Episode 16: Louisville attorneys Rob Mattingly and Kevin C. Burke are happy to provide an opportunity for 30 minutes of ethics for Kentucky continuing legal education credit. This 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?
Kevin 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.
Kevin Burke:
That’s 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.
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