Judge Gregory A. Lay,
27th Judicial Circuit Court
KAS Monthly: We always like to begin by asking judges to tell our readers a little bit about themselves— their background, hobbies, interests, maybe a few things that people might be surprised to learn about them.
Judge Lay: I was born in Harlan, Kentucky, and raised in Knox County. I currently live in a London, Kentucky, with my family. Paige and I have been happily married for twenty-three years. My son Dillon will be starting his Junior year at the University of Kentucky as a marketing major. My daughter Abby will be starting her senior year at North Laurel High School. I am blessed with a beautiful family.
I am a Christian and have been a member of Corinth Baptist Church in London since 1999. I enjoy spending time with my family, hunting, cooking and reading.
I graduated from Eastern Kentucky University in 1987 with a degree in Political Science. I obtained my Juris Doctor in 1990 from the University of Kentucky. I was a civil trial attorney at Hamm, Milby and Ridings from 1990 to 2004. I have also served as an Assistant Laurel County Attorney (1992-1998) and an Assistant Commonwealth’s Attorney (1998-2004). I was elected Circuit Judge in November of 2004, after being appointed by the Governor in August of 2004. I am currently Chief Judge of the 27th Judicial Circuit, and I have served as Vice-Chief Regional Judge since 2011.
KAS Monthly: Who were or are some of your mentors as a young attorney and as a new judge?
Judge Lay: I have had many, many friends and mentors throughout my career, but I will mention two here. Bob Milby was the senior partner at Hamm, Milby and Ridings when I arrived there in 1990. He knew more insurance law than anyone I ever knew. Many times I would go to his office and ask a question about the law or about a case. Bob kept a 3 x 5 card holder on his desk. He had hundreds of cases summarized on those cards. More often than not Bob would be able to pull out a 3 x 5 card with a particular case on it that would address my problem. He was a wonderful mentor for a young lawyer.
During my six years as Assistant Commonwealth’s Attorney, I served under Tom Handy who was the Commonwealth’s Attorney in my circuit for many years. I had the privilege of sitting second chair with Tom during a handful of murder trials before he turned me loose prosecuting murder trials on my own. Tom was a pleasure to watch in the courtroom. He was one of the very best trial attorneys I ever saw, and I learned so much about style and trial advocacy from him.
Judge Rod Messer was the other circuit judge in my circuit when I took the bench. He was a very helpful mentor to me. He shared his bench book, form orders and various tapes of trials and hearing. He was always there to assist me with the numerous questions I had as a new judge. His years of experience were an invaluable resource to me, and he was always eager and willing to assist me whenever the need arose.
KAS Monthly: How did your professional experiences prior to the bench prepare you to serve as a judge?
Judge Lay: I was a civil trial attorney for fourteen years at Hamm, Milby and Ridings. In that role I had cases all across southeastern and eastern Kentucky, spanning geographically from Monroe County to Martin County. During this time I practiced in front of dozens and dozens of circuit judges, and tried many cases.
I was a prosecuting attorney for twelve years, six as an Assistant Laurel County Attorney and six as an Assistant Commonwealth’s Attorney. I tried everything from sexual assault to murder cases. Having extensive experience with both civil and criminal trial work was invaluable for preparing me to be a circuit judge.
KAS Monthly: How and why did you decide to run to serve as a circuit judge?
Judge Lay: I always felt that I would make a better judge than lawyer. The judiciary is something I started thinking about within a few years of beginning the practice of law. In the summer of 2004, Judge Lewis B. Hopper retired. I believe Judge Hopper was the longest serving judge in Kentucky at the time of his retirement. The timing of Judge Hopper’s retirement came when I was 14 years into my law practice, so I certainly felt that I had accumulated the necessary experience to be a circuit judge. I desperately wanted the opportunity to contribute to the judiciary, and I felt that I could do a good job. Judge Hopper’s retirement in June of 2014 prompted me to announce my candidacy for circuit judge in early July of 2004. I was appointed by the governor in late August 2004, and the election was in early November 2004. It was a very quick turnaround from when Judge Hopper retired to my appointment in August. When I assumed office on August 31, 2004, it required me to leave a successful law practice, learn a new job and run a hotly contested campaign. It was a very challenging time for me and my family, but it was my dream to be judge, and God blessed me with this wonderful opportunity. I am forever thankful.
