REDRAFTING KENTUCKY'S APPELLATE RULES: A ROUNDTABLE DISCUSSION CLE Credit: 1.5 Friday, June 21, 2013 10:10 a.m. - 11:25 p.m. Combs-Chandler Room Galt House Hotel Louisville, Kentucky A NOTE CONCERNING THE PROGRAM MATERIALS The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program, in dealing with a specific legal matter have a duty to research original and current sources of authority. Printed by: Kanet Pol & Bridges 7107 Shona Drive Cincinnati, Ohio 45237 Kentucky Bar Association TABLE OF CONTENTS The Presenters ................................................................................................................. i Draft Kentucky Appellate Rules of Procedure (KAP) ....................................................... 1 Proposed Structure of Appellate Rules ............................................................................ 5 Kentucky Appellate Rules of Procedure .......................................................................... 7 THE PRESENTERS Justice Lisabeth Hughes Abramson Supreme Court of Kentucky Jefferson County Judicial Center 800 West Jefferson Street, Suite 1000 Louisville, Kentucky 40202-4737 [email protected] JUSTICE LISABETH HUGHES ABRAMSON was sworn in as a Justice for the Supreme Court of Kentucky on Sept. 10, 2007, after being appointed to fill the vacancy created by the retirement of the late Justice William E. McAnulty, Jr. She was subsequently elected to the office in November 2008. She has served on the Kentucky Court of Appeals twice in her career – she was appointed on June 30, 2006, to fill a vacancy in Division 2 of the 4th Appellate District and was subsequently elected to that position in November 2006. She first served as a Court of Appeals judge from 1997 to 1998. From January 1999 until her 2006 appointment to the Court of Appeals, Justice Abramson served as a circuit judge in Jefferson County. She earned a bachelor’s degree, with highest honors, from the University of Louisville and graduated magna cum laude from the Brandeis School of Law at the University of Louisville and was named the Outstanding Graduate of her law school class. Before serving as a judge, she practiced law for fifteen years, concentrating on business and commercial litigation. In addition, she is a past president of the University of Louisville School of Law Alumni Council and is a Master and incoming President of the Louis D. Brandeis Inn of Court. Justice Abramson also served as a trustee for the Kentucky Judicial Form Retirement System Board, is the Supreme Court representative on the Kentucky IOLTA Board, Chairs the Civil Rules Committee, is a frequent lecturer for the Kentucky Circuit Judges Judicial College, and a 2007 graduate of Leadership Louisville. Jeanne D. Anderson 1613 Gardiner Lane Louisville, Kentucky 40205 (502) 696-5342 [email protected] JEANNE D. ANDERSON is the Executive Director of the Office of Criminal Appeals for the Office of the Attorney General in Frankfort. She received her B.A. from the University of Minnesota and J.D. from Louis D. Brandeis School of Law at the University of Louisville. Ms. Anderson is the 2012-2013 Chair of the Kentucky Bar Association Appellate Advocacy Section. i Bethany A. Breetz Stites & Harbison, PLLC 400 West Market Street, Suite 1800 Louisville, Kentucky 40202-3352 (502) 587-3400 [email protected] BETHANY A. BREETZ is an attorney with the Louisville office of Stites & Harbison, PLLC, where she focuses her practice on both federal and state appellate advocacy, complex commercial litigation, including financial institutions, real estate, and trust and estate litigation. She received her B.A. from the University of Chicago and J.D., cum laude, from the University of Michigan Law School. Ms. Breetz was the first Chair of the Kentucky Bar Association’s Appellate Advocacy Section when it was established by the Kentucky Supreme Court in 2007. She is the past Chair of the Louisville Bar Association’s Appellate Section. Ms. Breetz was recently appointed to the Kentucky Supreme Court Civil Rules Committee and was named Chair of the Appellate Rules Subcommittee. She is listed in The Best Lawyers in America® (2009-2013) in the category of Appellate Practice and in Louisville Magazine’s Top Lawyers for 2013 in the categories of Appellate Law and Media Law. Kenneth L. Sales Bubalo Goode Sales & Bliss, PLC 9300 Shelbyville Road, Suite 215 Louisville, Kentucky 40222 (502) 