The Legal Notepad

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, 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, 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 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, [email protected], or you send Kevin one at [email protected], 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 [email protected]. 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, 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   To Contact Kevin Burke: Website:          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."

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, 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, 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, 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   To Contact Kevin Burke: Website:          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."

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, 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   To Contact Kevin Burke: Website:          BurkeNeal.com Phone:             (502) 709-9975    To Contact Peter Wayne: Website:          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."

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, 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. 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, 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, 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, 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, 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 (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, 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 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 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.  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." 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" (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   To Contact Kevin Burke: Website:          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."

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, 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). In our previous episode, we discussed the liability of an adult when their minor uses their car and causes a wreck (Episode 12). 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, 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, 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   To Contact Kevin Burke: Website:          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."

Episode 12:  Louisville attorneys Rob Mattingly and Kevin C. Burke explore parental liability, now that 15 year olds are able to get a drivers license.  Parents should be aware of their responsibilities related to this new issue.  Rob and Kevin are joined by Lauren Byrn and for the first 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, click the Education and Training tab and look for the podcast.  TODAY'S LEGAL QUESTION: Lauren asks, "Now that Kentucky has a new law allowing 15 year olds to get their drivers licenses, what are the liability for parents?"  The Statute for Parental Liability for Minors Driving an Automobile KRS186.590 is the relevant law for this issue.  This law has been in place for decades.  Rob addresses non-lawyers by explaining how a parent can be held liable for a collision caused by your minor child.  There are 2 broad scenarios outlined by this statute.   The first scenario (Section 1) assumes you signed the application allowing the minor to get his/her license.  Therefore, you are deemed responsible for anything the minor does in the car, because you signed the application.  However, there is an exception.  If you've made sure the vehicle they are driving has insurance, you are not liable.  The second scenario (Section 2) is much broader.  Regardless of whether you personally signed the application, and regardless of the insurance, if you own the vehicle or allow the minor to drive the vehicle, you are liable.  Under Section 3, Rob notes the person who owns or furnishes the vehicle may not have been the one who signed the application for the minor to get his/her license.    By the way, if you were to allow a minor who is not your child, to drive your vehicle, you are liable for what may happen.  Kevin explains the two scenarios are there to ensure there is a source of recovery for someone who might be involved in a collision with a negligent, minor driver. To illustrate how all of this works, Lauren will pose a few questions and Adam will provide the answers.  Example #1:  Mom takes her 16 year old to get his/her licenses.  She signs the application.  However, she does not get insurance on the vehicle.  Is she liable? Yes, under Part 1 of the statue, the mother would be liable because she signed the application.  Kentucky requires vehicles to be insured.  The fact that the vehicle wasn't insured at the time of the accident isn't the primary issue.  However, she should have made sure the vehicle was insured.  Insured or not, the mother would be held liable. Example #2:  Mom signs the application and gets the car insured.  However, dad has a different vehicle.  He gives the child permission to drive his car.  If the minor driver causes an accident, who is liable? Adam explains that the mother would not be held liable.  Although she signed and insured the first vehicle, the statue specifically notes that if you furnish a vehicle to a minor, that person is liable.  Therefore, the dad would be held liable for the minor's negligence.  In reality, assuming the car is family asset, dad would still be liable. The above example would be relevant if the parents were divorced.  Example #3:  An adult, who is not the parent and didn't sign the application, agrees to let a minor borrow a car.  Would the adult be held liable?    In this example, according to Section 3, the adult is liable because he/she furnished the vehicle to a minor driver.  The adult assumed the liability. Example #4:  Mom signs the application and gets insurance on the car.  Unfortunately, dad allows the policy to lapse.  Who would be liable? Mom would be liable, however dad could potentially also be held liable if he had control of the vehicle and allows the minor to drive it, Section 3 would apply. Example #5:  Assume adult #1 borrows a car from adult #2 (with permission).  Then, adult #1 allows a minor to drive the car.  The minor causes an accident.  Who is liable? Kevin explains that this is a Section 3 issue.  Anyone who causes or knowingly permits a minor to drive a vehicle assumes liability.  It could also be said that adult #1 furnished the vehicle. Adam clarifies that adult #2 could also be liable.  He/she permitted adult #1 to use the car, even though it was adult #1 who permitted the minor to drive it.  Rob suggests that adult #2 should have explicitly told adult #1 that the minor was not allowed to drive the car.  At the end of the day, this isn't a situation you want to find yourself in, so be advised. Practical Pointers You Can Take to Protect Yourself If you are the parent, make sure you keep insurance on the car your minor is driving.  You should also decide how much insurance you can buy.  While insurance premiums are expensive, you need to consider the value of the assets you need to protect (i.e. your home, your checking and savings accounts, etc.).    Are You Protected if the Car is in the Child's Name? Kevin explains that this really depends upon the facts.  Assuming the car is titled in the child's name and there is insurance, it's possible the parents could escape liability, but it's not an automatic guarantee.  Kevin advises parents to simply assume they will be held liable.  Because Section 3 mentions anyone who gives or furnishes the vehicle to the minor, there will be questions about how the minor go the vehicle.  Did the parents help?  There are many considerations, so don't assume you won't be held liable. Applicable Case Law in Kentucky Again, we're talking about KRS186.590. It consists of 3 sections.  Section 1 states, the minor's negligence "shall be imputed to the person who signed the application.  That person shall be jointly and severally liable with the minor for any damages caused by the negligence."  Section 2 can relieve you of the liability.  It refers to keeping insurance on the vehicle in an effort to remove the liability from the individual, such as the parent.  Section 3 is very broad.  This states that if you own the vehicle and allow or knowingly permit the minor to drive it, you're responsible.  It goes on the say "and, any person who gives or furnished a motor vehicle to a minor shall be jointly and severally liable." Bottoms v. Smith (KY Court of Appeals, 2022) A grandfather is watching over his visiting 15 year old grandson.  While the grandfather is napping, the minor (who doesn't have a license) borrows the grandfather's truck.  The minor hits a pedestrian.  The pedestrian sues the grandfather.  This is a Sub-Section 3 issue.  The grandfather owned the truck.  The defendant motioned for summary judgement, because he was napping when the minor took the vehicle, without permission.  The Nelson circuit court granted the motion, noting that permission was not given to the minor.  The court of appeals affirmed the decision emphasizing the statue states "anyone who knowingly permits…"  This did not apply to the situation, because the boy took the keys while the grandfather was napping.  Commonwealth Fire and Insurance Company v. Manis (KY Court of Appeals, 1977) This is a permissive use case, including a dec-action. We'll focus primarily on the permissive use issues.  The plaintiff was a minor passenger.  The car was driven by a 16 year old who didn't own the car.  The mother gave permission to the daughter to drive the car.  The daughter gave permission to the 16 year old, who caused the accident.  The jury had to decide the permissive use.  They found decided yes, the mother was liable under Section 3.  However, the father of the 16 year old driver had a Safeco insurance policy.  The father was found not to be liable (under Section 1 or Section 3), even though he had signed the application for his son's license.  Practical Pointer:  Rob recommends that parents explicitly tell their minor drivers that they are not allow to let any other minors drive the car. This may help to counter a permissive use claim.  Parents can specifically revoke permission, which this action satisfies.  As always, it's very fact dependent, but worth doing.  State Auto Insurance Company v. Reynolds (KY Court of Appeals, 2000) This case involves an emancipated minor.  A 17 year old daughter is involved in a wreck, resulting in two fatalities (passengers in the 17 year old's vehicle).  The car was owned by his father.  The minor was a co-signer on the loan and was allowed to drive the car.  One of the estates for the deceased passengers had under insured motorist coverage.  The insurance company paid the UIM claim and sought to recover from the father.  They argued the father was liable under Section 3.    The father argued he had no control over his emancipated daughter.  The circuit court agreed with the father.  The insurance companies appealed, using the argument the statute makes no mention of emancipation.  The 17 year old is still considered a minor.  The court of appeals determined the father was the owner of the vehicle and knowingly permitted the minor to drive the car.  The court found the issue of emancipation wasn't relevant.  The language of the statue imposes liability on the father.  Rob notes the vehicle was in the father's name.  He could have transferred the title into the name of the child.  There were steps he could have taken to mitigate liability. Be sure to listen to Episode 13, which deals with statutory interpretation. Bryan v. Bear (KY Court of Appeals, 1977) This involves Section 1 and Section 3.  A minor boy was working with his neighbor.  The neighbor let the boy use his truck to get some shovels from the house.  The boy causes a wreck.  His father had signed for his driver's license and had insurance.  The plaintiffs sued the minor, the father (Section 1) and the neighbor (Section 3).    The defendants motioned for summary judgement.  The both had insurance, therefore the statute didn't apply.  They use Form SR21 as part of their arguments.  That's a form the insurance company files, stating the minor has insurance.  The plaintiff argued the Form SR21 was filed after the collision, so it didn't comply with the statute.  Therefore both defendants were liable. The court found the statute didn't rely on the filing of the form.  It's based on the acquisition and maintenance of a policy of insurance covering the minor at all times.   Beardon v. Derry (KY Court of Appeals, 1983) This case involves divorced parents.  The father signed for the minor's license.  The minor lives with the mother.  The mother provides the car and has insurance on it.  The minor causes a wreck.  The plaintiff sues the minor, the mother and the father.  The mother was liable, because she furnished the car (Section 2).  Interestingly, the father was still the titled owner, even though the mother had control of the vehicle.  Because the mother got the car as part of the divorce settlement, the court found the father was not liable, under Section 3. However, the father did sign for the license.  Again, the mother is paying the insurance.  The Form SR21 is form over substance.  A policy was in place, at the time of the accident.  Again, the father was found to not liable. Wolford v. Wolford (KY Supreme Court 1984) This is a strange case.  Harold is the father.  He owns a trailer park.  He owns 5 vehicles.  Initially the vehicles are under a business policy.  Harold's son is 16 years old, Charles.  Harold signs for Charles' license application.  Harold notifies his insurance company, Trinity Universal, that he wants to switch one of the cars to a personal policy.  He, then, makes the car available to Charles.   Charles decides to leave, after a fight with Harold.  He later returns to ask permission to use the vehicle.  Harold denies access to the car, assuming the son is high.  Charles takes the car.  When Harold finds out, he gets in another car and chases his son.  Harold also notifies the police. Charles rams a police officer's cruiser.  The injured police officer sues both Charles and Harold (Section 1). The plaintiff argued that Harold signed the application for Harold's license.  Also, since he didn't give permission, there was no insurance coverage.  Effectively the vehicle was uninsured.  Trinity Universal agreed with the fact that Harold didn't grant permission and won't defend Harold.  The court agrees there was no permission.  However, there was a section in the policy that imposes coverage on Harold, as the owner of the vehicle.  Therefore, they determined coverage exists. They agree Harold was liable under Section 1, but insurance does exist. The KY Supreme Court affirmed there was coverage.  Trinity is liable for the $80,000 judgement.  Additionally, because they elected not to provide Harold with a defense, Trinity is also liable for Harold's costs, attorneys fees, etc.   Speed Round for Other Relevant Cases Peters v. Frey (KY Court of Appeals, 1968) A trucking and excavating company (the employer) gave a minor a vehicle to use.  The company could be held liable, but what about the supervisor who gave the minor the vehicle?  The court decide the supervisor was liable under Section 3. Benton v. Parks (KY Court of Appeals, 1954) This involves a minor driving a truck owned by his brother.  Minor causes a collision.  Brother asserts he's not responsible because he has insurance.  Court finds Sections 1 & 2 are different from Section 3.  Therefore, they impose liability on the brother who furnished the vehicle to the minor. Asher v. Russell (KY Court of Appeals, 1964) This involves a 2-vehicle collision.  An adult gave a vehicle to a 17 year old, who subsequently caused a wreck.  Under Section 3, the adult-friend was liable.  This case also involved a directed verdict.  Lawhorn v. Holloway (KY Court of Appeals, 1961) Holloway's 17 year old daughter caused a wreck.  The minor's negligence was imputed to her father.  Falender v. Hankins (KY Court of Appeals, 1944) Phoenix Garage (the employer) had a 17 year old employee replace the thermostat in a customer's car.  The boss asked the minor to deliver the car to the owner's house.  During the trip, the minor decides to go on a joy ride.  He gets in a wreck.  The court decided because the minor was on a joy ride, he wasn't working.  But, his boss allowed him to use the car, therefore the boss was liable under Section 3.  Even though the boss didn't own the car, he had control of it. Cook v. Hall (1948) The son took his father's delivery truck for a joy ride.  The son caused an accident.  While the son had permission on previous occasions, he did not have permission to use the truck that night.  There was also evidence the son took the keys without permission.  The court found the father was not liable because he had not granted permission.  In a more recent case, Mitchell v. Allstate, a broader definition of permission might apply.  Kentucky law has developed what "has permission" means and how broadly it can apply.  Under Mitchell, the court decided you most-likely had permission, unless you're deemed to be a convert.  In other words, if you stole the vehicle, you didn't have permission.    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   To Contact Kevin Burke: Website:          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."

