Trial Procedure

Question 1

NM Rule 1-088 Designation of Judge

Answer 1

Judge is assigned when complaint filed. Local rules determine to whom it is assigned. E.g. 2nd Judicial District selects randomly. 1st Judicial District Chief Judge has power to assign cases

Question 2

Replacing a Judge

Answer 2

Counsel for all parties may agree to judge.
If cannot stipulate to a judge or judge refuses to accept case, clerk shall assign district judge of another division at random

Question 3

NM

Article VI, Section 18: Disqualification

Answer 3

No judge can sit on any case if he:

1. Is related to a party
2. Was an attorney in litigation at an earlier stage of the proceeding
3. Presided over the same case at trial in an inferior court
4. Has some interest in the case. That is: (a) present pecuniary interest (not some indirect, remote, speculative, theoretical interest); (b) must arise from something outside the judge’s observations during proceedings. Personal, not judicial.

Question 4

NM

Article VI, Section 18: Disqualification; Exceptions

Answer 4

The statute does not apply when all parties consent to the sitting judge. Parties may raise issue of disqualification on motion, objection, or other remedy within a REASONABLE time after the party becomes aware of the grounds. If a party fails to timely object, then they waive their rights to remove the judge pursuant to Article VI, Section 18.

Question 5

Code of Judicial Conduct NMRA 21-211

Answer 5

A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might REASONABLY be questioned, including but not limited to the following circumstances: personal bias/prejudice, economic interest in case, family member is a party, etc.

Objective test for BIAS: Whether in the natural course of events, it’s possible for an average man sitting as a judge to be tempted to try the case with bias for or against any issue presented. Not just ACTUAL but, APPEARANCE of bias.

Question 6

NMSA 38-3-9 Peremptory Excusal

Answer 6

Unique to NM. Can basically ask to excuse a judge. You can only do this once. Don’t need a reason for it.

Question 7

United Nuclear Corp. v. General Atomic Co.

Facts: GAC wanted to remove the judge based on his language in discovery orders and court remarks.

Answer 7

Holding: GAC failed to show either personal bias or prejudice under the objective test or extrajudicial conduct. GAC only relied on in court statements and rulings. Even their attempts to reference newspapers failed since they couldn’t prove that the judge read them

Question 8

Judicial Bias, The Rule

Answer 8

Alleged bias/prejudice must stem from some EXTRAJUDICIAL source and result in an opinion on the merits OTHER than what the judge has learned from the case at hand.
Must be a reasonable factual basis for doubting the judge’s impartiality (objective standard)

Question 9

Peremptory Excusals NM Rule 1-088/NMSA 38-3-9/38-340

Answer 9

Every PARTY can file one peremptory challenge. It shall be filed within 10 days after the cause at issue. The statute is procedural, but the right is substantive.

Question 10

Different Parties, how determined

Answer 10

Litigant with diversity in interest from other parties. Carraro Factors for Diversity of Interest:

1. Whether parties employed the same attorneys
2. Whether separate answers were filed
3. Whether the parties interests were antagonistic
4. In a negligence claim, whether different independent acts of negligence are alleged in a suit governed by comparative negligence

Question 11

In the Matter of Eastburn, District Judge

Facts: Eastburn claimed NM Rule 21-207 was a violation of separation of powers, and court had no right to force him to sit on a case.

Answer 11

Holding: Suspended Eastburn and placed him on probation; public censure.

Question 12

Quality Automotive Center, LLC v. Arrieta
Issue: Whether a district court judge has the authority to determine whether one of the named parties to a case pending before him is entitled to exercise peremptory?

Answer 12

Holding: Judge has power to determine whether a peremptory challenge is both TIMELY and CORRECT.

Question 13

28 USC 144: Bias or Prejudice of Judge

Answer 13

If a party makes and files a timely and sufficient AFFIDAVIT that the judge before whom the matter is pending has a personal bias/prejudice, that judge cannot proceed any further. The affidavit must state facts and reasons, and also must be filed no less than 10 days before the first term upon which the proceeding is supposed to be heard.

Question 14

28 USC 455 Disqualification of Justice, Judge or Magistrate

Answer 14

The judge shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (objective standard). This CANNOT be waived.

