Professor Ted Occhialino

Contact Information

Ph.: 505-277-3017
Fax: 505-277-1597
Office: 3122

Ted Occhialino

Emeritus Professor of Law
B.A. 1964, Siena College
J.D. 1967, Georgetown University
Member of the New Mexico and New York Bars

Profile

Ted Occhialino graduated from Georgetown University Law Center in 1967, and immediately turned to teaching. After a year as a teaching fellow at Boston College Law School, he then taught at Syracuse University College of Law until joining the UNM law faculty in 1977. He has focused his teaching and writing on civil procedure and torts. He also frequently teaches Continuing Legal Education programs and is a long-time member of the New Mexico Supreme Court's Rules of Civil Procedure Committee. Both of his daughters are graduates of the UNM School of Law and his son is a graduate of Northeastern University Law School.

Although he took emeritus status in 2012, he continues to teach half-time at the law school.

Courses

Arbitration

Arbitration

Course Description

Arbitration has become an increasingly popular alternative to traditional litigation.

This course is taught using a national casebook supplemented with relevant New Mexico case law and statutes. The focus is on domestic rather than international arbitration and voluntary arbitration rather than arbitration compelled by statute.

After a view of the content and relationship of the federal and state arbitration statutes, the course deals with the functional differences between arbitration and litigation, the drafting of arbitration clauses, the enforcement of agreements to arbitrate, the arbitration process, and the scope and limits of judicial review of arbitrator’s awards.

At the completion of the course, students will have a firm grasp of the benefits and detriments of arbitration so that they can make sound decisions about whether to agree to arbitration instead of traditional litigation. They also will have an understanding of the tactics and strategy involved in arbitrating disputes successfully.

This course is designed for students who will engage in transactional lawyering (drafting contracts, for example) as well as for those who will represent clients before arbitrators. It is not designed to teach persons how to be arbitrators.

Civil Procedure I

Civil Procedure I

Civil Procedure I is an introduction to procedures employed by state and federal courts for resolution of civil disputes. The course will investigate the process of forum selection, the pleadings stage of litigation, the discovery process, and the summary judgment mechanism as a device for terminating litigation prior to trial. In addition, the course will investigate alternatives to traditional civil litigation such as arbitration and mediation.

Civil Procedure II

Civil Procedure II

This course continues the analysis (begun in Civil Procedure I) of the procedural stages of a simple lawsuit, considers special problems raised by complex litigation, and explores alternatives to traditional litigation as a means of resolving disputes.

Course topics include: pre-trial conference; judge and jury selection; judgment as a matter of law; jury instructions and form of verdict; findings of fact and conclusions of law; post-trial motions for new trial and renewed requests for judgment as a matter of law; appeal; motions for relief from judgment; collateral estoppel, res judicata and law of the case; joinder, impleader, intervention, interpleader, declaratory actions and class actions; and arbitration. The focus is on the Federal Rules of Civil Procedure, but New Mexico procedural law is also considered throughout the course.

Civil Procedure: Drafting Civil Litigation Documents

Conflicts of Law

Conflicts of Law

Course Description

Laws and legal systems clash, and when they do, there must be a method for determining which of the competing legal systems is controlling. Conflicts of Law considers the rules used to determine the applicable law when conflicts of law arise. This course considers:

  1. Geographic Conflicts (Choice of Law): e.g., Does the law of Arizona or the law of New Mexico apply when a New Mexican tavern keeper serves an intoxicated person who then injures someone while driving in Arizona?
  2. Vertical Conflicts (Pre-emption): e.g., Does compliance with federal law mandating warnings on cigarette packages pre-empt a product liability action under state law based on inadequate warnings?
  3. Time Conflicts (Retroactivity): e.g., Does a 2005 amendment to the Dram Shop Act apply to a 2004 incident that triggers a lawsuit instituted in 2006?
  4. Judgment Conflicts (Full Faith and Credit): e.g., Must New Mexico enforce a judgment of California's courts if New Mexico concludes that the California court lacked jurisdiction when it rendered the judgment?