Episode 11:  Louisville attorneys Rob Mattingly and Kevin C. Burke unpack Kentucky's Firefighter's Rule.  A recent opinion by the Supreme Court has resulted in a flurry of comments on social media. Editor's Note:  If you are an attorney and would like CLE credit for this episode, visit the Kentucky Justice Association website, click the Education and Training tab and look for the podcast.  TODAY'S LEGAL QUESTION: Lauren comments she recently saw the Supreme Court issued a new opinion about the Firefighter's Rule in Wooster Motor Ways, Inc. vs. Gonterman (10/24/24).  It's a hot topic on social media.  She asks Rob and Kevin to provide details about this rule.  Kevin submitted an amicus brief, on behalf of the Kentucky Justice Association for the Wooster case.  What Is the Firefighter's Rule? Kevin begins by explaining what the rule is.  In its most basic form, it bars public employees (such as firefighters, police officers, EMTs, etc.) who are exposed to risks as part of their normal job activities, from recovering damages for injuries from the property owner or the person who may have caused the situation (e.g. the arsonist).    The rule is a misnomer.  This is not a rule the firefighters or other first responders actually want.  Rob mentions it's also referred to as a professional rescuer's rule or a first responder's rule.    Rob goes on to advice attorneys to review this rule, if they are approached by an injured first responder regarding a claim for the injuries they suffered.  While they may have a workers' compensation claim, the other types of personal injury claims wouldn't typically apply. Public Policy Rational for the Rule Rob and Kevin comment that the general public policy is that we want someone who has a fire or other emergency to call 911, rather than worrying about the potential legally liability should one or more of the first responders get injured while resolving the emergency situation.    However, could this rule also discourage people from pursuing first responder jobs, if they know they can recover damages as compared to other people? Public vs. Private Employees Lauren asks about a healthcare professional, such as a nurse, who encounters a car wreck.  Aren't they compelled to render assistance?  If so, does the firefighter's rule apply to them?  Kevin points out that in Kentucky, the rule only applies to public employees, so a nurse or other healthcare professional would not be limited by the Firefighter's Rule, were they to suffer an injury.  The Origin of the Firefighter's Rule Rob and Kevin discuss the origin of the Firefighter's Rule, from a national perspective.  The origin goes back to Gibson vs. Leonard, 32 N.E. 182 (Illinois 1892).  This was the first case in the country that applied the Firefighter's Rule.  A Chicago warehouse fire occurred.  The warehouse stored whiskey barrels.  Mr. Gibson and his fellow firefighters responded.  Back in the day, they part of the Fire Insurance Patrol.  This was roughly 21 years after the great Chicago fire). The Patrol was created by the insurance agencies to protect the assets of the businesses they insured, in the case of a fire.  Note:  The Fire Insurance Patrol and the Chicago Fire Department both responded to the warehouse fire.    The Fire Insurance Patrol is tarping the area and moving the barrels in an effort to prevent them from being destroyed.  Mr. Gibson and others place some of the barrels into the lift elevator to move them to a different location.  The lift fails, causing an injury to Mr. Gibson.  He later attempts to sue the owners of the building for his injuries.  The Illinois Supreme Court said both the Chicago Fire Department and the Fire Insurance Patrol were responding to the fire and had a right to be there and their attempts to save the building and its assets were justified.  The public policy was to encourage people to call the fire department in the case of an emergency.  This was not only to put out the fire, but to also prevent it from spreading to adjoining properties.  The Court created the rule of non-liability, acknowledging that firefighters assume the liability for potential injury as part of their job.     Rob explains that on a national basis, some jurisdictions have adopted the rule, while others have rejected it.  The trend tends toward more courts now rejecting the rule. Kentucky's Adoption of the Firefighter's Rule The first Kentucky case Rob and Kevin address is Buren vs. Midwest Industries, Inc., 380 S.W.2d 96 (Ky. 1964).  This is the case that establishes the Firefighter's Rule in Kentucky.  In this situation, Louisville firefighters were called to a fire in a commercial building.  The building included a bowling alley, restaurant and storage space.    There were several factors that may have led to the rapid spread of the fire.  One or more firefighters were injured while battling the blaze.  They file a suit to recover damages from the owners.  The Firefighter's Rule was applied by the Court.  It emphasized the assumption of risk by the licensee (e.g. the firefighters), as well as the fact that they are public employees.  The Court did however recognize the improperly stored cleaning solvents could have created an unusual hazard.  Kevin notes when the Court recognized the Rule, it immediately recognized an exception.   Note:  The elimination of the assumption of the risk was overturned later, in 1967, in Parker vs. Redden.    The Hawkins Case This is Hawkins vs. Sunmark Industry, Inc., 727 S.W.2d 397 (Ky. 1986).  The Supreme Court has moved away from the assumption of the risk and that other parties may have liability.  Kevin also notes that comparative fault was recognized in 1984.  In Hawkins, firefighters were injured at a fire at a gas station.  There were numerous claims regarding liability for the injuries and deaths against the motorist who hit the gas dispenser and other parties.  The Courts maintained that the firefighters could not recover from the motorist.  They also could not recover damages from the owner or the operator of the station.  However, the Court said a products liability claim could be pursued against the manufacturer of the gas dispenser.  The plaintiffs raised a constitutional challenge based on Kentucky jural rights (Section 14).  The Court considered it but said the common-law defense of the Firefighter's Rule predated our 1891 State Constitution.  No case was cited by the Court.  However, Kevin and Rob point out that the Gibson opinion was in 1892.    The Salle Case In Salle vs GTE South, Inc., 839 S.W.2d 277 (Ky. 1992), a paramedic working for the Lexington-Fayette Urban County Government, responded to a call to help an assault victim.  The paramedic fell in a trench dug by GTE South, while he was exiting the ambulance.  A suit was filed based on the hazard created by GTE's trench.    The Kentucky Supreme Court rules the paramedic to bring a claim, regardless of the Firefighter's Rule.  The Court created a 3-part test.  First, the Court recognizes the policy of encouraging property owners to engage first responders when emergencies occur.  Second, the public employees are at the scene to engage a public risk.  Three, the policy extends ONLY to that risk.    In the Salle case, it failed "prong one" because GTE was not the property owner or occupier of land.   They weren't the one who called for help.  Rather, it was the assault victim.  It also fails "prong three" because the injury was unrelated to the specific risk (i.e. the assault).  Therefore, the Court ruled the paramedic could recover from GTE in a premises liability claim.  The Norfolk Southern Railway Case In Norfolk Southern Railway Co. vs. Johnson, 554 S.W.3d 315 (Ky. 2018), a police officer, employed by the Danville Police Department responded to a call involving a suspicious person, who was possibly intoxicated.  Upon arrival, the suspect flees onto Norfolk Southern's property.  The office falls down an embankment while pursuing the suspect.  The officer files a claim against Norfolk Southern, based on mismanagement of the embankment, which resulted in the fall and related injuries.  The "risk" was the investigation of the suspect.  One could argue the ensuing chase was unrelated to the mismanaged embankment.  There was no connection between the suspect and the railway.  The Kentucky Supreme Court applied the 3-factor test.  Norfolk Southern was an owner/occupier of the defect land.  The incident involved a public employee.  The court ruled that the officer engaged the specific risk and the injury arose from that risk (i.e. the investigation/pursuit of the suspect).  Therefore, the Firefighter's Rule applies. Wooster Motor Ways, Inc. vs. Gonterman The Wooster Motor Ways, Inc. vs. Gonterman (2023-SC-0062-DG) case involves a Kentucky State Trooper (Michael Gonterman), who responded to a situation on I-71.  Rob comments that this opinion, issued on 10/24/24, lays out what will probably be Kentucky's Firefighter's Rule for many years to come.  The Parties Involved John Crawford was driving a tanker truck and stopped in the emergency lane to remove 2 dogs from the interstate.  He called 911 to alert them to the issue. The 911 dispatcher gets KSP Trooper Michael Gonterman to respond.  He arrives at the scene and parks in the emergency lane.  Crawford and Gonterman are able to remove the dogs from the interstate.  Both men are walking single file back to their respective vehicles.    Kim Perkinson, driving a Nissan Altima approaches the scene.  James Baumhower, driving a box truck for EC Delivery is behind Ms. Perkinson.  Teddy Seery is behind Baumhower driving a tractor trailer for Wooster Motor Ways.  Traffic in the area is slowing down. Perkinson begins slowing down and moves to the left lane.  Baumhower is unable to slow down and swerves back into the right lane to avoid colliding with Perkinson.  Seery also swerves right and is unable to stop in time.  Seery's tractor trailer collides with Baumhower's box truck. The collision flips Seery's box truck onto its side and slides into the walking Crawford (the tanker truck driver).  Crawford is pinned against the concrete barrier and later dies as a result of those injuries.  Trooper Gonterman is also sustains life-altering injuries. Trooper Gonterman files a lawsuit against Seery (Wooster), Baumhower (EC Delivery), Crawford's estate and Gonterman's own UIM policy with Kentucky Farm Bureau.  The defendants file for Summary Judgement, citing the Firefighter's Rule.  The trial court grants Summary Judgement for the defendants, including the claim against the Crawford estate.  The Kentucky Court of Appeals reverses the trial court.  The Plaintiffs decides not to pursue the claims against the Crawford estate.  This leaves the question of what happens to the claims against Seery, Baumhower and the UIM carrier?  The Supreme Court's Opinion in Wooster As previously stated, Kevin Burke submitted an amicus brief on behalf of the Kentucky Justice Association, in this proceeding.  At the outset of the opinion, the Court acknowledges the Firefighter's Rule.  But then, it points out the rule of non-liability is narrowly circumscribed, when in the public's interest.  The Court restates the 3-prong rule created in Salle. Prongs 1 and 2 are easily addressed by the facts of the case.  However, referring the prong 3, Kevin explains the Court clarifies the risk denoted in the third prong does not extend to the independent and intervening negligence otherwise unrelated to the risk.    The Court recognizes the trooper was injured by the independent negligence of another, while performing his duty as a public employee.  Therefore, the Rule will not bar a suit against the independent, negligent party. Rob and Kevin explain that if you receive a call from an injured, first responder you'll need to carefully review this case, the 3-prong test, determine who made the 911 call and other factors related to this narrow Firefighter's Rule.    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   To Contact Kevin Burke: Website:         BurkeNeal.com Phone:             (502) 709-9975    The Kentucky Bar Association Requires Us to State "This is an advertisement."