Question 15

28 USC 455(a)(4): “Financial Interest”

Answer 15

The judge shall disqualify himself if he knows that he, or a family member has some financial interest in the subject matter in controversy or in a party to the proceeding, or ANY OTHER INTEREST that could SUBSTANTIALLY affect the outcome of the proceeding. E.g:
Direct Ownership - Requires Disqualification
Other Interest: Not entailing direct ownership, requires disqualification only if the litigation could substantially affect it.

Question 16

In re NM Natural Gas Antitrust Litigation

Facts: Judge files sua sponte to recuse himself based on financial interest. However, he still would have financially benefited even if he opted out of the class in the form of lower utility bills.

Answer 16

Holding: Remote, contingent benefits like lower utility bills in the future is not “financial interest” within the meaning of the statute. Rather it is considered an “other interest” which requires disqualification under the “substantially affected” test.

Public Policy: It’s impractical to recuse a judge whenever he benefits simply by being a member of a common populace, and this does not serve the goal of promoting public confidence.

Question 17

Pfizer, Inc. v. Honorable James McGir Kelly

(Remedy Following Disqualification)

Facts: Judge attends conference which is hosted by P’s attorneys in a case before him at the time. Judge didn’t realize the hosting arrangement until afterward, and refused to recuse himself.

Answer 17

Holding: He’s gotta go, if just to avoid appearance of impropriety.

What about his rulings? Well, there’s three options (VQC).
1. Vacate a Judgment (ie. consider it void) -
Use the LILJEBERG FACTORS:
-Risk of injustice to parties in the particular case
-Risk that the denial of relief will produce injustice in
other cases
-Risk of undermining the public’s confidences in the
judicial process.
2. Qualitative Approach: Look at the connection between attending the conference and subsequent ruling.
3. Chronological Approach: Vacate all orders after a specific date (date on which appearance of partiality arose; date on which Ds moved for disqualification; etc.)
4. Combine approaches

Summary Judgment orders were left in place - subject to de novo review in appellate court.
Discretionary orders are left in place - up to the parties and the replacement judge to decide which ones may need to be readdressed.

Question 18

State ex rel. Gesswein v. Galvin

Peremptory Challenges as Procedural

Answer 18

Peremptory challenges are procedural matters, and therefore, a statute addressing peremptory challenges may be overridden by a contrary rule of procedure.

Question 19

Sunland Park v. Santa Theresa Services Co.

Peremptory Challenge Rights

Answer 19

Each party has a specific right for peremptory challenge to excuse a judge, and that right cannot be affected by actions of other parties in the case.

Question 20

JMB Retail Properties Co. v. Eastburn

Discretionary Acts and Peremptory Challenges

Answer 20

Once a party requests a discretionary act of the judge, they are precluded from later exercising a peremptory challenge.
This case held that asking the court to grant an extension of time to file an answer invoked discretion, and the party could therefore not exercise peremptory.

Question 21

Barreras v. NM MVD

Peremptory Challenge and Waiver of PJ

Answer 21

By filing a peremptory challenge to excuse the judge, the party waived his defense of lack of personal jurisdiction.

Question 22

U.S. Const. Amendment VII: Right to Trial by Jury

Answer 22

In suits at common law where the value in controversy shall exceed 20 dollars, the right of trial by jury shall be preserved, and no fact by a jury shall be otherwise re-examined in any Court of the U.S.

Question 23

NM Const. Article II Section 12: Right of Trial by Jury

Answer 23

In all cases triable IN COURTS INFERIOR to the district court, the jury may consist of six. Legislature MAY provide that verdicts in all civil cases may be rendered by LESS THAN A UNANIMOUS vote of the jury.

Question 24

State ex. rel Bliss v. Greenwood

Facts: Contempt Case. D refuses to follow court orders regarding the operation of a water pump. Court holds him in contempt, charges $150. Statute in place at statehood provided that any indirect contempt that arose from actions outside of the courtroom for more than $50 must be tried by a jury.

