Faculty Teaching Resources UNM School of Law
9-1-2005
Civil Practice Manual Civil Practice Manual
April Land
University of New Mexico - School of Law
, land@law.unm.edu
Jose Martinez
University of New Mexico - School of Law
, martinez@law.unm.edu
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Civil Practice Manual
For
The Clinical Law Program
University of New Mexico School of Law
Professor José L. Martinez
Professor April I. Land
© July, 2003
i
TABLE OF CONTENTS
Civil Practice Manual................... 1
University of New Mexico School of Law..................................................... 1
Introduction..................................................................................................................................... 1
Dedication....................................................................................................................................... 3
I. The Mission and History of Clinical Legal Education ........................................................... 4
Within Legal Education...................................................................................................... 4
In New Mexico ...................................................................................................................5
Bibliography ....................................................................................................................... 8
II. Common Clinical Methodologies......................................................................................... 10
Hypothetical Problems...................................................................................................... 10
Drafting Problems............................................................................................................. 11
Role Playing and Simulation ............................................................................................ 11
Moot Court and Focused Exercises .................................................................................. 11
Observation of Live Proceedings...................................................................................... 12
Client Contact and Representation.................................................................................... 12
Group Learning................................................................................................................. 12
Community Lawyering..................................................................................................... 13
Bibliography ..................................................................................................................... 13
III. Summary of Skills To Be Learned In The Clinic................................................................. 20
Client Interviewing and Counseling ................................................................................. 20
Fact Development and Case Planning .............................................................................. 20
Focused Legal Research and Fact Analysis...................................................................... 20
Legal Drafting................................................................................................................... 20
Courtroom and Administrative Agency Skills.................................................................. 21
File Management Skills .................................................................................................... 21
Law Office Management .................................................................................................. 21
Alternative Dispute Resolution......................................................................................... 22
Use of Computer Technology........................................................................................... 22
Focused Substantive Learning.......................................................................................... 22
Group Lawyering and Networking................................................................................... 22
Career Planning................................................................................................................. 23
Bibliography ..................................................................................................................... 24
Technology and the Law....................................................................................... 27
IV. Lifelong Education and Development.................................................................................. 28
Background....................................................................................................................... 28
MacCrate Report, Student Edition ................................................................................... 29
Introduction........................................................................................................... 29
C. Table of Contents............................................................................................. 34
D. Overview of the Skills and Values Analyze .................................................... 35
E. Career Planning Worksheet.............................................................................. 35
Preliminary Career Planning Worksheet .................................................. 35
Bibliography ..................................................................................................................... 37
ii
MacCrate Report................................................................................................... 37
Recommended law related books:........................................................................ 37
Recommended Law Related Films:...................................................................... 38
V. Professionalism and Civility................................................................................................. 41
Aspects of Professionalism............................................................................................... 41
Professional Education and Training.................................................................... 41
Commitment to High Quality ............................................................................... 41
Expectation of High Quality................................................................................. 42
Rule 16-101, Competence......................................................................... 42
Rule 16-803(A) Reporting Professional Misconduct ............................... 42
The Attorney’s Oath ............................................................................................. 43
Rule 15-103. Qualifications.................................................................................. 43
Personal Professional Responsibility.................................................................... 44
Ethical Conduct..................................................................................................... 45
Professional Perspective ....................................................................................... 45
Attorneys As Decent Advocates........................................................................... 46
Attorneys Must Be Civil....................................................................................... 46
A Lawyer's Creed of Professionalism of the State Bar of New Mexico............... 46
Final Report of the Committee on Civility of the Seventh Federal Judicial
Circuit ....................................................................................................... 49
Participation in Bar Activities............................................................................... 54
Create Individual Professional Plans.................................................................... 54
Awareness of Professional Stress ......................................................................... 55
Support for Pro Bono Public Services.................................................................. 55
Attorneys as Guardians of Constitutional and Individual Rights ......................... 55
Awareness of Public Attitudes and Criticisms...................................................... 55
Participation in Public Education on Law Related Issues .................................... 56
Bibliography ..................................................................................................................... 56
Ethics-Professional Responsibility-Professionalism ............................................ 56
The Role of the Lawyer in the Legal Profession .................................................. 59
Attorney-Client Relationship................................................................................ 60
Law Office Management ...................................................................................... 60
Professional Development for Lawyers................................................................ 61
Ethics..................................................................................................................... 61
VI. Legal Interviewing................................................................................................................ 62
Introduction....................................................................................................................... 62
Interviewing as Process..................................................................................................... 62
Learning to Listen............................................................................................................. 62
The Initial Interview ......................................................................................................... 63
Pre-Interview Preparation................................................................................................. 63
Understanding the Client Base.............................................................................. 63
Client Intake Sheet and Type of Problem............................................................. 64
Conflicts Check..................................................................................................... 64
Do Some Basic Legal Research............................................................................ 65
The Initial Interview ......................................................................................................... 65
Who Should Be There?......................................................................................... 66
iii
Meeting, Greeting, Seating................................................................................... 66
Let The Client Do Most of the Initial Speaking ................................................... 66
Discuss Attorney-Client Essentials Early............................................................. 67
Is The Client Already Represented? ..................................................................... 67
Rule 16-402. Communication With Person Represented By Counsel ..... 68
Let The Client Vent .............................................................................................. 68
Ask for All Documents......................................................................................... 68
Review The Court File.......................................................................................... 68
Fight The Urge To Take Notes............................................................................. 69
Avoid Being Judgmental....................................................................................... 69
Understand Your Legal Limitations ..................................................................... 69
Giving Preliminary Advice................................................................................... 69
Don’t Be Afraid to Admit You Don’t Know........................................................ 70
Explain The Case Acceptance Process................................................................. 70
Write Your Intake Memorandum Immediately ................................................................ 71
Do The Legal Research..................................................................................................... 71
Write the Proposed Acceptance or Non-Acceptance Letter............................................. 71
Follow Up on Case Acceptance Letters............................................................................ 72
Provide A Referral For Rejected Cases ............................................................................ 72
Bibliography ..................................................................................................................... 73
VII. The Case Acceptance Letter ................................................................................................. 74
Introduction....................................................................................................................... 74
Define What Will Be Done............................................................................................... 75
Define And Limit the Scope of Representation................................................................ 75
State Attorney Expectations Clearly................................................................................. 76
State the Legal Costs and Fees Clearly............................................................................. 77
Multi-Semester Cases ....................................................................................................... 78
Personalize Every Acceptance Letter ............................................................................... 78
Follow-up on Every Case Acceptance Letter ................................................................... 79
Send Any Needed Representational Letters ..................................................................... 79
Sample Case Acceptance Letter........................................................................................ 80
VIII. The Non Acceptance Case Letter ......................................................................................... 83
Introduction....................................................................................................................... 83
Sample Case Non-Acceptance Letter ............................................................................... 84
List of Common Referral Agencies.................................................................................. 85
Common Community Legal Services Resources ............................................................. 85
IX. Case Planning and Development.......................................................................................... 88
Fact Development............................................................................................................. 88
Gather the Documents and Physical Evidence ..................................................... 88
Visit the Scene ...................................................................................................... 88
List and Locate Witnesses .................................................................................... 88
Cases Requiring Expert Testimony .................................................................................. 89
Legal Research.................................................................................................................. 89
Network As Needed.......................................................................................................... 90
Develop a Case Resolution Strategy................................................................................. 91
Typical Civil Case Resolution Approaches...................................................................... 91
iv
Setting Time Tables, Goals and Providing for Frequent Review..................................... 93
Case Planning Should Include an ADR Component ........................................................ 93
Case Planning and Development Chart ............................................................................ 94
X. Client Counseling.................................................................................................................. 97
Introduction....................................................................................................................... 97
The Counseling Plan......................................................................................................... 98
The Ethical Dimensions.................................................................................................... 98
Rule 16-201. Advisor............................................................................................ 98
Rule 16-102. Scope of Representation................................................................ 100
Criminal, Fraudulent and Prohibited Transactions................................. 102
Rule 16-104 Communication.............................................................................. 103
Rule 16-301 Meritorious Claims and Contentions ............................................. 103
Rule 16-404 Respect For Rights of Third Persons ............................................. 103
Law and Procedure As a Limitation on Client Options.................................................. 103
Practical, Moral and Social Dimensions......................................................................... 104
Common Counseling Problems Or Issues ...................................................................... 105
Client is Still in the Venting or Emotional Stage................................................ 105
The Real Problem is Not Legal........................................................................... 106
You are the Lawyer. You Decide for Me ........................................................... 106
Get A Second Opinion When Appropriate..................................................................... 107
Defining Alternatives for the Client ............................................................................... 107
Basic Outline For A Counseling Plan............................................................................. 108
Client Counseling Worksheet............................................................................. 108
Counseling Matrix .............................................................................................. 110
Differing Value Systems and “Unwise” Decisions ........................................................ 112
Bibliography ................................................................................................................... 112
Counseling .......................................................................................................... 112
Trial Advocacy.................................................................................................... 114
Mediation............................................................................................................ 114
XI. Alternative Dispute Resolution........................................................................................... 115
Clinical ADR Policy Statement...................................................................................... 115
ADR In the Second Judicial District Court..................................................................... 120
ADR in Child Custody, Visitation and Parenting Issues; The Court Clinic Process, and
other ADR Requirements................................................................................................ 120
Local Rule, LR2-504, Child Custody; Parent Plans; Binding Arbitration ......... 121
Local Rule 1-124 NMRA, Domestic Relations Mediation Act Programs.......... 123
Local Rule 1-125 NMRA, Domestic Relations Mediation Act.......................... 124
ADR in Other Civil Cases in the Second Judicial District Court ................................... 125
Local Rule, LR2-602 Settlement Facilitation Program ...................................... 126
LR2-603, Court-Annexed Arbitration ................................................................ 129
Bernalillo County Metropolitan Court – ADR Procedure.............................................. 139
Settlement Conferences in the New Mexico Supreme Court and the New Mexico Court
of Appeals....................................................................................................................... 140
Rule 12-313 of the New Mexico Rules of Appellate Procedure: ....................... 141
Appellate Court Mediation Brochure.................................................................. 141
What Participants Can Expect ............................................................................ 143
v
Telephone Conference Mechanics...................................................................... 147
Settlement Conferences in the Federal District Court for New Mexico......................... 147
Local Rule, LR-CV 16.2, Settlement Conferences............................................. 148
ADR in New Mexico Tribal and Pueblo Courts............................................................. 148
Peacemaker Court Rules................................................................................................. 149
Rule 1.1, Purpose................................................................................................ 149
Rule 1.3, Establishment of Peacemaker Court.................................................... 149
Rule 1.4, Interpretation....................................................................................... 149
Rule 1.7............................................................................................................... 150
Bibliography ................................................................................................................... 150
Negotiation.......................................................................................................... 150
MacCrate Report................................................................................................. 150
Arbitration........................................................................................................... 152
Court Annexed ADR........................................................................................... 152
Trial Advocacy.................................................................................................... 152
XII. Negotiation and Settlement................................................................................................. 153
Settlement as the Predominant Dispute Resolution Device............................................ 153
Basic Settlement Concepts.............................................................................................. 153
Negotiation Preparation and Planning............................................................................ 154
Client Authority.................................................................................................. 154
Assessing The Bargaining Range ....................................................................... 155
Evaluating Strengths or Weaknesses 0n Each Side of the Case or Issue............ 155
Assessing Attorney Abilities For Each Side....................................................... 156
Defining and Establishing Units of Value.......................................................... 157
Educating Opposing Counsel and the Parties..................................................... 158
The First Offer and the “Why” ........................................................................... 158
The Negotiation Plan .......................................................................................... 159
Common Negotiation Devices............................................................................ 160
Things Not To Do In Negotiations ..................................................................... 161
The Negotiation Process................................................................................................. 161
Excerpt from Legal Negotiation and Settlement, G. Williams (West 1983) ...... 161
Finalizing The Settlement............................................................................................... 163
Bibliography ................................................................................................................... 164
Negotiation.......................................................................................................... 165
XIII. Drafting Basic Pleadings..................................................................................................... 166
The Simple Form Complaint And Answer..................................................................... 166
Form 4-202. Civil Complaint.............................................................................. 166
The Simple Answer............................................................................................. 167
Rule 3-302. Defenses; Answer ........................................................................... 167
Form 4-302, Answer To Civil Complaint........................................................... 168
List of Civil Forms Approved by the New Mexico Supreme Court............................... 170
Article 1. General Provisions.............................................................................. 170
4-101. Notice of [excusal] facts requiring recusal (constitution or code of
conduct)................................................................................................... 170
4-102. Certificate of excusal or recusal. ................................................. 170
4-103. Notice of excusal......................................................................... 170
vi
4-104. Notice of recusal.......................................................................... 170
Article 2. Commencement of Action.................................................................. 170
4-201. Civil complaint............................................................................ 170
4-202. Civil complaint............................................................................ 170
4-203. Complaint in forcible entry or unlawful detainer........................ 170
4-204. Civil summons............................................................................. 170
4-205. Civil complaint for interpleader. ................................................. 170
4-206. Summons. .................................................................................... 170
4-207. Notice and receipt of summons and complaint notice................. 170
4-208. Notice and acknowledgment of receipt of summons and complaint.
................................................................................................................. 170
4-211. Recompiled.................................................................................. 170
4-212. Recompiled.................................................................................. 170
4-213. Attorney's certificate.................................................................... 170
4-221. Certificate of service.................................................................... 170
Article 3. Pleadings and Motions........................................................................ 170
4-301. Answer to civil complaint............................................................ 170
4-302. Answer to civil complaint............................................................ 170
4-303. Motion for judgment on the pleadings. ....................................... 170
4-304. Stipulation of dismissal. .............................................................. 170
4-305. Notice of dismissal of complaint................................................. 170
4-306. Order dismissing action for failure to prosecute. ........................ 170
4-306A. Motion to dismiss action and order. ......................................... 170
4-307. Notice of pretrial conference....................................................... 170
4-308. Order to interplead....................................................................... 170
Article 4. Parties.................................................................................................. 170
4-401. Notice of trial............................................................................... 170
Article 5. Discovery and Pretrial Matters........................................................... 170
4-501. Motion for production. ................................................................ 170
4-502. Order of production. .................................................................... 170
4-503. Subpoena. .................................................................................... 170
4-504. Subpoena. .................................................................................... 170
4-505. Subpoena. .................................................................................... 170
4-506. Scheduling order.......................................................................... 170
4-507. Scheduling order.......................................................................... 170
Article 6. Trials................................................................................................... 171
4-601. Subpoena for jury service............................................................ 171
Article 7. Judgment and Appeal.......................................................................... 171
4-701. Judgment...................................................................................... 171
4-702. Motion for default judgment........................................................ 171
4-703. Default judgment; judgment on the pleadings............................. 171
4-704. Motion to set aside default judgment. ......................................... 171
4-705. Order setting aside default judgment and giving notice of trial date.
................................................................................................................. 171
4-706. Satisfaction of judgment.............................................................. 171
4-707. Notice of appeal........................................................................... 171
vii
4-707A. Appeal bond.............................................................................. 171
4-708. Title page of transcript of civil proceedings................................ 171
4-709. Order declaring judgment of this court satisfied in full............... 171
4-710. Order setting aside judgment, order or writ of this court. ........... 171
Article 8. Special Proceedings............................................................................ 171
4-801. Writ of execution......................................................................... 171
4-801A. Writ of execution...................................................................... 171
4-802. Writ of execution in forcible entry or detainer............................ 171
4-803. Claim of exemptions on execution.............................................. 171
4-804. Order on claim of exemption and order to pay in execution
proceedings............................................................................................. 171
4-805. Application for writ of garnishment............................................ 171
4-806. Writ of garnishment..................................................................... 171
4-807. Answer by garnishee. .................................................................. 171
4-808. Notice of right to claim exemptions (garnishment)..................... 171
4-808A. Notice of right to claim exemptions from execution................ 171
4-809. Claim of exemption from garnishment........................................ 171
4-810. Motion for default judgment against garnishee........................... 171
4-810A. Notice of dispute and request for hearing................................. 171
4-811. Judgment on writ of garnishment, claim of exemption and order to
pay........................................................................................................... 171
4-812. Judgment on writ of garnishment, claim of exemption and order to
pay........................................................................................................... 171
4-813. Default judgment against garnishee. ........................................... 171
4-814. Release of garnishment................................................................ 171
4-815. Sheriff's report of sale of seized property.................................... 171
4-820. Certificate of Dean of law school................................................ 171
4-821. Order approving clinical law student appearance........................ 171
4-830. Writ of certiorari.......................................................................... 171
Article 9. Statutory Proceedings......................................................................... 171
4-901. Three-day notice of nonpayment of rent (Uniform Owner-Resident
Relations Act). ........................................................................................ 171
4-901A. Three-day notice of substantial violation of rental agreement
(Uniform Owner-Resident Relations Act).............................................. 172
4-902. Seven-day notice of noncompliance with rental agreement (other
than failure to pay rent) (Uniform Owner-Resident Relations Act)....... 172
4-902A. Resident's seven-day notice of abatement or termination of rental
agreement (Uniform Owner-Resident Relations Act). ........................... 172
4-903. Thirty-day notice to terminate rental agreement (Uniform Owner-
Resident Relations Act). ......................................................................... 172
4-904. Petition by owner for restitution (Uniform Owner-Resident
Relations Act). ........................................................................................ 172
4-905. Summons and notice of trial on petition for writ of restitution
(Uniform Owner-Resident Relations Act).............................................. 172
4-906. Petition by resident for relief (Uniform Owner-Resident Relations
Act). ........................................................................................................ 172
viii
4-907. Answer to petition for restitution (Uniform Owner-Resident
Relations Act). ........................................................................................ 172
4-908. Withdrawn................................................................................... 172
4-909. Judgment for restitution............................................................... 172
4-910. Withdrawn................................................................................... 172
4-911. Withdrawn................................................................................... 172
4-912. Withdrawn................................................................................... 172
4-913. Writ of restitution (Restitution to owner) (Uniform Owner-Resident
Relations Act). ........................................................................................ 172
4-914. Writ of restitution (Restitution to resident) (Uniform Owner-
Resident Relations Act). ......................................................................... 172
4-915. Petition for post-judgment writ of replevin................................. 172
4-916. Post-judgment writ of replevin.................................................... 172
4-921. Three-day notice of nonpayment of rent (Mobile Home Park Act).
................................................................................................................. 172
4-922. [Thirty-day notice] [sixty-day notice] to quit (Mobile Home Park
Act). ........................................................................................................ 172
4-923. Petition by landlord for termination of tenancy and judgment of
possession (Mobile Home Park Act). ..................................................... 172
4-924. Summons and notice of trial on petition for termination of tenancy
(Mobile Home Park Act). ....................................................................... 172
4-925. Answer to petition for termination of tenancy (Mobile Home Park
Act). ........................................................................................................ 172
4-926. Judgment for possession (Mobile Home Park Act)..................... 172
4-927. Notice of judgment (Mobile Home Park Act)............................. 172
4-928. Notice to lienholder of mobile home judgment (Mobile Home Park
Act). ........................................................................................................ 172
4-929. Writ of restitution (Mobile Home Park Act)............................... 172
4-961. Petition for order of protection from domestic abuse.................. 172
4-961A. Service of process information for petition for order of protection
from domestic abuse and petition for emergency order protection. ....... 172
4-961B. Request for order to omit petitioner's address and telephone
number from petition, to place references to petitioner's address under seal
and for an order providing alternative means of service on petitioner. .. 173
4-962. Response to petition for order of protection from domestic abuse.
................................................................................................................. 173
4-962A. Counter-petition for order of protection from domestic abuse. 173
4-963. Temporary order of protection and order to appear. ................... 173
4-963A. Temporary order of protection against petitioner and order to
appear...................................................................................................... 173
4-964. Order to appeal. ........................................................................... 173
4-965. Order of protection, mutual, non-mutual..................................... 173
4-966. Order of protection against the petitioner. [Withdrawn.]............ 173
4-966A. Withdrawn ................................................................................ 173
4-967. Custody, support and division of property order attachment. ..... 173
ix
4-968. Application to modify, terminate or renew the order of protection
from domestic abuse............................................................................... 173
4-970. Stipulated order of protection against respondent....................... 173
4-971. Stipulated order of protection against petitioner. ........................ 173
4-972. Petition for emergency order of protection from domestic abuse.
................................................................................................................. 173
4-973. Emergency order of protection against respondent..................... 173
pro se Forms for Court Use ............................................................................................ 173
The Complaint and Answer in State District Court........................................................ 174
The Complaint .................................................................................................... 174
Rule 1-008 (A), General Rules of Pleading............................................ 174
Sample Civil Complaint...................................................................................... 175
More Complex Civil Complaint ......................................................................... 178
Rule 1-009. Pleading Special Matters................................................................. 181
Attachments to a Complaint................................................................................ 182
Complaints Seeking Injunctive Relief ................................................................ 182
The Summons ..................................................................................................... 183
Form 4-206. Summons............................................................................ 183
Form 4-207.............................................................................................. 185
Form 4-208.............................................................................................. 186
The Answer......................................................................................................... 189
Rule 1-008, General Rules Of Pleading.................................................. 189
Sample Civil Answer.............................................................................. 190
First Affirmative Defense ............................................................................................... 191
Second Affirmative Defense........................................................................................... 191
Basic Motion Practice..................................................................................................... 193
List of Common Motions................................................................................................ 193
Court Rules Defining New Mexico Motion Practice...................................................... 193
Metropolitan Court Rule 3-301 (G).................................................................... 194
State District Court Rule 1-007 (B).................................................................... 194
Local court rules for the Second Judicial District............................................... 195
Rule LR2-123.......................................................................................... 195
Rule LR2-124.......................................................................................... 196
Motions Requiring Use of Court Approved Forms ........................................................ 197
Sample Forms ................................................................................................................. 197
Sample-Commonly Used Motion Form.............................................................. 197
Sample-Request for Hearing............................................................................... 200
List of Parties Entitled To Notice ....................................................................... 201
How to File a Motion/Request Hearing in 2nd Judicial District Court .......................... 203
Pre-Filing Activities............................................................................................ 203
Actual Filing Procedures..................................................................................... 204
Post Filing Activities .......................................................................................... 205
Form of Papers and Attachments to Pleadings................................................... 206
FRCP, Rule 7...................................................................................................... 206
Local Civil Rules United States District Court District of New Mexico............ 206
Local Rule LR-Civ. 7.............................................................................. 206
x
Withdrawal of Documents.............................................................................................. 209
Bibliography ................................................................................................................... 209
Pre-Trial Practice................................................................................................ 209
Trial Practice....................................................................................................... 210
Appellate Practice............................................................................................... 210
XIV. Letter Writing.................................................................................................................. 212
Letters as a Basic Part of Practice................................................................................... 212
The Importance of Legal Letters..................................................................................... 212
List of Common Legal Letters........................................................................................ 213
Basic Criteria for Legal Letters....................................................................................... 213
The Sandwich as a Model for Legal Letters................................................................... 214
Multiple Audiences and Legal Letters............................................................................ 216
The Natural and Inevitable Audience............................................................................. 216
The Potential Impact of Automatically Sent Copies....................................................... 218
The Problem of Surprise or Future Audiences ............................................................... 218
Bibliography ................................................................................................................... 219
XV. Practicing Family Law in the Second Judicial District of New Mexico............................. 221
Cases Involving Domestic Violence............................................................................... 221
Actions for Dissolution of Marriage or Separation......................................................... 222
Starting an Action for Dissolution of Marriage or Separation............................ 222
The Petition......................................................................................................... 223
Filing the Petition.................................................................................... 224
Service of the Petition and Summons..................................................... 225
Interim Relief...................................................................................................... 225
Parenting Plans and Referrals to the Court Clinic.............................................. 225
Financial Relief................................................................................................... 226
Discovery............................................................................................................ 227
Requesting a Trial and the Necessary Exchange of Information........................ 227
The Final Decree................................................................................................. 228
Final Decree of Dissolution of Marriage ............................................................ 228
Marital Settlement Agreement............................................................................ 228
Parenting Plan..................................................................................................... 229
Child Support...................................................................................................... 229
Qualified Domestic Relations Orders (QDROs)................................................. 229
Uncontested Proceedings................................................................................................ 230
Default................................................................................................................. 230
Agreement of the Parties..................................................................................... 230
Flow Of A Domestic Relations Case.............................................................................. 231
Common Legal Forms .................................................................................................... 232
Domestic Violence Forms................................................................................... 232
Dissolution of Marriage and Custody/Parenting Forms ..................................... 232
Interim Forms...................................................................................................... 232
Final Decree........................................................................................................ 232
Domestic Violence Forms................................................................................... 233
Form 4-961, Petition for Order of Protection from Domestic Abuse..... 233
Form 963, Temporary Order of Protection and Order to Appear........... 236
xi
Form 4-965. Order of protection, mutual, non-mutual........................... 238
Sample Petition for Dissolution of Marriage.......................................... 241
Domestic Relations Information Sheet (Civil Form 4A-101)................. 248
Domestic Relations Cover Sheet (Civil Form 4A-101).......................... 249
Summons (Civil Form 4-206)................................................................. 250
Temporary Domestic Order (Form 4A-112)........................................... 252
Motion for Free Process ( LR2-Form A)................................................ 254
Affidavit of Indigency............................................................................. 255
Order for Free Process (modified LR2-Form D) ($30 court mediation fee
added)...................................................................................................... 259
Rule 1-099 Certificate (modified LR2 Form J) (“proceeding without
costs” added)........................................................................................... 260
Interim Forms.................................................................................................................. 261
Interim Monthly Income And Expense............................................................... 261
Interim Order ...................................................................................................... 265
Community Property Schedule....................................................................................... 267
Separate Property Schedule ............................................................................................ 270
Simple Final Decree 4A-341 .......................................................................................... 273
Final Decree With Children 4A-342............................................................................... 274
Sample Final Decree Of Dissolution Of Marriage ......................................................... 277
Sample Marital Settlement Agreement........................................................................... 281
Sample Parenting Plan.................................................................................................... 288
Child Support Worksheet A............................................................................................ 294
Bibliography ................................................................................................................... 295
XVI. Custody Options for Non Parent Caregivers .................................................................. 296
Legal Framework............................................................................................................ 296
Legal Custody is Decision Making Power.......................................................... 296
Parents have a Constitutionally Protected Fundamental Right to Parent ........... 296
Legal Mechanisms For The Transfer Of Authority........................................................ 297
Caregiver’s Authorization Affidavit................................................................... 297
Power of Attorney............................................................................................... 297
Guardianship....................................................................................................... 298
Parental Appointment of a Guardian of a Minor.................................... 298
Court Appointment under the Probate Code........................................... 298
Under the Kinship Guardianship Act...................................................... 299
Initiating an Action for Kinship Guardianship ........................... 299
The Petition for Kinship Guardianship....................................... 300
Notice and Service...................................................................... 302
Emergencies and Temporary Guardianships.............................. 302
The Conduct of the Hearing........................................................ 303
Standard of Proof for Revocation............................................... 303
Impact on Income of Caretakers of Children on Welfare/TANF303
Legal Custody......................................................................................... 304
Adoption ................................................................................................. 304
Custody Continuum-Non-Parents................................................................................... 305
Sample Forms ..................................................................................................... 306
xii
Caregiver’s Affidavit.............................................................................. 306
Power of Attorney................................................................................... 309
Petition for Kinship Guardianship.......................................................... 310
Emergency Motion for Appointment of Temporary Guardian............... 313
Temporary Kinship Guardianship Order................................................ 316
Order Appointing Permanent Kinship Guardian .................................... 318
1
Introduction
This Civil Practice Manual is a combination of many different teaching forces,
influences, and experiences within the various clinical law programs that have been taught over
the previous 30 years at the University of New Mexico School of Law. Certain sections have
their origins in some of the early teaching materials that were created in the first civil law clinics
at the law school. These materials have evolved over time and have in turn combined with other
more modern teaching materials in more recent clinical programs. Other early influences and
contributing experiences that are present in the Manual’s order and emphasis are the teaching
experiences and materials that were available and regularly used in the 1970’s and 1980’s that
were produced by the national office of the Legal Services Corporation. These teaching and
training materials were in part generated and used regularly by law professors in many early
clinical law programs. Also evident in the manual is the influence of the first major law text for
clinical legal education, The Lawyering Process, (Foundation Press, 1978), by early Legal
Services pioneers and then clinical law pioneers, Professor Gary Bellow (Harvard) and Professor
Bea Moulton (Arizona State University). The influence of these materials is obvious in the
Manual’s traditional organization and emphasis on interviewing, counseling, case planning and
development, negotiation, and settlement as key legal skills. More modern influences on the
Manual are evident in the manuals reliance and use of the extremely influential MacCrate
Report, Legal Education and Professional Development –An Educational Continuum, (ABA,
1992), which should be required reading for all law students and attorneys. Also evident in the
Manual is the more modern teaching emphasis on legal ethics and professionalism, which is
evident throughout the manual but particularly in the sections and materials on ethics, civility,
and professionalism. These last sections and materials are believed to be of particular
importance for law students in contemporary clinical legal education. The other more modern
influence in the materials is the presence and emphasis on ADR as a more viable dispute
resolution device or alternative. The sections on the case acceptance letter, the non-acceptance
letter, drafting pleadings, letter writing, and common practice areas are included to address
recurring teaching areas and skills needs within existing civil clinical law programs at the
University of New Mexico.
The materials in this Manual are particularly indebted to the teaching, discussion, debate,
organization, and collaboration of the many law professors who have taught in civil law clinics at
the University of New Mexico School of Law over the past 30 years. In particular, the authors
would like to acknowledge the contributions over the years of Professor William T. MacPherson,
Professor Helene Simpson, Professor J. Michael Norwood, Professor Richard A. Gonzales, and
Professor Michelle Herman. Many other professors have also contributed to the materials and
comments made in the manual and their contributions are also acknowledged. A kind word of
appreciation and acknowledgement is also made for the editorial, technical, and word-processing
support of Joseph Blecha, Dianna Ortiz, and Heather Williams. We also would like to
acknowledge the generosity and cooperation of Professors J.P. Ogilvy and Karen Czapanskiy for
graciously allowing us to use certain listings from their excellent clinical bibliography, Clinical
Legal Education: an Annotated Bibliography (2ed.), Clin. L. Rev., Spring, 2001, for use in
certain of the bibliographies compiled in these materials. This practice manual would not be
possible without the help and cooperation of all these fine colleagues.
2
The materials contained in the Civil Practice Manual are designed primarily for the use of
law students enrolled in the various civil practice clinics at the University of New Mexico Law
School. The materials, comments, and discussions are kept deliberately simple and general.
These materials are purposefully designed as a starting point for law student discussion and
application of the various lawyering skills and values addressed in the manual. To the extent the
materials are basic or possibly repetitive of materials, particularly rules and statutes, that may
have been previously studied by some students in other law courses, apologies are given.
However, experience has shown that not all clinical students have taken the same courses and
discussions of the same basic materials in a clinical context have revealed many new dimensions.
The decision was to include basic materials, rules, statutes, and concepts to insure that all
students in the law clinic have the same basic grasp of core concepts within each area addressed.
Students in the Law Clinic also tend to re-read many of these previously studied materials with a
new appreciation for detail. These materials are intended as a starting point for discussions and
student learning of core skills and values involved in lawyering. Additional references and
materials containing more in depth discussions are provided in the form of a general
bibliography at the end of most sections. These bibliographic references are provided to allow
the student to learn more about each core skill or value addressed in the Manual. Finally, as in
most law professor statements or writings, many of the comments, observations, charts, and
sample documents are intended to provoke thought, discussion and learning on the part of the
student. Students should use these materials as a basic background, checklist and practice guide
for each of the many inter-related skills they must begin to master during their short visit in the
law clinic. The materials also tend to track the basic pattern of classroom discussions within the
various civil law clinics. Law students are encouraged to read the materials as needed and in any
order that is useful to them. It is hoped these materials help students organize their learning and
that they also help them as they start their introduction to professional practice and begin their
journey on the path of career long learning and professional development.
Professor Jose L. Martinez
Professor April I. Land
3
Dedication
This Civil Practice Manual is dedicated to Professor William T. MacPherson, the
founder and first Director of Clinical Law Programs at the University of New Mexico, for his
foresight, hard-work, dedication, and commitment to high quality legal representation that got
the UNM Clinical Law Program off to a solid professional and academic start. His early efforts
and vision insured that the UNM Clinical Law Program would become a nationally recognized
leader in clinical legal education. Professor MacPherson, started the Clinical Law Program in
1970 He retired in July 2002. This Manual is also dedicated to the memory of Professor Helene
Simpson, an early UNM clinical law professor who died in 1983. Professor Simpson, one of the
early women attorneys in the New Mexico Bar, taught law students, lawyers and fellow
professors that it was possible to be a very competent and dedicated advocate and still be a
decent and dignified human being. Both of these professors serve as excellent role models for all
clinical law students and clinical faculty members.
AUTHORIZATION TO COPY AND USE MATERIALS
FOR EDUCATIONAL PURPOSES
Authorization is hereby given to other clinical law programs and clinical law professors
to copy and use these materials or portions of these materials for educational purposes within
their respective clinical law programs. The only conditions to such use are that the materials be
acknowledged and that the copies be furnished to law students at actual reproduction cost.
4
I. The Mission and History of Clinical Legal Education
The mission of Clinical Legal Education is to teach the basic legal skills and professional
values that a law student needs to evolve from law student to competent lawyer and professional.
Within legal education, Clinical Legal Education is a bridge between the law school and the
profession. Clinical Legal Education seeks to accomplish this mission in a manner fundamentally
different from traditional legal education by teaching about skills and values in a real world
setting. Clinical Legal Education builds on the students’ previous legal education and
knowledge, and serves as a practical introduction to the legal profession. The University of New
Mexico School of Law has a long standing and distinguished Clinical Program that seeks to get
students started on the path of lifelong education and professional development.
In general, traditional legal education is delivered in a classroom setting by professors
using the Socratic method. The majority of traditional legal education focuses on reading and
discussing appellate cases. This method of traditional legal teaching gives students important,
substantive, and procedural knowledge. More recently, skills courses and problem-based courses
have been added to the traditional curriculum to enrich the learning experience. However,
traditional classes and problem or skills classes do not adequately prepare law students for the
many demands of legal practice. Clinical Legal Education has evolved to meet these professional
demands and to add new and critical dimensions to the learning experience.
Clinical Legal Education generally provides the typical law student with his or her first
introduction to clients, courts, adverse parties, adverse counsel, and to problems that do not fit
nicely between two appellate cases. For the first time the student has individual professional
responsibility for another human being. Law clinics seek to do what medical schools have been
doing consistently in their clinics, which is to teach necessary professional and personal skills in
a real world setting. Clinical Legal Education is the beginning and introduction to the student’s
future professional career. Within the law school, Clinical Legal Education provides the critical
link between the theory and learning of the traditional classroom and the demands of modern
practice.
Clinical Legal Education, like all general legal education, also has some inherent
limitations. The major limitation facing contemporary Clinical Legal Education is that there is
too much to teach about lawyering and professionalism and this must be done in a very limited
period of time. With few exceptions, students come into a clinical law setting without much
practical knowledge or experience. Clerkships, summer jobs, and prior life or consumer
experiences are often a mixed blessing. Law students also generally arrive in law clinics in the
last year or two of their formal education, and there is no well-developed program of pre-clinical
courses to help prepare them for their clinical experience. Within the law clinic, most clinical
courses are offered for a very limited number of credit hours and generally are restricted to a
one-semester experience. Even a year long clinical program would have difficulty in addressing
all the basic legal skills and values needed by young lawyers. While clinical legal education
serves as a valuable and essential transition or bridge between the law school and practice, true
professional or practical education merely starts in the law clinic.
In order to better understand the mission and current status of clinical legal education,
one has to consider the general history of practical learning within legal education. The
5
following general summary should be helpful. In the very early years of the American legal
experience, if one wanted to become a lawyer, that person learned about law and lawyering the
same way carpenters learned about carpentry: they apprenticed themselves. Apprenticeships and
self-education were the primary forms of legal education until the 1870's or later. The inspiring
story of Abraham Lincoln studying law by candlelight and learning during the day from other
established lawyers is part of the enduring mythology of early American legal education. With
the arrival of the Langdell method of studying appellate case law and the establishment and
standardization of American law schools which occurred after 1870 or so, practical learning
gradually died out as a method of legal training for lawyers. By the 1940's and 1950's formal,
degree based legal education had completely supplanted practical learning as a vehicle for legal
study. In New Mexico admission to the bar by practical training or apprenticeship ended in the
1930’s.
New Mexico established the UNM Law School in 1949 under the bleachers of
Zimmerman Stadium and like other American law schools; its method of educating lawyers was
the Langdell model and the Socratic method. Practical legal education almost ceased to exist as a
teaching methodology. Specific substantive courses, legal theory and a rigorous program of
exams and exercises in “how to think like a lawyer” completely replaced practical learning in
schools. The only exceptions seemed to be volunteer work or summer clerkships. Practical legal
training for lawyers became the role of law firms and the courts. Law schools did not want to be
viewed as “technical or vocational schools.” Practical legal education simply took place after
graduation. In a simpler world with fewer lawyers, this bifurcated system of legal education
probably worked. It probably also worked best in a legal community with large law firms which
served as mentoring agencies. However, the world gradually changed and with it, attitudes in the
academic community started to change. More law schools, more students, the need for more
lawyers, along with a possibly inevitable feeling that legal education had become very
disconnected with the “real world,” helped to contribute to a new interest in “practical learning.”
This new interest in “practical learning” was slow in coming and slow in catching on in
American law schools.
In the 1960’s the advent of the Civil Rights era, the War on Poverty, the legal services
movement, and increasing numbers of lawyers, led to new discussions about the role of lawyers
in society. This in turn generated and facilitated new interest in the merits of practical learning.
Law faculties also began to critically discuss the role of law schools within their communities
and the legal profession. These same discussions and forces continue to play a role in the
evolution of clinical education. By the late 1960’s, the stage was set for the start of the clinical
legal education in American law schools. The history of clinical programs at the University of
New Mexico is a good example of this gradual evolution.
In 1955, the law faculty of the University of New Mexico adopted a rule requiring 20
hours of volunteer service by law students at the Albuquerque Legal Aid Society. This rule made
practical experience a graduation requirement and public service a stated law school goal.
However, it would be another 15 years before formal clinical legal education was taught at the
law school. In 1970, the UNM Law School established a required three credit-hour course in
Clinical Education under the direction of Professor William T. MacPherson, one of the pioneers
in the modern clinical law movement within the United States. In this new clinical program, only
students on Law Review were exempt from the clinical requirement. Eventually, with the aid of
6
several CLEPR grants, the UNM Clinical Law Program evolved from a small three credit-hour
course to the present six-credit hour mandatory clinical requirement. These early CLEPR grants
also helped fund the move of student offices from hallways into a separate dedicated clinical
facility. Over the years, clinical facilities have been improved, expanded, and modernized to the
point where they are a model teaching facility. In addition to Professor MacPherson, early
clinical law professors were Professor Michael Norwood (1971), Professor Helene Simpson
(1972), Professor Jose L. Martinez (1974), Professor Richard Gonzales (1976), and Professor
Michelle Herman (1977).
During the next 30 years, the UNM Clinical Law Program became a nationally
recognized leader in clinical legal education, and a model program distinguished for the quality
of its education and for its program innovation and leadership. Some of the more notable
innovations during these years included an experimental program providing legal services in
Northern New Mexico, Centro Legal Criminal Defense Clinic, Semester in Practice (SIP), a
year-long clinic, an Employment Discrimination Clinic, a Criminal Defense Clinic, a Family
Law Clinic, various Community Lawyering Clinics and, more recently, the Southwest Indian
Law Clinic.
The features distinguishing Clinical Legal Education at the University of New Mexico
from most other clinical programs include:
o a required six credit hour clinical program for all law students
o a rigorous and innovative program of field experiences
o a rigorous and required classroom component for all clinical courses
o a modern and dedicated clinical facility
o a variety of clinical courses offering clinical experiences in community lawyering,
general civil practice, criminal law, and Native American Law
o live client clinics
o courses taught by tenured or tenure track professors
o an emphasis on the use of computer technology
o a low student/teacher ratio in all clinical courses
o intensive one-on-one supervision of student casework and projects
o full staff and professional support for all law students and professors
o student practice rules in all state, federal, and many tribal courts throughout New
Mexico.
In the last 30 years, Clinical Legal Education has increasingly become accepted and
established in American law schools. While there is clearly room for additional progress and
expansion, the outlook for clinical legal education, and for the expansion of the clinical
methodology is positive. From the student’s point of view, Clinical Legal Education is an
increasingly valuable and welcome part of their formal education. Experience has taught that
with the perspective of many years in practice, with rare exceptions, most law school alums
fondly remember two law school experiences: their first year courses and their clinical
experiences. The Clinical Law Program at the University of New Mexico School of Law
continues to be a national leader in Clinical Legal Education.
An additional early support to the clinical education movement, which was clearly an
emerging national movement was the approval and support that clinical education received from
7
the various state courts, particularly appellate courts when these courts adopted student practice
rules. The New Mexico Supreme Court was one of the earliest state courts to adopt a universal
student practice rule.
An example of the typical student practice rule in the New Mexico courts is as follows:
Rule 1-094 NMRA,RULES OF CIVIL PROCEDURE FOR THE
DISTRICT COURT.
RULE 1-094 Clinical Education; University of New Mexico School
of Law.
Current through November 8, 2001.
Purpose. To permit a clinical program for the University of New
Mexico School of Law.
Procedure. Any law student admitted to the clinical program at
the University of New Mexico School of Law shall be authorized
under the control and direction of the dean of the law school to
advise persons and to negotiate and to appear before the courts
and administrative agencies of this state, in civil and criminal
matters, under the active supervision of a member of the state
bar of New Mexico designated by the dean of the law school. Such
supervision shall include assignment of all matters, review and
examination of all documents and signing of all pleadings
prepared by the student. The supervising lawyer need not be
present while a student is advising a client or negotiating, but
shall be present during court appearances. Each student in the
program may appear in a given court with the written approval of
the judge presiding over the case and shall file in the court a
copy of the order granting approval. The order approving the
practice by such student shall be substantially in the form
approved by the Supreme Court. The law school shall report
annually to the Supreme Court.
Eligible students. Any full-time student in good standing in the
University of New Mexico School of Law who has received a
passing grade in law school courses aggregating thirty (30) or
more semester hours (or their equivalent), but who has not
graduated, shall be eligible to participate in a clinical
program if the student meets the academic and moral standards
established by the dean of the school.
[As amended, effective May 1, 1986; January 1, 1995.]
8
Bibliography
Aiken, Jane H., Provocateurs for Justice, 7 CLIN. L. REV. 287 (2001).
Amsterdam, Anthony G., Clinical Legal Education - A 21st Century Perspective, 34 J. LEGAL EDUC.
612 (1984).
Bellow, Gary & Johnson, Earl Reflections on the University of Southern California Clinical Semester, 44
S. CAL.L. REV. 664 (1971).
Bellow, Gary & Randy Hertz, Clinical Studies in Law, in Looking at Law School: A Guide from the
Society of American Law Teachers 340 (Stephen Gillers ed., 4
th
ed. 1997)
Blaze, Douglas A., Déjà Vu All Over Again: Reflections on Fifty Years of Clinical Education, 64 TENN.
L. REV. 939 (1997).
Cahn, Edgar S., Remarks of Edgar S. Cahn Accepting the 1997 AALS Section on Clinical Legal
Education Award for Outstanding Contributions to Clinical Legal Education, 3 CLIN. L. REV.
253 (1997).
Cook, Nancy, Legal Fictions: Clinical Experiences, Lace Collars, and Boundless Stories, 1 CLIN. L.
REV. 41 (1994).
Cruz, Christine Zuni, [On the] Road Back In: Community Lawyering in Indigenous Communities, 5
CLIN. L. REV. 557 (1999).
Dubin, Jon C., Clinical Design for Social Justice Imperatives, 51 SMU L. REV. 1 (1998).
Eagly, Ingrid V., Community Education: Creating a New Vision of Legal Services Practice, 4 CLIN L.
REV. 433 (1998).
Epstein, Richard A., Legal Practice & Clinical Programs, 1 GREEN BAG 2D 401 (1998).
Erlanger, Howard S. & Gabrielle Lessard, Mobilizing Law Schools in Response to Poverty: A Report on
Experiments in Progress, 43 J. LEGAL EDUC. 199 (1993)
Feldman, Marc, On The Margins of Legal Education, 13 N.Y.U. REV. L. & SOC. CHANGE 607 (1985).
Frank, Jerome, A Plea for Lawyer-Schools, 56 YALE L.J. 1303 (1947).
Frank, Jerome, Why Not a Clinical Lawyer-School?, 81 U. PA. L. REV. 907 (1933).
Frug, Gerald E. & John D. Hamilton, Jr., Bea Moulton, In Memoriam: Gary Bellow, 114 HARV. L. REV.
409 (2000).
Grossman, George S., Clinical Legal Education: History and Diagnosis, 26 J. LEGAL EDUC. 162 (1974).
Interest Practice, 58 B.U. L. REV. 337 (1978)
Laflin, Maureen E., Clinical Legal Education Gets High Marks, ADVOC., Sept. 1997, at 9.
9
López, Gerald P., Training Future Lawyers to Work with the Politically and Socially Subordinated: Anti-
Generic Legal Education.
MacCrate, Robert, Educating a Changing Profession: From Clinic to Continuum. 64 TENN. L. REV.
1099 (1997).
MacCrate, Robert, Introduction: Teaching Lawyering Skills, 75 NEB. L. REV. 643 (1996).
McDougall, Harold A., Lawyering and Public Policy, 38 J. LEGAL EDUC. 369 (1988).
Meltsner, Michael & Schrag, Phillip G., Report from a CLEPR Colony. 76 COLUM. L. REV. 581 (1976).
Meltsner, Michael & Schrag, Phillip G. Scenes from a Clinic, 127 U. PA. L. REV. 1 (1978).
Menkel-Meadow, Carrie, The Legacy of Clinical Education: Theories About Lawyering, 29 CLEV. ST. L.
REV. 555 (1980).
Moliterno, James E., Legal Education, Experiential Education, and Professional Responsibility, 67
FORDHAM L. REV. 2377 (1999).
Norwood, J. Michael, Requiring a Live Client, In-House Clinical Course: A Report on the University of
New Mexico Law School Experience, 19 N.M.L. REV. 265 (1989).
Ogletree, Jr., Charles J., A Tribute to Gary Bellow: The Visionary Clinical Scholar, 114 HARV. L. REV.
421 (2000).
Quigley, William P., Introduction to Clinical Teaching for the New Clinical Law Professor: A View from
the First Floor, 28 AKRON L. REV. 463 (1995).
Redlich, Allen, Perceptions of a Clinical Program, 44 S. CAL. L. REV. 574 (1971).
Report of the Committee on the Future of the In-House Clinic, 42 J. LEGAL EDUC. 508 (1992).
Shepard, Randall T., From Students to Lawyers: Joint Ventures in Legal Learning for the Academy,
Bench, and Bar, 31 IND. L. REV. 445 (1998).
Sonsteng, John & John Cicero, Resa Gilats, Roger Haydock, John McLacchlan, Learning by Doing:
Preparing Law Students for the Practice of Law - The Legal Practicum, 21 WM. MITCHELL L.
REV. 111 (1995).
Spiegel, Mark, Theory and Practice in Legal Education: An Essay on Clinical Education, 34 UCLA L.
REV. 557 (1987).
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Perspective, 5 MD. J. CONTEMP. LEGAL ISSUES 381 (1994).
Wizner, Stephen, Beyond Skills Training, 7 CLIN. L. REV. 327 (2001).
10
II. Common Clinical Methodologies
Clinical Legal Education is a teaching methodology that seeks to accomplish the same goal
as more traditional legal education: to prepare law students to become competent, ethical, and
professional attorneys. The teaching methods used in clinical legal education are designed to
help the student meet the basic demands of live client representation and professional
development. These demands include:
• the challenges of representing actual clients
• assuming professional responsibility for each client
• developing a focused application of legal research program for each client
• learning and adapting to professional advocacy
• conducting factual discovery and fact development
• dealing with an adverse party and opposing counsel
• developing a case resolution plan or strategy
• devising and mastering some type of dispute resolution mechanism
• advising the client to consider legal and practical alternatives
• learning to engage in personal and professional conduct that falls within accepted ethical,
professional and institutional norms
Additionally, clinical legal education seeks to develop: student familiarity with the legal
profession and its processes, student confidence and ability, the need for personal and career
development; and most importantly a sense of professional public service. An important
educational perspective for the law student is that while much will be learned during his or her
visit in the law clinic, the majority of professional and personal development will occur in the
early part of their professional lives. A good clinical education gives students a good start on the
process of career development.
Within the law clinic, students will encounter some or all of the following teaching devices.
Hypothetical Problems—The simplest teaching device is the assignment of some form
of hypothetical fact problem with the requirement that a solution be developed and then closely
analyzed and evaluated. This is very similar to the common series of questions or problems
students have encountered in casebooks. It is also similar to a professor’s Socratic questions,
where the professor typically seeks to bend the facts or law a bit to illustrate a fundamental
concept. In a clinical setting, the same scenario is followed, however, the real education is in the
application and analysis of real world factors. Real world factors would include the practical
consequences of human emotions and shortcomings, the reality of a zealous opposing counsel,
the reality of a crowded, expensive and maybe hostile court system, the reality of poverty, and
the reality of difficult time constraints. Some hypothetical assigned problems are designed to
focus on a limited skill, such as interviewing, counseling, or problem solving. In most clinical
settings, hypothetical problems are the basis of either individual discussions or ideally, class
discussions, where the varying student and faculty approaches illustrate the variety of ways one
can approach a common problem or procedure.
11
Drafting Problems—Drafting Problems are a variation of Hypothetical Problems. Here
the student is asked to draft a particular legal document or pleading and the resulting student
product is then discussed in individual conferences or in a group setting. The test for the student
is whether he or she has a command or working understanding of the underlying substantive or
procedural law and whether the student’s draft complies with local rules and pleading
requirements. It is assumed that the student already has the necessary legal research and writing
skills. The learning in this setting is usually whether the law student can move from a
generalized, appellate form of legal writing, to a more focused and simple form of legal writing.
Simplicity, compliance with local rules and pleading conventions, and an appropriate level of
professional advocacy are usually the central themes in these exercises. These types of
assignments are typically best-addressed and evaluated in individual conferences or a group
setting. The goal in these types of assignments is to teach and develop specific and error free
drafting, which is a critical legal skill.
Role Playing—Role Playing is a very commonly used clinical method. It is the core
activity in clinical simulation exercises. In role-plays, students are assigned to assume and play
the role of a client, lawyer, witness, opposing counsel, judge or any other player in a problem or
case. Students can be assigned competing or conflicting roles and the actual simulation or
performance can be performed out of class or in class. The clinical professor can either play one
of the roles or serve as referee, judge, neutral observer, or de-briefer for the exercise. Typically,
students are given a fixed set of facts, the applicable law, and an assigned role (e.g. be difficult,
obstinate, outraged, reluctant, etc.) in order to focus the performance and resulting discussion on
a particular practical problem, reality, or consequence. Moot court, pre-trial, trial practice, and
interviewing and counseling courses are typically built around these types of exercises. Role
playing exercises that are conducted outside the classroom are typically debriefed in a group
setting. This is particularly useful when different groups of students are performing the same
assigned problem or roles. Students may be asked to submit to the clinical professor or fellow
students a written description or programmed assessment of the dynamics and outcome of the
assigned problem or role. These written assessments can then be shared or contrasted as part of
the training exercise. Video or audio taping of student performances can be used as an effective
monitoring or replay device. In-class-simulations offer the added dimension of spontaneity and
increased professorial control, and a better stop and start ability than out of class simulations.
The in-class setting allows the clinical professor more control and also allows for different
students to be called on to play the same or different roles. The critical factor in these exercises is
that the student actors must have a clearly defined role and they must stay in role. Role playing
exercises are at the core of simulation clinics. Role playing exercises are also a common and
excellent device for use in live client clinics as a complement or supplement to actual cases.
Role-playing and simulation are often integrated with group case discussions or grand rounds.
Moot Court and Focused Simulation Exercises—Here the clinical exercise can be
approached in the same manner described in the role-playing section. However, in a live client
clinic, students and their clinic professor rehearse and prepare for actual court or case
proceedings. If a particular case requires a motion hearing, a negotiation session, a meeting with
opposing counsel, a witness interview, or any other process or activity that can be simulated, an
individual or group simulation or dress rehearsal is a useful device to prepare the inexperienced
or nervous law student. All necessary roles can be assigned and the exercise run over and over as
needed. This type of exercise can be particularly useful in assisting the unfamiliar or nervous law
12
student adapt to the courtroom or administrative environment. It also tends to minimize the
possibility of law student errors in the actual proceeding. The use of videotapes of previously
recorded proceedings or of actual student performances in the assigned exercise is also very
common.
Observation of Live Proceedings within the law clinic, Students are encouraged or
required to observe common types of legal procedures such as a trials, motion hearings,
arbitrations, depositions, or settlement conferences. Students may be required to do this as
individuals or a part of a group. The student should attend one or more of these in some other
case before participating in a simulated exercise or actual proceeding. Getting to know the
temperament or mannerisms of a judge or opposing counsel can usually be determined by
observation.
Client Contact and Representation—The best form of learning in clinic setting is live
client representation. By dealing directly with clients, students learn many of the common
challenges and rewards that clients present. Students get first hand experience with fellow human
beings under legal and personal stress and learn about the demands placed on a lawyer. No
amount of reading or simulation can recreate the nuance and vagaries of client representation.
Clients can be individuals, groups, or entities. In a live client clinic students have to deal with
another human being in a real time, real world environment. The client and their legal problems
are real—students are required to learn to help clients try to resolve these problems in a practical,
legal fashion. Student preparation and focus are of necessity at a very heightened level. The
professor acts as mentor and supervisor to help the student fashion a course of action or solution
for the client. Frequent faculty student conferences and frequent review of student plans and
work product are at the core of this mentoring process. Client contact also provides the student
with valuable experiences in professionalism.
Professionalism and personal skills are taught by emphasizing to the student that while
the professor and student may share the representational role for the client, the law student is
primarily responsible for initiating and controlling client contacts and professional
representation. The client is the student’s client. Students are able to act as “student attorneys” in
the clinic under the supervision of a licensed faculty member by virtue of student practice rules.
Under these student practice rules, students may perform all types of legal activities including
court representation and are held to the same professional and ethical standards as licensed
attorneys.
Grand Rounds and Group Learning—In order to organize and share learning within
the clinical laboratory, clinical professors often use group learning or “grand rounds” as a
technique. “Grand rounds” is a phrase taken directly from the medical school clinical practice of
the training doctor taking medical students as a group to visit with and review the treatment and
recovery of each patient in a small group. Each patient’s illness, diagnosis, treatment, and
progress towards recovery are then fully discussed by the group. In the law clinic, the professor
will typically select a particular case or series of related cases to discuss in a group setting.
Important facets of the case are then discussed in great detail, usually with the student assigned
to the particular case making the core presentation of the case and issues. The professor then
focuses the discussion on particular procedural, substantive, or practical aspects of the case. An
individual case can also be used as the basis of a broader discussion of the general type of case or
13
of a particular area of practice. For example, if a student has an interesting or unusual divorce
case or will problem, the particulars of the case will be discussed in great detail but the
discussion may also include a generalized discussion of a family law based practice or of a
probate practice. The purpose of these group discussions is to provide a very detailed group
analysis of a particular case or procedure and at the same time provide a larger contextual
discussion. These group discussions allow students to share a learning experience and encourage
networking in the clinic and in later practice. During the course of a semester, the same problem
or procedure can be revisited to allow case progress to be monitored and adjusted as necessary.
Where appropriate, more than one student may be assigned to a case or project as a way
of teaching collaboration, networking and to try to replicate group legal practices. Students are
also encouraged to seek the advice and opinions of other faculty within the clinic and the law
school. Students are also taught to approach cases in a multi-disciplinary manner where
appropriate. Cases and legal projects are also discussed or “brain stormed” within the larger
group or in a classroom setting where appropriate as part of the “grand rounds” technique.
Students are also required to constantly confer with their clients to review case planning and to
insure client involvement and client-centered decision making.
