard to say, isn't it? It doesn't roll off the tongue, but they do go in effect April 1st, and that is not an April Fool's joke. Is it Kevin? Kevin Burke: Not an April Fool's joke at all. They are coming at you. They're coming at you fast. Rob Mattingly: They are. So we are sitting here, we're recording this March 18th, 2026 for those listening. And these come out April 1st, so just a couple of weeks away. So, we do have, as you know, our appellate attorney, Kevin Burke, who is back with us again today, and we're very fortunate because Kevin is actually on that committee, Jim, and was involved in writing some of these rules. So we're going to go through them. Let me tell the listeners what we plan on doing today. We are going to do this update on two parts. So we are going to have podcast Episode 16, which is going to be Part 1, and we're going to go through a portion of these new updates and that should run about 30 minutes for those keeping track of their CLE credit. Then we will do podcast Episode 17, which should also be about 30 minutes, and we will release that as a separate podcast so that you can divide up listening to them because Kevin, it's hard to keep attention for a whole hour. Kevin Burke: I understand that. That makes sense to me. Rob Mattingly: So, we will definitely divide that up. Let me do the little administrative side of this for all of our listeners, you know that June 30th, every year is the year that our CLEs as lawyers are due. This podcast will be submitted to the Bar Association episodes 16 and 17 and all of our other episodes, I would expect that it would be approved for that CLE credit. Again, 30 minutes, probably for 16 and 30 minutes, probably for 17. I would also note to our listeners that a large number of our past episodes have recently been renewed with the Kentucky Bar Association. And if you go back and look on our websites, you can see and still listen to those and get more credit for this year. So that's a pretty good, pretty good Kevin. And with that, let me tell you what happened here. So, I got an email from Kevin that said a lot of new RAP out, RAP, we need to do a podcast on that. And I thought, well, this isn't really a music podcast, but what do you want to do, Kevin? Keving Burke: That's right. I want to talk about RAP. That's what I want to talk about. Rob Mattingly: So Rules of Appellate Procedure, RAP is how they are abbreviated when you're citing them. So we are going to also play a little game where people can count the number of rap references, rap music 1980s to the present, Kevin. So stay tuned and see how many you can count throughout the podcast. So with that, let's start to move on into the first section. The Process for Amending the Rules of Appellate Procedure Alright, so let's begin by Kevin, why don't you do this? Yeah, why don't you tell the listeners about the process for amending these rules. I understand you're on that committee, right? Kevin Burke: Right. I've been on the Appellate Rules Committee for about 10 years or so. And so our listeners might, if you've handled an appeal since then, you might know that there was a complete overhaul of the Appellate rules in 2023. And the Appellate Rules Committee actually worked on that complete overhaul of the appellate rules and worked for years before that to get those changes. And then after 2023, what we learned is that there were some rules that just needed a few tweaks, clarifications, that sort of thing. So those are the amendments that are going into effect coming up April 1st. So the Appellate Rules Committee had worked on those, recommended those changes to the Supreme Court itself, and the Supreme Court then adopted those rules which go into effect April 1st. Rob Mattingly: So it sounds like a lot of what we're doing, our listeners would've kept up with the rule changes a few years ago, and this sounds like it was a lot of, okay, they've been in play for a few years, where could we improve, kind of fix some things, et cetera. Is that right? Kevin Burke: That's right. That's exactly what happened. Rob Mattingly: Right. And again, give us 30 seconds to a minute on who's on this committee. Just in general. I think our listeners might find that educational. Kevin Burke: Yeah, so there are representatives from people who handle appeals like me. Rob Mattingly: So, I'm not on the committee. Kevin Burke: Rob. I mean, we could have you. You've handled a couple. Rob Mattingly: No, no, no. I call Kevin. Kevin Burke: Yeah. So if you're a regular appellate practitioner, we have representatives from just about every walk. So they're criminal appellate practitioners. There's a representative from the Department of Public Advocacy, for example, their appellate division, the Attorney General's office. There's a larger firm representative. There are staff attorneys from the Court of Appeals and the Supreme Court, there's the Clerk of the Court of Appeals and the Clerk of the Supreme Court. And then we have a justice who wrangles everybody and makes sure everybody stays on task and that sort of thing. Rob Mattingly: Well it sounds like it's a great working committee, and while I would say you did this, the committee did this a few years ago, when you all got back together, did anyone say something like, Hey look, we're all back together. Don't call it a comeback. Kevin Burke: I mean that would make sense since we're talking about raps. Rob Mattingly: LL Cool Jay. LL Cool J. Kevin Burke: I'm with you. I follow you Rob. Rob Mattingly: All right. For those counting, that's number one. Kevin Burke: That's number one right there. But yes, it was a comeback. So we got the gang back together again, and we came up with these recommendations, these rules changes here. Rob Mattingly: Now was that Cool ant the Gang? Kevin Burke: It was Cool and the Gang, although they're not rap really, I mean more R&B sort of thing, but that's okay. It's similar. It's close enough. Rules of Appellate Procedure Rule 2 Rob Mattingly: Let's keep the corny jokes going. But let's also get down to the real rule here. I understand that you would like to start with RAP rule of appellate procedure number two. Kevin Burke: Right. RAP 2. So the major change here, and again for the attorneys out there, if you go back and look at your emails, you got an email from the KBA with these rule changes. Go back and look at the beginning of January. It'll be in your inbox if you haven't deleted it. But it has the amendments in there. This was the first major change to the rules. And the main change out of RAP 2 is when you have multiple appellants. So Rob, I think you and I talked about this, not every case is one appellant appeals, one person appeals. Well, you might have four or five plaintiffs for example, or four or five defendants appealing in the same case. And the question is how are those handled? And the original rule wasn't very clear about how those cases can either be consolidated or how they're heard together in the court of appeals, by the same panel of judges, you have three judge panels. So this rule just clarified that process and how somebody who's taking an appeal to the court of appeals can make sure other appeals that are similar to theirs can be heard together by the same panel, or maybe they want it separate. So this addresses that. Rob Mattingly: Yeah, so let me make sure the listeners understand me because this rule really does affect them a lot. There's two major examples that it would apply to. One, you have a semi-truck driver and he's drunk and he runs into another vehicle that stopped on the highway because it broke down and that vehicle was a commercial motor vehicle (I'm just creating a scenario with lots of parties) and someone gets hurt or killed. So there's a claim against the truck driver. There's a claim against the truck company, the person was drinking, but they had stopped for lunch at a restaurant and they served him past the point of intoxication, knew should have known they were drunk. So you got a dram shop case and then he hits another commercial motor vehicle and you bring that because that company should have better maintained that truck. It shouldn't be broke down. Rob Mattingly: Got a lot of parties and that is one case, right? Same case, but