Answer 24

Holding: Power to punish for contempt is inherent in the courts, but not absolute. Legislature can provide rules of procedure, but can’t substantially impair or destroy the power to punish contempt. Territorial law was “unconstitutional” at the time it was passed.
Therefore, no right to trial by jury existed for contempt charges in 1912.

Question 25

Scott v. Woods

Black Letter Propositions of the 7th Amendment as applied to NM

Answer 25

7th Amendment does not apply to NM. Right to a jury trial comes from the NM Constitution.
NM looks to the Ross v. Bernhard (federal case) to define this right:
1. Premerger Custom (Law & Equity)
2. Remedy Sought (contemporary relief)
3. Ability and Limits of Jurors

Question of jury right depends on the NATURE of the claims, not the character of the overall action.
Joining a legal with an equitable claim gives the plaintiff a right to have common issues of fact decided by a jury and can provide a right to have the legal claims tried first.
Issues common to both legal and equitable claims are to be tried by the jury.

Question 26

Markman v. Westview

Patent Documents

Answer 26

Issue: Whether interpretation of a patent document is a matter of law for the court to decide instead of the jury.

Holding: Construction of a patent document exclusively decision of the court. Historically, no antecedent, but analogized to infringement cases which were decided by judges back in 1789. Consider relative interpretive skills of judges and juries and statutory policies furthered by the allocation.

Functional Policy Considerations:

• Judges better at this than juries
• Limits of jurors; very technical subject matter
• Uniformity. Stare Decisis/C/E reasons.

Question 27

Tull v. US

Juries deciding on Civil Penalty

Answer 27

Background: Amendment required that demand for jury trial to determine liability be granted but that trial court, not jury, should determine the AMOUNT of penalty in Clean Air Act cases.

Holding: Determining civil penalty is not an ESSENTIAL FUNCTION of the jury.

Question 28

Feltner v. Columbia Pictures Television, Inc.

Distinguishing Tull

Answer 28

7th Amendmnet provides right to jury trial on all issues pertinent to an award of statutory damages under the Copyright Act, INCLUDING THE AMOUNT itself.
This case distinguishes Tull because based on the historical evidence, the amount of statutory damages in copyright actions is a legal question and traditionally belongs to the jury. That is, direct historical evidence in copyright cases set amount of damages.

Question 29

McGuire v. Russel Miller, Inc.

Complexity Exception to 7th Amendment

Answer 29

Court rejected any “complexity exception” to right to jury trial. Founding fathers didn’t assume that juries are just stupid.

Question 30

NM Contract Law

Answer 30

Nm Judges determine whether K is ambiguous.
If no, judges construe contract.
If yes, jury resolves ambiguity.

In addition, jury determines if K calls for attorney fees, but judges determine AMOUNT of fees.

Question 31

Board of Education of Carlsbad Municipal Schools v. Harrell

Answer 31

Holding:
•Right of a school employee to continued employment is established by statute.
•Therefore legislature can constitutionally prescribe methods of adjudicating termination of right
•No constitutional problem with lack of jury trial right.
•Cause of action of contract claim for government employment did not exist at statehood
•Relief was equitable at time and is so now

Congress may assign disputes involving public rights. (at min. this includes any suit brought by an individual against the Gov’t pursuant to valid legislation)

Question 32

NM Worker’s Compensation

Answer 32

In NM adopted constitutional amendment to allow legis. to establish an administrative body to deal with worker’s compensation claims. Set up special workers’ compensation tribunals with appellate review to the courts.

Question 33

28 USC 1870: 3 Peremptory Challenges

Answer 33

In civil cases, each party is allowed 3 peremptory challenges. Several D’s or several P’s may be considered a single party or court may allow additional peremptory challenges and permit them to be exercised separately or jointly.

Question 34

Gallegos v. Southwest Community Health Services

(Diversity of Interest and Peremptory Challenges)

Facts: Med Mal case against 9 people. D’s divided into four diverse groups. Court granted 4 separate peremptory challenges for each D group, and one set of 4 for P. Plaintiff appealed, citing equal protection grounds.

Answer 34

Holding: D’s had diverse and potentially conflicting interests. NO CONSTITUTIONAL RIGHT TO PEREMPTORY.