Community Lawyering. Community lawyering is a type of lawyering that is frequently
used in the Law Clinic to teach law students different and broader approaches to legal problem
solving. In addition to using all of the other standard types of teaching methodologies and
resources, community lawyering seeks to teach students broader aspects of lawyering in a
community based setting. Community lawyering takes law students outside of the traditional law
school setting and places them in a community setting with the objective of addressing larger
community-wide or group-wide legal problems. In the various community lawyering clinics
students are assigned to work with community groups or agencies to try to solve systemic types
of legal problems that may affect a particular client group. In a community lawyering clinic
students are challenged to think of legal problems in a wider context and work with community
groups or agencies to solve community-wide legal concerns. Student interviewing and intake
procedures are based at the different community sites with the expectation that they will work on
group legal projects and with individual clients to address their legal problems in both a
traditional and non-traditional legal manner. In addition to the normal mix of individual client
cases students also work on group or community projects. Group advocacy, community legal
education, legislation, agency rulemaking, community organizing, and community legal
counseling are among the strategies employed. Community lawyering emphasizes the use of
multi-disciplinary and team teaching approaches to legal problem solving. Within the community
lawyering clinics, students will frequently work with other professionals to address community
or group legal concerns. Community lawyering also emphasizes the values of pro bono publico
legal work in a community setting.
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16
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20
III. Summary of Skills To Be Learned In The Clinic
The following is a summary of some of the important basic lawyering skills students will
begin to learn and develop in the clinic.
Client Interviewing. Interviewing is an essential legal skill. To develop their
interviewing skills, all students will be required to interview a variety of clients with differing
kinds of legal problems. This exposes students to a range of legal issues and clients. Because of
the public service aspect of most clinical work, students will ordinarily interview low-income
persons or groups in the kinds of cases that are appropriate for student education and handling.
This focus on low-income individuals provides students with the added advantage of exposure to
issues of poverty, culture, and general access to justice issues. Students are required to document
all client contacts and communications. Students will also be expected to interview potential
witnesses. Client interviews and counseling sessions may occasionally be directly supervised or
videotaped for individual or group educational discussions. Students will also have the
opportunity to interview witnesses and other legally interested parties.
Client Counseling. Client counseling is at the heart of the attorney-client relationship. As
part of the case planning and development process, students will be expected to develop a
specific counseling plan for each clinic client. Students are expected to develop the confidence
and ability to counsel clients about the practical, legal, ethical, professional, and humane options
available to the client to help resolve their legal problems. The importance of client centered
lawyering, client autonomy, and collaborative problem solving is emphasized in all interviewing
and counseling activities.
Fact Development and Case Planning Skills. Students will be expected to verify,
investigate, preserve, research, analyze, organize, and present all of the different facts relevant to
a client's case. Students must then use this information to develop a case development and
resolution plan. The core of the case development and planning process consists of one-on-one
student faculty supervision and interaction. Case planning and development is also a group
learning activity and an opportunity for the student to develop networking skills.
Focused Legal Research and Analysis. The law clinic and its clients give students the
opportunity to hone their research skills and to add needed measures of reality and practicality to
their analysis and research. Live clients and opposing parties force students to constantly
redefine and focus their legal work. All students are encouraged to fully utilize the most modern
research devices available, such as Westlaw, Lexis, Loislaw and other Internet tools. Additional
advanced legal research training is provided and required within the clinic for all law students as
part of their basic clinic training. Students also learn about other relevant sources of useful
information including court files, community and public agency sources, public records, and
internet-based databases. Client-centered analysis is emphasized.
Legal Drafting. Live clients give law students important experience in drafting a wide
variety of legal documents. All students are given the opportunity to draft basic court pleadings
such as complaints, answers, discovery documents, motions, requests for hearing, trial
documents, legal notices and other basic pleadings. In individual cases, students also get the
opportunity to draft common legal documents such as wills, contracts, deeds, and settlements.
21
The emphasis in teaching how to draft pleadings is on teaching local style and on insuring
compliance with local court rules. Basic drafts or outlines of the most common pleadings and
forms are maintained in the clinic brief bank. However, students are strongly discouraged from
blindly following available forms. Students are expected to carefully edit and tailor available
legal forms to conform to the needs of the individual client and case.
A major part of teaching legal drafting in the law clinic consists of teaching effective and
professional letter writing. Letter writing is a major task and practice skill for lawyers and is
generally a new concept and activity for law students. Students will learn about the hazards of e-
mail and how to write professionally to adverse parties or attorneys. Students will also learn
about writing client letters, and opinion and counseling letters.
As required by individual cases, the more traditional skills of drafting appellate or
persuasive briefs are also taught. All student pleadings and letters are reviewed and critiqued by
the supervising professor. The student and professor must sign all pleadings and letters.
Practical Experience with the Courts And Administrative Agencies. A direct benefit
of live client clinics is that students often appear in local courts and administrative agencies.
Student authority and permission to appear is governed by student practice rules. In all formal
court or agency proceedings, a faculty member must accompany students appearing on behalf of
a client. Students are required to become familiar with local court rules and practices. Students
may be required to observe and become familiar with a particular court, judge, or agency before
appearing on behalf of a client. Student presentations to a court usually require a written plan or
outline, which must be reviewed by the supervising faculty member before the actual hearing or
proceeding. The clear expectation is that the student, not the professor, will conduct the
presentation. The obvious benefits to the student are familiarity with a particular court
environment, overcoming typical student nervousness surrounding first court appearances, and
the development of professional confidence and experience.
File Management Skills. For all of their clinic work students are required to compile and
maintain complete and thorough case files. Written and electronic documentation is required of
all their clinic activities, including timekeeping. To assist students with their file maintenance,
students are taught to use Amicus. All client files must be maintained in a standardized, uniform,
organized manner designed to teach a professional and thorough file management system to the
student. Systematic file reviews are regularly conducted by the assigned faculty member to
monitor and insure professional representation, and to insure that the student is mastering the
case-file system. Law students are required to maintain their own files to insure complete file
knowledge and first hand experience with this important professional responsibility.
Law Office Management Skills. In addition to teaching the importance of professional
file management, the law clinic also teaches other law office management skills to the future
attorney. Among the law office management concepts to which the student is introduced and
expected to master during his or her clinical experience are:
• reception area duties,
• client interview procedures,
• client eligibility and screening procedures
•
conflict of interest checking procedures
22
• client acceptance and non-acceptance procedures
• defining scope of representation
• clarifying client costs and client duties
• file opening procedures
• professional file maintenance and documentation
• timekeeping duties
• case calendaring system
• use of office computer systems
• telephone and fax communication procedures
• internal group practice procedures
• client trust fund procedures
• file review procedures
• case closing or transferring procedures
• office etiquette and
• the importance of professional staff relationships.
In order to aid the student in understanding the law clinic’s management system, students
are provided with hands-on training by staff and faculty and provided with a detailed office
procedures manual, located in the Clinic Website. Among the larger management issues
addressed are personal time management and prioritizing skills. Upon completion of their
clinical program, law students should have a very good introduction to the basic procedures
needed to maintain client files and manage a small or medium sized law office.
Promotion of Alternative Dispute Resolution. ADR is taught as a core policy concept
within the clinic. Students will learn to include the use of ADR devices in their case plans.
Students are expected to become familiar with court annexed mediation and arbitration
programs, mediation and counseling programs, settlement programs, facilitated settlements,
ADR negotiation concepts, and settlement conferences. The use of ADR is a core clinic policy
and ADR options are required as a part of all case planning and client counseling processes.
Use of Computer Technology. One of the new and increasingly important skills students
must learn to be effective lawyers is use of computer technology. All law clinic students are
provided with a personal computer and trained to use the clinic’s case management system,
Amicus. Students are also shown the clinic’s brief bank and related computer based resource
systems. Lexis, Westlaw and Loislaw database systems are available to students. Students are
encouraged to use computer technology to the fullest extent possible in their casework and
management tasks.
Focused Substantive Learning. Live client cases with their generally focused
substantive problems allow students to focus their substantive research and knowledge within
those same substantive areas. Client cases also force students to fine-tune their knowledge,
especially practical knowledge, of procedural law and rules. A commonly heard statement
among clinicians and student is that students “really” learn law and procedure in the clinic.
Group Lawyering and Networking. Group lawyering and networking are important
skills that are emphasized and taught in the Clinic. Within each section of the Clinic, students
23
will occasionally be assigned to work in groups on particular case files or projects. Part of these
assignments will be to make large tasks within individual files more manageable or to take
advantage of particular skills or backgrounds that students may bring to the Clinic. However, a
major part of these assignments will be to encourage students to start to develop group lawyering
skills as a way of encouraging group lawyering as an approach to client problem solving. Group
lawyering is an important way of insuring diversity of viewpoints and opinions and in
maximizing the overall level of quality in the representation. Group lawyering is also used as a
way to encourage a multi-disciplinary approach to client problem solving. Within the Law
Clinic students are encouraged to work together in either formal or informal groups in order to
share and strengthen their own learning experiences and to improve the over all quality for the
client. Group lawyering is also an important skill that students can develop in their later
practices. Within group lawyering clinical students are actively encouraged to network with
other law students and faculty within in the Clinic and, where appropriate, outside of the Law
Clinic. Developing the skills of group lawyering and networking is particularly important for
students who will later practice in a solo-practitioner setting or in a small group setting.
Career Planning. Much of the students learning and experience in the Law Clinic is
clearly transitional. When students work in the Clinic they are given their first opportunity to
apply the various skills and knowledge they have obtained as first and second year law students
in a real world setting. When students leave the Clinic they will move on to a variety of practice
settings where continued learning and personal and professional growth will be important aspects
of their careers. As part of their learning experience within the Law Clinic students will be
called upon to study and discuss such things as professional demographics, career patterns,
career specialization, issues within the profession, career satisfaction and dissatisfaction, bar
membership and participation, issues in professional discipline, and growth trends and changes
within the profession. In some of their Clinic classes students will be asked to discuss the legal
profession generally or to concentrate on a specific area of practice in an effort to help students
start to make informed decisions about their future career choices and options. Students in the
Law Clinic will be provided the opportunity to begin to discuss and weigh career alternatives and
options as they are given their first experiences in professional responsibility. As a first step in
this planning process, students may be asked to complete a career planning worksheet and to
discuss this with other students or as part of a group learning experience. This career planning
worksheet can be found at the end of the next section in this manual.
24
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Frank, Jerome, A Plea for Lawyer-Schools, 56 YALE L.J. 1303 (1947).
Frank, Jerome, Why Not a Clinical Lawyer-School?, 81 U. PA. L. REV. 907 (1933).
Frug, Gerald E. & Hamilton, John D., Jr., Moulton, Bea, In Memoriam: Gary Bellow, 114
HARV. L. REV. 409 (2000).
Grossman, George S., Clinical Legal Education: History and Diagnosis, 26 J. LEGAL EDUC.
162 (1974).
Interest Practice, 58 B.U. L. REV. 337 (1978)
Laflin, Maureen E., Clinical Legal Education Gets High Marks, ADVOC., Sept. 1997, at 9.
López, Gerald P., Training Future Lawyers to Work with the Politically and Socially
Subordinated: Anti-Generic Legal Education.
MacCrate, Robert, Educating a Changing Profession: From Clinic to Continuum. 64 TENN. L.
REV. 1099 (1997).
MacCrate, Robert, Introduction: Teaching Lawyering Skills, 75 NEB. L. REV. 643 (1996).
McDougall, Harold A., Lawyering and Public Policy, 38 J. LEGAL EDUC. 369 (1988).
Meltsner, Michael & Schrag, Phillip G., Report from a CLEPR Colony. 76 COLUM. L. REV.
581 (1976).
Meltsner, Michael & Schrag, Phillip G., Scenes from a Clinic, 127 U. PA. L. REV. 1 (1978).
Menkel-Meadow, Carrie, The Legacy of Clinical Education: Theories About Lawyering, 29
CLEV. ST. L. REV. 555 (1980).
Moliterno, James E., Legal Education, Experiential Education, and Professional Responsibility,
67 FORDHAM L. REV. 2377 (1999).
Norwood, J. Michael, Requiring a Live Client, In-House Clinical Course: A Report on the
University of New Mexico Law School Experience, 19 N.M.L. REV. 265 (1989).
Ogletree, Jr., Charles J., A Tribute to Gary Bellow: The Visionary Clinical Scholar, 114 HARV.
L. REV. 421 (2000).
Quigley, William P., Introduction to Clinical Teaching for the New Clinical Law Professor: A
View from the First Floor, 28 AKRON L. REV. 463 (1995).
27
Redlich, Allen, Perceptions of a Clinical Program, 44 S. CAL. L. REV. 574 (1971).
Report of the Committee on the Future of the In-House Clinic, 42 J. LEGAL EDUC. 508 (1992).
Shepard, Randall T., From Students to Lawyers: Joint Ventures in Legal Learning for the
Academy, Bench, and Bar, 31 IND. L. REV. 445 (1998).
Sonsteng, John & Cicero, John, Gilats, Resa Roger Haydock, McLacchlan, John, Learning by
Doing: Preparing Law Students for the Practice of Law - The Legal Practicum, 21 WM.
MITCHELL L. REV. 111 (1995).
Spiegel, Mark, Theory and Practice in Legal Education: An Essay on Clinical Education, 34
UCLA L. REV. 557 (1987).
Trubek, Louise G., U.S. Legal Education and Legal Services for the Indigent: A Historical and
Personal Perspective, 5 MD. J. CONTEMP. LEGAL ISSUES 381 (1994).
Wizner, Stephen, Beyond Skills Training, 7 CLIN. L. REV. 327 (2001).
Technology and the Law
Lemley, Mark, Menell, Peter S., Merges, Robert P., Samuelson, Pamela Software and Internet
Law, (Aspen 2000).
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2000).
Scott, Michael D. Scott On Computer Law, (2d ed., Aspen 2001).
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Stobbs, Gregory A. Software Patents, (2d ed., Aspen 2000).
Winn, Jane Kaufman, Wright, Benjamin Law of Electronic Commerce, (4
th
ed., Aspen 2000).
28
IV. Lifelong Education and Development
Background
Clinical legal education is a major step in the transition from law student to attorney. For
most law students all that remains in this transitional process from student to professional are a
few more law courses, graduation, the bar exam and finding a job. Many students are under the
false impression that once law school is completed, that formal and informal education is mostly
behind them. The assumption is that once the attorney is sworn-in to the bar, that each attorney is
somehow a self-contained fully developed professional entity. Nothing could be further from the
truth. Law school education and clinical legal education are simply first steps in a process of
lifelong education and personal and professional development.
Clinical legal education serves as a bridge or introduction to the practical aspects and
demands of the legal profession. Clinical legal education can also be seen as a bridge between
the theory and rules of the classroom and demands of the real world. While much is learned
within the typical clinical course, the reality is that the major portion of legal learning is obtained
after graduation. Neither the law school classroom or the most rigorous clinical program can
teach the young attorney all that is needed to be a truly competent professional. The vast
majority of an attorney’s legal education and development takes place after law school, and with
only a few institutional exceptions, this educational process is almost entirely self-guided
education.
The most common institutional exceptions are bar sponsored mandatory Continuing
Legal Education Programs (CLE), some rare voluntary additional formal or institutional
learning, and some law firm or legal agency training provided as part of one’s employment.
Therefore, it is essential for the law student to begin to prepare for this process of lifelong
education and professional development. As a professional there will be a few educational prods
but most of the truly productive professional education will be self initiated.
A good place to begin this educational process is to survey the nature of the legal
profession and to list and assess the common legal skills employed by competent practitioners
within the profession. Fortunately, much of this has already been done in what is known as the
MacCrate Report, Legal Education, and Professional Development—An Educational
Continuum, American Bar Association, 1992, West Edition. Students are encouraged to read this
report as part of their study of the legal profession and as a part of their clinical legal education.
For purposes of this manual, the following excerpts will provide the broad overview and the
necessary introduction. The following slightly rearranged excerpts from the MacCrate Report
provide a good start for this general survey of the profession and its basic legal skills and values.
29
An Overview of the Profession
MacCrate Report, Student Edition
Introduction
Overview of the Skills and Values
Analyzed in the Statement
I. Fundamental Lawyering Skills
Skill § 1: Problem Solving
In order to develop and evaluate strategies for solving a
problem or accomplishing an objective, a lawyer should be
familiar with the skills and concepts involved in:
1.1 Identifying and Diagnosing the Problem (pp.15-17);
1.2 Generating Alternative Solutions and Strategies (pp.
17-18);
1.3 Developing A Plan of Action (p. 18);
1.4 Implementing the Plan (pp. 18-20);
1.5 Keeping the Planning Process Open to New Information
and
New Ideas (pp. 20-21).
For Commentary on Skill § 1, see pp. 21-24.
Skill § 2: Legal Analysis and Reasoning
In order to analyze and apply legal rules and principles, a
lawyer should be familiar with the skills and concepts involved
in:
2.1 Identifying and Formulating Legal Issues (pp. 25-26);
2.2 Formulating Relevant Legal Theories (p. 26);
2.3 Elaborating Legal Theory (pp. 26-27);
2.4 Evaluating Legal Theory (pp. 27-28);
2.5 Criticizing and Synthesizing Legal Argumentation (pp.
28-29).
For Commentary on Skill § 2, see pp. 29-30.
Skills § 3: Legal Research
30
In order to identify legal issues and to research them
thoroughly and efficiently, a lawyer should have:
3.1 Knowledge of the Nature of Legal Rules and
Institutions (pp. 31-32);
3.2 Knowledge of and Ability to Use the Most Fundamental
Tools of Legal Research (pp. 32-34);
3.3 Understanding of the Process of Devising and
Implementing a Coherent and Effective Research Design
(pp. 34-36).
For Commentary on Skill § 3, see pp. 36-37.
Skill § 4: Factual Investigation
In order to plan, direct, and (where applicable)
participate in factual investigation, a lawyer should be
familiar with the skills and concepts involved in:
4.1 Determining the Need for Factual Investigation (p.
38);
4.2 Planning a Factual Investigation (pp. 38-40);
4.3 Implementing the Investigative Strategy (pp. 40-43);
4.4 Memorializing and Organizing Information in an
Accessible Form (pp. 43-44);
4.5 Deciding Whether to Conclude the Process of Fact-
Gathering (p. 44);
4.6 Evaluating the Information That Has Been Gathered (pp.
44-45).
For Commentary on Skill § 4, see pp. 45-46.
Skill § 5: Communication
In order to counsel clients about decisions or courses of
action, a lawyer should be familiar with the skills and concepts
involved in:
5.1 Assessing the Perspective of the Recipient of the
Communication (p. 47);
5.2 Using Effective Methods of Communication (pp. 48-50).
For Commentary on Skill § 5, see p. 50.
Skill § 6: Counseling
31
In order to counsel clients about decisions or courses of
action, a lawyer should be familiar with the skills and concepts
involved in:
6.1 Establishing a Counseling Relationship That Respects
the Nature and Bounds of a Lawyer’s Role (pp.51-52);
6.2 Gathering information Relevant to the Decision to be
Made (pp. 52-53);
6.3 Analyzing the Decision to Be Made (pp. 53-54);
6.4 Counseling the Client About the Decision to Be Made
(pp. 54-57);
6.5 Ascertaining and Implementing the Client’s Decisions
(pp. 57-58).
For Commentary on Skill § 6, see p. 59.
Skill § 7: Negotiation
In order to negotiate in either a dispute-resolution or
transactional context, a lawyer should be familiar with the
skills and concepts involved in:
7.1 Preparing for Negotiation (pp. 60-63);
7.2 Conducting a Negotiation Session (pp. 63-64);
7.3 Counseling the Client About the Terms Obtained From
the Other Side in the Negotiation and Implementing the
Client’s Decision (p.64).
For Commentary on Skill § 7, see p. 65-66
Skill § 8: Litigation and Alternative Dispute-Resolution
Procedures
In order to employ—or to advise a client about—the options
of litigation and alternative dispute-resolution, a lawyer
should understand the potential functions and consequences of
these processes and should have a working knowledge of the
fundamentals of:
8.1 Litigation at the Trial-Court Level (pp. 67-70);
8.2 Litigation at the Appellate Level (pp70-71);
8.3 Advocacy in Administrative and Executive Forums (pp.
71-72);
8.4 Proceedings in Other Dispute-Resolution Forums (pp.
72-74).
For Commentary on Skill § 8, see pp. 74-75.
32
Skill § 9: Organization and Management of Legal Work
In order to practice effectively, a lawyer should be
familiar with the skills and concepts required for efficient
management, including:
9.1 Formulating Goals and Principles for Effective
Practice Management (p. 76);
9.2 Developing Systems and Procedures to Ensure that Time,
Effort, and Resources are Allocated Efficiently (p.
76);
9.3 Developing Systems and Procedures to Ensure that Work
is Performed and Completed at the Appropriate Time (pp
76-77);
9.4 Developing Systems and Procedures for Effectively
Working with Other People (pp. 77-78);
9.5 Developing Systems and Procedures for Efficiently
Administering a Law Office (pp. 78);
For Commentary on Skill § 9, see p. 79.
Skill § 10: Recognizing and Resolving Ethical Dilemmas
In order to represent a client consistently with applicable
ethical standards, a lawyer should be familiar with:
10.1 The Nature and Sources of Ethical Standards (pp. 80-
82);
10.2 The Means by Which Ethical Standards are Enforced (pp.
82-83);
10.3 The Processes for Recognizing and Resolving Ethical
Dilemmas (p. 83).
For Commentary of Skill § 10, see pp. 83-84.
II. Fundamental Values of the
Profession
Value § 1: Provision of Competent Representation
As a member of a profession dedicated to the service of
clients, a lawyer should be committed to the values of:
1.1 Attaining a Level of Competence in One’s Own Field of
Practice (p. 87);
1.2 Maintaining a Level of Competence in One’s Own Field
of Practice (pp. 87-88);
33
1.3 Representing Clients in a Competent Manner (pp. 88-
89);
For Commentary on Value § 1, see pp. 90-92.
Value § 2: Striving to Promote Justice, Fairness, and
Morality
2.1 Promoting Justice, Fairness, and Morality in One’s Own
Daily Practice (p. 93);
2.2 Contributing to the Profession’s Fulfillment of its
Responsibility to Ensure that Adequate Legal Services
Are Provided to Those Who Cannot Afford to Pay for
Them (p. 93);
2.3 Contributing to the Profession’s Fulfillment of its
Responsibility to Enhance the capacity of Law and
Legal Institution to Do Justice (p. 93).
For Commentary of Value § 2, see pp. 93-95.
Value § 3: Striving to Improve the Profession
As a member of a self-governing profession, a lawyer should
be committed to the values of:
3.1 Participating in Activities Designed to Improve the
Profession (p. 96);
3.2 Assisting in the Training and Preparation of New
Lawyers (p. 96);
3.3 Striving to Rid the Profession of Bias Based on Race,
Religion, Ethnic Origin, Gender, Sexual Orientation,
or Disability, and to Rectify the Effects of These
Biases (p. 96).
For Commentary on Value § 3, see pp. 96-97.
Value § 4: Professional Self-Development
As a member of a learned profession, a lawyer should be
committed the values of:
4.1 Seeking Out and Taking Advantage of Opportunities to
Increase His or Her Knowledge and Improve His or Her
Skills (pp. 98-99);
4.2 Selecting and Maintaining employment That Will Allow
the Lawyer to Develop As a Professional and To Pursue
His or Her Professional and Personal Goals (p. 99).
34
For Commentary on Value § 4, see pp. 99-101.
C. Table of Contents
Introduction
Part One. The Profession for Which Lawyers Must
Prepare
An Overview of the Profession
1. Lawyers and Legal Services Growth, Change and Multicultural
Diversity
A. Explosion in Numbers and Use of Legal Services
B. The Change in Gender Make-up
C. The Belated Opening to Minorities and Diversity
2. The Diverse Practice Settings
A. Sole Practitioners and Small Firms
B. New Providers of Legal Services
C. In-House Counsel
D. Lawyers for Government
3. Organization and Regulation of the Profession
A. The Beginnings of the Profession
B. The Bar’s Identity in Learning, Skills and
Professional Values
C. Law School: The Unifying Experience
D. The Judiciary: The Profession’s Gatekeeper
E. The Survival of a Single Public Profession
Part Two. A Vision of the Skills and Values New
Lawyers Should Seek to Acquire
The Nature and Purposes of the Statement
The Organization of the Statement
Overview of the Skills and Values Analyzed in the
Statement
I. Fundamental Lawyering Skills
1. Problem Solving
2. Legal Analysis and Reasoning
35
3. Legal Research
4. Factual Investigation
5. Communication
6. Counseling
7. Negotiation
8. Litigation and Alternative Dispute-Resolution
Procedures
9. Organization and Management of Legal Work
10. Recognizing and Resolving Ethical Dilemmas
II. Fundamental Values of the Profession
1. Provision of Competent Representation
2. Striving to Promote Justice, Fairness and Morality
3. Striving to Improve the Profession
4. Professional Self-Development
D. Overview of the Skills and Values Analyze
pp. 21 – 120
(Note: pages 21 – 120 of the MacCrate Report are not reproduced
in these materials but are highly recommended reading for
students. These materials provide a very broad overview of the
legal profession which a law student should have as part of his
or her legal training. Students are strongly encouraged to read
these materials. Copies of the MacCrate Report are available in
the library, the law clinic, or from individual clinical
professors.)
These brief excerpts from the MacCrate Report should serve as a starting point of
discussions on the legal profession and the necessary legal skills and values used by attorneys.
Students are strongly encouraged to read the original report or the student edition. Additional
recommended readings and films on the legal profession are listed in the bibliography at the end
of this chapter.
E. Career Planning Worksheet
Preliminary Career Planning Worksheet
(Subject to Frequent Revision - Particularly in the next few years)
Instructions: Each student should answer each of the following questions. Your answers will be
revised one or more times during the course of this semester and will be discussed in a later
class. Please feel free to consult with whomever you want in preparing your answers or in
referring to any outside resources.
36
1. Why did you come to law school? Please feel free to refer to the personal statement that
you included in your application packet, in which you address the question of why. You should
be admitted to law school over a very large number of equally qualified candidates.
2. What have you learned so far in law school that would assist you in achieving the
personal and career goals you listed in question number 1?
3. What legal skills, knowledge, or experience do you plan to obtain in the Clinical Law
Program to help train you to become a competent and professional attorney? Please list the types
of cases or projects that you feel will help obtain these legal skills.
Please list the common basic lawyering skills that a young attorney must have upon graduating
from law school in order to competently begin his or her professional career.
5. What other courses or skills do you plan to study before graduation, which will help you
become a competent attorney in the areas of legal interest to you?
6. What areas of the law do you plan to practice in during the early part of your career?
a. What are your professional plans immediately upon graduation?
b. What is your career plan for the next five years?
C. What is your career plan for the next ten to twenty years?
d. What are the personal and professional goals you seek to accomplish by the end of your
legal career?
7. Where do you plan to practice upon graduation and into the early years of your career?
8. What specific steps have you taken to secure employment and what are your early career
options? Have you consulted with anyone who has worked in your area of choice or who has
attempted to follow a similar career plan? Are there any market or external factors that will limit
your choices?
9. Have you started to plan to take the Bar Examination in New Mexico or some other
jurisdiction?
10. How do you think your professional plans will affect your personal goals and objectives
or those of your family or relatives? Do you feel you ought to consult any of them in formulating
your plans?
37
11. Do you have any information or knowledge about the stresses or pressures that are
inherent in the practice of law or that are peculiar to the area of law you wish to practice in? Do
you know what the common stresses in the profession are? Do you have any plans or ideas for
coping or avoiding these stresses?
12. If law was not an option and you had your druthers, what career would you choose?
Why?
13. List ten things that you would like to do with your life over the next five years.
Bibliography
MacCrate Report
Baker, Brook K., Beyond MacCrate: The Role of Context, Experience, Theory, and Reflection in
Ecological Learning, 36 ARIZ. L. REV. 287 (1994).
Lilly, Graham C., Skills, Values, and Education: The MacCrate Report Finds a Home in
Wisconsin, 80 MARQ. L. REV. 753 (1997).
Norwood, J. Michael, Scenes From the Continuum: Sustaining the MacCrate Report's Vision of
Law School Education Into the Twenty-first Century, 30 WAKE FOREST L. REV. 293
(1995).
Rose, Jonathan, The MacCrate Report's Restatement of Legal Education: The Need for
Reflection and Horse Sense, 44 J. LEGAL EDUC. 548 (1994).
Recommended law related books:
Auden, Law Like Love
Burkhart, Ch. 2
Charles Dickens, Bleak House
Franz Kafka, The Trial
Fyodor Dostoievsky, Crime and Punishment
John Grisham, A Time to Kill; The Firm; The Pelican Brief, The Client, The Chamber; The
Rainmaker; The Runaway Jury; The Partner; The Street Lawyer; The Testament; The
Brethren; A Painted House; Skipping Christmas; The Summons; The King of Torts;
Bleachers; The Last Juror
H. Melville, Billy Budd
Harper Lee, To Kill A Mockingbird
Herman Melville, Bartleby the Scrivener
Jack Abbott, In the Belly of the Beast
Jean Anouilh, Antigone
Jean Paul Sartre, The Words
38
Kazuo Ishiguro, Remains of the Day
Margaret Atwood, The Handmaid's Tale
R. Bork, The Tempting of America
Samuel Butler, Erewhon
“Slave Come to My Service” - poetry from Sumeria, 10th century B.C.
Sophocles, Antigone
Thomas More, Utopia
Tom Wolfe, The Bonfire of the Vanities
Turow, Scott, Burden of Proof; Presumed Innocent; Personal Injuries; The Laws of Our
Fathers; Guilty As Charged
Ursula le Guin, The Dispossessed
Walker Percy, The Thanatos Syndrome
William Gaddis, A Frolic of His Own
Recommended Law Related Films:
“12 Angry Men” (1957) Henry Fonda, Lee J. Cobb, Ed Begley, Sr., E.G. Marshall, Jack
Klugman, Jack Warden, Martin Balsam, Robert Webber
“A Civil Action” (1998) John Travolta, Robert Duvall, Tony Shalhoub
“A Few Good Men” (1992) Tom Cruise, Jack Nicholson, Demi Moore
“Adam's Rib” (1949) Spencer Tracy, Katharine Hepburn, Judy Holliday
“Anatomy of a Murder” (1959) James Stewart, Lee Remick, Ben Gazzara, George C. Scott.
“Billy Budd” (1962) Robert Ryan, Peter Ustinov, Melvyn Douglas, Terence Stamp
“Breaker Morant” (1980) Edward Woodward, Jack Thompson, John Waters, Bryan Brown,
Charles “Bud” Tingwell, Frank Wilson.
“Erin Brockovich” (2000) Julia Roberts, Albert Finney, Aaron Eckhart
“Final Verdict” (1991) Treat Williams, Glenn Ford, Olivia Burnette
“Gideon's Trumpet” (1980) Paul Benjamin, James Brodhead, José Ferrer, Michael Cavanaugh.
“Hart's War” (2002) Bruce Willis, Colin Farrell, Terrence DaShon Howard
“I Accuse!” (1958) José Ferrer, Anton Walbrook, Viveca Lindfors, Leo Genn.
“I Want to Live!” (1958) Susan Hayward, Simon Oakland, Virginia Vincent, Theodore Bikel.
“Inherit the Wind” (1960) Spencer Tracy, Fredric March, Gene Kelly
39
John Grisham films, The Firm; The Pelican Brief; The Client; The Chamber; A Time to Kill;
The Rainmaker; The Gingerbread Man; Mickey
“Jagged Edge” (1985) Jeff Bridges, Glenn Close, Peter Coyote
“Judgment at Nuremberg” (1961) Spencer Tracy, Burt Lancaster, Richard Widmark,
Maximilian Schell
“Kramer vs. Kramer” (1979) Dustin Hoffman, Meryl Streep, Justin Henry
“Lawyers should not marry lawyers. This is called inbreeding, from which come idiot children
and more lawyers.” From: “Adam’s Rib”
“Legally Blonde” (2001) Reese Witherspoon, Luke Wilson, Selma Blair
“My Cousin Vinny” (1992) Joe Pesci, Ralph Macchio, Marisa Tomei
“Reversal of Fortune” (1990) Glenn Close, Jeremy Irons, Ron Silver
“Rules of Engagement” (2000) Tommy Lee Jones, Samuel L. Jackson, Guy Pearce
“The Caine Mutiny” (1954) Humphrey Bogart, José Ferrer, Van Johnson
“The Chamber” (1996) Chris O'Donnell, Gene Hackman, Faye Dunaway
“The Client” (1994) Susan Sarandon, Tommy Lee Jones, Mary-Louise Parker
“The Court Martial of Billy Mitchell” (1955) Gary Cooper, Charles Bickford, Ralph Bellamy
“The Devil's Advocate” (1997) Keanu Reeves, Al Pacino, Charlize Theron
“The Firm” (1993) Tom Cruise, Jeanne Tripplehorn, Gene Hackman, Hal Holbrook.
“The Fortune Cookie” (1966) Jack Lemmon, Walter Matthau, Ron Rich
“The Life and Times of Judge Roy Bean” (1972) Paul Newman, Victoria Principal, Anthony
Perkins, Ava Gardner, Roddy McDowall, Tab Hunter, John Huston.
“The Paper Chase” (1973) Timothy Bottoms, Lindsay Wagner, John Houseman, Graham
Beckel.
“The Rainmaker” (1997) Matt Damon, Claire Danes, Jon Voight
“The Star Chamber” (1983) Michael Douglas, Hal Holbrook, Yaphet Kotto, Sharon Gless.
“The Trial” (1963) Anthony Perkins, Jeanne Moreau, Romy Schneider, Orson Welles.
“The Verdict” (1982) Paul Newman, Charlotte Rampling, Jack Warden
40
“The Young Philadelphians” (1959) Paul Newman, Barbara Rush, Alexis Smith, Robert
Vaughn.
“To Kill a Mockingbird” (1962) Gregory Peck, Mary Badham, Philip Alford, Brock Peters,
Robert Duvall
“Witness for the Prosecution” (1957) Tyrone Power, Marlene Dietrich, Charles Laughton
“Young Mr. Lincoln” (1939) Henry Fonda, Alice Brady, Marjorie Weaver, Milburn Stone,
Ward Bond.
41
V. Professionalism and Civility
One of the frequent comments by more experienced practitioners is that the level of
professionalism among attorneys is declining and that the level of civility has taken a turn for the
worse. While it is hard to gauge these kinds of generalized criticisms, it is essential that law
students study and consider the different aspects of professionalism and commit to a practice that
is premised on civility. Professionalism and civility are very closely interrelated. A true
professional is always civil. Professionalism can probably best be defined as the approach or
attitude one takes towards all of the different lawyering activities in which an attorney engages.
It includes not only how one views what he or she does, but also the level of professional
expectations one has about others and of legal institutions. Civility in its narrowest sense
constitutes a sort of personal code that governs how one interacts with others and which helps all
attorneys guide their clients through a difficult, adverse and, often competitive, legal process.
Without a basic level of civility in all legal activities, the hostile, aggressive, and competitive
aspects of law tend to become exaggerated. The profession becomes more of a competitive trade
than a learned and civil profession. Civility and professionalism are core concepts in making law
more than a trade and insuring that lawyers remain objective problem-solvers who help their
clients resolve their disputes under the rule of law. Professionalism and civility also affect how
the public and clients view the profession.
In the law clinic, students begin to practice professionalism and civility in their cases.
Students are given primary responsibility for professional representation. The client is the
student’s client. For the first time, students have personal responsibility for the legal affairs of a
fellow human being. Law students are also given the responsibility of having to interact with
attorneys, judges, court personal, and other legal institutions. Students are expected to act as full
professionals in all their clinic activities. Professionalism and civility are topics of frequent
discussion during the clinical experience.
Aspects of Professionalism
The following are some of the important aspects of professionalism that can be used as
discussion points in this on-going and essential discussion of professionalism and civility within
the law clinic.
Professional Education and Training. Professionalism starts with an emphasis on a
commitment to excellence in law school. Students should commit themselves to mastery of all of
the different subjects they study. Students should also realize that the formal legal education one
receives in law school is only preparation for a career long process of learning. The majority of
professional training takes place after law school. Law school is really more like an orientation
and transitional phase for most lawyers. This commitment to mastery and excellence in learning
includes, on the job training, specialization, CLE, and personal development and training.
Formal legal education is a bare minimum in the concept of professional training.
Commitment To High Quality. In addition to loyalty, clients expect and deserve a very
high quality of representation and work product from their attorneys. As licensed professionals
authorized to engage in a profession for profit, attorneys have an obligation to insure that all of
42
their work is of the highest quality. Professional work is high quality work. Low quality or
mediocre work is not professional work. This commitment to professional quality work requires
the attorney to make sure all his or her work product is correct and professional in nature. It
requires a system of practice and personal habits that insure review and consultation on all legal
activities. At a bare minimum, if a letter, pleading or other legal document is not correct and of
professional quality, that document should not be signed or sent to a third party. Attorneys must
carefully edit and review all written work as a matter of course. A professional makes sure all
his or her work is correct the first time and every time. Evaluative reflection of one’s
professional activities is also an aspect of insuring high quality and personally fulfilling
professional work.
Expectation of High Quality. In addition to producing the best possible work product
for every client, the true professional should also expect high quality work from others, from the
courts and from the justice system. While it may be difficult to address or correct these
shortcomings, attorneys should be prepared to become involved in such a way with the courts
and the legal system to make sure that decisions and services are provided at the highest possible
level. This requires attorneys to be vocal and to participate in meetings, court committee
structures, seminars, judicial training, judicial campaigns, run for judicial office, do volunteer
work and make public comments in appropriate forums to insure high quality work for the public
and their clients. High quality work produces high quality responses. Very low quality work
from an adversary may require a disciplinary referral. See Rules, 16-101, 16-803(A), Rules of
Professional Conduct.
RULE 16-101. COMPETENCE
Rule 16-101 NMRA provides:
A lawyer shall provide competent representation to a client. Competent representation
requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the
representation.
RULE 16-803. REPORTING PROFESSIONAL MISCONDUCT
Rule 16-803(A) NMRA provides:
A. Misconduct of Other Lawyers. A lawyer having knowledge that another lawyer has
committed a violation of the Rules of Professional Conduct that raises a substantial question as
to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the
appropriate professional authority.
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The Attorney’s Oath
The New Mexico oath for attorneys is as follows:
Rule 15-304 NMRA
FORM 15-304. Oath
I, __________________, do solemnly swear or affirm: I will
support the Constitution of the United States and the
Constitution of the State of New Mexico; I will maintain the
respect due to courts of justice and judicial officers; I will
comply with the Rules of Professional Conduct adopted by the New
Mexico Supreme Court; I will not counsel or maintain any suit or
proceeding which shall appear to me to be unjust, nor any
defense except such as I believe to be honestly debatable under
the law of the land; I will employ for the purpose of
maintaining the causes confided to me such means only as are
consistent with truth and honor, and will never seek to mislead
the judge or jury by any artifice or false statement of fact or
law; I will maintain the confidence and preserve inviolate the
secrets of my clients, and will accept no compensation in
connection with their business except from them or with their
knowledge and approval; I will abstain from all offensive
personality, and advance no fact prejudicial to the honor or
reputation of a party or witness unless required by the justice
of the cause with which I am charged; I will never reject from
any consideration personal to myself the cause of the
defenseless or oppressed, or delay any person's cause for lucre
or malice.
RULE 15-103. Qualifications. The qualifications for being an attorney in New Mexico are as
follows:
Rule 15-103 NMRA
A. Requirements mandatory. Licenses to practice law shall be
granted only to applicants who fulfill all of the requirements
of these rules.
B. Qualifications. Every person seeking admission to practice
law in New Mexico shall file a formal application as prescribed
by these rules and as required by the board. Submission of the
application shall constitute submission by the applicant to the
jurisdiction of the New Mexico Board of Bar Examiners until a
final determination upon admission of the applicant may be
completed. Every applicant shall have the burden of establishing
to the satisfaction of the board that the applicant possesses
all of the following qualifications:
(1) is at least twenty-one (21) years of age;
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(2) is a graduate with a juris doctor or bachelor of laws and
letters degree (at the time of the bar examination for which
application is made) of a law school formally accredited by the
American Bar Association or is a graduate of any law school who
has been engaged in the practice of law in another state or
states for at least four (4) of the six (6) years immediately
preceding the person's application for admission to practice in
New Mexico;
(3) is a person of good moral character, physically and mentally
fit to practice law;
(4) is, if ever admitted to practice in any other state or
states, in good standing in such state or states;
(5) is professionally qualified for admission to the bar of New
Mexico; and
(6) is in compliance with all child support and spousal support
obligations imposed under a “judgment and order for support” as
defined in the Parental Responsibility Act, Sections 40-5A-1
through 40-5A-13 NMSA 1978, or imposed under a child support or
spousal support order entered by any other court of competent
jurisdiction. If an applicant is not in compliance with a child
support or spousal support obligation, the applicant will not be
recommended for admission to the bar until the applicant
provides the board with evidence that the applicant is in
compliance with the judgment or order. If the applicant has
appeared on the Human Services Department's certified list of
obligors, the applicant shall submit a certified statement from
the Human Services Department that the applicant is in
compliance with the judgment and order for support. In all other
cases, the applicant shall provide evidence acceptable to the
board of compliance with all applicable child and spousal
support orders.
C. Conviction; rehabilitation. A person who has been convicted
of a serious crime as defined under these rules shall prove good
moral character by demonstrating by clear and convincing
evidence that the applicant is rehabilitated and satisfies all
other requirements for good moral character.
D. Examination. All applicants shall be required to take and
pass the written examination except as otherwise provided with
respect to law faculty at the University of New Mexico.
Attorneys Responsibilities. Attorneys, by virtue of their professional license to counsel
and represent people, are entrusted with their client’s lives, property, personal rights, and future
relationships. This is a major personal and professional responsibility. As an attorney, one has a
fiduciary obligation to be loyal, competent, confidential, ethical, and also protect and advance
the client’s best interests under the rule of law. This general responsibility also extends to the
judicial system, the justice system, and the profession. These differing responsibilities can
sometimes conflict.
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Ethical Conduct. In all of their professional activities, attorneys must act in an ethical
manner under penalty of discipline, suspension, or disbarment. All attorneys must have a clear
working knowledge of the rules of professional conduct and must apply these rules to their
professional activities. Attorneys have a duty to inform their clients of these professional
limitations and duties as appropriate. In order to insure an independent profession, all attorneys
must cooperate and support the disciplinary system, which is self-imposed and self-regulated.
Public and professional trust depends on rigorous adherence to the code of ethics. All attorneys
should regularly read all disciplinary reports and should be aware of the common disciplinary
problems and the causes of those problems.
Attorneys as Moral Agents. In advising and representing their individual clients,
attorneys can act as moral agents. Attorneys can counsel their clients to “do the right thing” and
to “do good.”
RULE 16-201. ADVISOR
Rule 16-201 NMRA provides
In representing a client, a lawyer shall exercise independent professional judgment and render
candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations
such as moral, economic, social and political factors, that may be relevant to the client's
situation.
Professional Perspective. One of the common factors in the profession is a high level of
work related stress and pressure. Clients usually come to attorneys for assistance after the fact,
when their lives, property, or rights are about to be significantly impacted. Clients may also bring
their own set of personal demands, personal problems, and economic pressures to their attorneys.
This case or client based stress is then further compounded by a high caseload of similar cases,
each with its own demands and pressures. It is also important to recognize that opposing counsel
and the opposing party are under the same kinds of inherent stress. Anger and hostility are
frequently involved in communications. Lawyering is almost always a difficult and demanding
profession. This stress and pressure has a natural and predictable impact on all attorneys and
clients. It is therefore important for attorneys to understand and accept this reality and to learn
how to cope with the inherent stress and pressure of practicing law.
A good attorney understands how stress and pressure affects him or her and creates a
program for controlling and containing this stress. A good attorney also recognizes that opposing
counsel and his or her client also are being subjected to this stress and will sometimes act out in
response to the stress. All attorneys should understand that a certain amount of hostility,
aggressiveness, and occasional rude conduct is the result of stress. Angry or hostile
communications almost always provoke a similar kind of response and a sort of cycle can
develop that colors and impedes the entire problem solving process.
A truly professional attorney tries to avoid generating anger or hostility and tries to
explain or understand anger and hostility when it is encountered. Angry or hostile
communications should almost never be sent. Professional understanding and compassion are
important professional qualities. A wise attorney finds ways to reduce the natural level of stress
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inherent in every case. A good attorney is professional, objective and not too personally involved
with the client or the case. When personal involvement or ego levels become high in a case or a
client, then it is probably time to consider associating other counsel to assist or withdrawing from
a matter. A program for controlling and managing stress and pressure is the hallmark of a true
professional. This includes stress and pressure that comes from outside one's professional life.
Attorneys As Decent Advocates. In their representation and advocacy on behalf of a
client, an attorney can be a decent and honorable advocate. Instead of a purely “zealous”
advocacy, attorneys can ethically engage in a wise tempered advocacy. Clients cannot demand
that an attorney be overly zealous. In fact, the Code of Professional Conduct has removed the
requirement of zealous advocacy. A good attorney understands his or her client’s emotions and
motivations and also understands the impact that the adversary system has on the client, the
attorney, opposing counsel, the opposing party and on third parties. Attorneys can decline to
engage in conduct that harms others. A wise attorney has compassion, understanding, and
tolerance of all persons caught up in the adversary system.
Attorneys must be Civil. In their dealings with others, particularly in the adversary
system, attorneys must be civil with each other and all other parties. Complaints about uncivil
behavior on the part of attorneys are very common. While individuals may differ in how they
define civility, several professional organizations have attempted to establish certain minimal
guidelines for civil conduct in the legal profession. These are reprinted below and students are
strongly encouraged to carefully read and abide by these general guidelines.
The New Mexico the Attorney’s Creed developed by the New Mexico State Bar
Association follows.
A Lawyer's Creed of Professionalism of the State Bar of New Mexico
A. In all matters: “My Word is My Bond”
B. With Respect To My Clients:
1. I will be loyal and committed to my client's cause, but I
will not permit that loyalty and commitment to interfere with my
ability to provide my client with objective and independent
advice;
2. I will endeavor to achieve my client's lawful objectives in
business transactions, in litigation and in all other matters,
as expeditiously and economically as possible;
3. In appropriate cases, I will counsel my client with respect
to mediation, arbitration, and other alternative methods of
resolving disputes;
4. I will advise my client against pursuing any course of action
that is without merit and against insisting on tactics, which
are intended to delay resolution of the matter or to harass or
drain the financial resources of the opposing party;
5. I will advise my client that civility and courtesy are not to
be equated with weakness;
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6. While I must abide by my client's decision concerning the
objectiveness of the representation, I nevertheless will counsel
my client that a willingness to initiate or engage in settlement
discussions is consistent with zealous and effective
representation;
7. I will keep my client informed about the progress of the case
and the costs and fees being incurred;
8. I will charge only a reasonable attorney's fee for services
rendered;
9. I will be courteous to and considerate of my client at all
times.
C. With respect to opposing parties and their counsel:
1. I will endeavor to be courteous and civil, both in oral and
in written communications;
2. I will not knowingly make statements of fact or of law that
are untrue;
3. In litigation proceedings, I will agree to reasonable
requests for extensions of time or for waiver of procedural
formalities when the legitimate interests of my client will not
be adversely affected;
4. I will endeavor to consult with opposing counsel before
scheduling depositions and meetings and before rescheduling
hearings and I will cooperate with opposing counsel when
scheduling changes are requested;
5. I will refrain from utilizing litigation, delaying tactics,
or any other course of conduct to harass the opposing party;
6. I will refrain from engaging in excessive and abusive
discovery, and I will comply with all reasonable discovery
requests;
7. In depositions and other proceedings, and in negotiations, I
will conduct myself with dignity, avoid making groundless
objections and refrain from disrespect;
8. I will not serve motions and pleadings on the other party, or
his counsel, at such a time or in such a manner as will unfairly
limit the other party's opportunity to respond;
9. In the preparation of documents and in negotiations, I will
concentrate on matters of substance and content;
10. I will clearly identify, for other counsel or parties, all
changes that I have made in documents submitted to me for
review.
D. With respect to the courts and other tribunals:
1. I will be a vigorous and zealous advocate on behalf of my
client, while recognizing, as an officer of the court, that
excessive zeal may be detrimental to my client's interests as
well as to the proper functioning of our system of justice;
2. Where consistent with my client's interests, I will
communicate with opposing counsel in an effort to avoid
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litigation and to resolve litigation that has actually
commenced;
3. I will voluntarily withdraw claims or defenses when it
becomes apparent that they do not have merit or are superfluous;
4. I will refrain from filing frivolous motions;
5. I will make every effort to agree with other counsel, as
early as possible, on a voluntary exchange of information and on
a plan for discovery;
6. I will attempt to resolve, by agreement, my objections to
matters contained in my opponent's pleadings and discovery
requests;
7. When scheduled hearings or depositions have to be canceled, I
will notify opposing counsel, and, if appropriate, the court (or
other tribunal) as early as possible;
8. Before dates for hearings or trials are set--or, if that is
not feasible, immediately after such dates have been set--I will
attempt to verify the availability of key participants and
witnesses so that I can promptly notify the court (or other
tribunal) and opposing counsel of any likely problem in that
regard;
9. In civil matters, I will stipulate to facts as to which there
is no genuine dispute;
10. I will be punctual in attending court hearings, conferences,
and depositions;
11. I will at all times be respectful toward and candid with the
Court;
12. I will avoid the appearance of impropriety.
E. With respect to the public and to our system of justice:
1. I will remember that, in addition to commitment to my
client's cause, my responsibilities as a lawyer include a
devotion to the public good;
2. I will endeavor to keep myself current in the areas in which
I practice and, when necessary, will associate with, or refer my
client to, counsel knowledgeable in another field of practice;
3. I will be mindful of my obligation, as a member of a self-
regulating profession, to be an active participant, when
appropriate, in the disciplinary process;
4. I will be mindful of the need to protect the image of the
legal profession in the eyes of the public and particularly will
be so guided when considering methods and contents of
advertising or other public communications;
5. I will be mindful that the law is a learned profession and
that among its desirable goals are devotion to public service,
improvement of administration of justice, and the contribution
of uncompensated time and civic influence on behalf of those
persons who cannot afford adequate legal assistance.
In a similar document, the Committee on Civility of the Seventh Federal Judicial Circuit
recommended the following:
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FINAL REPORT OF THE COMMITTEE ON CIVILITY OF THE
SEVENTH FEDERAL JUDICIAL CIRCUIT
Hon. Marvin E. Aspen, U.S. District Judge, Northern District of Illinois, Chairman.
William A. Montgomery, Schiff Hardin & Waite, Chicago, Illinois, Secretary
David E. Beckwith, Foley & Lardner, Milwaukee, Wisconsin; George N. Leighton, Earl L. Neal
& Associates, Chicago, Illinois; Hon. Larry J. McKinney, U.S. District Judge, Southern District
of Indiana; Bernard J. Nussbaum, Sonnenschein Nath & Rosenthal, Chicago, Illinois; Nancy
Schaefer, Schaefer, Rosenwein, & Fleming, Chicago, Illinois; Hon. John C. Shabaz, U.S. District
Judge, Western District of Wisconsin; Stephen W. Terry, Jr., Baker & Daniels, Indianapolis,
Indiana, Committee Members
Cornelia H. Tuite, Cole, Grasso, Fencl & Skinner, Ltd., Chicago, Illinois. Reporter.
June 1992
APPENDIX A
PROPOSED STANDARDS FOR PROFESSIONAL CONDUCT
WITHIN THE SEVENTH FEDERAL JUDICIAL CIRCUIT
Preamble
A lawyer's conduct should be characterized at all times by personal courtesy and
professional integrity in the fullest sense of those terms. In fulfilling our duty to represent a client
vigorously as lawyers, we will be mindful of our obligations to the administration of justice,
which is a truth-seeking process designed to resolve human and societal problems in a rational,
peaceful, and efficient manner.
A judge's conduct should be characterized at all times by courtesy and patience toward all
participants. As judges, we owe to all participants in a legal proceeding respect, diligence,
punctuality, and protection against unjust and improper criticism or attack.
Conduct that may be characterized as uncivil, abrasive, abusive, hostile, or obstructive
impedes the fundamental goal of, resolving disputes rationally, peacefully, and efficiently.
Such conduct tends to delay and often to deny justice.
The following standards are designed to encourage us, judges and lawyers, to meet our
obligations to each other, to litigants and to the system of justice, and thereby achieve the twin
goals of civility and professionalism, both of which are hallmarks of a learned profession
dedicated to public service.
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We expect judges and lawyers will make a mutual and firm commitment to these
standards. Voluntary adherence is expected as part of a commitment by all participants to
improve the administration of justice throughout this Circuit.
These standards shall not be used as a basis for litigation or for sanctions or penalties.
Nothing in these standards supersedes or detracts from existing disciplinary codes or alters
existing standards of conduct against which lawyer negligence may be determined.
These standards should be reviewed and followed by all judges and lawyers participating
in any proceeding in this Circuit. Copies may be made available to clients to reinforce our
obligation to maintain and foster these standards.
Lawyers' Duties to Other Counsel
1. We will practice our profession with a continuing awareness that our role is to advance
the legitimate interests of our clients. In our dealings with others we will not reflect the ill
feelings of our clients. We will treat all other counsel, parties, and witnesses in a civil and
courteous manner, not only in court, but also in all other written and oral communications.
2. We will not, even when called upon by a client to do so, abuse or indulge in offensive
conduct directed to other counsel, parties, or witnesses. We will abstain from disparaging
personal remarks or acrimony toward other counsel, parties, or witnesses. We will treat adverse
witnesses and parties with fair consideration.
3. We will not encourage or knowingly authorize any person under our control to engage in
conduct that would be improper if we were to engage in such conduct.
4. We will not, absent good cause, attribute bad motives or improper conduct to other
counsel or bring the profession into disrepute by unfounded accusations of impropriety.
5. We will not seek court sanctions without first conducting a reasonable investigation and
unless fully justified by the circumstances and necessary to protect our client's lawful interests.
6. We will adhere to all express promises and to agreements with other counsel, whether
oral or in writing, and will adhere in good faith to all agreements implied by the circumstances or
local customs.
7. When we reach an oral understanding on a proposed agreement or a stipulation and
decide to commit it to writing, the drafter will endeavor in good faith to state the oral
understanding accurately and completely. The drafter will provide the opportunity for review of
the writing to other counsel. As drafts are exchanged between or among counsel, changes from
prior drafts will be identified in the draft or otherwise explicitly brought to the attention of other
counsel. We will not include in a draft matters to which there has been no agreement without
explicitly advising other counsel in writing of the addition.
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8. We will endeavor to confer early with other counsel to assess settlement possibilities. We
will not falsely hold out the possibility of settlement as a means to adjourn discovery or to delay
trial.
9. In civil actions, we will stipulate to relevant matters if they are undisputed and if no good
faith advocacy basis exists for not stipulating.
10. We will not use any form of discovery or discovery scheduling as a means of harassment.
11. We will make good faith efforts to resolve by agreement our objections to matters
contained in pleadings and discovery requests and objections.
12. We will not time the filing or service of motions or pleadings in any way that unfairly
limits another party's opportunity to respond.
13. We will not request an extension of time solely for the purpose of unjustified delay or to
obtain a tactical advantage.
14. We will consult other counsel regarding scheduling matters in a good faith effort to avoid
scheduling conflicts.
15. We will endeavor to accommodate previously scheduled dates for hearings, depositions,
meetings, conferences, vacations, seminars, or other functions that produce good faith calendar
conflicts on the part of other counsel. If we have been given an accommodation because of a
calendar conflict, we will notify those who have accommodated us as soon as the conflict has
been removed.
16. We will notify other counsel and, if appropriate, the court or other persons, at the earliest
possible time when hearings, depositions, meetings, or conferences are to be canceled or
postponed. Early notice avoids unnecessary travel and expense of counsel and may enable the
court to use the previously reserved time for other matters.
17. We will agree to reasonable requests for extensions of time and for waiver of procedural
formalities, provided our clients' legitimate rights will not be materially or adversely affected.
18. We will not cause any default or dismissal to be entered without first notifying opposing
counsel, when we know his or her identity.
19. We will take depositions only when actually needed to ascertain facts or information or to
perpetuate testimony. We will not take depositions for the purposes of harassment or to increase
litigation expenses.
20. We will not engage in any conduct during a deposition that would not be appropriate in
the presence of a judge.
21. We will not obstruct questioning during a deposition or object to deposition questions
unless necessary under the applicable rules to preserve an objection or privilege for resolution by
the court.
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22. During depositions we will ask only those questions we reasonably believe are necessary
for the prosecution or defense of an action.
23. We will carefully craft document production requests so they are limited to those
documents we reasonably believe are necessary for the prosecution or defense of an action. We
will not design production requests to place an undue burden or expense on a party.
24. We will respond to document requests reasonably and not strain to interpret the request in
an artificially restrictive manner to avoid disclosure of relevant and non-privileged documents.
We will not produce documents in a manner designed to hide or obscure the existence of
particular documents.