Episode 10:  Louisville attorneys Rob Mattingly and Kevin C. Burke recorded an episode during a CLE conference in Las Vegas, in front of their colleagues.  Several of them stepped up to the microphone to as a few questions.  Let's join Rob and Kevin as they discuss KRS 411.188 – Mandatory Notice of Subrogation Rights. Editor's Note:  If you are an attorney and would like CLE credit for this episode, visit the Kentucky Justice Association website, click the Education and Training tab and look for the podcast.    TODAY'S LEGAL QUESTION: Opposing counsel claims medical expenses must be excluded because we didn't file our KRS 411.188 notice.  How should we handle that?  Understanding KRS 411.188 Kevin begins by reviewing the statute.  The notice provision is addressed in Sections 2 and 4: 2) At the commencement of an action seeking to recover damages, it shall be the duty of the plaintiff or his attorney to notify, by certified mail, those parties believed by him to hold subrogation rights to any award received by the plaintiff as a result of the action. The notification shall state that a failure to assert subrogation rights by intervention, pursuant to Kentucky Civil Rule 24, will result in a loss of those rights with respect to any final award received by the plaintiff as a result of the action. 4) A certified list of the parties notified pursuant to subsection (2) of this section shall also be filed with the clerk of the court at the commencement of the action.  Kevin explain that the legislature passed a comprehensive set of bills related to civil actions, in 1988.  The statute was part of HB551 (a tort reform bill), refer to Section 4.  O'Bryan vs. Hedgespeth was discussed in Episode 7 of the podcast focusing on the Collateral Source Rule.  Several sections have since been ruled unconstitutional.  Rob and Kevin note that Section 2 provides that the plaintiff shall give notice to parties which are subrogation holders (i.e. health insurance companies, workers' comp carrier, STD or LTD carrier, etc.).  Section 4 requires that the plaintiff also file notice with the court that the notice was given.  How to Comply with KRS 411.188 Rob explains there are basically 2 ways to do this.  In his notification letter to subrogation holders, he includes the following:  "I have read KRS 411.188 and that statute says I must tell you that you must intervene.  If you don't intervene, you lose your subrogation rights."  This ensures Rob has complied with the Section 2 requirement.  Rob, then, files a Notice to Subrogation Holders pleading, in circuit court, with the following language:  "Please be advised that as of [insert date], I have sent notice of the duty to intervene to the following subrogation holders: [insert list]."  This ensures Rob has complied with the Section 4 requirement. After filing the pleading, Rob attaches a copy of the pleading to the letter he sends to the subrogation holders, via certified mail.  This process takes minimal time and is worth the effort.  Rob and Kevin comment on how defense attorneys are beginning to use violations of KRS 411.188 more frequently.  Kevin has seen other firms comply using a slightly different process.  You could include a Certificate of Compliance with KRS 411.188, within the complaint.  This would include a list of the subrogation holders you are notifying.  This would then be filed without the need for a separate document.    Providing Notice to the Subrogation Carriers Who are you actually required to notify?  Rob and Kevin discuss the PIP carriers for automobile accident cases.  Kevin points out the Motor Vehicle Reparations Act (MVRA) is a comprehensive statute.  PIP, or no-fault coverage, is a separate part of the MVRA and is not covered by KRS 411.188.  Not notifying the no-fault carrier doesn't mean you have failed to comply.  Rob mentions Ohio Casualty Insurance Company vs. Ruschell, states the "notice provision does not apply to my PIP carrier."  Kevin explains how the MVRA abolished, with conditions, the tort liability for anything covered by PIP.  Again, you do not have to send notice to the PIP carrier. When Added Reparations Benefit Coverage Has Been Purchased Kevin explains that in situations wherein added PIP coverage has been purchased, there is a State Farm case that says Added Reparations Benefits (ARBs) are considered to be the same as PIP.  Do I Need to Give Notice to the Workers' Comp Carrier? Kevin says this is the exact opposite analysis.  Kentucky workers' comp benefits are paid pursuant to KRS Chapter 342.  It contains a specific subrogation section (KRS 342.700).  Subsection 1 specifically says you must notify the workers' comp carrier pursuant to KRS 411.188. Question from Attorney Mark Smith Conference attendee, attorney Mark Smith asks a question about when a case involves both workers' comp and an auto accident ("a hybrid case").  In Kentucky, workers' comp takes priority over PIP.  In a hybrid situation, do we still have to give notice to the comp carrier?    Rob confirms that yes, notice is still required to be given to the workers' comp carrier.  Kevin reminds us that there's no penalty for over-compliance.  You could even include the no-fault carrier, if you decided to do so.    Mark Smith has been practicing for 33 years from Louisville office.  He mainly handles personal injury cases.   Mark enjoys handling automobile accident cases.  He's presented at this annual CLE conference on numerous occasions.  This year's presentation involved using the Kentucky bad faith statute to maximize the recovery for his clients.  Mark's phone number is (502) 641-9848. Notifying Health Insurance Companies and Federal ERISA Plans This is the most common situation.  Rob sends notice to the health insurance companies every time, regardless of whether a PIP carrier was involved.  However, the case law has evolved.  If the carrier decides not to intervene, they lose their subrogation rights, according to the statute.  The question is how can Kentucky law preempt a federal ERISA statute?    Kevin and Rob use a couple of cases to explain the situation.  In Humana Health Plan vs. Powell, the 411.188 doesn't apply to ERISA plans, because it was part of a statutory tort reform plan.  The Kentucky state law doesn't preempt federal ERISA law.    Therefore, Rob and Kevin recommend sending notice to every health insurance plan.  What's the downside?  Why lose sleep over it?  Send the notice and know that you've complied.    KRS 411.188 can't be used as a sword against an ERISA plan.  However, it can be used as a shield protecting you against an insurance company making the claim that you violated the statute.  Question from Attorney Andrew Mize Conference attendee, attorney Andrew Mize poses a question.  Assume you've given notice, proceed through the litigation, but still receive no response from the subrogation holder.  How long does that party have to come after you, especially in federal court under ERISA?  Rob responds there are generally 2 types of health insurance plans, ERISA plans and non-ERISA plans.  He goes back to the Humana v. Powell case wherein 411.188 cannot preempt an ERISA plan.  Therefore, the subrogation rights would be based on the underlying contract of the policy.  The ERISA plans have a right to recover from the funds you receive as part of a settlement/verdict.  Assuming the contract doesn't have a statute of limitation, it would default to Kentucky contract claim, which is now 10, although Kevin points out it could be 15 (depending upon when the contract was entered). If a non-ERISA plan is involved, KRS 411.188 applies and notice must be given to the health insurance carriers.  Rob would file a motion, in circuit court, to extinguish the carrier's lien.  He would then send a copy to the carrier.  Non-ERISA healthcare plans are bound by the statute.  If they don't intervene, a judge may decide to strike them. Andrew Mize is an attorney with Stranch, Jennings & Garvey, PLLC in Nashville.  He handles complex personal injury cases, especially those involving minors.  He also focuses on plaintiff-side class actions and consumer rights litigation.  The firm handles claim on a nationwide basis.  He has built a niche in cyber-security and data breach actions.  His office phone number is (615) 254-8801. Question from Attorney Mark Smith Mark asks a second question.  When a client visits a doctor's office and signs a lien contract, does this create a subrogation claim that would require attorneys to provide notice under KRS 411.188?  Rob and Kevin admit they haven't actually thought about this issue.  This raises the question of whether the provide has to intervene or whether you would even want them to intervene?  Could you take their deposition for free?  There's actually a lot to this. Mark comments that this can become an issue when the client doesn't have PIP coverage.  The doctor wouldn't get paid until the bodily injury claim gets paid by the tortfeasor.  The doctor would definitely have a lien on the settlement/verdict.    Rob, thinking out loud, assumes the doctor hasn't paid out anything, so it wouldn't necessarily be a subrogation claim; it's a lien.  Therefore, KRS 411.188 probably does not apply.  Kevin comments that you could include them in the notice list.  If the lien contract has subrogation language, it might match up with KRS 411.188.  If they don't intervene, you may be able to strike them. How Do Plaintiffs Use It and How Does the Defense Use It if You Don't Comply? As already touch on previously, if you comply and the entity decides not to intervene, you would file a motion to strike their subrogation interest.  However, this statute can also be used against you.  If you fail to provide notice, you are barred from using your medical bills.  Is this really why the statute was written?  Kevin admits Sections 2 and 4 protect the interest of the subrogation holders.  It's not specifically geared toward the tort defendant.  At the time this statute was written, Subsection 3 (O'Bryan) had not be ruled unconstitutional.  Now, if the defense is using 2 and/or 4 to eliminate the medical bills, doesn't really follow what the statute was originally intended to do. Question from Attorney Peter Jannace Conference attendee Peter Jannace asks a question of Rob and Kevin.  Given that some sections were ruled unconstitutional (namely Section 3), have the pertinent, remaining sections been evaluated by a court as to their constitutionality? Kevin explains there is no appellate opinion based on a challenge to Sections 2 and 4.  However, as a practical matter, why wouldn't the arguments made in O'Bryan vs. Hedgespeth apply to Sections 2 and 4?    If you find yourself in a bind, you should consider including a challenge to the constitutionality.  Be sure to properly preserve it for appeal.  There's no reason not to do it.  Peter Jannace is an attorney with Herzfeld, Suetholz, Gastel, Leniski and Wall, PLLC.  Peter practices out of the Louisville office.  He focuses on employment law and labor law.  He also has experience with complex and class action litigation.  His office phone number is (502) 636-4333.  If You've Received Notice Kevin lays out a process.  First, identify whether you were required to give notice.  Make the arguments included in O'Bryan vs. Hedgespeth and notify the state attorney general.  You need to contact the attorney general because your argument is going to include a question of the unconstitutionality of the statute.  If you fail to do so, the court of appeals will consider it an unpreserved issue.  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   To Contact Kevin Burke: Website:         BurkeNeal.com Phone:             (502) 709-9975    The Kentucky Bar Association Requires Us to State "This is an advertisement."