all these different parties, our listeners have lots of parties. Then a totally separate issue, completely forget that example would be you have the same issue, but different cases. So what might be an example of that be? Kevin Burke: Yeah, that would be so similar in the sense of let's say you've got shake out the dram shop part of that. So say another case has either the same dram shop defendant or the same issue involving dram shops generally that goes up on appeal. So those would be similar issues that go up on appeal out of two different cases. And this rule addresses handling those appeals together. Those appeals can be heard together. So that's one of the rule amendments is that it allows appeals to be heard together in the court of appeals by the same panel. So in the dram shop situation, you might have two different bars that have been sued, but there's a common issue of their liability. It might be a new or novel issue or something along those lines. But those appeals, even though they're separate parties, separate attorneys representing them, all that stuff out of separate case numbers, maybe out of separate counties, even whatever, those can be heard together by the same panel. It's within the court's discretion whether to allow that or not. But you can move to have those heard together by the same panel. Rob Mattingly: So the new rule allows that to happen. Kevin Burke: Yes. Rob Mattingly: And what's kind of the effect of that? If you need to decide if you want to consolidate them or not, do they automatically, what's your thought process as the appellate lawyer? Kevin Burke: Yeah, so one thing you have to keep in mind if you're taking an appeal and there are multiple parties in your case, is you have the option under the rules of filing a joint notice of appeal or separate notices of appeal. And you want to think about that carefully if you're the appellant, my recommendation as a general rule is everybody should file separate notices of appeal. You can always move to consolidate later if you want to, but if you file a single joint notice of appeal with all appellants, you've limited yourself to a single appellant appellant's brief, first of all, and a word limit where you don't do that if you're appealing by separate parties with separate notices of appeal. So you want to think about strategically, you want to think about that in advance before you appeal even. Rob Mattingly: So then generally what we're talking about is you can file them together or you can file them separately, but if you file them together, you're going to be limited in the amount of briefing that you can do, et cetera, right? Kevin Burke: Right off the bat. Rob Mattingly: Right off the bat, you're going to limit yourself. Kevin Burke: Can you unwind that? It's possible, but you have to file a motion with the court. You have some remedies, but it's hard at that point because the court's more likely to look at it like, well, you made the strategic decision to just file a single notice of appeal. So why are we, and now you're asking for something else. So that's just a rule you have to know right off the bat is yes, because some people say, well look, even though we briefed it separately in the circuit court and everybody had separate counsel, why don't we just file one single notice of appeal? We save on filing fees that way, right? Rob Mattingly: I've seen it. I've seen people say, let's just get together and file one. Kevin Burke: But what happens if you do that? You've limited yourself to just a single brief on appeal where you may have briefed it separately in the circuit court. So you have to really be aware of that. Say, don't go cheap on filing. Rob Mattingly: Don't go cheap on filing. And you're making that strategic decision. And our listeners are now going to understand that under RAP 2 two rule of appellate procedure, part two, number two, that you probably don't want to make that decision unless you have a really good reason to do it. Is that correct? Kevin Burke: That's right. And so after briefing, even if you filed separate briefs, right, you have the option to have it heard together. If you filed separate notices of appeal, you have the option of having it, having the cases heard together by the same panel. You can move to consolidate if you want, which would mean you go in the single track, the single filing. But if you file separate notice notices of appeal, you have that option where if you just file a single notice of appeal, you don't have that option. Rob Mattingly: So I think the takeaway is if you file a single notice of appeal, you're likely to get something back from the court of appeals saying, "you talk too much." Kevin Burke: Basically. Rob Mattingly: Run DMC. Kevin Burke: Right? By Run DMC Rob Mattingly: By Run DMC. Kevin Burke: That would be Judge DMC, I believe. Rob Mattingly: Judge DMC. Kevin Burke: Yeah. Rob Mattingly: And that's three references. Now I think. Kevin Burke: That by my count. Rob Mattingly: I'm losing, I don't know if Jim's counting or not. Kevin Burke: Oh yeah, he's holding up three. Rob Mattingly: Alright, well that is good. So listeners look at rule two and the amendments, et cetera, make those strategic decisions. But again, that may affect or change some of the ways you used to do it when you wanted to consolidate them. As we move on, Jim have we covered rule two, are you ready to go to the next one? Kevin Burke: Yeah, I think we can move on to the next set. Rob Mattingly: Alright, well let's transition. Rules of Appellate Practice Rules 5 & 7 Rob Mattingly: Alright, here we go. The next section we wanted to talk about rule five and seven and kind of cover both of those in this section. So Kevin, wherever you want to jump in, I know we're talking about redactions, initials and dismissals, but go ahead. Kevin Burke: Yeah, so this is another clarification of the original rule. So folks who represent minors need to know that they usually use initials rather than the child's name. So that's true in circuit court, that's also true on appeal. So there are specific types of cases that are listed in RAP 7 that require the initials or some sort of anonymity that goes along with the party you might be representing. But the specific rule change here had to do with expungements. So previously under the old rules, if there was any appeal involving an expungement, then you used initials rather than the party's name. And this rule change limits that to appeals from expungement orders, not just appeals involving expungement. So let me give you an example. So the lower court, trial court expunges a case and you take an appeal, you use initials. Now under the old rule, even if the lower court had not had denied expungement, you would use appeal. You would use initials rather. So this rule change is just limited to appeals from an expungement order, not an appeal involving an expungement order. Does that make sense? Rob Mattingly: Yeah, it makes great sense. I mean if the court comes back and says the trial court and denies your expungement and you're filing an appeal saying, well we think the court messed up, this should be expunged. You don't use initials when you're up there because the court said it's public, it's public record, it's not expunged. Kevin Burke: The default is that a record is public. So that's right. And so if there was no expungement, why are we using initials at all? So that was the thought behind that rule change. Rob Mattingly: And then still using initials for minors and those kinds of things and all the other cases. Kevin Burke: That's always going to be, that rule hasn't changed. That's still the same. Rob Mattingly: So this rule, and I don't know if you all talked about this on the committee, but this is kind of the gangsters paradise rule, right? Kevin Burke: I mean that's the way I look at it. Rob Mattingly: If you had lived a life, if you were a gangster, if you're out there getting in trouble, but now you've cleaned yourself up… Kevin Burke: Coolio by the way. Rob Mattingly: Yeah. And then you want to expunge it all. Kevin Burke: Yeah. Then I think you are. That's right. Gangsters paradise. You've got a clean record. Rob Mattingly: Clean record. Kevin Burke: So you're good. That's right. Rob