Appellate Decision Making: NM Court of Appeals

Objectives: Offer behind the scenes insight into the nature of the appellate court process, which, in turn, will offer insight into how to practice before the court.  Students will complete this course with:

1. An awareness of high importance of careful trial practice (e.g., preservation of error; preservation of argument; identification of critical issues; development of facts, issues and argument; offers of proof).
2. An understanding of appellate briefing (e.g., quality product; identification of issues; lack of development of fact, issue, argument; identification of standard of review; raising preservation issues; following rules; avoiding silly mistakes; good writing skills; brevity; colleague review).
3. An understanding of how judges approach issues, think, decide cases, and write opinions.  This will include the way in which judges limit issues, decide cases narrowly, try to get to the critical and decisive issue, and struggle with cases that can rationally be decided either way.
4. An understanding of importance of collegiality, and the process of panel discussions, collaborative decision-making, and opinion writing.

Rather than drafting briefs, students will learn what makes up a “good” brief versus a “bad” brief by putting themselves directly in the judges’ shoes.

Course Content: Lectures will include training directly from Judge Bustamante, Judge Sutin, and Professor Barbara Bergman on the concepts underlying appellate review generally, the challenges appellate judges wrestle with daily, as well as the specific processes involved in the administration of the New Mexico Court of Appeals.  Guest speakers will also help introduce students to the functional history and development of our current New Mexico Court of Appeals through their own examples and stories. 

            Each student will also “serve” as a judge on the NM Court of Appeals.  Students will sit in panels of three members.  Each panel will receive three current or past cases (including briefs, excerpts of record proper, and transcripts of proceedings) to resolve. The cases will be actual cases decided in the Court.  The students will conference, pick authorship, and then each author will draft an opinion to circulate to the participants.  Each participant will draft a “participation memorandum” that makes substantive and technical suggestions with respect to the circulating proposed opinion.  At some point the panel members will discuss whether any participant will be writing separately.  A portion of class meeting time will be devoted to discussing common challenges encountered at each step of the opinion drafting process and allow students to receive guidance from and share their experiences and challenges directly with the judges.  Students will be graded both on their primary opinion as well as the opinions they join (or, alternatively, their concurrence or dissent).