Episode 9:  Louisville attorneys Rob Mattingly and Kevin C. Burke explore the issue of whether social security disability benefits, or other entitlement-type programs, can be recovered in a wrongful death claim.  Lauren received this question from the listeners.  Rob and Kevin will provide insights, based on Kentucky law, in today's episode. Editor's Note:  If you are an attorney and would like CLE credit for this episode, visit the Kentucky Justice Association website, click the Education and Training tab and look for the podcast.    TODAY'S LEGAL QUESTION: Are social security benefits recoverable in a wrongful death claim? Before answering the question, context is important.  Let's establish a foundation for the discussion.  Destruction of Power to Labor and Earn Kevin begins by noting that wrongful death in Kentucky isn't just based on case law and/or statute.  It's actually provided for in Kentucky's Constitution.  Section 241, states, "Whenever the death of a person shall result from an injury inflicted by negligence or wrongful act, then, in every such case, damages may be recovered for such death."    As a result, we now have KRS 411.130.  Included in this is the provision for punitive damages if the act was willful or involved gross negligence.  Aull v. Houston This is a 2010 Kentucky court of appeals case.  It involved the death of a 5-year old child.  The child was born with a severely disabling disease.  The child obviously had no earning capacity.  The original complaint involved a medical malpractice action involving immunizations that brought about the death of the child.  The child had been receiving supplemental security income (SSI) benefits.  The question was whether those SSI benefits were recoverable as part of the wrongful death action. In circuit court, the parties briefed it for partial, summary judgement.  The defendant filed the motion solely focusing on the child's destruction of the child's power to labor and earn money.  The plaintiff's estate admitted there was no way the child would earn money through labor.  The court ruled social security benefits, under the facts of this case, were not recoverable in the wrongful death action. The parties asked the circuit court to certify the ruling as final and appealable with no just reason for delay, under civil rule 54.02.  The court certified it.  Remember, this only resolved one element of damages in the case. Kevin notes the case went to the court of appeals as a case of first impression for Kentucky courts, but not in federal district court applying Kentucky law.    Lauren comments that the court cites Meinhart v. Campbell.  This was a 2009 federal district court case involving a wrongful death.  The deceased was receiving social security disability insurance benefits (SSDI), prior to the death.  The court was dealing with a case of first impression, in this instance.  The court held the SSDI benefits payments could include the disability benefits in determining the wrongful death damages.  The decision was likened to other cases wherein a pension could be recovered in wrongful death action.  The Kentucky appellate court in Aull v. Houston recognized that federal district court opinions have only persuasive value in Kentucky appellate cases.  It viewed social security benefits are not an element of the destruction of the power to labor and earn money.  Therefore, "social security benefits" can't be added to the damages.    Rob comments that Aull never distinguished between the different types of social security benefits. Savage v. Co-Part This is a 2023 Kentucky Supreme Court case.  Rob notes the procedure in the case is difficult of follow, but it's relevant for the discuss of this episode' focus on social security benefits.  It did some very important things for Kentucky families.  Rob and Kevin specifically recognize the work done by the Richard Breen Law Offices, in Louisville, for the work they did on this case.  They also recognize Calloway County attorney Jeff Roberts who wrote the amicus brief on this specific issue.  Savage v. Co-Part is a wrongful death case involving a car wreck.  Mr. Savage was receiving social security disability insurance payments (SSDI).  The Kentucky court of appeals questioned Aull v. Houston.  Did the opinion in that case actually extend to SSDI?  The court did an analysis and essentially flagged it for the Kentucky Supreme Court.  Once it was accepted for Discretionary Review, the Kentucky Justice Association urged Jeff Roberts to file an amicus brief.    The Kentucky Supreme Court examined the reasoning behind the court of appeals' decision in Aull and determines that the reasoning does not apply to social security disability benefits.  The Court found that SSDI is not an entitlement program, unlike supplemental security income (SSI).  In fact, the court of appeals opinion in Aull cited 2 cases, which were actually workers' compensation cases.  According to the court these cases supported the court's decision as to why social security benefits were not available to be included in the damages.  The Kentucky Supreme Court, in Savage, finds those 2 cases are distinguishable.  The availability of the benefits are different.  Kentucky workers' comp benefits are completely different from a wrongful death claim under KRS 411.130.  In essence, the Court deconstructed the foundation in Aull.  The Court held that social security disability insurance benefits (SSDI) can be used in calculating damages.  However, supplemental security income cannot be used.  SSDI is an earned income, thus it's related to the destruction of the power to labor and earn; SSI is not. Rob and Kevin note that Savage doesn't actually overturn Aull.  Instead, the Court abrogates Aull, regarding SSDI benefits serving as a substitute for earned income in the case of retirement or in disability.  It goes onto agree that SSI benefits are not to be included in damages calculations. 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   To Contact Kevin Burke: Website:         BurkeNeal.com Phone:             (502) 709-9975    The Kentucky Bar Association Requires Us to State "This is an advertisement."

Episode 8:  Louisville attorneys Rob Mattingly and Kevin C. Burke discuss whether police reports are admissible.  It's a concern client often bring up during initial conversations with their attorneys.  Editor's Note:  If you are an attorney and would like CLE credit for this episode, visit the Kentucky Justice Association website, click the Education and Training tab and look for the podcast.  Lauren begins by commenting on the number of responses to the recent poll asking about topics and other subject matter the audience would like to Rob and Kevin to address in upcoming episodes.  The feedback was terrific. As we dive into the topic, Kevin brings up a favorite answer given by many attorneys, "Well, it depends."  The general rule is that, in Kentucky courts, police reports are inadmissible as hearsay.    Kentucky Rule of Evidence 803 contains the basis for what is not excluded by the hearsay rule.  In sub-section 6 it lists records of regularly conducted activity (e.g. the business records exception).  Sub-section 8 deals with public records and reports (e.g. the public records exception).  Specifically, 8(A) focuses on investigative reports by police and other law enforcement personnel. This establishes police reports are not an exception to the hearsay rule.   Manning v. Commonwealth Kevin summaries this Kentucky Supreme Court case, from the year 2000, which directly cites to KRE 803(6). In Manning vs. Commonwealth, the defendant in the murder case wanted to introduce the police report.  The report identified someone other than the defendant as the possible perpetrator, based on the statements of an unidentified witness.  The trial court ruled the police report was inadmissible as hearsay.  The Supreme Court affirmed the decision.  It was properly excluded under KRE 803(6).  The Court also cites the Kentucky Evidence Law Handbook.  Rob comments about the double hearsay issue because the report itself is hearsay, about someone else who's making hearsay comments.  The Supreme Court also cited Prater vs. Cabinet for Human Resources, dealing also with KRE 803(6).  The opinion did note that the defense was able to ask the officer about the conversation with the unidentified witness, during cross-examination.  That testimony was admissible, even though the actual police report was not. Rob notes that they didn't have to consider the admissibility under KRE 803(8)(A), because it was obvious.  However, the question was whether KRE 803(6) applied.  Gorman v. Hunt This is a civil case.  Gorman v. Hunt is another Kentucky Supreme Court decision from 2000.  It's often referred to as the "posed photograph case."  This was an automobile verses pedestrian case.  The issue was whether posed photographs could be admitted and shown to the jury.    Rob clarifies the case serves as an example of whether someone can recreate the area and taking photographs of the area.  They've posed the scene.    This case refers to an Advanced Life Support (ALS) Report, which would have been prepared by EMS personnel.  In the opinion, it's not referred to as a police report, but it's functionally the same thing.    The plaintiff wanted to use the ALS run report to show the defendant driver was exceeding 50 mph, at the time of the collision.  The speed was based on testimony from unidentified bystanders.  At trial, the court ruled the ALS run report was inadmissible.  The court of appeals affirmed the verdict.  The Supreme Court took it up on discretionary review.  The Court ruled that the trial court had ruled properly with regard to the ALS run report.  Campbell v. Marcum This 1968 automobile accident case addressed the admissibility of police reports and the information contained therein.  This collision involved two vehicles.  A Kentucky State Trooper completed the police report.  The question was whether the trooper could read from his report, while on the stand.  The defendant wanted this testimony from the trooper.  However, the trial court refused to allow a reading from the police report.  This issue was appealed.  The appeals court affirmed the trial court's ruling that prohibited the trooper from reading the report aloud.    Kevin comments that no authority was cited regarding the admissibility of the report.  Instead, a general treatise (not a Kentucky treatise) was used.  It did not directly address hearsay.  Admissions by Parties and Prior Inconsistent Statements Rob and Kevin will discuss two cases dealing with this topic.  Again, clients often have questions about police reports, how they are going to be used and how to get statements either clarified or corrected.  Day v. Commonwealth (2007) This is a criminal case involving a DUI conviction.  Tammy Day was given a 7-day sentence with work release.  During this time, her daughter was in a car wreck.  Tammy petitioned for time to tend to her daughter.  The district court allowed it.  She returns to serve the remainder of her sentence.  During this period, she leaves for work and then returns to jail for the night.  She showed up with a bag of personal items.  Upon inspection, the sheriffs find drugs hidden in a bra, inside the bag.  Tammy denies knowledge of the drugs.  During this time, an officer is taking notes.  During the investigation, the officer records that Tammy claims to have purchased the bra at the Salvation Army.  The handwritten notes by the officer were placed in the file, although they were not part of an official police report.  At trial, Tammy denies ownership of the bra.  This is different from her original statement that she had purchased the item at the Salvation Army.    The officer's contemporary note was brought in at trial.  While it wasn't an actual police report, it was similar to one.  This issue is should that note have been admissible?  Tammy Day is convicted and sentence to approximately 4 years, even though her original DUI conviction only resulted in 7 days.    The case is appealed based on the question of whether the note should have been admitted into evidence.  This court of appeals held that under Manning v. Commonwealth it's distinguishable.  In Manning, there was a statement from an unidentified witness.  However, in this case, the statement about the bra was directly attributable to Tammy Day.  The statement was considered to be an admission by a party under KRE 801(A)(b)(1).  Therefore, it was appropriate that the jury hear the information.  Rob notes that if there's a statement that can be considered an admission by a party, and it's relevant to the elements of the case, it might come in as evidence. T.L v. T.M. Rob and Kevin will use this 2008 child custody case to illustrate how an inconsistent statement on a police report could impact admissibility. The biological father petitioned for custody away from the biological mother (who was living with her boyfriend).  The father alleged domestic violence was occurring in their household.  At trial, the mother denied she was being or had been abused by the boyfriend.  However, the father wanted a police report (from several years prior) to be admitted, because it stemmed from a call the mother made to the police alleging the boyfriend had attacked her.  This refuted the mother's claim that no abuse had ever happened.  This calls into question whether the police report is admissible. The father's attorney argued the police report highlights a prior inconsistent statement, under KRE 801(A)(a)(1).    Kevin notes that this was bench trial, not a jury trial, but the rules of evidence still apply.  The court ruled in favor of the father because the statement was inconsistent at trial.  Thus, the police report was admitted.  Interestingly, Kevin points out that the police report occurred in New Jersey, and was not actually a part of the case before the court.  Nonetheless, the prior inconsistent statement is in control.  Rob comments that had the mother admitted, at trial, there had been an issue of domestic violence while they were in New Jersey, the police report would not have been admitted. Diagrams Lauren introduces this segment with a question of whether a police diagram can be admitted.  Rob recognizes this happens fairly often at trial.  The police have the capability of generating a CAD diagram and attaching it to the police report.  In this particular discussion, Rob and Kevin focus on the admissibility of the diagram, rather than that entire police report. Davis' Adm'x v. Gordon This was a 1948 court of appeals ruling.  This was a car verses pedestrian case, in which the child pedestrian died.  A wrongful death claim was filed.  The defendant claimed the child ran out from between parked cars along the side of the road.  There was nothing he could do to avoid the impact.  The plaintiff claimed there were no cars parked along the side of the road where the child was struck.  Therefore, the defendant should have had a clear line of sight.    The police at the investigation drew a diagram showing 3 cars parked along the road.  The marked where the child ran out, into the road, from between 2 of the cars.  The diagram was admitted at trial.  The court ruled in favor of the defendant. The plaintiff appealed.  Kevin notes the diagram was based both on what the officers observed when they arrived on scene and by information provided from bystanders.  These are hearsay statements.  The court of appeals ruled that because the diagram was tainted by the hearsay information, it should not have been admitted.  As a result, the case was reversed. Kevin refers back to the 2000 case of Gorman v. Hunt, mentioned earlier in this episode, which involved posed photographs.  In this case, the court ruled the posed photographs were admissible.  Kevin advises that even though a visual may be inadmissible, if you can find another way, you still might be able to get it admitted.  Additional Helpful Cases Dealing with Police Reports Rob begins with Prater v. Cabinet for Human Resources (954 S.W.2d 954).  This is a 1997 Kentucky Supreme Court case.  The Cabinet had a case report in a parental termination case.  The case report was not admissible because it contained statement by different witnesses.  One party argued it should be admitted as a business record.  However, the court held it was inadmissible because it contained the statement from witnesses, which is hearsay.  Hacker v. Commonwealth This is a Kentucky Supreme Court case from 2014.  It was a criminal case.  There was a police report from a prior conviction.  The prosecution used the police report to attack the defendant's credibility.  The Court ruled the report was inadmissible because it contained victim's statements.  While it appears to be a business record, the statements are hearsay.  HBR Madisonville v. Attebury This is a Kentucky court of appeals opinion from 2021.  There was an internal investigation resulting in a wrongful termination at a nursing home.  The terminated employee wanted the report from the investigation to be kept out.  The employer wanted to admit the report.  The court ruled the report was not admissible because it contained statements from other employees.  It's a business record, but it contained statements be people, even though they can be identified.  Allen v. Gueltzow This is a 2017 DVO case.  Even in a DVO hearing, police reports are not admissible.  JDY v. BHD This is a 2008 court of appeals case involving a DVO.  In this case, they wanted to admit the actual petition from the plaintiff, not the police report.  The petition was ruled inadmissible, just like a police report.    Bradley v. Commonwealth Rob notes that sometimes the rules of evidence, themselves, don't apply.  Bradley v. Commonwealth is a 2021 court of appeals case.  In a restitution hearing, the court ruled a police report was admissible.  Under KRE 1101(D)(5), the court said the rules of evidence do not apply to restitution hearings.  Kevin adds that in sentencing, probation revocation, grand jury proceedings, preliminary hearings and others, the rules of evidence don't apply, except for privileges.  Again, refer to KRE 1101(D).  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   To Contact Kevin Burke: Website:         BurkeNeal.com Phone:             (502) 709-9975    The Kentucky Bar Association Requires Us to State "This is an advertisement."