KAS Monthly: Describe your typical week as a circuit judge.
Judge Lay: The only thing certain in the week of a circuit judge is our dedicated motion dockets. I have two counties in my circuit, Knox and Laurel, and in each county we have one civil motion docket per month. We have civil pretrial conferences on the same day that we have our motion docket. On the criminal side each judge has one criminal motion docket per month in each county. The criminal motion docket will consist of grand jury returns, pretrial conferences, motions and sentencings. Each judge also will have one final criminal pretrial conference per month which will be on a separate day than the regular criminal docket. The final pretrial conference day will be set approximately one week prior to the upcoming criminal trial term, and on this day each case set for trial in the upcoming criminal trial term will be on the final pretrial docket. By previous order each defendant must either plead guilty on the final pretrial day or proceed to trial.
To give you a clearer picture of what this schedule looks like, my Knox civil motion docket is on the first Friday of every month and on the second Friday of each month in Laurel. My Knox criminal motion docket is on the fourth Friday of each month, and my Laurel criminal motion docket is on the fourth Monday of each month. The final criminal pretrial docket is not on a dedicated day, but is a special day set by the court. It usually occurs during the last week of each month.
In addition to the dedicated motion dockets, we also of course have trial terms. My criminal trial term is generally the first two weeks of each month, Monday through Thursday. My civil trial term is generally the last two weeks of each month, Monday through Thursday. This means that sixteen days out of each month will be trial dates for civil and criminal cases.
In addition to all of the above, I try to set aside one or two days a month to assign special hearings for things like suppression motions, competency hearings, temporary injunction hearings, etc. Therefore, any given week is generally very busy. The uncertainty comes from the trial days. Obviously, many of the civil and criminal cases will settle or plea, leaving some of those dedicated trial days open for other things. It is on those ”open” days that I have valuable time in the office to work on submitted cases, orders, research, education and administrative matters.
KAS Monthly: When you were first elected and sworn in as a circuit judge, what part of the job did you take to the easiest? What aspect of the job has been the hardest to adjust to?
Judge Lay: When I took office I was intimately familiar with the criminal and civil court schedule in my circuit, and I greatly respected my co-judge, Rod Messer, and my predecessor, Lewis Hopper. For the most part, I modeled everything I did after them, especially Judge Messer. I made some moderate adjustments, such as increasing the number of available trial days and adding a criminal final pretrial conference day. Because I was so familiar with the norms of practice and schedule in the 27th Judicial Circuit, and because only moderate modifications thereto were necessary, the general transition was somewhat seamless. So that was the easy part.
As for the hard part, as a lawyer I valued my friendships and relationships with other attorneys. I worked hard to build and maintain good relationships with other attorneys. As a judge your situational relationship with attorneys changes. I am not saying that you are automatically placed in an adversarial relationship with lawyers, but a judge is obviously put in a position of having to be neutral and unbiased toward all attorneys. This means that sometimes judges have to make decisions and say things that may be against the interest of a particular lawyer, and that lawyer may be someone with whom the judge was friends for years. That was a very difficult adjustment for me, and it is to this day. It is something that can lead you to isolate yourself if you are not careful. I think judges need to be careful about not isolating themselves. Judges need to stay in contact with the local bar and maintain relationships, but there is a fine line that judges cannot cross from an ethical standpoint - a very difficult part of the transition from lawyer to judge for sure.
Another aspect of this transition is the judge’s relationship with his or her community. In Kentucky, judges of course are elected. This means that the judges who tended to win their elections were very likely active in their community prior to taking the bench. As a judge in small counties it is impossible to go through a civil or criminal docket without knowing some of the parties to the litigation. Of course, if the judge has a close or special relationship with any party or lawyer, the judge must recuse, but in my rural counties if I recused out of every case where I was familiar with a party the court system in my circuit would shut down. Many times I have to make decisions against someone that I know, and that is very difficult. Many of these litigants are people that you will run into at the grocery store or at a school function, so it does make for uncomfortable moments. This also was a difficult transition for me.