753-1560 [email protected] KENNETH L. SALES is Of Counsel with the firm Bubalo Goode Sales & Bliss, PLC, where he is widely recognized as one of the nation’s premier mesothelioma and products liability lawyers. He received his undergraduate degree from the University of Kentucky and J.D. from the University of Louisville Louis D. Brandeis School of Law. Mr. Sales is a member of the American Association for Justice and serves on the Board of Governors for the Kentucky Justice Association. He received the Peter Perlman Outstanding Trial Lawyer Award in 2006 from the Kentucky Academy of Trial Attorneys (now known as Kentucky Justice Association) and is rated as one of the Top 100 Trial Lawyers in the nation by the American Trial Lawyers Association. ii Kathleen K. Schmidt Department of Public Advocacy 100 Fair Oaks Lane, Suite 302 Frankfort, Kentucky 40601 (502) 564-8006 [email protected] KATHLEEN K. SCHMIDT is the Appellate Branch Manager for the Department of Public Advocacy’s Post Trial Division. She received her B.S. from Vanderbilt University and her J.D. from the University of Kentucky College of Law. Ms. Schmidt is admitted to practice before the United States Court of Appeals for the Sixth Circuit and the United States District Court for the Western District of Kentucky. She is a member of the Bullitt County and Kentucky Bar Associations. iii iv DRAFT KENTUCKY APPELLATE RULES OF PROCEDURE (KAP) Attached is a working draft of the Kentucky Appellate Rules of Procedure (also known as KAP). The Appellate Rules Subcommittee of the Kentucky Supreme Court’s Civil Rules Committee has been working on these rules for a year and a half. They are not yet completed. For example, a number of rules relating to the record on appeal are omitted as "Under Construction." The Subcommittee is attempting to reach consensus on revisions to those rules before submitting them for more extensive review by the bench and bar. Other rules, while ready for review by persons outside the Subcommittee, may still be subject to further revision. After the Subcommittee has completed the draft rules, they will go to the Civil Rules Committee for that committee’s review and recommendation to the Supreme Court. The rules will then, likely, be discussed at the rules hearing at the 2014 KBA Convention before the Supreme Court votes on adopting revised appellate rules. The Subcommittee would like general feedback on the structure and content of the rules, including potential unintended consequences of any changes or recommendations for further revisions. While comments regarding the exact phrasing or punctuation of the rules would be appreciated as well, keep in mind that these rules are not yet in final form for recommendation to the Civil Rules Committee, let alone recommendation to the Supreme Court. History In 2007, the Appellate Advocacy Section began as a new section of the Kentucky Bar Association. Among the purposes of the section were to assist in improving the level of practice by attorneys who do not regularly practice in the appellate area. To that end, the first order of the section was to create and present at District Bar meetings throughout the state on the nuts and bolts of appeals, providing both verbal and written guidelines for non-appellate practitioners to handle the occasional appeal. Among other purposes of the Appellate Advocacy Section were to "promote discussion within the KBA of concerns of lawyers engaged in appellate advocacy" and to "research and recommend new procedures" that will improve the practice of appellate advocacy in Kentucky. Those discussions quickly led to the realization that Kentucky’s appellate rules of practice needed to be revised, preferably as stand-alone rules of appellate practice. The then-chair of the Appellate Advocacy Section discussed the rules issue with Justices Noble and Abramson (the former and current chairs of the Kentucky Supreme Court’s Civil Rules Committee). It was suggested that the Appellate Advocacy Section begin the process of drafting stand-alone appellate rules that could be used as a starting point for any subsequent official committee action on revising the appellate rules. Accordingly, from 2008 through 2010 all the then current and former officers of the Appellate Advocacy Section, along with the Clerk and the Chief Staff Attorney of the Kentucky Court of Appeals, worked on creating a working draft of stand-alone