Episode 7:  Louisville attorneys Rob Mattingly and Kevin C. Burke discuss the history of the Collateral Source Rule and the Kentucky Supreme Court decided to Kentucky will follow this particular rule. They're joined by Rob's paralegal, Lauren Hincks, who helped research some of the information for today's topic.  The discussion references the following case:  O'Bryan vs. Hedgespeth (https://case-law.vlex.com/vid/bryan-v-hedgespeth-no-895448427) Editor's Note:  If you are an attorney and would like CLE credit for this episode, visit the Kentucky Justice Association website, click the Education and Training tab and look for the podcast.    Kevin begins the discussion by stating this is one of the seminal cases for plaintiff's attorneys, whenever medical expenses are at issue.  It's a 1995 Kentucky Supreme Court opinion.  However, attention should be given to where it started in 1988, with Kentucky House Bill 551.  The resulting statute is KRS 411.188 requiring admission at trial of collateral sources.  What Are Examples of Collateral Sources? Rob mentions a very common one is the mentioning, at trial, of health insurance that might have paid some of the medical expenses.  Another example could involve short-term or long-term disability benefits that were received.   Collateral sources are typically benefits the plaintiff paid for or earned, so the question is should this evidence be admissible at trial?  Historically, Kentucky law did not consider this type of evidence admissible.  The legislature attempted to change that in 1988.  As a result, a judge has no discretion and they jury must hear about the collateral sources (regardless of the relevancy).    Edwards vs. Land actually went up before the O'Bryan case and is referenced in the O'Bryan opinion.  It was heard before the Kentucky Court of Appeals.  The opinion validated the actions of the Kentucky Legislature. A Common Misconception Regarding Discretionary Review Rob points out that the Kentucky Supreme Court did not review Edwards.  Kevin clarifies a misunderstanding in appellate practice regarding the Court's denial of discretionary review.  Just because the Court chooses not to review Court of Appeals opinion, does not necessarily mean that the Supreme Court agrees with the Court of Appeals.  This particular issue is included in O'Bryan. O'Bryan vs. Hedgespeth and the Motion in Limine Rule The plaintiff in the case filed a motion in limine to exclude collateral sources.  The defendant argues the statue should be followed.  The court agreed with the defendant.  The plaintiff now must decide whether to bring up in voir dire or to wait to let defense bring it up.  If the plaintiff brings it up, have they waived the remedy on appeal?    In O'Bryan, the Supreme Court said the plaintiff didn't waive the remedy.  The plaintiff is not required to wait.    Rob view this through the lens of fairness.  If you filed a motion in limine and the court denied it, then it should be fair that you have the opportunity to bring it up, first, without having to wait.  Kevin agrees.  However, he advises attorneys to make sure they have a ruling on the record. The Constitutional Phase The plaintiff made several arguments as to why 411.188 was unconstitutional.  The first argument involved Section 51, the Subject Title Clause.  In essence, if you have a title for a Bill and the subject doesn't relate to the title, it's a problem.  Kevin explains how Kentucky's Constitution was designed to limit the General Assembly's power to engage in shenanigans.  The Court found that there was not a violation of Section 51.  However, it left the door open as to whether other topics not related to collateral sources, would satisfy Section 51. The next issue dealt with separation of powers.  Kevin remarks how Kentucky's approach to this issue created some of the strongest provisions of any state constitutions.  Sections 27, 28 and 116 focus on the separation of powers.  The Court reviewed whether the Kentucky Legislature telling the courts they needed to allow collateral sources actually violated the separation of powers.  Section 116 was of particular interest, because it grants exclusive authority to the courts, including the Kentucky rules of evidence.  Rob comments about the historical issue regarding the understanding of where one branch's power ends and the others begin.  The Court found that 411.188 Subsection 3 actually does violate the separation of powers.  The Court also addressed the doctrine of comity.  This doctrine says the Kentucky Supreme Court can, under certain circumstances, give deference to the Legislature, even though it might violate the separation of powers (in this instance).  The Court found that the information was irrelevant.  It doesn't address harm, fault or damages.  Thus, it decided not to give comity to the Legislature. Next, the Court also analyzed the issue of jural rights granted to our citizens (predating our state Constitution).  It found that there would be a substantive limiting the rights of an injured person to fully recover.  This, in and of itself, would violate the Kentucky Constitution.  Jural rights are address in Sections 14, 54 and 241. The Concept of Personal Responsibility Rob discusses personal responsibility as it relates to the Collateral Source Rule.  If an individual takes steps to purchase or earn certain benefits, should he/she have a penalty for having purchased or earned them, when compared to some who didn't take steps and yet avoids the penalty?  The Court agreed with this position.  Kevin juxtaposes this position by explaining that the wrongdoer shouldn't receive a benefit because the injured party had the foresight to obtain insurance. Rob goes back to O'Bryan in which the term "windfall" was used by the Court as it described a lack of accountability that the person responsible for the harm caused would receive.  This binds the issues of personal responsibility and accountability together.  Kevin explains how Justice Leibson addressed the reason the Rule doesn't work in practice.  The section on comity mentions that the Court shouldn't give comity to the Legislature because of the complexity it would introduce into the issue of insurance, notwithstanding the issues of impracticability and relevancy.  Justice Leibson also commented on how evidence given to the jury could potentially result in a reduction of the amount of the award.  Kevin and Rob use and example wherein if the jury were to only award the out of pocket expenses, the health insurance carrier could then use subrogation to exert rights to the amount of the reduced award; leaving the plaintiff with nothing.  Rob brings up the point that if you were able to tell the jury about the health insurance, short-term or long-term insurance, you would still be precluded from mentioning auto insurance, because of other rules of evidence.  This creates a question of balance regarding insurance as a whole.  Again, it would be impracticable. Kevin notes how Justice Leibson also addressed the above by noting the jury would only receive a limited and skewed view into what's actually going on.  Baptist Healthcare vs. Miller 177 S.W.3d 676 This is a 2005 Kentucky Supreme Court Opinion.  Kevin and Rob explain how the Court reaffirmed the Collateral Source Rule from O'Bryan in this opinion.  Baptist involved an issue related to Medicare.    In closing, Rob comments on how the Kentucky Constitution protects against a violation of the Collateral Source Rule. 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   To Contact Kevin Burke: Website:         BurkeNeal.com Phone:             (502) 709-9975    The Kentucky Bar Association Requires Us to State "This is an advertisement."