Mattingly: Did the committee talk about that? I mean, I don't know if they referenced Coolio. Kevin Burke: I think we spent a couple of days maybe on Coolio specifically. I mean, I don't know. We covered the essentials really. We didn't really do a deep dive into the deeper cuts, the Coolio of deeper cuts. Rob Mattingly: Just kind listened to the main chorus parts that everybody knows that's true. What about RAP 5 and 7? Anything else that we need to you want to cover there? Yes, go ahead. Kevin Burke: So there's another clarification in the rule is on how to handle dismissals. And all this does is, so for criminal cases, termination of parental rights cases and cross appeals, it just specified what a dismissal looks like and what the effect is. So for example, for our listeners who handle civil cases, cross appeals are common. What this rule clarifies is that in a voluntary dismissal of the initial appeal does not affect the cross appeal. So like somebody appeals and you say, Hey, I've got an issue too as the appellee, the party defending that appeal, you can cross appeal. Well, if the initial appeal is dismissed or voluntarily dismissed or whatever, it goes away for whatever reason, you can still prosecute the cross appeal. And we wanted to clarify that. Rob Mattingly: Yeah, I was going to ask you how did that come about? Because I would think that when you're up on the appeal, one person appeals, someone cross appeals, usually my experience is if the appeal goes away, the cross appeal also goes away because you're resolving everything. There was some settlement resolution, whatever the case may be that would nullify the need for the appeal. But does that happen a lot? What was the conversation? The inside baseball on that? Kevin Burke: It was that, so if somebody appeals, they might think that the cross appeal is worse for them than the benefit they would get out of the initial appeal. So the thought was, well, I can get rid of the cross appeal if I just voluntarily dismiss my initial appeal. So this rule change is, well no, the cross appeal stays. Now, can a case get globally resolved, settled, whatever, inclusive of the cross appeal? Of course. It doesn't change anything along those lines. But this rule was just to clarify that the cross appeal doesn't automatically go away because the appellant chose to voluntarily dismiss their appeal. Rob Mattingly: I get it. So it kind of eliminated the strategy behind, Hey, I've appealed, wow, I hate this cross appeal, but I went first. So if I strategically dismiss mine, it goes away. Oops, they messed up. Or whatever the case may be. But their cross appeal is all gone. This just fixes that problem. Kevin Burke: That's right. Because a lot of times you'll have people who in a trial, let's say, you might not get, if you're the plaintiff, you might not get all the relief you wanted. So the jury might come back and maybe not award all the damages that you wanted in the case, but the defendant might be the party that initiates the appeal. So they might raise some evidentiary issues, want a new trial, whatever, and you're like, well they appealed, I'll just file a cross appeal. Even though you probably would've filed an appeal anyway from the get go. And so if they could effectively dismiss your cross appeal just by filing an initial appeal that leads to some gamesmanship. Does that make sense? Rob Mattingly: No, it makes perfect sense and it kind of cleans that up. And I think the big takeaway is if the original appeal is dismissed and you still want to push it, push it real good… Kevin Burke: …And push it real good. Rob Mattingly: Salt-N-Pepa Kevin Burke: That's what my understanding is. Rob Mattingly: Then, you can still do that. Do you all just sing songs the whole time in this? Kevin Burke: Yeah. I mean, we maybe missed a few along the way. I think we could go back and maybe I'm going to recommend that at the next meeting. That's what we're going to do. We'll look at that. Rob Mattingly: Send that over to the committee. Anything else on those rules you think that we've covered that you think that they've covered? Kevin Burke: I think that covers, that covers pretty much all the changes in five and seven. Rules of Appellate Procedure Rule 8 Rob Mattingly: Okay. Well then let's work on transitioning over to the next part. Alright, so here we go. Kevin, probably the last rule we'll cover on this one. Remember listeners, we're doing this in two parts. So let's talk about, we may have time for two more days. Let's see how that works out. But RAP 8, party substitution, revival due to the death of a party. Kevin, I know this one is near and dear to your heart because this is a part certainly as plaintiff's lawyers, that we can get ourselves in a lot of problems. There's a lot of gotchas and tricks with this. So I'm assuming you probably were pretty instrumental in talking about this in that committee. Tell us about rule eight and kind of the problems that it's trying to stop, et cetera. Kevin Burke: Okay, so RAP 8 has to deal with death substitution and amendment of parties. So for our listeners, and this is one of the rules, both at the circuit court level and on appeal, that frankly keeps me up at night. Rob Mattingly: Well, this is Hammer Time. This is MC Hammer dropping the hammer. So this is dropping. If you mess this up, then your case gets thrown out. Kevin Burke: That is right. And so here's the issue in simple terms is you represent a client and that client dies. And on appeal you don't maintain the same level of contact with your client that you might at the circuit court level. There's a lot of time between briefing and opinion. There's just a lot of time where nothing happens. There's not a reason necessarily to check in with your client. Rob Mattingly: So, let me make sure the listeners understand. You have a client, maybe a car wreck or whatever, it doesn't really matter what it is. You went to trial, you lost the or what happens, but you file an appeal and the client was there, they were at trial, they were fine, they were in good health, all those things. But when you get up on appeal, the appeal takes a couple of years. So you don't do the best job checking in with your client every couple of months. And unbeknown to you, the client dies during that time. That's right. That's the scenario that we're talking about. Kevin Burke: That's the most common scenario. So, you have the obligation, just like you did in the circuit court to revive that action. Should your client die, you have the obligation to revive that action in the name of a personal representative of the estate. And you must do that within one year from the date of death. So that same rule applies on appeal. And it doesn't matter if nothing has happened or you're just waiting for you fully brief the case and you're waiting for a year or so for an opinion. It doesn't matter if you do not substitute with the estate within a year, then your case is gone, your appeal will be dismissed. Rob Mattingly: Drop it like it's hot. Kevin Burke: That's right. Rob Mattingly: That's what the court is going to do. Snoop Dog. Kevin Burke: So rule eight, rule eight clarified in which court you file that. So the next question is, okay, I know my client has passed and I get the personal representative appointed in district court. Now what do I do? Which court do I file that motion to substitute and revive the action in? If your case is fully on appeal, this rule clarifies that you file that in the appellate court. So the whole case has gone up to the court of appeals, let's say, or maybe it's in the Supreme Court, whichever court it's in, that is where you file your motion to substitute and revive the action. Now there is a scenario, Rob… Rob Mattingly: …Yeah, because the case isn't always in one court. Kevin Burke: That's right. So the case can be in multiple courts. You can have part of your case that's still in circuit court while only certain claims are appealed. And those claims might be in the court of appeals, let's say. And you have some other claims that are still pending in circuit court. What you must do, you must still file your motion to substitute and revive in both courts. That's important. So even though just part of the case is