When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.
Rule 43.12.Evidence on motions.
Current through June 18, 2026 · Last verified July 9, 2026
In one sentenceRule 43.12 lets a Kentucky court decide a motion resting on facts outside the existing record by reviewing affidavits from each side, or instead direct that the disputed facts be resolved wholly or partly through oral testimony or depositions.
Full Text of Rule 43.12
Amendment History
The source reproduced here (current through June 18, 2026) records no amendment to this rule since its original adoption — no History line appears for it in the compiled rules. For the underlying adopting order and any later amendments, see the West’s Rules & Procedures.
Plain-English Summary
Motions sometimes turn on facts the court file doesn't already show -- whether a party received notice, why a deadline was missed, what happened at a meeting outside the courtroom. Rule 43.12 lets the court resolve those factual gaps by reading affidavits the parties submit instead of holding a full evidentiary hearing.
The court isn't limited to paper submissions. It can direct that the motion be heard, in whole or in part, on oral testimony or on depositions instead of affidavits -- useful when the facts are contested and a judge wants to see a witness answer questions or test credibility before ruling.
Frequently Asked Questions
Do I need live witnesses to win a motion in Kentucky civil court?
Not always. When a motion depends on facts not already in the record, Rule 43.12 lets the court decide it on affidavits submitted by the parties.
Can a judge require oral testimony instead of affidavits on a motion?
Yes. Rule 43.12 gives the court authority to direct that a motion be heard wholly or partly on oral testimony or depositions, rather than affidavits alone.
What does 'facts not appearing of record' mean under Rule 43.12?
It refers to facts the motion depends on that aren't already established by the pleadings or other filings in the case -- the kind of factual gap affidavits, testimony, or depositions can fill.
Source & verification. The rule text is reproduced verbatim from the
official Kentucky Rules of Civil Procedure (Ky. R. Civ. P. 43.12). Prescribed by the Supreme Court of Kentucky (Ky. Const. § 116). The plain-English summary is original and written by us. Last verified July 9, 2026. ·
Official source
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