Episode 6:  Louisville attorneys Rob Mattingly and Kevin C. Burke explain the rules regarding the process for using summaries at trial, in Kentucky.  These can be extremely useful, but you have to follow the process to get them admitted.  They're joined by Rob's paralegal, Lauren Hincks.  Editor's Note:  If you are an attorney and would like CLE credit for this episode, visit the Kentucky Justice Association website, click the Education and Training tab and look for the podcast.  TODAY'S LEGAL QUESTION: What is the proper process for admitting some of my summaries, while excluding some of the defense's summaries? Rob begins by reading KRE 1006, which specifically dealing with summaries.  Kevin likes how well the rule lays out the process.  It's a useful tool for trial.  He points out the verbiage, "…the contents of voluminous writings, recordings or photographs…" So, there has to be a lot of them that can't conveniently be presented in court.  The rule goes on to state, "[They] may be presented in the form of a chart, summary or calculation."  This gives the attorney some latitude.  The rule requires timely notice be filed with the court regarding the intention to use a summary.  The originals or duplicates will also need to be made available for examination and/or copying.  At the time of this recording, there are 11 cases citing the rule (6 civil, 4 criminal and 1 family law).    Using Summaries for Medical Bills The 2007 case Walls vs. Robinson is an unpublished opinion from the KY Court of Appeals, involving a motor vehicle accident.  The plaintiff read a summary of the medical expenses, and summary was admitted as an exhibit.  The defendant objected.  It was one of the issues that was appealed.  The court decided it was proper for the plaintiff to have both read and admitted the summary into evidence.  Medical bills are an exception to the hearsay rule (KRE 803(6)).  The underlying information was not hearsay.  You can't convert inadmissible information into admissible information by using a summary.  The case was reversed, but on a different point.  The plaintiff indirectly referenced insurance in the closing argument.  Defense objected to a "pot of money" statement.  However, the court spoke directly to the issue involving the summary.  Rob comments that another unpublished case, Almon vs. Mary Bullock and Safeco Insurance Company, is useful if you need to argue summaries of medical expenses can be entered.  This was another motor vehicle accident case. Bothe of the above cases are unpublished.  For more information on the proper way to cite unpublished opinions, listen to Episode 5 of the Legal Notepad Podcast. What if Opposing Counsel Is Attempting to Keep Your Summary Out? It might be argued that the information is in fact not consider voluminous, therefore the summary doesn't need to be admitted.  Remember, if it's admitted into evidence, it goes back to the jury room.  Kevin discusses Haeberle vs. McCall (2007), another unpublished opinion from the KY Court of Appeals.  This was an employment contract dispute involving a dentist and his employer.  The dispute involved a lot of laboratory bills, spanning a 4-year period.  It directly impacted Dr. Haeberle's compensation.  On appeal, the plaintiff (Haeberle) argued the summary should not have been admitted.  They argued the amount of bills were not voluminous.  Haeberle also argued the best evidence rule.  The court dismissed these particular arguments.  The defendant met the requirements of the rules.  The court rejected the plaintiff's argument that the records weren't voluminous, based on Rule 1006.  "Too burdensome to produce" was a made-up standard.  The rule states that the information couldn't conveniently be examined by the court.  There were at least 4 years of bills.  The summary was allowed.  Rob emphasizes the nature of the word "convenient," even though the information may not actually be voluminous.  What If You or Opposing Counsel Failed to Give Notice? There are many reasons an attorney may not want to give notice of a summary (i.e. strategic reasons).  However, the rule specifically requires notice to be given.  However, what happens if you forgot or didn't know 1006 exists?  Can you still get the information in?  Kevin refers two cases dealing with this issue.  The first is Robinson vs. University of Kentucky Medical Center (2003 unpublished opinion).  The second is Whitlow Construction and Development vs. Kentucky Bank. Both opinions said the summaries could not be used, because the attorney did not comply with Rule 1006.  The evidence (i.e. the summaries) must be filed in a timely manner.    Nonetheless, while the summaries are out, you can still get the evidence in through testimony of a witness.  So, What Is Meant by Timely Filing? Rob often reviews trial orders.  There is something related to filing exhibits.  Look for the closest thing that might apply.  Comply with that deadline.    Rob often includes summaries in his answers to interrogatories.  It's a way to make sure everyone is on notice that the summary is going to be used.  What Is a Summary and What if a Business Record Contains a Summary? Kevin cites Sparks vs. Commonwealth.  It's a 2003 unpublished opinion from the Kentucky Court of Appeals.  This one happens to be a criminal case.    The issue involved bank statements, which are typical examples of a summary within a business record.  An attorney argued the statements showed individual deposits and therefore opposing counsel was required to comply with Rule 1006 by providing it as a summary.  Therefore, the bank entries should have been excluded.  The defendant was convicted and appealed.  The court ruled bank statements are business records.  Rule 1006 doesn't apply.  The rule applies to summaries that are created for trial.    Are there other Examples When Information might be a Summary? Kevin explains that the rule specifically mentions writings, recordings or photographs.  It's pretty broad.  For instance, a summary of blood pressure readings would need to comply, such as in the case Dye vs. Western Kentucky University. Summaries of texts, voicemails and/or emails can be summarized and therefore the rule would apply.  Kevin cites Dusing vs. Bakker (2023 KY Court of Appeals unpublished opinion).  While these records were deemed to be admissible under Rule 801(A)(b), they qualified as summaries per KRE 1006. Kevin references Davenport vs. Ephraim McDowell Memorial Hospital (769 S.W.2d 56), a Kentucky Court of Appeals opinion from 1988.  This case also addresses summaries.  The case involved a summary of a nurse's testimony during her deposition.  The court held the information qualified as a summary and therefore fell under KRE 1006. Remember, the Rule doesn't just apply to medical bills.  There are many other types of information that can be made into summaries and therefore required to comply with the rule.  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   To Contact Kevin Burke: Website:         BurkeNeal.com Phone:             (502) 709-9975    The Kentucky Bar Association Requires Us to State "This is an advertisement."  

Episode 5:  Louisville attorneys Rob Mattingly and Kevin C. Burke focus today's discussion on the change to unpublished opinions.  They'll explain when you can cite them and the proper way to cite them.  Kevin recently presented on this topic at a Kentucky Justice Association event.  They're joined by Rob's paralegal, Lauren Hincks.  Editor's Note:  If you are an attorney and would like CLE credit for this episode, visit the Kentucky Justice Association website, click the Education and Training tab and look for the podcast.  TODAY'S LEGAL QUESTION: What is the New Rule on Unpublished Opinions Relative to Kentucky Proceedings? Citation to unpublished opinions comes up fairly often for Kentucky attorneys.  The Kentucky Court of Appeals publishes a list of new opinions on Fridays.  Kevin notes that most of these are listed as, "Not to be published."  On 1/01/2023 a new set up appellate rules came out.  These are referred to as the Rules of Appellate Procedure.  Rule 41 ("Citation to Unpublished Opinions") is the new, more specific rule on unpublished opinions.  This replaces rule CR76284(C).  Kevin notes Rule 41a specifically addresses unpublished, Kentucky opinions.    Rule 41(A) According to the new rule, unpublished Kentucky opinions are not binding precedent and citations of these opinions is disfavored.  However, as stated in the section, a party may cite to and rely on a not-to-be-published for consideration if there are certain conditions met.  Condition 1:  The unpublished opinion from the Kentucky Supreme Court or Court of Appeals was rendered after 01/01/2003.  Unpublished opinion issued prior to this date cannot be cited.  Condition 2:  The unpublished opinion is final under Rule 40(G).    Condition 3:  There is no published opinion by the Kentucky Supreme Court or the Court of Appeals that would adequately address the point of law argued by the party.  In other words, you have to rely on the binding precedent. Condition 4:  If you've met the above 3 conditions, you still need to tell the Court, "This opinion is not binding authority." Rule 41(B) This deals with unpublished opinions that are not from Kentucky.  Unpublished opinions from other jurisdictions are not binding precedents.  Citations of these unpublished opinions are disfavored. While the previously mentioned statement in Condition 4 (above) is not specifically mentioned, both Rob and Kevin agree it would be prudent to include, "This opinion is not binding authority."  Rule 41(C) This section deals with citations and copies.  Under the new 2023 law, you are no longer required to attach the unpublished opinion to your brief, assuming you cite to the them the proper way.    Rule 41(C)(1) when citing a not-to-be-published opinion of the Kentucky Appellate Courts, the party must provide the style, date and case number of the opinion.  Kevin notes the rule provides a specific example of how to do this, properly. Section C notwithstanding, Kevin suggests you should attach the opinion, especially if it's particularly favorable.  Rob concurs with the inclusion of the unpublished opinion. The Rules of Appellate Procedure are meant to apply to all appeals.  Kevin clarifies this would include the Court of Appeals, the Kentucky Supreme Court and Circuit Court (assuming you're appealing a decision from a District Court). Kevin advises that when citing an unpublished, non-Kentucky opinion, you are not required to attach these opinions to your brief.  However, you are required to provide a URL or other identifier permitting easy access to the opinion on a publicly-available electronic database.  The other option is to simply include a copy of the opinion(s). Requirements in Non-Appellate Situations Rob set up the example of briefs being written in Circuit Court, thus not necessarily as part of an appeal (i.e. Motion for Summary Judgement, Motion to Dismiss, etc.).  Do the new rules apply in these situations?  Kevin recommends the 2023 rule be followed, even though it's not required, in these situations.  The caveat might be if you know something specific from your trial court judge.  He/she may have a stated preference regarding citations, so use your best judgement. Again, Kevin stresses following the rule and informing the judge the citation is not binding and/or not final, if that's the situation.    How to Use a Decision Providing an Advantage Your Case? Lauren provides an example of a scenario in which the briefs have already been filed.  Recently, however, a new case came down that would be advantageous to the case.  How should they use this new decision?  Kevin recommends that assuming the new decision complies with the rules, you may be able to rely on Rule 35. Rule 35(A) This rule deals with Recent Supplemental Authority.  Even though you've already filed your brief, Rule 35(A) would allow you to cite the new opinion.  It provides that a party may file a motion for leave to cite recent supplemental authority, if such authority was decided after that party's final brief was filed.  Such a motion shall attach the supplemental authority and in 250 words, or less (excluding captions, signature block and certificate of service), describe how the supplemental authority pertains to the appeal at hand.  Other parties to the appeal may file a response with the same word limit.    Rule 35(B) This focuses on a situation in which you simply missed an unpublished decision, while you were briefing.  Importantly, this is a different standard than 35(A).  It states, a party may file a motion for leave to cite supplemental authority decided before its final brief was filed, only for good caution.  Such a motion shall attach the supplemental authority in 400 words or less.  Describe how the supplemental authority pertains to the appeal at hand and why it was not cited in the party's brief.  Other parties to the appeal may file a response with the same word limit.    Rule 38(E) Let's transition to oral arguments and opinions.  This rule applies to supplemental authority, when you have oral arguments scheduled in your appeal.  Kevin estimates that 10-15% of the appeals are slated for oral arguments.  Rule 38 specifically addresses a deadline associated with filing supplemental authority for the panel that's hearing the oral arguments.  This is covered by Rule 38(E).  The rule states, in cases set for oral arguments, a party shall file any motion under Rule 35 on supplemental authority for leave to file supplemental authority on oral argument not later than 10 days before oral arguments, unless good cause is shown for a later filing. 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   To Contact Kevin Burke: Website:         BurkeNeal.com Phone:             (502) 709-9975    The Kentucky Bar Association Requires Us to State "This is an advertisement."  