25. We will carefully craft interrogatories so they are limited to those matters we reasonably
believe are necessary for the prosecution or defense of an action, and we will not design them to
place an undue burden or expense on a party.
26. We will respond to interrogatories reasonably and will not strain to interpret them in an
artificially restrictive manner to avoid disclosure of relevant and non-privileged information.
27. We will base our discovery objections on a good faith belief in their merit and will not
object solely for the purpose of withholding or delaying the disclosure of relevant information.
28. When a draft order is to be prepared by counsel to reflect a court ruling, we will draft an
order that accurately and completely reflects the court's ruling. We will promptly prepare and
submit a proposed order to other counsel and attempt to reconcile any differences before the
draft order is presented to the court.
29. We will not ascribe a position to another counsel that counsel has not taken or otherwise
seek to create an unjustified inference based on counsel's statements or conduct.
30. Unless specifically permitted or invited by the court, we will not send copies of
correspondence between counsels to the court.
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Judges' Duties to Each Other
1. We will be courteous, respectful, and civil in opinions, ever mindful that a position
articulated by another judge is the result of that judge's earnest effort to interpret the law and the
facts correctly.
2. In all written and oral communications, we will abstain from disparaging personal
remarks or criticisms, or sarcastic or demeaning comments about another judge.
3. We will endeavor to work with other judges in an effort to foster a spirit of cooperation in
our mutual goal of enhancing the administration of justice.
Lawyers' Duties to the Court
1. We will speak and write civilly and respectfully in all communications with the court.
2. We will be punctual and prepared for all court appearances so that all hearings,
conferences, and trials may commence on time; if delayed, we will notify the court and counsel,
if possible.
3. We will be considerate of the time constraints and pressures on the court and court staff
inherent in their efforts to administer justice.
4. We will not engage in any conduct that brings disorder or disruption to the courtroom.
We will advise our clients and witnesses appearing in court of the proper conduct expected and
required there and, to the best of our ability, prevent our clients and witnesses from creating
disorder or disruption.
5. We will not knowingly misrepresent, mischaracterize, misquote, or miscite facts or
authorities in any oral or written communication to the court.
6. We will not write letters to the court in connection with a pending action, unless invited
or permitted by the court.
7. Before dates for hearings or trials are set, or if that is not feasible, immediately after such
date has been set, we will attempt to verify the availability of necessary participants and
witnesses so we can promptly notify the court of any likely problems.
8. We will act and speak civilly to court marshals, clerks, court reporters, secretaries, and
law clerks with an awareness that they, too, are an integral part of the judicial system.
Courts' Duties to Lawyers
1. We will be courteous, respectful, and civil to lawyers, parties, and witnesses. We will
maintain control of the proceedings, recognizing that judges have both the obligation and the
authority to insure that all litigation proceedings are conducted in a civil manner.
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2. We will not employ hostile, demeaning, or humiliating words in opinions or in written or
oral communications with lawyers, parties, or witnesses.
3. We will be punctual in convening all hearings, meetings, and conferences; if delayed, we
will notify counsel, if possible.
4. In scheduling all hearings, meetings and conferences we will be considerate of time
schedules of lawyers, parties, and witnesses.
5. We will make all reasonable efforts to decide promptly all matters presented to us for
decision.
6. We will give the issues in controversy deliberate, impartial and studied analysis and
consideration.
7. While endeavoring to resolve disputes efficiently, we will be considerate of the time
constraints and pressures imposed on lawyers by the exigencies of litigation practice.
8. We recognize that a lawyer has a right and a duty to present a cause fully and properly,
and that a litigant has a right to a fair and impartial hearing. Within the practical limits of time,
we will allow lawyers to present proper arguments and to make a complete and accurate record.
9. We will not impugn the integrity or professionalism of any lawyer on the basis of the
clients whom or the causes, which a lawyer represents.
10. We will do our best to insure that court personnel act civilly toward lawyers, parties, and
witnesses.
11. We will not adopt procedures that needlessly increase litigation expense.
12. We will bring to lawyers' attention uncivil conduct, which we observe.
Participation in Bar Activities. Attorneys are more than advocates for individual clients
or client-groups; attorneys are also members of a self-governing professional group that plays an
essential role in the development of law and the administration of justice within society. The
collective voice of attorneys on a local, regional and national level is very important. Therefore,
it is essential that all attorneys participate in local, state and national bar associations and lawyer
affinity groups. Lawyers groups have an important voice in advocating for wise, just and
progressive reform both within the bar and within society generally. Attorneys should be
encouraged to form new collective groups to address the variety of social and legal issues that
arise during their careers. Vigorous bar associations are also important to insure effective self-
regulation and to assist the courts in formulating codes of conduct and practice. During the
clinical experience, students are encouraged to attend Bar meetings and to explore the different
affinity groups within the profession.
Create Individual Professional Plans. An attorney’s skills, knowledge, wisdom and
abilities continue to develop and mature over an entire career. Each attorney should try to
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develop and frequently modify a career or professional development plan. Learning and
professional development should continue over a lifetime. A major part of any career plan should
include personal fulfillment, family commitment, and meeting personal and family obligations.
Career satisfaction is a major component of a professional career plan. Students are encouraged
to discuss their career goals and develop plans among themselves and with their supervisor.
Awareness of Professional Stress. All attorneys should be aware that the professional
life and obligations of an attorney produce very predictable stress and patterns of human
reaction. As human beings attorneys need to know that uncontrolled or unaddressed stress will
have a negative impact on their professional lives, on the professional lives of their colleagues,
and on their personal lives. All attorneys should be aware of the common symptoms of alcohol
and substance abuse, as well as methods and programs of treatment. Attorneys should also be
aware of the close interrelationship between un-addressed professional and personal stress and
bar disciplinary problems. Attorneys also need to keep economic pressures and concerns in
check. Economic pressures and forces within the profession are a constant source of stress.
Students need to be mindful of the need to create a strategy for addressing and coping with the
inevitable and inherent stresses in the profession.
Support for Pro Bono Public Services. The notion that attorneys have a professional
obligation to perform regular uncompensated public service is not new. Over the years, the
organized bar has moved closer and closer towards mandatory programs for attorney public
service. The current debate is mostly whether public service should be entirely voluntary or
mandatory. As the notion of public service develops, all attorneys should commit to some sort of
personal program of public service. This program of public service can take many forms from
direct service, to financial support, to support of bar sponsored programs. The professional bar
has a long history of providing and advocating for pro bono publico services for disadvantaged
members of society. High quality legal representation and access to justice should not depend on
financial ability. Every lawyer should make sure that his professional program includes some
form of public service.
Attorneys as Guardians of Constitutional and Individual Rights. In line with the
professions support for pro bono publico services, attorneys have developed a historical and
natural role as protectors of constitutional and individual rights. All attorneys need to insure that
this role continues to develop and that the rights of all persons are fully respected and enforced
under the rule of law. Law students should also be aware that in certain cases the adverse
attorney may be providing this type of service to his or her client. In the law clinic, many of the
public service cases and projects fall into this category of professional service. Students are
encouraged to discuss and suggest additional types of cases and projects while they are in the law
clinic. This type of public service lawyering should also be carried into later professional
practice.
Awareness of Public Attitudes and Criticisms. The legal profession is a very visible
and important profession. The professional and personal activities of lawyers and judges are
often in the public forum. Attorneys should be aware of this phenomenon and should conduct
themselves in a way that reflects positively on the profession. Many criticisms of attorneys and
their roles in different public activities are often justified. This will probably never change.
Attorneys are naturally involved in almost all public controversies. All lawyers need to work to
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educate the public about the issues and policies involved in these controversies in order to insure
that there is full and fair discussion. Attorneys may even have an obligation to step forward and
speak to make sure that public discussion is not one-sided. Each attorney should strive to create a
positive role model or frame of reference for the public. Public service programs and public
education are ways to help create a more positive image for attorneys.
Participation in Public Education on Law Related Issues. Public education on
important legal issues and controversies is essential to public understanding of the legal
profession. In addition, attorney and judicial disciplinary procedures need to be more open and
public, so that the public develops confidence in self-regulation and discipline. All attorneys
should volunteer to help in public education and public forum discussions that involve legal
issues and improve legal understanding. All attorneys should be concerned about the impact of
attorney jokes and unrealistic portrayals of attorneys and the legal system in the media.
Attorneys should speak out when there is an unfair or incorrect portrayal of attorneys or the
courts. Students in the law clinic are encouraged to participate in and to create public education
projects.
The items listed and discussed above are just some of the general aspects of
professionalism that are often discussed within the legal profession and in the law clinic.
Students should ask if there are other aspects of professionalism that need to be discussed? The
larger question is what factors differentiate a true professional from a novice, an amateur, or a
tradesperson. Are these factors different for boxers, musicians, carpenters, accountants, doctors,
or attorneys? Students should also be aware that professionalism is a life long topic of
discussion.
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62
VI. Legal Interviewing
Introduction
Legal interviewing of clients, witnesses, or other persons with information is an essential
skill for an attorney. It is a skill not often formally taught or studied. When a course in
interviewing is offered, it is probably not high on the typical law student’s list of course
priorities. It is also a subject area in which many students feel they may already possess adequate
skills. Some students may also feel they will learn or master this skill later in their practice or
that it is relatively unimportant. In the law clinic, legal interviewing is viewed as an essential
attorney skill that must be seriously studied and repeatedly practiced in order to master. Study
and practice clearly make one better. The reality for lawyers is that no matter what their area of
practice or specialty, good interviewing technique is an essential and repeatedly utilized skill.
In the law clinic, legal interviewing is generally the subject of one or more classes,
usually supplemented by simulation exercises, as well as a series of closely supervised live client
interviews. All students will interview a number of potential clients as part of the case
acceptance and evaluation process. Clinic students will also interview or re-interview clients and
witnesses as part of their case handling or client representation experience. All interviews must
be summarized and evaluated by the student in a formal memorandum. The interview
memorandum is then reviewed by the supervising professor and discussed with the student. On
occasion, initial interviews of potential clients and clients are also videotaped and the videotaped
interview is then reviewed and critiqued by the professor and student. Clients who are
videotaped must give prior consent to the videotaping and all client videotapes are covered by
attorney-client privilege. The important point for the law student is that interviewing is an
essential skill that must be studied, practiced, and developed.
Interviewing as Process. For the law student learning about interviewing, two concepts
are critical. The first is that interviewing is a process. It is rare that all needed or useful
information is gathered in one interview or encounter. In order to get all needed information and
a true understanding about a given situation or person, more than one interview is usually
required. This is particularly true in the attorney-client relationship and in the critical witness
situation. The second is that the most critical ingredients to good interviewing are listening,
observing and evaluating. Accurate recording and reporting, while important factors, are
generally secondary goals that can be adequately addressed outside the actual interview.
Listening and observing are clearly more important, particularly in initial interviews, than
is note-taking. In an initial interview, careful listening to what is being said and how things are
being said can provide vital information to the interviewer. Careful observation can disclose
important non-verbal communication. Careful listening and careful observation can then be
combined with the necessary factual information to get a better assessment of the client or
witness. A related technique that is central to careful listening is the concept of “active
listening.”
Learning to Listen. Active listening can be summarized as the technique of the
interviewer carefully interacting with the interviewee, with a series of careful and limited short
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questions designed to test or develop the information being given. An example would be to
repeat or summarize key facts or information at the appropriate point in the interview to test or
probe the information from the person being interviewed. Simple examples would be such things
as: repeating key words or phrases, “You were hit four different times?” Another example would
be summarizing client conclusions or implications, for example, “ How are you sure your case-
worker is being vindictive?” The essential ingredient in active listening is the non-judgmental
repetition of information that is being provided, and then carefully evaluating the response.
The Initial Interview
In the law clinic, law students will be given the opportunity and challenge of interviewing
numerous clients, witnesses, and other persons, as a learning and practice exercise. Most
interviews will be with potential clients and existing clients. Persons seeking legal representation
by the clinic will be the most common and maybe the best learning experience. These are
generally referred to as initial interviews. An outline of how to prepare for these interviews
follows. Much of what is said can also be applied to other types of interviews.
Pre-Interview Preparation
Understanding the Client Base. Most clinic clients are low-income persons and many
come from diverse socio-economic and cultural backgrounds. Some of the clients come from
discrete low-income groups, for example homeless persons or undocumented immigrants. Most
law students come from different backgrounds or have had only limited exposure to these
potential client groups. This requires the law student to become as knowledgeable as possible
about the client and the client group before the interview. Students should carefully guard against
stereotyping and generalizing about clients and client groups. Some client information is
generally available in the client intake sheet, if one has been prepared. If the potential client falls
within a common client grouping, such as “homeless person”, “battered spouse”, “undocumented
worker”, “juvenile offender”, the student should try to get as much background or demographic
information as possible. If the potential client is referred to the clinic by a particular agency or
group, the student should get general background information from the group or agency about
commonly encountered legal issues or problems.
It is also very likely the supervising law professor, other clinic students, possibly even
previous students, have worked with the particular group or agency. A short pre-interview
conversation can either provide useful background information or provide useful leads. Other
useful sources of background information can be topical practice manuals and legal or non-legal
publications. The Internet may also provide useful background information. The essential point
here is that the student should try to learn as much about the client and his “client group” as
possible before the interview. Much of this information is general background information and
much of it will be inapplicable to a particular client. Students should educate themselves as much
as possible before the initial interview.
The student should be aware that certain client groups might also have certain common or
recurring problems in addition to the stated legal problem. For example, low-income persons in
addition to the “contract dispute,” might also have a public benefits problem. Likewise, the
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“domestic violence” victim probably also has a safe shelter and counseling and support group
need. Students should adopt a holistic approach to initial interviews. Clients often have legal
problems other than the particular legal problem presented to the interviewer.
Client Intake Sheet and Type of Legal Problem. The student will often have a
completed client intake sheet and a general characterization of the potential client’s legal
problem, for example, “divorce,” “will,” “contract dispute.” The client intake sheet also provides
certain specific information, e.g. name, address, phone number, adverse party, summary of client
resources, type of dispute, etc. This is very useful to the student. The intake sheet gives the
student a very general sense of who the client is and their overall financial situation. During the
initial interview, the student should try to verify the accuracy of this basic information.
The intake form also provides an important effort to try to characterize the type of legal
problem the potential client wishes to discuss. Unless the student is familiar with the law in a
given area, e.g., “divorce,” “wills,” “contracts,” “deportation problem,” the student’s first effort
should be to learn as much about the substantive area involved as possible. Obvious sources of
information are, applicable statutes, rules, case-law, practice manuals, the supervising professor,
the clinic brief-bank, other law students in the clinic, professors who teach in the area, and in
carefully limited circumstances, outside specialists in the area. When consulting outside
specialists, a special effort must be made to avoid potential conflicts of interest and to observe
strict client confidentiality.
Practice manuals are a particularly good source for pre-interview preparation. There are
practice manuals in virtually all common practice fields and almost all have checklists or guides
for common issues or problems within the given specialty. For example, in the fields of
“divorce,” “wills,” “contracts,” and “immigration,” there are excellent general practice manuals
available. The clinic brief bank and its templates and forms are also a good source of general
practice information.
Students are cautioned that the primary purpose of the initial interview is to listen.
Students should be careful not to allow the background information or legal research to narrow
their view of the client’s potential legal problems. In certain situations, a student may be more
able to listen carefully without the investment in background information and research.
Try To Anticipate Document or Evidence Needs. Students are encouraged to call the
potential client before the actual interview. For example, in a “contract dispute,” clients often
forget to bring the contract. In any situation where the document is critical to the dispute, it is a
good idea for the student to call the prospective client before the interview to make sure that he
or she brings the necessary “contract” or other necessary documents. This pre-interview
telephone conversation should not become a substitute for the interview. It should merely be an
introduction and a reminder to bring documents that may be needed or useful.
Conflicts Check. Conflicts Check. Checking to insure against professional conflicts of
interest is a critical first interview, and pre-interview process. Before the interview the law
student should check the conflict of interest check form to make sure it has been filled out and to
check for potential conflicts. During the interview the student should also make sure all
questions have been filled out and necessary follow up questions asked. Each student should be
65
completely aware of all questions on the questionnaire and of the clinics conflicts policies.
Professional conflicts of interest are a serious professional and mal-practice issue. In general,
students are referred to Rules 16-107, 16-108, 16-109, 16-110, 16-111, 16-112, and 16-402, New
Mexico Rules of Professional Conduct for a listing of the common areas that create a conflict of
interest for an attorney. Any suspected conflicts of interest or questions about potential conflicts
should be fully discussed with the supervising professor. Students should also be aware that their
own outside employment, previous, present and future can create conflicts of interest with
existing and prospective clients. At the beginning of each semester, students should disclose
previous legal employment to the supervising faculty member to avoid any job related conflicts.
If legal employment changes during the semester students should make a similar disclosure.
Do Some Basic Legal Research. The client intake sheet will usually have a short
description or characterization of the client’s general legal problem. Examples would be:
“divorce,” “landlord tenant,” and “contract dispute.” If the student has not taken the appropriate
background course, it would be wise to do some basic legal research in the general area. The
student should read the applicable statutes, case law, or practice manual. Other useful sources of
background information would be the supervising professor, other clinic students, or the
professor teaching the general course. In general, a student should make sure he or she has some
general legal knowledge of the substantive area to be discussed. At a bare minimum, the
prospective client will expect some preliminary legal advice.
The Initial Interview. The following is a list of factors a student should consider in all
interviews, but especially in initial interviews.
Review the client intake sheet and conflicts check form. Make sure both forms are correct
and completely filled out by the end of the interview. Make sure you ask all questions you may
have about these forms.
Dress Professionally. Regardless of how informal the law school environment may
become, clinic students should always dress professionally to interview clients. Coats and ties for
men and dresses and appropriate office attire for women are still the norm. Potential and existing
clients have a socially instilled mind-set of how a “real” attorney dresses. Normal student attire
usually does not conform to this expectation. Even when the relationship is already established
and formalities are more relaxed, law students are cautioned to dress professionally.
Always be on time! The client expects professional service and attention. Being late to
the initial interview is not a good way to start a professional relationship. If exigent matters do
make you late, always apologize. If you know before the scheduled interview that you must be
late, preferably call the client or speak to the clinic receptionist to insure your delay is addressed.
If you only have a limited time for the interview, make sure you state this early in the interview
in order to avoid creating the impression that you are abruptly cutting off the interview. If you do
not have time to listen to everything the client wants to discuss, make sure you arrange to
complete the interview. The sooner you schedule a follow-up interview or conversation the
better. An important aspect of the professional relationship is that the client has a strong need to
feel the attorney is listening and that the client has had the opportunity to say everything they
want to say.
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Who Should Be There? As an aspect of attorney client confidentiality, in most
interviews absent some clearly defined personal or legal need, all legal interviews should only
involve the client and the attorney. The presence of any third parties may lead to a waiver of the
attorney client privilege.
The reality is, clients often bring family members or friends to legal interviews. The law
student must make an initial determination of who must or can be there. Obviously, client
consent is essential for anyone to be present at any confidential conversation. Clients bring
friends or relatives for moral support, to serve as interpreters, or even as witnesses to certain
events. Sometimes the outsider is just being helpful.
Given the need for strict confidentiality and the need for frank discussions, the rule is,
unless there is some legal need, only the potential client and the attorney should be present for
interviews. If interpreters are required, clinic staff should be used since attorney client privilege
extends beyond attorneys to law clinic staff. If a third party must be present, client consent
should be clear. The expectation of confidentiality should be clearly explained to the third party.
Under no circumstances should adverse parties, important witnesses, or potentially adverse
parties be present during attorney-client interviews. A typical example of this last situation is
often encountered in family law cases where both the client and the soon to be ex-spouse appear
for the initial interview. If one is to be the client, the other must be excluded from the interview.
Another example is where a child brings an elderly parent in for a will and then tells the attorney
what the parent wants to do. Even when only the potential client is present, the student should be
alert for the presence of “ghosts” in the interview. This is where the third party is not present, but
their actions or influence are obvious. An example would be a juvenile case where the juvenile
client tells the interviewer, “my parents told me to do this.” In legal interviews, “ghosts” can be
as much of a problem for the attorney as third parties who want to be present during the
interview. Client confidentiality is essential in all interviews.
Meeting, Greeting, Seating. The student should greet the client in a warm, professional,
and appropriate manner. First impressions are critical in a relationship. Appropriate “ice-
breaking” and friendly conversation is a normal and expected human activity among strangers. It
is also vital to pay attention to the first statements made by the client, even if they are made
during this “ice-breaking” conversation. Most interviews are generally low-key, business like
conversations. However, if a person is upset or grieving, overly friendly conversation may not be
appropriate.
Usually, the student meets the new client in the reception area and guides the client to the
assigned interview room. A friendly introduction and handshake is usually a good start. Once at
the interview room the student should make sure the client is comfortable and start the
conversation. Unless the conversation is particularly friendly, it is probably best to start the
initial interview by directly addressing the legal issues presented. A simple: “Hello, my name is
_____________. I’m the law student assigned to your case. How can I help you?” The potential
client then will usually start with a narrative of why they have come to the law clinic. This also
starts the “listening” process.
Let The Client Do Most of the Initial Speaking. Once you have introduced yourself, it
is best to let the client introduce himself or herself, place themselves in context and in a very
67
general way define the context of their legal problem. This important early information gives the
interviewer critical information on client capacity, client articulateness, the presence of any
intense grief or anger, and a very rough sense of the level of importance of this legal problem to
the client. This first open-ended communication is part of the “listening” process for the
interviewer. This first part also provides valuable information to the student on how the rest of
the half-hour to one-hour initial interview may have to be conducted. A good rule of thumb is to
let the client do almost all of the talking for at least the first half of the interview.
Discuss Attorney-Client Essentials Early. At the appropriate moment in the early
conversation, the law student should communicate certain essential attorney-client information.
The student should make sure the potential client understands that the interviewer is a law
student acting under the supervision of a law professor. The student should not create the
impression that he or she is a fully licensed attorney. Some discussion of the student practice rule
is appropriate. Confidentiality and attorney-client privilege should also be explained to the client.
This is particularly important if the interview is being videotaped. The student should make sure
that potential client understands that the initial interview is to determine whether the Law Clinic
will undertake representation. Formal client representation is conditioned on case acceptance and
a signed case acceptance letter. Some discussion of client eligibility and the case selection
process is always appropriate. Client fees, attorney fees, and client costs should also be
explained. Clients are generally somewhat apprehensive of high legal costs and fees. These last
two items might be discussed at the end of the interview, but this information should be
communicated to all clients during the initial interview.
Is The Client Already Represented? Speaking to a potential client who is represented
by counsel can cause major professional misunderstandings. Whether a prospective client has
been previously represented or more importantly is currently being represented in the same
matter is important information. In a frequent number of interviews, the student may discover
that the potential client has spoken to another attorney from the intake form or from the client’s
comments. A simple question, “Have you discussed this matter with another lawyer?” will
generally suffice. If the answer is “yes” or seems to be yes, the student should follow up and
determine if another attorney was merely consulted or if in fact there is an attorney client
relationship with some other attorney. These areas are quite often gray. If the student cannot get
a clear answer, this matter should be fully discussed with the supervising attorney, and in the
appropriate case with the other attorney before formal representation is undertaken. If the
potential client is already represented by another attorney in the same matter, the student should
end the interview until any professional conflict or misunderstanding is clarified. Rule 16-402,
Rules of Professional Responsibility, provides:
68
RULE 16-402. COMMUNICATION WITH PERSON REPRESENTED BY
COUNSEL
In representing a client, a lawyer shall not communicate about the subject of the representation
with a party the lawyer knows to be represented by another lawyer in the matter, unless the
lawyer has the consent of the other lawyer or is authorized by law to do so. Except for persons
having a managerial responsibility on behalf of the organization, an attorney is not prohibited
from communicating directly with employees of a corporation, partnership, or other entity about
the subject matter of the representation even though the corporation, partnership, or entity itself
is represented by counsel.
Let The Client Vent. The typical legal client comes to the clinic under some degree of
individual stress. The larger the legal problem and the greater the potential consequences are to
the client, the greater the degree of probable stress. Some types of legal problems have inherent
levels of high stress, for example, divorce cases, domestic violence cases and certain criminal
cases. It is clear that persons who are angry, hostile, grief-stricken, or hurt have a difficult time
being objective or focusing their communication at the level required by an attorney. As long as
the client is in this state, it is difficult for the attorney to get useful information or get the client to
make an informed decision. It is therefore essential for the attorney to let, or even help, the client
get over this emotional state. In the initial interview, the potential client may exhibit these types
of emotions. This is a normal response to the stresses posed by many common problems.
Divorce, domestic violence, job loss, and severe economic threats are common legal
problems that may trigger strong emotions. Ordinarily, the attorney should not proceed until
these emotions are at a low enough level to allow effective communication and rational decision-
making by the client. One of the best devices, especially in an initial interview, is to let the client
vent. For many humans, venting of anger is a common part of complete communication. For the
attorney, anger and grief must be acknowledged and dealt with as part of the client’s overall
problem. Low-level stress and common stress typically pass in one or two sessions. Intense or
high level stress requires a longer period of time and may even require referral to a professional
counselor. In legal interviews, the student should make sure communication or decision-making
is not unduly clouded by stress or anger.
Ask for All Documents. As mentioned before, clients often forget to bring or obtain
needed legal documents to an initial interview. If the student has not called the client before the
interview, the student should ask the client to provide the necessary documents by a set time and
date. If the client does have needed documents, the student should obtain them, and after the
interview is concluded, the copies should be made and the originals delivered to the client or
placed in a safe place. The student should also try to anticipate if there might be other sources for
needed documents in the possession of others. The same process should be followed here. If the
client can obtain them, he or she should be asked to do so. Most legal cases involve documents,
evidence, or other materials essential to a proper legal evaluation. If needed documents are not
available, the student should make sure the client understands legal evaluation of the case or case
acceptance may be dependent on receipt of these documents.
Review The Court File. In cases where the potential client is involved in on-going
litigation, either as a party or a witness, the student should always review the court file before
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undertaking representation. The court file can be very revealing. Reviews of the court file will
not only discloses the legal issues, but will also disclose the relationship of the parties, the
number of attorneys who have previously provided representation in the case, and any hidden
problems of which the client may be unaware. If the court file reveals litigation has been
prolonged, complex, or acrimonious, these might be reasons not to undertake representation.
Fight The Urge To Take Notes. In initial interviews, “listening” and “active listening”
are generally more important than accurate notes. While some note taking is needed in all
interviews, in the initial interview listening to what is being said and how things are said is more
important. Note taking should generally be deferred to the second half of the initial interview and
most of the interview committed to memory. Note taking, and especially detailed note taking,
can be a major barrier to initial communication and understanding. What the attorney writes may
become a distraction to the client’s narrative. The student should jot down major points and
essential names and addresses. Full attention and concentration should be given to the client.
After the interview is concluded, the student should immediately type out the facts as given by
the client in the intake interview memorandum. If certain facts are unclear, a telephone call or a
follow-up interview will correct the situation.
Avoid Being Judgmental. In many legal interviews, the student will encounter human
behavior or conduct that is unusual, perhaps even silly, and possibly even conduct that offends
the student’s own values or lifestyle. Clients need a basic level of compassion, empathy, and
understanding in order to establish a level of trust and confidence in the attorney. In the initial
interview, the student should fight any tendency to be judgmental. Comments such as, “that’s
foolish,” “why did you do this,” “didn’t you think before you acted,” or other judgmental
comments should be strictly avoided. Remember, what may be obvious, prudent, or wise to the
student may not be so to the client. In a related matter, since many of the law clinic’s potential
clients are low-income persons, overriding issues such as poverty, drug-use, or homelessness
may severely limit the potential clients options or behavior. Any language or conduct that is
interpreted to be judgmental by the client will impede the formation of a positive attorney-client
relationship.
Understand Your Legal Limitations. The law student should accept and understand
that he or she is a law student in a learning environment. The student should make sure that the
potential client understands this. Similarly, the student should not create the false impression that
he or she is in fact an attorney. The professor- student relationship and the close supervision and
review process in the law clinic should be discussed to alleviate any client concerns.
Giving Preliminary Advice. The majority of clients want some legal advice and positive
assurances during the initial interview. This is a very natural human tendency. Prior to the
interview, the typical client has probably reviewed and rehearsed their situation and the facts
several times. The one thing they most want to hear is that they will be fine and that their legal
situation can be favorably resolved very quickly. Experience and reality have taught that
satisfying both of these objectives during a thirty minute, one-sided review of a possibly
complex legal or factual matter may be impossible. While the law student should be supportive
and understanding, a little bit of healthy skepticism should always be present. It is always easy to
agree with a client’s position or goals, but it may not always be safe. The obvious tempering
factor is that the law student is still a student. While the student may have some relevant
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substantive knowledge, for example, they may have completed the family law course, they
almost always lack some real world or procedural experience. Therefore, giving desired
preliminary advice is a difficult problem for law students. If the student has a clear understanding
of the relevant substantive law and the facts are relatively clear, then the student is probably safe
in giving some very basic, preliminary and general advice, so long as it is conditioned on the
facts and law actually being presented.
Similarly, if some matter is clearly within the realm of “common sense,” the student
should feel comfortable in giving simple obvious advice. For example, a student may tell a client
not to drive when it is obvious that the client’s license has been suspended. Some general
definitional and characterization advice is probably always safe, but a student should be very
careful in reaching any firm legal conclusions. Under no circumstances should a student promise
or “warrant” a particular result or outcome. Students should be aware that facts usually need to
be confirmed or developed and all cases require some legal research before any legal opinions
are formed. All legal advice and counseling must also be reviewed and approved by the
supervising faculty member before it is given.
Don’t Be Afraid to Admit You Don’t Know. In many client interview situations, the
law student will have taken the appropriate background course or have some experience in the
relevant substantive area. This, of course, should help and might be something the student would
communicate to the prospective client. However, in many situations the client will have a
problem in an unknown substantive area or will ask questions outside of the student’s knowledge
or experience. In these situations, the best and safest course of action is for the student to admit
he or she does not know the answer. The next thing to do is to assure the client that the question
will be discussed with the supervising professor or researched and that the client’s question or
concern will be answered. The real danger in these situations is that the student may fake
knowledge or experience and may misinform the client. Since law and procedure is generally
“gray,” there is nothing wrong for the student or lawyer to tell the client, “ I don’t know the
answer, but I will research the matter and tell you what I find out.” The student should then make
sure the unanswered question is answered.
Explain The Case Acceptance Process. In addition to feeling someone has “listened” to
his or her story and that there is some empathy and understanding, the typical prospective client
wants immediate legal action and “acceptance.” While this immediate “acceptance” of a legal
case or cause may be possible in later legal practice, in the law clinic all cases must first be
reviewed by the supervising professor and also approved by the clinic faculty as a group. This
process, and the time limitations involved should be explained to the prospective client. If legal
research or additional documentation or investigation is required before the case-screening
process can be completed, this time and labor limitation should also be clearly explained to the
prospective client. Under normal or typical circumstances, the case review process should be
completed within seven working days of the interview. If for some reason the process should
take a day or two longer, the law student should call the prospective client by telephone to
explain any delays. If any delays are anticipated, such as holidays or other clinic related
demands, this should be explained to the client.
If during the interview, the prospective client discloses any immediate emergency or
deadline requirements, such as the statute of limitations or an immediate hearing, the student
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should immediately communicate this emergency aspect of the case directly to the supervising
attorney. In all cases, the student should clearly communicate to the prospective client that legal
representation will not begin until a case acceptance letter is signed and returned by the client
and all clinic fees or litigation costs are paid. Finally, since many prospective clients are truly
indigent, the law student should be aware that law clinic fees could be waived for good cause by
the supervising professor and the clinic director. In cases where a fee waiver is granted, this
should be noted in the client’s file.
Write Your Intake Memorandum Immediately. Upon conclusion of the interview, the
law student should write the intake memorandum as soon as possible. The format for the intake
memorandum is in the clinic brief bank. The facts and important impressions of the client’s case
are freshest in the student’s mind immediately after the interview. Unless the facts are very vivid
or unusual, the accuracy probably fades quickly. The intake memorandum should be as factually
detailed as possible. It should include a statement of the client’s legal problems, client goals, an
assessment of the client, a proposed course of legal resolution, basic legal research including
legal authority, and a recommendation of case acceptance or non-acceptance.
The major parameters for case acceptance by the law clinic follow. Client eligibility and
case type are primary considerations. The law clinic does not accept fee generating cases, cases
in which the client has access to other legal services, felony defense cases, and cases outside
Bernalillo County. In general, to be accepted a particular case must have educational value, be a
type of case appropriate for student handling, not be unduly complex or time consuming, be in
the law clinic’s present and future resources to handle, and be compatible with the law student’s
current and future caseload obligations. Cases that cannot be concluded within one or two
semesters require special consideration of future clinic resources and competency. Student
caseload, caseload mix, and the supervising professor’s educational plan for the semester are also
important factors. Finally, while the law clinic would like to help as many persons as possible,
the reality is that only a limited number of persons can be helped. The other limiting reality is
that the current law student is only in the law clinic for one semester and a different student and
professor will replace him or her at the end of the current semester. Students are also reminded
that each section in the law clinic will have slightly different caseloads and caseload selection
guidelines.
Do The Legal Research. In addition to summarizing the facts and providing supporting
documentation, all intake memorandums should explain the legal problem, propose a course of
legal action, and include a clear reference to applicable law. Applicable statutory law, court
rules, local court rules, case law, and any other governing law need to be clearly researched and
stated before the memorandum is submitted to the supervising faculty member. In more
complicated or unclear legal situations, a complete and separate legal memorandum or brief
should be completed. This may slow or complicate the case acceptance process. No intake
memorandum should be submitted without a reference to applicable law, a proposed course of
legal representation, and an assessment of probable legal outcome. Every intake memorandum
must also have the law student’s proposal of case acceptance or non-acceptance, with a draft of
an appropriate letter to the proposed client.
Write the Proposed Acceptance or Non-Acceptance Letter. A case acceptance or non-
acceptance letter must be sent out in every case where a client has requested legal representation
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or advice by the law clinic. A common area of tension between professor and student is caused
when a student proposes a course of conduct or arrives at legal conclusions without the necessary
reference to legal authority. If the law student is unsure where to start, he or she should confer
with the supervising faculty member.
Follow Up on Case Acceptance Letters. All case acceptance letters should clearly
notify the client of case acceptance, provide a clear and detailed statement of the scope of
representation (including all limitations), state clearly what costs or fees the client must pay, and
set a clear deadline by which the client must sign and return the acceptance letter. If
representation is contingent on payment of certain fees or costs, this should be clearly stated. The
deadline for a response should be reasonable and practical. If the client has not returned the
acceptance letter by the deadline, the law student should promptly write a non-acceptance letter
to the client, rescinding the earlier letter. In a case where the prospective client has serious
practical or financial problems, it is a good idea for the law student to call the prospective client
about any difficulties. In no circumstances should a case acceptance letter be open-ended on the
time to accept, or left beyond the deadline without a letter withdrawing the earlier acceptance.
The status of all prospective clients regarding case acceptance or non-acceptance, should be clear
and in writing at all times. A sample case acceptance letter is provided below.
Provide A Referral For Rejected Cases. In cases where the decision has been to decline
representation, the non-acceptance letter should be promptly mailed to the applicant. If there is
any emergency aspect to the case, the law student would be wise to also call the applicant and
inform him or her of the decision to decline representation. A prospective applicant with any
kind of legal emergency should not be in a state of false hope of clinical representation. The
reason for non-acceptance should be clearly stated in the letter. In addition, with the approval of
the supervising faculty member, the law student might consider giving some very limited
practical or obvious legal advice. In all situations where the clinic is not agreeing to represent a
person, the student should always try to refer the prospective client to another attorney or agency
that can possibly help with their problems. The law clinic receptionist maintains a complete list
of available alternative agencies and co-operating attorneys. If the client’s problem appears to be
a non-legal problem, a referral to a social service or affinity group should be considered. A good
lawyer should try to help even those he or she cannot represent. All non-acceptance letters
should include language that encourages the applicant to seek other legal advice or counseling if
the client desires or could be helped by an attorney. If the reason for non-acceptance is high
caseload with the law clinic, the student should consider recommending that the applicant
reapply later.
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Bibliography
American Bar Association, The Legal Beauty Contest: recommendations and proposed
guidelines for preliminary interviews between attorneys and prospective clients / a report
of the Subcommittee on Attorney-Client Privilege and Work Product, Committee on
Pretrial Practice and Discovery, (ABA 1996).
Binder, David A., Price, Susan C. Shaffer and Elkins’ Legal Interviewing and Counseling in a
Nutshell, (3d ed., West 1997).
Cochran, Robert F., DiPippa, John The Counselor-at-law: a Collaborative Approach to Client
Interviewing and Counseling, (Mathew Bender 1999).
Herman, G. Nicholas, Kennedy, Joseph E., Cary, Jean M. Legal Counseling & Negotiating: A
Practical Approach, (Lexis-Nexis 2001).
Krieger, Stefan H., Neumann, Richard K. Jr., Jamar, McManus, Kathleen, H., Steven, D.
Essential Lawyering Skills: Counseling, Negotiation, and Persuasive Fact Analysis,
(Aspen 1999).
Practicing Law Institute, Client Interviewing, (Practicing Law Institute 1997) (CD-ROM).
Practicing Law Institute, Interactive Courtroom, CD-ROM, (Practicing Law Institute 1997).
Shaffer, Thomas L., Elkins, James R. Legal Interviewing and Counseling in a Nutshell, (3d ed.,
West 1997).
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VII. The Case Acceptance Letter
Introduction
The cases acceptance letter is a critical and often overlooked item of legal drafting in the
law clinic and perhaps the legal profession. It is that all important first piece of legal
correspondence between the attorney and the client that not only defines the larger parameters of
the contractual relationship but also sets the tone for an evolving attorney-client relationship.
Law students should be aware that, as a contractual matter, no formal written document is
required to establish an attorney-client relationship. An attorney-client relationship can be
established orally. Malpractice and discipline cases are filled with examples of attorney client
relationships that were created with no written documents. Many cases indicate that an attorney-
client relationship exist when the client believes that an attorney-client relationship was created.
Good professional practice and almost all professional liability policies require that all
prospective clients be sent either an acceptance letter or a non-acceptance letter. The policy in
the Law Clinic is to send such letters to all prospective clients for both reasons.
Letters of acceptance present special challenges for the attorney because they define both
the professional relationship and address the key contractual terms for the law clinics’ clients.
Poorly drafted letters present recurring problems for law students and professors. In the law
clinic, the letter of acceptance is the primary if not the exclusive contractual document between
the law clinic and it’s clients. Accordingly, these letters must be carefully drafted to avoid these
recurring problems of definition and intent, both in the clinic but also in later practice. Given the
limited ability of one letter to accurately define all necessary and common contractual terms
between a law firm and it’s clients, many law firms have adopted standardized attorney client
contracts, or even specialized agreements for particular types of cases. While a separate more
detailed agreement may be a better general document, given that the Law Clinic does not charge
attorney fees or costs and therefore does not have a more commercial relationship with it’s
clients, the case acceptance letter is probably safely utilized as the primary contractual document.
In later practice, law students would be wise to consider a more formal written document, for
their attorney-client agreements. Examples of these types of documents exist in different
specialized practice books.
The best way to think of the case acceptance letter is as a basic bilateral agreement
between the law firm and the client. It should define the mutual obligations of both parties and it
should try to anticipate common issues or tensions that will or may arise during the course of the
contract and relationship. The common drafting problems that exist in law clinic letters of
acceptance are: defining what will be done, defining and limiting the scope of representation,
setting some kind of timetable or guidelines, stating attorney expectations for the client, and
establishing responsibility for costs and fees to be paid by the client. If the letter establishes a
relationship with more than one person, the letter should also address any conflicts that may
arise. Each of these potential issues should be carefully considered when a case acceptance letter
is being drafted.
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Define What Will Be Done
Almost all letters of acceptance start with a positive introductory statement such as, “ I
am happy to inform you that the UNM Law Clinic has agreed to legally represent you
in______________.” This is generally a nice positive tone piece, but the important point is
filling in the blank and in drafting the following definitional sentences. All acceptance letters
should clearly define what the Law Clinic is undertaking to do, who will do what, and where and
against whom any legal action will be taken. This scenario assumes some sort of litigation case,
but administrative cases, or other types of research or advocacy situations raise the same issues.
The letter should clearly state what the attorney is undertaking to do. Rough examples of these
types of activities would be, “…to file a divorce action against your spouse Bill Smith”, “…to
investigate and research the potential liability of your landlord, Bill Smith, for damage to your
furniture caused by leaky plumbing at the ABC Apartments on March 10, 20__”, “…draft and
submit articles of incorporation as a New Mexico non-profit corporation for Amigos Del Rio and
draft and submit a federal Form 1023, Application for Tax Exempt Status, to the Internal
Revenue Service”, or “ . . .research the legal requirements to file a probate action in Montana for
your deceased father, Bill Smith.” Each of these examples gives a fairly clear general statement
of what will be done, but a good acceptance letter requires more.
All letters should explain the process involved, who will undertake the representation,
when this will be done and include a probable time frame for major events, including completion
of representation. Consideration of timeframe and completion of representation are particularly
important in the Law Clinic for cases that will not or cannot be completed within one semester. It
is certain that in these types of cases other law students and other law professors will take over
the representation. This is a common area of tension and dissatisfaction for multi-semester clinic
clients. The good acceptance letter should address this reality. Each of the above examples
involves slightly different timeframes and processes. Each acceptance letter should be drafted
specifically to address the different circumstances in each client’s case.
Define And Limit the Scope of Representation
The most common problem in student drafted case acceptance letters is that they are
almost always open-ended and contain no language limiting or properly defining the scope of
representation undertaken by the Law Clinic. The most common example would be the
“represent you in your divorce” letter. “Represent you in your divorce” is very substantively and
procedurally open-ended. This kind of open-ended letter will almost always result in some later
attorney client misunderstandings and ill will. “Divorce” is very broad. Does this involve
possible multiple divorce actions in other counties or jurisdictions? Does this involve
representation in appeals? All legal matters involve some potential for appeal if a case is
resolved unfavorably to the client. Does this representation include representation in enforcing
the resulting divorce decree or resolving predictable future child support enforcement issues or
child custody disputes? Experience has shown that clients almost always take the broader view,
and “representation” includes the appeal and post decree enforcement issues. Later students and
professors also have great difficulty in resisting a truly assertive client. When one adds in several
law students and several law professors over different semesters and the possibility of oral
modifications, the scope of the Law Clinics professional responsibility can become a major
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problem. This scenario should alert the law student that he or she needs to have a good
understanding of the procedural and practical problems that may arise in any given
representation and that limiting or clarifying language should always be used and that all of the
common or predicable events should be addressed.
Perhaps the following sentences are one example of how the scope of representation can
be limited:
The law clinic will represent you in preparing and filing an action for dissolution of your
marriage to Bill Smith. This representation will include representation in attempting to resolve
present disputes between you and Mr. Smith regarding child custody, child support, and division
of your community property. This lawsuit will be filed in Bernalillo County. Representation by
the UNM Law Clinic will not include any representation outside of Bernalillo County, or any
legal representation beyond entry of the final decree of dissolution in Bernalillo County. This
representation does not include representation in any appeals from the District Court nor does it
include representation in any post decree enforcement of the decree of dissolution, or orders
involving child support, child custody, or division of property. Any representation by the UNM
Law Clinic in any other matter or in any matter not included in this agreement will require a
separate written agreement.
What should be apparent to the student is that a detailed knowledge of marriage law,
divorce procedure and probable human behavior is necessary in drafting the portion of the
acceptance letter that defines scope of representation. A clear, unambiguous statement of what
the Law Clinic will or will not do during the probable life of the attorney-client relationship is
essential to a good letter.
State Attorney Expectations Clearly
As mentioned above, the agreement between an attorney and client is a bilateral
agreement that establishes mutual obligations. The attorney promises and undertakes to do
certain things and in exchange, the client agrees to the representation and also promises to do
certain things. Since the Law Clinic does not charge attorney fees and only charges nominal
administrative fees, the contractual aspects of charging and collecting attorney fees and
representational costs as a condition of representation are not discussed directly. The law student
should ponder the very real implications of this added and very important dimension for their
future law practices. Fee and payment expectations should be stated very clearly. No matter what
the type of representation the attorney and client relationship is interdependent. Each has to do
what he or she has promised or is inherently necessary to the task so that the other may do or get
what they seek.
One of the more obvious attorney-client expectations is that the clients provide the
attorney with certain information or documents as a precondition to the attorney’s ability to do
something, for example, legally analyze a situation, or draft a needed document. Most case
acceptance letters do not address this obvious expectation. Each of the hypothetical cases set out
above have document or information requirements that the client must fulfill in order for the law
student to begin or complete the representation. In the “divorce” scenario the attorney needs a
complete listing, valuation, and characterization of all debts and property in order to draft the
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petition for dissolution and more importantly to draft the proposed marital settlement agreement.
Without this information, all legal work is on hold.
Perhaps the following language would be appropriate.
“In order for me to draft the petition for dissolution of marriage and the proposed marital
settlement agreement it will be necessary that you complete the enclosed divorce worksheet
completely and provide me with a copy of the deed and mortgage to the family home. Please
make sure you list all debts and property you know of and that all requested information
regarding each debt is provided. Please call me if you have a question with regard to a particular
debt or item of property. If I do not receive the completed worksheet by October 15, 20__, I will
have to delay the filling of the petition for dissolution until early November. I look forward to
receiving these materials so I may begin drafting these documents. I will review the drafts of all
legal documents with you before I file or serve them.”
The student should carefully consider the appropriate language one would use in the
incorporation/tax exempt application hypothetical which is set out above because it is even more
client dependent.
State the Legal Costs and Fees Clearly
Clinic administrative fees or their waiver should be clearly addressed in the acceptance
letter. If the $50.00 case acceptance fee is required and it is then not paid by a certain date, the
case will not be accepted and the prospective client will likely receive a case non-acceptance
letter and will have to reapply for representation. Usually this is not a major problem, but the
result of not returning a signed copy of the letter by a certain date should be addressed. The
consequences of not paying the case acceptance fees should be stated.
Another major problem in Law clinic representation letters is a general failure to
accurately state or estimate court costs, filing fees and other probable representational expenses,
such as publication fees. For most of these items the often-unstated attorney expectation is that
the service cannot be incurred or contracted until the necessary monies are in the individual
clients trust account. Experience has also taught that client checks must clear the bank before the
needed item can be ordered and this normally takes about seven working days. All reasonably
anticipated representational costs must be correctly estimated and then stated clearly in the
acceptance letter. If the attorney’s understanding is that certain funds must be paid before work is
to be done, the case acceptance letter should clearly state this.
In the “divorce” example, a reasonable estimate of client expenses would be the district
court filing fee, the service of process fee, a possible Court Clinic fee if the case must be referred
to the Court Clinic, and possibly other fees for documents copies and an appraisal of the family
home. How much does this total? Can it be paid in installments or as the case progresses? The
student should discuss all of these different factors with the supervising faculty member as the
acceptance letter is being drafted. A phrase such as, “You will be responsible for all court costs
and fees”, is probably too general. The incorporation/tax exempt hypothetical requires the added
element of different costs and different timing. In the “simple will” hypothetical, the statement,
“You will be responsible for all court costs and fees”, is probably a bit misleading and confusing
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to a prospective will client because most will drafting cases have no fees. If all costs and fees are
not estimated and payment expectations clearly stated in the acceptance letter, the law student is
creating a natural area for potential misunderstanding. In their consideration of representational
costs all students should also be aware of court rules providing for free process or payment
schedules. Students with questions regarding free process or indigency petitions should consult
the local court rules.
Multi-Semester Cases
Within the law clinic, it is likely that a majority of initial interview cases cannot be
resolved in one semester, therefore in almost all situations the law student must inform the
prospective client that his or her case will of necessity be assigned to another law student and
professor at the end of the current term. Clients should have a clear understanding of this,
because this is a frequent source of tension for clinic clients and successive students and
professors. A case that will clearly go beyond two or three semesters should be carefully
screened for this reason before being accepted. In all cases, the acceptance letter should give
some general statement of the timeframe for completion of the representation. The following
example may be helpful:
“I will represent you during the fall semester. My work will be supervised by Professor
Land. During the fall semester, I will draft the petition for dissolution of marriage and file and
serve it on Mr. Smith. I will also draft a proposed marital settlement agreement, which will be
served on Mr. Smith by October 25, 20__. If Mr. Smith agrees to all terms of the proposed
settlement agreement by November 25, 20__, it is then very likely that I can obtain a final decree
and complete your representation by December 15, 20__. If Mr. Smith does not agree to the
proposed settlement or decides to litigate either child custody or child support as he has indicated
to you that he will, your case will have to be transferred to another law student and professor for
the spring semester. I will be available to work on your case until December 15, 20__. The Law
Clinic will be closed between December 22, 20___ and January 10, 20___. The new student
assigned to your case will contact you by mail and telephone after January 10
th
. It is my hope
that Mr. Smith will agree to our proposed settlement and that your case can be completed by
December 15, 20___.”
A good acceptance letter might also address what will happen in a client’s case during
school holidays or between semesters.
Personalize Every Acceptance Letter
Every acceptance letter should be very carefully crafted to address each client’s different
legal situation. The use of a standardized form letter in all cases is strongly discouraged. Each
client acceptance letter should also address each of the major points discussed above as well as
any unique demands in a particular case. As it is being drafted, every case acceptance letter
should be viewed as the essential first step in creating a positive and fully informed attorney-
client relationship. A good case acceptance letter should start the attorney-client relationship on a
good note and should protect both the client and the attorney.
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Follow-up on Every Case Acceptance Letter
Once the case acceptance letter has been approved and counter-signed by the faculty
member, the student should calendar the acceptance deadline within the students own time file
and then make sure the acceptance letter is either signed and returned by the stated deadline or
else is not signed and returned. In an appropriate case, it is acceptable for the student to call the
prospective client and inquire if the letter has been received or if there are any questions by the
client. These telephone contacts must be logged and summarized in the client file as they are
made. Students should also be aware holidays, mail problems, language difficulties, or other
extenuating circumstances may make it difficult for prospective clinic clients to return the
acceptance letter on the exact deadline date. In an appropriate case, the student may want to
consult with the assigned faculty member to extend the acceptance deadline. Ideally, these
external factors should be considered when drafting the acceptance letter.
The student should also normally anticipate the possibility of non-acceptance by the
client. The consequences of non-acceptance by the deadline should be explained in the original
letter. Additionally if the matter is legally urgent and it is clear that the advice of counsel is in the
legal best interests of the potential client, it is important for the student to state clearly that if the
potential client does not want the clinic to represent them that they should consult another
attorney. In cases that fall within this last category, it is also a good practice to send a follow-up
letter confirming that the case acceptance letter was not returned by the deadline, that the law
clinic will not be providing representation and that another attorney be consulted. Files should be
promptly and appropriately closed when the case acceptance letter is not returned by the stated
deadline. Likewise, when a case acceptance letter is returned by the stated deadline the student
should make sure the client’s file is opened as an active clinic file and the client is promptly
contacted, preferably by mail confirming case acceptance and outlining the first steps that will be
taken in the course of representation. Case acceptance letters should be acted upon promptly and
not be allowed to remain outstanding during the course of a semester. The deadline date for
acceptance or non-acceptance should be reasonably chosen and clear and should be acted upon
accordingly.
Send Any Needed Representational Letters
In certain circumstances, such as bankruptcy cases, debtor-creditor cases where
repossession or a lawsuit may be imminent, landlord-tenant cases, credit card collection cases, or
cases where the adverse party is represented by counsel, it may be necessary and appropriate for
the law student to send out a letter confirming law clinic representation and asking that all future
correspondence and communication be to the law student and faculty member as legal counsel.
These letters need not take any final or determinative legal position. They merely serve as notice
of representation of a particular client by counsel. Representational letters are commonly utilized
and often help to establish a new order of communication. Representational letters are also
typically used as an informal way of gaining more time for a client to contemplate and plan the
next steps in a legal matter. They are also an important way to stop debtor harassment and
agency abuses.
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Sample Case Acceptance Letter
An example of an acceptance letter follows:
June 15, 2002
Heather Jones
1111 Fox Dr. NW
Albuquerque, NM 87159
Dear Ms. Jones:
This letter is in regard to our meeting on July 5, 2002. I want to thank you for promptly
bringing in the additional documents I requested by telephone. These additional documents
helped in the evaluation of your case. I am pleased to inform you that the UNM Clinical Law
Program has agreed to accept your case for the purpose of representing you in obtaining a
divorce from your husband, Phillip R. Jones. Our legal representation will be limited to matters
directly related to obtaining a decree dissolving your marriage to Phillip Jones and to resolving
the issues of child custody and visitation, child support, and division of marital property and
debts. The Law Clinic will represent you in filing a petition for dissolution of marriage to be
filed in the Second Judicial District Court of Bernalillo county and will represent you until a final
decree is obtained. This representation will be limited to matters before the local District Court
and will not include any post-decree enforcement issues or any appeals that may be necessary
from the trial court. Any representation beyond obtaining the decree of dissolution or resolving
the issues listed in this letter will require a separate written agreement between you and the Law
Clinic.
Because the UNM Law Clinic will only represent you in dissolving your marriage to
Phillip Jones, I must also inform you that the UNM Law clinic will be unable to represent you in
your ongoing disputes with your first husband, Tim Smith. These proceedings are in Dona Ana
County, New Mexico and it is the policy of the Law Clinic not to accept cases outside of
Bernalillo County. If you wish to have legal representation in that matter, you will have to obtain
other counsel to represent you. If you do want legal representation against Mr. Smith, I would
recommend that you speak to an attorney of your choice in Las Cruces. If you cannot locate an
attorney the telephone number for the Lawyers Referral Service in Las Cruces is (505) 222-5555.
With regard to the back child support owed to you and your children by Mr. Smith you may wish
to contact the New Mexico Child Support Enforcement Bureau at (505) 333-5555. The Child
Support Enforcement Bureau has offices in Albuquerque and it may be possible for you to
collect the child support arrearages without having to travel to Las Cruces. This bureau can only
help you with child support issues, therefore if you wish to address the visitation and custody
issues between you and Mr. Smith you will have to hire a Las Cruces attorney or represent
yourself. Please let me know if you have any questions with regard to why the UNM Law Clinic
cannot represent you in your dispute with Mr. Smith or with regard to hiring an attorney to
represent you in Las Cruces.
With regard to your divorce from Mr. Jones, I will represent you as a law student
working under the supervision of a licensed attorney of the UNM Clinical Law Program. My
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supervisor is Professor April Land who will review all of my work and she will accompany us in
the event there are any court hearings in your case. I will work on your case until the end of the
summer semester, which ends August 1, 2002. If matters pertaining to your divorce from Mr.
Jones have not been resolved by this date, your case will be transferred to a new clinical law
student and professor for the fall semester, which begins on August 23, 2002. Given the fact that
the Petition for Dissolution of Marriage will not be filed until early July, it is certain that your
case will be transferred to a new student in the fall semester. While it is my hope that your case
can be fully resolved during the fall semester, it may be necessary to transfer your case to a new
law student at the end of the fall semester in December, 2002. Normally a case with issues such
as yours will take three to six months to finally resolve.
As we discussed during our meeting, the Clinic's representation is contingent upon
payment of a $50.00 case acceptance fee. You will also be responsible for any and all costs
associated with your case, such as court filing fees. I will inform you of any costs as far in
advance as possible. Since it is clear in your case that a Petition for Dissolution will be filed in
early July, I must inform you that there will be a court filing fee of $137.00 and a service of
process fee of $30.00, for a total of $167.00. In order to file the petition in early July as planned,
it will be necessary for you to pay these fees to the UNM Law Clinic by July 6,2002. This
amount will be placed in your trust account and paid out by the Law Clinic as the expenses are
incurred. As we discussed in your interview given the fact that you are working and that you
have a modest amount of savings, it is unlikely that the District Court will waive these fees. It is
also anticipated that there may be additional costs of about $400.00 for the possible future
appraisal of the family home if this becomes necessary. Please call me if paying these filing and
service fees will cause you or your family any hardship.
To enable the Clinic to begin representation, please sign, date, and return this letter, along
with your $50.00 case acceptance fee by June 25,2002. If I have not received a response from
you by June 25, 2002 I will assume you have decided not to proceed with your action for divorce
from Mr. Jones and your file will be closed. I have enclosed a self-addressed, postage prepaid
envelope for your convenience. A copy of this letter is also enclosed for your records. Once you
return this acceptance letter and pay the case acceptance fee I will begin to draft the Petition for
Dissolution and other necessary papers which I anticipate can be signed and filed by July 10,
2002 as we discussed in or initial meeting. Once the petition and other papers are filed they can
be served on Mr. Jones within a matter of days. I have already made arrangements to have the
necessary papers served promptly at his home in Bernalillo, New Mexico. I look forward to
working with you to resolve your case.