Question 35

Diversity of Interest Factors

Answer 35

1. Whether parties employed the same attorneys
2. Whether separate answers were filed
3. Whether the parties’ interests were antagonistic
4. In a negligence claim, whether different independent acts of negligence are alleged in a suit governed by comparative negligence
5. 5. Court should consider the extent to which the alleged diversity of interest will affect the choice of individual jurors when considered in light of the common interests of the defendants as against the interests of the plaintiff or plaintiffs in the selection of jurors. (Discretion)

Question 36

Lawrence v. Carilion Medical Center
(Batson claim)

Facts: Batson Claim. Med Mal for failure to perform a C-section. Black women jurors stricken by other side, Plaintiff challenged.

Answer 36

Holding:
• Found 1 woman left on jury with C-section because occurred remotely (race-neutral explanation)
• District court’s rejection of Batson challenge reviewed for clear error, found none–Affirmed

Question 37

Three-Step Batson Process

Answer 37

1. The defendant must make a prima facie showing that prosecutor exercised peremptory challenges on the basis of race.
2. The burden shifts to the prosecutor to articulate a RACE-NEUTRAL explanation for striking the jurors in question.
   a. Must be clear, reasonably specific, legitimate, and related to case. Can use body language but must articulate.
3. Trial court must determine whether D has carried his burden of proving purposeful discrimination. “The decisive question is whether counsel’s race-neutral explanation should be believed.”

*SCOTUS has said don’t need to share the same characteristics of those claiming were discriminated against.

Question 38

Directed Verdict Black Letter Law

Answer 38

• A directed verdict is appropriate only when there are no true issues of fact to be presented to the jury.
• In reviewing evidence on appeal from a directed verdict, we consider all the evidence and view any conflicts in the evidence in favor of the party resisting the directed verdict.
• Directed Verdicts are not favored and should only be granted when the jury cannot reasonably and logically reach any other conclusion.
• It is fundamental that the evidence adduced must support all issues of fact essential to the maintenance of a legally recognized and enforceable claim.
• If the evidence fails to support an issue essential to the legal sufficiency of the asserted claim, there is no right to a jury trial.
• Whether there exists sufficient evidence to support a claim or defense is a question of law for the district court that the appellate court reviews de novo.

Question 39

Melnick v. State Farm Mut. Auto Ins. Co
(Defining Directed Verdict and the Skyhook Test)

Facts: Substantial Evidence Rule—Sets out black letter law for testing evidence in NM. State Farm terminated franchise contract with insurance agent. Agent claimed breach of implied covenant. State Farm moved for directed verdict.

Answer 39

Holding: Question is not whether literally no evidence exists in support of the other party, but whether evidence exists upon which a jury properly could return a verdict for that party.
Skyhook Test:
• ALL the evidence must be reviewed
• If there are conflicts or contradictions in the evidence, these conflicts are resolved in favor of the non-movant
• If any contradicted evidence, including any reasonable inferences, may reasonably be interpreted in different ways, then the interpretation most favorable to the resisting party must be accepted.

*Same standards in federal system

Question 40

Kysar v. BP America Production Co.

(Stipulated Judgment and Directed Verdict)

Facts: Parties stipulated to directed verdict when P lost pre-trial motions concerning critical evidence for prima facie case.
P and D entered a stipulated judgment
P reserved right to appeal evidentiary rulings

Answer 40

Holding:
Court allowed the appeal based on following conditions:
1. Parties agree court rulings are dispositive
2. Reservation of right to challenge the rulings
3. Stipulation to entry of judgment
4. Approval of stipulation by the court

Question 41

Galloway v. United States
(Constitutionality of Directed Verdicts)

Facts: P sought benefits for total and permanent disability
Court said evidence legally insufficient to sustain a verdict for P

Answer 41

Holding:
• 7th Amendment only protects the substance of a jury trial not the procedure itself.
• Related historically to motion for new trial or dimmur.
• Where substantial evidence in support of P’s contentions is missing, directed verdict is appropriate
Justice Black rejected substantial evidence for scintilla test.