Episode 4:  Louisville attorneys Rob Mattingly and Kevin C. Burke continue their discussion of Kentucky law.  They're joined by Rob's paralegal, Lauren Hincks.  They'll focus specifically on Fratzke.  It's an issue many attorneys get wrong.  This episode continues a series of legally-focused episodes geared toward helping Kentucky attorneys. Editor's Note:  If you are an attorney and would like CLE credit for this episode, visit the Kentucky Justice Association website, click the Education and Training tab and look for the podcast.  TODAY'S LEGAL QUESTION: What is Fratzke and How Can Lawyers Avoid Making a Fratzke Mistake? Kevin starts off by citing the KY Supreme Court case of Fratzke v. Murphy, 12 S.W.3d 269.  Rob summarizes the facts of the case as follows.  It involved a pedestrian walking a picket line and was struck by a vehicle.  The case proceeded to trial.  The plaintiff attorney included details regarding the damages being sought.  Defense objected because the damages had not been itemized in pre-trial.  Defense argued because damages hadn't been specified, they couldn't be discussed during trial or asked for at the end of the trial.  Rob states this issue began an entire body of law in the Commonwealth.  Kevin comments that the case took place in 1995 and what we know today wasn't part of the law, at the time.  In real time, the issue wasn't clearly defined.  Now that we have an opinion and the benefit of hindsight, it's easier to understand. Defense made an argument based on paragraph 2 of Civil Rule 8.01.  They'd sent an interrogator to plaintiff's counsel.  It wasn't answered; therefore, the plaintiff isn't entitled to an award.  The trial judge disagreed.  The case went to trail and a plaintiff's verdict for compensatory damages was award.  Defense appealed.  The KY Court of Appeals initially affirms the trial court's decision.  However, on reconsideration, based on recently decided Burns v. Level (957 S.W.2d 218), they sided with the defendant.  The KY Supreme Court takes the case.  It agrees that Burns applies.  The Court recognizes that the trial court had discretion to grant a directed verdict based on CR 801.  Both sides are using Burns.  The Supreme Court ultimately created a harsh rule that if counsel doesn't itemize damages, it will be bound by the last number indicated in answers to the interrogatories. Rob points out the plaintiff's counsel didn't specify damages until much later in the trial, not during pre-trial.  The Supreme Court noted that plaintiff's counsel was required to file a motion for leave to supplement the interrogatory answers.  Kevin points out how the Supreme Court's opinion claimed it was not including a landmine in civil litigation.  There were 2 dissents.  He tends to disagree with that view, given the reality of the rule.  Lauren observes that Rob and Kevin discuss the issue "gotchas" fairly often, including at the past year's Kentucky Justice Association's annual convention.  Kevin comments that the various courts have tried to mitigate the harshness of the rule.    Rob and Kevin advise attorneys to go ahead and itemize the damages.  Don't wait.  The rule is too harsh for you to gamble on it.  Update your interrogatory answers, as needed.  Kevin says you should never have to ask yourself whether you've done enough.  Instead, assure yourself you have by being vigilant. Discussion of 4 Cases Related to Fratzke Now, Rob and Kevin will highlight 4 important cases. ·      - LaFleur v. Shoney's Inc., 83 S.W.3d 474 ·      - Prater v. Castle, 139 S.W.3d 921 ·      - Tennill v. Talai, 277 S.W.3d 248 ·      - Chesapeake Appalachia, LLC v. Collins 213 WL 645913 (WestLaw)  LaFleur v. Shoney's Inc. This is a slip and fall case at a restaurant.  The trial court ordered the plaintiff to itemize damages within 10 days of trial, independent of the defense counsel's interrogatories.  Plaintiff's counsel filed the itemization within 5 days of trial, which was significantly larger than listed in the answers to the interrogatories.    Defense argued the plaintiff made a Fratzke violation (being 5 days late or beyond the window stipulated in the Order), and thus should be limited to the initial amounts listed in their answers.  The trial judge decided to let it proceed to trial and full damages were on the table.  The jury returned a plaintiff's verdict.  The case is eventually heard by the KY Supreme Court.  The Court applies Fratzke.  The plaintiff should have moved for leave, which they didn't, even though they did amend the answers to the interrogatories.  Rob notes this sounds like a technicality, but you really need to have that Order involving the court's use of discretion.  Rob recommends you always answer the damage interrogatories as soon as possible.  If you don't do that, always file the motion to amend the interrogatories, asking to extend the trial order date.  The judge has discretion, but you need to make the motion. Lauren asks, "What should an attorney do if the request for itemization isn't included in the interrogatories?"  Kevin recommends you always file an itemization of damages.  It may not be included in the interrogatories.  There will usually be a trial court order, anyway.  Even if there's not a court order, file the itemizations anyway.    There's a change you may encounter a local rule that requires the itemization of damages.  If you don't do it because it wasn't in the interrogatories and the judge didn't issue an order, you still may run into problems because you didn't comply with local rules.  Again, it's best to just file the itemizations. Prater v. Castle Kevin explains the difference is as follows.  The case gets to trial.  The plaintiff didn't provide the itemization.  Defense argues a Fratzke violation has occurred, citing LaFleur.  The plaintiff then files a motion for leave.  The trial court interprets Fratzke and LaFleur to require the plaintiff to have to move for leave before the defendant objects. The Court of Appeals rules the trial court had the discretion to consider/grant the motion for leave.  They remand it back to have the trial judge rule on the merits of the original motion.  Kevin points out that this was another move to deal with the harshness of the Fratzke opinion. Tennill v. Talai Kevin observes that Prater happened in 2003 and Tennill occurred in 2009.  However, in between these 2 cases, CR801 was amended to include, "…provided however that the trial court has discretion to allow a supplement to the answers to the interrogatories, at any time, where there has been no prejudice to the defendant."  The amendment puts authorizes the trial court to allow the amendment and gives a standard for it.  Kevin explains the basics of the Tennill case.  It was a default judgement case.  Liability was conceded.  The defendant is entitled to a hearing on damages.  The defendant sent a request for itemized damages to the plaintiff, prior to the hearing.  The plaintiff does not file an answer to the interrogatory.    The defense deposes the plaintiff, prior to the damages hearing.  During the deposition, the plaintiff isn't asked about damages or the itemization thereof.    Eventually, the case gets to the KY Supreme Court.  The Court focused on whether a Fratzke violation occurred related to the damages.  The Court understood the defense didn't ask about the damages during the deposition.  Therefore, by neglecting to ask, the defense waived Fratzke. Kevin comments, again, this is another attempt by the Supreme Court to mitigate the harshness of the Fratzke rule.  Both Rob and Kevin remind you that you never want to have to rely on Tennill.  Attorneys should always file the itemizations. Lauren asks about cases in which there are claims for punitive damages.  This brings us to our last case. Chesapeake Appalachia, LLC v. Collins While this case is unpublished, it addresses the issue of punitive damages and Fratzke.  The question is whether punitive damages must also be itemized, in addition to compensatory damages? Kevin clarifies that you still need to itemize your punitive damages.  Fratzke focuses on unliquidated damages.  The Court said, in Collins, a specific dollar amount is required in the itemizations to comply with Fratzke. In conclusion, Rob also reminds attorneys there's a rule regarding the itemization of medical expenses.  You need to do more than just the summaries you intend to use at trial.  As with other topic, this issue will eventually be covered in a future episode.  Please help us to grow The Legal Notepad Podcast by sharing this episode on your social media and sending a link to your friends and colleagues.  Rob challenges each of you to go out and find one thing, today, you can do to help change the world. Thanks for listening!   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 To Contact Kevin Burke: Website:         BurkeNeal.com Phone:             (502) 709-9975    The Kentucky Bar Association Requires Us to State "This is an advertisement."  

Episode 3:  Louisville attorneys Rob Mattingly and Kevin C. Burke are joined by Rob's paralegal, Lauren Hincks, for a detailed discussion of the topic of Stipulation of Liability.  The Legal Notepad Podcast covers a variety of topics.  This episode begins a series of legally-focused episodes geared toward helping Kentucky attorneys. Editor's Note:  If you are an attorney and would like CLE credit for this episode, visit the Kentucky Justice Association website, click the Education and Training tab and look for the podcast.  Meet Kevin C. Burke Kevin is a partner in the firm, Burke Neal, PLLC.  His practice primarily focuses on appellate work at the Kentucky Court of Appeals and the Kentucky Supreme Court levels.  He also assists trial attorneys with briefing and strategic issues at trial. Kevin began as a solo practitioner about 25 years ago.  Over time, his practice involved working on a significant number of appeals.  This eventually lead to the founding of Burke Neal, PLLC with his partner, Jamie Neal.  Rob and Kevin will have a case file available, free of charge, for any attorney who contacts them with a request for information.  TODAY'S LEGAL QUESTION: Can a Defendant Make a Plaintiff Stipulate Away Part of Their Case? Kevin begins by stating the answer is generally no. He'll refer to two main cases during this discussion: ·      - Davis v. City of Winchester, 206 S.W.3d 917 (Ky. 2006) ·      - MV Transportation, Inc. v. Allgeier, 433 S.W.3d 324 (Ky. 2014) Davis v. City of Winchester Rob explains the plaintiff had a disputed altercation with police.  The plaintiff was injured during the arrest, resulting in a civil claim.  As the claim proceeded, defense in the civil trial wanted to stipulate away part of the claim, thus keeping out certain evidence impacting the plaintiff's claim of malicious prosecution.    Kevin comments on the malicious prosecution element.  The City didn't want the jury to know the underlying criminal charges were dismissed.  They filed a motion in limine.  The plaintiff disagreed, but the trial judge granted the motion.  It went up on appeal and eventually made came before the KY Supreme Court.  In reaching its decision, the Supreme Court borrowed from criminal law and applied it to this civil action.  They reasoned, if you can't do this in a criminal case, why should you be able to do it in a civil case?  Accordingly, you shouldn't be able to stipulate away part of the case.  The Court cited: ·      - Barnett v. Comm, 979 S.W.2nd 98 ·      - Johnson v. Comm, 105 S.W.3d 430 (2003) ·      - Harris v. Comm, 134 S.W.3d (Ky 1998) Kevin notes that the KY Supreme Court found the trial court's allowing of the stipulating away of a key element is reversible error.  Litigants have a substantial right to prove every element of the claim. Both Rob and Kevin comment on the points raised in the decent.  Rob adds there will also be a subsequent episode on the need to properly preserve objections.  Many attorneys, unfortunately, aren't doing this correctly. Lauren raises a question involving the fact that the Court stated "a stipulation of fact wasn't filed or submitted to the jury."  What does this mean? Kevin clarifies the issue.  Black's Law lists a stipulation as "a voluntary agreement…"  He comments the Court was considering the dictionary definition of the term.  In this circumstance, the stipulation could be viewed as decision that was made unilaterally, rather than by agreement of the two parties.  MV Transportation, Inc. v. Allgeier Rob explains the basic facts of the case.  A pedestrian, in a wheelchair, was exiting a TARC transport bus and sustained a serious injury.  There were multiple claims.  The defense wanted to stipulate away a lot of evidence by admitting the bus driver was actually a TARC employee.  However, that would have eliminated evidence related to other elements of the multiple claims. Kevin points out the difference in MV Transportation is that the defense was attempting to stipulate away multiple claims by admitting the employment status of the bus driver.  This is different from Davis in which only 1 claim was being stipulated away.  The defense, in MV Transportation, wanted to eliminate the direct negligence claims.  This would have included a punitive damage claim. The trial court dismissed the punitive damage claim, but decided to allow the evidence of all of the remaining claims to go to the jury.  The jury found in favor of the plaintiff.  The Court of Appeals agreed with the trial court's ruling.  The KY Supreme Court also upheld the ruling.  Kevin point out it's important to note that this case involved an issue of first impression in Kentucky.  Kevin wrote the amicus brief in this case.  It made it to the Supreme Court on discretionary review.  In his brief, Kevin cited Davis v. City of Winchester.  He reasoned if you can't stipulate an element of a claim, you can't stipulate a whole claim.  In the analysis, the "majority rule" of the other states, which have already dealt with similar cases, wasn't part of the decision.  The Court looked deeper into the purpose of the rulings.  Rob and Kevin discuss the issue of punitive damages and how they related to this type of situation.  Interestingly, the Supreme Court, in MV Transportation, remanded it back for a limited retrial on the punitive damage claim.  Lauren notes specific language in the Supreme Court's decision: "a finding of gross negligence and an award of punitive damages may be based, at least in part, upon evidence regarding the policies and procedures of the company."  Why does this come up so often? Kevin explains the MV Transportation clarifies the question of whether policies and procedures can be introduced as evidence to support a claim of punitive damage.  Rob remarks a future episode will focus on the admissibility of policies and procedures and violations of those policies and procedures.  As Lauren noted, it is beginning to come up with increasing frequency. In conclusion, the discussion answers the original question.  No, you can't be forced to stipulate away your claim.  This includes either an element (Davis) or an entire cause of action (MV Transportation). As we continue the podcast episodes, Episode 4 will focus on the Fratzke opinion and its progeny. Please help us to grow The Legal Notepad Podcast by sharing this episode on your social media and sending a link to your friends and colleagues.  Rob challenges each of you to go out and find one thing, today, you can do to help change the world. Thanks for listening! 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 To Contact Kevin Burke: Website:         BurkeNeal.com Phone:             (502) 709-9975    The Kentucky Bar Association Requires Us to State "This is an advertisement."  

