Friday, December 21, 2007

SCOKY RULES: 2007 Amendments to the Rules of the Supreme Court, effective February 1, 2008

Click here for post 2007 Amendments to the Rules of the Supreme Court, effective February 1, 2008. Thanks KBA!

Monday, August 20, 2007

Ky. Law News for Aug. 16-19, 2007: Louisville Attorneys Market Nutty Licqeur; Fen Phen Hearing on Confinement Opposed; DSL Suit settled; Ethics Panel and Fletcher, and more

Top Legal Stories

  • Search for a liqueur made from hazelnuts, and you might find Frangelico. Think of raspberries, and it could be Chambord. But when two Louisville tax attorneys went looking for a liqueur based on pistachios, they came up empty. Twice.
  • The three Central Kentucky lawyers sitting in jail on charges they bilked their clients out of nearly $65 million say a federal judge has no right to re-open their bond hearing next week.
  • Public defenders in Northern Kentucky have some of the highest average caseloads in the state, according to a new report by the Department of Public Advocacy.
  • FRANKFORT - A disagreement over how juvenile offenders should be placed for treatment and rehabilitation has wound up in court, with the state's public defender agency saying a judge should halt the current classification system.
  • LOUISVILLE - A federal judge has approved an $8.2 million class-action settlement between BellSouth, its high-speed Internet customers and the state of Kentucky over taxes paid for the online service.
  • Federal prosecutors today requested that drug charges be dismissed against a dozen defendants indicted in a Louisville case involving 50 pounds of cocaine.
  • A decision to end an ethics investigation of Gov. Ernie Fletcher was based on politics, a former member of the Executive Branch Ethics Commission said.  "From my position, there have been numerous decisions within the past year which have been partisan action, or inaction," said Cynthia Stone, a Louisville attorney whose term expired last month.

Legal Headlines

Kentucky and other law blogs

Saturday, February 03, 2007

Jefferson District Court Rule Changes Open for Comment through Feb. 15, 2007 - Read 'em and remark!

SCR 1.040 (3)(a) requires chief judges to submit any changes to local rules to the Louisville Bar Association for consideration and recommendations.

Recently, the General Term of Jefferson District Court approved the entire set of local rules as amended (links to rules.)

Please submit any comments/recommendations via postal mail, e-mail or fax to William Schneider at the Louisville Bar Association by February 15: 600 W. Main St. Louisville, KY 40202 Fax: 502-583-4113 E-mail:

Friday, December 08, 2006

Rules: Link to Rule Permitting Citing Nonpublished Decisions

Thanks to Kurt Metzmeier with the Brandeis School of Law at University of Louisville for the link to the new rule permitting citing nonpublished decisions taking effect 1/1/2007.  Here's his comment:

The new rule (SC Order 2006-09) was published in the latest Bench & Bar (Nov. 2006) and can be found on the Supreme Court's Rules and Procedures webpage ( at

UPDATE:    Here's the rule change:

Section (4)(c) of CR 76.28 shall read :
(c) Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003, may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court. Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed document and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action .

Courts: Rule Change to Permit Citing Nonpublished Decisions

The Divorce Law Journal in Unpublished opinions may be cited in Kentucky provides us with this update that the Kentucky rules will be amended permitting the limited citation to nonpublished decisions effective Jan. 1, 2007.  The rule being amended (Section (4)(c) of CR 76.28) is limited to those nonpublised decisions after Jan. 1, 2003 AND if no published decision on point.

Diana Skaggs was a member of the rules committee proposing this change and is the publisher of the Thanks.

Click here for her post and text of rule change to Section (4)(c) of CR 76.28.

I tried to find this proposed change at the AOC site and was unsuccessful even though I had heard rumors of its contemplation. 

Monday, October 03, 2005

Supreme Court Passes New Judicial Campaign Speech Rule

On September 15, 2005, the Kentucky Supreme Court adopted Rule 2005-9 (link to AOC Order) regulating judicial campaign speech:


The following rule amendment shall become effective upon the date of the entry of this order.

SCR 4.300 Kentucky Code of Judicial Conduct - Canon 5(B)(1)(c) shall read:

A judge or candidate for election to judicial office shall not intentionally or recklessly make a statement that a reasonable person would perceive as committing the judge or candidate to rule a certain way on a case, controversy, or issue that is likely to come before the court; and shall not misrepresent any candidate's identity, qualifications, present position, or other facts.

All sitting . All concur.

ENTERED : September 15, 2005.