on appeal, you file in the appellate court and you file for your remaining claims in circuit court, in circuit court. You have to do both. But this rule change, it was very confusing under the old rule. Even if you had, your entire case was on appeal, this rule seemed to suggest you still had to go to the trial court, even though the case was fully on appeal. You went to the trial court to do this revival and substitution and that rule is out. Rob Mattingly: Yeah, I tell you what, I haven't had this experience, but I've talked to lawyers that have it. Here's the situation. Part of the case went up on appeal and the lawyer went to the trial court because part of it's still in the trial court and said, I need to revive my action. And in the trial court they say, well, we don't have jurisdiction. The case is up on appeal. So you run up to the court of appeals, you're trying to do everything timely, and they say, whoa, you don't do it here. Part of your case is still pending down below and it is confusing and it is the death knell of a case if you don't do it. So it sounds like that is what the committee discussed and that is what the committee was trying to fix. Is that correct? Kevin Burke: That is correct. Yeah. And it's consistent. The rule is now consistent also with case law that the Supreme Court has rendered since the 2023 rules went into effect. So this is actually consistent now with the case law. Substitution and revival also is just a one step process. There was a question of whether it was multiple steps. You can file a motion to substitute and revive in a single filing. And that was very clear before the case law had changed on that. So it's a little more streamlined, but it is still a huge gotcha that's out there. Rob Mattingly: Well, it is a big mistake and we have a few more minutes left on this 30-minute podcast, so let's make sure we understand this. There is clearly, now, if it's all in this trial court filing, the trial court obviously even haven't been the court of appeals yet. If it's all, I mean a hundred percent of it's in the court of appeals, you file your revival in the court of appeals. But if it's in both, because part of it's gone up, part of it, you have to go file in both. Kevin Burke: That is correct. Rob Mattingly: And now you shouldn't have judges anymore saying, well, it's on appeal. You shouldn't file here. You would say, well judge, I listened to this podcast where Kevin, who's on the committee, said that RAP 8 says that's how you actually do it. Kevin Burke: That's right. And so this was a clarify. This is already such a complicated issue that hopefully by this rule change, we cannot take out all of the complexity of the issue on the Appellate Rules Committee. But this was one thing we could change. So that's why we did it here. Rob Mattingly: And maybe I should have done this at the very beginning of here, talking about Rule eight to the very beginning of this section. We keep talking about this revival and amendment and we really probably need to do a whole different podcast, a trap, and there's lots of case law. But can you give us the one or two minute version on just for those that are like, what's this revival thing? I've kind of figured it out by listening to it, but just the very surface level, what that is, so they even know what they're filing. Kevin Burke: So again, we'll take the situation where your client passes, your client dies, and now you need to take some action. So your first action would be you go to probate court district court to have a personal representative appointed for the estate. And then once you have that appointment, you have to go to the court where you have the action pending. And that could either be the trial court… Rob Mattingly: Or the court of appeals. Kevin Burke: …Or the court of appeals or both. Rob Mattingly: That's the part that Rule eight talks about. Kevin Burke: That is what Rule eight is addressing. Rob Mattingly: And you do what? You say, what I've got a new administrator, what do you file? What do you say? Kevin Burke: So what you do is you file your motion to substitute and revive the action in the name of the personal representative of the estate. Rob Mattingly: And does it need to say that? Does need to say, I'm substituting Sam Smith who died. Okay, I had a probate administrator or administratrix or whatever, whatever. Or executor or executrix, if there's a Will, I am substituting them as the party. But does it also need to say, and I'm reviving the action? Or is it a little unclear and just do it. Kevin Burke: Best practice, say more rather than less in that situation. But you're going to be okay as filing it. Rob Mattingly: Because that used to be a big deal. What words did you use. Kevin Burke: No. And so the case that came out that the Supreme Court decided did clarify that you don't need to, it's not necessarily magic language or two different filings, one to substitute and one to revive. You can do it in a single step. And then that is consistent with the language and spirit of the revival statute. So we do at least have that clarification that's come out through case law. But what I tell people is, why wouldn't you say what you're doing? Right? If you're both substituting and reviving, say what you're doing. Rob Mattingly: Well that's my practice point. My motion says I'm substituting and I put who I'm substituting and I'm reviving this action. I just blatantly say it and then everyone knows what I'm doing and I don't have to worry about it. Kevin Burke: And you don't have to worry about it. You're not going to lose sleep over it. Rob Mattingly: Well, I got 99 problems, but that ain't one. Ice-T. Okay, good. Did we fully cover RAP 8 for this particular? Kevin Burke: Yeah, that's the main change out of RAP 8. And I think that covers really everything that we have. Some other, so for our listeners, we have some other important changes that we will cover in the next episode, but this episode covers mostly parties and consolidation and joinder, consolidation appeals, heard together that issue about expungements and use of initials and then this issue on substitution and revival of actions. Rob Mattingly: Alright, well Kevin, we really appreciate you being here. Part one of the recent changes to the Rules of Appellate Practice taking effect in a couple of weeks, April 1st, 2026. So that is happening. Be sure to spread the word about the podcast. Most importantly, remember we've only covered about half the rules. There were some other ones and we're going to cover that in part two of this series. So be sure to listen to part two. But otherwise, at this moment, as Young MC said, Kevin, we got to go. It's time to bust a move. Kevin Burke: Time to bust a move. In Closing We'd like to remind you to listen to Episode 17 [https://directory.libsyn.com/episode/index/show/99669608-cac2-40e7-98b5-8cc2de99860b/id/40644335], which is Part 2 of the discussion. We'll submit the material and secure the activity number. Email Rob or Kevin and they'll be happy to provide the activity number to you. That's a wrap on today's discussion. We hope you found the discussion insightful. As always, we encourage you to share this episode with your colleagues. If you'd like the case notes, please sent us an email request and we'll be happy to email you the file including the cases, rules, etc. If you are an attorney and would like CLE credit for this episode, visit the Kentucky Justice Association website [https://www.kentuckyjusticeassociation.org/], click the Education and Training tab and look for the podcast. You can follow our podcast on a variety of platforms including, Spotify, iHeartRadio, Amazon Music, Audible, Apple Podcasts and many more. Thanks for taking the time to listen. For more information about the Law Offices of DeCamillis and Mattingly, PLLC Address: 138 S. Third Street, Louisville, KY 40202 (across from The Old Spaghetti Factory) Phone: (502) 589-2822 Website: DeCamillisMattingly.com [https://www.decamillismattingly.com/] To Contact Kevin Burke: Website: BurkeNeal.com [https://burkeneal.com/] Phone: (502) 709-9975 Until next time, go find one thing you can do to change the world! The Kentucky Bar Association Requires Us to State "This is an advertisement."