KAS Monthly: Who are some of your closest friends on the bench and why? Do you believe it is important for circuit judges throughout the Commonwealth to communicate with and learn from one another? Can you give us a couple of examples of circumstances where a colleague on the bench gave you some good advice or guidance that served you well, either generally or in a particular case?
Judge Lay: I have many, many good friends who serve on the bench at all levels. I have found them all to be a great source of guidance and counsel to me. If I were to start naming judges I would leave someone out and I would hate to do that. I will say that we have a group of circuit judges in the Cumberland Region who are dear to my heart. These are judges who serve in my region in counties that adjoin or are near to Knox and Laurel Counties. There is a group of about six of us that have become particularly close. We all frequently share ideas and ask each other for advice.
In my opinion, it is extremely important for judges to communicate with each other. There is no better source for betterment and learning than your peers. You must keep in mind that judges are rarely in the same place with each other at the same time. About the only time we are all together in one place is our annual judicial college, but that occurs only once a year so it is important for judges to find other ways to communicate and stay in touch.
KAS Monthly: Some judges have told us that they struggle to interpret and apply new precedent from the appellate courts. Do you look to and consider what other trial judges do and how they rule on new and emerging issues and does that have any persuasive effect on you?
Judge Lay: I have on many occasions looked at how other circuit judges have ruled on certain issues. I have not always followed their rulings, but many times I have. Regardless, I have almost always found the work of other circuit judges to be instructive.
KAS Monthly: Can you think of any cases where you’ve been asked to reconsider a prior ruling and you changed your mind? What is your thought process when you receive and consider a motion to reconsider or something of that nature?
Judge Lay: I can think of only one time in fourteen years have I ever substantively changed a written ruling after having been asked to reconsider that ruling. It was a very difficult case and there was no clear Kentucky precedent on point. I had really struggled with this particular ruling and it was essentially a toss up as to which way it should go. The unsuccessful party filed a motion to reconsider and, frankly, the motion made me look at one of the issues in a different light than I had when I originally ruled. Out of four or five issues, I reconsidered one issue and reversed my original ruling.
I think I speak for most judges in saying that I do not favor motions for reconsideration. Many times I will have taken a matter under submission, and my staff attorney and I will have thoroughly considered the facts and applied those to the applicable law. I then will have entered an order that hopefully addressed the facts and the law. Many times I will have really labored back and forth to reach a particular decision, and in those cases it is a relief to file the order and put the matter behind me. It then becomes very frustrating to see something like a motion to reconsider or some similar motion asking me to undo my work.
If, however, I have made some sort of clear error in the law, or somehow clearly misapplied a fact or facts, then in that situation a motion to alter, amend or vacate, would be appropriate. In fact, the Court in that scenario would appreciate the opportunity to correct a mistake if one had been made.
KAS Monthly: One of the chief complaints about the judicial system from attorneys and litigants alike is that it moves too slowly. What are some steps that you believe would help move cases along more quickly, and what sort of resources does the judiciary need to make that happen? What steps have you taken to efficiently manage your own docket?
Judge Lay: The first thing I did when I took the bench was build in additional trial days to my docket. This allowed me to set more trials per month which resulted in quicker trial dates when it came time for counsel to ask for a trial. On the criminal side, I also added a final pretrial conference day per month for each criminal trial term. On this day defendants must plead guilty on the final pretrial day or proceed to trial on the scheduled trial date. This results in numerous guilty pleas on the final pretrial conference date, and it clears trial days for the cases that actually have to be tried. For example, instead of showing up on a trial day with five cases set for trial, some of which would have to be continued, we will show up with one case set for trial that can be tried if necessary.
I also came to the bench with a general attitude that continuances are disfavored. I usually don’t accept agreed orders of continuance unless counsel have conferred with me in advance. Even then I look with scrutiny on any request for continuance, and I only grant them if good cause has been shown.