Please call me if you have any questions regarding this letter or acceptance of your case.
Sincerely Reviewed and approved by,
_________________ _____________________
Sally Student April Land
Law Practice Student Supervising Attorney
SS:HW
Enclosure
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I have read this letter and agree to representation by the Clinical Law Program under the
terms and conditions described in it.
_________________________________________________________________
Client Name Date
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VIII. The Non Acceptance Case Letter
Introduction
While the case acceptance letter is hopefully the start of a happy and positive attorney-
client relationship, the non-acceptance letter may be the direct opposite. However, the non-
acceptance letter is equally important. As with the case acceptance letter, good professional
practice and all malpractice policies require that a non-acceptance letter be sent out to all
prospective clients that will not be legally represented as well as to all other persons whom the
lawyer encounters who may have the impression or belief that representation does or may exist.
A postage stamp and a simple letter can prevent many a law-firm disaster, and even do some
professional good. All clients who are interviewed by clinic students and who will not be
represented must be written and informed that their case will not be accepted. The non-
acceptance letter makes sure no express or implied attorney-client relationship is created.
The non-acceptance letter should start by thanking the person for coming to the Law
Clinic seeking representation. It should give a general statement of the matter discussed and
considered with some specificity, and should clearly and unequivocally state that the Law Clinic
will not legally represent the person in the matter that was discussed. A good non-acceptance
letter will then also go on to recommend other attorneys or agencies that may be able to assist the
applicant. This referral is a matter of good public service and prudence. If you cannot help the
prospective client send them to someone, or suggest someone who can. The clinic receptionist
maintains a large list of attorney referral services, a list of cooperating attorneys and a
comprehensive list of social service agencies. If the rejected case is one where clear legal harm
may result, where legal rights, personal rights or property rights may be adversely affected,
where third parties may be injured, where strong public policy issues may be involved, or a
personal emergency is possible, the student should also clearly state that the person ought to
consult another attorney.
The recommendation that a person should consult another attorney is probably a safe and
necessary statement in all non-acceptance letters. This is particularly true where a statute of
limitations or a court-imposed deadline is about to pass. Potential statute of limitations issues
should be considered in all interviews and addressed in all non-acceptance situations. In certain
specialized cases, a referral to a particular attorney in a specialized field may be made. Before
this is done, the student should consult the assigned faculty member to insure that the case and
the particular referral are appropriate. The safer practice is probably to list a series of specialist
attorneys and let the potential client decide which particular attorney to consult.
It is also important that the letter have a good professional tone. This is particularly
important in the student’s later professional practice. Even though the potential client may be
disappointed, he or she may return later with a case the law firm can accept. In addition, all client
documents should be returned to the applicant, after necessary documents have been copied for
the applicant file.
Students are reminded that from the moment of the first interview until the non-
acceptance is effective, a limited form of attorney-client relationship is formed. All
conversations, all documents, including the fact that the person has applied for
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representation are covered by attorney-client privilege and requirements of confidentiality.
This applies into the future as well. Finally, it may also be good professional practice,
where appropriate, for the non-acceptance letter to include very basic, obvious or common
sense advice. On this last point, a word of warning is appropriate; the rules of attorney
malpractice will apply to all advice given even in a non-acceptance letter. All advice given
must be correct. The more prudent course is probably not to give any legal advice. Any
questions about whether or not any legal advice should be given should be discussed with
the supervising faculty member.
SAMPLE CASE NON-ACCEPTANCE LETTER
An example of a non-acceptance letter follows:
June 15, 2002
Mrs. Peggy Smith
1234 Cumbre Del Sueno N.E.
Rancho Alegre, New Mexico 87131
Dear Mrs. Smith:
Thank you very much for coming to the UNM Law Clinic on June 10, 2002 to discuss
possible legal representation regarding the filing of a law suit for personal injuries and property
damage which you received in an automobile collision with Henry Ford on July 4, 2001. It was
very nice speaking with you regarding your desire to file suit against Mr. Ford and his insurance
company, Acme Underwriters. It is clear to me that this collision has caused you considerable
damages and I can clearly understand your frustration with Acme Underwriters. I have reviewed
your file with my supervising attorney and I must regrettably inform you that the UNM Law
Clinic will not be able to represent you or your daughter, Amanda in your claim against Mr. Ford
or Acme Underwriters.
It is the policy of the UNM Law Clinic not to represent clients in fee generating cases. A
fee generating case is a case in which a private attorney can collect a fee directly from any
proceeds or recovery from the case. Personal injury cases such as yours are normally and
routinely handled by private attorneys for a contingency fee to be paid from the recovery in the
case. It is also clear that given the complexity of the liability claims involved and the severe
nature if the personal injuries received by you and your daughter, that this is not the type of case
that is appropriate for student handling. Given the complex nature of your case it is my advice
that you seek the representation of an attorney who is experienced in handling difficult
automobile liability and insurance claims such as yours. I understand that you have spoken to a
number of attorneys and that so far they have been reluctant to represent you. I would strongly
advise that you speak to other attorneys regarding representation.
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I would recommend that you call the Albuquerque Lawyers Referral service at (505) 123-
4567 and ask that you be referred to an experienced personal injury attorney. You may also want
to look at the attorneys who are listed in the yellow pages of the telephone directory. I would
recommend that you speak to at least two or three attorneys to help you determine who can best
handle your case. I have also spoken to my supervising professor and she has informed me that
three attorneys who specialize in complex liability and insurance claims are Mary Doe (505)
321-9999, Bill Smith (505) 888-0001 and Henry Roe (505) 777-5555. You may wish to call any
or all three of these attorneys. I am confident that if they cannot represent you that they may be
able to refer you to an attorney who can handle your case.
Finally, I would like to mention that the statute of limitations for personal injury claims in
New Mexico is three years from the date of the injury. Therefore, if you wish to file a claim
against Mr. Ford or Acme Underwriters you must file lawsuit against them by no later than July
4, 2004. Therefore, I strongly recommend that you obtain representation by counsel and that you
file any claim or lawsuit well before July 4, 2004. It is clearly in your best interests and those of
your daughter that you obtain representation by an experienced attorney.
I do wish that the UNM Law Clinic could have been of further assistance to you and I
wish you luck in finding representation. I do feel confident that if you speak to a few more
attorneys that you will secure representation for you and your daughter. Good luck in pursuing
your claim against Mr. Ford and Acme Underwriting. If as we discussed in our initial meeting
you do decide to change your daughters name when she reaches the age of 14 next May, please
feel free to reapply for representation for the name change. Your daughters name change is a
type of case the Law Clinic may handle. Thank you for considering the UNM Law Clinic.
Sincerely Yours, Reviewed and Approved,
_____________________ ____________________
Sally Student April Land
Student Attorney Supervising Attorney
List of Common Referral Agencies
A list of the most common referral agencies for the Law Clinic follows. A more complete
list and more detailed information about particular agencies are maintained by the clinic
receptionist. Students are also welcome to suggest new referral agencies for the Law Clinic.
Common Community Legal Services Resources
American Civil Liberties Union- P.O Box, Albuquerque, NM 87198 (505) 266-5915
Helps people determine whether their constitutional rights have been violated. Takes on cases
with precedent setting significance.
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Court Clinic- P.O Box 488 Albuquerque, NM 87103 (505) 841-7409
Helps people in court appointed mediation, for timesharing, residence and custody issues. Will
also do an advisory consultation if parents cannot reach an agreement.
Domestic Violence-415 Stanford NE #3228 Albuquerque, NM (505) 841-6737
2
nd
Judicial District court domestic violence division provides legal services for respondents for
domestic relations contempt hearings, also provides temporary restraining orders to family
members due to domestic violence.
Landlord/Tenant Hotline- 134 Harvard NE, Albuquerque, NM 87131 (505) 256-9442
Information regarding landlord/tenant disputes, no legal services provided.
Lawyers Care Expanded- 5121 Masthead NE, Albuquerque, NM 87109 (505) 797-6066
An agency of the State Bar of New Mexico. Matches attorneys with clients. Will set up a 30
minute consultation with an attorney for $25.00 plus tax.
Lawyer Referral For The Elderly- 5121 Masthead NE, Albuquerque, NM (505) 797-6005
(800) 876-6657
Provides legal services for those 55 years and over for NM residents outside Bernalillo county.
Lawyer Referral Service- 400-Gold SW, Albuquerque, NM 87102 (505) 243-2615
(800) 876-6227
An agency of the Albuquerque Bar Association. Matches attorneys with clients. Will set up a 30
minute consultation with an attorney for $25.00 plus tax.
Legal Aid Society of Albuquerque- 121 Tijeras suite 3100, Albuquerque, NM (505) 243-7871
Provides free legal services to low income residents of Bernalillo county in AFDC, Food Stamps,
State disability benefits, Medicaid, SSI, unemployment benefits, Sec 8 housing, landlord/tenant,
foreclosures, uncontested divorces, and domestic matters where violence or custodial
interference has occurred. Services not provided are DWI, Criminal, child support, personal
injury, workers compensation and paternity.
Legal Facs-540 Chama NE #10 Albuquerque, NM 87102 (505) 265-0417
Provides legal services to low income Bernalillo county residents. Volunteer attorneys also help
with forms and instructions for handling your own cases in district court, e.g. child support,
custody, divorce, name change, support/custody when parties are not married, civil cases, tenant
disputes. Do not do restraining orders, legal separations, criminal bankruptcy, traffic or DWI
Senior Citizens Law Office- 3117 Silver Albuquerque NM 87106 (505) 265-2300
Provides Legal services to Bernalillo county residents age 60 and over in civil matters.
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New Mexico State Public Defender- 505 Central Ave NW Albuquerque NM 87102 (505) 841-
5100 Provides criminal defense for indigent persons charged with criminal offenses in the New
Mexico state courts.
Federal Public Defender- 111 Lomas N.W. Albuquerque, NM 87102. (505) 346-2489
Provides legal defense for indigent persons accused of crimes in the Federal Courts.
A list of other referral agencies and a list of private attorneys willing to consider the
referral of specific types of cases is maintained by the Clinic Receptionist. Students having any
questions about referring clients to a particular agency or attorney should consult with their
supervising faculty member or the clinic receptionist regarding a proposed referral.
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IX. Case Planning and Development
Once the prospective client’s case has been accepted, the law student can begin his or her
work to develop the client’s case. Case development is a critical step in starting to plan and
organize the client’s case. The case development process is also an important part of developing
an overall case handling and case resolution strategy.
Fact Development
Gather the Documents and Physical Evidence
The first task within case development should be to assemble all needed or useful
documents and all other evidence. The best first source would of course be the client. In simple
cases such as a sale of goods or the lease of an apartment, the client probably has the essential
sale or lease documents and may have already provided them. In a more complex case such as a
potential bankruptcy or a 501 (c) (3), the client, aided or guided by the law student, may have to
assemble many historical documents or generate some court documents. In either case, it is clear
that the work cannot proceed until the needed documents are assembled and evaluated. A good
first step in every case is usually to assemble all documents that the client or student may think is
relevant to the case. In cases that have multiple documents, it is also a good idea to start a
document log to keep track of documents.
Visit the Scene
In other cases where the physical condition of some location or some physical object is or
may be in question, the law student is well advised to visit the scene in question and possibly
take needed photographs or measurements. A good example of this would be an auto accident
case or a damaged apartment case. In the auto accident case before and after photographs of the
damaged vehicle are very important. The scene of the accident would be equally important to
show how the accident may have occurred. In the damaged apartment case, the actual condition
of the apartment can be preserved very easily. When thinking of photographs, the law student
should be aware of the wonderful utility of digital cameras and modern hand held video cameras.
In each case, a student should begin his or her document organization by making a document log
of existing documents. The document log should include possible documents, who has control of
each document, and the legal or practical relevance of each document or item. A similar list
should be made for witnesses. Where documents or other items are not in the control or access of
the client the law student should develop a practical or legal strategy for obtaining these items.
Copies of all documents should be placed in the client file along with an index and summary of
each document.
List and Locate Witnesses
Witnesses present a slightly different task for the law student. A list similar to that made
for documents should be generated. Again, the client is an important first source for potential
witnesses. The student should ask the client for the names, addresses, and telephone numbers of
all persons having any knowledge of the issues in the case. Other good sources for potential
witnesses are any reports that may have been made, and people referred to in case documents. A
simple rule of thumb is that: all important or essential witnesses should be interviewed as part of
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the case preparation process. Many of the comments made regarding the client interview process
would apply here. Where the witness is identified with the client, usually the client can help
arrange the interview. Where the witness is either neutral or adverse to the client, it is essential
that the law student fully identify himself or herself. This includes telling the witness that the
interviewer is a law student and that the student represents the client.
While personal interviews are always best, the use of the telephone, where appropriate, is
acceptable. As in all interviews, a healthy dose of skepticism does not hurt. Where witnesses
must be located, the usual sources such as telephone directories, city directories, public records,
or public registries are a good first source. Internet searches are an increasingly useful source of
addresses, telephone numbers, and other information. For example, Lexis has a sophisticated
search engine for finding people and assets. Where witnesses are uncooperative or legally
unavailable, the rules of formal discovery offer a possible solution. All witness interviews must
be summarized or recorded and a witness list and index generated for the case file. Once all of
the documents have been assembled and all available witnesses interviewed, this information
needs to be combined and evaluated as apart of a case action plan. The client should be informed
and involved in all steps of the fact development process.
Cases Requiring Expert Testimony
Experience has taught that a special word of warning is needed for cases in which it is
essential to prove the condition or value of some item. Examples of these types of cases are
transmission repair cases, auto repair cases, roof repair or home repair cases, and any case
involving a medical condition. In these cases, the underlying condition or its causes are not
within the normal course of knowledge or understanding of the ordinary person. These cases will
require either an expert opinion or the opinion of a person with specialized knowledge. When a
client has this type of a case, the student should always get the expert evaluation or opinion
before he or she takes a hard legal position, especially the filing of any lawsuit. Get the expert
opinion first then make the legal claim. Law students are also cautioned that self-taught or self-
educated clients are generally not perceived as being neutral. On the other hand, law suits against
auto mechanics or roofers always have a built-in adverse party, who is an expert. A final word of
caution is that expert opinions or evaluations cost money and this is a client paid expense.
Experience has also taught that the clinic should not contract with an expert r until the cost for
the opinion have been paid, or the amount is on deposit in the client’s trust fund account.
Legal Research
Once the facts in a given case are somewhat clear, meaning that certain facts have been
verified and weaknesses or strengths in the client’s factual case have been identified, the law
student can begin the necessary legal research. Some of this legal research may have already
been done in an earlier stage or even as the fact development process is going on.
One of the first tasks for the student is how to focus the legal research. Generally, this
consists of placing the client’s case in one or more legal categories, such as tort or contract.
However, as the student already knows, many of these legal labels overlap. A good way to start
is to first try to organize the fact situation into as many legal categories as suggest themselves to
the student. The student should then review the facts and consult with the assigned faculty
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member or with other clinic students in their clinical group. Another source for a systematic legal
evaluation can be found in topical practice books. Once there is a sense of agreement on what
legal issues are raised by a particular fact pattern, or at least there is a sense of confidence as to
what the issues are, then the student can start to complete the necessary legal research.
The topic of legal research is beyond the confines of this manual, but by their third year,
all law students should have good basic research skills. Reference librarians are a good source
for legal research guidance. The central point is that all cases should be fully researched and all
legal opinions or positions legally validated or verified. Every clinic case should be legally
researched, before any legal advice or counseling is given to the client. Once the facts are fairly
well established and the legal research is completed, then the student can begin to formulate a
legal opinion and start to counsel the client. As a matter of course, almost every client case
should have one or more legal memoranda, setting forth the legal issues and analysis.
All law students should remember that facts and law often change over a period of time.
Both the fact development and legal research aspects of the case should remain flexible and be
revisited every time there is a new development in the case or the case law.
Network As Needed
One of the clear teaching methodologies within the law clinic is inter-group discussion,
learning, and teaching students to routinely network with other associates or outside counsel as a
way to insure competent and excellent client representation. A good resource for legal,
procedural, or practical information for the student is simple networking within the clinic. The
obvious and probable order of networking resources available to the student are as follows: the
supervising faculty member, fellow students in the same clinical section, fellow students in other
clinical sections, other law school faculty members, and outside attorneys who are willing to
consult. When consulting outside of the actual law clinic students are reminded of the need for
client confidentiality and the avoidance of conflicts of interest. All contacts outside the clinic
should first be cleared with the supervising faculty members and the consultant advised of the
expectation of confidentiality. The one possible exception is that non-clinic law school faculty
members are considered as “of counsel” to the clinic. The expectation of confidentiality should
still be expressed to non-clinical faculty members. Networking can occur at any stage of case
handling. Any networking activities should be logged and memorialized in the client file. The
supervising faculty member should always clear any consultation outside the law school
community before it takes place. Students should also feel free to ask that a particular case be
discussed in small group meetings.
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Develop a Case Resolution Strategy
Every case development plan should have a case resolution strategy. From case intake to
case closing the law student should constantly seek to find or create a way to economically,
legally and practically resolve the client’s case, ideally in a manner that achieves the client’s
goals and desires. Cases should be handled in a professional and efficient manner and should not
be allowed to linger. The student and professor should constantly try to move a case towards
resolution. One way to do this is to view cases from a management point of view as generic and
always make sure some procedure or device is included in the planning process to insure some
kind of final resolution of the dispute. In a case that is amenable to resolution through litigation,
this means making sure a hearing or trial is set as early as possible to insure movement towards
resolution and ultimate resolution. In non-litigation cases, it means setting a series of realistic
goals and timetables for certain events, including case closure, to take place.
Typical Civil Case Resolution Approaches
It may be helpful to take a generic look at how civil disputes are generally resolved
within the legal system. In a very general way, legal disputes are typically resolved in one of the
following manners, possibly in the order stated:
The parties resolve the matter among themselves, without attorney representation.
The matter is not resolved. One party gives in or one party disappears.
The dispute just “disappears.”
The parties resolve the matter among themselves with the aid or counsel of one or more
attorneys who “remain behind the scene.”
The parties resolve the matter among themselves. Attorneys are formally involved in the
negotiations and help the parties settle. This is a simple private settlement, usually with
some sort of settlement document.
Some sort of formal complaint or demand is filed with a court, agency, or institution.
The court, agency, or institution has some sort of dispute resolution procedures in place.
The last procedure being some sort of final hearing or ruling that may be subject to
review on appeal.
Attorneys are more typically involved and guide the parties through the dispute resolution
procedures.
The court, agency, or institution has some sort of pre-trial or pre-hearing procedures.
The court, agency, or institution also has some sort of settlement procedures short of
hearing or trial.
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If the parties cannot settle the case through institutional settlement procedures the court,
agency or institution will resolve the matter for the parties by hearing or trial.
The typical result of a hearing or trial is one “winner” and one “loser.” Although what is
a “winner” or “loser” can be debated.
The court or agency can be fast-track, highly controlled and directed like the federal
district courts, less fast-track, more party controlled like state district courts, or fairly
informal like Metropolitan Court or some administrative agencies.
After the final hearing or trial post-judgment enforcement mechanisms kick-in.
Appeal by the loser is a possibility, repeating some of the earlier dispute resolution
mechanisms.
The parties to resolve the dispute use some sort of private ADR mechanism. This is
generally available at all times under all options listed including appeal.
Private settlement by the parties is usually an option at any time.
Loser of the hearing or trial appeals to a reviewing court or agency.
The basis for appeal is usually limited.
Some sort of settlement procedures is available.
If settlement procedures fail, then reviewing court or agency will resolve the appeal.
There is again usually one “winner” and one “loser.”
Further appeals may be possible but second or third appeals are even more circumscribed.
Post- judgment enforcement procedures again apply.
If money is involved the matter may be mooted out by an extraordinary procedure such
as bankruptcy or death at any point.
Students should consider these general comments as a guide in developing a case
resolution plan that lays out the client’s practical and legal options all the way from doing
nothing, to private settlement, through litigation and through possible appeals. All possible legal
and procedural options should be explored and explained to the client. The key point is that
ultimate legal resolution of the case in one manner or another should be included in all case
planning.
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Setting Time Tables, Goals and Providing for Frequent Review
One of the consistent themes in law office management is that cases should be actively
moved towards closure. Virtually all cases can be resolved in an economical and orderly fashion
and within a reasonable period. One of the main impediments to orderly case resolution within a
law office is the natural tendency to place a case “on the back-burner” or to let the case set its
own natural timetable.
One method of minimizing this tendency to procrastinate is to set a clear and realistic
timetable for every major event in the case planning process and then to stick to the timetable,
unless there are extraordinary reasons not to do so. Another method is to require frequent review
of all cases for compliance with planning and case resolution deadlines. Within the law clinic
students are required to formally review every open case with the supervising faculty member at
least every four weeks or sooner. These file reviews are intended not only to insure a high quality
of representation and work product but also to insure that cases are actively being moved
towards closure.
Given the fact that multi-semester representation may not be in the clinic client’s best
interests, students are encouraged to take the initiative in moving cases towards resolution. As
examples of this, if counsel cannot agree on certain procedural or substantive matters and only a
judge can resolve the dispute between the parties, students are encouraged to set the matter for
hearing at the earliest opportunity. Getting disputed matters resolved in a prompt manner is in the
clinic client’s general best interests. Students should also include their own personal plans such
as vacations, holidays, and the academic calendar into case planning. Cases should be constantly
moved towards resolution.
Case Planning Should Include an ADR Component
Given the reality that the vast majority of civil disputes are resolved through some sort of
settlement or ADR device without a final trial or hearing, it is imperative that law students
include an ADR or settlement alternative in all case resolution plans. A list of ADR or settlement
devices that a student may want to consider in the case development plan is as follows:
Activities, procedures, or counseling that may help defuse the natural or inherent hostility
or animosity that may be involved in the dispute. How can the level of background
tension be reduced to manageable levels?
Private settlement of the dispute by the parties themselves.
Private settlement by the parties with attorneys in the background.
Private settlement aided or directed by attorneys or other professionals.
Private professional ADR services, without attorneys.
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Filing a formal complaint or claim and using institutional ADR or settlement procedures
that are available or required, e.g. Court Clinic, settlement conferences, mediation or
conciliation procedures.
Designing a settlement plan or program built around institutional procedural devices.
Mediation.
Binding arbitration.
Non-binding arbitration.
Partial Arbitration.
Settlement facilitation.
Wise person consultation.
Court Annexed ADR procedures.
Summary jury trial.
Binding partial fact determinations.
Private advisory opinions.
Pre-final hearing settlement procedures, formal or informal.
During trial settlement initiatives.
Appellate level ADR.
Case Planning and Development Chart
. The following chart may help students in their
case planning and analysis. Students are reminded that each case is unique and all cases should
be treated separately. Case planning and development is also an on-going process and case plans
should be constantly reviewed and modified.
Case Planning and Development Chart
Client Name:________________________ Assigned Student:__________________________
Case number: ______________________ Supervising Faculty:_________________________
Scope of Client Representation:___________________________________________________
Adverse Party:_________________________________________________________________
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Adverse Attorney:______________________________________________________________
Impacted or Involved Third Parties:________________________________________________
Third Party Attorneys:___________________________________________________________
General Nature of Legal Dispute:__________________________________________________
Applicable Law:________________________________________________________________
Brief Factual Summary of Dispute:_________________________________________________
Client Goals, Interests, and Objectives:______________________________________________
Adverse Party Goals, Interests, and Objectives:________________________________________
Third Party Impact or Involvement:_________________________________________________
Special Case Sensitivities or Warnings:______________________________________________
Disputed Facts:_________________________________________________________________
Disputed Law:__________________________________________________________________
List and Summary Key Witnesses:__________________________________________________
List and Summary of Evidence:____________________________________________________
Required Experts or External Legal Consultations Required:____________________________
Available Formal Legal Forums (including jurisdiction and venue):_______________________
Realistic Timelines:_____________________________________________________________
Estimate of Costs:_______________________________________________________________
Filing, and Service Requirements for Available Forums:________________________________
Case Settlement Plan and Prospects:________________________________________________
ADR Alternatives Available:______________________________________________________
Case Handling and Case Resolution Recommendations:_________________________________
Client Counseling Plan:__________________________________________________________
Client Comments or Reservations:__________________________________________________
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Timelines and Goals for Major Case Activities:________________________________________
Multi-Semester Aspects and Adjustments:____________________________________________
Settlement Deadlines:____________________________________________________________
Litigation Deadlines:_____________________________________________________________
Probabilities for Appeal:__________________________________________________________
Case Review and Monitoring Schedule:______________________________________________
Estimated Date for Case Closure:___________________________________________________
Summary of Manner of Probable Final Case Resolution:________________________________
Any Special Comments or Warnings about the Case or Client:____________________________
___________________
Student Signature and Date
_________________
Faculty Approval and Date
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X. Client Counseling
Introduction
Client counseling is the essence of the attorney client relationship. In the attorney client
relationship, the client has come to the attorney seeking the benefits of his or her experience,
knowledge, expertise, and practical wisdom to solve some kind of human problem. In this
relationship, the client expects loyalty, understanding, professionalism, empathy, advocacy,
competency, good legal advice, and success. In return, the attorney expects the client to be
truthful, cooperative, to satisfy certain basic contractual obligations and also hopes for success.
Client counseling is the point where these different expectations intersect.
Client counseling is the process by which the attorney helps the client decide which legal
and practical path is best for the client. The client must make the ultimate decisions, because it is
the client’s life, property or other interests that are at stake. In most situations the attorney’s role
is to help furnish alternatives and to help the client to select from among these alternatives. For
client counseling to be effective, there has to be a mutual sense of confidence and trust. In other
words, there must first be an effective and positive attorney client relationship. The better the
attorney client relationship, the easier it is to professionally counsel the client. Good professional
client counseling makes it easier for a client to make good decisions in his or her case. Good
client counseling also requires open, candid, and effective communication between attorney and
client.
From a purely mechanical viewpoint, the typical clinical case is ready for the counseling
phase when the fact development and legal research phases are more or less complete. Once all
the facts are understood and the law is relatively clear, the law student and the client can begin a
dialogue on how a given legal matter should be addressed or resolved. In this process, one should
be aware that facts and law are always subject to some change and to differing interpretations.
Similarly, the student should be aware that client counseling is an on-going process that starts
when the client first comes in for an interview and only ends when the representation is
completed. Like other stages in the attorney client relationship, some cases are easily counseled
because the legal course is clear; in other cases the choices for the client are many and often
conflicting. These last cases require much more counseling. In some cases, preliminary legal or
practical advice may have already been given. Part of the counseling process should include a
reevaluation of any preliminary advice that has been given. In the typical case, the process of
educating the client, defining alternatives, and helping the client make good case decisions will
probably require several meetings and letters As a general proposition, clients may not be ready
to make fully informed decisions at an early stage in their case.
Similarly, in a typical case, the law student may not be ready to give good legal advice
until the facts and law are relatively well settled and the supervising faculty member has been
consulted. One reality of the fact or case development stage is that facts and law may change a
bit. As the facts and law in a case change, legal opinions and advice may also have to change.
Hopefully, these changes in direction are not abrupt or drastic. When these changes are drastic or
abrupt, the law student is well advised to carefully explain the reasons for these abrupt changes
in position. This reality of change as the case develops, helps explain why many lawyers are
cautious or tentative in giving advice or counseling in the early stages of the case.
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Finally, legal counseling may occasionally have to be a hasty process. This is because
external factors such as pleading deadlines or other time-based forces may limit the amount of
time available to the attorney to carefully weigh and deliberate. In certain limited situations, a
client may have to make a critical decision in a very short period of time. In these emergency
situations, the student should make sure that the supervising faculty member is fully advised and
consulted before any definitive legal advice is given. In all cases, the student and faculty member
should develop a separate counseling plan or program for each client.
Counseling, like interviewing, is a process that will require practice for the student to
become more proficient. Like interviewing, good client counseling is a process that generally
requires several meetings and discussions before the client can decide a particular matter or
decide on a course of conduct. Each case should have a counseling plan. A good counseling plan
or program will focus on the best legal and practical interests of the client and insure that there is
client autonomy in the decision making process.
The Counseling Plan
In every clinic case, the student and faculty member should work together to develop a
client counseling plan or program for the client. In simple cases, the counseling plan or program
will be obvious or common sense. In other, more complicated cases, the client will have to make
important decisions concerning the different alternatives that are available so that the attorney
can pursue the desired course of conduct. Every case should have a counseling plan that, at a
minimum, includes the following basic components, careful fact evaluation, through legal and
procedural research, identification of the practical, legal and procedural alternatives available to
the client, evaluation by the client of the different alternatives and interests involved,
consideration of any possible ethical limitations, and a time-based process for the client to make
needed decisions or choices. A chart for the student to evaluate these factors is included below.
Each client case will require a distinctive counseling plan.
The Ethical Dimensions
The Rules of Professional Conduct provide a good starting point for all counseling plans.
These rules and comments provide broad general guidance on the limitations of what may be
counseled. Where appropriate the client should be informed of the limitations placed on the
attorney by these guidelines.
Rule 16-201 provides:
Rule 16-201. Advisor
In representing a client, a lawyer shall exercise independent professional judgment and render
candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations
such as moral, economic, social and political factors, that may be relevant to the client's
situation.
The ABA comments to section 16-201 provide as follows:
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Scope of Advice
A client is entitled to straightforward advice expressing the
lawyer's honest assessment. Legal advice often involves
unpleasant facts and alternatives that a client may be
disinclined to confront. In presenting advice, a lawyer
endeavors to sustain the client's morale and may put advice in
as acceptable a form as honesty permits. However, a lawyer
should not be deterred from giving candid advice by the prospect
that the advice will be unpalatable to the client.
Advice couched in narrowly legal terms may be of little value to
a client, especially where practical considerations, such as
cost or effects on other people, are predominant. Purely
technical legal advice, therefore, can sometimes be inadequate.
It is proper for a lawyer to refer to relevant moral and ethical
considerations in giving advice. Although a lawyer is not a
moral advisor as such, moral and ethical considerations impinge
upon most legal questions and may decisively influence how the
law will be applied.
A client may expressly or impliedly ask the lawyer for purely
technical advice. When a client experienced in legal matters
makes such a request, the lawyer may accept it at face value.
When such a request is made by a client inexperienced in legal
matters, however, the lawyer's responsibility as advisor may
include indicating that more may be involved than strictly legal
considerations.
Matters that go beyond strictly legal questions may also be in
the domain of another profession. Family matters can involve
problems in the professional competence of psychiatry, clinical
psychology, or social work; business matters can involve
problems in the competence of the accounting profession or of
financial specialists. Where consultation with a professional in
another field is itself something a competent lawyer would
recommend, the lawyer should make such a recommendation. At the
same time, a lawyer's advice at its best often consists of
recommending a course of action in the face of conflicting
recommendations of experts.
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Offering Advice
In general, a lawyer is not expected to give advice until asked by the client. However,
when a lawyer knows that a client proposes a course of action that is likely to result in substantial
adverse legal consequences to the client, duty to the client under Rule 1.4 may require that the
lawyer act if the client's course of action is related to the representation. A lawyer ordinarily has
no duty to initiate investigation of a client's affairs or to give advice that the client has indicated
is unwanted, but a lawyer may initiate advice to a client when doing so appears to be in the
client's interest.
Rule 16-102. Scope of Representation
A. Client's Decisions. A lawyer shall abide by a client's decisions concerning the objectives of
representation, subject to Paragraphs C, D and E, and shall consult with the client as to the means
by which they are to be pursued. A lawyer shall abide by a client's decision whether to accept an
offer of settlement of a matter. In a criminal case, the lawyer shall abide by the client's decision,
after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and
whether the client will testify.
B. Representation Not Endorsement of Client's Views. A lawyer's representation of a client,
including representation by appointment, does not constitute an endorsement of the client's
political, economic, social, or moral views or activities.
C. Limitation of Representation. A lawyer may limit the scope of the representation if the
limitation is reasonable under the circumstances and the client gives informed consent.
D. Course of Conduct. A lawyer shall not engage, or counsel a client to engage, or assist a client,
in conduct that the lawyer knows is criminal or fraudulent or which misleads the court, but a
lawyer may discuss the legal consequences of any proposed course of conduct with a client and
may counsel or assist a client to make a good faith effort to determine the validity, scope,
meaning or application of the law.
E. Consultation on Limitations of Assistance. When a lawyer knows that a client expects
assistance not permitted by the Rules of Professional Conduct or other law, the lawyer shall
consult with the client regarding the relevant limitations on the lawyer's conduct.
The comment to Section 16-102 provides:
Scope of Representation
Both lawyer and client have authority and responsibility in the
objectives and means of representation. The client has ultimate
authority to determine the purposes to be served by legal
representation, within the limits imposed by law and the
lawyer's professional obligations. Within those limits, a client
also has a right to consult with the lawyer about the means to
be used in pursuing those objectives. At the same time, a lawyer
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is not required to pursue objectives or employ means simply
because a client may wish that the lawyer do so. A clear
distinction between objectives and means sometimes cannot be
drawn, and in many cases the client-lawyer relationship partakes
of a joint undertaking. In questions of means, the lawyer should
assume responsibility for technical and legal tactical issues,
but should defer to the client regarding such questions as the
expense to be incurred and concern for third persons who might
be adversely affected. Law defining the lawyer's scope of
authority in litigation varies among jurisdictions.
In a case in which the client appears to be suffering mental
disability, the lawyer's duty to abide by the client's decisions
is to be guided by reference to Rule 16-114 NMRA.
Independence from Client's Views or Activities
Legal representation should not be denied to people who are
unable to afford legal services, or whose cause is controversial
or the subject of popular disapproval. By the same token,
representing a client does not constitute approval of the
client's views or activities.
Services Limited in Objectives or Means
The scope of services to be provided by a lawyer may be limited
by agreement with the client or by the terms under which the
lawyer's services are made available to the client. When a
lawyer has been retained by an insurer to represent an insured,
for example, the representation may be limited to matters
related to the insurance coverage. A limited representation may
be appropriate because the client has limited objectives for the
representation. In addition, the terms upon which representation
is undertaken may exclude specific means that might otherwise be
used to accomplish the client's objectives. Such limitations may
exclude actions that the client thinks are too costly or that
the lawyer regards as repugnant or imprudent.
Although this rule affords the lawyer and client substantial
latitude to limit the representation, the limitation must be
reasonable under the circumstances. If for example, a client's
objective is limited to securing general information about the
law the client needs in order to handle a common and typically
uncomplicated legal problem, the lawyer and client may agree
that the lawyer's services will be limited to a brief telephone
consultation. Such a limitation, however, would not be
reasonable if the time allotted was not sufficient to yield
advice upon which the client could rely. Although an agreement
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for a limited representation does not exempt a lawyer from the
duty to provide competent representation, the limitation is a
factor to be considered when determining the legal knowledge,
skill, thoroughness and preparation reasonably necessary for the
representation.
See Rule 16-101 NMRA.
Although Paragraph C does not require that the client's informed
consent to a limited representation be in writing, a
specification of the scope of representation will normally be a
necessary part of the lawyer's written communication of the rate
or basis of the lawyer's fee as required by Rule 16-105(B) NMRA.
All agreements concerning the scope of representation must
accord with the Rules of Professional Conduct and other law. See
e.g., Rules 16-101, 16-108 and 16-506 NMRA.
Criminal, Fraudulent and Prohibited Transactions
A lawyer is required to give an honest opinion about the actual
consequences that appear likely to result from a client's
conduct. The fact that a client uses advice in a course of
action that is criminal or fraudulent does not, of itself, make
a lawyer a party to the course of action. However, a lawyer may
not knowingly assist a client in criminal or fraudulent conduct.
There is a critical distinction between presenting an analysis
of legal aspects of questionable conduct and recommending the
means by which a crime or fraud might be committed with
impunity.
When the client's course of action has already begun and is
continuing, the lawyer's responsibility is especially delicate.
The lawyer is not permitted to reveal the client's wrongdoing,
except where permitted by Rule 1.6 Rule [16-106 NMRA]. However,
the lawyer is required to avoid furthering the purpose, for
example, by suggesting how it might be concealed. A lawyer may
not continue assisting a client in conduct that the lawyer
originally supposes is legally proper but then discovers is
criminal or fraudulent.
Withdrawal from the representation, therefore, may be required.
Where the client is a fiduciary, the lawyer may be charged with
special obligations in dealings with a beneficiary.
Paragraph (d) [D] applies whether or not the defrauded party is
a party to the transaction. Hence, a lawyer should not
participate in a sham transaction; for example, a transaction to
effectuate criminal or fraudulent escape of tax liability.
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Paragraph (d) [D] does not preclude undertaking a criminal
defense incident to a general retainer for legal services to a
lawful enterprise. The last clause of paragraph (d) [D]
recognizes that determining the validity or interpretation of a
statute or regulation may require a course of action involving
disobedience of the statute or regulation or of the
interpretation placed upon it by governmental authorities.
Rule 16-104 Communication
Status of Matters. A lawyer shall keep a client reasonably
informed about the status of a matter and promptly comply with
reasonable requests for information.
Client's Informed Decision-Making. A lawyer shall explain a
matter to the extent reasonably necessary to permit the client
to make informed decisions regarding the representation.
Rule 16-301 Meritorious Claims and Contentions
A lawyer shall not bring or defend a proceeding, or assert or
controvert an issue therein, unless there is a basis for doing
so that is not frivolous, which includes a good faith argument
for an extension, modification or reversal of existing law. A
lawyer for the defendant in a criminal proceeding, or the
respondent in a proceeding that could result in incarceration,
may nevertheless so defend the proceeding as to require that
every element of the case be established.
Rule 16-404 Respect For Rights of Third Persons
In representing a client, a lawyer shall not use means that have
no substantial purpose other than to embarrass, delay or burden
a third person, or use methods of obtaining evidence that
violate the legal rights of such a person.
Law and Procedure As a Limitation on Client Options
Another broad limitation on what advice may be given in a particular case is created by
the law applicable to the client’s case. In most cases, the facts in a client’s case will tend to cast
the case into one or more defined categories of law, for example “landlord tenant law,” “criminal
law,” or some very specialized area of law such as Section 501(c) (3) of the Internal Revenue
Code. In almost all legal situations, some statute, rule, or case law will tend to limit or define the
general area of decision making for the client. An applicable statute or regulation will require
certain things to be done or prescribe certain consequences when certain facts are present. Case
law will generally define some general principal of law and then declare that in a particular fact
pattern a certain result is required.
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However, as law students have already realized, with rare exceptions, the “law” is
generally a gray, porous kind of guideline. Almost all statements of law have exceptions or
definitional issues and almost all facts are at least debatable. This is in a way a blessing and a
curse. The client usually has a socialized belief that “law” is clear and fixed and that almost all
cases can be decisively predicted. When the lawyer begins the legal education process that is
involved in all cases, this grayness can be a source of client frustration. However, for a client to
be able to make an informed decision, he or she must first understand the applicable legal
principles and associated “grayness.” Therefore, the attorney has a responsibility to educate the
client regarding the applicable law. This is best accomplished by giving each client a copy of the
applicable law and then explaining the law and any complexities.
Ideally, every case should include a legal research memorandum for the client and an
explanatory meeting with the client. In many simple cases this may consist of a copy of a basic
statute, rule or case that may apply. The important point is that the client must understand that
his or her case is being resolved in an ordered way under existing rules of law, or an effort is
being made to change existing law in an orderly manner. In almost all cases, applicable law will
provide the student with a good general outline of what must be addressed in the counseling
process. Any advice on the law that applies should also include a clear explanation of legal
procedures and legal processes that may be involved. Every legal procedure in turn requires
some sort of documentation or pleadings and involves time and money. This should also be
carefully explained to the client.
Practical, Moral and Social Dimensions
Good legal counseling also requires that the attorney go beyond or “outside” the law to
consider practical, moral or social considerations that may apply. The best examples of practical
consequences that should be considered in all cases are costs, and the natural consequences of a
particular legal action. Cost is probably the more obvious of the two. Every legal case involves
attorney fees, legal or transactional costs, possible unknown costs to the client, and in certain
circumstances, imposed costs if the case is lost. In every case, all the different costs associated
with each alternative should be assessed and the client informed. If the actual costs exceed the
actual benefits to be received, then a particular alternative is probably not very viable. It does not
make very good sense to spend $1000 to recover $100. Experience also teaches that attorneys
should be very cautious of clients who are willing to incur large costs to pursue a legal principle.
In every case one should consider the costs of a possible loss. While all clients and lawyers
believe they will prevail, in many legal situations, if one does not prevail, certain costs can be
shifted to the “loser.”
Similarly, some “costs” may not be readily apparent to the client or may be future costs.
An example of this is two merchants who have a long business relationship, or who anticipate
future business relationships. For one of them to insist on being proven “right” in a small dispute
may be “penny wise and pound foolish.” If it is clear that these two individuals will or must deal
with each other in the future, the “future costs,” including good will should be fully evaluated.
Another example would be where a student with a month to month tenancy, comes in seeking
legal advice over a minor, negotiable landlord obligation. If the client likes the premises and the
rent is relatively cheap, both the law student and the client should consider the long term
consequences of aggressively pursing a minor legal point. A simple example of the moral or
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social dimensions of a particular course of legal conduct involves the routine request of an
elderly client seeking to “disown” one or more of their children in a will. This can easily and
legally be done, but future consequences on the parent and the children or the extended family
should be carefully weighed before it is done. This simple legal act has clear future consequences
and costs beyond those that are obvious.
A good legal counselor will also look at the “whole” client and try to address any
conditions or influences that may exist or that may be contributing or causal factors in the
underlying legal problem. If there are obvious factors such as personal counseling issues,
substance abuse, family dysfunction, or severe financial limitations, these factors need to be
assessed and evaluated in the counseling process. Any course of conduct that is chosen may be
doomed to failure if these overriding factors are not addressed. Finally, a good legal counselor
will also try to prevent or anticipate future legal problems. Preventative law, like preventative
medicine for doctors is a hallmark of the good practitioner. If adverse parties must deal with each
other in the future, or probably will deal with each other, the client should consider the impact of
a certain course of conduct on those future relationships. Divorcing parents with minor children
provides a good example. They will have to deal with each other until their minor children
become adults and probably well beyond.
Common Counseling Problems Or Issues
Every client has a particular and specialized counseling need. However, there are several
commonly recurring counseling problems that the law student will encounter in the law clinic
and in future practice.
Client is still in the Venting or Emotional Stage. As the law student will soon discover,
clients rarely see attorneys before a legal problem arises. Likewise, many times the visit to the
lawyer is a “crisis” or “emergency” for the client and even very late in the case the client is still
very emotionally affected by the legal problem. As in the interviewing stage, good
communication and good client decision-making cannot take place until the venting or emotional
stage is over, or, at least at a manageable level. In cases where the emotional overlay is serious
and disruptive, a referral to a professional counselor or therapist may be necessary before
effective legal counseling can take place. In most situations, the passage of time is itself a good
healer and delaying or parceling of legal advice may be appropriate. In cases where the level of
emotional involvement is not severe or has diminished to acceptable levels, the law student may
also be able to provide some appropriate stress or practical counseling to the client in order to get
past the venting stage. However, clients with serious or severe emotional or mental issues should
always be referred to professional counselors or therapists.
One good approach is to address the causes or reasons for the stress directly and to
acknowledge or empathize with the emotional response. The student might consider asking the
client directly to explain why he or she feels so strongly or is so affected by certain facts or
conditions. This will clearly help the law student to better understand the client and sometimes
simply “talking about something” helps minimize the reaction. Knowing that certain facts or
conditions cause a particular emotional response on the part of the client may also allow the
student to counsel a result or solution that avoids or minimizes these kinds of events in the
future. Dividing the counseling or decision-making process into several sessions or into a
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graduated series of sessions may be a way to control the distractions of a client who still has
strong emotional reactions to parts of his or her case. Good decision-making by the client is
generally conditioned on an objective and composed client.
The Real Problem is Not Legal. On occasion, the law student will encounter a client
who either does not have a true “legal” problem or who has other overwhelming non-legal
problems that must be addressed. The stereotypical situation is where a client has a minor legal
problem such as a traffic ticket, or a dispute with a neighbor, and it is apparent to the attorney
that the “real” underlying problem is that the client needs professional counseling or therapy.
Another example would be where there is a legal problem such as a landlord tenant or debt
problem that can be easily addressed legally, but it is apparent that the underlying issue for the
client is substance abuse or dependence. In both of these situations, the student would be wise to
address any legal problem in the usual manner, and then to address the underlying problem.
Unless the student has a unique background or specialized training, the appropriate counseling
response is to refer the client for specialized care by a person or agency that deals with the
particular problem involved. Students are cautioned that their counseling should stay focused on
legal problems and that clients requiring specialized counseling should be referred to specialists.
On the other hand, students are encouraged to look at the “whole” client and to consider a
wide range of options, including non-legal options. . An example of this would be where an adult
child lives with an elderly parent and there are serious internal disagreements or family issues.
The legal solutions of an eviction action or partition action can solve the immediate “legal”
problems, but family counseling or referral to a trained mediator may be best. It should be clear
to the lawyer that the non-legal issues may be more important to the client than the purely legal
issues. The decision of the relative importance of legal or non-legal issues is for the client to
determine.
In all cases where a student feels there may be important “non-legal” issues, these issues
should be carefully discussed with the faculty member and a clear plan of referral or counseling
developed where appropriate. An attorney can get into serious difficulty if he or she tries to
counsel outside of his or her experience and training.
You are the Lawyer. You Decide for Me. Making important decisions can be difficult
for most human beings. Having an “expert” make those decisions can sometimes be easier for
the client. One of the most commonly encountered problems for lawyers in the counseling
process is that the client wants the attorney to make the decision for them. After all that is what
“they are paying the big bucks for.” The problem with this approach is that roles are being
reversed and the attorney may be getting himself or herself into a professional trap. The core of
client counseling is that the client must make the decisions. The role of the attorney is to chart
out the alternatives and then make sure the client makes a fully informed and volitional decision.
When the client says, “you decide”, this shows a need for more counseling. The professional trap
for the lawyer is that when a particular matter turns out wrong, or with hindsight a “better”
decision could have been made, if the lawyer truly made the decision, then responsibility for the
result becomes “my lawyers fault”. A lawyer may counsel which alternative he or she feels may
be best or wisest, but in all cases, the lawyer must take steps to make sure the decision is that of
the client. An indecisive client needs more counseling and in certain circumstances, may benefit
from a second opinion.
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Get A Second Opinion When Appropriate
A second opinion may help the client make a more informed decision. In the legal
profession, second opinions are probably underutilized as a general matter. Law students in
particular can use the second opinion as an effective learning device. Second opinions or
consultations allow the student to view specific legal problems from a broader and different
perspective. A second opinion can also be very useful to the client. It can demonstrate to the law
student and client that opinions differ even among experienced professionals. The second
opinion may disclose additional concerns or may focus the more important concerns for the
client. A second opinion on an important issue will also inform the client that there is no clear
“right” or “wrong” decision, and that the client must of necessity exercise some risk or judgment
in these larger decisions.
Formal second opinions will probably involve attorney fees for the client and therefore,
second opinions should only be obtained in cases involving important or complex issues. In a
sense, the supervising faculty member provides a form of second opinion for the student in the
typical case. In an appropriate case, the student and professor may want to meet with the client to
discuss their own differences of opinion. But, in specialized or more complex areas of the law,
more informal “mentoring” types of second opinions can probably be obtained from the private
bar for free. Law school alums and friends represent a valuable resource of experience and
perspective for the clinic’s clients. A faculty member may be an important source for a free or
low-cost second opinion.
When the case is difficult, the decision very important to the client, or the client is having
great difficulty in choosing from the available alternatives, a second opinion may help the client
make the best decision in his or her case. Every faculty member either knows or can locate
highly experienced local practitioners who would be willing to give a second opinion, or at a
minimum some informal networking type of advice to the student and the client.
Defining Alternatives for the Client
In order for the client to be able to make a good and wise decision, he or she must clearly
understand and comprehend the various alternatives available and the costs and benefits imposed
by each different choice. This requires the law student to chart each and every alternative, or
important decision a client must make, and clearly explain the inter-relationship of each choice.
In many clinic cases the issues are few or simple and the range of decisions to be made
by the client are limited. But in other cases, the issues may be complex, several and closely
interrelated. In many cases the long term consequences or implications may be as important or
more important to the client than the immediate or short-term issues. A good simple example of
this is a divorce case with some property issues and young children. Here, all of the issues are
interrelated and the long-term consequences to both parties, and the children are impacted by
how the different issues are resolved. How the client decides to address or resolve issues such as
division or property, allocation of the family home, spousal support, pension or retirement
benefits, child support and child visitation are all interrelated issues. Just the fact that the parties
must likely interact and “share” child rearing and child support duties into the future, requires the
client and attorney to more carefully evaluate the consequences of each decision. If one adds a
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background of a high level of anger or hurt, low income and domestic violence to the
hypothetical case, the counseling issues become more complex. This present and future
complexity requires the law student to make sure the client considers his or her legal problems
from a broader perspective that includes not only present choices but also probable future
consequences.
Basic Outline For A Counseling Plan
A good place for the law student to begin to formulate a counseling plan or program for
the client is for the student to list each important legal or procedural issue the client must address
or decide. Next to each legal issue the student should place a short but inclusive statement of the
law or legal principle that will be used to decide each issue. This short summary of the law will
in turn identify certain sub-issues that must also be resolved. The next list should include a short
statement and assessment of the facts that apply to each issue. The student is cautioned to be
objective and realistic in this assessment because facts are probably the softest or most malleable
part of the case. Few facts are “clear” and all facts can be debated or used in a contradictory way
by the opposing party. Next to each issue the client must decide, the student should list the
clients position or goals and in a separate column the client’s short-term and long-term interests
for each goal. This simple chart can serve as an outline of the client’s entire case and can also be
useful in later settlement or litigation stages of the case.
In addressing client “goals” and interests” the student should be aware that client goals
and interests are often quite different. In a narrow way a “goal” can be defined as what the client
would like, whereas the client’s interest consists of facts or factors that are either in his or her
short-term or long-term interests in a positive or negative way. The term “interest” involves a
practical evaluation of why a particular decision may be good or bad for the client. A simple
example would be a client who is adamant that he or she be awarded the family home, subject to
the mortgage. This may be a clear and legally attainable “goal”, but if other facts in the case or
the clients background disclose that the client is unable to afford the mortgage, taxes, and
maintenance costs, careful consideration of his or her long-term financial “interests” may require
or even mandate the consideration of other less attractive alternatives, such as a sale or even that
the other party receive the family home. Similarly, in a divorce involving children, especially
very young children, it is clear that the client and the soon to be ex-spouse will have to interact
on a responsible basis for many years into the future. Accordingly, a good legal counselor should
make sure this future “interest” is evaluated by the client in all decisions. Finally, the law student
should make sure that required legal procedures, the time required for resolution, costs, time
value of money or possession, ADR alternatives, the likelihood of future disputes, and future
dispute resolution be factored into the cost-benefit analysis of the client. Only after the client has
considered all of the available legal and practical alternatives, is he or she ready to make an
informed decision about his or her case. A simple chart to accomplish this would be as follows:
Client Counseling Worksheet
CLIENT COUNSELING WORKSHEET
Client Name: ____________________
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Case File No.: ____________________
General Client Objectives _____________________________________
(type of case or general client objectives)
Sub-issues ________________
________________
________________
________________
Any external or overriding issues? Explain in detail. ___________________________________
_____________________________________________________________________________
_____________________________________________________________________________
Adverse Party __________________________
General Objectives of the Adverse Party _______________________
Relationship between client and adverse party _______________________
Involvement or impact of any third party _______________________
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Counseling Matrix
Legal or
Procedural
Alternatives.
List by
Number.
Applicable
Law
Applicable
Facts
State
whether
facts are
disputed
Alternatives
Available
to Client.
Include
ADR
processes.
Short Term or
Immediate
Costs of
Alternatives,
Consequences
or Benefits.
Long Term
Costs,
Consequences
Benefits, or
Relationships
Client
Decision or
Preferences
1.
2.
3.
4.
Summarize student legal or procedural recommendations to client.
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Are there any legal or ethical limitations on client’s objectives?
______________________________________________________________________________
111
______________________________________________________________________________
______________________________________________________________________________
Are there any future relationships between client and adverse party?
______________________________________________________________________________
______________________________________________________________________________
Is an ADR dispute resolution mechanism appropriate for certain issues or disputes?
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Is case appropriate for a second opinion or consultation?
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Time, cost, and effort involved in resolving this dispute in a non-ADR manner:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______
Summary of Client Counseling Process to be utilized by student including timelines.
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______
List any outside counseling, therapy, educational programs or referrals that are to be
recommended to the client.
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Counseling Recommendations to the client:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
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Client Decision:
Differing Value Systems and “Unwise” Decisions
In counseling the client, the student is reminded that all important decisions must be
made by the client. The student should also be aware that the client may place different values on
certain items or facts and that ultimately the client must live with the result or outcome. If the
client is competent and fully advised of the alternatives, he or she is legally entitled to make a
decision that the attorney would not personally make.
A general word of caution is appropriate where a client is making what the attorney feels
is an “unwise” decision. In these situations, the student is well advised to set out the alternatives
available to the client in writing, confirm the legal advice on each alternative, and confirm that
the client is making a particular decision. This may seem a bit defensive, but if the decision is
important, costly, or presents future risks to the client, the prospect of a future malpractice or
disciplinary claim is high. The same is true where the client wants to do something that is not
typical or that may have some clearly adverse impact on a third party. Simple examples of this
that a student may encounter in the clinic are clients who want to disown children, or a divorce
client who wants to give all property to the other spouse out of guilt or charity. In these
situations, the student should make sure the client is fully counseled and that the clients specific
decision is documented by letter.
Finally, in extreme cases if the client is making a truly “foolish” or “harmful” decision,
the attorney should consider the possibility of ending the representation and recommending that
other counsel be retained. These kinds of situations are also ripe for a neutral second opinion. All
cases in which the student and the client have significant differences in the decision being made
by the client should be carefully documented, and fully discussed with the supervising faculty
member. Students are reminded that after appropriate counseling, clients are entitled to make
different or even “unwise” decisions. The case belongs to the client and not to the attorney.
Bibliography
Counseling
Dinerstein, Robert D., Client Centered Counseling: Reappraisal and Refinement, 32 ARIZ. L.
REV. 501 (1990).
Hartje, Jeffrey H. & Wilson, Mark E. The Lawyer-Client Relationship, in LAWYER'S WORK:
COUNSELING, PROBLEM-SOLVING, ADVOCACY AND CONDUCT OF
LITIGATION 19 (1984).
Jacobs, Michelle S., Legal Professionalism: Do Ethical Rules Require Zealous Representation
for Poor People?, 8 ST. THOMAS L. REV. 97 (1995)
Jacobs, Michelle S., People From the Footnotes: The Missing Element in Client-Centered
Counseling, 27 GOLDEN GATE U. L. REV. 34 (1997).
113
Kaser-Boyd, Nancy & Forrest S. Mosten, The Violent Family: Psychological Dynamics and
Their Effect on the Lawyer-Client Relationship, 31 FAM. & CONCILIATION CTS.
REV. 425 (1993).
Margulies, Peter, Re-framing Empathy in Clinical Legal Education, 5 CLIN. L. REV. 605
(1999).
Mather, Lynn & Yngvesson, Barbara Language, Audience, and the Transformation of Disputes,
15 L. & SOC’Y REV. 775 (1981).
Myers, Eleanor W., Teaching Good and Teaching Well: Integrating Values with Theory and
Practice, 47 J. LEGAL EDUC. 401 (1997).
Novak, Dr. Mark & Novak, Sean M. Clear Today, Uncertain Tomorrow: Competency and Legal
Guardianship, and the Role of the Lawyer in Serving the Needs of Cognitively Impaired
Clients, 74 N.D. L. REV. 295 (1998).
Romano, Diana A., The Legal Advocate and the Questionably Competent Client in the Context
of a Poverty Law Clinic, 35 OSGOODE HALL. L.J. 737 (1997).
Seibel, Robert F. & Sutton, John M. Jr., William C. Redfield, An Integrated Training Program
for Law and Counseling, 35 J. LEGAL EDUC. 208 (1985).
Shalleck, Ann, Theory and Experience in Constructing the Relationship between Lawyer and
Client: Representing Women Who Have Been Abused, 64 Tenn. L. Rev. 1019 (1997).
Simon, William H., Lawyer Advice and Client Autonomy: Mrs. Jones's Case, 50 MD. L. REV.
213 (1991).
Smith, Linda F., Medical Paradigms for Counseling: Giving Clients Bad News, 4 CLIN. L.
REV. 391 (1998).