Using a Trust to Preserve Client Benefits After a Bodily Injury Settlement

Episode 15: Louisville attorneys Rob Mattingly and Kevin C. Burke are happy to provide an opportunity for Kentucky continuing legal education credit. Rob and Kevin are joined by Peter H. Wayne IV, General Counsel for the Forge Companies. This is a recording of a national webinar the three of them created to assist attorneys and their clients. A full video of this webinar is available on The Legal Notepad Podcast's YouTube channel. Click here to view this webinar on YouTube: [insert link] Editor's Note: If you are an attorney and would like CLE credit for this episode, visit the Kentucky Justice Association website [https://www.kentuckyjusticeassociation.org/], click the Education and Training tab and look for the podcast. In Closing We hope you found the discussion insightful. As always, we encourage you to share this episode with your colleagues. You can follow our podcast on a variety of platforms including, Spotify, iHeartRadio, Amazon Music, Audible, Apple Podcasts and many more. Thanks for taking the time to listen. For more information about the Law Offices of DeCamillis and Mattingly, PLLC Address: 138 S. Third Street, Louisville, KY 40202 (across from The Old Spaghetti Factory) Phone: (502) 589-2822 Website: DeCamillisMattingly.com [https://www.decamillismattingly.com/] To Contact Kevin Burke: Website: BurkeNeal.com [https://burkeneal.com/] Phone: (502) 709-9975 To Contact Peter Wayne: Website: AdvocacyTrust.com [http://advocacytrust.com/] Phone: (855) 879-3436 Until next time, go find one thing you can do to change the world! The Kentucky Bar Association Requires Us to State "This is an advertisement."

Reimagining SCR 3.130(5.4): A Look at Jurisdictional Approaches to Non-Lawyers in Law (Ethics Episode)

Episode 14: Louisville attorneys Rob Mattingly and Kevin C. Burke are happy to provide an opportunity for 1 hour of ethics for Kentucky continuing legal education credit. Rob and Kevin are joined by Lauren Byrn and attorney Nina Couch. Nina teaches professional responsibility at the Brandeis School of Law. She also has a private practice. This is her first time on a podcast! Editor's Note: If you are an attorney and would like CLE credit for this episode, visit the Kentucky Justice Association website [https://www.kentuckyjusticeassociation.org/], click the Education and Training tab and look for the podcast. TODAY'S LEGAL QUESTION: Lauren asks, "One of the national, legal listservs had a lot discussion about nonlawyers owning law firms. Does Kentucky have a rule on this?" Kevin comments how this is a fascinating topic and one that will be greatly discussed in the future. Rob asks Nina to provide some brief information about herself and then explain Kentucky's Rule 5.4. [https://govt.westlaw.com/kyrules/Document/NA54ECAC0BB6811ECB07CABA075E1F7F9?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default)] Nina was an accountant before going to law school. She's taught professional responsibility at UofL's Brandeis School of Law a couple of times. She was a visiting assistant professor, teaching professional responsibility and property. Now she's there part-time in current capacity, having also taught mediation. Her private firm is Couch Law Office, PLLC [https://couchlawoffice.com/], in Louisville. She focuses primarily on consumer protection and personal injury claims. Nina explains that the ABA model rule Rule 5.4 prohibits nonlawyers from sharing in attorney fees with lawyers. It also precludes nonlawyers from having any ownership interest in a law firm. Kentucky has a similar Rule 5.4, however, in very limited circumstances, such as a lawyer death and the transfer of a law firm. It could also be allowed in the purchase of a law practice, in accordance with Rule 1.17. There's also a provision for a profit-sharing plan, as long as it's not tied to a per-case attorney fee. The History of Rule 5.4 It's to protect the lawyers independence and judgement. It's also a safeguard to protect the core values of our legal profession. The ABA adopted Rule 5.4 in 1983. Nina points out that it actually goes back to 1908 when the ABA codified its first set of cannons. The law has changed over the years, most recently with the significant advances in technology including AI. There has been conversation focused on modernizing 5.4 and access to justice to underserved, potential clients. Adding nonlawyers might assist in addressing the issues. Law firm capital and innovation are also influencing the conversation. Law firms are prohibited from raising capital from venture capital firms, private equity or nonlawyers. Rob and Kevin comment on how different the practice of law has become, even since they both started practicing. Business and commerce has also changed. Hedge funds and other investors see an opportunity make money, if they were allowed to invest in law firms. The Conversation Has Started Nina notes the ABA has tended to resist changes to Rule 5.4. In 2022, it adopted Resolution 402 [https://www.americanbar.org/content/dam/aba/administrative/news/2022/08/hod-resolutions/402.pdf], noting the inconsistency with core values, were nonlawyers to share in the legal fees or ownership/control of the practice. It cites to the core principles of the practice of law including loyalty, competence and confidentiality. The Association of Professional Responsibility Lawyers, in December of 2024, wrote a letter to the ABA. They advocated from a modernization of Rule 5.4. They view the involvement of nonlawyers as being inevitable, in legal delivery systems, while maintaining regulations protecting consumers. The conversation has definitely started. Arizona entirely eliminated its Rule 5.4. Utah has also looked at this issue. Rob comments on the adage: Those who fail to plan, plan to fail. It seems like the inevitability stated in the December letter, seems quite plausible. Kevin notes leaving the rule as is, is a decision. As technology and other key, societal factors evolve, the legal world is going to change, based only on technology. The decision to update the rule or leave it as is, is