This is a practical course.  Students learn to anticipate potential choice of law problems, to draft documents to avoid those problems, and to plan litigation strategy that will maximize the likelihood that the court will apply law favorable to the client to resolve disputes.

Practicum

Practicum

This class introduces you to the work and professional roles of lawyers. It investigates the meaning of professionalism; examines the role of personal and professional values in becoming and being a lawyer; and discusses various aspects of legal practice, including ways to improve your likelihood of success and happiness in your career.

As background, empirical studies show that lawyers who pick their fields carefully based upon their own strengths and needs are happier and do better in the profession overall. Other studies show that multitasking and excessive stress interfere with clear thinking. Indeed, calm focused people are better at what they do, whatever profession they enter. They are also more efficient and work better with others. Calm focused people are also happier and have a better sense of their own priorities and values. This class is designed to:

  • help you learn about the legal system and the professional role of attorneys;
  • help you create space in your life for activities that keep you balanced as a human being;
  • help you control stress and thus enhance your academic and professional success;
  • help you improve your interpersonal skills;
  • allow you to develop a support system at the law school by getting to know some of your peers in an unconventional setting; and
  • allow you to develop a relationship with a faculty member that is supportive both inside and outside the classroom.

Being a lawyer can be all you want it to be and can give you the power to bring about whatever change you want to see. This class will help prepare you to do just that.

Reading & Applying Cases: A View from the Appellate Branch

Reading and Applying Case Law: A View from the Appellate Branch

Course Description

Spring 2011: Professor Occhialino and Justice Ransom

This is a two-hour seminar offered to fourteen first-year students by Professor Occhialino and Justice Richard Ransom, a retired Chief Justice of the New Mexico Supreme Court. The students read groups of published opinions authored by Justice Ransom on such issues as duty under tort law, strict liability, the drafting of jury instructions for successive torts, implied employment contracts, the parol evidence rule in ambiguous contracts, statutory construction, and liberty interests under state constitutional law. Familiarity with these subjects aids the students' progress in the seminar, but neither facility with, nor the teaching of, substantive law is the purpose of the seminar.

The purpose of the seminar is to teach the reader of case law to understand, evaluate, and articulate the rule of law or principle for which the case is read in full. This is a little different than reading casebook extracts for black letter law. Principles of sound reasoning are applied to analyze the rationale of the case. Under the "law of rationality," conclusions must be justified by relevant evidence that is adequate to its purpose. Relevant "evidence," of course, may include statutes, prior authority, principles of law, legal doctrines, and public policy. Ambiguity and vagueness are identified. The student learns to succinctly translate the opinion's essential position into the student's own words and graphics.

The course meets for one hour on Tuesday and Thursday. The first week is devoted to the exploration of various approaches to judging, using terms such as "values," "beliefs," "pragmatism," and "positivism." At the core of this discussion is jurisprudential responsibility for predictability and fairness (treating like cases alike), adherence to principle, and the importance of plausible rationale, both for the loosing party and for the establishment of legal principle. The purpose of the introductory session is to introduce the judge in the context of judicial selection and independence, diversity in how judges may judge, and the temporizing effect of collegiality on a multi-judge appellate court.

On Thursdays, the students are assigned a scenario and problem to solve by reading a specific one or two of the majority opinions, special concurrences, or dissents authored by Justice Ransom. Each student responds by Monday with a five-hundred-word memo, more or less (six-hundred words maximum), and explanatory graphic when appropriate. The student also turns in at that time a list of questions arising from the reading of the assigned case or cases. These are questions of terminology, procedure or judicial practice the student would like discussed, regardless of whether germane to the problem assigned. These questions are reserved for the next Thursday class.