Southworth, Ann, Collective Representation for the Disadvantaged: Variations in Problems of
Accountability, 67 FORDHAM L. REV. 2449 (1999).
Southworth, Ann, Lawyer-Client Decisionmaking in Civil Rights and Poverty Practice: An
Empirical Study of Lawyers' Norms, 9 GEO. J. LEGAL ETHICS 1101 (1996).
Spiegel, Mark, The Case of Mrs. Jones Revisited: Paternalism and Autonomy in Lawyer-Client
Counseling, 1997 BYU L. REV. 307.
Uphoff, Rodney J. & Peter B. Wood, The Allocation of Decisionmaking Between Defense
Counsel and Criminal Defendant: An Empirical Study of Attorney-Client
Decisionmaking, 47 U. KAN. L. REV. 1 (1998).
White, Lucie E., Mobilization on the Margins of a Lawsuit: Making Space for Clients to Speak,
16 N.Y.U. REV. L. & SOC. CHANGE 535 (1987).
Zeidman, Steven, To Plead or Not to Plead: Effective Assistance and Client- Centered
114
Counseling, 39 B.C. L. REV. 841 (1998).
Zulack, Mary Marsh, Rediscovering Client Decisionmaking: The Impact of Role-Playing, 1
CLIN. L. REV. 593 (1995).
Trial Advocacy
Amsterdam, Anthony G. & Hertz, Randy An Analysis of Closing Arguments to a Jury, 37
N.Y.L. SCH. L. REV. 55 (1992).
Lubet, Steven, What We Should Teach (But Don't) When We Teach Trial Advocacy, 37 J.
LEGAL EDUC. 123 (1987).
Ohlbaum, Edward D., Basic Instinct: Case Theory and Courtroom Performance, 66 TEMP. L.
REV. 1 (1993).
Smith, Abbe, "Nice Work if You Can Get It": "Ethical" Jury Selection in Criminal Defense, 67
FORDHAM L. REV. 523 (1998).
Mediation
Barkai, John, Teaching Negotiation and ADR: The Savvy Samurai Meets the Devil, 75 NEB. L.
REV. 704 (1996).
Epstein, Michael A., Block, Dennis J. The Corporate Counsellor’s Deskbook, (5
th
ed., Aspen
1995).
Hyman, Jonathan M., Slip-Sliding Into Mediation: Can Lawyers Mediate Their Clients'
Problems? 5 CLIN. L. REV. 47 (1998)
Nolan-Haley, Jacqueline & Maria R. Volpe, Teaching Mediation As a Lawyering Role, 39 J.
LEGAL EDUC. 571 (1999).
Nolan-Haley, Jacqueline M., Lawyers, Clients, and Mediation, 73 NOTRE DAME L. REV.
1369 (1998).
Portnoy, Sanford M. The Family Lawyer’s Guide to Building Successful Client Relationships,
(ABA 2000).
Wood, Erica, Straight, Audrey K. Effective Counseling of Older Clients: The Attorney-Client
Relationship, (ABA 1995).
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XI. Alternative Dispute Resolution
At all stages of client representation, clinic students should consider the positive problem
solving opportunities offered by Alternative Dispute Resolution (ADR) techniques. ADR is one
of the new, rapidly growing approaches to client problem solving in the legal profession. ADR
and its innovative and pragmatic approach to problem solving has created a whole new set of
alternatives for the client and the attorney. Within the past 30 years, ADR has started to change
the ways that lawyers and institutions look at problem solving. ADR techniques have been
widely adopted by courts and administrative agencies. ADR has become a separate and
specialized teaching area in almost all law schools. As with courses in Interviewing and
Counseling, courses in ADR are highly recommended for all law students. ADR and its concepts
have become important enough that ADR as a problem solving approach has become a part of
the UNM law Clinics basic policy.
The UNM Law Clinic’s ADR policy is as follows:
Clinical ADR Policy Statement
Introduction to the Use of Alternative Means of Dispute
Resolution in the Clinic
In your clinical experience this semester, you will be asked to
analyze your cases for possible disposition through a variety of
means of dispute resolution. The alternatives available range
along a continuum in terms of coerciveness, formality, force,
and effect. The term “alternative dispute resolution,” as it has
come to be known, generally is used to refer to the processes
and approaches between the extremes of traditional litigation
and negotiation.
Alternative Dispute Resolution, often called by its acronym
“ADR,” is not a new phenomenon. Forms of arbitration and
mediation have been used in the United States since colonial
times. Negotiated settlements have resolved matters in
litigation for centuries. The past twenty years, however, have
seen an astonishing growth of ADR in both the public and private
sectors. Courts have developed a variety of mandatory and
voluntary ADR programs, corporations and law firms have created
ADR divisions, and private dispute resolution has become a
growing professional service industry. The explosion of ADR
programs has been matched by the creation of a panoply of novel
dispute resolution procedures the variety of which is limited
only by the imaginations of the participants.
The phenomenal growth of ADR has not been confined to the
resolution of disputes. The field of dispute prevention has
enjoyed a parallel growth in ADR with a focus on transactional
planning before disputes arise. Developments include programs
for identifying unsafe or illegal practices, as well as aids to
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building consensus and reaching agreements about future
relationships. In dispute prevention, the parties work to create
guidelines, principles, and rules to govern future conduct
through contracts, treaties, and other agreements. Often the use
of a skilled intermediary can assist in such diverse dispute
resolution processes as collective bargaining, the negotiation
of commercial contracts, international treaties, and the
negotiation of the form and content of proposed legislation or
governmental regulations.
The basic forms of ADR can be divided into those that represent
variations on classic adjudications and those that represent
variations on assisted negotiations. Arbitration and private
judging are the two forms of ADR that are offshoots of classic
adjudication. The key feature of adjudication, arbitration, and
private judging is that the responsibility for deciding the
outcome rests with the neutral, not with the parties. In
arbitration the parties agree, or are required by contract or
statute, to submit their dispute to a neutral party whom they
have selected to make a decision. Arbitration is typically
faster, less formal, and less costly than court adjudication.
Arbitration is frequently used in commercial, construction,
insurance, and consumer disputes, as well as in the labor field.
Private judging constitutes another process where the parties
submit their disputes for decision by a neutral third party.
Most frequently, the neutral is a retired judge, the process
uses formal rules of evidence and procedure and, in some states,
and the decision of the neutral is entered as a judgment of the
court and is appealable.
The forms of ADR that constitute assisted negotiations include
mediations, conciliations, facilitated settlements, neutral
experts, mini-trial, and summary jury trials. In mediation,
conciliation, and settlement facilitation, a neutral third party
helps the disputants to negotiate, but does not decide the
outcome. Instead, the responsibility for resolving the dispute
and the terms of resolution lies with the parties themselves. In
mediation, the neutral works with the parties to improve their
communication and problem definition skills so that they can
find a resolution that satisfies them. Conciliation is a less
formal process, more explicitly aimed at preserving
relationships. Settlement facilitation involves both the parties
and their lawyers in a process that often focuses on money
damages and seeks to find a mutually acceptable dollar amount,
which is sufficient to end the dispute.
Neutral experts, mini-trials, and summary jury trials are all
forms of ADR which give the parties access to information on the
strength and value of their cases as seen by a neutral, the
jurors, or their opponents. This information is not a binding
decision, but an aid to improving the parties' abilities to
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negotiate and decide their own resolution. The presentation of
abbreviated evidence and the advisory opinion of the expert or
jury are followed by assisted negotiations, which use the
information gained in the process to encourage realistic
evaluation and settlement.
There are many other ADR processes, most of which combine
aspects of these more basic forms. These hybrid processes are
designed to meet the needs of disputants or types of disputes on
a more individual basis. One of the major advantages of ADR is
the flexibility with which processes can be created and combined
to fit particular circumstances.
To use ADR effectively, it is important to select or devise a
process appropriate for the particular dispute and disputants
involved. In the context of the cases you will be handling at
the Clinic, the procedures you are most likely to consider are:
mediation, settlement facilitation, and variations of
arbitration.
Arbitration: Arbitration is a process in which the parties
engage a neutral person, or sometimes a panel of neutral people,
to hear arguments, consider evidence, and make a decision
regarding their dispute. Arbitration comes in many forms:
mandatory, voluntary, court annexed, private, binding, and non-
binding.
Lawyers Role: The role of the lawyer in arbitration is similar
to the lawyer's role in formal court proceedings. First, unless
arbitration is mandated by contract or court rule, the lawyer
should evaluate whether the case is suitable for arbitration.
Then the lawyer should counsel the client about what form of
arbitration might be appropriate. Because arbitration is a
speedy, informal process which usually takes place early in the
resolution of a dispute, the lawyer should accelerate informal
fact investigation and discovery to prepare adequately for
arbitration. Finally, the lawyer should select an arbitrator,
using national or local arbitration services and gathering
information from lawyers who have used particular arbitrators.
Because one of the advantages of private arbitration is the
ability to select the decision-maker, the lawyer should take
care to collect sufficient information to make a knowledgeable
choice of who will serve as arbitrator in a particular case.
Names of arbitrators and arbitration organizations can be
obtained from state and national bar associations (which
frequently have alternative dispute resolution committees), from
law schools (where arbitration and ADR are part of most
curricula), and from law libraries which carry ADR and
arbitration publications and telephone directories.
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Appropriate Cases: Cases in which it would be helpful for the
decision-maker to have particular subject matter expertise;
cases in which the parties would benefit from quicker
disposition than that available through the courts; cases in
which the parties would benefit from a confidential as opposed
to a public process; cases in which the parties want a third
party to decide the matter, but want to retain some control over
the disposition (e.g., final offer or high-low arbitration
options).
Mediation: Mediation is a process in which the parties to a
dispute, with or without their lawyers, meet with a neutral
third party who helps them explore issues, develop options,
consider alternatives, and reach a consensual settlement.
Mediation can be either voluntary or court ordered. The mediator
is not a decision-maker, so the process is binding only if the
parties reach an enforceable agreement.
Lawyers Role: The lawyer's function in representing a client in
mediation can take several forms, including instructing the
client about mediation; preparing the client to participate
effectively in mediation; selecting the mediator; representing
the client in the mediation itself; counseling the client during
mediation; reviewing agreements reached in mediation; drafting
mediated agreements; and incorporating the mediated agreements
into court orders. Basic to all of these functions is sound
mastery of the mediation process. The lawyer must understand
mediation to determine whether it is appropriate for a
particular client or dispute. Familiarity with mediation is also
necessary for the lawyer to explain the process to the client,
so that the client can decide whether or not to engage in it.
Additionally, the lawyer should understand the mechanics of
mediation to help the client participate more effectively in the
process. Finally, the lawyer should be able to explain the
mediation process to an opponent and persuade that opponent to
try it. The lawyer also should know enough to select the best
type of mediation for a particular dispute; to counsel the
client throughout mediation; to represent the client in the
mediation itself; to help the client understand the costs of
alternatives to a mediated agreement; and to review all
agreements from mediation before their execution. This review
should encompass legal consequences, fairness, completeness,
clarity, workability, and enforceability.
Advantages: There are many advantages to getting parties
together to solve a problem. It increases the likelihood of
achieving mutually beneficial solutions. Settlement momentum
builds so that parties are more likely to move beyond
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unreasonable positions. The tactical foxholing and shift in
positions that sometimes occurs in settlement negotiations
outside of mediation also can be avoided. Solutions are devised
that could not have been thought of by either party
independently. Cases are less likely to get bogged down in legal
technicalities that drain parties of time, energy, and money.
Emphasis is on pragmatic problem-solving.
Appropriate Cases: Cases in which the parties have an ongoing
relationship can be particularly well suited to mediation if
there is a desire to preserve or rebuild the relationship.
Likewise, businesses may be motivated to mediate with
dissatisfied customers because of the potential for a
relationship in the future or because of reputation concerns.
Cases in which there is a dispute over goods that can be
repaired or exchanged or the complaint can be responded to on
other non-monetary bases also are good candidates for mediation
because the parties have more bargaining options. Typically,
parties tend to be more amenable to such non-monetary solutions
earlier rather than later in disputes. Try to avoid
repossessions by third parties (e.g., banks or credit companies)
so that the original parties to the dispute can attempt
settlement with a broad range of possible options for
resolution.
Settlement Facilitation: Settlement facilitation is a process
where a third party, usually with substantial expertise in the
subject matter of the dispute, assists the lawyers and their
clients to negotiate a resolution. Typically, settlement
facilitation is used in cases where litigation has commenced and
enough discovery has been completed to allow both sides to
estimate the value of the case. Most often the settlement
facilitator serves as a shuttle diplomat meeting separately with
each side, challenging their case valuations, and relaying
offers back and forth.
Lawyer's Role: The role of the lawyer in settlement facilitation is
to prepare the case for negotiation, including facts, law, and
valuation, to analyze the costs, risks, and benefits of
proceeding to litigation if the case does not settle, and to
counsel the client on the strengths and weaknesses of the case.
Appropriate Cases: When negotiations have broken down or deadlocked;
when either party is reluctant to present a settlement offer
without first hearing an offer from the other side; when the
parties are reluctant to negotiate for fear that they are too
far apart; when the parties do not want to meet face-to-face,
but could benefit from neutral intervention.
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Hybrid Models: In addition to the basic forms of ADR listed
above the student should be aware that different hybrids of
these basic forms have developed. These are: assisted
negotiation, internal grievance procedures, conciliation, fact-
finding mediation, mediation/arbitration, advisory arbitration,
last offer arbitration, court administered arbitration, advisory
opinions, early neutral evaluations, moderated settlement
conferences, mini-trials, summary jury trials, evaluative
mediation, special masters, special hearing officers or
commissioners, and private judging. There are no doubt more
hybrids or combinations of the basic ADR techniques and law
students are encouraged to be creative in constructing
innovative techniques that help solve their clients legal and
practical problems. Students are also reminded that ADR
techniques can also be used for only a part of the client’s case
and can be mixed or incorporated with traditional dispute
resolution devices by agreement.
Court Annexed ADR Procedures
Over the past 20 years throughout the United States, almost all courts have adopted ADR
procedures as a way to either replace or supplement the traditional adversarial system of
litigation. New Mexico is no different. New Mexico federal, state and tribal courts all utilize
some form of ADR to aid the parties before them to resolve their disputes in a fair, efficient and
economical manner. The federal and state courts in particular have made certain ADR based
procedures a required procedural step before trial or as part of the litigation system. Almost all
tribal courts in New Mexico utilize some form of traditional dispute resolution similar to ADR,
and the Navajo Tribal Court in particular has led the way with its peacemaking procedures.
In the law clinic, each student needs to have some familiarity with each of the common
court annexed ADR procedures. The procedures in the Second Judicial District offer good
examples of the most common ADR procedures.
ADR In the Second Judicial District Court
ADR in Child Custody, Visitation and Parenting Issues; The Court Clinic Process, and
other ADR Requirements.
The Second Judicial District Court Clinic is a court created mediation program, which is
staffed by neutral, professionally trained counselors and psychologists. This mediation service is
provided to litigants in the district on a scaled fee basis and is limited to issues of child custody,
child visitation or other parenting issues, not including child support issues. While there are some
opt-out provisions in the rules, the vast majority of child visitation or custody disputes must go
through the Court Clinic Process before the District Court will address the underlying issues. The
only other way to avoid the Court Clinic process in these kinds of issues is for the parties to
agree on these issues, or pay for a private evaluation, which few of our clients can afford.
The Court Clinic provides five basic kinds of services:
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• An Orientation Program which is mandatory for all participating parties,
• A Priority Consultation (PC), which is a limited emergency basis service to
address interim custody or timesharing issues,
• A Mediation Process to help the parties resolve their own custody or visitation
issues,
• An Advisory Consultation (AC) process where the Court Clinic conducts an
evaluation and serves as an expert witness to the Court, and
• Custody Evaluations in limited circumstances for the parties use.
Cases with a history of domestic violence should be handled under special protocols. If
your client has been involved in domestic violence, it is important to provide the client with a
copy of the protocols so that the client can request that the protocols be followed.
All cases must be referred to the Court Clinic by a specific Court Clinic Referral Order
(see local form LR-2, Form T), whether the parties stipulate or are ordered to participate. All fees
must be paid before the Court Clinic process begins. Law students with clients going through the
Court Clinic process should become familiar with three Court Clinic documents,1) the brochure
on Services Provided by the Court Clinic, 2) the Time Sharing Guidelines, and 3) the Court
Clinic Domestic Violence Protocols. The student should consult with his or her supervisor before
preparing the client to go to the Court Clinic.
Attorneys are not allowed to participate when the client attends the Court Clinic sessions,
but it is very important to prepare the client for the Court Clinic process, and to contact the Court
clinician assigned to the case. The preparation of the client should include informing the client
that the focus of the sessions must be upon the best interest of the child. Clients must be
cautioned that while the sessions may appear to be a therapy session, or an opportunity to discuss
personal problems and conflicts, the Court Clinician will be evaluating the parties’ conduct.
The student should contact the assigned court clinician after a session to provide any necessary
additional information, and to develop a sense of the court clinician’s impression of the case. The
student should attempt to form a working relationship with the court clinician, and keep the court
clinician informed of any new developments.
Students must also be familiar with the court rules applicable to the Court Clinic. These rules
follow.
Local Rule, LR2-504, Child Custody; Parent Plans; Binding Arbitration
COURT CLINIC MEDIATION PROGRAM AND OTHER SERVICES FOR CHILD-
RELATED DISPUTES
Mediation Program Established. Pursuant to Sections 40-12-1 NMSA
1978 et seq., the second judicial district elected to establish
and will continue to maintain a domestic relations mediation
program to assist the court, parents and other interested
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parties to determine the best interests of children involved in
domestic relations cases. The program shall be administered and
services provided by the second judicial district court clinic.
Mandatory Referral. Unless otherwise ordered by the court upon
stipulation of the parties or for good cause shown, in every
case involving a dispute over any child-related issue except
child support the court shall enter an order referring the
parties to the court clinic for non-confidential mediation. In
the alternative or in addition to an order for mediation, the
court may order that the parties submit to other court clinic
services including but not limited to advisory consultation,
priority consultation, evaluation and decision-making. Except
for initial mediations and advisory consultations the court will
not order court clinic services simply upon stipulation of the
parties, and shall require a showing of good cause.
Submission of Order. Within thirty (30) days after service of
the petition or promptly after learning of any dispute over any
child-related issue, the petitioner shall present to the
assigned judge a proposed order referring the parties to the
court clinic. The order shall be in the form set forth in LR2-
Form T. If the signatures of all parties entitled to notice
cannot be obtained, the petitioner shall request a hearing in
the manner set forth in Second Judicial District Local Rules,
Rule LR2-123. After the hearing, both parties shall be
responsible for providing an endorsed copy of the order to the
court clinic.
Required Information Sheet. Prior to filing the court clinic
referral order, the parties shall complete a court clinic
information sheet in the form set forth in LR2-Form U, and
attach such sheet to the order. Referral orders shall not be
filed unless the sheet is attached, and no mediations or other
court clinic services shall begin until the order is filed.
Fees. The parties shall pay all court clinic fees before any
services are provided.
Scheduling Services. After the court clinic referral order is
filed, the clinic will contact the parties to schedule all
services except priority consultations. With respect to priority
consultations, the actual parties along with their counsel, if
any, shall contact the clinic in person immediately after the
order is filed.
Clinic Requested Hearings. In any case in which a court clinic
referral order has been filed, the clinic may request a hearing
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or status conference by filing a request for hearing in the
manner set forth in Second Judicial District Local Rules, Rule
LR2-123. The clinic shall mail or deliver a copy of such request
to all parties entitled to notice.
Modification. Any party may file a motion to modify or
supplement the order of referral. The order shall continue in
effect while such motion is pending.
Policies and Procedures. All court clinic written policies and
procedures, including those regarding scheduling, shall be
available for review by parties and the general public upon
request.
Referral to Other Providers. Upon agreement of the parties or
for good cause shown, the court may order that the parties be
referred for mediation and other services to a qualified service
provider other than the court clinic.
The order shall be in a form similar to the form set forth in
LR2-Form T.
Providers as Witnesses. Court clinic staff and other persons who
have provided services pursuant to this rule may be called as
witnesses pursuant to NMRA, New Mexico Rules of Evidence.
Out-of-District Referrals. Parties in out-of-district cases may
receive services from the court clinic provided the referral
order is signed by both the assigned out-of-district judge and
the second judicial district presiding domestic relations court
judge. As a condition of filing the order, the parties shall pay
a thirty dollar ($30.00) fee to the clerk. This filing fee shall
be in addition to any assessment fees.
Local Rule 1-124 NMRA, Domestic Relations Mediation Act Programs
1-124. Child custody; parenting plans; binding arbitration.
A. Parenting plan required. If a domestic relations proceeding
involves custody or visitation of minor children, the parties
shall attempt to agree upon and file a joint parenting plan
pursuant to Section 40-4-9.1 NMSA 1978 within sixty (60) days of
the filing of the petition for dissolution.
B. Binding arbitration. If the parties have not filed a
parenting plan, the parties may agree to submit issues involving
custody or visitation to binding arbitration pursuant to Section
40-4-7.2 NMSA 1978.
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C. Mediation. If the parties have not agreed to a parenting plan
or to binding arbitration pursuant to Paragraphs A or B of this
rule, the court may refer the matter to family counseling or
mediation prior to holding a hearing on child custody or
visitation.
[Approved, effective November 1, 2000 until November 1, 2001;
approved, effective November 1, 2001.]
Local Rule 1-125 NMRA, Domestic Relations Mediation Act
1-125. Domestic Relations Mediation Act programs.
A. Applicability. This rule shall apply only to domestic
relations proceedings that involve custody, periods of parental
responsibility or visitation of minor children pending in a
judicial district that has established a domestic relations
mediation program pursuant to the Domestic Relations Mediation
Act.
B. Referral by court. If the parties to a domestic relations
action involving minor children have not filed a parenting plan
pursuant to Section 40-4-9.1 NMSA 1978, unless binding
arbitration is pending pursuant to Section 40-4-7.2 NMSA 1978,
the court may order the parties to:
attend a general information session;
meet with a counselor designated by the court;
participate in mediation;
participate in priority consultation pursuant to this rule; or
(5) participate in advisory consultation pursuant to this rule.
C. Mediation; parenting plan. If the court orders the parties to
participate in mediation, if the mediation is successful, the
counselor or mediator shall prepare a parenting plan which shall
be submitted to the parties and their respective counsel for
approval. When the parenting plan has been signed it shall be
submitted to the court for approval together with an order
approving it.
D. Priority consultation. The court may refer the parties to a
priority consultation pursuant to the Domestic Relations
Mediation Act. Upon conclusion of a priority consultation, the
consultant shall prepare written recommendations to the court,
which shall be filed with the court and served on the parties.
If a party does not agree with the recommendations, within
eleven (11) days of the filing of the priority consultation
recommendations, the party shall file a motion specifically
describing the reasons for the party's objections to the
recommendations. The party's objections shall be served on all
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other parties. The opposing party may file a written response
within eleven (11) days after the date of service of the
objections. No reply may be filed. If no objections are filed
within eleven (11) days after service of the recommendations, an
order adopting the recommendations shall be entered.
E. Advisory consultations. The court may enter an order
requiring the parties to submit to an advisory consultation. The
order shall be substantially in the form approved by the Supreme
Court. At the conclusion of an advisory consultation, a report
shall be prepared and served on each party.
The person preparing the report shall also prepare and file with
the court written recommendations. The written recommendations
filed with the court shall not contain the basis for the
recommendations.
If a party does not agree with the recommendations, within
eleven (11) days of the filing of the advisory consultation
recommendations, the party shall file a motion specifically
describing the reasons for the party's objections to the
recommendations. The party's objections shall be served on all
other parties. The opposing party may file a written response
within eleven (11) days after service of the objections. No
reply may be filed. If no objections are filed within eleven
(11) days after service of the recommendations, an order
adopting the recommendations shall be entered.
F. Privileges. All communications made by any person who
participates in mediation proceedings pursuant to this rule are
privileged except that there is no privilege for information
derived from such communications which a participant is required
by law to report to a law enforcement officer or state agency.
[Approved, effective November 1, 2000 until November 1, 2001;
approved, effective November 1, 2001.]
Students must also be aware that if parties are not able to reach agreement on parenting
issues within 60 days of filing a petition, the case may be referred to either voluntary binding
arbitration or to other ADR procedures. The provisions regarding this process are set forth in the
following rules:
ADR in Other Civil Cases in the Second Judicial District Court
The local rules for the Second Judicial District also provide for Court Annexed
Arbitration and Settlement Facilitation as follows:
COURT-ANNEXED ALTERNATIVE DISPUTE RESOLUTION PROGRAMS GENERALLY
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A. Purpose. The purpose of this district's court-annexed alternative dispute resolution
programs is the early, fair, efficient, cost-effective and informal resolution of disputes. Nothing
in the rules governing these programs shall be construed to discourage or prohibit parties from
stipulating to private alternative dispute resolution.
B. Administration. These programs shall be administered by a court alternatives director
appointed by the court. The court may appoint standing committees of judges, lawyers, and
others to provide guidance and assistance.
C. Order Required. All referrals to these programs require the filing of a written court order.
D. Limitation. The number of cases referred to these programs shall necessarily be limited
by the number of attorneys and other professionals available to provide alternative dispute
resolution services under court-appointment, and the sufficiency of court resources to administer
the programs.
E. Immunity. Attorneys and other persons appointed by the court to serve as settlement
facilitators, arbitrators, mediators or in other such roles pursuant to the rules governing this
district's court-annexed alternative dispute resolution programs, are appointed to serve as arms of
the court and as such are immune from liability for conduct within the scope of their
appointment.
F. Forms. When available, applicable court forms shall be used. Forms shall be available
through the court alternatives director.
Local Rule, LR2-602 Settlement Facilitation Program
SETTLEMENT FACILITATION PROGRAM
a. Scope. The court may, pursuant to Rule 1-016 NMRA, refer
cases to settlement conferences conducted by court-appointed
settlement facilitators on an ad hoc basis throughout the year
and during periodic “settlement weeks” scheduled by the court.
The court will generally hold a “settlement week” during
September every year.
b. Application. This rule applies to civil cases, whether jury
or non-jury, except for cases in the following categories:
Appeals
Extraordinary writs
Court-annexed arbitration program, pending cases
Adoption
Commitment
Conservatorship
Guardianship
Student Loan
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Election
Tax
This rule does not apply to disputes where a law suit has not
yet been filed.
c. Referral Upon Request. Any party at any time may request
referral to a settlement conference by motion or letter directed
to the assigned judge. The letter may be ex parte. The letter
should include the following:
(1) Case number and caption;
(2) Estimated time required for conference;
(3) Whether other parties know request is being made;
(4) Whether other parties agree conference is appropriate;
(5) Brief list of pending issues;
(6) Type of facilitator or facilitator team preferred, e.g.,
judge, attorney, psychologist or other professional,
judge/attorney, judge/psychologist, attorney/psychologist,
attorney/attorney; and
(7) Names of all parties entitled to notice and any other
persons who should be present at the conference, along with law
firm, address, telephone number and capacity, e.g., attorney for
petitioner, witness for respondent.
The assigned judge will determine whether to grant the request
for referral.
The assigned judge may refuse to grant a request even if all
parties agree to a settlement conference.
d. Referral Upon Judge's Own Motion. The assigned judge at any
time and without agreement of the parties may refer a case to a
settlement conference.
Referral Order. In all cases to be referred, whether upon
party's request or judge's motion, the court will complete and
file an order requiring a settlement conference, appointing a
settlement facilitator or facilitators, and setting a deadline
for the conference, and will mail or deliver endorsed copies to
the facilitator(s) and all parties entitled to notice. The order
shall not indicate whether the referral was made upon a party's
request or the judge's motion. The order may be modified only by
subsequent written court order.
f. Time, Place and Deadline for Settlement Conference. Unless
set by the referral order, the time(s) and place(s) of the
settlement conference shall be set by the settlement
facilitator(s) within a deadline set by the court. Any party or
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facilitator may request an extension of the deadline by motion
directed to the assigned judge.
g. Attendance. The following shall attend and be present in
person during the entire conference: each party of record
including parties represented by counsel; each counsel of record
who will be trying the case; and, for each party, the person or
persons with complete authority to settle the case including but
not limited to insurance company representatives and guardians
ad litem. This provision may be waived only by written order of
the assigned judge. The court may refuse to grant a motion to
waive attendance even if all parties agree to the motion. Upon
motion of any party or its own motion, the court shall impose
sanctions for failure to attend the settlement conference or
have present all necessary parties or their representatives with
settlement authority, except upon a showing of good cause.
h. Settlement Conference Information. At least five (5) days
prior to the conference, all parties shall provide the
facilitator(s) with the information listed below. This
information shall not be filed with the court nor in any way be
made part of the court record, and at the providing party's
discretion, need not be produced to other parties. Upon motion
of any party or its own motion, the court may impose sanctions
for failure to provide the information to the facilitator(s).
(1) Case number and caption;
(2) Brief description of the case; in domestic relations cases
include date of marriage, separation and divorce, names,
ages, occupations and current annual incomes of parties, and
names and ages of children;
(3) Description of the relief sought;
(4) List of pending factual issues;
(5) List of pending legal issues;
(6) List of all remaining discovery;
(7) List of any pending dispositive motions;
(8) Estimate of costs and attorney fees through trial;
(9) The last offer made to other parties; and
(10) Copies of case law, statutes, pleadings, exhibits, orders
and any other information which would be helpful to the
facilitator(s).
i. Good Faith Participation. Parties shall participate in good
faith in settlement conferences. Good faith participation
includes but is not limited to sufficiently preparing for the
conference and engaging in meaningful negotiations during the
conference. Upon motion of any party or its own motion, the
court may award attorney fees and costs for failure to
participate in good faith.
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j. Canceling Conferences. Settlement conferences may be
cancelled only by written court order. By motion, any party may
request that a settlement conference be cancelled. By letter to
the assigned judge, the facilitator may request that a
conference be cancelled.
k. Choice of Settlement Facilitator. The court will choose the
settlement facilitator from a list of facilitators maintained by
the court. The court will consider any recommendations made by
the parties. The parties may present to the assigned judge a
stipulated order appointing any licensed attorney or other
qualified person as facilitator. Judges shall not act as
facilitators in their own cases.
l. Replacement of Settlement Facilitator. By letter to the
assigned judge with a copy to all parties and facilitators, any
party or facilitator may request that the facilitator be
replaced. The party or the facilitator requesting replacement
need not provide an explanation. Upon approval of the assigned
judge, the facilitator will be replaced; the court will choose
the replacement facilitator from the court's list and will
complete and file an amended referral order and mail or deliver
endorsed copies to all parties entitled to notice; or, the
parties may present to the assigned judge a stipulated order
appointing any licensed attorney or other qualified person.
m. Compensation to Settlement Facilitator. Compensation shall
not be required for any settlement facilitator for a settlement
conference conducted as part of a settlement week. The court may
order the parties to pay reasonable compensation to the
facilitator for a settlement conference not conducted as part of
a settlement week. Judges shall not receive compensation for
serving as settlement facilitators.
LR2-603, Court-Annexed Arbitration
COURT-ANNEXED ARBITRATION
Section I: General Provisions.
A. Application. This rule applies to civil cases, whether jury
or non-jury, except for cases in the following categories:
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Appeals
Uniform Arbitration Act
Extraordinary writs
Adoption
Commitment
Conservatorship
Guardianship
Probate
Children's Code
Domestic relations
Workers' compensation
Student loan
Driver's license
Election
Tax
A. Court Hearings. If a court hearing is required regarding
any aspect of arbitration prior to referral or any matter
during referral, the court shall set and hear the matter
promptly after the matter is brought to the attention of
the assigned judge by request for hearing or by the court
alternatives director.
B. “At Issue” Required. All cases referred to arbitration must
be “at issue” prior to referral. For purposes of this rule,
a case is “at issue” when at least one answer to the
complaint has been filed. Answers to cross-claims,
counterclaims and third-party complaints need not have been
filed. Service on all parties need not have been made.
Section II: Mandatory Referral.
A. Types of Cases for Mandatory Referral. All cases, jury and
non-jury, shall be referred to arbitration where no party seeks
relief other than a money judgment and no party seeks an amount
in excess of twenty-five thousand dollars ($25,000.00) from any
party or combination of parties, exclusive of punitive damages,
interest, costs and attorney fees.
B. Mandatory Certification. In all cases filed on or after the
effective date of this rule, any party filing a complaint,
counterclaim, cross-claim, third-party complaint or any other
pleading, in which affirmative relief is requested, shall file
and serve concurrently with the pleading for affirmative relief,
a separate certification indicating whether the party is or is
not seeking relief other than a money judgment and whether the
amount sought exceeds or does not exceed twenty-five thousand
dollars ($25,000.00) exclusive of punitive damages, interest,
costs and attorney fees. The certification shall be a good faith
attempt to state the type and amount of relief to be sought at
trial and shall not act as a limitation on relief.
C. Review of Certification; Referral Order. Within thirty (30)
days after a case is at issue, the court will review the court
file, including the certifications filed, to determine whether
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referral to arbitration is mandated by Section II(A) of this
rule. If so mandated, the court will prepare and file an order
referring the case to arbitration, and mail or deliver endorsed
copies of the order to all parties entitled to notice. The court
on its own motion may postpone filing a referral order if it
appears from the court file that the case may be resolved upon a
pending motion for judgment on the pleadings or other pending
dispositive motion. If referral is not mandated, no order will
be entered.
D. Failure to File Certification. If a party fails to file a
certification, the court after written notice may impose an
appropriate sanction including but not limited to dismissing the
party's complaint without prejudice. The court in its discretion
may impose such sanction without hearing.
E. Referral Upon Motion. At any time after a case is at issue
and notwithstanding any certifications filed, upon a party's
motion or the court's own motion, the court may enter an order
referring the case to arbitration provided the court finds that
the requirements of Section II(A) are met. The court in its
discretion may enter such an order without hearing.
F. Denial of Referral. Notwithstanding a finding that the
requirements of Section II(A) have been met, at any time prior
to referral, upon a party's or the court's own motion, the court
for good cause may deny referral to arbitration. The court in
its discretion may enter such an order without hearing.
Section III: Permissive Referral. Any case may be referred to
arbitration where the parties stipulate to arbitration. The
court may require the parties to stipulate to an arbitrator as
set forth in Subsection IV(C)(3) of this rule.
Section IV: Arbitrators.
A. Arbitrator Pool. The court will maintain a pool from which
arbitrators will be appointed. The pool shall include all active
members of the State Bar of New Mexico who have been licensed to
practice law for five (5) or more years and who are residents of
or have an office in Bernalillo County. Other attorneys licensed
for five or more years, including inactive attorneys, out-of-
Bernalillo County attorneys and out-of-state attorneys, may be
included in the pool upon written request to the court
alternatives director. The chief judge for good cause may remove
an attorney from the arbitrator pool either temporarily or
permanently. Such removal may be upon the court's own motion and
without notice to the attorney, or upon written request to the
court alternatives director. The court will periodically review
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the pool of arbitrators for completeness and accuracy, and may
require any member of the State Bar of New Mexico to submit
information necessary for this purpose. The court will provide
written notice to attorneys as they are added to the pool,
either by letter or notice published in the Bar Bulletin.
B. Training. The court may require any attorney who is part of
the arbitrator pool to attend arbitrator training.
C. Appointment to Case. After a case is referred to
arbitration, an attorney shall be appointed as arbitrator by the
filing of a court order upon either random selection, court
selection or stipulation. With appointments upon random or court
selection, the court will file an order appointing the
arbitrator and mail or deliver endorsed copies to the arbitrator
and all parties entitled to notice. With stipulations, the
parties shall file the order of appointment.
(1) Random Selection.
(a) Notice of Choices. Within ten (10) days after a case is
referred to arbitration, the court alternatives director will
mail to all parties a notice listing three (3) attorneys as
choices for arbitrator. The three attorneys shall be selected at
random from the arbitrator pool except that none of the three
may be employed by the same law firm as any of the other three
or as any counsel in the case. The notice of choices shall not
be filed with the clerk.
(b) Peremptory Strikes. Within seven (7) days after the
notice of choices is mailed, each party may peremptorily strike
one attorney by written notice to the court alternatives
director. A maximum of two strikes will be counted altogether; a
maximum of one strike will be counted for each side, e.g., all
plaintiffs or defendants or third-party defendants; strikes will
be counted in the order received. The first attorney remaining
after strikes are counted shall be appointed. The period for
making strikes shall not be extended. The notice of strikes
shall not be filed with the clerk.
(2) Court Selection. For good cause, the court may select an
arbitrator rather than provide the parties with a notice of
choices.
(3) Stipulation. The parties may stipulate to the appointment
of any licensed attorney, whether or not part of the pool and
with any length of experience, by stipulated order filed within
seven (7) days after the notice of choices is mailed, or within
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seven days after a vacancy is created by order of excusal or
otherwise. The stipulated order must be approved by all parties
and by the proposed arbitrator. Approval of counsel and the
proposed arbitrator may be telephonic; approval of parties pro
se must be by signature. The court or the proposed arbitrator
may require the parties to pay compensation at the arbitrator's
usual hourly fee.
(4) Excusal; Conflicts Check. Promptly upon appointment, the
arbitrator shall attempt to discern any conflicts of interest in
hearing the case and shall notify the parties thereof. Upon
discovery of a conflict of interest in hearing a case, an
arbitrator shall file a motion for excusal. Upon a party's, the
arbitrator's or the court's own motion, the court for good cause
may order that the arbitrator be excused from appointment to the
case. The court in its discretion may enter such an order
without hearing.
(5) Vacancy. Vacancies caused by excusal or otherwise shall be
filled by appointment of the first of the remaining three
choices or if none remains, by appointment of an attorney
selected by the court, or the parties may stipulate to a
replacement as provided in Subsection IV(C)(3).
D. Compensation. The court shall compensate arbitrators in the
amount of one hundred dollars ($100.00) per case. An arbitrator
is entitled to compensation when the arbitrator files an award
or the arbitration proceedings are otherwise concluded or when
the arbitrator is excused from appointment. The arbitrator shall
submit a written request for compensation to the court
alternatives director within thirty (30) days after the
arbitrator is entitled to compensation. Failure to submit a
request shall be deemed a waiver of compensation. Arbitrators
compensated by the parties pursuant to Subsection IV(C)(3) shall
not be compensated by the court.
Section V: Procedures During Referral.
A. General.
(1) Court Jurisdiction. The assigned judge continues to have
jurisdiction over a case during referral to arbitration. In
general, however, the assigned judge should not hear any matters
after an arbitrator is appointed except the judge may hear the
following:
Motions to excuse the arbitrator
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Motions to withdraw referral to arbitration
Motions for sanctions pursuant to Subsection V(A)(5)
Motions for free process
Motions regarding attorney representation
Motions to add new parties
Motions to set aside default or any other judgment
Motions to compel settlement
Any post-judgment enforcement and execution matters
Requests for settlement conference pursuant to Second Judicial
District Local Rules, Rule LR2-602.
After a case is referred to arbitration and before an arbitrator
is appointed, the court in its discretion may vacate any pending
hearings on matters that may be heard by the arbitrator, and may
set hearings on matters needing immediate consideration.
(1) Arbitrator Jurisdiction, Powers, Duties. The arbitrator's
jurisdiction begins when the order of appointment is filed and
continues until the arbitrator is excused or until ten (10) days
after an award is filed or until the arbitration proceedings are
otherwise concluded, whichever period is shorter. While the
arbitrator has jurisdiction, the arbitrator's decisions shall be
considered equivalent to court orders. The arbitrator may decide
all issues of fact and law unless specifically prohibited by
this rule or court order. The arbitrator shall consider the
efficient, cost-effective and informal resolution of the case as
a factor in all the arbitrator's decisions and in all aspects of
the arbitrator's management of the case. The arbitrator may
limit discovery whenever appropriate. The arbitrator may
administer oaths. With the exception of contempt, the arbitrator
may enter appropriate sanctions including sanctions pursuant to
Rules 1-016, 1-030 and 1-037 NMRA, or any other Supreme Court
rule, sanctions for failure to comply with any of the provisions
of this rule, and sanctions for failure to comply with any of
the arbitrator's decisions. Upon agreement of the parties, the
arbitrator may serve as a mediator or settlement facilitator.
The arbitrator's jurisdiction, powers and duties may not be
delegated. The arbitrator must personally conduct the hearings
and trial, and must personally sign decisions and the award.
(2) Supreme Court and Local Rules. All Supreme Court rules
including rules of civil procedure (including Rule 1-006(D)
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NMRA) and rules of evidence, and all second judicial district
local rules, apply during referral to arbitration unless
specifically waived by written court order or the arbitrator.
The arbitrator may waive rules of evidence only upon agreement
of the parties.
(3) Good Faith Participation. All parties shall participate in
good faith in the arbitration proceedings. The arbitrator may
enter an award of default or of dismissal against any party
failing to participate in good faith or reflect the failure in
the award. In any such award, the arbitrator shall include a
certification that the party failed to participate in good
faith.
The court shall consider such certification when deciding
attorney fees, costs and interest on appeal, or when considering
whether to set aside the default.
(4) 120-Day Deadline; Sanction. Within one hundred twenty (120)
days after the arbitrator is appointed, the arbitrator shall
file an award unless the arbitration proceedings have otherwise
been concluded. Upon a party's, the arbitrator's or the court's
own motion, the court for good cause may extend the one hundred
twenty day (120) period. The court in its discretion may enter
such an order without hearing. If the arbitrator or a party
fails to comply with this provision, the court after written
notice may impose an appropriate sanction including but not
limited to requiring the arbitrator or party to pay a penalty
into the second judicial district arbitration fund.
(5) Filing Papers. Any motion or other paper to be heard or
otherwise considered by the arbitrator shall not be filed with
the court. The arbitrator shall not file any decisions except
for the award. Upon a party's or the court's own motion, the
court may order that an inappropriately filed paper be stricken.
The court in its discretion may enter such an order without
hearing. Failure to submit a motion to strike shall be deemed
waiver of any prejudice caused by a paper inappropriately filed.
(6) Court File: Review, Copy. The arbitrator may review the
court file at any time during regular court hours. The court
shall provide the arbitrator a copy of the file or portions of
the file at no cost upon request; requests shall be made to the
court alternatives director.
(7) Summonses; Subpoenae. The clerk shall issue summonses and
subpoenae in cases referred to arbitration in the same manner as
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with other civil cases. Such summonses and subpoenae shall be
served and enforceable as provided by law.
(8) Record of Proceeding. Any party to an arbitration
proceeding, at the party's own expense, may engage a certified
court reporter to make a record of testimony given at an
arbitration proceeding for use as allowed by the New Mexico
Rules of Evidence. A copy of the record may be obtained by any
other party to the arbitration proceeding in the same manner
that deposition copies are obtained. Costs associated with
making the record or obtaining a copy of it shall not be
recoverable.
(9) Withdrawal of Referral. At any time after a case is referred
to arbitration, upon a party's, the arbitrator's or the court's
own motion, the court for good cause may order that the referral
to arbitration be withdrawn and the case be returned to the
court's docket. The court in its discretion may enter such an
order without hearing.
B. Hearings; Trial.
(1) Place, Date and Time. The arbitrator shall set an
appropriate place, date and time for all hearings and trial.
Hearings shall be set during regular business hours except upon
agreement of the parties. The arbitrator may conduct hearings by
telephone.
(2) Notice. The arbitrator shall provide twenty (20) days
written notice of trial. The arbitrator shall provide five (5)
days notice, in writing or by telephone, of all other hearings.
Notice of trial or hearings may be waived by the parties.
(3) Requests for Hearing. Unless otherwise directed by the
arbitrator, parties may request hearings informally, by letter
or telephone, provided the requesting party notifies all other
parties as well as the arbitrator. The arbitrator may decide
motions and other preliminary matters on written submissions.
(4) Statement of Witnesses, Exhibits. No later than ten (10)
days prior to trial, each party shall serve upon all other
parties a statement listing all the exhibits and witnesses the
party may use and briefly describing the matters about which
each witness will be called to testify. The arbitrator may waive
this provision.
(5) Return of Exhibits and Depositions. After an award is filed
or the arbitration proceedings are otherwise concluded, the
arbitrator shall return all exhibits and depositions to the
submitting party.
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C. Evidentiary Exceptions. The following exceptions apply during
referral to arbitration.
(1) Depositions. The arbitrator may hear testimony by
deposition.
(2) Documentary Evidence. The following documents, if relevant,
shall be admitted in evidence without further proof provided a
copy of said documents is served upon all parties no later
than ten (10) days prior to the hearing or trial:
(a) Estimates and bills for services and products, if dated
and itemized.
(b) Reports of experts, if dated and signed.
(c) Records and reports as described in Rule 11-803,
Paragraphs (F),(H), (I), (K), (L), and (N) through (R)
NMRA.
D. Award.
(1) Final Decision; Scope. The arbitrator's final decision shall
be called an “award”. The award shall clearly set forth the
amount awarded to each party and address all pending claims,
attorney fees, costs and interest as allowed by law, including
any required award of costs pursuant to Rule 1-068 NMRA. The
award may be an award of default, dismissal, summary judgment or
money damages.
(2) Amount. The amount of the award shall be limited only by the
evidence and shall not be limited by the circumstances under
which the case was referred to arbitration.
(3) Filing. Unless the parties agree otherwise, within ten (10)
days after the last hearing, the arbitrator shall file an award
with the clerk and serve copies on all parties entitled to
notice. If an arbitrator fails to comply with this provision,
the court after written notice may impose an appropriate
sanction including but not limited to requiring the arbitrator
to pay a penalty into the second judicial district's arbitration
fund.
(4) Amended Award. Within ten (10) days after an award is filed,
the arbitrator may file an amended award. Copies shall be served
on all parties entitled to notice.
(5) Binding Award. At any time before the award is filed, the
parties may file with the clerk a stipulation that the award
will be binding and that the right to appeal the award is
waived.
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(6) Judgment on Award. If no appeal is taken and the time for
appeal has expired or the right to appeal has been waived or the
appeal has been voluntarily dismissed, the court shall prepare
and file a judgment or final order adopting that part of the
award not appealed as a judgment or final order of the court,
and mail or deliver endorsed copies to all parties entitled to
notice. Such judgment or final order shall be enforceable and
binding as any other judgment or final order.
Section VI: Appeal.
Right to Appeal. Any party of record at the time the
arbitrator's award is filed may appeal the award, except that a
party may not appeal an award of default, including an award of
default entered pursuant to Section V(A)(4) of this rule. An
award of default shall only be set aside pursuant to Rules 1-055
and 1-060 NMRA.
Procedures to Appeal.
(1) Notice of Appeal. To exercise the right to appeal, a party
must file a “notice of appeal from arbitration” with the clerk
within fifteen (15) days after the award or an amended award, is
filed. The period for filing the notice shall not be extended. A
copy of the notice of appeal shall be served on all parties
entitled to notice. Cross-appeals are not required.
(2) Voluntary Dismissal. At any time after filing a notice of
appeal and before trial before the assigned judge, a party may
withdraw the appeal by filing a notice of voluntary appeal
dismissal. A copy of the notice shall be served on all parties.
Procedures on Appeal.
(1) Docket Status. After a notice of appeal is filed, the case
shall be returned to the same status on the assigned judge's
docket that it had prior to referral to arbitration. Requests
for trial must be submitted as required by local rule.
(2) De Novo Proceedings. All appeals shall be in the form of de
novo proceedings before the assigned judge. No reference shall
be made to any of the arbitrator's decisions including the
award. Neither the arbitrator nor the court alternatives
director shall be permitted to testify about the arbitration
proceedings. Promptly after the notice of appeal is filed and
until disposition of the appeal, the court shall seal the award.
(3) Discovery. Any discovery obtained while the case was
referred to arbitration may be used in the de novo proceedings.
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D. Award of Fees, Costs and Interest Against Appellant. If the
court makes a decision on the merits which is the same as or
less favorable to the appellant than the arbitrator's award, the
court shall order that the appellant pay all other parties'
expenses incurred during the appeal including but not limited to
reasonable attorney fees, costs and pre-judgment interest dating
from the arbitration award. The court for good cause shown may
waive this provision; the court shall state the basis for its
good cause finding on the record.
All of these local rules require a specific form of order, and students should familiarize
themselves with these form orders, which are found in the local rules. In addition, brochures
describing each program in detail are available from the local office of Court Alternatives.
Bernalillo County Metropolitan Court – ADR Procedure.
A brochure describing the Bernalillo County Metropolitan Court provides the following
information on its mediation services.
We utilize professionally trained mediators who
volunteer their time: Varies between 80-120 mediators.
Usually, two co-mediators are scheduled for each
mediation; however, sometimes one mediator is
scheduled when it’s a less complex low dollar debt
collection case. Mediations can last from 20 minutes
up to three hours or more, depending on the case.
Additional mediation sessions are available, when
needed and agreed to by the parties. We also provide
follow-up when a mediated agreement breaks down or is
not being complied with. This happens about 5-8% of
the time.
Referral/Pre-Screening Process: The Mediation Division
pre-screens all answered civil complaints (except
restitution/evictions) and selects approximately 60%
to be scheduled for mediation. Mediation is a
voluntary process. If either party does not wish to
mediate, we cancel the mediation and ask the assigned
judge to set the case for hearing. If a case is not
selected for mediation, the parties can still request
mediation and one will be scheduled. Judges can also
refer cases to mediation. Generally, parties are
willing to try mediation before going to court.
Judges can also refer criminal cases to mediation at
the judge’s discretion. Kinds of cases might include
property damage, harassment, assault/battery,
neighbor-to-neighbor disputes, etc. Remember, we
utilize a non-directive, facilitative form of
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mediation. If the parties require guidance,
counseling, educational programs, etc., mediation
might not be appropriate. We also don’t typically
mediate domestic violence cases due to the tremendous
power imbalance that can exist. Our goal is for
mediation to be a harmless process.
Mediation Division Synopsis
Where We Conduct Mediations: We have a large mediation
conference room available and also utilize the jury
room and all three courtrooms at 111 Lomas NW, 2
nd
Floor.
Average agreement rate: Varies between 65-80%. Judges
are advised by disposition whether or not the parties
were able to reach an agreement. If an agreement is
reached, a copy is attached to the disposition. There
are also many cases that resolve after mediation, but
before court.
We conduct approximately 900 mediations per year.
The Program Director also conducts phone
mediations/facilitations/shuttle negotiations.
Other Activities of the Division/Program:
Conduct various trainings, workshops and round tables
for our mediators. This helps ensure quality as well
as providing some form of compensation to the
mediators.
Provide observation opportunities for adult mediation
students as a part of their training.
Conduct field trips for peer mediators from various
APS elementary and mid-schools.
Provide consultation and training for various
individuals/groups, both resident and nonresident, in
the field of mediation and in particular court-annexed
mediation.
Settlement Conferences in the New Mexico Supreme Court and the New Mexico Court of
Appeals
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The New Mexico Court of Appeals and the Supreme Court may provide for Settlement
Conferences as follows:
Rule 12-313 of the New Mexico Rules of Appellate Procedure:
SETTLEMENT CONFERENCES
The appellate court may, by procedures adopted by it from time
to time, hold settlement conferences to facilitate the
settlement of cases pending on appeal.
The following information is sent to litigants in the Rule 12-
313 mediation process. The information provided is applicable to
almost any mediation process.
Appellate Court Mediation Brochure
May 6, 2003
The New Mexico Court of Appeals
MEDIATION CONFERENCE PROCEDURES AND
SUGGESTIONS FOR EFFECTIVE MEDIATION
REPRESENTATION
The Appellate Mediation Office conducts mediation conferences under Rule 12-313NMRA 2003
and Ct. App. Order No. 1-24. The conferences are designed to reduce the time and expense of
civil appeals by addressing any matter that may aid in their disposition. The conferences offer
parties and their counsel confidential, risk-free opportunities to communicate about underlying
interests, self-evaluate their cases, and explore possibilities for voluntary settlements with an
informed, neutral mediator.
Case Selection
Any civil matter pending before the Court is eligible except appeals in which one of the parties is
incarcerated or in which a non-attorney is a pro se party* and in cases involving the revocation of
a driver’s license, a petition for extraordinary relief, or an appeal arising out of the Mental Health
and Developmental Disabilities Code and the Children’s Code. The Mediation Office will select
cases at random from the pool of eligible appeals, and other cases may be referred by the Court
to the program either before or after briefing. Additionally, counsel for either party may request a
mediation conference by contacting the Mediation Office in writing. Such requests will be kept
confidential and generally accepted in any eligible civil appeal.
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Conference Scheduling and Format
Counsel receive a Mediation Conference Notice advising them of the date and time of the
conference and whether it is to be held by telephone or in person. If a mistake is made or if it
would better serve the purposes of the conference to have different or additional attorneys
participate, notified counsel should promptly advise the office. The participating attorneys
should be those on whose judgment the clients rely when making decisions. Anyone with an
unavoidable scheduling conflict may ask that the conference be rescheduled; the Mediation
Office will then provide one or more alternate dates and ask the attorney with the conflict to get
the other participants to agree on a new date.
Most conferences are conducted by telephone, with the Court initiating the call, in order to make
the process as inexpensive as possible. Participation is mandatory,* meaning that lead counsel are
required to participate in the process. Clients are welcome to participate actively in all phases of
the mediation process. Opposing counsel are encouraged to discuss the value of having clients
participate and of holding the conference in person. Clients may participate by telephone from
locations other than an attorney’s office. At the mediator’s discretion, conferences may be
conducted in person. In-person conferences are typically held at the Court of Appeals in Santa Fe
and at the State Bar Center in Albuquerque.
1
The mediator begins the conference by explaining the mediation process. He may inquire
whether any procedural questions or problems can be resolved by agreement. Each side then
discusses its perspectives on the conflict. Often, through an examination of the problem that goes
beyond the appellate issues, the participants are able to identify important needs and values that
underlie the dispute. The legal issues may be directly discussed. However, the purpose is not to
decide or reach a conclusion about the merits of the appeal, but rather to facilitate an
understanding of the issues and an evaluation of the risks and opportunities for each side. Candid
examinations of the case can help the parties reach consensus on a settlement value.
Counsel should allow two hours for the initial conference. In some cases the discussions may go
no further; in other cases proposals are generated that require further review. As a result, the
mediator may schedule follow-up conferences to fully pursue all opportunities for settlement.
Extensions of Time
The times on appeal are not suspended upon notice of a mediation conference. However, the
Court recognizes that a case’s settlement potential may decline as substantial funds are expended
on an appeal. In order to moderate such expenditures in appropriate cases while settlement is
being considered, counsel are encouraged to orally request the mediator to grant an extension of
time for filing proof of satisfactory arrangements for the cost of the transcript of proceedings and
for filing briefs. Such requests may be made before, during, and after a scheduled conference.
The mediator has complete authority to grant such extensions of time. No formal motions are
required.
1
Appeals in which one or more parties are not represented by counsel are not included in the mandatory program.
However, a mediation conference may be scheduled in such cases where all parties, both those unrepresented as well
as those represented, voluntarily consent to participate.
143
What Participants Can Expect
The mediator typically probes for each party’s underlying needs and interests in an effort to help
the parties create and explore options for resolving the dispute. The mediator may lead a
considered and sometimes detailed exploration of the cases’ merits, depending on the extent to
which the participants place importance on their ability to predict how the Court of Appeals
would resolve the appeal. Additionally, the mediator also may invite discussion of related trial
court cases, frequently in an attempt to achieve a global settlement of various lawsuits or
proceedings.
What the Court Expects from Counsel
Mediation is most productive when counsel are conversant with the pertinent facts and law in a
case and are fully aware of their clients’ interests, goals, and needs. Sessions are not productive
when counsel present and maintain extreme positions and engage in hard, bottom-line
bargaining. Counsel should obtain advance authority from their clients to make those
commitments as may reasonably be anticipated. By developing and discussing a realistic view of
the consequences of not reaching an agreement, counsel can obtain the authority to settle the case
if the mediation results in a settlement opportunity that is favorable to the client. Experience has
shown that in most cases there is substantial movement from prior settlement positions. Counsel
are strongly urged to consider having their clients present or available by phone at the time of the
conferences.
Mandatory Participation--Voluntary Settlement
Although mediation conferences are relatively informal, they are official proceedings of the
Court and the Court may require all parties to participate. The mediation process is nonbinding,
so no settlement is reached unless all parties fully consent.
Confidentiality
The Court, by rule and verbal agreement of the parties at each conference, ensures that nothing
said by the participants, including the mediator, is disclosed to anyone on the Court of Appeals
or any other court that might address the case’s merits. The Court will not reveal any request by
counsel for mediation without the requesting party’s permission. Ex parte communications are
also confidential except to the extent disclosure is authorized. This confidentiality rule applies in
all cases including those referred for mediation by a panel.