a choice that brings consequences. The Current Landscape We're transitioning into a segment dealing with how various states are proceeding. Lauren also suggests we include a discussion on how AI comes into play. Speaking of AI, we're joined by ChatGPT. Nina begins by noting the District of Columbia was the first to change Rule 5.4, in 1991. It was a limited change. In 2013, the ABA issued formal opinion 464 [https://www.americanbar.org/content/dam/aba/publications/YourABA/fo_464.pdf], Division of Legal Fees With Other Lawyers Who May Lawfully Share Fees With Nonlawyers. It clarified that a lawyer practicing in a model rule state didn't violate 5.4 if they shared fees with a DC lawyer. In 2020, the landscape changed regarding 5.4. Utah and Arizona both made changes to their Rule 5.4. Arizona eliminate the fee-sharing prohibition and allowed nonlawyers to own law firms, as Alternative Business Structures (ABS). Utah approved a 7-year regulatory sandbox. This will provide room for experimentation. Different business structures could involve the delivery of business services. They could be owned my nonlawyers, a mix of lawyers and nonlawyers and situations in which nonlawyers are providing legal services under strict regulation and oversight. Utah is considered a ABS Plus ULP. In Arizona, however, the legal work is still required to be done by a lawyer, even though the entire ABS could be owned by nonlawyers. A regulatory structure is involved, requiring the ABS to appoint a compliance lawyer. Washington state, in December of 2024, issued an order with a time-bound, data-driven pilot test of 5.4. It will allow companies and non-profit entities to offer legal services under carefully monitored conditions, according to the Washington State Bar Association, December 13th, 2024. Nina suggests this will be similar to Utah's approach. The Stanford Law Review Center on the Legal Profession, published the Legal Innovation After Reform [https://law.stanford.edu/wp-content/uploads/2022/09/SLS-CLP-Regulatory-Reform-REPORTExecSum-9.26.pdf], in September, 2022. It found the legal reforms were spurring substantial innovation in 5 key ways. 1st – Traditional law firms are making changes…to expand. 2nd – Law companies practicing by providing legal services with non-lawyer ownership. 3rd – Non-Law companies expanding into law…"one-stop-shops." 4th – Intermediary platforms create marketplaces for consumers and lawyers. 5th – Entities using nonlawyers and tech to practice law. There were several notable findings. In state courts, in 75% of the civil cases, at least one party is unrepresented (usually the defendant). These individuals are navigating the legal environment without legal counsel. The changes to 5.4 could address issues related to access to justice. Rob points out that improving access to justice is terrific. However, VCs and other investors might focus more on personal injury matters, rather than lower-margin civil cases. Nina agrees and points to an article, The Pitfalls and Promises of Nonlawyer Ownership of Law Firms [https://www.yalelawjournal.org/pdf/F7.YoungerFinalDraftWEB_pkbknk8f.pdf] (Yale Law Journal Forum, Oct. 19, 2022). It stated that a profit-motivated company or corporation might have a misalignment with the core values of the legal profession. There's risk of negative outcomes for clients. While the clients are receiving access to justice, other harms may occur. The article notes attorneys spend hours in law school in professional ethics, stressing the duties owed to clients. There are serious consequences for violating those rules. Nonlawyers do not face the same consequences. The root of this is about the public trust regarding services to clients. We want to avoid a system in which different people get different levels of representation. Maintaining Ethical Standards in a Commercial Environment Stanford urges us to keep in mind 2 questions: * What types of innovation in legal services delivery model will different reform approaches generate? * Who will be served by the new market entrants? Kevin observes the dark side of this innovation is how tech-savvy commercial entity could enter a jurisdiction by selling the change as good for the underserved. All the while, having the ulterior motive of competing with medium to large-sized firms. Have other states set up task forces to consider this change? If so, do they include business professionals and advisors who can advise lawyers on the business-end of this innovation and how it might affect us? Nina reports that other states have setup task forces, and some have said no. California, Florida, New York, Illinois and New Jersey have said no. In Arizona, KPMG has recently been approved to be an ABS. They are one of the Big-4 accounting firms. They have a global presence and actively practice law outside of the US. KPMG is precluded from offering legal services to any company they might audit (in Arizona). The Impact to Solo and Small Firm Practitioners Nina explains there are multiple business structures that might be interesting to the plaintiffs bar. Rocky Mountain Justice [https://rockymountainjustice.com/], in Utah, is a plaintiffs firm that merged with a radio marketing company. The goal was to enhance their marketing capacity. Lawyers provide the legal services, while nonlawyer partners assist in the advertising and marketing. Nina provides an example from the UK where a private equity firm was allowed to enter smaller firms in certain jurisdictions. The Stowe Family Law Firm [https://www.stowefamilylaw.co.uk/] https://www.stowefamilylaw.co.uk/was established in 1982 and formed 10 offices. In 2017, they were acquired by the private equity firm, Living Bridge. As a result, they double their number of offices and gained 150 clients a month. Access to capital and economies of scale were key factors in the growth. Zero Attorney Fees [https://www.zaflegal.com/] was a traditional, plaintiffs law firm that entered the Utah sandbox. It teamed up with a venture capitalist to fund an app. The firm previously determined a large number of claimants were not getting representation. In an effort to meet the