At the Tuesday class, Professor Occhialino engages the students in Socratic dialogue to "think the thing" of the cases that have been read to resolve the assigned problem. He teases out the students' understanding of legal terminology, rules, and black letter law. He develops graphics (outline, diagram or flow chart) by which the pertinent issues can be seen in relation to the general rules, exceptions, and legal terminology that inform the resolution of the problem. Importantly, with respect to the rationale of the assigned case, Professor Occhialino explores whether conclusions are adequately justified and whether the opinion has evaded principles of sound reasoning. Ambiguity and vagueness are identified.

Justice Ransom provides his own exemplar memo or graphic in response to the problem addressed in the student memos. He will, from time to time, distribute internal court memos that give insight into the structure of the opinion in response to the briefs and oral argument of the parties, the conferences of the court following oral argument, responses to the circulation of opinion drafts, and the intra-chambers work of the judge and the judge's clerks.

On Thursday, there may be a reprise of the topics addressed - or missed - on Tuesday. Then, the students' written questions are addressed. Time is reserved for the students each to ask orally one question yet unanswered to the student's satisfaction.

The course is graded based on a student's weekly written assignments, class participation. and a final examination.

Torts

Torts

Torts is an introduction to the system governing civil liability for wrongs. Unlike contract law, in which persons establish standards governing their relations in private agreements, tort law imposes rights and duties between persons even when the parties have not done so by contract. Unlike criminal law which the government (rather than the victim) imposes societal standards through the medium litigation seeking punishment for violation of criminal law, tort litigation is controlled by the injured person who seeks not punishment, but personal compensation via money damages from the person whose violation of the laws of torts cause harm to the victim. Course coverage focuses on the tort of Negligence. As time permits, other torts are analyzed.

Books

WALDEN'S CIVIL PROCEDURE IN NEW MEXICO (2d ed. 1996).

Articles

Examining the Spectrum of Noneconomic Harm: An Introduction, 35 N.M. L. Rev. 391 (2005).

Bartlett Revisited: New Mexico Tort Law Twenty Years After the Abolition of Joint and Several Liability - Part One, 33 N.M. L. Rev. 1 (2003).

Bartlett Revisited: The Impact of Several Liability on Pretrial Procedure in New Mexico - Part Two, 35 N.M. L. Rev. 37 (2005).

Herding Cats: Improving Law School Teaching, 49 J. LEGAL EDUC. 256 (1999) (co-authored with Simon & Fried).

Civil Procedure, in ENCYCLOPEDIA BRITANNICA (co-authored with Herzog).

Representing Mexican Clients in U.S. Courts in Claims of Liability in Industrial Accidents, 4 U.S.-MEX. L.J. 147 (1996).

Statutory Adoption of Several Liability in New Mexico: A Commentary and Quasi-Legislative History, 18 N.M. L. REV. 483 (1989) (co-authored with Schultz).

The Impact of Non-Mutual Collateral Estoppel on Tort Litigation Involving Several Liability, 18 N.M. L. REV. 559 (1989).

Motion Practice in the District Courts, 16 N.M. TRIAL LAW. 215 (1988) (co-authored with Deaton).

Procedural Ramifications of the Bartlett Decision Abolishing Joint and Several Liability, 9 N.M. TRIAL LAW. 37 (1986).

Proper Venue in Personal Injury Actions: The Impact of Frost, 8 N.M. TRIAL LAW. 95 (1985).

Separation of Powers in New Mexico: The Rule-making Power of the New Mexico Supreme Court, 15 N.M. L. REV. 407 (1985).

National Products Liability Law: The Impact on New Mexico Law, 7 N.M. TRIAL LAW. (1984).

Annual Survey of New Mexico Civil Procedure, 14 N.M. L. REV. 17 (1984).

Annual Survey of New Mexico Civil Procedure, 13 N.M. L. REV. 251 (1983).

Annual Survey of New Mexico Civil Procedure, 12 N.M. L. REV. 98 (1982).

Statute and Comments-Article 14, Civil Procedure Law and Rules, MCKINNEY'S SESSION LAWS NEWS OF NEW YORK, Mar. 10, 1974, at A-17 ff.

Contribution, 19 REP. JUD. CONF. ST. N.Y. 217 (1974).