KANSAS CIVIL PROCEDURE AND LITIGATION RULES, TIPS, AND TRAPS

Civil Litigation in Kansas is governed by Civil Procedure, Supreme Court Rules, local Judicial District Rules. Knowing and following these rules is critical to successfully navigating the course of civil litigation and trial.

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I. OVERVIEW

1. KSA 60-201 through KSA 60-272 are the Rules for Civil Procedure

• Governs procedure for the District Courts of Kansas including original actions in the Supreme Court, except for KSA 60-265. Do not apply for limited actions.

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2. Rules of the Supreme Court of Kansas for District Courts

• Supreme Court Rules apply in addition to the rules of civil procedure and evidence.

Rules 111-123 for commencement of actions, pleadings, and related matters

Rules 131-148 for motions, , pretrial procedures, and related matters

Rules 161- 174 for trials and related matters

Rules 181-192 for posttrial matters

(Supreme Court Rules include rules for criminal matters.)

• Most Judicial Districts have at least some local rules for Civil Procedure.

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3. KSA 60-401 through KSA 60-408 are the Rules of Evidence

• These rules apply for all phases of civil litigation, from initial pleading through posttrial matters.

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II. INITIAL PROCEDURE

1. KSA 60-206. Time computation and extension

• Defines legal holidays, on which a pleading, motion or response cannot be due.

• Explains the burden of proof for a motion for enlargement of a missed deadline, as opposed to a motion for additional time.

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KSA 60-206(b)(1)(B) requires a showing of “excusable neglect” for a motion to enlarge a deadline. To show excusable neglect requires evidence of “good faith…a reasonable excuse,” and that “the interests of justice can be served by granting the enlargement.” Boyce v. Boyce, 206 Kan. 53, 56, 476 P.2d 625 (1970). Inexcusable conduct “implies something more than the unintentional inadvertence or neglect common to all who share the ordinary frailties of mankind.” Montez v. Tonkawa Village Apartments, 215 Kan. 59, 65, 523 P.2d 351 (1974).

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• Examples of failing to meet the excusable neglect burden include:

State v. Sheppard, 56 Kan. App. 2d 1193, 1198, 444 P.3d 1006, 1010 (2019), review denied (Dec. 31, 2019): Although Kansas allows the use of “excusable neglect,” no Kansas authority says exactly what establishes the “nebulous” term of excusable neglect. However, waiting 11 years to ask for an enlargement of time to file a motion to dismiss a conviction was not excusable even for a pro se defendant.

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Martinez v. Kansas Dep't of Revenue Div. of Motor Vehicles, 2016 WL 6569227 (Kan. Ct. App. 2016): In response to a motion to dismiss an untimely petition for review of the suspension of his driving privileges, Martinez did not present any evidence to support his claim of excusable neglect but in a motion for reconsideration claimed the Court wrongfully excluded his evidence. On appeal, after being given leave to file a late docketing statement, the District Court dismissal of the petition was upheld due to lack of evidence of excusable neglect.

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Streit v. Kansas Dep't of Revenue, 2015 WL 5312071, (Kan. Ct. App. 2015): Streit provided medical records showing he was hospitalized/receiving some type of inpatient care for 8 of the 14 days allowed to request an administrative hearing on the suspension of his KDL. On appeal, KDOR’s successful motion to dismiss the petition for review for lack of jurisdiction was upheld because, “Streit was not hospitalized…for 6 days of the relevant 14-day period.”

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2. KSA 60-212. Defenses and Objections

Section (h) identifies the defenses waived if not properly preserved.

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3. KSA 60-216. Pretrial Conferences; case management conference

• Pretrial or Scheduling Conferences set dates and deadlines for adding parties, written discovery, depositions, preliminary W/E lists, IMEs, expert disclosures and depositions, Daubert motions, dispositive motions, and maybe final pretrial conference. • Look for and review local court form or use Supreme Court Rule 140.

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4. KSA 60-216 and Rule 140 for Final Pretrial Conference

• The final pretrial conference must be conducted in accordance with the Supreme Court Rule 140, which requires the conference be conducted by an attorney who will participate in the trial of the case. Rule 140(d).

Trap: National or Local Counsel/Final Pretrial/Trial (Can be a good way to get assigned to the trial team.)

Tip: Rule 140(e) Pretrial Order required and necessary.

