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 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, robertmattinglyattorney@gmail.com, or you send Kevin one at kevin@burkeneal.com, we can send you all those files but here very quickly, we’ll work towards getting that CLE approval.
And I would leave you with this. Remember, read these rules on appeal, follow these rules. Think about hiring an appellate lawyer like Kevin, because quite frankly, if you mess them up and you call him late, he’s going to give you a very clear, very specific answer. If you’ve already messed up and you’re calling him and he’s going to say, I’m really sorry, but I can’t be your Superman.
Kevin Burke:
There you go. Eminem M.
Robert Mattingly:
Eminem M. See you next time everybody.
Jim Ray:
Friends, this is podcast producer Jim Ray, and as Rob mentioned, we are offering CLE credit for this episode, so we are still waiting on the activity number. If you are an attorney and you would like CLE credit for having listened to this episode, go ahead and just email Robert Mattingly. His email address is robertmattinglyattorney@gmail.com. Once we have the activity number assigned, we’ll be sure to send that right over to you. As always, thanks for listening to this episode of the Legal Notepad podcast.
Robert Mattingly:
And just a reminder to all of our attorneys, these podcasts are always free, but if you want to obtain CLE credit, the Kentucky Justice Association has worked with the Kentucky Bar Association for approval of the CLEs. Again, to get that credit, you simply go to kentuckyjusticeassociation.org. That’s the KJA website. Click on education and training, select podcast, and add it to your cart.
In Closing
That’s a wrap on today’s discussion. We hope you found the discussion insightful. As always, we encourage you to share this episode with your colleagues.
If you’d like the case notes, please sent us an email request and we’ll be happy to email you the file including the cases, rules, etc.
If you are an attorney and would like CLE credit for this episode, visit the Kentucky Justice Association website, click the Education and Training tab and look for the podcast.
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