The Risk Manager, Spring 2005

By Senior Status Judge Stan Billingsley

Editor’s Note: This article is the first of a series that has agreed to provide for Lawyers Mutual’s newsletter as a bar service. provides Internet legal research service specializing in Kentucky law. For more about LawReader go to

For a number of years I have had the job of writing a synopsis of every decision issued by Kentucky appellate courts for These decisions reveal an amazingly large number of errors committed at trial and in appellate practice. All of these errors could be easily avoided by merely following the Rules of Evidence and the Rules of Procedure.

  • Filing Appeals Out of Time: The grossest error seen and this happens more than a few times each year, is the failure to file a timely notice of appeal. Sometimes this is alleged to be due to a failure of the clerk to notify a party of the entry of the final judgment. While the trial judge has some discretion to remedy these situations, not all judges will do that. While the rules direct the clerk to notice all parties of the entry of a judgment, the clerk’s failure to do so does not release the attorney and his client from the consequences of the appeal time tolling. We suggest you check every few days with the clerk to see when the judgment is filed if you plan to appeal the ruling.
  • Failure to Protect and Designate the Record: Frequently appeals are dismissed due to the failure of the appellant to properly designate and include a reference to the portion of the record in issue. The appellate court will not write the trial clerk to search for a record you didn’t send them. Sometimes the palpable error rule might save you, but don’t count on it.
  • Appealing the Wrong Case: In 2004 the worst error was a case in which the attorney appealed the wrong case. He filed the appeal timely, but in the heading misidentified the case he was appealing...oops! The Court, of course, dismissed the appeal. How do you explain that one to your client?
  • Failure to Correctly Include Parties in Appeal: Another error is the failure to give proper notice of appeal by styling the action against “Joe Smith, et. al.”. While Joe Smith has notice, the Court of Appeals does not know anyone named “et. al.” or “et. ux.” and will not include him or her in the appeal. Clearly identify and name each party in your notice of appeal.
  • Failure to Make Timely Objection: Failure to make timely objections is a common error. If the error is not preserved, it will generally not be heard by the court. The theory supporting this rule is that the trial court should be given an opportunity to correct error during the trial. Besides stating that you object on the record, you are required to “make known to the court the action which that party desires the court to take ....” That can be a request for an admonition, a motion for mistrial, or motion to strike the offending evidence, etc. Whenever in doubt always object, state the relief sought from the court, and get it in the record, preferably in writing.
  • Curing Errors During Trial: A party who has made an error can limit the effect of that error by promptly asking the judge to issue an admonition.
  • The Problem with Continuing Objections: Don’t fall into the practice of informing the court that you have a continuing objection and thereafter relying on that to protect your record. Merely making the motion has no binding effect. The trial judge must specifically approve the motion. A judge’s silence or nod is rarely on the record and rarely will be held to be an affirmative ruling. Further you will prevent disagreements about the breadth of the issue actually covered by the judge’s order.
  • Failure to Move for a Directed Verdict During Trial: The failure to move for a directed verdict during the trial is an inexcusable error. All one has to do is to approach the bench at the close of the plaintiff’s case and make an oral motion on the record. This should be done after the opposing party rests, and at the close of all the evidence at the end of the trial the motion should be renewed. (The best practice is to prepare motions for directed verdict in writing prior to the trial, and hand a copy of the motion to the clerk to assure it gets in the record). At the very least be sure that the court stenographer or the audio/visual equipment actually is turned on and records the tendering of the motion. It is your duty to protect your record! There was a recent case dismissed because the trial attorney (while making a directed verdict motion at the close of the plaintiff’s case) failed to renew the motion after the plaintiff had called rebuttal witnesses. I have never seen a case thrown out because the party made too many motions for directed verdict.