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KSA 60-216(f)(1)(B) authorizes sanctions if an attorney is substantially unprepared or does not participate in a pretrial conference in good faith. The only decision found on this specific issue is:

Jarvis v. Summers, 2018 WL 3198399, 421 P.3d 259 (Kan. Ct. App. 2018): The District Court found “that the parties were ‘substantially unprepared to participate’ in the pretrial conference and otherwise fulfill their respective obligations to one another and the court so that the matter could be tried as scheduled” and dismissed the case without prejudice but with conditions for refiling. Instead of refiling, Jarvis appealed, and the appellate court found the dismissal without prejudice was not a final appealable order.

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III. DISCOVERY

1. KSA 60-226. General Provisions Governing Discovery

(b) Discovery Scope and Limits

(6) Disclosure of Expert Testimony

(A) Required Disclosures for trial witness

(B) When summary of grounds for opinions required

(E) Form of disclosures and signature requirement

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Tip: Required signature for expert disclosure can be by counsel, does not have to be by the expert. If you are not going to submit a report signed by the expert, submit your proposed expert disclosure to your expert for approval before sending it to opposing counsel or the court.

Trap: Some Judicial Districts require a written expert report, signed by the expert, and specific information related to the expert’s opinions. The Shawnee County Rule is a good example of these local rules.

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Third Judicial District, Shawnee County Rule 3.211 3. The parties shall comply with the provisions of K.S.A. 60-226(b)(6) with respect to the disclosure of expert testimony. A written report signed by the witnesses shall be furnished to all parties of record which shall contain a complete statement of all opinions to be expressed and the bases and reasons therefore. The disclosure shall include a current curriculum vitae setting out the qualifications of the expert and identifying all published and unpublished writings of the expert pertaining to the expert's opinions in the case. The disclosure shall also identify and provide copies of all other data, writings or exhibits upon which the expert relies upon to support his or her opinions in the case. Published writing may be identified by citation and need not be physically produced. Copies of the expert's unpublished writings shall be timely furnished upon request [with the report].

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• Other districts with similar rules include:

Fourth Judicial District Rule 4.206(3). Expert Report. (Anderson, Coffey, Franklin, and Osage County)

Sixth Judicial District Rule 14. (Miami, Linn, and Bourbon County)

The Guidelines of Professionalism for the Eighteenth District include: “6. Obtains expert witness reports that include the basis for the expert's opinion,” but does not say whether a signed expert report is required.

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• Some Judicial District rules for depositions include, “Experts shall, upon written request without the necessity of a , bring to the , the expert's written report, complete file, documents or other materials reviewed and billing records regarding the compensation to be paid for the study and testimony.”

Third Judicial District Rule 3.203 Depositions, 8. Expert Witnesses. Fourth Judicial District Rule 4.203 Depositions (8). Expert Witnesses. Sixth Judicial District Rule 11 Depositions, Expert Witnesses.

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KSA 60-226(c) Protective orders. (1) In general. With certification of a good faith effort to resolve the dispute, a party or any person may move for a protective order for discovery that would cause them annoyance, embarrassment, oppression or undue burden or expense.

• Protective orders are often used to limit access or use of trade secrets, proprietary, or confidential research, development, or commercial information of a party not be revealed or be revealed only in a specified way under KSA 60-226(c)(1)(G). Parties often draft and jointly submit this type of order to the Court when they recognize trade secret, proprietary, or other confidential information is likely to be disclosed in discovery.

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• This section is also used to resolve disputes on the scope or limits of disclosure.

Macklin v. Liquidynamics, Inc., 2018 WL 911412, 412 P.3d 1038 (Kan. Ct. App. 2018): Trade secret protection is routine for source code but Liquidynamics also wanted protection from giving its computer source code directly to Macklin for his personal review. The party seeking protection must show the material qualifies for protection and it will suffer harm without the order. This requires a “specific demonstration of fact, as distinguished from stereotyped and conclusory statements.” If this burden is met, the party seeking disclosure must prove relevance and necessity, then the court balances the need for the information against the claim the disclosure will cause injury. Liquidynamics obtained protection by showing disclosure to Macklin posed a specific threat to the confidentiality of the source code based on his history of copying code from other authors without attribution. (Internal citations to MGP Ingredients, Inc. v. Mars, Inc., 245 F.R.D. 497, 501 (D.Kan. 2007), omitted.)

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2. KSA 60-230. Depositions

(b) Reasonable notice required

(b)(4) Remote depositions allowed

(b)(6) Deposition on behalf of an organization

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3. KSA 60-233.

• Important for how interrogatories are to be propounded and how to respond- with answers and objections. An objection not timely made is waived. Trap/Tip: Responses must be signed under oath by the person making the answers. When representing a business or other entity, work with client contact to develop a verification form a representative can sign under oath.

