The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.
Issue link: https://kentuckybenchandbar.epubxp.com/i/546018
22 B&B; • 7.15 K E N T U C K Y C I V I L P R O C E D U R E : A R U L E S C O M P A R I S O N dered by the court). The federal rule uses a 100-mile radius or, for parties' and their officers, the geographical boundary of the state (instead of county) where the person works or re- sides. CR 47, 48 and 49 – Jurors and Verdicts These rules are not only very different in the rulebooks; much of the substance is covered by statutes, the state constitution and case law. It takes nine out of 12 jurors voting in agree- ment to make a civil verdict in Kentucky, and the same nine need not agree to every answer in a special verdict. 17 A federal jury can be made up of just six, but their verdict must be unani- mous. 18 The federal court must poll the jury at the request of any party to confirm that the verdict really was unanimous. 19 Jury selection, voir dire, the ex- ercise of challenges, and other trial logistics vary so much be- tween federal and state courts, and even among courts in the same system, that pretrial preparation must include con- firming the specific practice fol- lowed in the specific court where the case will be tried. CR 50 – Motions Following Proof Kentucky's rules are still phrased in terms of asking a court to take a case away from a jury by asking the court to "direct a verdict" on legal grounds, instead of letting the jury decide the outcome by re- solving factual disputes. The federal rule now spells this out as moving "for judgment as a matter of law." FRCP 50(a). Both systems require a movant to raise the legal issue before the case is submitted to a jury in order to move for relief after a verdict is returned. 20 In state court, the post-judgment mo- tion must be made within 10 days after entry of judgment (or discharge of the jury if they reached no verdict). 21 In federal court, the deadline is 28 days. 22 CR 51 – Instructions to Jury CR 51(2) specifically requires a Kentucky court to give written instructions before closing ar- gument is made to the jury, whereas FRCP 51(b)(3) allows instructions "at any time before the jury is discharged." CR 52 – Findings of the Court Kentucky's deadline for asking a court to amend its findings or to make additional findings is 10 days after entry of judgment; the federal rules allow 28 days. CR 53 – Master Commissioners The office of Master Commis- sion under CR 53 is substantial- ly different from the special master contemplated by FRCP 53. The appointment of a mas- ter in the federal system is un- usual and case-specific; CR 53.02(3) provides for similar ref- erences "in special cases," but most of CR 53 addresses the routine work of a regular Mas- ter Commissioner (judicial sales, settlement of accounts of es- tates, etc.). The manner and limits of compensation also dif- fer. CR 54 – Judgment and Costs In addition to the express provi- sions of CR 54 and FRCP 54 al- lowing for entry of a final and appealable judgment on fewer than all of the claims in a case, federal litigants may turn to 28 U.S.C. §1292 for interlocutory appeals in certain cases, not available in state practice. For default judgments, CR 54.03 requires proof of unliqui- dated damages to accompany the demand for default (be- cause those damages are un- specified in the pleadings un- der CR 8.02(2), as described earlier). The federal rule does not contain this provision be- cause federal practice does not forbid the estimate of unliqui- dated damages to appear in the initial pleading. FRCP 54(d)(2) governs requests for attorney fees, which must be made within 14 days of en- try of judgment. Kentucky's rules have no counterpart to this, but good practice would be to file such a motion (if attor- neys' fees are recoverable by statute, contract, or otherwise) within the 10-day deadline for amending the judgment. 23 CR 55 – Default Other than the different provi- sions for notice to parties who have appeared, but are still in default (three days in state court, seven days in federal), the default rules are substantial- ly the same (but with the state court requiring proof of dam- ages under CR 54.03(1), above). This is another area, however, where local rules should be consulted because they may impose additional re- quirements in a specific circuit. CR 56 – Summary Judgment Fifteen years ago, state court practice appeared to veer com- pletely away from federal prac- tice, even under the identical rule 56, with the Kentucky Supreme Court's decision in Steelvest, Inc. v. Scansteel Serv. Ctr. Inc.. 24 Subsequent case law has clarified and reaffirmed, however, that CR 56 is alive and well in Kentucky. A jury trial without the requisite proof is a futile exercise, wasteful of judi- cial time, jurors' time, and the litigants' time and re- sources. CR 56 is in- tended to avoid such unnecessary proceedings. 25 A comparison of state and fed- eral summary judgment prac- tice is provided by a separate article in this issue. CR 57 – Declaratory Judgments While the rules are similar in state and federal court, both courts also have declaratory judgment statutes that should be consulted. 26