Episode 2:  Louisville attorneys Rob Mattingly and John DeCamillis interview Jefferson County Judge Stephanie Burke about the Drug Court.  This episode deals with both mental illness and addiction.  They discuss her passion for helping people to recover, how Drug Court works and why it's so valuable to our community. Editors Note:  If you are an attorney and would like to receive CLE credit for this episode, visit the Kentucky Justice Association website, click the Education & Training tab and look for the podcast. The Honorable Stephanie Burke is a Jefferson County District Court Judge.  Elected in 2010, she's served for the past 10 years.  She's a mental health and criminal court judge.  She's served in the Jefferson County Drug Court since 2012.  She also became the mental health judge in District Court in 2017. Rob and John often receive calls from people who have family members suffering from mental health problems and/or drug addiction.  They simply need direction and advice as to how to help their family member.  Addiction Topic 1:  If someone has an alcohol or drug issue, but hasn't be charged with a crime. Topic 2:  If someone's been charged with a drug or alcohol crime. Mental Illness Topic 3:  What do you do if someone suffering from mental health issues is in immediate danger? Topic 4:  What resources are available if your family member is having on-going struggles with mental health? John begins by commenting that Judge Burke has become the local expert in regard to how the court system can get involved on a personal level and save lives.  Judge Burke credits her early experience working with Judge Henry Weber, who was a Drug Court judge.  She was also a guardian ad litem working with people living in poverty.  Both experiences were formative in her desire get on the bench to help those people in need by getting them out of the system and to have better outcomes. During her time on the bench, she was active in getting Tim's Law passed.  This deals with court ordered assisted outpatient statue.  Judge Burke was instrumental in Kentucky recently receiving a $4,000,000 grant to help Jefferson County deal with people who are frequently hospitalized and incarcerated due to challenges in coping with their mental health situations outside of a formal setting. Topic 1 When John receives a call about someone struggling with and issue, he tries to determine if it's due to addiction, substance abuse, mental addiction or a combination of factors.  If it's substance abuse the person's age and insurance are important.  Casey's Law becomes important when there's no criminal action, but the parent wants to seek help for their loved one, through the court system.  What Is Casey's Law? Casey's Law enables a family member or loved one to take court action to obtain a court order to force someone into substance abuse treatment.  This would be an involuntary situation.  While this involves fees and other expensed, there are community resources available to help.  To find out how to obtain a Casey's Law order, visit www.CaseysLaw.org and search for Jefferson County.  The process is explained and the steps are laid out to help you. Judge Burke suggests www.FindHelpNowKY.org, as a resource, before pursuing a Casey's Law order.  A questionnaire on the site will provide a list of potential treatment options, based on the specific circumstances. In 2020, Jefferson County had 600 overdose deaths.  There were only 218 in 2015.  The opioid epidemic combined with COVID pandemic have led to disastrous results in Jefferson County.  The isolation has exacerbated the challenges for those in recovery or those trying to gain sobriety.  Overdose deaths in Jefferson County increased by 60%, compared to last year. As a family member of someone struggling with addiction, a court ordered intervention can be that step that helps to turn his/her life around.  Addiction treatment has enabled many people to begin and stick with recovery.  They can go on to have successful lives, save marriages and enable them to be the parents they really want to be, because the drugs are no longer controlling their lives. Here's an overview of the PART 1 process, when no criminal charges are pending: The parent contacts John DeCamillis The parent or family member should look at the Jefferson County Attorney's website for Casey's Law at https://louisvilleky.gov/government/county-attorney/caseys-law. Contact the advocate in the county attorney's office by calling (502) 574-6188.  The Office of the Circuit Court Clerk's Mental Health Division is another option at (502) 595-4053.  They will walk you through and provide assistance.  The prosecutor's office will assist in preparing the petition.  After the mandatory evaluation is completed, a court hearing is set.  The petitioner would testify as to why they feel their loved one should be placed into this program.  The court would then make a decision regarding whether the person should be ordered to treatment.  The only upfront cost goes to pay the medical professionals for the evaluation.  The advocate can help the family member to find affordable treatment.  If the family doesn't have money for the treatment, The Healing Place may be a no-cost option.  What if my loved one relapses? Unfortunately, relapse is common occurrence.  The law does not limit how many times you can file a Casey's Law petition. Topic 2 A family member contacts John DeCamillis about a family member, but there is an actual criminal charge(s) involved.  This could be a drug- or alcohol-related charge such as DUI, possession, etc.  In this case, the individual may already have a court date set.  This also assumes there's an addiction component involved.  Drug Court may be an important option. Jefferson County Drug Court This is for drug addiction as well as alcohol addiction.  If a Class A misdemeanor or felony charge is pending, or the individual is on probation for a Class A misdemeanor of felony, he/she may be eligible to participate in Drug Court.  An assessment would be required.  If the person is found to be "high risk/high need," the greater the possibility that he/she would benefit from and be successful from the Drug Court program. Resources, case management support and clinical services that someone in this high risk/high need situation may not be able to get on their own.  This is an alternative to going to jail. What's the Benefit of Drug Court? Depending upon the plea agreement, your plea may be set aside and your case dismissed once the individual successfully completes the program.  This could apply to misdemeanor and felony charges.  Not only would he/she avoid a jail sentence, more importantly they will be living soberly and on the way to a full recovery from the addiction.  For some, Drug Court can literally be a life-saving option. Each person receives an individual treatment plan, which often includes housing as a critical first step.  A clinical advisor is assigned.  A recovery coordinator (therapist) is involved.  A case manager is assigned to manage all of the appointments and direct communication with the individual.  Judge Burke's Approach to Drug Court May Surprise People  It's not what many expect.  When Judge Burke conducts Drug Court, she purposely sits across the table from the individual and doesn't wear her judge's robe.  She wants to connect with the individual on a personal level.  Outside of the courtroom, she will visit with participants at their place of employment, or even at the person's home to show active support.  She attends celebrations and milestone meetings with the individual.  The graduation is a significant event for both the individual, Judge Burke and the team supporting that individual's recovery. Topic 3 Now let's transition to mental health issues.  If your loved one is suffering from a mental illness and is in immediate danger, there are options available to help.  John can help determine if this is a mental inquest situation or something that can be addressed via Tim's Law (assisted outpatient treatment). If someone is a danger to himself/herself or others and has been diagnosed with a mental illness, and you believe he/she is in imminent danger, you can seek an involuntary commitment for an involuntary hospitalization.  In Jefferson County, this is done at the Hall of Justice, room 3177. The address is 600 W Jefferson St, Louisville, KY 40202.  You must go in person, with an ID.  It's open 24-hours a day.  Once the petition is submitted, a judge will review it to determine if the person needs to be picked up for evaluation.  If so, a doctor will determine if the person should be kept for a period of time to be seen for a hearing.  If the judge then determines a longer hospitalization is required, the process ensues.  The person can be kept typically up to 60 days to help the person return to a stable condition.  Topic 4 If your loved one has had repetitive hospitalizations or incarcerations due to mental illness there's an additional option.  Tim's Law This is Kentucky's law for court ordered, assisted outpatient treatment (AOT).  This went into effect in 2017, but in 2019 the statute was expanded to include a wider range of eligibility.  Kentucky received a $4,000,000 federal grant from the federal agency providing services for mental health treatment, the Substance Abuse and Mental Health Services Administration (SAMHSA). If you have a loved one who has been committed under a mental inquest warrant, twice in 12 months and has been hospitalized twice in 12 months under a court order, you can seek an order for the individual to comply with outpatient treatment.  This is meant to stop the revolving door for someone who gets treatment, feels good so he/she decides to go off of their medications and is once again in a crisis situation.  The petition is usually handled by a doctor or someone involved in the person's treatment, typically while that person is still hospitalized.  The loved one can also file this petition. If assisted outpatient treatment (AOT) is elected, it can go into effect for 356 days. There is no cost involved for the family.  If insurance is available that can be used, but the grant is there to provide funding.  Judge Burke has been very involved in getting this program off the ground.  She's worked extensively within the local court system.  She's lobbied in Frankfort to educate legislators.  She's actively making a difference for our community and the state at large. Between 2017 and 2019, there was only 1 AOT petition taken.  Judge Burke comments that her calculations indicate the program saved approximately $500,000 in costs to the community for hospitalizations and incarcerations of that individual.  The new federal grant is aimed at serving 192 people over four years.  This is a huge advantage when the local and state governments are experiencing budget pressures.  In closing, we're confident you've now learned that there are places and programs to turn to when you need help or treatment for your loved one.  Please don't give up hope.  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 The Kentucky Bar Association Requires Us to State "This is an advertisement."  

Episode 1 Focus for the Future:  Rob Mattingly and John DeCamillis launch their new podcast with an interview.  They speak with Tim Barnett, Founder of FOCUS Training Academy in Louisville.  FOCUS (an acronym for Focus On Character Equals Ultimate Success) works with youth to provide direction, motivation, purpose and a sense of personal responsibility.  Let's join Rob and John for this insightful episode. Tim explains that a core part of the FOCUS experience is based on developing people skills.  Young people are taught and then expected to greet adults and others.  It instills a sense of self-confidence and pride, which is constantly reinforced.  The environment also provides examples of leaders and the value of getting to know people who may be able to help them in the future.  It fosters a sense of community and belonging for all involved. This is about more than basketball; it's about life.  Tim discusses "The Story of 5" as an example of how lives can be changed and enriched.  He brought together 5 young girls from different socio-economic backgrounds.  They bonded as their team and friendships began to take form.  Several of the girls ended up going to high school together.  But the "winning" didn't stop there. How Does FOCUS Training Academy Achieve Its Objectives? Tim and his team push people outside of their normal comfort zones.  Activities often include community outreach and service projects.  Academic performance and proper nutrition are also important parts of the program.  It's about building the person holistically.  The positive habits are expected and reinforced.  Accountability is an important life-skill. What if I Can't Afford to Attend FOCUS Training Academy? There are scholarships available, based on a work-study style arrangement.  Roughly 60% of the kids involved are on scholarship.  Funding from the community is key to being able to continue this valuable program. How Does FOCUS Training Academy Help with Academics? The Academy has partnered with JCPS.  Certified teachers come to the facility to help with tutoring after hours.  The focus on academics goes further than tutoring.  Coping with the other Outbreak John shares some comments about Louisville's challenge with juvenile crime and violence.  Many kids don't have the opportunity to escape dangerous environments.  FOCUS Training Academy is helping to address the situation. Louisville's West End can be a challenging environment.  The COVID pandemic has amplified that challenge because the schools have been closed down.  Many parents are working outside of the home and the children are sometimes left with little or no supervision.  It's a recipe for problems.  FOCUS Training Academy opened the Jesse E. Barnett Jr. Enrichment Center in 2019.  It's been offering NTI (non-traditional instruction) in conjunction with JCPS.  Classes are held from 8:30 to 2:00.  JCPS is also providing breakfast and lunch at the Center.  Many of the kids are able to participate in sports from 2:00 to 3:30. They take care of business and then get to have fun.  It provides a sense of belonging and safety.  Tim comments that its very similar to the Boys & Girls Club he attended when he was young. A History of Providing a Positive Environment Tim describes how the idea and the foundation for FOCUS Training Academy began to take shape in 2005.  Tim has a calling to work with young people.  Initially he got engaged with Ballard and Waggener High Schools.  That was his launching pad for what the program has evolved into over the years. Rob and Tim Discuss Walking the Walk The creation of the Enrichment Center was critically important to show the kids it's about much more than basketball.  Later, Lakers basketball player Rajon Rondo (a friend of Tim's) partnered, through his foundation, to fund the Rajon Rondo Learning Center for Teens.  There are ACT prep and financial literacy classes available.  Tim also proposes a class to introduce kids to a potential career in the law.  The off-the-court activities are done through the Enrichment Center. John and Tim discuss sustainability.  Tim works the program every day.  However, it takes the support of others to keep it going.  They are battling some startling statistics related to gun violence in Jefferson County. How Can You Get Involved? DeCamilis & Mattingly has made a significant financial commitment to the Focus Training Academy.  Tim's main strength is teaching kids about basketball and life.  You can help by making a contribution to Focus Training Academy.  Tim's made a ripple in our community.  Your help can make a wave. Thanks for listening! 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 The Kentucky Bar Association Requires Us to State "This is an advertisement."