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4. KSA 60-234. Production of documents/material and inspection

• Whether documents are produced or made available for inspection, they must be indexed to specific requests or provided in the same manner as they are kept in the usual course of business.

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5. KSA 60-235. Physical and mental examination of persons.

• This rule provides authority for an “independent medical exam” of a party. However, the examiner will be carefully chosen by counsel opposing the party to be examined.

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Tip: To protect the person to be examined, counsel can request certain conditions, which can include videorecording the exam or conducting it in the presence of a representative of the party to be examined. KSA 60-235(a)(2)(B)

Trap: If a copy of the examiner’s report is requested on behalf of the examined party, failure to provide the report can result in exclusion of the examiner’s testimony at trial.

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6. KSA 60-236 Requests for admission.

• This discovery method is not always used, but if used a timely, and proper response must be made or the requests are deemed admitted.

Tip: Always check for RFAs with discovery requests, get the response date on the calendar, and do not ignore it.

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7. KSA 60-237 Motion for Order to Compel Disclosure or Discovery

(a) Requires good faith effort to resolve with motion

(a)(5) Payment of related expenses can be required

(b) Failure to comply with order can result in sanctions.

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8. KSA 60-245a Subpoena for Business Records of Non-Party

(a)(2) “Business records” are writings or electronically stored information made by personnel or staff of a business, or persons acting under their control, which are memoranda or records of acts, conditions or events made in the regular course of business at or about the time of the act, condition or event recorded. (b) Notice of right to object is required

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• The subpoena must state the non-party can object to it within 14 days after service.

(b)(1) Notice of Intent to serve subpoena is required

• The opposing party can object to the intended subpoena within 14 days of the notice of intent.

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9. KSA 60-245 Subpoena

(a)(1)(A)(iii), a nonparty can be directed to attend and testify, produce designated documents under their control, or permit the inspection of premises.

(c)(2)(B), the subpoena may object to the subpoena within 14 days of service of the subpoena.

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In re Est. of Broderick, 34 Kan. App. 2d 695, 700, 125 P.3d 564, 568 (2005): A nonparty “may be compelled to produce documents and things or to submit to an inspection as provided in K.S.A. 60–245 and 60–245a and amendments thereto.”

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State v. Cleverley, 53 Kan. App. 2d 491, 390 P.3d 75, 77 (2017): KSA 60– 245a(c) provides any party may require production of original business records in an action in which the business is not a party by causing a subpoena duces tecum to be issued pursuant to KSA 60–245.

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IV. PRETRIAL MATTERS

1. KSA 60-256, Rule 133, and Rule 141, Motion for Summary Judgment

• Motion can be partial for judgment on less than all issues.

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• The detailed summary judgment motion procedure found in KSA 60-256, Rule 133, and Rule 141, must be followed by moving and responding parties. A response is not required, but without one there is a big risk of losing the motion.

• Rule 133 requires a memorandum of support for the motion, but the motion and memo can be filed and submitted to the Court as one document.

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• Rule 141 requires the following for the memorandum:

I. A statement of the basis for the motion

II. Statement of uncontroverted facts with citations to the record

III. Citation to authorities necessary for ruling on the motion

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Lovitt ex rel. Bahr v. Bd. of Cty. Comm'rs of Shawnee Cty., 43 Kan. App. 2d 4, 5, 221 P.3d 107, 109 (2009): The requirement for separately numbered paragraphs for the uncontroverted contentions of fact with citations to the record for each fact is not fluff. Rule 141(a) serves a necessary purpose, and it means what it says.

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Traps: Any facts the court finds “appear without substantial controversy” will be “deemed established” at a subsequent trial of the case. KSA 60-256(d). Failing to comply with the statutory and rule requirements for a dispositive motion can result in it being rejected by the Court.

Tip: There are many procedure rules for summary judgment that must be followed, or the motion can be rejected by the court.

• Judicial Districts Three, Four, Six, Seven, Ten, Twenty One, and Twenty Two have specific rules about dispositive motions

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1. KSA 60-258a Comparative Negligence

• Kansas allows negligence of parties and nonparties to be compared.

Puckett v. Mt. Carmel Reg'l Med. Ctr., 290 Kan. 406, 424, 228 P.3d 1048, 1062 (2010): “Under comparative fault, all parties to an occurrence must have their fault determined in one action. Brown v. Keill, 224 Kan. 195, 207, 580 P.2d 867 (1978).

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OMI Holdings, Inc. v. Howell, 260 Kan. 305, 342, 918 P.2d 1274, 1297 (1996): Under comparative fault, the defendant is entitled to designate phantom parties so fault can be assessed and apportioned among the parties and any non-parties who might have contributed to the plaintiff's damages.