Tuesday, August 02, 2005

2005 Amendment - KRE 406 Habit; Routine Practice

This is our first followup on the propsed 2005 Amendments to Rules by the Supreme Court. 

For our previous posting on this topic CLICK HERE.

For a link to entire set of proposed rules from the Supreme Court to take effect on Jan. 1, 2006, then CLICKING HERE.

The following is an entirely new rule of evidence.  There is currently no counterpart KRE 406, but there is an FRE 406. 

KRE 406 Habit; Routine Practice

Proposed adoption of KRE 406 :

Evidence of the habit of a person or of the routine practice of an organization,

whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.


Most jurisdictions (perhaps all but Kentucky and one other) recognize the propriety of proving that a person acted in a particular way on a given occasion by showing that he had a "habit" of so acting . At the same time, most if not all jurisdictions refuse to allow litigants to prove that a person acted in a particular way on a given occasion by showing that he had a particular trait of character (except in criminal cases pursuant to KRE 404). Evidence that a person habitually stops at a railroad crossing before moving across, offered to show that he stopped on a given occasion, is a classic illustration of the former; evidence that a person has a general disposition toward carefulness, offered to prove that he stopped at a crossing on a given occasion, is an illustration of the latter.

Rule 406 authorizes the introduction of evidence of a person's habit (and the routine practice of an organization) without opening the gates to the introduction of evidence of character or generalized disposition.

The provision contains no definition of "habit" or "routine practice" but the following definition from the Advisory Committee Notes on Federal Rule 406 is both helpful and typical:


"Character and habit are close akin . Character is a generalized description of one's disposition, or of one's disposition in respect to a general trait, such as honesty, temperance, or peacefulness . 'Habit,' in modern usage, both lay and psychological, is more specific. It describes one's regular response to a repeated specific situation . If we speak of character for care, we think of the person's tendency to act prudently in all the varying situations of life, in business, family life, in handling automobiles and in walking across the street.


A habit, on the other hand, is the person's regular practice of meeting a particular kind of situation with a specific type of conduct, such as the habit of going down a particular stairway two stairs at a time, or of giving the hand-s ignal for a left turn, or of alighting from railway cars while they are moving . The doing of the habitual acts may become semi-automatic ." Fed .R .Evid . 406, Advisory.


Committee's Note.

It is contemplated that testimony about a driver's specific behavior (such as activating turn signals) would be admissible under the provision but that testimony about a driver's general behavior (such as always driving carefully) would be inadmissible.

The provision does not attempt to address the following questions : (1) How many times does a response to a specific stimulus have to occur in order to constitute a habit for purposes of the rule? (2) How much behavioral uniformity is required for multiple repetitive responses to qualify as habitual under the rule?

With respect to these questions, drafters of the Federal Rules made the following points:

. . . The extent to which instances must be multiplied and consistency of behavior maintained in order to rise to the status of habit inevitably gives rise to differences of opinion. . . . While adequacy of sampling and uniformity of response are key factors, precise standards for measuring their sufficiency for evidence purposes cannot be formulated ." Fed.R.Evid . 406, Advisory.

Evidence authorities believe that the lack of certainty on these points is insufficient reason for an exclusion of all habit evidence and that these are matters that can be resolved by the trial judge (as he/she resolves other matters of relevance) on a case-by-case basis . The same is true with respect to matters involving the methods by which habit can be proved (a single witness who has seen 50 responses or 50 witnesses who have seen 1 response). With respect to all such matters, the trial judge is well-suited to resolve issues bearing on admissibility and, of course, the trial judge has the discretion under Rule 403 to exclude such evidence when its probative value is substantially outweighed by such undesirable effects as undue delay, waste of time, confusion of the jury, and others.

Rule 406 is borrowed from the Federal Rules without modification . Rule 406 changes Kentucky law. The Supreme Court ruled repeatedly during the last century that evidence of habit could not be used to prove conduct in conformity with habit. See e.g., Lexington R. Co . v. Herring , 96 S .W. 558 (Ky. 1906); Cincinnati, N .O. & T.P. Ry. Co. v . Hare's Adm'x , 178 S.W.2d 835 (Ky. 1944).  Recently, however, a majority of the Court expressed the view that habit evidence should be admissible to prove conduct in conformity with habit, although a majority held that such evidence could not be admitted without explicit authorization for such in the Rules of Evidence. See Burchett v. Commonwealth, 98 S.W.3d 492 (Ky., 2003). Rule 406 adopts the view of the Court's majority and brings Kentuckylaw into line with that of nearly all other states and the Federal Rules.