demand, they launched the app. Nina suggests we may see these types of apps, even in model rule jurisdictions. Rob observes that these well-funded companies are able to launch national apps. As a solo practitioner, it's financially infeasible to develop and launch a national app. Kevin comments that we all used to have access to the same technology. However, the advent of these large companies entering the market have proprietary tools potentially enabling them to take over a market. Nina references the Yale article, regarding the AI issue. The article says it's not clear how legal ethics standards will be enforced when nonlawyers provide services. With AI, we're not dealing with a live person. This greatly complicates the issue. Utah has an ABS called 1Law [https://www.1law.com/]. It offers services via chatbot, nonlawyer assistants and lawyer employees across a range of consumer services. The Yale Review comments that while 1Law intends to use chatbots only to answer the simplest of legal questions, 1Law cannot, 1) prevent consumers from asking complex, legal questions, 2) ensure that consumers will understand the chatbot isn't operated by a lawyer and 3) teach a chatbot to respond to nuances embedded in a consumer's legal question. Thus, to what extent are we going to allow AI to enter the legal service space? Those states that have decided not to amend 5.4, such as California, have cited the need for strong oversight by the Bar to implement another layer on top of regulating the practice of law. This is noted in Karen Sloan's article "California Lawmakers Pull the Plug on Legal Industry Reforms [https://www.reuters.com/legal/legalindustry/california-lawmakers-pull-plug-legal-industry-reforms-2022-08-26/]." Florida's Board of Governors voted 45-0 urging their Supreme Court to reject changes in regard to fee sharing with a nonlawyer. One Board member commented that it would create profound conflicts of interest between lawyers and nonlawyers who don't have the same ethics obligations, along with the adverse impact of profit motives in other professions, such as doctors. Ultimately, is this the right change to achieve the objective of providing access to justice? Kevin notes the medical profession is seeing this play out. While the two professions are different, we can still learn from their experience. Nina asks if, as a profession, lawyers will be able to mindfully progress into the world of AI and technology in a way that preserves that attorney-client relationship where clients are detrimentally impacted? It goes to who is actually providing the legal services, controlling the legal services, and what is their ultimate motivation? Rob believes this will be lawyer-driven. How will the legal professionals continue to view that client-relationship? The app won't have that same, human connection. Nonetheless, we are in a changing world. Consider a South Carolina Law Review article, published in 2023, "Ethics, Lawyering and Regulation in an Time of Great Change [https://scholarcommons.sc.edu/cgi/viewcontent.cgi?article=4480&context=sclr]" (Field Notes from the Revolution). Kevin explains he became a lawyer to be what is considered an old-fashion lawyer. He was brought up to do things the old school way, by the firm he worked for. As a result, he resisted many of the changes he saw relative to the business of law. He admits that without the technological advances, he wouldn't be able to do the type of law he practices. Being a good business person and being a good lawyer are not mutually exclusive. You need to be ethical in both. Will Kentucky Form a Taskforce to Evaluate a Change to Rule 5.4? Rob transitions us into the final segment. Lauren asks what type of taskforce should be created and who should participate? Nina comments we could apply this to any jurisdiction considering the changes. The taskforce should include members of the Bar, judges, lawyers, potential client consumers, people who have had legal representation, people who may not have been able to find representation, and non-profit groups. Kevin adds that representation from different sections of the legal community is important. This would include solo and small firm practitioners as well as large firm practitioners. Outside of the legal profession, it would be good to have people well-versed in the technology, including AI. Rob sees value in having nonlawyers who can explain the upcoming technology. It may also be worthwhile to have some consulting from the medical profession by those who have experienced this issue. Business professionals should also be included to discuss potential outcomes. We may not be able to anticipate every outcome, but we can anticipate the types of people who are going to be affected by what's going to happen. Nina notes how jurisdictions, such as Kentucky, are getting the benefit of looking at this is playing out in other jurisdictions. Time will only tell how it will playout in the other states. In Closing We'd like to thank Nina Couch for her participation in this ethics CLE. We'll submit the material and secure the activity number. Email Rob or Kevin and they'll be happy to provide the activity number to you. That's a wrap on today's discussion. We hope you found the discussion insightful. As always, we encourage you to share this episode with your colleagues. If you'd like the case notes, please sent us an email request and we'll be happy to email you the file including the cases, rules, etc. You can follow our podcast on a variety of platforms including, Spotify, iHeartRadio, Amazon Music, Audible, Apple Podcasts and many more. Thanks for taking the time to listen. For more information about the Law Offices of DeCamillis and Mattingly, PLLC Address: 138 S. Third Street, Louisville, KY 40202 (across from The Old Spaghetti Factory) Phone: (502) 589-2822 Website: DeCamillisMattingly.com [https://www.decamillismattingly.com/] To Contact Kevin Burke: Website: BurkeNeal.com [https://burkeneal.com/] Phone: (502) 709-9975 Until next time, go find one thing you can do to change the world! The Kentucky Bar Association Requires Us to State "This is an advertisement."