My staff and I are very diligent about having a purge docket (i.e. Rule 77 docket) at least once every year in each county. In cases where no substantive pretrial activity has occurred within one year, the cases will be dismissed, without prejudice, unless the parties show good cause why it should remain on the docket. Unless the case has languished for no good reason, I am somewhat lenient about allowing cases to remain on the docket, but if I do allow a case to remain I either assign it for a pretrial conference or allow the case to only remain on the docket for a limited number of days for some affirmative pretrial step. In my opinion, consistent purge dockets help move cases along.
Notwithstanding all of the above, there is certainly room for improvement. The current CR 77 allows a show cause order if no pretrial activity has occurred within the previous 12 months. Amending that rule to shorten the period to 6 months would be beneficial. Also, I generally do not enter a scheduling order until one of the parties asks for a pretrial conference. At the pretrial conference I assign a trial date. The good news is that I am usually able to give the parties a trial date within 4 to 6 months. Perhaps, however, the better approach would be for the court to be more aggressive with the scheduling of civil cases and enter scheduling orders as soon as cases are filed, or shortly thereafter.
In May of this year I was appointed by Chief Justice Minton to the Civil Justice Reform Commission. The Commission is made up of justices, judges, attorneys, and legislators. We will be meeting over the next several months to discuss, and hopefully implement, ways to improve the speed and efficiency of our civil justice system. Stay tuned!
KAS Monthly: Discovery disputes are common in litigation in both civil and criminal cases. How do you approach those disputes as a trial judge?
Judge Lay: For whatever reason, I do not see quite as many discovery disputes as I did when I first became judge. Perhaps attorneys have somewhat acclimated to how I handle discovery disputes. The first thing I ask during a discovery dispute hearing is whether counsel have conferred with each other beforehand. In our circuit we have a local rule that counsel attempt to settle their dispute beforehand, and I do expect compliance with that. If counsel have not conferred, I have on many occasions made them retire to a conference room to see if they can agree on anything. If not, or if counsel have previously conferred with no agreement, I just proceed to rule on whatever issues they have. These are not my favorite motions but sometimes disputes are unresolvable without the court’s assistance.
KAS Monthly: We ask this question of every judge: what are your personal pet peeves in the courtroom? What should someone, whether they are a litigant, criminal defendant, or an attorney, absolutely never do in your courtroom?
Judge Lay: Don’t chew gum in court. Turn your cell phones off, or at least make sure they don’t ring during court. These are rules applicable to both attorneys and others in the courtroom.
When attorneys are arguing motions, I very much dislike it when they interrupt or talk over each other. Trying to talk louder than the other attorney has absolutely no persuasive influence with me, and, in fact, it may have the opposite effect. Smirks, rolling eyes, snarky body language, etc., are not helpful either. Any of these things will likely draw some sort of rebuke from me.
KAS Monthly: What are some of the more effective advocacy techniques you’ve seen in your courtroom? What works? What does not work?
Judge Lay: Competent and efficient use of technology in the courtroom is one of the most effective advocacy techniques I have seen.
KAS Monthly: What do you look for in a good brief? What are the do’s and don’ts?
Judge Lay: Cover all necessary points with as much brevity as possible. Remember that your judge may have forty or more motions on for motion hour, and because of her trial schedule she may only have an evening to read the briefs. Give your judge a meaningful opportunity to actually read your brief, rather than merely scan it. Do not belittle your opposing litigant or counsel with unkind or inflammatory rhetoric. Avoid bravado and flamboyancy – it distracts more than it assists. Be candid. If you have a case that is against you, address it as best you can, distinguish it if you can, but do not just hide it. Being candid with the court will bless you in future battles.
KAS Monthly: What has been your most memorable experience on the bench so far?