Question 42

Timing of Directed Verdict

Answer 42

Does not have to be at the end of P and/or Ds evidence. P. can present all the evidence on one issue then D. can file a directed verdict motion on that issue if it is central to the case

Question 43

Home Fire & Marine Ins. v. Pan American Petroleum Corp.
(Timing of Directed Verdict)

Facts: Insurance subrogation case, welder setting oil rig on fire. Chief witness (welder) testified, and in doing so established his negligence (At the time, it was not permitted for a party to impeach its own witnesses or ask leading questions on direct examination). Court directed verdict for the D in middle of cross-examination of P’s first witness without re-direct.

Answer 43

Holding:
• Motion for directed verdict was premature
• Can’t grant directed verdict until close of evidence for ALL ELEMENTS of the issue at hand.

Question 44

First National Bank of Albuquerque v. Sanchez

Facts: Opposing party raised the directed verdict motion, but court recessed. Returned to discuss jury instructions.
Directed verdict motion forgotten, but opposing party did raise objection to a specific instruction on the basis no evidence supported its underlying theory.

Answer 44

Holding:
• Objection to jury instruction on grounds that no evidence had been introduced to support such a finding was sufficient to preserve the issue for review
• Raising a directed verdict motion was essential to preserve the factual issue for appeal (3 to 2; 2 to 1 rule)
• Objection to instruction was the functional equivalent of a directed verdict motion

Question 45

Form of Verdict

Helpful for CE Purposes

Answer 45

1) General: Jury reaches conclusion but we don’t see findings of fact
2) Special: Jury gives findings of fact – then judge gives conclusion based on that.
3) General Verdict w/ Special Interrogatories: Jury answers specific questions then reaches a conclusion itself. Helpful for collateral estoppel to determine “Actually litigated & Necessary”

Walker v. New Mexico & So. Pacific Railroad (1897): 7th Amendment only protects SUBSTANCE of right, NOT the PROCEDURES. All three verdict forms are constitutional

Question 46

When inconsistency issues arise w/ re to FRCP 49(b)(3) or (4)

Answer 46

Inconsistency, Options:

1. General verdict with answers to specific questions which are inconsistent
   a. Order a new trial
   b. Have jury go back and further deliberate
   c. If general verdict says for P but special questions are internally consistent with one another, can enter judgment based on the special questions
2. General verdict points to one party and special questions have inconsistent answers
   a. Order a new trial
   b. Send back to deliberate

Question 47

Turpie v. Southwest Cardiology Associates

(Directed Verdict; Wrongful death; loss of consortium; “failure to instruct”)

Facts:
Parties submit a special verdict form.
Requested findings of malpractice for each doctor, followed by proximate cause as to death (1) and proximate cause as to loss of consortium (2).
Jury was confused and said no to the (1) questions but yes to the (2) questions. Cannot have loss of consortium without the underlying wrongful death claim. D argued jury verdict was fatally inconsistent

Answer 47

Holding:
• Where jury specifically finds that negligence was not the proximate cause of the injured spouse’s damages, loss of consortium cannot survive.
• Failure to object to the erroneous form was not a form of waiver
• Must be an error in the instruction AND error must lead to an unsupportable verdict

Question 48

McLelland v. United Wisconsin Life Ins. Co.

Facts: Parties submitted special verdict form.
Inadvertently instructed the possibility of awarding punitive damages for UPA violations (which is not allowed under the statute)

Answer 48

Holding:
Jury found that D did not breach the contract in bad faith, then went on to the erroneous finding.
Citing Turpie, where the jury’s answer to one question is dispositive, the other answers don’t matter.
No need to reach the findings of punitive damages, simply disregard them.

Question 49

Appeals

Remember “PEP”

Answer 49

1. Preserve Argument (need to object & put on record)
2. Error
3. Prejudice [Appellant bears burden]
   a. New Mexico presumption that an error in instructing the jury is harmless, the error will be ignored. Appellant has burden of proof to establish he was prejudiced by the erroneous instruction.
   b. If instructions are given on alternative theories of the case and one of those theories is unsupported by the evidence, New Mexico courts will conclude that this is reversible error, even if the jury could have reached is conclusion under the correct theory.
   c. Two Issue Rule: other states will allow a jury verdict to stand if at least one alternative theory would be sufficient to support the jury’s verdict. The burden is on the appellant to show the jury based its decision on the erroneous theory that was unsupported by the evidence.