How to Prepare for a Mediation Conference
• Prepare thoroughly (as if you were going to a hearing or a trial) with the ultimate goal of
resolving the dispute in mind. Make a candid assessment of the respective strengths and
weaknesses of both sides’ legal positions. Be prepared to suggest an approach for the mediator to
take in an attempt to settle the case (e.g. “problem” to be resolved, sequence of issues).
Understand your client’s priority of interests. Imagine creative solutions.
144
• Understand the rules of the Court and the role of the mediator.
• Advise the mediator if you believe it might be helpful to invite the participation of an entity
who is not a party to the appeal.
• Consider contacting opposing counsel in advance of the conference as a means to establish a
positive working relationship.
• Consider the principal-agent issues (e.g. incentives, roles, information) that may impact on
each side’s behavior.
The “Authority” Issue in Mediation
• If “having the right person involved in the negotiation” has been a problem in the past, raise
the issue with the mediator before the mediation session. Obtain a clear understanding of who
will be present at the mediation and what authority they will have.
• If your client is a government or institution, understand the settlement approval process that
applies and discuss your concerns and timetable issues with the mediator in advance.
• Understand whether the person has authority to decide or to “report and recommend” a
proposed settlement to a superior.
• Have someone with authority present or available.
How to Work with the Mediator
• Follow the mediator’s cues. Anticipate questions such as: (1) What happened? (2) How do
you feel about the situation and what underlying needs would you like have satisfied? (3) What
do you want from the mediation in terms of priorities, interests, results?
• If the mediator asks you to restate a point, be patient. The mediator may be asking you
questions for clarification or to elicit information that the other party needs to hear.
• Articulate legal, factual, and practical information that can be used to reality-test the other
party’s expectations.
• Use the mediator to point out settlement options and reality-test your client’s expectations. Be
candid and realistic about your “worst case.”
• Use the mediator to suggest your proposals or to offer proposals as options “not owned by
anyone.”
145
• Confer with the mediator as to how or when to make proposals or settlement offers. Consider:
What is your outcome analysis? What is a fair settlement analysis (range) in light of it? Is this a
reasonable move in relation to where you have been and where you are going?
• Confer with the mediator as to the best strategy towards closure and whether and when it is
advisable to offer a “bottom-line” figure or a “best and last” proposal.
• Use the mediator to guide you in ascertaining whether there are impasses that take time to
work out or whether the other side is intractable and the mediation should be terminated. If you
must deadlock, know precisely why you have been unable to settle and what must change before
the impasse can be broken.
• Be patient and persistent. Each mediation has its own rhythm and pace.
The Role of Case Evaluation in the Mediation
• Mediation is not designed for “deciding past rights and past wrongs”--that is more suitably the
role of courts and arbitration. It is designed to help parties look forward to develop solutions for
problems.
• After problems have become lawsuits there is often the desire by the parties and counsel to
have a third-party tell them “how they are going to do” in the case. The mediator will address
that desire in such a way that does not blunt the overall objectives of mediation and
unnecessarily narrow the focus but rather gives the parties and counsel some assistance, or tools,
for them to better evaluate their case. In this part of the mediation process “self realization is the
best form of persuasion.”
• The mediator will not predict how the court will rule in a particular case, but rather attempt to
clarify the tensions surrounding the issues on appeal.
• The mediator may provide objective court information--how the court operates. The mediator
may discuss generally how a case gets assigned to a non-summary calendar, the probabilities of
the case being decided by a formal opinion, time lines, and generic reversal rates.
• The mediator may discuss some of the court’s decision-making components such as the
standards of review and preservation of error.
• The mediator may discuss the various outcome options and how they may relate to the course
of the litigation: (1) So what if you win? (2) So what if you lose? (3) Where is the money? (4)
Does a resolution of the legal issues solve your problem? (5) Are you potentially headed for an
inconclusive result?
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Elements of Effective Communication
• A skillful presentation is not necessarily “conciliatory.” There is nothing wrong with stating
all the reasons for settlement but at the same time communicating that you are prepared for a
judicial resolution of the legal issues. The style and tone of your approach will have a substantial
influence in persuading the other side to listen to you and to seriously consider what you are
saying.
• Discuss the “common ground” that the parties may have in seeking to resolve the situation.
• Let your client speak if you believe it appropriate, and let your client respond directly to
questions from the mediator or the other side, if you are prepared to do so.
• Effectively use what you have developed in prior proceedings: prior rulings, deposition
testimony, key documents, and any admissions.
• Do not be antagonistic to the opposing party. Save your comments on personality problems
and the conduct of parties or their counsel in the case for private discussion with the mediator.
• Do not “draw a line in the sand” in your initial comments.
• When opposing participants are speaking: let them talk without argument or interruption;
consider this an opportunity to learn new facts; use this as an opportunity to have the other side
describe “what it really wants” in the dispute rather than restate its legal position; ascertain if the
other side has a hierarchy of true interests; look for common ground; assess the other party’s
weaknesses; and listen carefully to what the other side is saying and even repeat back what the
other side is saying to convince them that you have heard their position. If a settlement proposal
is made at the conclusion of an initial presentation, do not reject it out-of-hand. Given the fluid
nature of many mediations, lawyers and clients may be presented with settlement possibilities (or
proposals) that they had not considered at the outset.
Private Conferences with the Mediator
• Be clear about what information you expect the mediator to treat as confidential.
• Ask the mediator for more information about the other party’s position.
• Use this opportunity to (1) do reality checking with your client; (2) discuss expectations with
your client; (3) explore your strengths and weaknesses in the case; (4) discuss the other party’s
needs or interests; (5) discuss what information the mediator can use to do “reality-testing” of
other party’s expectations and position.
• Use “downtime”--when the mediator is having a private conference with the other side--to
review your client’s interests in light of any new information and any historical information that
may have become important and to “brainstorm” about possible solutions with your client and
any co-counsel.
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Mediation Don’ts
• Don’t prevent the mediator from talking to your client (even with you present) or from talking
with all the parties.
• Don’t be afraid to ask for a moment during the mediation to speak privately with your client.
• Don’t base your settlement strategy on how well you are going to do in a particular court.
• Don’t take a backward step. If you offered a specific dollar amount prior to mediation, but
came to mediation with a lower amount in hand, you injure your credibility.
• Don’t accuse the opposing party or their counsel of “bad faith” during a mediation just
because their settlement posture did not live up to your expectation.
• Don’t burn your bridges during mediation. Your case may take an unexpected turn for the
worse as it develops, and you may wish to re-initiate settlement discussions.
Telephone Conference Mechanics
The telephone mediation conference will be conducted using a commercial system that is
accessible over any touch tone telephone. The following information is designed to let you know
what to expect while using the system and to give you some navigation tips in advance. While
most of this information will be repeated during the conference, it may be helpful to have this
page handy. After the mediator establishes personal contact he will “admit” you to the telephone
meeting. The system will ask you to very briefly state your first and last name and press #. If you
are presented with a menu of additional options, press _ to enter the main meeting. A recording
of your name will be broadcast to those already in attendance and you will join them. Depending
on the sequence of calls, you may have to wait for several minutes while the mediator calls and
connects all of the necessary participants.
At some point during the conference the mediator may divide the participants into breakout
sessions to enable private discussions. The mediator will instruct the participants to press #, _,
and then a number (1-9) for their specific breakout session. Once all the participants are present
in a breakout session the mediator will lock the session by pressing #, _, and _. (A breakout
session can be unlocked by pressing the same keys -- #, _, and _.) In order to take a roll call of
the persons present and test for security, you may press #, _, and _ at anytime. To return to the
main meeting from a breakout session, press #,_, and 0.
Further information is available from the Appellate Mediation Office, New Mexico Court of
Appeals, Box 2008, Santa Fe, New Mexico 87504. Telephone 505-827-3694. Fax 505-827-6642.
Settlement Conferences in the Federal District Court for New Mexico
Settlement conferences in the Federal District Court for the District of New Mexico are
provided for in the following District Court rule.
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Local Rule, LR-CV 16.2, Settlement Conferences
Settlement Conferences.
(a) In every civil case the parties must participate in a
settlement conference with a Judge unless otherwise ordered by
the Court. Cases excepted from this rule are listed under
D.N.M.LR-Civ. 16.3.
(b) In every bankruptcy adversary proceeding filed in
Bankruptcy Court, the parties must participate in a settlement
conference with members of the bankruptcy facilitation panel
unless otherwise ordered by the Bankruptcy Court.
(c) For each party, at least two persons must attend settlement
conferences:
the attorney who will try the case; and
the party or designated representative with final settlement
authority, other than an attorney of record.
(d) A request to be excused must be made in writing to the Court
at least five (5) calendar days before the conference.
(e) Evidence of settlement offers made, and of statements made,
at the settlement conference, regardless of whether made in
written, oral or graphic form, will be inadmissible as provided
in Fed.R.Evid. 408. Statements which are made by any party to
the Judge who is conducting the settlement conference, and which
are identified by that party as confidential, will not be
disclosed by the Judge to any other party. The Judge who is
conducting the settlement conference may not reveal to the trial
judge any information about offers made, or about statements
made, by any party at the settlement conference, other than
whether the case was or was not settled.
(f) Within five (5) days of notice of assignment of a member of
the bankruptcy facilitation panel to facilitate an adversary
proceeding in Bankruptcy Court, any party may move the Court to
disqualify the panel member based on the standards set forth in
28 U.S.C. s 455.
ADR in New Mexico Tribal and Pueblo Courts
Almost all tribal courts in New Mexico utilize some form of ADR in their court systems
with the most common forms being traditional ADR as practiced by the tribe and diversion
programs.
The most well known form of ADR in tribal courts is the “peace making” processes
regularly utilized by the Navajo Tribal Courts. This “peace making” process is well know and
highly studied. The following excerpts from the Navajo Nations Peacemaker Court Rules give a
good sense of the Peacemaker Court concepts.
149
Peacemaker Court Rules
Rule 1.1 provides:
Purposes.
These rules fix the practice and procedure for the handling of
disputes among members of the Navajo Tribe by the intervention
of members of the community where the dispute arises. These
rules are intended to give formal support, structure and
enforcement to traditional Navajo methods of resolving disputes
through mediation and the use of traditional ways without the
imposition of judges or lawyers.
Rule 1.3 provides:
Establishment of Peacemaker Court.
The Peacemaker Court of the Navajo Nation is hereby established
as a department of the district court of each judicial district
of the Navajo Nation. The trial judge of each judicial district
shall supervise the activities of the Peacemaker Court of the
district and shall exercise supervisory control over any
Peacemaker appointed pursuant to these rules.
Rule 1.4 provides:
Scope.
A judge of the Navajo Nation may appoint a Peacemaker in a
community where the parties to the dispute are members of the
Navajo Tribe and where the matter in dispute involves certain
personal and community relationships including, but not limited
to, the following:
a. Marital disputes and disputes involving family strife;
b. Disputes among parents and children;
c. Minor disputes between neighbors as to community
problems such as nuisances, animal trespass or annoyance,
disorderly conduct, breaches of the peace and like
matters;
d. Alcohol use or abuse by family members or neighbors;
e. Sexual misconduct;
150
f. Conduct causing harm, annoyance or disunity in the
immediate community and chapter;
g. Minor community business transactions of a sum of $1,500
or less;
h. Any other matter which the District Court finds should or
can be resolved through the use of the Peacemaker
Court.
Rule 1.7 provides:
These rules will be interpreted liberally and informally with
the goal of providing fair, informal, inexpensive and
traditional means of resolving local disputes in the communities
of the Navajo Nation. The rules will be used and applied in as
close accordance with Navajo tradition and custom as is
possible.
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Report Together with Additional Views, (U.S. G.P.O. 1993).
Trial Advocacy
Amsterdam, Anthony G. & Hertz, Randy An Analysis of Closing Arguments to a Jury, 37
N.Y.L. SCH. L. REV. 55 (1992).
Lubet, Steven, What We Should Teach (But Don't) When We Teach Trial Advocacy, 37 J.
LEGAL EDUC. 123 (1987).
Ohlbaum, Edward D., Basic Instinct: Case Theory and Courtroom Performance, 66 TEMP. L.
REV. 1 (1993).
Smith, Abbe, "Nice Work if You Can Get It": "Ethical" Jury Selection in Criminal Defense, 67
FORDHAM L. REV. 523 (1998).
153
XII. Negotiation and Settlement
Settlement as the Predominant Dispute Resolution Device
Settlement is almost a way of life for attorneys and negotiation is the critical skill in
settlement. Lawyers spend a large part of their time negotiating at one level or another. In fact,
settlement is the predominant dispute resolution device in the American legal system. Studies
and experience have shown that the vast majority of legal disputes are ultimately settled without
a formal trial or administrative hearing. Rough estimates indicate that over 80 percent of all civil
claims ultimately settle. In the criminal field the pattern is exactly the same, plea-bargaining
disposes of 90 to 95 percent of all criminal cases filed. In addition, in the typical legal practice
attorneys constantly negotiate and settle a wide variety of procedural and substantive disputes on
an almost daily basis. The recent impact of ADR and its policies of collaborative and cooperative
dispute resolution in the legal system will probably accelerate these settlement trends. As
illustrated by the previous section in this Manual, courts and administrative agencies have
adopted or incorporated formal settlement or ADR devices in an effort to further reduce the
number of adjudicated cases. Almost all courts and agencies actively promote settlement as a
formal pretrial device. This settlement pattern is common to most areas of practice, and students
need to become skilled negotiators. Law students are, therefore, strongly encouraged to formally
study the art and skill of negotiation. A good place for the student to begin this study is to read
one of the leading books on negotiation, Getting to Yes: Negotiating Agreement Without Giving
In, by R. Fisher and W. Ury, (Penguin, 1991).
Basic Settlement Concepts
In the field of negotiation, there are several core concepts that the law student needs to
understand. The first is that negotiation theory is divided into two models, the first and older
model is competitive or power based negotiation, the second and more modern model, greatly
influenced by the ADR movement, is collaborative or cooperative negotiation. Competitive
negotiation is based on the traditional competitive attorney role where one tries to negotiate from
a position of power or strength with an emphasis on adversarial leverage. Collaborative or
cooperative negotiation, while still somewhat competitive is not adversarial. The collaborative
model is based on each lawyer adopting a cooperative problem-solving role in an effort to
resolve a mutual or shared problem. The reality is that in practice many lawyers utilize a hybrid
of these two models or switch between models as appropriate. A wise attorney is able to
recognize and adapt to these changes.
The second core concept is that for settlement to occur there needs to be some form of
compromise on the part of each party to the dispute. Compromise requires an exchange of
something of value by each party. Each party to the dispute needs to take something from the
process or not give up something for the process to work. . A “take it or leave it” or “all or
nothing” approach (Bulwarism) does not generally work unless there is absolute power on one
side. For settlement to occur the process must involve an actual or perceived exchange of some
bargained for item that is valued. There must be some gain or even a cutting of losses for each
party. Negotiation is this process of exchange or compromise. For negotiation to work the
exchange of items or values must be rational. That is, there must be communication and some
sort of advocacy or educational process to get the parties to compromise and agree to settle a
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disputed claim on some basis that each party views as practical and fair. Fairness, actual or
perceived, is a key ingredient in almost all negotiations.
Another core concept is that if the vast majority of civil or criminal claims are ultimately
going to be settled or plea-bargained, then negotiation and settlement concepts and strategies
need to be a key part of all legal planning and case activity. Negotiation and settlement strategies
and considerations need to be involved and applied in all letters, pleadings, conferences and
communications on behalf of the client because the parties will inevitably reach the negotiation
stage. If the usual high probability for settlement exists, either formally or informally, then the
subtle process of negotiation as a skill needs to be involved from the very first letter, and
included in all other legal activities. Students should also be aware that negotiation and
settlement can occur at any stage of a legal case including the appellate stage. In simple one-
dimensional cases it can occur very early in the case possibly involving only a telephone call or
letter. In more complex cases, it may be an ongoing case-long process involving many letters,
telephone calls and several formal settlement conferences or discussions. Finally, almost all
litigation systems require some form of formal negotiation or settlement procedures before any
trial or hearing occurs.
The lawyer must accept that settlement of all or part of a case is highly probable in
almost all cases. While negotiation can be viewed as a separate and distinct part of the case
planning process, negotiation will be most successful if it is made a part of all case activities. A
good case plan includes a serious evaluation of all settlement possibilities and strategies.
The last core concept is that the key to effective negotiation is preparation. Preparation
starts with a thorough analysis of the bargaining range available to all parties to the dispute.
Preparation also includes recognition that cases will only settle when all parties have access to all
of the facts and the applicable law. Preparation for negotiation also requires client authority,
participation and assistance.
Negotiation Preparation and Planning
The following are basic steps a student should take in preparing to negotiate or settle a
case.
Client Authority
All negotiations must begin with client authority. The underlying legal case and the
authority to settle or compromise all or part of the case belongs to the client. Except for the most
minor details, the law is fairly clear that an attorney has no inherent authority to settle or
compromise the client’s case simply by virtue of being the attorney. The Rules of Professional
Conduct also require the attorney to abide by the client’s decision to settle a particular matter. As
a matter of contract law the client must either authorize the attorney as agent or approve or ratify
any proposed settlement. This means that the attorney must fully discuss the possibility of
negotiation and settlement of all cases with the client at a very early stage in the attorney client
relationship. Attorneys should be extra cautious of clients who refuse to discuss the possibility of
settlement. These clients probably require additional counseling and education.
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In the appropriate case the initial interview may be good place for the attorney to begin
these discussions about settlement and authority. It is also clear that the attorney must keep the
client fully advised of the progress of negotiations once client authority to negotiate and
potentially settle is obtained. In more complex cases, as the case nears final agreement, the client
needs to be intimately involved in the process and all details of the settlement. The attorney
needs to guard against the possibility of enduring a long and arduous negotiation process only to
have the client withdraw authority at the last moment. Client participation and information is one
way to avoid last minute problems. Rule one in preparing to negotiate a case is to get client
authority and to keep the client fully informed and involved in the process of negotiation.
Students are reminded that before a client can be in a position to grant this authority he or she
must have a good understanding of all the legal and factual issues in the case and of all dispute
resolution options, including the advantages or disadvantages of litigation or non-settlement
alternatives. Client education and counseling on all available options is the best way to get client
authority.
Assessing The Bargaining Range
An obvious place to start negotiation preparation is to assess the relative strengths or
weaknesses of the client’s case and the opposing parties case. This assessment requires an
objective, realistic and practical evaluation of the facts, the law, the relative bargaining position
of each party, and some prediction of probable outcomes for all settlement and non-settlement
alternatives. This analysis must be done for all sides of the case and carefully explained to the
client. If objectivity or experience is a problem for the student, this is a good opportunity for
mentoring or obtaining an outside opinion.
Evaluating Strengths or Weaknesses 0n Each Side of the Case or Issue
A checklist of common factors to be evaluated during the basic preparation process is as
follows:
Facts
Law
Policy
Nature of each party’s basic claim
Possible litigation forums
Possible Settlement or ADR procedures
Probable or possible outcome in each settlement or non-settlement strategy or forum
Inherent factual equities for one side or the other
Inherent sympathies or possible negative factors for each party
Precedent value of other similar previously resolved cases
Possibility of local court or jury bias
Resources available to each party
Availability of witnesses and access to other evidence
Detailed estimate of time, costs, and effort to be expended by each party under each
resolution alternative
Are there any savings or avoided future costs?
Is there any ego or strong personal involvement by either party?
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Is this a “principle” or precedent case for either party?
Are any third party’s involved or affected?
Are there any multiplier, publicity, or reputation factors involved?
Is there a need to educate or counsel either party or opposing counsel?
Do the parties have the same information?
Do both parties have all needed information?
Is there anything that will help start discussions?
Assessing Attorney Abilities For Each Side
Students should carefully consider each of the following factors on both sides of the case
as part of their basic negotiation preparations.
Skill Level
Experience level
Level of Preparation
Fee Arrangement
Resources
Style of Presentation or Personality
Personal investment in case
Ego involvement
Other relationships to current client
Impact of this case on caseload or other cases or other clients
Honesty and Trustworthiness
General Reputation
Once these and any other applicable factors are evaluated, the student should try to
establish the probable bargaining range for the case on each issue in the case. In multiple issue
cases, the student should also be aware that issues are interrelated. However, it is important to
recognize that it may be possible to negotiate and settle some issues and litigate or otherwise
resolve remaining issues.
The bargaining range of a case can be viewed as the complete spectrum of all possible
results that exist between the point where one party wins or gets everything he or she is asking
for, and the opposing point where the other party wins or gets everything he or she is asking for.
Between these two opposite points, one can chart several intermediate points or positions. These
intervening points can be viewed as particular results or outcomes or as values. Ideally, each
party would like to get “everything.” This is only possible where one either wins everything or
has a position of absolute power. For any case to settle each party must in fact get something of
value in order to agree to a compromise. Unless your client is in the “absolute power” position,
every negotiation needs to be focused on ways to accomplish this compromise and exchange. It
is this exchange and how it takes place that is the negotiation process. It is also possible to create
new options, which accommodate both parties’ needs in creative ways.
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Defining and Establishing Units of Value
Within the bargaining range, attorneys will exchange units or items of value in exchange
for something their client values. Each party receives something of value. Typical items or units
of value, which can be exchanged, include:
Money
Money saved
Time value of money
Costs avoided
Litigation costs saved or avoided
Attorney fees saved or avoided
Start-up costs
Time
Preparation costs
Energy
Time pressures
Deadlines
Emotional costs
Settlement Costs
Settlement Benefits
Client Interests
Third Party Interests
Personal Values
Closure Finality
Status or Power
Reputation
Future Relationships or considerations
Past considerations
Psychological or emotional values
Possible “Winner” or “loser” labels
Apologies
Precedent value of a litigation result
Confidentiality or privacy
Practicality
Common sense
Fairness
Justice
Equality
Morality
Sympathy
Doing the Right Thing
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Educating Opposing Counsel and the Parties
Each case should be evaluated for the presence or absence of any of these typical units of
value and an appropriate settlement strategy or plan devised to discuss the principled exchange
of these units by the parties. The student should be aware that except in simple or single issue
cases, most cases will involve some kind of bargaining process or a series of exchanges before
the case can settle. One major and common impediment to early settlement is a lack of factual
information or law on the part of one side to the dispute. One has to realize that a case will
probably not settle until the parties are in relative agreement on what law applies to each issue
and the facts show a need to settle. Until the facts are fairly clear to both sides, the need to settle
will remain debatable. It is generally in the best interests of the moving party to a negotiation to
make sure all parties have the necessary underlying facts and law needed to justify the
settlement. Full disclosure of all known facts may be a good way to insure that serious settlement
discussions begin. It is clearly in the best interest of the moving party in a negotiation to make
sure that the opposing party has all of the facts and applicable law. It is also clear that in an
otherwise equal bargaining situation, a case will not easily settle unless the reasons for settling,
the “why” (generally facts and Law), are also clear.
The First Offer and the “Why”
Since settlement is a very high probability in most cases and since settlement procedures
are becoming routine in filed cases, there should no longer be any fear to “make the first offer.”
If a case has “settlement” written all over it, then it is a waste of client time and resources to
delay negotiations. It does not connote weakness or fear to make the first settlement offer.
Making the first offer allows the party making the offer to initiate and to some extent control the
timing of the settlement dialogue. Early settlement of settleable cases is in the best financial and
emotional interests of the client. Postponing or delaying settlement discussions increases client
costs and increases attorney involvement in a case.
All cases should be evaluated for early and efficient settlement possibilities. In making
the first offer, it is important to plan for the probable exchange and compromise pattern that will
emerge once discussions begin or counter-offers are exchanged and discussed. This series of
exchanges and concessions is called the concession pattern and the various points where the
parties stop and agree are called commitment points. All of these moves in the total bargaining
range need to be principled, justified, and planned.
The most common “justification” is exchanging a position or something of value for
something of “equal” value. One should normally not give up something unless something is
received in exchange. Every move or concession in the pattern must be rational and justified.
Every offer or counter offer needs to be fully explained. The “why” of why some point or the
whole case should be settled must be clear in all negotiations for negotiations to begin or
proceed. Included in the “why” are persuasion, advocacy, and each attorney’s style of
negotiation. If one can make an objective, rational, fact based, law based, practical and fair
statement of why a particular point or case should be settled, the “why” is fairly clear. A
common impediment to effective negotiations is a failure to adequately explain or justify “why”
it is in the best interests of both party’s to compromise and settle.
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The Negotiation Plan
In each case that is to be negotiated, the law student should draft a separate negotiation
plan addressing all of the different factors involved in a case and especially why a case should
settle. An outline of a basic negotiation plan is as follows:
For Each Claim or Issue, Chart the Following
Claim or
Issue
Clients
Position
Adverse
Party’s
Position
Settlement
Factors
Settlement
Strategy
Non-
Settlement
Alternatives
Reasons
For
Settlement
Clients
Interests
Adverse
Party’s
Interests
Applicable
Law
Cost or
Benefit for
each
Settlement
or Non-
settlement
Alternative
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Common Negotiation Devices
The following are among the various common negotiation devices or techniques used by
attorneys to begin the negotiation process or as part of the negotiation process. The law student
should consider using one or more of these devices as part of their over all negotiation strategy.
Discuss Settlement as an option in initial demand letters
Give a settlement option with a deadline prior to filing a lawsuit
Request a referral to mediation or settlement facilitation in your prayer for relief
Make settlement overtures in key pieces of correspondence
Make the first offer
Prepare a settlement brochure
Adopt an early conciliatory tone in all communications
Suggest a settlement agenda or timetable
Request an early settlement or status conference from the court or agency
Make an early offer of judgment
Schedule some early informal conferences
Use a private mediator or settlement facilitator
Suggest early neutral evaluation
Try to resolve only part of the case first
Try to get an arbitration agreement
Hire a private judge or neutral expert
Connect settlement offers to work or procedural deadlines
Disclose all factual information voluntarily
Make formal discovery sequential
Request additional formal settlement conferences
Use the pretrial conference as a settlement device
Volunteer to draft the settlement documents
Offer an apology
Do lunch
Play golf
Be patient, professional, and understanding
Set a high professional standard for yourself and your client
Educate your client about the benefits of settlement
Educate your client about non-settlement alternatives
Make sure that your client’s behavior is conducive to settlement
Be creative
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Things Not To Do In Negotiations
These are things one ought not to do if one is seriously pursuing negotiation and
settlement.
Misstate the law or facts
Bluff
Puff
Be dishonest
Be unprofessional
Be inflexible
Be abusive, hostile or judgmental
Be a jerk
Stop the communication process
Label parties as a winner or loser
Respond in kind
Feign Anger
Cause deadlock
Use threats or threats of retaliation
Sacrifice your reputation
Badmouth your client
Allow your client to engage in counter-productive behavior
The Negotiation Process
The typical legal negotiation pattern is best described by G. Williams in his excellent
book, Legal Negotiation and Settlement, West Publishing Co. (1983), at pp.70-72, as follows:
Stages of the Negotiation Process
A. Stage One: Orientation and Positioning
1. Orientation
a. Opposing attorneys begin dealing with each other.
b. Relationships are defined and established.
2. Positioning
a. Negotiators talk primarily about the strengths or
merits of their side of the case (often in very general
terms).
b. Negotiators work to establish their opening
positions. Possible positions include:
(i) Maximalist Position. Asking more (sometimes much more) than
you expect to obtain.
(ii) Equitable Position. Taking a position fair to both sides.
(iii) Integrative Position. Presenting or seeking to discover
alternative solutions to the problem as a means of putting
together the most attractive package for all concerned.
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c. Each side creates the illusion of being inalterably
committed to the opening position.
d. Time span of this phase is usually measured in
months or years.
B. Stage Two: Argumentation
1. Each side seeks to present its case in the strategically
most favorable light.
2. Each side seeks to discover the real position of the
other, while trying to avoid disclosing its own real position:
a. Issues become more clearly defined.
b. Strengths and weaknesses of each side become more
apparent.
3. Each side seeks to discover and reduce the real position
of the other.
4. The expectations of each side about what can be obtained
in the case undergo substantial changes.
5. Concessions are made by one or both sides.
C. Stage Three: Emergence and Crisis
1. Negotiators come under pressure of approaching
deadlines.
2. Each side realizes that one or both of them must make
major concessions, present new alternatives, or admit
deadlock and resort to trial.
3. Each side seeks and gives clues about areas in which
concessions might be given.
4. New alternatives are proposed; concessions are made.
5. Crisis is reached:
a. Neither side wants to give any more.
b. Both sides are wary of being exploited or taken
advantage of.
c. Both sides have given up more than they would like.
d. Both sides know they must stop somewhere.
e. The deadline is upon them; one of the parties must
accept the other’s final offer or there is a
breakdown and impasse.
f. The client worries whether to accept the attorney’s
recommendation to settle.
D. Stage Four: Agreement or Final Breakdown
1. If the parties agree to a settlement, Stage Four
includes:
a. Working out the final details of the agreement.
b. Justifying and reinforcing each other and the
clients about the desirability of the agreement.
If the negotiations break down and are not revived, the case
goes to trial.
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Finalizing The Settlement
As a particular issue or the entire case is being settled, the first thing a student should do
is confirm the exact terms of settlement. Before the final handshake is given, the student must
make sure both parties are actually in agreement on all disputed issues that are being settled. A
simple way to do this is to list all of the items either orally or in writing upon which the parties
have agreed prior to leaving the negotiation session. This short summarization will help avoid
many future misunderstandings or attempts to renegotiate.
A settlement is not a settlement until it is written and signed by the parties or the
attorneys, read into the record in open court, or in certain circumstances approved by the court.
While parties can agree in principle on a wide range of issues, the details of crafting a written
settlement agreement can raise issues that were not anticipated. Drafting the formal settlement
documents can be a final sticking point in the settlement process. A common problem in the final
stages of the settlement process is that the parties agree that they have settled, and then disagree
on the specific terms of the settlement. As final settlement approaches, drafting of the necessary
documents and even specific wording for particular items needs to be discussed and resolved as
each issue is resolved. Post settlement disagreement over documents or wording in documents is
also often used by “lawyers” as a way to renegotiate certain issues. A wise attorney makes sure
that the formalization process is discussed and resolved before the final handshake.
Therefore, it is critical that a settlement agreement be drafted and signed promptly once
parties have reached an agreement. It may be advantageous for the student to volunteer to draft
the settlement documents as a way of ensuring that the settlement agreement is prepared
promptly, and that all terms agreed upon are included. It also gives the student an opportunity to
write and possibly control the first draft of some of the written details, which may not have been
anticipated. However, it is also important to draw to the attention of opposing counsel to any
changes or additions to avoid breakdown of the settlement. In complex cases, it is not unusual for
there to be several exchanges of proposed settlement documents.
In court cases that are settled, the student should promptly notify the secretary of the
judge assigned to the case that a settlement has been reached. In an appropriate case, including
cases with a history of contentiousness, the student is well advised to read all of the settlement
terms into the court record before formal settlement documents are drafted and submitted. This
will tend to prevent contentious lawyers or parties from reneging on certain details or reopening
the settlement. In all court cases, settlement documents or dismissal documents must usually be
filed with the court. As noted above, in certain circumstances, such as domestic relations
settlements, the court must give final approval to the settlement agreement. In these cases, any
settlement is not final until the court, in fact, approves the settlement.
As any case approaches settlement, the assigned student should carefully consider the
types of formal documents that may be required and the timing and logistics of getting all
necessary parties to sign the documents. In settlements that provide for future performance of
certain terms, or where the settling parties must interact in the future, the student would be wise
to include some provisions that will help resolve any future disagreements between the parties or
that provide for future enforcement of the settlement agreement. ADR devices such as arbitration
or mediation can be ideal and economical dispute resolution devices for post-settlement
164
disagreements. The student is reminded that in most situations a settlement agreement is just a
contract. If one party does not perform, the usually remedy is a lawsuit to enforce the settlement
agreement. Students are cautioned against substituting a future dispute for the present dispute.
Once settlement documents have been signed, and, if necessary, filed, copies should be
distributed to all interested parties. As a matter of professional courtesy and relationship-building
in the Bar, students may want to consider sending a letter to opposing counsel thanking them for
their constructive participation in the settlement process. Students are reminded that in small
communities, or specialized practice areas, it is inevitable that the same parties or attorneys will
be involved in future matters. Therefore, courteous, professional, and civil behavior in
negotiation can have a profound effect on future encounters between attorneys and their clients.
Bibliography
Allen, Elizabeth L., Mohr, Donald D. Affordable Justice: how to Settle any Dispute, Including
Divorce, out of Court, (West Coast Press 1997).
Bellow, Gary, Minow, Martha Law Stories, (Michigan 1996).
Brams, Steven J. Fair Division: From Cake-Cutting to Dispute Resolution, (Cambridge 1996).
Cohen, Herb You Can Negotiate Anything, (Carol 1996).
Craver, Charles B. Effective Legal Negotiation and Settlement, (3d ed., Michie 1997).
Fisher, Roger, Ury, Patton, William, Bruce Getting to Yes: Negotiating Agreement Without
Giving in, (2d ed., Penguin 1991).
Frascogna, Xavier Hetherington, M. H. Lee The Lawyer’s Guide to Negotiation: a Strategic
Approach to Better Contracts and Settlements, (ABA 2001).
Herman, Greg M. The Joy of Settlement: the Family Lawyer’s Guide to Effective Negotiations
and Settlement Strategies, (ABA 1997).
Kolb, Deborah M. When Talk Works: Profiles of Mediators, (1
st
ed., Jossey-Bass 1994).
Kolb, Deborah M., Bartunek, Jean M. Hidden Conflict in Organizations: Uncovering Behind-
the-Scenes Disputes, (Sage 1992).
Kramer, Henry S. Game, Set, Match: Winning the Negotiations Game, (Alm 2001).
Leviton, Sharon, Greenstone, James L. Elements of Mediation, (Brooks/Cole 1997).
Lewicki, Roy J., Hiam, Alexander The Fast Forward MBA in Negotiating and Deal Making,
(Wiley 1999).
165
Mayer, Robert More Power to You: How to Negotiate, Persuade, and Finesse Your Way to
Success in any Situation, (Times Business 1996).
Mnookin, Robert H., Susskind, Lawrence, Foster, Pacey C. Negotiating on Behalf of Others:
Advice to Lawyers, Business Executives, Sports Agents, Diplomats, Politicians, and
Everybody Else, (Sage 1999).
Muthoo, Abhinay Bargaining Theory with Applications, (Cambridge 1999).
Nelken, Melissa L. Understanding Negotiation, (Anderson 2001).
Pinkley, Robin L. Get Paid What You’re Worth: The Expert Negotiator’s Guide to Salary and
Compensation, (St. Martin’s Press 2000).
Plapinger, Elizabeth S., Stienstra, Donna ADR and Settlement in the Federal District Courts: a
Sourcebook for Judges & lawyers: A Joint Project of the Federal Judicial Center and the
CPR Institute for Dispute Resolution, (Federal Judicial Center 1996).
Shell, Richard G. Bargaining for Advantage: Negotiation Strategies for Reasonable People,
(Viking 1999).
Thompson, Leigh L. The Mind and Heart of the Negotiator, (Prentice Hall 1998).
Ury, William Getting Past No: Negotiating Your Way From Confrontation to Cooperation,
(Bantam Books 1993).
Zeckhauser, Richard, Keeney, Ralph L., Sebenius, James K. Wise Choices: Decisions, Games,
and Negotiations, (Harvard 1996).
Negotiation
Barkai, John, Teaching Negotiation and ADR: The Savvy Samurai Meets the Devil, 75 NEB. L.
REV. 704 (1996).
Eyster, Mary Jo, Clinical Teaching, Ethical Negotiation, and Moral Judgment, 75 NEB. L. REV.
752 (1996).
Stark, Debra Pogrund, See Jane Graduate: Why Can't Jane Negotiate a Business Transaction?,
73 ST. JOHN’S L. REV. 477 (1999)
Williams, Gerald R. & Geis, Joseph M., Negotiation Skills Training in the Law School
Curriculum, 16 ALTERNATIVES TO HIGH COST LITIG. 113 (1998).
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XIII. Drafting Basic Pleadings
By the completion of the Clinical semester, every student should know how to draft basic
civil pleadings such as a simple complaint, an answer or basic civil motions. Most students spend
considerable time and energy searching for the “magic” form when in fact, if they follow basic,
simple rules of civil pleading, form-books are almost never required. The one possible exception
is that students may use Clinic computer templates as forms. Even when using computer
templates, students must remember to edit, tailor and update every pleading. Forms and form
books should be used only as a guide and every pleading should be carefully edited. All basic
pleadings can be drafted by following the basic rules of civil procedure, checking local rules,
using simple language, and common sense.
The following materials are provided to walk the law student through some of the basic
pleading they will be drafting during their semester in The Law Clinic.
The Simple Form Complaint And Answer
The Metropolitan Court Civil Complaint form is a good place to begin the practice of
drafting simple pleadings.. Form 4-201 permits the use of the simplest, most basic form of notice
pleading in that Court. A more complex, attorney drafted form of a pleading is allowed but not
required. And Form 4-202 is as follows:
The Simple Form Complaint
Form 4-202. Civil Complaint
STATE OF NEW MEXICO
IN THE ____________ COURT No. __________
___________________ COUNTY
_________________________________ Plaintiff
against
_________________________________ Defendant
CIVIL COMPLAINT
1. Plaintiff or defendant resides, or may be found in, or the cause of action
arose in this county.
2. Plaintiff claims from Defendant the amount of $_______. Plaintiff also
claims interest and court costs. Plaintiff claims from Defendant personal
property of the value of $_______, which is described as follows:
________________________________________
____________________________________________________________________________
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3. Plaintiff's claim arises from the following event or transaction:
____________________________________________________
_____________________________________________________________________________
_____________________________________________________
4. Trial by jury is (not) demanded. [If a jury is demanded, an additional
cost must be paid upon filing.]
5. An audio recording of the trial is (not) demanded. [If you do not request
an audio recording, your right to appeal may be limited.]
_______, ____.
________________________________________
Signed
________________________________________
Name [print]
________________________________________
Address [print]
________________________________________
City, State and Zip Code [print]
________________________________________
Telephone Number
The Simple Answer
Metropolitan Court Rule 3-302 (G) provides:
Rule 3-302. Defenses; Answer
A. Answer; When Filed. The defendant shall file his answer on
or before the appearance date stated in the summons.
B. Defenses; How Presented. The answer shall describe in
concise and simple language the reasons why the defendant
denies the claim of the plaintiff, and any defenses he may
have to the claim of the plaintiff. Defenses shall be raised
in the answer. A party may file a motion to have the answer
clarified or explained. On the filing of such motion, the
judge may, in his discretion, require a more explicit answer
or order a pretrial conference to clarify the issues.
C. Permissive Counterclaim or Setoff. If the defendant
possesses a claim or claims against the plaintiff at the
time the action is begun, they may be asserted in the answer
as a counterclaim or setoff. The facts and circumstances
giving rise to the claim or claims shall be briefly
described.
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D. Nature of Claim and Amount Claimed. The nature of the
defendant's claim or claims and the total sum claimed shall
comply with applicable law. A claim which exceeds the
jurisdiction of the metropolitan court shall be amended by
the defendant prior to trial to conform to the court's
jurisdiction or shall be dismissed without prejudice.
E. Compulsory Counterclaim. There shall be no compulsory
counterclaim.
Form 4-302, Answer To Civil Complaint
STATE OF NEW MEXICO
IN THE________________COURT No._________________
_______________________COUNTY
______________________, Plaintiff
against
______________________, Defendant
ANSWER TO CIVIL COMPLAINT
1. The amount of damages claimed by Plaintiff is not owed because
Or
1. The personal property claimed by Plaintiff should not be turned over to Plaintiff
because:
2. [If applicable] Defendant asserts the following counterclaim or set-off against
Plaintiff:
3. Trial by jury is (not) demanded. [If Plaintiff has already demanded trial by jury, as
indicated in the complaint, a jury will be provided automatically and you need not fill
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in this item. If Plaintiff has not demanded trial by jury, you may do so here, but if you
do you must pay an additional cost upon filing this answer.]
An audio recording of the trial is (not) demanded. [If you do not request an audio recording,
your right to appeal may be limited.]
______________________________
Signed
______________________________
Name [print]
______________________________
Address [print]
______________________________
City, State and Zip Code [print]
______________________________
Telephone Number
(This Answer must be filed with the court on or before the date set in the Summons.)
These simple fill-in-the-blank type of forms would probably also serve in the District court, but a
little more drafting formality is advised for attorneys in that court.
The student should become familiar with all of the other basic civil forms used in the
Metropolitan Court and in other courts. These are found in Volume I of the New Mexico Rules
Annotated. A list of basic civil forms, approved by the New Mexico Supreme Court for use in all
courts, is as follows:
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List of Civil Forms Approved by the New Mexico Supreme Court.
Article 1. General Provisions.
4-101. Notice of [excusal] facts requiring recusal (constitution or code of
conduct).
4-102. Certificate of excusal or recusal.
4-103. Notice of excusal.
4-104. Notice of recusal.
Article 2. Commencement of Action.
4-201. Civil complaint.
4-202. Civil complaint.
4-203. Complaint in forcible entry or unlawful detainer.
4-204. Civil summons.
4-205. Civil complaint for interpleader.
4-206. Summons.
4-207. Notice and receipt of summons and complaint notice.
4-208. Notice and acknowledgment of receipt of summons and complaint.
4-211. Recompiled
4-212. Recompiled
4-213. Attorney's certificate.
4-221. Certificate of service.
Article 3. Pleadings and Motions.
4-301. Answer to civil complaint.
4-302. Answer to civil complaint.
4-303. Motion for judgment on the pleadings.
4-304. Stipulation of dismissal.
4-305. Notice of dismissal of complaint.
4-306. Order dismissing action for failure to prosecute.
4-306A. Motion to dismiss action and order.
4-307. Notice of pretrial conference.
4-308. Order to interplead.
Article 4. Parties.
4-401. Notice of trial.
Article 5. Discovery and Pretrial Matters.
4-501. Motion for production.
4-502. Order of production.
4-503. Subpoena.
4-504. Subpoena.
4-505. Subpoena.
4-506. Scheduling order.
4-507. Scheduling order.
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Article 6. Trials.
4-601. Subpoena for jury service.
Article 7. Judgment and Appeal.
4-701. Judgment.
4-702. Motion for default judgment.
4-703. Default judgment; judgment on the pleadings.
4-704. Motion to set aside default judgment.
4-705. Order setting aside default judgment and giving notice of trial date.
4-706. Satisfaction of judgment.
4-707. Notice of appeal.
4-707A. Appeal bond.
4-708. Title page of transcript of civil proceedings.
4-709. Order declaring judgment of this court satisfied in full.
4-710. Order setting aside judgment, order or writ of this court.
Article 8. Special Proceedings.
4-801. Writ of execution.
4-801A. Writ of execution.
4-802. Writ of execution in forcible entry or detainer.
4-803. Claim of exemptions on execution.
4-804. Order on claim of exemption and order to pay in execution
proceedings.
4-805. Application for writ of garnishment.
4-806. Writ of garnishment.
4-807. Answer by garnishee.
4-808. Notice of right to claim exemptions (garnishment).
4-808A. Notice of right to claim exemptions from execution.
4-809. Claim of exemption from garnishment.
4-810. Motion for default judgment against garnishee.
4-810A. Notice of dispute and request for hearing
4-811. Judgment on writ of garnishment, claim of exemption and order to
pay.
4-812. Judgment on writ of garnishment, claim of exemption and order to
pay.
4-813. Default judgment against garnishee.
4-814. Release of garnishment.
4-815. Sheriff's report of sale of seized property.
4-820. Certificate of Dean of law school
4-821. Order approving clinical law student appearance
4-830. Writ of certiorari.
Article 9. Statutory Proceedings.
4-901. Three-day notice of nonpayment of rent (Uniform Owner-Resident
Relations Act).
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4-901A. Three-day notice of substantial violation of rental agreement
(Uniform Owner-Resident Relations Act).
4-902. Seven-day notice of noncompliance with rental agreement (other
than failure to pay rent) (Uniform Owner-Resident Relations Act).
4-902A. Resident's seven-day notice of abatement or termination of rental
agreement (Uniform Owner-Resident Relations Act).
4-903. Thirty-day notice to terminate rental agreement (Uniform Owner-
Resident Relations Act).
4-904. Petition by owner for restitution (Uniform Owner-Resident
Relations Act).
4-905. Summons and notice of trial on petition for writ of restitution
(Uniform Owner-Resident Relations Act).
4-906. Petition by resident for relief (Uniform Owner-Resident Relations
Act).
4-907. Answer to petition for restitution (Uniform Owner-Resident
Relations Act).
4-908. Withdrawn.
4-909. Judgment for restitution.
4-910. Withdrawn.
4-911. Withdrawn.
4-912. Withdrawn.
4-913. Writ of restitution (Restitution to owner) (Uniform Owner-Resident
Relations Act).
4-914. Writ of restitution (Restitution to resident) (Uniform Owner-
Resident Relations Act).
4-915. Petition for post-judgment writ of replevin.
4-916. Post-judgment writ of replevin.
4-921. Three-day notice of nonpayment of rent (Mobile Home Park Act).
4-922. [Thirty-day notice] [sixty-day notice] to quit (Mobile Home Park
Act).
4-923. Petition by landlord for termination of tenancy and judgment of
possession (Mobile Home Park Act).
4-924. Summons and notice of trial on petition for termination of tenancy
(Mobile Home Park Act).
4-925. Answer to petition for termination of tenancy (Mobile Home Park
Act).
4-926. Judgment for possession (Mobile Home Park Act).
4-927. Notice of judgment (Mobile Home Park Act).
4-928. Notice to lienholder of mobile home judgment (Mobile Home Park
Act).
4-929. Writ of restitution (Mobile Home Park Act).
4-961. Petition for order of protection from domestic abuse.
4-961A. Service of process information for petition for order of protection
from domestic abuse and petition for emergency order protection.
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4-961B. Request for order to omit petitioner's address and telephone
number from petition, to place references to petitioner's address under seal
and for an order providing alternative means of service on petitioner.
4-962. Response to petition for order of protection from domestic abuse.
4-962A. Counter-petition for order of protection from domestic abuse.
4-963. Temporary order of protection and order to appear.
4-963A. Temporary order of protection against petitioner and order to
appear.
4-964. Order to appeal.
4-965. Order of protection, mutual, non-mutual.
4-966. Order of protection against the petitioner. [Withdrawn.]
4-966A. Withdrawn
4-967. Custody, support and division of property order attachment.
4-968. Application to modify, terminate or renew the order of protection
from domestic abuse.
4-970. Stipulated order of protection against respondent.
4-971. Stipulated order of protection against petitioner.
4-972. Petition for emergency order of protection from domestic abuse.
4-973. Emergency order of protection against respondent.
In addition to these primarily attorney-use forms, students are reminded that the New
Mexico Supreme Court has also approved a large number of pro se forms for court use these are
generally found as forms 4A-100 to 4A-363 and can be found at
www.supremecourt.nm.org. These forms are primarily for pro se domestic relations use
but they can be used as general guides for attorney-drafted forms. Students are advised to
carefully tailor these forms if they are used in clinic cases.
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The Complaint and Answer in State District Court
The Complaint
Rule 1-008 (A), N.M. Rules of Civil Procedure provides:
. GENERAL RULES OF PLEADING
A. Claims for Relief. A pleading which sets forth a claim
for relief, whether an original claim, counterclaim, cross-
claim, or third-party claim shall contain:
(1) proper allegations of venue, provided the name of the county
stated in the complaint shall be taken to be the venue intended
by the plaintiff and it shall not be necessary to state a venue
in the body of the complaint or in any subsequent pleading;
(2) a short and plain statement of the claim showing that the
pleader is entitled to relief; and
(3) a demand for judgment for the relief to which he deems
himself entitled.
Relief in the alternative or of several different types may be
demanded.
B. Defenses; Form of Denials. A party shall state in short and
plain terms his defenses to each claim asserted and shall admit
or deny the averments upon which the adverse party relies. If he
is without knowledge or information sufficient to form a belief
as to the truth of an averment, he shall so state and this has
the effect of a denial. Denials shall fairly meet the substance
of the averments denied. When a pleader intends in good faith to
deny only a part or a qualification of an averment, he shall
specify so much of it as is true and material and shall deny
only the remainder. Unless the pleader intends in good faith to
controvert all the averments of the preceding pleading, he may
make his denials as specific denials of designated averments or
paragraphs, or he may generally deny all the averments except
such designated averments or paragraphs as he expressly admits;
but, when he does so intend to controvert all its averments,
including averments of the grounds upon which the court's
jurisdiction depends, he may do so by general denial subject to
the obligations set forth in Rule 1-011.
C. Affirmative Defenses. In pleading to a preceding pleading, a
party shall set forth affirmatively accord and satisfaction,
arbitration and award, contributory negligence, discharge in
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bankruptcy, duress, estoppel, failure of consideration, fraud,
illegality, laches, license, payment, release, res judicata,
statute of frauds, statute of limitations, waiver and any other
matter constituting an avoidance or affirmative defense. When a
party has mistakenly designated a defense as a counterclaim or a
counterclaim as a defense, the court on terms, if justice so
requires, shall treat the pleading as if there had been a proper
designation.
D. Effect of Failure to Deny. Averments in a pleading to which a
responsive pleading is required, other than those as to the
amount of damage, are admitted when not denied in the responsive
pleading. Averments in a pleading to which no responsive
pleading is required or permitted shall be taken as denied or
avoided.
E. Pleading to Be Concise and Direct; Consistency.
(1) Each averment of a pleading shall be simple, concise and
direct. No technical forms of pleading or motions are required.
(2) A party may set forth two or more statements of a claim or
defense alternatively or hypothetically, either in one count or
defense or in separate counts or defenses. When two or more
statements are made in the alternative and one of them if made
independently would be sufficient, the pleading is not made
insufficient by the insufficiency of one or more of the
alternative statements. A party may also state as many separate
claims or defenses as he has regardless of consistency and
whether based on legal or on equitable grounds or on both. All
statements shall be made subject to the obligations set forth in
Rule 1-011.
F. Construction of Pleadings. All pleadings shall be so
construed as to do substantial justice.
The important substance of the rule 1-008 is that in addition to venue and a prayer for relief…”
only a short, plain statement of the claim showing the pleader is entitled to relief” is required.
The rule means what it says.
Sample Civil Complaint
A simple form of civil complaint for use in State District Court involving the sale of a
defective automobile would be as follows:
176
STATE OF NEW MEXICO (NOTE: Leave upper Right-hand
IN THE SECOND JUDICIAL DISTRICT COURT corner blank. Approx. 3” x 3” for
BERNALILLO COUNTY case number and court endorsement
stamp)
Dianna Montes, Plaintiff
v. NO. CV______________
Heather Casey, dba Smiley’s Auto Sales, Defendant.
COMPLAINT FOR MONEY DAMAGES AND RESCISSION
Plaintiff for her complaint states:
1. Plaintiff is a resident of Bernalillo County, New Mexico.
2. Defendant is a resident of Bernalillo County, New Mexico.
3. All transactions upon which this complaint is based occurred in Bernalillo County, New
Mexico.
4. Defendant Heather Casey is the owner and manager of Smiley’s Auto Sales located at 2211
Menaul NE, Albuquerque, NM.
5. On April 1, 2002, Plaintiff purchased a 1990 Honda Accord EX for $2,000.00 from
Defendant..
6. Defendant told Plaintiff that the 1990 Honda was in good condition was a low mileage and a
one owner car. Defendant also told Plaintiff that the car would have a 30-day warranty for
repairs.
7. Plaintiff relied on these statements and purchased the 1990 Honda on April 1, 2002.
8. On April 3, 2002, the 1990 Honda broke down on I-40. Plaintiff then called Defendant,
Heather Casey, and requested that the vehicle be repaired under the warranty.
9. Defendant, Heather Casey refused to repair the vehicle.
10. Defendant’s refusal to repair the 1990 Honda was a breach of contract.
11. Plaintiff was damaged by this breach of contract.
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12. Defendants sales representations violated the New Mexico Unfair Trade Practices Act,
Section 57-12-1, NMSA.
13. Defendant’s representations as to the condition, mileage, and prior ownership of the 1990
Honda were false and were made in a willful, reckless, or negligent manner.
14. Plaintiff was damaged by these representations.
WHEREFORE, Plaintiff requests that the Court enter judgment against Defendant and
award Plaintiff the following damages and relief:
1. Damages for breach of contract.
2. Damages for breach of warranty.
3. Damages under the New Mexico Unfair Trade Practices Act.
4. Attorney’s fees and Court costs
5. Rescind the contract between Plaintiff and Defendant.
6. Punitive damages for fraud and misrepresentation.
7. Such other relief as is allowed by law.
_____________________________
Clarita W. Nuñez
Attorney for Plaintiff
UNM CLINICAL LAW PROGRAMS
1117 Stanford, N.E., Room 3228
Albuquerque, New Mexico 87131-1431
(505) 277-5265
_____________________________
Rose Bell
Practicing Law Student
NOTE: Since this is an initial pleading there is no certificate of mailing.
All pleadings after the initial pleading may be served by mail and a certificate of mailing or
service added to those pleadings in the lower left-hand corner of the document.
This sample complaint, with some modification, should serve as a good model for most
simple civil cases. All that is required is a short plain statement showing that the pleader is
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entitled to relief. In a more complex case, or in a case where it is important and appropriate to
tell a more detailed story, it may be appropriate to provide much more background detail.
Another situation where more detail would be useful is in a situation where the facts are complex
and the pleader wants to force the party answering to admit or deny each and every fact plead. In
this type of complaint each important and distinct fact would be plead in a separate paragraph. A
more detailed complaint also creates the opportunity to tell the client’s story in a more persuasive
way. As a rule, judges do not like infinitely detailed or prolix complaints.
An example of a more detailed and hopefully better-organized complaint using the same
hypothetical car case set out above would be as follows:
More Complex Civil Complaint
STATE OF NEW MEXICO
IN THE SECOND JUDICIAL DISTRICT COURT
BERNALILLO COUNTY
Dianna Montes, Plaintiff
v. NO. CV-_____________
Heather Casey, dba Smiley’s Auto Sales, Defendant.
COMPLAINT FOR MONEY DAMAGES AND RECISSION
Plaintiff for her complaint states:
COUNT I – BREACH OF CONTRACT
1. Plaintiff is a resident of Bernalillo County, New Mexico.
2. Defendant is a resident of Bernalillo County, New Mexico.
3. All transactions upon which this complaint is based occurred in Bernalillo County, New
Mexico.
4. Defendant Heather Casey is the owner and manager of Smiley’s Auto Sales located at 2211
Menaul NE, Albuquerque, NM. Smiley’s Auto Sales is a sole proprietorship owned and operated
by defendant Heather Casey.
5. On April 1, 2002, Plaintiff purchased a 1990 Honda Accord EX for $2,000.00. Plaintiff paid
$500.00 as a down payment and signed a contract to pay the remaining balance of $1,500.00,
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plus interest, in 36 equal monthly payments. A copy of this purchase agreement is attached to the
complaint as Exhibit A. A copy of Plaintiff’s check number 344 in the amount of $500.00 is
attached as Exhibit B.
6. Prior to the purchase of the 1990 Honda Accord, Plaintiff had been looking at a 1991 Toyota
Camry that was advertised to be on clearance sale for $1,000.00. Defendant, Heather Casey, was
the salesperson Plaintiff dealt with. Defendant Heather Casey stated that the Toyota in question
was in “poor condition” and recommended that the 1990 Honda Accord was “a better car.”
7. Defendant, Heather Casey, told Plaintiff that the 1990 Honda was in “very good condition,”
was a “low mileage” and “a one owner car.” At the time of purchase the odometer on the 1990
Honda showed a mileage of 47,621 miles. Defendant, Heather Casey, also informed Plaintiff that
due to the “very good condition” of the car that Smiley’s Auto Sales would give a full 30-day
warranty for all repairs. A copy of the odometer statement given to Plaintiff by Defendant is
attached as exhibit C.
8. Based on the representations made by Defendant, Heather Casey, Plaintiff purchased the 1990
Honda Accord EX as evidenced by the purchase agreement in Exhibit A.
9. Plaintiff took possession of the 1990 Honda on April 1, 2002. On April 3, 2002, the 1990
Honda stalled on I-40 while Plaintiff was driving to work. Plaintiff immediately called
Defendant, Heather Casey, and requested that the vehicle be towed to Smiley’s Auto Sales and
that the vehicle be repaired under the 30-day warranty. Defendant, Heather Casey, refused to
authorize the towing of the vehicle and asked Plaintiff to get the car repaired at her own expense
and that they would “talk” about the repair costs once the repairs were completed.