Kentucky Law Blog Commentary

We do not intend to weigh in on this topic with any gravitas or intellectual insight other than to refer you to the most recent cases on this topic.


Note that Burchett v. Com., 98 S.W.3d. 492 (Ky. 2003) (2000-SC-000179-DG.pdf) was the subject of some interesting debate between Justices Johnstone (majority) and Cooper (dissent) in  Brooks v. Lexington Fayette County Urban Gov't Housing Authority2001-SC-0816-DG (Ky., 2004).  Justice Cooper cried foul, but Justice Johnstone responded to this by saying Cooper was actually crying wolf on the development of the law.   The issue in Burchett was phrased such that "While Appellant did not contest admission of evidence that he smoked a marijuana cigarette the day before the collision, Appellant did contest the admission of any evidence that he had a habit of drinking alcohol or smoking marijuana everyday."

In reaching our holding in Burchett, we relied on a number of pre-KRE cases that held that evidence of habit or custom is not admissible to show that a party acted either negligently or non-negligently on a particular day or time in question . See, etc .., Cincinnati, N .O . & T.P. Ry. Co . v. Hare's Adm'x, 297 Ky. 5, 178 S .W .2d 835 (1944), overruled on other grounds, Louisville & N .R. Co . v. Fisher, 357 S .W .2d 683 (1962). (Evidence of deceased's custom of carefully going over railroad crossings was not admissible to show that the decedent acted non-negligently on the day he was struck and killed by a train while going over a crossing .) But our holding in Burchett does not affect all the types of evidence that might arguably be categorized as habit evidence under FRE 406. For example, if one uses the annotation to FRE 406 as a guide, evidence regarding custom and usage in a particular industry is admissible evidence under the rule to assist the trial court to determine the meaning of an ambiguous contract. See Maior v. Bishop, 462 F.2d 1277, 1279 (10th Cir. 1972). Likewise, the annotation points to evidence of custom and practice within a particular industry, group, or organization as being admissible under the rule as evidence "bearing on the standard of care in determining negligence." Muncie Aviation Corp . v. Party Doll Fleet, Inc. , 519 F.2d 1178, 1180 (5th Cir. 1975). Business custom, practice, and usage have long been admissible in Kentucky for these same purposes. See, etc .., Martin v. Ben P. Eubank Lumber Co. , Ky., 395 S.W.2d 385, 386 (1965) (The "course of dealing between parties and any usage of trade may be competent to explain any ambiguities in a contract.") (internal quotation marks omitted) ; Bass v. Williams, Ky. App ., 839 S .W.2d 559, 565 (1992) ("While custom and usage may, under some circumstances, establish a standard of care, it may not negate an established standard .")


To satisfy the curiosity expressed in the dissent, we explain that the above-cited cases illustrate the point that Burchett merely reaffirmed the pre-KRE, common-law rule that evidence of a party's particular "habit" is not admissible to prove that the party  acted either negligently or non-negligently in accordance with his or her habit. Burchett does not exclude all evidence that falls within FRE 406's umbrella of admissibility. It does not preclude evidence of the custom and practice in an industry to prove the terms of an ambiguous contract. Likewise, it does not preclude introduction of the evidence of an entity's regular business practices that is part of the foundation necessary to introduce business records under the hearsay exception of KRE 803(6). And Burchett certainly does not preclude evidence of a defendant-employer's hiring practices and criteria in an employment-discrimination case. Thus, the dissent's claim of "fowl" in response to our reasoning is, in actuality, a cry of "wolf."

Thursday, July 28, 2005

Supreme Court's Proposed Rule Changes - Comment Now or Forever Hold Your Piece of Mind

The Kentucky Supreme Court has posted 57 rule changes.  These proposed changes are up for comment and may take effect on JANUARY 1, 2006.  Forward your comments to the Kentucky Supreme Court, or post them to this posting and provide food for thought.  You can access all of the proposed changes at the AOC's web site in PDF format by CLICKING HERE.  Or, if you prefer a more readable index in HTML format courtesy of LawReader, then CLICK HERE.

  • Kentucky Rules of Evidence - KRE 406, 407 & 504
    Habits Routine Practice (406); Susequent remedial measures (407); and Husband-wife Privilege (504).
  • Rules of the Supreme Court regarding the Bar Association.
  • Judicial Election Campaign Intervention.
  • Disciplinary matters
  • And more.

We will post some of the proposed changes in the days to come in bits and snatches to be more easily consumed during your internet browsing.

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