Question 50

Kennedy v. Dexter Consolidated Schools.

Facts: Student sued school after being strip searched and confined to a room by the teacher.
Wrongful Search and Wrongful Detention claims.
Wrongful detention was not a correct cause of action. because of qualified immunity
BUT instruction mentioned both.
Jury found for Student against the school, but let the teacher off the hook.

Answer 50

Holding: When is an error harmless?
• In civil litigation, error will set aside a verdict if it is “inconsistent with substantial justice” or “affects substantial rights of the parties.”
• An error is harmless unless the complaining party can show that it created prejudice.
• School District failed to provide evidence of prejudice.

*Gerety v. Demers: Prejudice is found where a jury instruction states a proposition of law that is unsupported by evidence, even if the jury could have relied on other correct instructions

• Limited Gerety to instructions not supported by evidence only

*BURDEN is on the party claiming the error to show prejudice—even the slightest evidence will do.

Question 51

Atler v. Murphy Enterprises, Inc

Rule on when verdict will be affirmed

Answer 51

Verdict will be affirmed when one of the two instructions is supported by substantial evidence even if the other instruction is not supported by evidence

Question 52

NMSA 38-5-17 Verdict by ten or more jurors, polling jury

Answer 52

Either party may require the jury to be polled which is done by the court or clerk asking each juror if it is his verdict; if more than two of the jurors disagree, jury must be sent out again. If no disagreement, verdict is complete and jury discharged from the case

Question 53

Williams v. James

(Polling the Jury)

Facts: Inconsistent answers when polling.
Can a juror who initially found no fault subsequently vote on allocation of fault for damages?
One juror found not at fault but then determined percentage of damages.

Answer 53

Holding:
• Unanimity is not required
• Juror can vote inconsistently for efficient and integrity of jury system
• However, there needs to be clear Jury Instructions to that effect

Question 54

Rules on Jury Polling

Answer 54

1. Ward Rule: New Jersey. Inconsistent findings do not disturb verdict, constitutional and consistent with policies that dispensed with unanimity.
2. Wisconsin Rule: Same jurors have to agree on all issues or verdict is invalid.
3. New Mexico Rule: Intermediate Position. Any ten jurors are necessary and sufficient to agree on any issue, so long as none of these jurors has voted inconsistently.
   (Because it was not inconsistent for Juror 1 to vote that D was not liable while also concluding that P suffered damages, the court found no inconsistency)

Question 55

New Mexico: adopted Uniform Jury Instructions

Answer 55

• When UJI contains an instruction applicable in the case and the trial court determines that the jury should be instructed on the subject, the UJI must be used unless under the facts and circumstances of the particular case the published UJI is erroneous or otherwise improper.
• All instructions given to the jury or refused, whether UJI civil or otherwise, are subject to review by appeal or writ of error when matter is preserved and presented.

Question 56

Jewell v. Seidenberg

(Ruling on Failure to give Mandatory UJI)

Facts: Appeal reversed judgment for P on grounds that trial court failed to give mandatory UJI.

Answer 56

Holding:
• When court adopted UJI it was intended that they would never be deviated from.
• Therefore, failure to give applicable UJI would not be reversible error.
• Preservation for appeal requires objection to the failure to instruct or the nature of the instruction itself
• Appellant has the burden of showing he is prejudiced.
• Slightest Evidence of prejudice and all doubt will be resolved in favor of the party claiming prejudice.
• No presumption of prejudice here

Question 57

Benavidez v. City of Gallup

(Appropriating Jury instructions in trip and fall case)

Facts: Woman tripped and fell on city meter outside of her mother’s store. Court gave dangerous conditions instruction but did not give slip and fall UJI (open and obvious language)

Answer 57

Holding:
• Court erred, and error was NOT harmless.
• Jury might have misinterpreted evidence meter was open and obvious to find city not guilty.
• Both instructions needed to be given for the jury to properly understand the law.
• Internal evidence suggests instruction might have impacted jury.

Question 58

State v. Wilson.