Judge Lay: Memorable can be many things, both pleasant and not so pleasant. I would say that the most memorable series of cases I ever had was the cardiac litigation cases in Laurel Circuit Court against the local hospital and several cardiologists. The case started with approximately 300 plaintiffs. The case was never requested to be certified as a class, so each individual plaintiff was to be tried separately. Not all plaintiffs were named in the same Complaint, so the case had some Complaints filed in my division, and some that were filed in the other division. To avoid inconsistent rulings between divisions, both sides requested that one judge preside over all the cases. They didn’t care which judge, they just needed one judge, and I volunteered to take all the cases.
Needless to say, it was very contentious litigation with a lot at stake for both sides. Multiple attorneys were involved in the litigation from numerous states. Because of the volume and frequency of motion practice with these cases, I had to add a motion docket day every month dedicated exclusively to the cardiac litigation. A total of four cases were tried between 2013 and 2017. One of the trials lasted three weeks, two of the trials lasted two weeks and one trial lasted three days (this was a shorter trial because it proceeded against only one defendant). The majority of the parties reached a settlement in the cardiac litigation on the last day of a two-week trial. Three of the cases were defense verdicts and the other case resulted in a multi-million dollar verdict and is currently on appeal. The litigation spanned six years.
I recall that prior to one of the trials there were approximately one hundred fifty motions in limine that had been filed. I set aside two days for hearings on all of those motions, and it took a full day and half to complete the hearing. Without questions the cardiac litigation cases were the most challenging of any I have ever had, so from that standpoint they were certainly memorable.
KAS Monthly: Do you find oral arguments helpful? Have you ever been leaning one way after reviewing the briefs but shifted course after hearing a particularly persuasive (or disastrous) argument from counsel at a hearing?
Judge Lay: I do find oral arguments helpful. There have been a few occasions when I have felt that the oral argument framed and explained the issues better than the brief.
KAS Monthly: What do you enjoy most about your job? Is there anything you do not enjoy or wish were different?
Judge Lay: One of the most rewarding aspects of my job is presiding over the Drug Court Program in my circuit. All drug court outcomes aren’t positive, but when they are it is special. We have a wonderful Drug Court team and an excellent Drug Court staff. Likewise, our counseling team is outstanding. Working with these dedicated professionals and witnessing positive outcomes is one of the many reasons I love this job.
KAS Monthly: Trial judges we have interviewed and interacted with reflect a full spectrum of attitudes about the role of appellate courts in our judicial system and reversal of lower court judgments by those courts. Have you ever been reversed on appeal and said to yourself “the appellate courts just got it wrong and I got it right”? Have you ever been reversed and said to yourself “I got it wrong and they got it right”? Tell us about what it’s like from a judge’s perspective to have an order or judgment reversed on appeal.
Judge Lay: There have been times that I have been reversed and I fully agreed with reviewing court, and times that I have been reversed that I really disagreed with the reviewing court. It is all part of the job. When I get reversed I accept it, learn from it and move on. I do not take it personally.
KAS Monthly: From your perspective as a trial judge, do you have any general advice for appellate judges as they sit in judgment of the decisions you make in your cases?
Judge Lay: We are blessed with excellent judges on the Court of Appeals and Supreme Court in Kentucky. They are tremendous. They know their job, so they certainly do not need any advice from me. Many of them were once trial judges themselves, so they know that we are often having to make quick decisions, sometimes with not a lot of time to deliberate. But all judges are held to a high standard, and we are expected to be right, regardless of the circumstances. That is why we have reviewing courts, and I am thankful that we do.
The only thing I might comment on would be the doctrine of palpable error. I do feel that instances in which palpable error is recognized has expanded somewhat over the years. I would just say that it is very difficult for a trial judge to correct, or even recognize, some errors during trial if the error or problem is not actually brought to the court’s attention by objection.
KAS Monthly: What’s next for Greg Lay?
Judge Lay: I love my job. I am blessed with one of the greatest jobs in the world. My staff is like family to me, and I certainly could not do this job without them. I will continue to do this job to the best of my ability until the voters think it is time for me to go.
NOTE: This is the sixth in a recurring series of interviews with Kentucky judges. The editors of KAS Monthly thank Judge Lay for his time in answering these questions.