Direction of PIP Benefits for Medical Expenses

Episode 13: Louisville attorneys Rob Mattingly and Kevin C. Burke discuss a recent case involving the direction of PIP benefits for medical expenses. Rob and Kevin are joined by Lauren Byrn and for the second time, attorney Adam Redden. Editor's Note: If you are an attorney and would like CLE credit for this episode, visit the Kentucky Justice Association website [https://www.kentuckyjusticeassociation.org/], click the Education and Training tab and look for the podcast. TODAY'S LEGAL QUESTION: Lauren asks, "What is the current state of an insured's ability to direct no-fault benefits?" In Kentucky, many of the PIP carriers traditionally paid the invoice, as they were submitted. The option of directing specific invoices to be paid, instead of others, could be challenging. Most carriers wanted to pay on a first-in, first-paid basis. That has now changed, based on Erie Insurance Exchange v. Johnson (Kentucky Supreme Court, 2024-SC-0018). [https://caselaw.findlaw.com/court/ky-supreme-court/117205490.html] In our previous episode, we discussed the liability of an adult when their minor uses their car and causes a wreck (Episode 12 [https://www.decamillismattingly.com/podcasts/podcast/liability-for-letting-a-minor-drive-a-vehicle-krs186-590/]). PIP Direction (not the boy band) Kevin clarifies that PIP Direction is not a new boy band. This prompts the team to explore Lauren's Justin Timberlake crush. The statue involved in Erie Insurance Exchange v. Johnson is KRS 304.39-241 [https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=40163], in the Motor Vehicle Reparations Act. It allows an insured seeking no-fault benefits to direct the payment of those benefits "among the different elements of loss." Rob points out that the Court specifically mentions the term basic reparations benefits can be used interchangeably with PIP benefits. The case involves a motor vehicle accident. Two individuals sought various medical treatments. Generally PIP benefits cover $10,000 in medical expenses, lost wages, etc. Kevin advises non-lawyers to consult with and attorney to reserve the PIP benefits. The carrier is interest in paying the benefits as quickly as possible, but that may not be in the insured's best interest. In the Erie case, the plaintiff's attorney notified Erie to reserve the PIP benefits and expressed the desire that the chiropractor be paid from the benefits, rather than the hospital bill. Erie responded claiming the plaintiff could not direct the payments, beyond at the category-level. As a result, Erie filed suit. Ultimately, the circuit court agreed with the claimants (e.g. the insureds). In the court's decision, it noted that the decision potentially affects millions of Kentuckians. Interestingly, this is a case of first impression. The court found that the claimants could direct the medical expenses. The case went to the court of appeals. The court affirmed the circuit court's ruling. The case was accepted on discretionary review by the KY Supreme Court. When the case made it to the Kentucky Supreme Court in 2022, the Court had to throw it out, due to a lack of jurisdiction. There Was No Magic Language The circuit court's opinion did not fully and finally resolve all issues in the case. The direction of benefits issue wasn't resolved. Additionally, there was a claim for accrued interest and a claim for attorney fees. Thus, the Supreme Court found that the case was not appealable. It didn't contain the magic language: "Final and appealable with no just reason for delay." Rob and Kevin discuss how attorneys can avoid this situation. Kevin explains that if there are still unresolved claims, under CR5402 [https://govt.westlaw.com/kyrules/Document/NB232DD60A91B11DA8F5EE32367A250AE?transitionType=Default&contextData=%28sc.Default%29], the opinion must say, "Final and appealable with no just reason for delay." If that specific language is not included, it's going to get kicked back down to the lower court. Kevin explains this is non-waivable, even if the issue isn't raised by the parties. The court has a duty to raise it on its own. In this particular case, the court of appeals overlooked the defect. Once the case goes back down, a new order is entered, addressing the direction issue, interest, attorney fees and adds the magic language. It goes back to the court of appeals, which affirms the circuit court's ruling in favor of the claimants. Once again, the KY Supreme Court takes the case for discretionary review. Eventually, it results in the 2025 opinion. Standard for Review on a Legal Issue This will be a de novo review. The court doesn't pay deference to the court of appeal's opinion or that of the circuit court. The Court is evaluating it, anew, based on what the statute says regarding the circumstances of the case. The issue involving the direction of benefits received a de novo review. The other issues were reviewed using a different standard, because there was an abuse of discretion. Interpreting "The Element of Loss" Language The Court has various mechanisms for interpreting language. In this case, they went through statutory interpretation. Adam notes a few things in the opinion. Page 9 – "…Carry out the intent of the Legislature." Adam asks Kevin what the court is saying with this language. The Court is using the general assembly's intent as its north star. Additionally, there's language addressing any ambiguity. The Court will rely on statutory interpretation to clear up the ambiguity and resulting confusion. There's also a statement that, "the Legislature meant exactly what said and said exactly what it meant." Ideally, the general assembly will use plain language, however, as Kevin notes, it can't envision every possible scenario. When applied to specific circumstances, ambiguities can arise. These are termed, "latent ambiguities." Page 10 – "…Look to the common meaning of the particular word chosen…" This again emphasizes the objective of using plain language. Issues arise when there are multiple definitions of words. Additionally, Adam noticed "…We must not be guided by a single sentence of a statute. We must look to the provisions of the whole statute in its object and policy." Kevin explains this emphasizes the importance of context. How the Court Used these Tools to Interpret the Elements of Loss It's important to remember the Supreme Court is talking to multiple audiences, beyond the parties themselves. The Court wants to show its work, so to say. They noted the word "loss" is defined in the MVRA. However, there is no definition for "element of loss." The court said element is ambiguous. It also considered other relevant statutes and how they've changed. To resolve the issue, the considered the intent of the MVRA. It's to protect accident victims, as listed at the outset of the Act. This drives the analysis, regarding how "elements of loss" are defined. Therefore, the elements would include the broad categories, such as medical expenses and lost wages, but also the narrow categories, such as the EMS bill, the chiropractor bill, the hospital bill (the sub-categories). Based on the analysis, the Court found the claimants were within their rights to direct the PIP benefits paying for individual elements of loss. For instance, pay the EMS bill, but not the hospital bill. The health insurance might be used to pay the hospital bill, instead. Page 20 – "…but we are upholding [the court of appeals] for different reasons." In this case, the Supreme Court agreed with the court of appeals, but while they arrived at the same answer, the got there via different paths. Kevin notes this isn't all that uncommon in the appellate world. How Did the Court Decide on the Remaining Issues? There were still questions involving the interest for the delay of payments and the attorney fees. The Court did find that the claimants were due interest, based on the delayed payments. There are 2 interest rates that might apply (12% and 18%). The trial court found Erie acted without reasonable foundation, therefore the court assessed the 18% interest rate. The circuit court awarded attorney fees, as well. This was for the first opinion and for the second opinion. The court of appeals affirmed both the interest rates and the fees. The Kentucky Supreme Court said the 18% was not warranted, because the question was unsettled. Subsequently, it assessed the 12% interest rate. Because the law was unsettled, the Court denied the attorney fees. That's a wrap on today's discussion. We hope you found the discussion insightful. As always, we encourage you to share this episode with your colleagues. If you'd like the case notes, please sent us an email request and we'll be happy to email you the file including the cases, rules, etc. You can follow our podcast on a variety of platforms including, Spotify, iHeartRadio, Amazon Music, Audible, Apple Podcasts and many more. Thanks for taking the time to listen. For more information about the Law Offices of DeCamillis and Mattingly, PLLC Address: 138 S. Third Street, Louisville, KY 40202 (across from The Old Spaghetti Factory) Phone: (502) 589-2822 Website: DeCamillisMattingly.com [https://www.decamillismattingly.com/] To Contact Kevin Burke: Website: https://burkeneal.com/BurkeNeal.com [https://burkeneal.com/] Phone: (502) 709-9975 Until next time, go find one thing you can do to change the world! The Kentucky Bar Association Requires Us to State "This is an advertisement."