Scope of Ct. of Appeals’ authority in considering error in jury instructions

Answer 58

Gives power to the Court of Appeals that District Courts have under Rule 1-051(d)
• Ct. of Appeals is not precluded from considering error in jury instructions
• It is precluded from overruling those instructions that have been considered by the Supreme Court and ruled valid
• Ct. of App. may not overrule the precedent nor alter or reject the instruction
• May consider UJIs not previously considered by the Supreme Court

Question 59

Preservation of the Right to Appeal: Objections

Answer 59

Objections:
• Made pursuant to Rule 51(d)(2); court can consider a plain error in the instructions that has not been persevered as required by Rule 51(d)(1) if the error affects a substantial right.
• Party asserting evidence is insufficient to support a jury instruction must object to the proposed instruction even though it earlier made a motion for a directed verdict on the ground that the evidence was insufficient to justify sending the matter to the jury.
• Rule 12-216(A) NMRA objections must be specifically targeted

Question 60

NM Rule 11-107 NMRA.

Limits on the NM court in giving jury instructions.

Answer 60

Court SHALL NOT comment to the jury upon the evidence or the credibility of the witnesses.

Question 61

Limits on the federal court in giving jury instructions

Answer 61

Permits the trial judge to comment on and summarize evidence within bounds. May not confuse or mislead the jury or become so one sided as to assume an advocate’s position

Question 62

NM 1-052

NonJury Trials

Answer 62

Case tried by the court without jury or by court with an advisory jury, court shall enter findings of fact and conclusions of law when party makes a timely request. Request must be made no later than 10 days after court announces decision

Question 63

Differences between Federal and NM Nonjury Trials

Answer 63

1. Federal: Allows oral findings of facts and conclusions of law. New Mexico requires writing (or it does not have finality to be a final judgment)
2. Scope of Review:
   2(a). Federal rule: Findings of fact shall not be set aside unless clearly erroneous and due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses.
   2(a)(i). Clearly Erroneous: Finding is clearly erroneous when although evidence to support it, reviewing court on the entire evidence is left with the definite and firm conviction a mistake has been made.
   2(b). New Mexico: Rule does not contain language regarding review of facts in nonjury trials. Case law requires review unless evidence substantially supports findings made by the trial court.
   2(b)(i). Substantial evidence: If there is substantial evidence to support the trial court’s decision, will not disturb on appeal.
   2(b)(i)(1). Substantial evidence is such relevant evidence that a reasonable mind would find adequate to support a conclusion. Viewed in light most favorable to the decision below, resolving all conflicts in the evidence in favor of that decision and disregarding evidence to the contrary.
3. Federal Rule REQUIRE findings and conclusions, while in NM not required unless party REQUESTS them.
4. Must a litigant submit proposed findings and conclusions at the trial level to preserve error on appeal that findings and conclusions are not supported by evidence? Fed: NO; NM: unknown

Question 64

“Directed Verdicts” in Non-Jury Trial: Rule 1-041(b)

Answer 64

Not a directed verdict, per se, but a procedural device, court rules simply on whether or not the party with the burden of proof has met or failed to meet that burden. Decision can be given at the close of plaintiff’s evidence, if there is no burden of proof on the defendant.

Question 65

Directed Verdict 50(a) v. Motion for Dismissal 41(b)

Answer 65

• Rule 50(A) should be granted only when all reasonable minds would agree that the P had failed to prove facts necessary to support a favorable judgment.
• Rule 41(b): Judge is factfinder and passes judgment on whether the P has proved the necessary facts to warrant the relief asked. Will sustain grant of 41(b) so long as decision is rationally based on evidence, even if would have survived a 50(a). View the evidence in the light most favorable to support the findings and judgments of the trial judge

Question 66

Camino Real Mobile Home Park Partnership v. Wolfe

Facts: Breach of warranty case. At end of purchaser’s case, judge dismissed on basis could not prove damages.

Answer 66

Holding:
• Rule 41(b), the court weighs the evidence and judges whether P has proved necessary facts.
• Motion to dismiss may be upheld even though P’s evidence establishes a prima facie case that would have precluded directed verdict under Rule 50(A) in a jury trial

Question 67

Appellate Review of Judge’s Findings of Fact

Answer 67

In a nonjury trial, you don’t have a constitutional right to a jury.
• Federal standard is “clearly erroneous.” Looks at ALL the evidence of both P’s and D’s.
• New Mexico standard is “substantial evidence” – looks at only P’s evidence and asks if it is substantial.