10. Plaintiff had the 1990 Honda towed to Amanda’s Garage in Albuquerque, New Mexico.
Plaintiff requested that a repair estimate be prepared. On April 4, 2002 the manager of Amanda’s
Garage informed Plaintiff that the cooling system on the Honda had failed and that the engine
was severely damaged and must be overhauled. The manager also informed Plaintiff that the
1990 Honda had also been previously wrecked and that the odometer had been tampered with.
Amanda’s Garage estimated the total cost to repair the car to be $2,700.56. A copy of the written
repair estimate is attached to the Complaint as Exhibit D.
11. Plaintiff checked with the New Mexico Department of Motor Vehicles and was informed that
the 1990 Honda had been owned by 4 previous owners and that it had last been sold to Heather
Casey on January 15, 2002 with an odometer reading of 160,000 miles. A copy of the Bill of
Sale for the 1990 Honda dated January 15, 2002 and the odometer statement are hereby attached
to the complaint as Exhibit E.
12. Plaintiff informed Defendant, Heather Casey, of the cost of repairs and mailed a copy of the
written estimate to Defendant on April 4, 2002. Defendant, Heather Casey, refused to pay for the
repairs at Amanda’s Garage, stating that Smiley’s Auto Sales was not responsible for the repairs
and that they were too costly. Plaintiff then asked Defendant to have the car towed to Smiley’s
Auto Sales or to a garage of her choice to have the repairs made. Defendant, Heather Casey,
refused to do so. Plaintiff requested that Defendant repair the 1990 Honda several times by
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telephone and each time Defendant, Heather Casey, refused, stating that Plaintiff was responsible
for the damage to the car’s engine.
13. Defendant’s sale of a defective and nonconforming 1990 Honda constituted a failure of
consideration and a breach of contract.
14. Defendant’s refusal to honor the 30-day repair warranty constituted a breach of contract.
Plaintiff was damaged by this breach of contract.
COUNT II – VIOLATION OF THE UNFAIR BUSINESS PRACTICES ACT
Plaintiff hereby incorporates by reference the allegations made in paragraphs 1 thru 12 above.
15. Defendants conduct in selling a high mileage, altered, previously wrecked vehicle while
representing the vehicle to be in very good condition, low mileage and one owner when it was
otherwise constitutes a violation of the New Mexico Unfair Trade Practices Act, Section 57-12-
1, NMSA. Defendant engaged in unfair and deceptive trade practices, the sale of the vehicle in
its known condition was unconscionable, or the value paid for the vehicle was in fact grossly
disproportionate to its value, in violation of Sections 57-12-2(D),(7),(14),(15),(17), 57-12-
2(e)(1)and (2), and 57-12-3, NMSA.
16. Plaintiff was damaged as a result of Defendant’s violation of the New Mexico Unfair Trade
Practices Act.
COUNT III – FRAUD
Plaintiff hereby incorporates by reference the allegations made in paragraphs 1 thru 12 above.
17. When Defendant made the representations as to the condition, mileage and previous
ownership of the 1990 Honda, Defendant acted willfully, recklessly or negligently. The factual
representations made by Defendant were false.
18. Plaintiff relied on the representations made by Defendant.
19. Plaintiff was damaged by these representations.
20. Attachments A, B, C, D, and E to this complaint are true and accurate copies of each original
document.
WHEREFORE, Plaintiff requests that the Court enter judgment against Defendant and
award Plaintiff the following damages and relief:
1. Compensatory damages for breach of contract.
2. Compensatory and consequential damages for breach of warranty.
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3. Compensatory and statutory damages under the New Mexico Unfair Trade Practices
Act.
4. Attorney’s fees and Court costs under the Unfair Trade Practices Act or as allowed by
law.
5. Declare the contract between Plaintiff and Defendant to be void and rescinded.
6. Punitive damages for fraud and misrepresentation.
7. Such other relief as is allowed by law.
_____________________________
Clarita W. Nuñez
Attorney for Plaintiff
UNM CLINICAL LAW PROGRAMS
1117 Stanford, N.E., Room 3228
Albuquerque, New Mexico 87131-1431
(505) 277-5265
_____________________________
Rose Bell
Practicing Law Student
When drafting a pleading, students should also be familiar with Rule 1-009, which provides as
follows:
Rule 1-009. Pleading Special Matters
A. Capacity. It is not necessary to aver the capacity of a party to sue or be sued or the authority
of a party to sue or be sued in a representative capacity or the legal existence of an organized
association of persons that is made a party, except to the extent required to show the jurisdiction
of the court. When a party desires to raise an issue as to the legal existence of any party or the
capacity of any party to sue or be sued or the authority of a party to sue or be sued in a
representative capacity, he shall do so by specific negative averment, which shall include such
supporting particulars as are peculiarly in the pleader's knowledge.
B. Fraud, Mistake and Condition of the Mind. In all averments of fraud or mistake, the
circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent,
knowledge and other condition of mind of a person may be averred generally.
C. Conditions Precedent. In pleading the performance or occurrence of conditions precedent, it
is sufficient to aver generally that all conditions precedent have been performed or have
182
occurred. A denial of performance or occurrence shall be made specifically and with
particularity.
D. Official Document or Act. In pleading an official document or official act it is sufficient to
aver that the document was issued or the act done in compliance with law.
E. Judgment. In pleading a judgment or decision of a domestic or foreign court, judicial or
quasi-judicial tribunal or of a board or officer, it is sufficient to aver the judgment or decision
without setting forth matter showing jurisdiction to render it.
F. Time and Place. For the purpose of testing the sufficiency of a pleading, averments of time
and place are material and shall be considered like all other averments of material matter.
G. Special Damage. When items of special damage are claimed, they shall be specifically stated.
H. Statutes. It shall not be necessary in any pleading to set forth any statute, public or private or
any special matter thereof, but it shall be sufficient for the party to allege therein that the act was
done by authority of such statute, or contrary to the provisions thereof, naming the subject matter
of such statute, or referring thereto in some general term with convenient certainty.
I. Copy to Be Served. When any instrument of writing upon which the action or defense is
founded is referred to in the pleadings, the original or a copy thereof shall be served with the
pleading, if in the power or control of the party wishing to use the same. A copy of such
instrument of writing need not be filed with the district court.
Attachments to a Complaint
In general, within the limits of relevance and common sense a party may attach to a
complaint any document he or she desires. Typical examples are leases, contracts, deeds, maps,
or other key documents. These are usually identified as an exhibit (Exhibit A, Exhibit B, etc.),
attached to the complaint, incorporated by reference and alleged to be a true and accurate copy of
the original, in order to force an admission or denial as to authenticity and relevance.
Attachments to pleadings are not evidence at trial unless formally admitted. Attachments to a
complaint should generally be kept at a minimum. Local rules also limit or direct how
attachments may be attached to a pleading.
Complaints Seeking Injunctive Relief
Finally, in those rare cases that require a request for injunctive relief the pleader must
conform to requirements of Rule 1-066. The key factor in asking for injunctive relief in a
pleading is that the civil complaint must allege enough facts to establish that…”irreparable and
immediate damage will result.” Students should become familiar with the requirements of Rule
1-066. In injunction cases it is typical for two affidavits to be attached as exhibits to the
Complaint, one from the client on immediate and irreparable harm and the other from the
attorney on notice issues as required by rule 1-066.
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The Summons
The summons form, with the appropriate caption, is drafted by the attorney, and then is
officially issued (stamped and signed ) by the court clerk when the complaint is filed. A copy of
the summons is stapled to the front of the complaint, which is then served on the defendant or
respondent. Do not serve the original summons. It must be returned to the court upon
service.
The served copy of the summons is notice to the defendant that he or she must answer the
complaint or petition within a fixed time on penalty of default. The summons is really a form of
court order, which requires an answer. The return on the original summons (the back page or last
section) is then completed by the person serving the complaint and summons and the original is
then filed with the clerk of the court. This return provides proof to the court that service was
completed. A copy of the original, completed, and filed summons should be made and placed in
the client file. Students should contemplate what happens when a complaint is served without a
summons or the return is not completed and filed with the court. Students should become very
familiar with the attached basic summons forms and the different types of service set out in the
return portion of the summons.
Form 4-206. Summons
STATE OF NEW MEXICO
IN THE DISTRICT COURT
_________ JUDICIAL DISTRICT
_______________________, Plaintiff
against No. __________
_______________________, Defendant
SUMMONS
THE STATE OF NEW MEXICO
TO: _______, Defendant(s)
ADDRESS: _________________________________________________________________
GREETINGS:
You are hereby directed to serve a pleading or motion in response to the
complaint within thirty (30) days after service of this summons, and file the
same, all as provided by law.
You are notified that, unless you serve and file a responsive pleading or
motion, the plaintiff will apply to the court for the relief demanded in the
complaint.
Attorney or attorneys for plaintiff:
______________________________
Address of attorneys for plaintiff:
(or of plaintiff, if no attorney)
______________________________
WITNESS the Honorable _______, district judge of the _______ judicial
district court of the State of New Mexico, and the seal of the district court
of _______ County, this ___ day of _______, ____.
184
________________________________________
Clerk
By _____________________________________
Deputy
185
Form 4-207.
STATE OF NEW MEXICO
IN THE DISTRICT COURT
______________________ (JUDICIAL DISTRICT) No. __________________
_____________________________________, Plaintiff
against
_____________________________________, Defendant
NOTICE AND RECEIPT OF SUMMONS AND COMPLAINT NOTICE
TO:
___________________________________________________________________________
ADDRESS:
______________________________________________________________________
The enclosed summons and complaint are served pursuant to Rule 1-004 of the New Mexico
Rules of Civil Procedure.
You must sign and date the receipt. If you are served on behalf of a corporation, unincorporated
association (including a partnership), or other entity, you must indicate under your signature your
relationship to that entity. If you are served on behalf of another person and you are authorized to
receive process, you must indicate under your signature your position or title.
If you do not complete and return the form to the above court within twenty (20) days, you (or
the party on whose behalf you are being served) may be required to pay any expenses incurred in
serving a summons and complaint in any other manner permitted by law.
If you do complete and return this form, you (or the party on whose behalf you are being served)
must answer the complaint within thirty (30) days of the date upon which this notice was mailed,
which appears below. If you fail to do so, judgment by default may be taken against you for the
relief demanded in the complaint.
I declare, under penalty of perjury, that this Notice and Receipt of Summons and Complaint was
mailed on the _________ day of __________________, _______ .
____________________________
Signature
____________________________
Date of Signature
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RECEIPT OF SUMMONS AND COMPLAINT
I received a copy of the summons and complaint in the above-captioned matter at (insert
address).
_______________________________
Signature
_______________________________
Relationship to Entity/
Authority to Receive
Service of Process
___________________________________________________________________________
Date of Signature
[Adopted, effective August 1, 1989.]
Form 4-208.
STATE OF NEW MEXICO
____________________________ COURT No. __________________
____________________________ (COUNTY)
_____________________________________ , Plaintiff
v.
_____________________________________ , Defendant
NOTICE AND ACKNOWLEDGMENT OF RECEIPT OF SUMMONS AND COMPLAINT
TO: __________________________________________________________________________
ADDRESS:
_____________________________________________________________________
The enclosed summons, complaint, answer form, two copies of this notice and acknowledgment
of receipt of summons and a postage prepaid return envelope are served pursuant to the rules of
civil procedure.
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You must sign and date the receipt. If you are served on behalf of a corporation,
unincorporated association (including a partnership) or other entity, you must indicate under
your signature your relationship, position or title. If you are served on behalf of another person
and you are authorized to receive process, you must indicate under your signature your
relationship, position or title.
You must complete and return one copy of the completed form to the sender within
twenty (20) days of the date upon which this notice was mailed. This date appears below. If you
fail to complete and return this form to the sender within twenty (20) days plus three (3) days for
mailing, you may be required to pay any expenses incurred in serving a summons and complaint
in any other manner permitted by law. It must be received by the sender within twenty-three (23)
days from the date it was mailed to you.
A stamped and addressed envelope has been included with this notice. You may use this
envelope to return this form to the sender.
In addition to completing this form and returning it to the sender, you must also answer
the complaint and file an answer with the court within twenty- three (23) days from the date this
notice was mailed to you. This date appears below. An answer form has been included with this
notice for your use. If an answer is not filed with the court a default judgment may be granted for
the relief demanded in the complaint.
I declare, under penalty of perjury, that the complaint, an answer form, two copies of this
notice and acknowledgment of receipt of summons and complaint and a postage prepaid return
envelope were mailed on the _______ day of _______________ , _______ from
___________________________ (place of mailing).
_____________________________________________________________________________
Signature of person mailing
_____________________________________________________________________________
Date of signature
RECEIPT OF SUMMONS AND COMPLAINT
I received a copy of the summons and complaint.
I understand that a judgment may be entered against me (or the party on whose behalf I received
service) if I do not file an answer to the complaint with the court within twenty-three (23) days
from the date this notice was mailed to me.
_____________________________________________________________________________
Signature of defendant or defendant's attorney
_____________________________________________________________________________
Position or title
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_____________________________________________________________________________
Date of signature
(To be completed prior to filing with the clerk of the court. Proof of service is required for each
party.)
AFFIDAVIT OF SERVICE
I declare under penalty of perjury that a copy of the complaint, an answer form, two copies of
this notice and acknowledgment of receipt of summons and complaint and a postage prepaid
return envelope were served by mail on the following persons or entities on this _______ day of
_______________ , _______ :
(1) _____________________________________
(Name of party)
_____________________________________
(Address)
(2) _____________________________________
(Name of party)
_____________________________________
(Address)
___________________________________________________________________________
Signature of person mailing pleadings
___________________________________________________________________________
Date of signature
Subscribed and sworn to
before me this _______
day of _______________ , _______
____________________________
Judge, notary or other officer
authorized to administer oaths
____________________________
Official title
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The Answer
On occasion students are required to file an answer to a civil complaint on behalf of a
clinic client. In general, the same basic rules of pleading that apply to civil complaints apply to
answers.
Rule 1-008, NMRCP, provides:
RULE 1-008. GENERAL RULES OF PLEADING
A. (omitted)
B. Defenses. Form of Denials. A party shall state in short and
plain terms his defenses to each claim asserted and shall admit
or deny the averments upon which the adverse party relies. If he
is without knowledge or information sufficient to form a belief
as to the truth of an averment, he shall so state and this has
the effect of a denial. Denials shall fairly meet the substance
of the averments denied. When a pleader intends in good faith to
deny only a part or a qualification of an averment, he shall
specify so much of it as is true and material and shall deny
only the remainder. Unless the pleader intends in good faith to
controvert all the averments of the preceding pleading, he may
make his denials as specific denials of designated averments or
paragraphs, or he may generally deny all the averments except
such designated averments or paragraphs as he expressly admits;
but, when he does so intend to controvert all its averments,
including averments of the grounds upon which the court's
jurisdiction depends, he may do so by general denial subject to
the obligations set forth in Rule 1-011.
C. Affirmative Defenses. In pleading to a preceding pleading, a
party shall set forth affirmatively accord and satisfaction,
arbitration and award, contributory negligence, discharge in
bankruptcy, duress, estoppel, failure of consideration, fraud,
illegality, laches, license, payment, release, res judicata,
statute of frauds, statute of limitations, waiver and any other
matter constituting an avoidance or affirmative defense. When a
party has mistakenly designated a defense as a counterclaim or a
counterclaim as a defense, the court on terms, if justice so
requires, shall treat the pleading as if there had been a proper
designation.
D. Effect of Failure to Deny. Averments in a pleading to which
a responsive pleading is required, other than those as to the
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amount of damage, are admitted when not denied in the responsive
pleading. Averments in a pleading to which no responsive
pleading is required or permitted shall be taken as denied or
avoided.
E. Pleading to Be Concise and Direct; Consistency.
(1) Each averment of a pleading shall be simple, concise and
direct. No technical forms of pleading or motions are required.
(2) A party may set forth two or more statements of a claim or
defense alternatively or hypothetically, either in one count or
defense or in separate counts or defenses. When two or more
statements are made in the alternative and one of them if made
independently would be sufficient, the pleading is not made
insufficient by the insufficiency of one or more of the
alternative statements. A party may also state as many separate
claims or defenses as he has regardless of consistency and
whether based on legal or on equitable grounds or on both. All
statements shall be made subject to the obligations set forth in
Rule 1-011.
F. Construction of Pleadings. All pleadings shall be so
construed as to do substantial justice.
Sample Civil Answer
A sample answer to the earlier sample complaint in the same car case is as follows:
STATE OF NEW MEXICO
IN THE SECOND JUDICIAL DISTRICT COURT
BERNALILLO COUNTY
Dianna Montes, Plaintiff
v. NO. CV ______________
Heather Casey, dba Smiley’s Auto Sales, Defendant.
ANSWER TO COMPLAINT FOR DAMAGES AND RESCISSION
Defendant, Heather Casey, answers Plaintiff’s Complaint as follows:
1. Defendant admits the allegations in paragraphs 1, 2, 3, 4, 5.
2. Defendant denies the allegations in paragraphs 6, 7, 8, 9, 12, 13, 15, 16, 17, 18, 21.
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3. Defendant is without sufficient knowledge to admit or deny the allegations in paragraphs 10,
11, 20 in Plaintiff’s complaint, and the same are hereby denied.
First Affirmative Defense
Defendant as a separate and affirmative defense states that all damages caused to the 1990
Honda purchased by Plaintiff from Defendant were caused by Plaintiff. The damages to the
motor of the 1990 Honda were caused by Plaintiff operating the vehicle without adequate
coolant. Plaintiff failed to check and maintain the coolant level in the 1990 Honda before
operating it. Plaintiff’s negligent or intentional failure to check and maintain the coolant level in
the 1990 Honda caused the engine to overheat. Plaintiff further failed to check and maintain the
engine oil level in the 1990 Honda and this contributed to the overheating condition and resulting
damage.
Second Affirmative Defense
Under paragraph 28 (b) (3) of the Vehicle Purchase Agreement, in the event of mechanical
problems within the limited warranty provided to Plaintiff by Defendant, Plaintiff was required
to tow the 1990 Honda at her own expense to Smiley’s Auto Sales for repair or evaluation of the
car. The repair warranty applies only to repairs performed by Smiley’s Auto Sales and not to any
repairs provided by any other repair shop. Plaintiff by taking the 1990 Honda for repairs at
Amanda’s Garage breached the requirements of paragraph 28(b)(3) of the contract. Plaintiff was
required to deliver the car at her own expense to Smiley’s Auto Sales for repair. Plaintiff failed
or refused to deliver to Smiley’s Auto Sales.
____________________________
Renee Smith
Smith, Jones and Gonzales
Attorneys for Defendant
5678 Central SE
Albuquerque, NM 87102
(505) 555-0324
I hereby certify that a copy of this answer was
Mailed first class postage prepaid to Plaintiff’s
attorney, at 1117 Stanford NE,
Albuquerque, New Mexico, 87131,
This _____ day of _________ 200___.
S/______________________________
Renee Smith
Attorney for Defendant
5678 Central SE
Albuquerque, NM 87102
(505) 555-0324
Students should note that in the Answer, the Certificate of Service was added to the
pleading at the lower left hand corner and was signed by the defendant’s attorney. The
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Certificate of Service must be included in all pleadings and motions after the initial pleading (i.e.
the Complaint or Petition) and is proof of service of that pleading. This certificate must appear
on all subsequent pleadings.
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Basic Motion Practice
A motion is simply a request to the court by any party to a lawsuit asking the court to
exercise its discretion in a particular way, to rule a certain way or to order a court official or
other party under its control to do something. The extent and limits of the court’s power and
jurisdiction is inherent in every motion. Hypothetically, anything within a courts discretion or
power can be addressed by way of a motion. The number of different types of motions is very
large and limited mostly by tradition and lack of creativity and imagination. Motions can be oral
or written. In the less formal courts such as the Metropolitan or Magistrate Courts, motion
practice tends to be oral, although written motions are clearly allowed. In the more formal courts
of record, such as State District Courts or the Federal District Court, motion practice is mostly
written. Some oral motions are permitted during the course of hearings or trials. The better form
of motion practice for attorneys in any court is in written form.
List of Common Motions
A list of the most common motions encountered in district court practice is as follows:
Motion for Free Process
Motion to Quash The Summons
Motion for Alias Summons
Motion to Quash Subpoena
Motion to Dismiss the Complaint or Petition
Motion for Judgment on the Pleadings
Motion to Extend the Time to Answer
Motion to Amend the Complaint
Motion to Amend the Answer
Motion to Intervene
Motion to Consolidate Cases
Motion to Appoint Guardian Ad Litem
Motion to Seal the Record
Motion to Join Additional Parties
Motion to Withdraw as Counsel
Motion For Protective Order in Discovery
Motion to Compel Discovery
Motion for Discovery Sanctions
Motion to Permit a Videotaped Deposition
Motion for Partial Summary Judgment
Motion for Summary Judgment
Motion to Allow Interlocutory Appeal
Motion to Schedule a Settlement Conference
Motion to Approve Settlement on Behalf of
a Minor
Motion to Establish Interim Support
Motion to Increase Child Support
Motion to Modify Child Visitation
Motion for Court Clinic Referral Order
Motion for Appointment of Special Master
Motion to Schedule Pretrial Conference
Motion In Limine to Exclude or Limit
Evidence
Motion for Directed Verdict
Motion for a New Trial
Motion for Presentment Hearing
Motion to Reconsider Judgment
The above list is limited and the list of matters that are subject to a formal motion is
almost limitless. The only limits on motion practice are whether the court has discretion or
jurisdiction over a requested matter and whether the matter is relevant to the case.
Court Rules Defining New Mexico Motion Practice
Almost all courts have formal rules governing motion practice and their own local rules.
While many local rules are similar, each judicial district or court has its own slightly different
local rules. Before drafting and filing any motion, the student should first check for compliance
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with any local rules. A word of warning is also in order: some judges have their own individual
motion requirements. While this is rare, it is something else the student should check. A good
source of information about a judge's preferences or requirements is the judge’s secretary. A
simple pre-filing telephone call should provide the needed information. Students should
understand the differences in motion practice in the Metropolitan Court, the Second Judicial
District Court, and the Federal District Court. Students should master these differences by the
end of their clinical program.
The rules for motion practice in each of these courts are as follows.
Metropolitan Court Rule 3-301 (G), Rules of Civil Procedure for the Metropolitan Court,
provides:
Motions. Written motions are not allowed except when permitted
by these rules or required by the nature of the proceedings.
State District Court Rule 1-007 (B) provides:
RULE 1-007. PLEADINGS ALLOWED; FORM OF MOTIONS
A. . . .(omitted)
B. Motions and Other Papers.
(1) An application to the court for an order shall be by motion which, unless made during a
hearing or trial, shall be made in writing, shall state with particularity the grounds therefore, and
shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is
stated in a written notice of the hearing of the motion.
(2) The rules applicable to captions, signing and other matters of form of pleadings apply to all
motions and other papers provided for by these rules.
C. Demurrers, Pleas, etc., Abolished. Demurrers, pleas and exceptions for insufficiency of a
pleading shall not be used.
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Local court rules for the Second Judicial District
Local Rule LR2-123 provides:
LR2-123. OPPOSED MOTIONS AND OTHER OPPOSED MATTERS; FILING;
HEARINGS
A. Presentment for Filing. As a condition of filing, all opposed
motions, objections and other opposed matters requiring a
hearing (hereinafter “motions”) shall be presented to the clerk
with the following:
(1) A copy of the motion, along with any required and other
attachments to the motion, for the assigned judge;
(2) An original request for hearing in the form set forth in
LR2-Form G, along with a copy of the request for the assigned
judge;
(3) An original notice of hearing in the form set forth in LR2-
Form H and sufficient copies for all parties entitled to notice;
and, notice.
B. Service of Request. The movant shall serve copies of the
request for hearing on all parties entitled to notice.
C. Filing; Forwarding to Judge. The clerk will file the motion
and request for hearing, and endorse a copy of each for the
assigned judge. The clerk shall forward the endorsed copies, the
original notice of hearing and copies, and the envelopes, to the
assigned judge.
D. Notice of Hearing. The assigned judge's staff will complete
and file the notice of hearing, and mail or deliver copies to
all parties entitled to notice, adding to the envelopes the
court address as the return address, or the judge may direct the
movant to complete this process.
E. General Exceptions. The clerk also shall file opposed motions
presented without a request for hearing, notice of hearing or
stamped, addressed envelopes, in the following circumstances:
(1) Prior to presentment to the clerk, the movant has delivered
a copy of the motion and the request, the original and copies of
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the notice of hearing, and envelopes, to the assigned judge's
office, and receipt is indicated on the original motion by
initials of the judge's staff.
(2) The motion has been approved for filing by the assigned
judge's staff in circumstances other than those set forth in
Subsection E(1) above;
(3) The motion is presented with a signed order disposing of the
matter; or,
(4) The motion is presented with a proposed order in which the
date and time of the hearing will be entered, such as an order
to show cause or temporary restraining order.
F. Exception for Motions Requiring Fifteen Minutes or Less in
Criminal, Delinquency and Need-of-Supervision Cases. All motions
in criminal, delinquency and need-of-supervision cases,
requiring fifteen minutes or less for hearing, shall be
presented only with sufficient copies of the motion for all
parties entitled to notice. The clerk, at the time of filing,
will stamp a hearing date and time on the original and copies of
the motion. The movant shall serve a copy of the motion with the
hearing date and time indicated, on all parties entitled to
notice. With criminal cases, motions for Monday hearings must be
filed by the preceding Monday; motions for Friday hearings must
be filed by the preceding Friday. Any motions filed after these
deadlines will be scheduled on the next regular calendar, unless
otherwise ordered by the court.
G. Required Attachments. With all motions requiring an
evidentiary hearing, a list of witnesses shall be attached to
the motion. With motions filed in domestic relations cases, a
Rule 1-099 NMRA, certificate shall be attached as required by
Second Judicial District Local Rules, Rule LR2-132.
H. Requests Alone. A request for hearing may be filed without a
motion provided the request is presented with a notice of
hearing, copies and envelopes. A copy of the request shall be
served on all parties entitled to notice.
Local Rule LR2-124 provides:
LR2-124. UNOPPOSED MOTIONS AND OTHER UNOPPOSED MATTERS; FILING
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A. Presentment for Filing. As a condition of filing, all
unopposed motions and other unopposed matters (hereinafter
“motions”) shall be presented to the clerk with the following:
(1) A copy of the motion, along with any required and other
attachments to the motion, for the assigned judge; and
(2) An original proposed order disposing of the motion approved
by all parties entitled to notice; approval of counsel may be
indicated as telephonic approval; approval of a party pro se
must be indicated by the party's signature on the proposed
order.
B. Filing; Forwarding to Judge. The clerk will file the motion
and endorse a copy for the assigned judge. The clerk shall
forward the endorsed copy of the motion and the original
proposed order to the assigned judge for consideration.
C. Signed Orders; Filing; Copies. The movant shall retrieve and
file the order promptly after it is signed, and shall mail or
deliver endorsed copies to all parties entitled to notice. The
court takes no responsibility for the filing of orders.
D. Required Attachments. With motions filed in domestic
relations cases, a Rule 1-099 NMRA, certificate shall be
attached as required by Second Judicial District Local Rules,
Rule LR2-132.
Motions Requiring Use of Court Approved Forms
Students are cautioned that the following motions require a Court approved form for the
motion, order and supporting documents in the Second Judicial District. Motion for Free Process
(LR2-Form A), Motion to Withdraw (LR2 Form E). Entry of Appearance By Substitute Counsel
or Party Pro Se (LR2 Form F), Request For Hearing (LR2 Form G), Notice of Hearing (LR2
Form H), Praecipe (LR2 Form I), Rule 1-009 Certificate (LR2 Form J), Rule 16, Pretrial
Scheduling Order (LR2-Form K), Final Pretrial Order (LR 2-Form L), Court clinic Referral
Order (LR2-Form T), and Court Clinic Information Sheet (LR2-Form U). These and related
supporting documents must be in the required court approved form. Students should become
familiar with all these required forms and documents. Students are also advised that different
judicial districts have their own required forms for different motions that can be found in
Volume 2 of the New Mexico Rules Annotated.
Sample Forms
Sample-Commonly Used Motion Form
A sample of a simple state court motion would be as follows:
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Dianna Montes, Plaintiff
v. CV-2002-0555
Heather Casey, dba Smiley’s Auto Sales, Defendant.
Motion To Amend Complaint
Pursuant to NMRCP, Rule 1-015 (A), Plaintiff, hereby moves the Court for leave to amend her
complaint. As grounds for this motion Plaintiff states:
1. Plaintiff has sought the concurrence of counsel for Defendant to this amendment before
filing this motion. Counsel for Defendant objects to this motion to amend.
2. More than 20 days have passed since the complaint was served and Plaintiff asks for
leave of this court to amend her complaint.
3. In her complaint against Defendant Plaintiff inadvertently failed to allege a cause of
action against Defendant under the Federal Motor Vehicle Odometer Act, 49 USCA Section
2701, et seq. under the Federal Motor Vehicle Odometer Act. Section 49 USCA 2710 (b) grants
state courts concurrent jurisdiction in damage actions for violations of that act.
4. Plaintiff alleges Defendant violated the provisions of the Federal Motor Vehicle
Odometer Act and is entitled to damages under that act.
5. Amendment of Plaintiff’s complaint will serve the interests of justice and will not delay the
proceedings.
Plaintiff respectfully requests the Court to allow her to amend her complaint.
Respectfully submitted,
_________________________
Clarita Nunez
Attorney for Plaintiff
UNM Clinical Law Program
1117 Stanford N.E.
Albuquerque, New Mexico 87131
(505) 277-5265
________________________
Rose Bell
Practicing Law Student
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Certificate of Service
I certify that a copy of this
Request for Hearing was mailed to
Defendant, Heather Casey,
this ____ Day of ______, 2002.
______________________________
Attorney for Plaintiff
Students should note that if the legal research had been done correctly before the
complaint was drafted and filed, this motion to amend the complaint would have been
unnecessary. Students should also note that this type of amendment also uses up a little bit of
good will with the court and opposing counsel. Students might want to give a little thought to the
cover letter that will be sent to opposing counsel when this motion and request for hearing are
mailed.
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STATE OF NEW MEXICO
IN THE SECOND JUDICIAL DISTRICT COURT
BERNALILLO COUNTY
Dianna Montes, Plaintiff
v. CV- 2002-0555
Heather Casey, dba Smiley’s Auto Sales, Defendant.
Request For Hearing
1. Assigned Judge: The Honorable William J. Wise
2. Type of Case Civil Damage Action
3. Jury: Non-jury: X
4. Dates of hearing presently set: __None______________________
5. Specific matter(s) to be heard upon this request: Motion to Amend Complaint
6. Estimated total time required: 10 Minutes
7. Attach separate sheet(s) listing name, firm, capacity, address, and telephone number of all
parties entitled to notice.
_________________________
Clarita Nunez
Attorney for Plaintiff
UNM Clinical Law Program
1117 Stanford N.E.
Albuquerque, New Mexico 87131
(505) 277-5265
________________________
Rose Bell
Practicing Law Student
I certify that a copy of this
Request for Hearing was mailed to
Defendant, Heather Casey,
this ____ Day of ______, 2002.
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______________________________
Attorney for Plaintiff
List of Parties Entitled To Notice
Clarita Nunez and Rose Bell
Attorneys for Plaintiff
UNM Clinical Law Program
1117 Stanford N.E.
Albuquerque, New Mexico 87131
Renee Smith
Attorney for Defendant
5544 Dodger Way
Albuquerque, New Mexico 87119
Students should first note that the Motion to Amend and the Request for Hearing are both
mailed at the time of filing to opposing counsel. It is probably best to mail them immediately
after filing so that opposing counsel’s copy is endorsed, i.e. shows the date of filing with the
court. The last item of note is that students should be realistic in the amount of time requested for
the actual hearing. In this case ten minutes, five for each side, should be more than adequate for
this motion to be argued. Ordinarily, the more time one requests the further a matter is set into
the future on the judge’s calendar. This is due to most judges having a crowded motion calendar.
STATE OF NEW MEXICO
IN THE SECOND JUDICIAL DISTRICT COURT
BERNALILLO COUNTY
Dianna Montes, Plaintiff
v. CV-2002-0555
Heather Casey, dba Smiley’s Auto Sales, Defendant.
NOTICE OF HEARING
A hearing in this case is set before the Honorable William J. Wise as follows:
Date of hearing: _____________________
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Time of hearing: ______________________
Length of hearing: 10 min.
Place of hearing: Second Judicial District Courthouse, 400 Lomas N.W. Albuquerque, New
Mexico
Matter(s) to be heard: Motion to amend Complaint
THE HONORABLE William J. Wise
By ________________________________________
Notice mailed or delivered on date of filing to parties listed on attached sheet.
_________________________________________________________________
Parties Entitled To Notice
Clarita Nunez and Rose Bell
Attorneys for Plaintiff
UNM Clinical Law Program
1117 Stanford N.E.
Albuquerque, New Mexico 87131
Renee Smith
Attorney for Defendant
5544 Dodger Way
Albuquerque, New Mexico 87119
Students should note that the two stamped envelopes addressed to the parties entitled to
notice must be attached to the Notice of Hearing. The envelope must NOT have a return address.
The judge’s clerk or secretary will schedule the hearing, fill in the blank spaces on the Notice of
Hearing, stamp the Court’s return address on the envelope and mail the Notice of Hearing to e
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How to File a Motion and Request a Hearing in the Second Judicial District Court. or The
Zen of Motion Practice in State District Court in Bernalillo County
In the Second Judicial District Court the method for filing, serving and setting the motion
for hearing is set out in local rules LR2-123, LR2-124, and LR2-125. A summary of these steps
follows. Students must become very familiar with the content of these rules.
These steps should be carefully followed when filing a motion and requesting a hearing
in the Second Judicial District Court, Bernalillo County. A similar method may be followed in
other state judicial districts. Students should consult the local rules for each judicial district court
before filing a motion and requesting a hearing.
Pre-Filing Activities.
1. Draft the Motion. Check to see if local rules require a certain form or format for the
particular motion.
2. Get the Motion signed by the student and reviewed and signed by the supervising faculty
member.
3. Make sure all attached affidavits, if any, are signed and notarized and that all attachments
are complete and attached.
4. Make the necessary number of copies. Usually, four copies of each document will be
required. One copy for the client file, one for the client, one for the adverse party, and one extra
copy. Notice that if more than one adverse party is involved in the case or additional parties are
entitled to notice more than four copies are needed.
5. Keep original document on top. Keep all similar documents clipped together. Make
needed copies at the law school. The clerk’s office charges $.35 per page for copies and does not
provide immediate service.
6. Remember all Domestic Relations Motions must also have a Rule 1-099 Certificate, also
known as a SCRA form. See LR2-Form J in Local Rules.
7. Draft and sign an original Request for Hearing Form. See LR2-Form G. Attach a List of
Parties Entitled to Notice to the Request For Hearing Form. It is best for the Request for Hearing
to indicate the dates that the Clinic will be closed for intersession, and request that the hearing
not be set during that time,(unless the client would be prejudiced by the delay in the hearing). It
is important to carefully consider the amount of time that you request for a hearing. Keep in
mind that, in general, the longer the time needed for the hearing, the longer it will take to get
hearing date. However, it is important to estimate as accurately as possible because Judges will
be relying on the amount of time set forth in your Request.
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8. Draft and sign an original Notice of Hearing Form. See LR2-Form H. Note that the
assigned judge’s secretary or clerk will fill in the date and time of the hearing on the form and
also sign the form before mailing it to the parties. Attach a List of Parties Entitled To Notice
sheet to the Notice of Hearing Form
9. Fill out and sign the required Certificate of Service in the lower left-hand corner of the
Motion and the Request For Hearing before making copies. Note: The Certificate of Service on
the Notice of Hearing is completed by the Judge’s clerk or secretary when it is later mailed by
that person.
10. Make the necessary number of copies of the Request For Hearing Form and the Notice of
Hearing Form including attachments.
Original copies of all documents go to the Court file when filed
Keep the originals and copies of each separate type of document clipped together. The court
clerk will ask for each type of document, one stack at a time.
11. Prepare a stamped, self-addressed envelope for each Party Entitled To Notice, including
the UNM Law Clinic. The envelopes should not have a return address in the upper left hand
corner.
12. Draft a cover letter for mailing copies of all filed documents to the adverse party or
attorney, as the rules of service require.
13. You are now ready to drive to the Courthouse and file all these documents with the Court
Clerk
Whew! You are also very tired by now. Filing a motion or a pleading is a very basic legal task.
However, the student has to perform all of these steps correctly or else the Court Clerk will likely
refuse to file the documents and another trip to the law clinic and the Court Clerks office will be
required. Learn to do it right!
14. Check all your work before you drive to the Courthouse. This is a good opportunity to
meet with the supervising professor.
Actual Filing Procedures
15. Go to the Courthouse at 400 Lomas NW to file your Motion at the appropriate Clerk’s
office. Remember domestic relations cases (DR cases) are filed in the Domestic Relations
Division on the second floor of the courthouse. General civil cases (CV cases) are filed with
Civil Division, which is on the first floor. Probate division cases and criminal cases have
different clerks in the same office on the first floor of the courthouse. Juvenile cases are filed at
the Children’s Court, which is at 5100 2d Street. All students should know where these different
offices are located.
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16. When you go to the correct Clerks office, wait your turn and hand the documents to the
Court Clerk one stack at a time. Motion and copies first. Request for Hearing and copies next,
and so on. It is important to be very courteous to the Clerks, even if the clerk is being difficult or
is incorrect on a issue. Not only is this basic human courtesy, but also you should not
underestimate how invaluable a good relationship with the clerks, and the judge’s secretaries can
be to your law practice.
17. The Court Clerk will then take each stack of paper. File stamp the original, keep it for the
official court file, and then stamp and “endorse” each copy. He or she will then return all copies
to you for service and distribution to the file and client. The Court Clerk will then follow the
same procedure with each separate stack of documents.
18. You then take one document from each stack and serve or distribute them accordingly.
19. This is the point when you mail “endorsed” copies of all three different documents to the
opposing party or counsel with the previously drafted cover letter. It is a good idea to send an
“endorsed” copy of the pleadings to your client at this point so that the client’s file is current and
shows the date each pleading was filed. It is also very important that the file copy of all
pleadings be an “endorsed” copy as opposed to an un-endorsed copy.
Warning: If any of this was not done correctly or according to “clerk’s law” some or all of these
steps must be repeated.
A truly professional attorney knows how to do all of this and does it all correctly every time.
A simple pictorial version of all of the above can be found in the last section of the Local Rules
Handbook provided to every student carrel.
Post Filing Activities
1. Once the Motion and supporting documents are filed, the Request For Hearing and The
Notice of Hearing are sent by the court clerk to the assigned judge’s office. The Judge’s
secretary or clerk then looks at the Judge’s calendar and schedules the motion for hearing. That
person then fills out the date and time of the hearing on the Notice of Hearing and a copy of that
notice is then mailed to all persons entitled to notice in the stamped, addressed envelopes.
2. When the Notice of Hearing is received at the Law Clinic the student should then
calendar the matter for hearing, notify the supervising faculty member and client of the hearing,
and then begin to prepare for the actual hearing. If the matter requires an emergency hearing, it is
a good idea to call the judge’s secretary to confer about when the judge may have time for the
hearing. Also, if it seems likely that the hearing would be set during intersession based on the
timing of the motion, it might be a good idea to contact the judge’s secretary and ask them to
take note of the request that the hearing not be set during intersession.
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Form of Papers and Attachments to Pleadings. Students are referred to LR2-118 and LR-119
for the local pleading and form requirements in the Second Judicial District. All students should
know what a signature block is, what signatures must be notarized and about the black ink
requirement.
Federal District Court for New Mexico
FRCP, Rule 7 provides:
Rule 7. Pleadings Allowed; Form of Motions
(a). (omitted)
(b) Motions and Other Papers.
(1) An application to the court for an order shall be by motion
which, unless made during a hearing or trial, shall be made in
writing, shall state with particularity the grounds therefore,
and shall set forth the relief or order sought. The requirement
of writing is fulfilled if the motion is stated in a written
notice of the hearing of the motion.
(2) The rules applicable to captions and other matters of form
of pleadings apply to all motions and other papers provided for
by these rules.
(3) All motions shall be signed in accordance with Rule 11.
(c) Demurrers, Pleas, etc., Abolished. Demurrers, pleas, and
exceptions for insufficiency of a pleading shall not be used.
Local Civil Rules United States District Court District of New Mexico
Local RULE LR-Civ. 7. Motion Practice
7.1 Writing Requirement; Opposition.
(a) A motion must be in writing and state with particularity
the grounds and the relief sought. A party may adopt by
reference another party's motion or other paper by making
specific reference to the filing date and docket number of such
motion or other paper. Movant must determine whether a motion is
opposed. An attorney's motion to withdraw from representation of
a party must follow the procedure provided in D.N.M.LR-Civ.
83.8.
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(b) A motion, response, or reply must include a certificate of
service on each party. The failure of a party to file and serve
a response in opposition to a motion within the time prescribed
for doing so constitutes consent to grant the motion. The
failure to file and serve a reply in support of a motion within
the time prescribed for doing so constitutes consent that
briefing on the motion is complete.
7.2 Unopposed Motions; Case Management Deadlines.
An unopposed motion must be accompanied by a proposed
order approved by each party. A non-dispositive motion which
alters or affects case management deadlines requires approval of
the assigned Magistrate Judge, as provided in
D.N.M.LR-Civ. 16.1.
7.3 Opposed Motions Where Each Party is Represented by an
Attorney.
(a) Movant must file and serve on all parties a copy of the
motion, any brief in support of the motion, affidavits, and
other papers related to the motion. Two copies of a response
that is not filed electronically must be served on the movant.
(b) Except in cases in which filing is accomplished
electronically, upon completion of briefing, the movant must
submit to the Clerk, as a package for transmission to the
assigned Judge, one additional copy of all papers related to the
motion. In all cases, upon the completion of briefing, the
movant must file and serve on each party a Notice of Completion
of Briefing. The Notice of Completion of Briefing must identify
by date of filing and docket number the motion which is ready
for decision and all briefs or other papers which have been
filed relating to that motion.
7.4 Opposed Motions Where Any Party Appears Pro Se.
(a) Movant must request concurrence of each party, at least
three (3) working days before filing a motion. Movant must
recite that concurrence was refused or explain why concurrence
could not be obtained. A motion that omits recitation of a
good-faith request for concurrence may be summarily denied.
(b) In inmate cases, movant need not determine whether the
motion is opposed.
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(c) Movant must file and serve on all parties’ copies of the
motion, supporting brief, affidavits and other papers related to
the motion. The response and reply must be filed and served on
all parties.
7.5 Form of Motion and Related Evidence.
(a) A motion, response or reply must cite authority in support
of the legal positions advanced. Movant's authority may be
submitted in a separate brief filed and served contemporaneously
with the motion.
(b) Movant must submit evidence, in the form of affidavits,
deposition excerpts, or other documents, in support of
allegations of fact.
7.6 Timing of and Restrictions on Responses and Replies.
(a) Timing. A response must be served within fourteen (14)
calendar days after service of the motion. A reply must be
served within fourteen (14) calendar days after service of the
response. These time periods are computed in accordance with
FED. R. CIV. P. 6(a) and (c) and may be extended by agreement of
all parties. If an extension of time is opposed, the party
seeking the extension must file a separate motion within the
applicable 14-day period. An extension of briefing time must not
interfere with established case management deadlines.
(b) Surreply. The filing of a surreply requires leave of the
Court.
(c) Expedited Briefing. When the Court orders an expedited
briefing schedule, briefs and any supporting papers must be
served on each party by the most expeditious reasonable method
of service.
(d) Cases With Briefing Schedule Set by Court (Bankruptcy or
Social Security Appeals). The parties will be given a briefing
schedule by the Clerk or by the Court. Timing of responses and
replies must conform with the briefing schedule unless all
parties agree otherwise.
7.7 Length of Motion and Brief. The length of a motion or, if a
separate brief is filed in support of a motion, the combined
length of a motion and supporting brief, must not exceed twenty-
seven (27) double-spaced pages. A response brief must not exceed
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twenty-four (24) double-spaced pages. A reply brief must not
exceed twelve (12) double-spaced pages.
7.8 Oral Argument.
(a) When Allowed. A motion will be decided on the briefs unless
the Court sets oral argument.
(b) Hearing by Telephone Conference. The Court may permit
hearing by telephone conference. The party requesting a
telephonic hearing must initiate the call and pay the expense.
The requesting party must provide to the Court and all
participants copies of all documents necessary for the hearing.
The documents must be delivered before the hearing by the most
expeditious reasonable method of service.
Withdrawal of Documents. A party may withdraw a document from
consideration by the Court by filing and serving a notice of
withdrawal which specifically identifies the document being
withdrawn. Withdrawal requires consent of all other parties or
approval of the Court.
Bibliography
Pre-Trial Practice
Aspen Publishers, Nonprofit Organization Management: Forms, Checklists, Guidelines, (2d ed.,
Aspen 2001).
Bailey, F. Lee, Fishman, Kenneth J. Criminal Trial Techniques, (Clark Boardman Callaghan
1994).
Carlson, Ronald L., Imwinkelried, Edward J. Dynamics of Trial Practice, (West 1995).
Conte, Alba Attorney Fee Awards, Trial Practice Series (2d ed., West 1993).
Dessem, Laurence Dessem’s Pretrial Litigation, Policy and Practice, (3d ed., West 1996).
Battersby, Gregory J., Grimes, Charles W. License Agreements: Forms and Checklists, (Aspen
2001).
Haydock, Roger S., Sonsteng, John O. Haydock Advocacy –Book 1: Planning to Win: Effective
Preparation, (West 1994).
Haydock, Roger S., Sonsteng, John O. Haydock Advocacy –Book 5: Jury Trials, (West 1994).
210
Haydock, Roger S., Herr, David F., Stempel, Jeffrey, Juergens, Ann and Knapp, Peter B.
Haydock, Knapp, Juergens, Herr & Stempel’s Lawyering: Practice & Planning, (West
1996).
Herr, David F., Haydock, Roger S. Discovery Practice (Aspen 1995).
Price, John R. Price on Contemporary Estate Planning, (2d ed., Aspen 2000).
Lancaster, Walter R. Expert Witnesses in Civil Trials, Effective Preparation and Presentation,
(2d ed., West 2000).
Mauet, Thomas A. Pretrial (4
th
ed., Aspen 1999).
Weisberg, D. Kelly, Appleton, Frelich Susan Modern Family Law, (2d ed., Aspen 2002).
Trial Practice
Gonzales, Richard A., Examination of Witnesses, (Callaghan, 1989)
Imwinkelreid, Edward J., Evidentiary Foundations, (LexisNexis, 2002).
Imwinkelreid, Edward J., The New Wigmare: A Treatise on Evidence (Aspen Law and Business,
2000).
Maloney, Pat Sr., Singer, Arny Trials and Deliberations: Inside the Jury Room, (Clark
Boardman Callaghan 1999).
Mauet, Thomas A. Trial Evidence (2d ed., Aspen 2001).
Mauet, Thomas A., Wolfson, Warren D. Materials in Trial Advocacy (4
th
ed., Aspen 1998).
Mueller, Christopher B., Kirkpatrick, Laird C. Evidence Under the Rules (4
th
ed., Aspen 2000).
Murray, Peter L. Basic Trial Advocacy (Aspen 1995).
Park, Roger C. Trial Objections Handbook, (2d ed., Clark Boardman Callaghan 2001).
Thornton, J. Duke Trial Handbook for New Mexico Lawyers (Lawyers Cooperative Publishing
1992).
William H. Roach, Jr., Aspen Health Law & Compliance Center, Medical Records and the Law,
(Aspen 1998).
Appellate Practice
Aldisert, Ruggero J. Winning on Appeal: Better Briefs and Oral Argument, (Clark Boardman
Callaghan 1992).
211
Berry, Carole C. Berry’s Effective Appellate Advocacy: Brief Writing and Oral Argument, (West
1999).
Clary, Bradley G., Reich Paulsen, Sharon, Vanselow, Michael J. Advocacy on Appeal, (West
2001).
Clary, Bradley G., Reich, Sharon, Vanselow, Michael J. Advocacy on Appeal, (West 2001).
Gaubatz, John T., Mattis, Taylor The Moot Court Book: a Student Guide to Appellate Advocacy,
(3d ed., Michie 1994).
Hornstein, Alan D. Appellate Advocacy in a Nutshell, (2d ed., West 1998).
Hornstein, Alan D. Appellate Advocacy in a Nutshell, (2d ed., West 1998).
Perry, H. W. Deciding to Decide: Agenda Setting in the United States Supreme Court, (Harvard
1991).
Thompson, Mark B. University of New Mexico Institute of Public Law and Services, Appellate
Procedure in New Mexico: Rules Commentary with Forms, (University of New Mexico
School of Law 1976).
United States Court of Appeals (Federal Circuit), Rules of Practice: Federal Rules of Appellate
Procedure, Federal Circuit Rules, Practice notes, Federal Circuit Attorney Disciplinary
Rules, Guide for Pro Se Petitioners and Appellants, (U.S. Court of Appeals for the
Federal Circuit 1998).
212
XIV. Letter Writing
Letters as a Basic Part of Practice
Many law students come to law school with the idea that they will be trial lawyers when
they graduate. The reality is that while most lawyers will try a few cases during their career, only
a few will in fact specialize in trial work. Likewise, when law students arrive in law school the
predominant teaching methodology is centered on use of the appellate case. The reality is that
most lawyers will do very little appellate work during their career and only a few lawyers will
specialize in appellate work. Legal drafting is also thought of as consisting primarily of trial
court pleadings, appellate briefs and other specialized legal documents. Most law schools teach a
great deal about how to draft a good appellate brief, how to draft certain pleadings and on
occasion how to draft selected formal legal documents, such as legal memoranda, wills, deeds,
and contracts. Only a very small part, if any, of the legal education process is dedicated to
improving letter-writing skills. However, all lawyers, no matter what their field of specialty or
type of practice, will write legal letters as a regular and important part of their professional
practice. In fact, for almost all lawyers, legal letters constitute the largest part of their
professional writing. Law students should recognize that legal letters are as important as
pleadings, appellate briefs or specialized documents in modern practice.
The Importance of Legal Letters
Letters are involved in everything a lawyer does. A truly professional lawyer writes high
quality, well-edited, professional letters every time, because he or she understands that effective
letter writing skills are connected to everything he or she does on behalf of a client. Every letter
sent is a professional calling card, and every letter carries a professional message that is
connected to client goals in a given case or legal matter. Letter writing is an important legal skill
that helps define everything a lawyer does. Every case will contain many different kinds of
letters, and all of these letters will be interconnected to the primary purpose of the representation
and advocacy on behalf of the client. Certain letters will also be critical to the case or to a
particular aspect of the case. Accordingly, law students and attorneys need to devote more time,
attention, and effort to the letters they write. Letter writing is viewed as an important legal skill
in the Law Clinic. Students will spend a considerable amount of time drafting and redrafting
legal letters.
In the course of practice, the typical practitioner will write many different kinds of letters.
While all of these letters share certain common conventions as to style and format, each letter
should be viewed as a specific legal document with its own particularized requirements. At the
same time, all letters should be tailored to the larger goals in the client’s case and should fit into
the overall case handling strategy. No letter should be viewed as unimportant or incidental to the
case handling and resolution strategy. The key point is that all letters are important and all letters
within a case are interconnected to everything else in the case.
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List of Common Legal Letters
A listing of the general types of letters that a typical practitioner will write is as follows:
Marketing Letters.
Case acceptance letters.
Case non-acceptance letters.
Referral letters.
Demand Letters.
Representation letters.
Official notice letters.
Opinion letters.
Case progress letters to the client.
Billing letters and statements.
Negotiation letters.
Settlement letters.
Letters containing legal notices or claims.
Legal instruction letters.
Letters to opposing counsel.
Letters to un-represented parties.
Letters to the court or administrative
tribunal.
Confirming letters.
Cover or transmittal letters.
Notice of withdrawal of representation
letters.
Case closing letters.
Specialized letters.
Basic Criteria for Legal Letters
Each of these letters has its own particular role and each is somewhat different. The
student should try to differentiate each general type of letter listed and try to identify the special
substantive requirements involved in each type of letter. Within a case file, all of the different
letters should have a common theme and professional style that is conducive to advancing the
client’s case.
At a minimum, a law student or attorney in preparing a good legal letter, should:
Use proper grammar and spelling.
Give the letter a professional appearance.
Use an appropriate level of formality.
Use simple words rather than complicated words.
Explain terms of art.
Use short paragraphs.
Communicate key thoughts clearly and directly.
Include an appropriate touch of professionalism and diplomacy.
Select words carefully.
Write short letters, rather than long letters.
Organize longer letters in a way that enhances understanding.
Clearly state the purpose of the letter.
Address short-term and long-term professional objectives.
Connect the letter to other letters or activities in the case.
State timelines or deadlines clearly.
Set timelines and deadlines in a reasonable manner and anticipate response times.
Provide legal and factual support for conclusions or opinions.
Clearly identify the primary reader or “audience.”
Anticipate and address all secondary readers or “audiences.”
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Consider and address ultimate, inevitable, accidental, and probable readers.
Use an appropriate “tone” for the immediate purpose, and for the long- term case
handling strategy.
Promote or advance the ultimate or inevitable method of case resolution.
Not send an angry or hostile letter.
Not write anything that will increase or promote hostility or ill will.
Recognize that a letter can be firm, even forceful and still be professional and
diplomatic.
Anticipate the probable or likely emotional and practical responses to the letter
being sent.
Connect the letter to other letters, pleadings, and future procedures in the case.
Recognize that every letter is important.
Avoid form letters.
The Sandwich as a Model for Legal Letters
Everyone likes sandwiches. A simple sandwich is a nice edible ingredient surrounded by
two slices of bread. The better the bread, and the better the main ingredients, the better the
sandwich. A really good sandwich has really good bread and more than one good ingredient. A
truly great sandwich has excellent bread, an excellent main ingredient, very good dressings, and
complementary ingredients. The main ingredients can be sweet, or sour, or sweet and sour. How
ingredients are mixed together can also be very important. The sandwich can serve as a useful
model for the good legal letter. With practice, each successive sandwich and letter can and
should become progressively better. Like the sandwich, a good legal letter should always contain
a good, professionally prepared and arranged series of central ingredients always surrounded by
two slices of bread.
The top slice of bread should include:
1. A correct salutation,
2. An appropriate, context correct, diplomatic, never hostile or angry, professional,
introductory sentence or two,
3. A short direct statement of the letters purpose or purposes, and
4. If necessary, a statement that places the letter in short-term or long-term context.
The top layer of bread or introductory paragraph of the letter is critical. It sets the tone,
style, and context for everything that follows. If it is bitter, hostile, or angry, one can almost
guarantee the emotional and practical response that will accompany the reading of the following
paragraphs. Except in very rare circumstances, the professional letter should always start with a
courteous, diplomatic, maybe even friendly, introduction. If a bitter or unwelcome message must
be delivered, it should be moved to the center or “meat” part of the sandwich. A complex or long
letter might even have a sort of list or index of items to be discussed in the first paragraph or two
to help the reader organize his or her reading and reception. Unless the top layer of the letter
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requires any additional positive garnish, one can then move quickly to the “meat” or main
ingredients of the letter.
As in a true sandwich, the “meat” or heart of the letter, is the important part. This is the
whole purpose of the letter. The central message should be clear, concise, well organized, and
legally or factually justified. The central message must be unambiguous. State exactly what you
mean to convey, without being brusque or hostile. While one may want to temper how
something is said, the emphasis should be on making sure the reader clearly understands the
message and hopefully agrees with the message. There should be a consistent tone in all parts of
the letter including the opening paragraphs and the central message.
A common failure in legal letters is that the message, request or demand in the letter is
clear, but the “why” or reasoning is left ambiguous. Many legal letters fail to factually or legally
justify a given conclusion or position. If your message depends on facts, then the facts need to be
stated or proven. As long as facts can remain “disputed” or “unclear,” the reader can stay outside
the reach of your logic or conclusion. If the stated facts depend on an outside source or
document, furnish the source or document as an attachment or exhibit to the letter. If your
position or conclusion depends on law or rules, furnish the law or rules in the letter, preferably
by direct quote or attached copy rather than by citation only. The justification for each
conclusion or assertion should be self-contained within the letter. An attorney reader may
understand or know the legal citation, but an important secondary reader may benefit by reading
the legal authority directly. Finally, if the mission of the letter is to be persuasive, it should be
written much as an appellate brief is written. The persuasive points should be organized and
contained within the body of the letter.
If more than one matter is to be discussed, organization becomes very important.
Generally, items within a letter should be organized in a chronological, logical or in a simple to
complex order. Similarly, if it is clear that certain items will be favorably received and others
less favorably received by the reader, then the more favorable ones might be discussed first. In
general, it is best to start from agreement and then move towards areas of disagreement. This will
order the nature of the response and narrow the areas of disagreement.