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• The amount of fault is apportioned by using a comparative negligence verdict form, which includes all parties and non-parties who could be at fault.

• A party alleging comparative negligence has the burden of proof for that negligence.

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Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, 412, 681 P.2d 1038 (1984): A defendant who asserts comparative fault, it has the burden to prove someone else was at fault by a preponderance of the evidence.

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• Kansas uses the 49% rule for a plaintiff’s negligence. A plaintiff can recover from negligent defendants if any negligence allocated to the plaintiff is 49% or less of all fault.

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Watco Companies, Inc. v. Campbell, 52 Kan. App. 2d 602, 608, 371 P.3d 360, 366 (2016): Under KSA 60-258a, the plaintiff's negligence must be less than the causal negligence of the party or parties against whom claim for recovery is made and the plaintiff's negligence must be 49% or less for any recovery.

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Tip: If possible, plaintiff can move for summary judgment on comparative negligence claims before trial and if necessary, be prepared to follow up with a Motion for Judgment as a Matter of Law during trial.

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V. TRIAL ISSUES

1. KSA 60-251 Jury Instructions

• Prepare and submit proposed instructions based on the details set out in the Final Pretrial Order. After the parties rest, the proposed instructions will be finalized during an Instruction Conference based on the evidence admitted in trial.

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• At trial, have a copy of PIK with you or easy access to the digital copy available at kansasjudicialcouncil.org

Tip: Do not ask for an instruction or to submit a claim to the jury if there is not adequate evidence. If there is more than one basis for fault or comparative fault, use a special verdict form.

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Harris v. City Cycle Sales, Inc., 2020 WL 288537, 455 P.3d 825 (Kan. Ct. App. 2020): The jury found 0% fault for City Cycle and based on two comparative negligence claims, 100% fault for Harris. On appeal, Harris successfully argued the jury should not have been instructed on or allowed to consider the second comparative claim due to lack of evidence for that claim. The Court of Appeals agreed and because the verdict form did not require the jury to specify if Harris was negligent, on the first, second, or both comparative claims the error was not harmless. After the case was remanded for a new trial, Harris had the case dismissed, without prejudice.

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2. KSA 60-243(c) Proffer of Testimony and KSA 60-405 Proffer of Evidence

KSA 60-243(c) Record of excluded evidence. In a jury trial, if an objection to a question to a witness is sustained, the examining attorney may make a specific offer of what the examining attorney expects to prove by the witness' answer.

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State v. McIntosh, 30 Kan. App. 2d 504, 512, 43 P.3d 837, 844, aff'd but criticized, 274 Kan. 939, 58 P.3d 716 (2002), citing, Marshall v. Mayflower Transit, Inc., 249 Kan. 620, 623, 822 P.2d 591 (1991): The standard for a satisfactory proffer is whether the proffer contains the substance of the excluded testimony. When the Court excluded testimony offered on behalf of McIntosh, counsel should have asked to approach and let the Court and opposing counsel know he intended to make a proffer of the testimony and what it would prove. Counsel for McIntosh failed to make a proffer and therefore failed to preserve the issue for appeal.

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KSA 60-405 A verdict shall not be set aside or a decision reversed due to the erroneous exclusion of evidence unless the substance of the expected evidence was made known in a form and by a method approved by the judge.

• If material testimony or other evidence is not allowed at trial, out of presence of the jury, make an oral Proffer with details of the intended testimony or evidence. Follow up by filing a written Proffer with the same details.

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3. KSA 60-250 Motion for Judgment as a Matter of Law

• If the opposing party does not meet its burden of proof at trial, at the close of their case move for judgment as a matter of law.

Tip: Previously filed Trial Briefs can provide the law and arguments for or against a motion for judgment.

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VI. KSA 60-267 Local District Court Rules

• Many judicial districts have Local Civil Procedure Rules, which can be found with the Supreme Court Rules for District Courts. Rules can also be found on individual District Court websites. Tip: It is always a good idea to check online for local rules at the beginning of a case and if there is no online listing, call the clerk of the court or the judge’s law clerk to ask whether there are any local rules for that court.

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VII. Conclusion

To proceed successfully through civil litigation in the District Courts for Kansas requires knowing, understanding, and properly applying the rules of civil procedure, which always begins with finding and reading the statutes and rules.

Cynthia J. Sheppeard Goodell, Stratton, Edmonds & Palmer LLP Topeka, Kansas [email protected]

May 14, 2021

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