Question 68

Anderson v. City of Bessember

Facts: Title VII sex discrimination in hiring case
District court allowed prevailing parties to submit proposed findings and conclusions. Court then issued its own. Circuit court reversed, condemning this practice.
What is the standard of review when reviewing a judge’s facts and conclusions?

Answer 68

Holding:
• When a judge uses a party’s facts and conclusions, won’t reject per se but will give closer scrutiny (same in NM).
• Court provided initial framework, opportunity to respond, and findings varied.
• Rule 52(a) demands greater deference to the trial court’s findings

Question 69

Constitutional Liberties: New York Times v. Sullivan

Answer 69

the question is whether the evidence is of such convincing clarity required to strip the utterance of First Amendment protection, a question of constitutional law. Heightened burden. Stakes are so high there will be an independent review in cases involving constitutional facts.

Question 70

Lujan v. Casados-Lujan

(Other Fact Finders; Sticky Note Case)

Facts: Mother accuses husband’s new wife of abusing child and files for a TRO. Respondent objects, and DV hearing officer says no process by which to object.
Respondent argued system (with judges who do not independently review) violates due process.

Answer 70

Holding:
• Record on appeal does not support these contentions
• BUT expresses concern over the “sticky note” approval process
• Suggests judge is required to review the hearing officer’s proposed order and any objections to it

Question 71

Buffington v. McGorty

Facts: Child support case arising from divorce.
Court allows 10 days to object to recommendations.
Did district court err in concluding that Section 40-4B-8(C) precluded court from reviewing hearing officer’s recommendations?

Answer 71

Holding:
• Statute lacks objection provision
• BUT due process requires opportunity to submit objections
• Once objections filed, the district court must hold a hearing.
• Nature of the hearing depends on nature of the objections considered
• Record of the hearing must demonstrate consideration of objections give basis for the court’s decision.

Question 72

NM Rule 1-053(E)

Other Fact Finders

Answer 72

• Action w/o jury court shall accept the master’s findings unless clearly erroneous.
• When parties stipulate that a master’s findings of fact shall be final only questions of law arising upon the report shall thereafter be considered.

Question 73

NM Rule 1-053(b)

Answer 73

More restrictive than the scope of the federal rule. Reference to a master is the exception and not the rule. Only when (1) in actions tried with jury issues are complicated (2) without jury except in account and difficult computation only upon showing of some exceptional condition.

Question 74

State ex rel. Office of State Engineer v. U.S.

Facts: Water litigation, appointment of special master to speed decisions. Special Master found that Baca had water rights, state engineer objected to the finding
District court applied clearly erroneous standard and overruled special master

Answer 74

Holding:
• Rule does say “clearly erroneous” but “substantial evidence” is the standard
• Evidence to be considered is evidence that supports the findings in question
• Evidence is not weighted in the analysis, it is regarded as unassailable
• Thus, a special master will only be overruled where there is a total lack of evidence to support his findings

Question 75

Federal Magistrates (statutorily created – governed by court rules) Rules 72 & 73
Rule 72: Pretrial Order

Answer 75

• Non-dispositive (Discovery, Daubert, etc): DJ must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law.
• Dispositive (summary judgment, 12(b)(6)): If written objections, the court reviews de novo
• Parties can consent to a trial or ruling on a dispositive matter

Question 76

Workheiser v. City of Clovis D.N.M.

(Timely and Specific Objections)

Facts: ADA claim, magistrate entered proposed findings and recommended disposition on defendant’s summary judgment motion. Concluded court should enter MSJ in favor of D. P did not file objections to magistrates proposed decision.

Answer 76

Holding:
• 10th Circuit has adopted Firm Waiver Rule
• Waiver rule as a procedural bar need not be applied when the interests of justice so dictate
• [P is pro se and gets a little bit of deference]
• Issues raised for the first time in objections to magistrate’s recommendations are deemed waived