If there are “hot-button” types of items that will clearly provoke a strong emotional
response these should clearly be discussed last or as separate items in a separate letter. If an item
is truly “hot-button,” then perhaps the item should be discussed in several letters, with several of
the early letters being warm-up or educational letters. One last comment on including difficult or
“hot-button” items is that the student should remember that angry or hostile letters produce
predictable angry or hostile responses. Once a party is angry or hostile, it is more likely that that
party will become obstinate or remain hostile as a matter of principle. This is one of the reasons
one never sends an angry or hostile letter. A truly professional lawyer does not provoke anger or
hostility. One can be firm and clear and still be courteous and diplomatic. Chest pounding by an
attorney within a letter for the benefit of a client is a common form of un-professional conduct
by attorneys. Clinic students routinely see it in response letters from opposing counsel. A
courteous professional letter, which is sent when an angry letter is expected, can sometimes
produce surprising results. Lastly, any timelines or deadlines need to be stated clearly and
unambiguously. The student should carefully organize the central text of every letter.
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The last part of the sandwich is the bottom slice of bread. Like the top slice of bread, this
slice needs to always be as courteous, diplomatic, and as positive as possible. The closing in the
letter should invite and facilitate a positive response. If it is clear that the response will involve
some disagreement, then the letter should propose or suggest more correspondence or some
means of resolving the anticipated differences or disagreements. If response time is important,
this should be stated within the letter, including why a prompt response is required. The closing
of the letter should also remind the recipient of future events or activities and should set the stage
for the next legal or logical step in the proceedings. The closing of the letter should advance the
overall tone or purpose of the letter and facilitate resolution or completion of the case in a
professional manner.
Hopefully, every letter written will be like a well-made sandwich, if not tasty, at least
palatable and well received. Which is the better sandwich, pastrami with mustard, plain corned
beef, or avocado bean sprouts and tomatoes? The real answer lies with the person who consumes
the sandwich or receives the letter. Students should also consider the fact that copies of most
legal letters in a case are routinely sent to the client on both sides of the case. This standard
practice presents certain challenges and opportunities for the writer.
Multiple Audiences and Legal Letters
A major consideration in writing legal letters is the question of who will read the letter
being written. The question of audience involves not only the addressee, but also a natural and
inevitable audience, a possible ultimate audience, and sometimes a surprise audience. Most
lawyers write letters as if the addressee will be the only person who will ever read the letter. The
assumption seems to be that some large net of confidentiality surrounds legal affairs, and that
only persons directly involved will read a particular piece of correspondence. The reality is that
many people beyond the addressee read the typical piece of legal correspondence.
In most legal situations almost every letter must be read by layers of people beyond the
addressee, and in some situations even the most privately intended letter will be read by a
surprise audience. This reality should influence how attorneys write letters. Every letter should
be written with the assumption and understanding that many persons, maybe even un-expected or
un-authorized persons, will read the letter at some time. If a matter is truly sensitive, one should
either take very careful precautions to insure confidentiality or very often not send the letter at
all. Students should be aware that many a future case or motion will be based on a poorly drafted
letter.
The Natural and Inevitable Audience
Tracking a series of hypothetical and common legal letters will illustrate the point. A
common letter most attorney’s send is the demand letter. It is typically written to a lay-person,
provides an introduction, states the representational capacity, refers to the legal incident, states a
few facts, reaches a general legal conclusion and then demands some sort of legal relief,
typically money. The demand letter is typically brief, states that the addressee is liable (e.g.
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“negligent”), and asks for payment of some sum (e.g. $50,000) by a certain date (e.g. 10 days)
and then threatens legal action if no response is received.
Once the demand letter is received, the issue of audience starts to play out. The typical
layperson is probably surprised and upset to receive a demand letter, especially since they wish
to debate the underlying facts and legal conclusions and furthermore, do not generally have
$50,000. This is where the path of the letter becomes interesting. The typical layperson receiving
a demand letter will probably show the letter to wife, family, and friends, while expressing
predictable outrage. Each of these persons beyond the addressee will then read the letter, express
some level of empathy, reach some sort of independent conclusion, and then possibly give some
type of advice to the addressee on how to proceed. But since the addressee does not usually have
the $50,000, and humans do not like to easily part with their money, the most likely first, legally
important reader of the demand letter will likely be a fellow attorney. This is not to say that the
other casual readers are not forming possible important impressions about the professionalism of
the writer. Some of these casual readers might even turn out to be future witnesses.
The important point for the writer of the demand letter is that the first legally important
reader of the letter will be the soon to be “opposing counsel.” The angry addressee will likely go
see an attorney and hand the letter over for evaluation and advice. He or she will be a much more
sophisticated reader. He or she may even know the author from previous cases. The new attorney
reader will see through all of the nice sounding, “chest pounding” rhetoric the first lawyer put in
the letter (mostly to please the client), the weak, un-substantiated or debatable facts, and the
quick and un-justified legal conclusions in the letter. The attorney reader may even want to
“quibble” with the accuracy or reasonableness of the amount demanded. The fact that an
attorney, known or un-known, will probably review a demand letter is very predictable. The
reality is that the initial addressee, all the early informal readers, and the first attorney will all
read the demand letter.
First impressions on the merits of the case, the writer’s client, and the competency and
professionalism of the writer are very important moments in a developing case. Who knows, if
the letter is well written, the facts are substantiated or justified, the law is stated correctly, and
persuasively, the amount demanded is indeed reasonable, and the right amount of persuasion,
logic, and professionalism are mixed in the demand letter, and even if the new “opposing
counsel” is disposed to be “ difficult,” one could have that once in a life-time experience where
the $50,000 check is “in the mail”. Return mail that is.
No matter how speculative this last scenario may be, it is very clear what type of
impression and response will result if the demand letter contains spelling errors, grammatical
errors, incorrect facts and faulty legal reasoning. The student should remember that every letter is
a professional calling card and that multiple audiences read legal letters.
Using the same demand letter as an example, a consideration of the inevitable audience
requires the attorney to recognize that in most financial liability situations an insurer may be
involved as an early reader of this simple demand letter. This adds a new level of sophistication
and experience to the audience of inevitable readers and such raises new issues for the writer
such as policy coverage and policy limits. The more money one demands or the more novel the
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client’s claim is the more levels there are for review of the letter. This in turn results in the
creation of more initial and possibly lasting impressions.
In an insurance situation, it is almost certain that the insurer and its various claims agents
will have the final decision on whether a case is settled or tried. This insures that every letter,
pleading and document written on behalf of an injured client will be closely read by various
insurance company executives as a matter of course. While insurance agents in Albuquerque
may be somewhat forgiving of poorly drafted letters and pleadings, the agents in Chicago will
probably have a more national and critical perspective. What all of this teaches, in addition to
writing correctly and accurately, is that an attorney must write for several audiences in the same
demand letter. While the initial addressee may be the intended audience of the letter, the really
important audience for the letter may be the new “opposing counsel” or unknown, but very
experienced and critical insurance executives in Chicago. The student must also recognize that if
the case is litigated, all future correspondence and pleadings must be written with this multiple
audience consideration in mind.
The Potential Impact of Automatically Sent Copies
The standard practice of attorneys routinely sending carbon copies of virtually all legal
correspondence to their client not only compounds the multiple audience situation, it also creates
new audience opportunities for the legal writer. As each new letter is sent it is “shared” again and
again, as discussed above, with the same ripple effect. This allows the writing attorney to address
indirectly, and often very directly, the important audience he or she cannot write directly for
ethical reasons. This secondary audience may even be entirely unknown, but it may also be
amenable to different or more sophisticated forms of persuasion and logic than the primary or
screening audience. Usually in multi-audience situations, each successive reader has some voice
or authority in the matter. The writer of a legal letter should be aware of this and use it to
advance his or her client’s case and cause. Some more sophisticated or controlling clients will
even require their own counsel to send them copies of all correspondence and pleadings. This
natural or required mailing of copies then allows the writing attorney to craft a letter that appeals
to multiple audiences in slightly different and even incremental ways. The assumption should be
that every legal letter is read by successive numbers of readers and the letter should be crafted
accordingly.
The Problem of Surprise or Future Audiences
A related matter is the question of future or maybe even surprise audiences. Many an
attorney has written a hasty or poorly drafted letter only to be surprised later on when a judge,
jury, or outside party is called upon to discern its meaning or purpose. A good example of this is
what one may call the official “notice” letter. Every attorney has to write letters that notify
someone of a claim, makes an important factual or legal assertion, starts a time period running,
announces representation, or otherwise makes a legally relevant point. Many times the attorney
writing this type of letter never even thinks that a judge or jury will ever see the letter or that it
may become important to the outcome of the case. Surprise, three years later for some legal
reason the letter becomes relevant to some legal or procedural issue in the case, and there is that
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poorly written, poorly thought out letter in front of the judge or the jury. Maybe the judge or jury
will be forgiving or maybe aided by opposing counsel they will read the ambiguity your way,
and maybe that poor professional impression the letter gives will not be a big factor.
Every legal letter should be written with the possibility in mind that a future judge or jury
may be called upon to read the letter. Attorneys who work on truly important cases and matters
should also be aware that future historians or legal scholars might also not be understand or be
forgiving. Every letter should be written and sent with the understanding and assumption that
many persons beyond the addressee will read and review the contents of the letter. A good
lawyer should never be surprised or have to apologize or explain away what he or she has
previously written. This applies with double force in the cyber space world of e-mail.
One last example of the importance of letters is that within the Law Clinic, certain
professors have learned that when a student submits a poorly drafted or poorly planned letter for
review, a good teaching device is to mail an unedited copy to a new audience of parents, spouses,
and prospective future employers. Hopefully, all students will recognize that letter writing is an
important legal skill and all letters will be professionally written and this last audience will never
be addressed. Students should think before they write and should craft every letter.
Bibliography
Banker Hames, Joanne, Ekern, Yvonne Legal Research, Analysis, and Writing: an Integrated
Approach, (Prentice Hall 2000).
Block, Gertrude Block’s Effective Legal Writing For Law Students and Lawyers, University
Textbook Series (5
th
ed., Foundation 1999).
Charrow, Veda, Erhardt, Myra K., Charrow, Robert Clear and Effective Legal Writing, (3d ed.,
Aspen 2001).
Cohen, Morris L., Olson, Kent Cohen and Olson’s Legal Research in a Nutshell, Nutshell Series
(7
th
ed., West 1996).
Dahl, Henry S. Dahl’s Law Dictionary: Spanish-English/English-Spanish: an Annotated Legal
Dictionary, Including Authoritative Definitions from Codes, Case Law, Statutes, Legal
Writing, and Legal Opinions of Attorneys General =Diccionario Juridico Dahl, (3d ed.,
Hein 1999).
Dickerson, Darby Association of Legal Writing Directors, ALWD Citation Manual: A
Professional System of Citation, (Aspen 2000).
Enquist, Anne, Currie Oates, Laurel Just Writing: Grammar, Punctuation, and Style for the
Legal Writer, (Aspen 2001).
Fajans, Elizabeth, Falk, Mary R. Scholarly Writing for Law Students: Seminar Papers, Law
Review Notes, and Law Review Competition Papers, (West 1995).
220
Fajans, Falk, Richard A. Fajans and Falk’s Scholarly Writing for Law Students, (West 1995).
Faulk, Martha, Mehler, Irving M. The Elements of Legal Writing, (Macmillan 1994).
Haggard, Thomas R. The Lawyer’s Book of Rules for Effective Legal Writing, (Rothman 1997).
Johnson, William A. et al, The Criminal Justice Student Writer’s Manual, (Prentice Hall 1999).
Leal, Heather Harvard Law School Board of Student Advisers, Introduction to Advocacy:
Research, Writing, and Argument, (6
th
ed., Foundation 1996).
LeClercq, Terri Expert Legal Writing, (University of Texas Press 1995).
LeClercq, Terri Guide to Legal Writing Style, (Brown 1995).
Ray, Mary Barnard, Ramsfield, Jill J. Legal Writing –Getting it Right and Getting it Written, (2d
ed., West 1993).
Reid, Teresa J., Pflaum, Leanne J. Legal Writing by Design: a Guide to Great Briefs and Memos,
(Carolina Academic Press 2001).
Rombauer, Marjorie Dick Legal Problem Solving: Analysis, research, and Writing, (5
th
ed., West
1991).
Shapo, Helene S., Walter, Marilyn R., Fajans, Elizabeth Writing and Analysis in the Law, (4
th
ed., Foundation 1999).
Siviglia, Peter Writing Contracts: a Distinct Discipline, (Carolina Academic Press 1996).
Statsky, William P. Legal Research and Writing: Some Starting Points, (4
th
ed., West 1993).
Statsky, William P., Wernet, John R. Case Analysis and Fundamentals of Legal Writing, (4
th
ed.,
West 1995).
Weinhofen, Henry, Legal Writing Style, (West 1980).
221
XV. Practicing Family Law in the Second Judicial District of New Mexico
This section provides some basic instructions for practicing Domestic Relations in the
Second Judicial District of New Mexico. It does not provide detailed substantive instruction in
family law, nor does it address the many important psychological or emotional issues that arise
in family law cases, especially those cases involving domestic violence. Rather, this section is
designed as a guide to the relevant provisions of the domestic relations laws, and to provide
some basic instructions for starting and pursuing domestic relations cases in our local district
court, the Second Judicial District. This section explains the papers that must be filed by a
married couple seeking dissolution of their marriage, or persons seeking resolution of parentage
and child support issues. It also provides an outline of how a typical domestic relations case
proceeds. At the end of the section is a chart outlining the basic flow of a domestic relations case,
and some sample legal forms that may be used as a starting place for the development of
appropriate pleadings and motions in domestic relations cases.
Cases Involving Domestic Violence
Domestic violence is involved in many family law cases. These cases require special
attention for the safety of the client, and sensitivity to issues surrounding domestic violence.
Where a client reports that domestic violence has recently occurred, or that he or she is in fear of
domestic violence, the client can seek a Protective Order under the Family Violence Protection
Act, §§ 40-13-1 NMSA, et seq. The Second Judicial District has a special Domestic Violence
office on the second floor of the Courthouse, which is designed to assist pro se parties in filing
and serving Petitions for Orders of Protection. The clerks in the Domestic Violence Branch will
provide all of the necessary forms. Samples of the forms are included in the Forms Section of
this Manual, and you may want to review them with the client, however, it is best to use the
forms provided at the Courthouse.
If the client seeks a Protective Order, a Petition for a Temporary Order of Protection from
Domestic Abuse must be filed in the Domestic Violence office. The client must be able to show
in the verified Petition provided by the clerks in the Domestic Violence office that domestic
abuse has occurred. The client must be sure to bring picture identification so that the Petition
can be notarized by the domestic violence clerks. There are usually no filing fees, and any fees
can be waived by the court upon motion.
The Family Violence Protection Act defines domestic abuse rather broadly, and includes
any incident resulting in severe emotional distress, threats causing imminent harm, stalking,
harassment and other injuries, which are specifically set forth in the statute. See § 40-13-2 C
NMSA. The Domestic Violence Commissioners generally require that the incident of domestic
abuse occurred within thirty days prior to the Petition. Special Domestic Violence
Commissioners review the initial applications for Temporary Orders of Protection. They also
preside over the hearings where requests for extensions of the Orders are presented.
Upon the filing of the Verified Petition setting forth the allegations of domestic abuse, the
Domestic Violence Commissioner will issue a Temporary Order of Protection and Order to
Appear. The Temporary Order will set a date within approximately 10 days for a hearing to
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decide whether the Order should be extended. Following the issuance of the Order, the domestic
violence clerks will prepare a folder with the signed Order, which must be filed in the Domestic
Relations Clerks office, where copies are made. Then, one copy must be taken to the Sheriff’s
Office at 400 Roma NW, to be served on the Respondent. There are no fees required to have the
sheriff serve the Order once it is issued. § 40-13-3.1 NMSA. At the hearing that is held
approximately ten days from the issuance of the Temporary Order of Protection, commonly
referred to as “the ten day hearing,” the Petitioner must present evidence demonstrating that an
act of domestic abuse has occurred. While the hearings are somewhat formal and, technically,
the Rules of Evidence apply at those hearings, the Domestic Violence Commissioners will
review police reports without the police officers present. The Domestic Violence Commissioners
also look at the criminal histories of both parties at the time of the hearing.
If, at the ten day hearing, the Domestic Violence Commissioner finds that an act of
domestic abuse has occurred, an Order of Protection will be issued ordering the respondent to
refrain from abusing and to stay away from the petitioner or any other household member. The
Court may also grant sole possession of a residence, award temporary custody of children and
other necessary relief. § 40-13-5 NMSA. The Protective Order can last for up to six months, and
can be extended for up to an additional six months, upon a showing of good cause. § 40-13-6
NMSA. Some Commissioners have extended the stay away portion of the Protective Orders for
up to three years.
In cases involving domestic violence, it is important to consult frequently with the faculty
supervisor, and inform the client of the resources available in the community, including the
shelters, counseling services and advice regarding public benefits. Some of the resources are
listed in the “Referrals” section of this Manual.
Actions for Dissolution of Marriage or Separation
Starting an Action for Dissolution of Marriage or Separation
This section will first list the papers that must be filed to initiate an action for divorce,
separation, or custody of children. It will then discuss some of the essential elements of the
Petition, where the forms need to be filed, and some common issues regarding service of process.
The following forms must be filed to initiate a domestic relations action for divorce,
separation, or custody of children. Samples of some of these forms are included at the end of this
section. The approved Court Forms (marked with an asterisk) are Forms that are included in the
New Mexico Rules of Civil Procedure and can be found on the New Mexico Supreme Court
website at http://www.supremecourt.nm.org/
1. Petition for Divorce, Separation, or Custody
2. Domestic Relations Information Sheet (Civil Form 4A-101)
3. Domestic Relations Cover Sheet (Civil Form 4A-101(required by Rule but yet not by
clerks)
4. Summons (Civil Form 4-206)
5. Temporary Domestic Order (Form 4A-112)
6. Filing fee (currently $137 call clerk’s office to verify); or
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a. Motion to Proceed Without Costs (LR2-Form A)
b. Affidavit of Indigency (LR2-Form B).
c. Attorney’s Affidavit (LR2-Form C) (Note that clerks require this form to be
notarized, even though it does not appear to be required by the Form)
d. Proposed Order (LR2- Form D)(note that the presiding Judge of the Second
Judicial District requires a specific form that includes option of requiring $30 fee
for Court Clinic)
e. Rule 99 Certificate (commonly referred to as a “SCRA”)
7. In cases of Domestic Violence, you should consider filing a Motion to Seal the Address
of the client in order to protect the client.
The Petition
While actions for separation, divorce, and child custody can be very different in terms of
the relief sought, they must all contain some of the same elements. This section will go over the
basic elements of a Petition for Dissolution of Marriage involving children. An action for
separation, or for child custody should follow the same basic form omitting the sections that are
not relevant. So, if the parties are not married, the appropriate Petition would be a Petition for
Child Custody. Along with the basic allegations regarding the names of the parties to the suit, the
Petition should include allegations regarding the following issues:
Jurisdiction. The Petition must allege Court has jurisdiction. In actions for separation or
dissolution of marriage, the allegation will be that one of the parties has resided in the state for at
least six months prior to the filing of the Petition § 40-4-5 NMSA. Child custody jurisdiction is
controlled by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). For
initial jurisdiction, see NMSA. § 40-10A-201.
Venue. The Petition usually alleges that venue is proper because one of the parties or the
children reside in the County where the action is filed.
Grounds for Dissolution of Marriage. The grounds for the dissolution of marriage are set forth
in § 40-4-1 NMSA, and include the allegation that the parties are “incompatible.” While some
clients may want to include other grounds, such as adultery or cruel and inhuman treatment, it is
the very rare case in which it is advisable to include such an allegation, because these allegations
are inflammatory and make it more difficult to resolve other issues. Even in the very rare case
where the client insists on including the allegation (usually for religious reasons) it is advisable
to also include the no fault ground of incompatibility so that there does not have to be a trial on
the issues of adultery or cruelty should the parties be unable to reach an agreement.
Legal Custody of Children. There is a strong presumption in New Mexico that joint custody is
in the best interests of children. § 40-4-9.1 NMSA. The presumption can be overcome by the
factors set forth in § 40-4-9.1 NMSA. One of the factors that may overcome the presumption of
Joint Custody is a judicial adjudication of domestic abuse. The facts supporting the contention
that the presumption of joint custody should be defeated must be alleged in any Petition for sole
custody. The facts must be pretty dramatic to make it worth filing for sole custody if sole custody
will be contested by the other parent. Requests for sole custody should be carefully reviewed
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before filing. Petitions filed by grand parents seeking custody must allege that the parents are
unfit.
Timesharing and Visitation. A timesharing or visitation schedule must also be developed in
order to resolve the custody issues. These issues are generally resolved in a Parenting Plan that
may be incorporated by reference into the Petition. It is a good idea to develop a Parenting Plan
as soon as possible in a case, but, commonly, Parenting Plans are developed after the Petition is
filed, and are attached to the Final Decree. The Court Clinic Guidelines, available in the clinic,
should be reviewed in developing an age appropriate Parenting Plan.
Child Support. In most cases, the Petition will allege that child support should be awarded in
accordance with the Child Support Guidelines set forth in § 40-4-11.1 NMSA. If the Petitioner is
seeking deviation from the Guidelines, the Petition must set forth good cause for the departure.
Division of Property, Debts and Taxes. All property must be divided at the time the Final
Decree of Divorce is entered. Therefore, all property and assets must be addressed in the
Petition. The Petition should list all separate and community property and debts, including any
interests in retirement accounts or other funds. Taxes, the issue of who will get to claim the child
as a dependent, and any outstanding tax refunds should also be addressed. The proposed
distribution of property and debts should be as specific as possible at the time of filing to
increase the chances of settlement and to simplify the award of relief in the event that the
Respondent defaults. The distribution of property may also be resolved by a Marital Settlement
Agreement, which can be incorporated by reference into the Petition. A Marital Settlement
Agreement must be notarized by both parties, and included in the Final Decree of Dissolution of
Marriage.
Request for Restoration of Former Name. If the Petitioner has changed her name and seeks
restoration of her maiden name in the proceedings, she should request this relief in the Petition.
Filing the Petition
Petitions for Dissolution of Marriage, and the other necessary documents must be filed in
the Domestic Relations Branch of the Second Judicial District Court at 500 Lomas. It is
important to take enough copies so you have a copy for the clinic records, a copy for your client,
and a copy to be served on the opposing party. The Summons and Temporary Domestic Order
should be presented the Clerk at the time of the filing, but will be technically “issued” by the
Clerk.
In cases where it is necessary to file a Motion to Proceed without Costs, the Court does
not actually permit the filing until there has been a ruling on the Motion. It is best to show the
documents to a Clerk in the Domestic Relations Division. The Motion to Proceed without Costs
and the Petition must then be left in the In Box for the Presiding Judge of the Domestic Relations
Division, which is currently Judge Deborah Davis Walker. The In Boxes for the Domestic
Relations judges are located in the reception area for Domestic Relations Court on the second
floor of the District Courthouse. Be sure to keep a copy of the documents that you leave in the
judges’ inbox. It is not uncommon for documents to be misplaced.
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Service of the Petition and Summons
In domestic relations, it is particularly important to carefully consider the time and
manner of service of process. The emotional impact of service of legal papers should not be
underestimated. In cases involving domestic violence, it is vital to make sure that, to the extent
possible, your client is in a safe place when the papers are served. In cases involving children,
where possible, it is best not to serve a party during his or her period of responsibility for the
children. It is also important to consider the impact of service on any settlement discussions. In
some cases, the opposing party may agree to the requested relief, and service can be waived.
However, it is also important to get papers served as soon as possible so that the matter can
proceed during the short clinical semester.
The legal requirements for service in a domestic relations case are the same as in any
civil case in New Mexico. The service of process must be in compliance with Rule 4 of the New
Mexico Rules of Civil Procedure. Other than the standard Summons form listed above, there are
several different forms for service of process which can be found in Civil Forms, Form 4-207,
Form 4-208 or by an “Acceptance of Service” form, available in the brief bank.
Some important jurisdictional issues arise where it is not possible to secure personal
service. While the state of New Mexico has jurisdiction over the marriage of anyone who has
lived in New Mexico for six months, the courts have more limited jurisdiction over assets or
child custody, where there has not been personal service.
Interim Relief
Parenting Plans and Referrals to the Court Clinic
Parenting Plans address the details of sharing children in cases involving custody of
children. If parties are not able to agree on a Parenting Plan, 30 days after the service of the
Petition, or “promptly upon learning of any dispute over any child related issue” (other than
Child Support) the parties must present a proposed order to the assigned judge referring the
matter to the Court Clinic. (LR2-504 NMRA, LR2- Form T). Because of these rules, and because
it is usually best to resolve parenting matters without court intervention, it is advisable to work
with the client to draft a proposed Parenting Plan as soon as possible in the case. The preparation
of a detailed proposed Parenting Plan can avoid disputes over theoretical disagreements and help
parents to focus on the logistics of sharing their children. There is a court approved form for Pro
Se Parties set forth in Domestic Relations Forms 4A-331 which can be a good starting point for a
Parenting Plan, but does not provide many details about transfers of children, timing and other
practical matters. The more detail that is included in the Parenting Plan, the more certainty it
provides for the parents and the children. A sample parenting plan is also attached at the end of
this section (p.243).
If the parties cannot agree upon a Parenting Plan, the matter will be referred to Court
Clinic or for settlement facilitation as discussed in the Section on Court Clinic Process for
Domestic Relations Cases involving Child Visitation and Custody. Even where a party seeks
interim relief from the Court regarding parenting issues, the matter is likely to be referred to
Court Clinic for mediation.
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If the parties cannot reach an agreement in Court Clinic, on either short term or long term
parenting issues, then the matter is likely to be set for an Advisory Consultation. The Advisory
Consultation will become the Order of the Court if no objection is filed within eleven days. If an
objection is filed, the person filing the objection is well advised to get a second opinion, and it
can be an uphill battle to overcome a negative court clinic recommendation. Thus, if the parties
are unable to agree, either a court clinician, or a judge, will make decisions about the intimate
details in the parties’ lives, including where and when they pick up their children. It is therefore
important to work diligently to encourage the client to develop a reasonable Parenting Plan, and
to negotiate in good faith throughout the process.
In cases involving domestic violence, the Court Clinic has protocols to protect the parties
and the children. It is critical to provide the client with a copy of the domestic violence protocols.
While attorneys are not permitted to participate with the client in the Court Clinic meetings, it
may be advisable to go to the first scheduled meeting to make sure that the domestic violence
protocols will be used.
Keep in mind that the Court Clinic relies on Time Sharing Guidelines based on a concept
of age appropriate contacts. While there are experts who dispute the scientific validity of the
guidelines, they are an objective framework that may be constructive in the negotiation process.
Brochures describing the Court Clinic Guidelines and the protocols for Domestic
Violence cases are available in the Law School Clinic.
Financial Relief
Once a Petition is filed, either party can file a Motion for Interim Relief. Issues regarding
interim financial relief are likely to be heard by the Child Support Hearing Officers. Clinic
clients typically have few assets, so most interim issues revolve around temporary division of
income and expenses. Absent “exceptional circumstances” community income and expenses will
be divided equally between the parties during the pendency of the case, under Rule 1-122 of the
Rules of Civil Procedure. It is important to fill out the “Interim Monthly Income and Expenses
Statement” (Domestic Relations Form 4A-121 NMRA) as completely as possible before filing
the Motion, because the amount of interim “relief” may not be as high as the client’s income
before all of the expenses are included. The Statement must be completed and provided to the
opposing party or attorney, five days before the hearing under Rule 1-122 of the Rules of Civil
Procedure, NMRA.). The Court will, generally send out a notice of the hearing on the interim
issues in a form substantially similar to the form set forth at Domestic Relations Forms 4A-
121NMRA). It is very common in the Second Judicial District for judges to require the parties to
“meet and confer” one hour prior to the hearing.
It is very important to counsel the client that the amount of interim financial relief
awarded by a judge may be very different from the amount awarded in the Final Decree. The
amount of interim relief is determined according to a very different formula from the child
support guidelines.
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Sometimes it can be very difficult to get accurate or reliable information from the other
party about income, assets, and debts. Even though parties are required to provide the
information five days before the hearing, and the parties are supposed to “meet and confer,” pro
se parties often fail to provide the information in a timely manner. While it may be possible to
delay the filing of a Motion for Interim Relief until discovery methods produce necessary
information, it is also common to have to proceed to the hearing without full and accurate
information. Under those circumstances you may request that the Judge or Hearing Officer reset
the hearing and direct the opposing party to provide accurate and reliable information.
Discovery
Formal discovery may be necessary to get information about the income, assets, and
debts of the parties. Discovery may also be necessary to get detailed information about parenting
issues. Methods of discovery are beyond the scope of this section, but if the opposing party is not
forthcoming with information, it may be necessary to serve the party with interrogatories.
Another relatively inexpensive form of securing information is to Notice a Videotape deposition
and issue a Subpoena Duces Tecum. These issues should be discussed with your supervisor.
Requesting a Trial and the Necessary Exchange of Information
Most cases settle without a hearing or trial. Domestic relations cases are no exception. As
discussed in the section on ADR it is almost always in the interest of the parties and the children
to settle. However, there may be cases in which the parties cannot agree, and it is in the client’s
interest to request a hearing on the Petition. The Request for a trial setting is usually made by
filing a Request for Hearing for a Trial on the Merits. The Court may set a Pretrial Scheduling
Order. However, in the absence of a Order, if the parties have not already done so, five days
before the trial, the parties must exchange Child Support Worksheets (discussed below), and
Community Separate Property and Liabilities Schedules in accordance with Rule 1-123 on
Forms 4A 131, and 4A 132. In cases where a trial is likely, it may be advisable to file a Motion
Requesting a Pretrial or Settlement Conference to help narrow or clarify the issues to be tried.
As discussed above, when there are unresolved parenting and custody issues, the
Advisory Recommendations of the Court Clinician will have a great deal of weight in the case at
trial. Therefore, if the recommendations are not favorable to the client, then it will be vital to
have expert testimony in support of your claim that the recommendations are not in the best
interest of the child. Experts who work with the client at the community sites, such as Peanut
Butter and Jelly Family Services, and FOCUS, can be a good source for qualified experts where
clients have very limited resources and cannot afford the hundreds or thousands of dollars it
costs to secure an expert evaluation and opinion.
Even if the parties cannot reach agreement on all issues, it is advisable to reach
agreement on as many issues as possible. A Trial Memorandum outlining the theory of the case,
the relevant facts and law should be prepared. A proposed resolution of the remaining issues
should also be prepared. So, for example, if the parties are not able to reach agreement on which
parent will get to reside with the children, it would be a good idea to prepare a proposed
Parenting Plans that would suit the client’s need in the case of a ruling in the client’s favor, as
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well as a Parenting Plan that would suit the client’s needs in the event the court rules that against
his or her request.
Generally, the prevailing party will be directed to prepare a proposed Final Decree,
approved as to form by opposing party, for the Judge’s signature within 10 days after the hearing
pursuant to LR2-129.
The Final Decree
Any time a marriage is dissolved, a Final Decree of Dissolution of Marriage must be
entered by the court. While each judge has his or her own preferences regarding the form of the
Final Decree, the general practice is to prepare each of the following documents separately.
Final Decree of Dissolution of Marriage
The Final Decree of dissolution of marriage must address every issue raised by the
Petition, and all issues must be resolved prior to the entry of the Decree. There are very rare
cases in which a Court might consider granting a divorce prior to the dissolution of the marriage,
but that is very rare, as judges prefer to use the parties desire to dissolve their marriage as an
incentive to resolve the remaining issues. In child custody cases where the parents are not
married, an Order Awarding Custody and Timesharing is likely to be issued, and neither the
Marital Settlement Agreement nor a QDRO would be necessary, but otherwise, the final
documents are similar. Generally, a Final Decree will incorporate the following documents by
reference. For an example, see Forms 4A-341 and 342 of the New Mexico Rules of Civil
Procedure.
Marital Settlement Agreement
The Marital Settlement Agreement (MSA) must address all property and debts of the
parties, both community property and separate property. It should list all assets and debts fully,
and provide significant identifying details regarding each asset and liability, to avoid any future
confusion, and to protect the clients from future allegations that certain property was or was not
disclosed by the other party. Taxes, issues of who will claim any child as a dependent, and
apportionment of any outstanding tax refunds should be addressed in the Marital Settlement
Agreement. The Rules of Civil Procedure provide basic forms that can be used as starting places
for drafting appropriate Marital Settlement Agreements. (See Form 4A-311 and 4A-312). The
Agreement must have a caption, and both parties’ signatures must be notarized.
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Parenting Plan
As discussed above, the Parenting Plan should be as clear and detailed as possible. It
must be signed by both parties, and incorporated by reference into the final decree.
Child Support
Child support will almost always be awarded in accordance with the Child Support
Guidelines which are calculated using the child support worksheets set forth at § 40-4-11.1
NMRA. There are two basic worksheets for determining the amount of child support that a party
is required to pay. Worksheet A should be used when one party has primary physical custody of
the child and the other parent has visitation. Worksheet B should be used where parties share
physical custody of the child or children more equally. The Courts provide a child support
calculator on their website at http://www.nmcourts.com/, which can be used to get an
approximate idea of what the child support will be. The website calculator, however, rounds
numbers up or down, rather than using actual figures and should not be relied upon for the final
draft of the Child Support Worksheets. The worksheets must be signed by the parties and
submitted to the court.
Even though the guidelines are set forth in a formula, there is some room for advocacy in
creating the Worksheets. It is possible to request that income be imputed to the opposing side if
they are unemployed or underemployed. It is also important to evaluate the calculations of the
other party to make sure that they are using accurate information, and are not, for example,
failing to include overtime payments in calculating the income, or similarly are picking strategic
time periods for averaging the income.
The Final Decree must include a provision that the parties will annually exchange
financial information upon the written request of either party pursuant to §40-4-11.4 NMSA. The
exchange can also be automatic. The provision regarding annual exchange of financial
information is mandatory.
The Final Decree must include a provision for automatic wage withholding unless both
parties request a waiver for good cause shown. Please note that the party seeking wage
withholding must apply to the state Child Support Enforcement Division (CSED) for a case
number.
Qualified Domestic Relations Orders (QDROs)
While cases involving retirement benefits are rare in the clinic, it is important to know
that Qualified Domestic Relations Orders (QDRO) must be prepared where parties seek division
of a marital retirement account. The valuation of retirement plans is a difficult issue, requiring
the hiring of an actuarial expert. In addition, each retirement company seems to have its own
preferred form of Order. Therefore, if a case involves a retirement account, an expert must be
consulted, and the Plan Administrator for the retirement account must be contacted for a copy of
the company’s preferred form of QDRO.
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Uncontested Proceedings
Default
In cases where a Respondent has been personally served with a Summons and Petition
and fails to answer within 30 days of service, the Petitioner may request, by Motion or
Application, the Entry of a Default Judgment. Along with compliance with the other local rules
for filing of motions set forth in the Section on Motions, a Motion for Entry of Default must be
filed along with an Affidavit of Non-Military Service signed by the client or other person with
knowledge, and Certificate as to the State of the Record, which should be prepared in advance
for signature by a domestic relations clerk. The Certificate of the State of the Record should be
issued at the time of the Court hearing, or at the time of the request for the entry of the default.
Agreement of the Parties
If the parties are able to reach agreement on all disputed issues, it is possible to file an
uncontested Divorce. The papers listed in the section on Starting an Action For Dissolution of
Marriage, and the papers listed in the Section on the Final Decree should be prepared. If the
Respondent will sign an “Acceptance of Service and Waiver of Notice” all of the papers can be
filed at the same time, and a copy of the proposed Final Decree, with attachments, can be placed
in the Judge’s in box located in the reception area of the courts on the second floor of district
courthouse. Note that the forms must be signed by both parties (the Marital Settlement
Agreement and Acceptance of Service and Waiver of Notice must be notarized.) There is no
longer a 30 day waiting requirement.
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Flow Of A Domestic Relations Case
INITIAL FILING
INTERIM ACTIVITY
FINAL DECREE
Petition for Divorce, Separation, or Custody
Dissolution of Marriage→→ →→ →
Custody of Children and Parenting Issues→→→
Child Support → →→→→→→ → → →
Division of Property and Debts
And Spousal Support →→→→ → → → →
Domestic Relations Information Sheet (Civil Form 4A-101)
Domestic Relations Cover Sheet (Civil Form 4A-101)
Summons (Civil Form 4-206) →→→→→→→→
Temporary Domestic Order (Form 4A-112)
Filing Fee (currently $137. Call clerk’s office to verify); or
Motion to Proceed Without Costs(LR2-Form A)
Affidavit of Indigency (LR2-Form B)
Attorney’s Affidavit (LR2-Form C)
Proposed Order (LR2-Form D)
Rule 99 Certificate (commonly referred to as a “SCRA”)
Motion to Seal the Address of the client (if needed)
→ →→→→→
Agreement or Court Clinic
Referral Order (30 days) LR2
Form T
Motion for Interim Relief
(Hearing Officer or Judge)
Motion for Interim Relief
(Hearing Officer or Judge)
Copy Served, Original, with
Return, filed with judge
D
→ →
I
S
→ →
C
O
V
→ →
E
R
Y
Final Decree
Parenting Plan
Child Support Worksheets
Marital Settlement Agreement
(QDRO)
232
Common Legal Forms
A.
(1) Petition for Order of Protection from Domestic Abuse (Form4-961)
(2) Temporary Order of Protection and Order to Appear (Form 963)
(3) Order of Protection (Form 4-965)
B. Dissolution of Marriage and Custody/Parenting Forms
(1) Petition for Dissolution of Marriage and Custody of Children
(2) Domestic Relations Information Sheet (Civil Form 4A-101)
(3) Domestic Relations Cover Sheet (Civil Form 4A-101)
(4) Summons (Civil Form 4-206)
(5) Temporary Domestic Order (Form 4A-112*)
(6)(a) Motion for Free Process ( LR2-Form A)
(6)(b) Affidavit of Indigency
(6)(c) Attorney Affidavit of In Support of Indigency (modified)
(6)(d) Order for Free Process (modified)
(6)(e) Rule 99 Certificate (modified)
C. Interim Forms
(1) Interim Monthly Income and Expenses Form4A122
(2) Interim Order Allocating Income and Expenses 4A 123
(3) Community Property and Liabilities Schedule 4 A-131
(4) Separate Property Schedule 4A- 132
D. Final Decree
(1) Simple Final Decree 4A 341
(2) Final Decree 4A-342 (With Children)
(3) Sample Final Decree of Dissolution of Marriage
(4) Sample Marital Settlement Agreement
(5) Sample Parenting Plan
(6) Child Support Worksheet A
233
Domestic Violence Forms
Form 4-961, Petition for Order of Protection from Domestic Abuse
Form 4-961. Petition for order of protection from domestic abuse.
[Standard simplified petition form,
Family Violence Protection Act,
Sections 40-13-1 to 40-13-8 NMSA 1978.]
__________________ JUDICIAL DISTRICT COURT
COUNTY OF __________________
STATE OF NEW MEXICO
______________________________
______________________________
Petitioner
v. No. ____________
______________________________
Respondent
PETITION FOR ORDER OF PROTECTION
FROM DOMESTIC ABUSE1
1. COURT ASSISTANCE REQUEST
[ ] We will need an interpreter in __________________ to translate at hearings for [ ] me [ ] the respondent.
[ ] We will need __________________ (describe other request for special help).
2. INFORMATION ABOUT THE RESPONDENT (the person I am filing against)
A. The respondent is:
[ ] my husband or [ ] my wife
[ ] my ex-husband or [ ] my ex-wife
[ ] the parent of my child(ren)
[ ] a family member ________________________________________ (describe the family relationship)
[ ] a person with whom I have had a continuing personal relationship ________________________________________ (describe the
relationship)
B. The respondent has the following weapons: _____________________________
3. CHILD(REN)2
A. List minor child(ren) of either party.
Name Date of Relationship of Child(ren)
Birth To YouTo Respondent
__________________ ______________ ____________________________
__________________ ______________ ____________________________
__________________ ______________ ____________________________
__________________ ______________ ____________________________
__________________ ______________ ____________________________
B. List address and with whom the child(ren) are currently living. (List each child separately if child(ren) do not reside with same person.)
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
C. List each address where child(ren) have lived during the last 3 years. (List each child separately if child(ren) did not reside with same
person.)
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
D. Does anyone else have physical custody of the child(ren) or claim to have custody or visitation rights? [ ] yes [ ] no.
If yes, complete the following for the child(ren):
Child's name Person claiming rights
______________________________ ______________________________
______________________________ ______________________________
234
4. OTHER CASES
[ ] The following divorce, separation, order of protection, child support, paternity, abuse or neglect cases have been previously filed by me, the
respondent or the state:
Type of Case Year Filed Case Number Where Filed
(if known) (if known) (city and state)
__________________ ______________ ____________________________
__________________ ______________ ____________________________
5. DOMESTIC ABUSE
A. The respondent committed the following act(s) of domestic abuse against me or a member of my household: (describe in detail what
happened to you or to a member of your household and when and where.)
Physical abuse: ___________________________________________________________
__________________________________________________________________________.
Threats which caused fear that you or any household member would be
injured: ____________________________________________________________________
__________________________________________________________________________.
Other abuse: ______________________________________________________________
__________________________________________________________________________.
B. Others present during the abuse _______________________________________
C. Did drugs or alcohol play a role in the domestic abuse? [ ] yes [ ] no.
D. Were weapons used during the abuse? [ ] yes [ ] no.
If yes, what weapons? ____________________________________________________
E. Has there been prior domestic abuse? [ ] yes [ ] no.
6. REQUESTS TO THE COURT
I REQUEST THAT THE COURT ORDER (check all that you want)
[ ] A. that the respondent not contact me, not abuse me and that the respondent stay away from my residence, place of employment and school.
[ ] B. (1) that the respondent shall immediately leave [ ] my [ ] our residence.
OR
[ ] (2) that the respondent provide me with temporary suitable alternative housing.
[ ] C. that the respondent shall not sell, remove, pawn, hide, destroy or damage any property owned by me or the two of us jointly.
[ ] D. that law enforcement officers assist me in retrieving my
clothing and personal belongings from the residence at _____________________.
[ ] E. that I be given temporary custody of the child(ren) listed in this petition.
[ ] F. that until the court hearing:
[ ] respondent shall have the following contact with the child(ren):
______________________________________________________________________.
[ ] respondent shall have no contact with the child(ren).
[ ] G. that the respondent shall pay:
[ ] support for the child(ren)
[ ] support for me.
[ ] H. that the respondent shall pay me for the damage and medical bills resulting from the abuse.
[ ] I. other relief that is necessary to resolve this domestic abuse problem (list or describe what relief is necessary):
_________________________________________________________________________
_________________________________________________________________________
7. INFORMATION ABOUT THE PETITIONER (ME)
(If you do not want the respondent to know your address and phone number, do not include it on this form. Tell the court clerk that you need to
complete two other forms (Forms 4-961A and 4-961B) for your name and address and request that the clerk place your address under seal.)
[ ] A. I DO NOT WANT RESPONDENT TO KNOW MY ADDRESS NOW OR AFTER THE HEARING FOR THE FINAL ORDER
OF PROTECTION. I HAVE COMPLETED FORM 4-961B AND GIVEN IT TO THE COURT CLERK.
OR
[ ] B. My physical address is: ______________________________ in the [ ] County [ ] Indian Country of __________________, State of New
Mexico.
My mailing address is:
________________________________________ (street address)
________________________________________ (city and zip)
My telephone numbers are:
Home Work Message
____________________________________ ______________
8. NOTICE TO RESPONDENT
[ ] A. I have not told respondent that I am filing a petition to ask the court for an order of protection because I believe
irreparable harm would
result if I told respondent before coming to court. (Describe what might happen to you or what you are afraid might happen if the respondent
knew you were asking for a court order of protection.).
____________________________________________________________________________
__________________________________________________________________________.
[ ] B. I have told respondent that I am filing this petition.
9. LOCATION OF RESPONDENT
Respondent may be found at:
______________________________ (address)
______________________________ (city)
______________________________ (state and zip code)
235
______________________________ (if in Indian Country, please name tribe or pueblo).
Respondent's:
______________________________ (social security number)
______________________________ (date of birth)
______________________________ (home telephone number)
______________________________ (work address)
______________________________ (work telephone number).
B. Is respondent in jail? [ ] yes [ ] no
VERIFICATION
STATE OF NEW MEXICO )
COUNTY OF ________________________ )
TRIBE OR PUEBLO __________________ )
The petitioner was sworn and states: I have read this petition for order of protection from domestic abuse and it is true to the best of my
knowledge and belief. I understand that I can be punished both civilly and criminally if any information in this petition is false.
______________________________ __________________________________
Date Signature of Petitioner
Signed and sworn before me on this ________ day of ______________, __________.
Notary public
______________________________
My commission expires: ______________________________.
USE NOTES
1. Petitioner should complete all information known by the petitioner.
2. This part must be completed if there are children. Section 40-10-10 NMSA 1978 [see now 40-10A-209 NMSA 1978] of the Child Custody
Jurisdiction Act requires the first pleading of every custody action to give information under oath as to the child's present address, the places
where the child has lived within the last 3 years and the names and present addresses of the persons with whom the child has lived during that
period. If a child lives with you now, but you do not want respondent to know your address, do not put your current address here, but do fill out
Forms 4-961A and 4-961B.
3. Use Notes 1 and 2 are to be printed on pre-printed forms published for use by pro se petitioners. This note and Use Note 4 should not be
printed on the form. This form has been approved by the Supreme Court of New Mexico for use in the courts of this state and distribution
pursuant to Section 40-13-3 NMSA 1978. Pre-printed pro se forms should include a lined blank page at the end of the form for use by the
petitioner if the pre-printed form does not include adequate space for a complete answer to a question.
4. Section 40-13-3.1 NMSA 1978 provides that a victim in a domestic abuse case shall not be required to pay for the issuance or service of a
protection order. This has been construed to mean that a petitioner or counter-petitioner in a domestic abuse case is not required to pay a docket
or other filing fees or fee for service of process.
[Approved, effective November 1, 1999 until July 1, 2001; approved, as amended, effective May 1, 2001.]
236
Form 963, Temporary Order of Protection and Order to Appear
Temporary Order of Protection and Order to Appear (Form 963)
[Standard simplified temporary order prohibiting domestic abuse,
Family Violence Protection Act, Sections 40-13-1 to 40-13-8 NMSA 1978.]
__________________ JUDICIAL DISTRICT COURT
COUNTY OF __________________
STATE OF NEW MEXICO
______________________________
Petitioner
v. No. ____________
______________________________
Respondent
TEMPORARY ORDER OF PROTECTION
AND ORDER TO APPEAR
The court has reviewed the sworn petition alleging domestic abuse. The court having considered the petition, FINDS that the court has
jurisdiction, that there is probable cause to believe that an act of domestic abuse has occurred and that petitioner or a household member of
petitioner will suffer immediate and irreparable injury, loss or damage unless the court enters this order. The court ORDERS:
[ ] 1. Respondent shall not write to, talk to, visit or contact the petitioner in any way except through petitioner's lawyer, if petitioner has a
lawyer.
[ ] 2. Respondent shall not abuse the petitioner or the petitioner's household members in any way. “Abuse” means any incident by respondent
against petitioner or petitioner's household member resulting in (1) physical harm; (2) severe emotional distress; (3) bodily injury or assault; (4) a
threat causing imminent fear of bodily injury; (5) criminal trespass; (6) criminal damage to property; (7) repeatedly driving by a residence or
work place; (8) telephone harassment; (9) stalking; (10) harassment; (11) harm or threatened harm to children in any manner set forth above.
[ ] 3. Respondent shall not ask or cause other persons to abuse the petitioner or the petitioner's household members.
[ ] 4. Respondent shall not go within __________ yards of the petitioner's home or school or work place. Respondent shall not go within
__________ yards of the petitioner at all times except ________________________________________. If at a public place, such as a store,
respondent shall not go within __________ yards of petitioner.
[ ] 5. ______________________________ shall have temporary physical
custody of the following child(ren): _________________________________________
__________________________________________________________________________
________________________________________________________________________.
[ ] 6. With respect to the child(ren) named in the preceding paragraph, [ ] respondent [ ] petitioner shall have:
[ ] A. No contact with the child(ren) until further order of this court and shall stay __________ yards away from the child(ren)'s school.
[ ] B. Contact with the child(ren), subject to:
_________________________________________________________________________
_________________________________________________________________________
_______________________________________________________________________.
[ ] 7. The court may decide temporary child and interim support at the hearing listed below. Both parties shall bring to the hearing proof of
income in the form of the two latest pay stubs or the federal tax returns from the previous year, proof of work related day-care costs and proof of
medical insurance costs for the child(ren).
[ ] 8. [ ] A. Respondent is ordered to immediately leave the residence at ______________________________ and to not return until further
court order.
[ ] B. Law enforcement officers are hereby ordered to evict
respondent from the residence at _____________________________________________
______________________________________________________________________.
[ ] C. Respondent is ordered to surrender all keys to the residence to law enforcement officers.
[ ] 9. Law enforcement officers or ______________________________ shall accompany [ ] respondent [ ] petitioner to remove essential tools
(as specified in No. 12), clothing, and personal belongings from the residence at
______________________________________________________________________________
________________________________________________________________________.
[ ] 10. Neither party shall transfer, hide, add debt to, sell or otherwise dispose of the other's property or the joint property of the parties except in
the usual course of business or for the necessities of life. The parties shall account to the court for all such changes to property made after the
order is served or communicated to the party. Neither party shall disconnect the utilities of the other party's residence.
[ ] 11. This order supersedes inconsistent prior order in Cause No. __________________ and any other prior domestic relations
order and
domestic violence restraining orders between these two parties.
[ ] 12. Other: ___________________________________________________________
__________________________________________________________________________
________________________________________________________________________.
13. While this order is in effect, petitioner shall refrain from any act that would cause the respondent to violate this order.
HEARING
237
IT IS FURTHER ORDERED that the parties shall appear in the __________________ Judicial District Court, Room ________, at
__________________, before __________________, at ____________ (a.m.) (p.m.) on __________________ (date) for hearing on whether an
extended order of protection against domestic abuse will be issued. Either party may bring witnesses or evidence and may be represented by
counsel at this hearing. Respondent may file a Response to the Petition for Order of Protection from Domestic Abuse on or before the hearing. If
the respondent fails to attend this hearing, an extended order may be entered by default against respondent and a bench warrant may be issued for
respondent's arrest. If petitioner willfully fails to appear at this hearing, the petition may be dismissed. This order remains in force until
________________________, __________.
DO NOT BRING ANY CHILDREN TO THE HEARING WITHOUT PRIOR PERMISSION OF THE COURT.
ENFORCEMENT OF ORDER
If the respondent violates any part of this order, the respondent may be charged with a crime, arrested, held in contempt of court, fined or jailed.
SERVICE AND NOTICE TO LAW ENFORCEMENT AGENCIES
Upon the signing of this order by a district court judge, a law enforcement officer shall serve on the respondent a copy of this order and a copy of
the petition.
A LAW ENFORCEMENT OFFICER SHALL USE ANY LAWFUL MEANS TO ENFORCE THIS ORDER.
[ ] I have reviewed the petition for order of protection and made recommendations to the district judge regarding its disposition.
______________________________ __________________________________
(Signed) Court telephone number
______________________________
(Title)
SO ORDERED:
______________________________ __________________________________
District Judge Date and time approved
USE NOTE
The Temporary Order of Protection and Order to Appear requires a proof of return of service. The Committee has been informed that each local
law enforcement agency has its own return of service form which will be used for this purpose.
Personal service of the Temporary Order of Protection and Order to Appear will assure that the Temporary Order is fully enforceable. It is
possible that actual notice to the respondent of the content of the Temporary Order will also suffice to bind the respondent to comply with the
order. Territory of New Mexico v. Clancy, 7 N.M. 580, 583 (1894).
[Approved, effective November 1, 1999 until July 1, 2001; approved, as amended, effective May 1, 2001.]
238
Form 4-965. Order of protection, mutual, non-mutual.
Form 4-965. Order of protection, mutual, non-mutual.
[Standard simplified order of protection, Family Violence
Protection Act, Sections 40-13-1 to 40-13-8 NMSA 1978.]
__________________ JUDICIAL DISTRICT COURT
COUNTY OF __________________
STATE OF NEW MEXICO
______________________________
Petitioner
v. No. ____________
______________________________
Respondent
ORDER OF PROTECTION1
[ ] MUTUAL2 [ ] NON-MUTUAL
This order is an order of protection under 18 U.S.C. Section 922, 18 U.S.C. Section 2265 and Section 40-13-6(D) NMSA 1978. This order shall
be accorded full faith and credit by the courts of every state and Indian Tribe and shall be enforced as if it were the order of such other State or
Tribe.
THIS MATTER came before the court on the ________ day of ______________, __________ through a hearing on the [ ] petitioner's [ ]
respondent's request for an order prohibiting domestic abuse.
The court, having determined that it has legal jurisdiction over the parties and the subject matter, FINDS, CONCLUDES AND ORDERS:
(check only applicable paragraphs)
1. NOTICE AND APPEARANCES
[ ] Petitioner was present.
[ ] Petitioner was represented by counsel.
[ ] Respondent was present.
[ ] Respondent was represented by counsel.
[ ] Respondent was properly served with a copy of the petition, temporary order of protection prohibiting domestic abuse and order to appear.
[ ] Respondent was properly served with a copy of the petition and order to appear.
[ ] Respondent received actual notice of the hearing and had an opportunity to participate in the hearing.3
[ ] Petitioner was properly served with a copy of the counter-petition and Order to Appear.4
[ ] Petitioner was properly served with a copy of the temporary order and Order to Appear.
[ ] Petitioner received actual notice of the hearing and had an opportunity to participate in the hearing.3
2. CONSEQUENCES OF ENTRY OF ORDER OF PROTECTION
Violation of this order by the [ ] respondent [ ] petitioner can have serious consequences, including:
A. If you violate the terms of this order, you may be charged with a misdemeanor, which is punishable by imprisonment of up to 364 days and a
fine of up to $1,000. You may be found in contempt of court.
B. If you are the spouse of the other party, an individual who lives with or has lived with the other party, or if you and the other party have had a
child together, federal law prohibits you from possessing or transporting firearms or ammunition while this order is in effect. If you have a
firearm or ammunition, you should immediately dispose of the firearm or ammunition. Violation of this law is a federal crime punishable by
imprisonment for up to 10 years and a fine of up to $250,000.
C. If you are not a citizen of the United States, entry of this order may have a negative effect on your application for residency or citizenship.
3. FINDING OF DOMESTIC ABUSE
An act of domestic abuse was committed by [ ] respondent [ ] petitioner that necessitates an order of protection.
4. DOMESTIC ABUSE PROHIBITED
[ ] Respondent [ ] Petitioner shall not abuse the other party or members of the other party's household. “Abuse” means any incident by one party
against the other party or another household member resulting in (1) physical harm; (2) severe emotional distress; (3) bodily injury or assault; (4)
a threat by petitioner or respondent causing imminent fear of bodily injury to the other party or any household member; (5) cri
minal trespass; (6)
criminal damage to property; (7) repeatedly driving by petitioner's or respondent's or a household member's residence or work place; (8)
telephone harassment; (9) stalking; (10) harassment; or (11) harm or threatened harm to children in any manner set forth above.
[ ] Respondent [ ] Petitioner shall not ask or cause other persons to abuse the other party or any other household members.
5. CONTACT PROHIBITIONS
[ ] Respondent [ ] Petitioner shall stay ______________ yards away from the other party, the other party's home and any workplace at all times,
unless at a public place, where the [ ] respondent [ ] petitioner shall remain ______________ yards away from the other party except as
specifically permitted by this order.
[ ] Respondent [ ] Petitioner shall not telephone, talk to, visit or contact the other party in any way except as follows:
[ ] The parties may contact each other by telephone regarding medical emergencies of minor children;
Other _________________________________________________________________
_______________________________________________________________________.
239
[ ] The parties may attend joint counseling sessions at the counselor's discretion.
(Unless the court has sealed petitioner's or respondent's address, include address of residence and employment for the appropriate party or
parties.)
Respondent's addresses
______________________________ (home address)
______________________________ (work address)
______________________________ (city)
______________________________ (if applicable, tribe or pueblo)
______________________________ (state and zip code)
Petitioner's addresses
______________________________ (home address)
______________________________ (work address)
______________________________ (city)
______________________________ (if applicable, tribe or pueblo)
______________________________ (state and zip code)
6. COUNSELING
[ ] Respondent shall attend counseling at ______________, contacting that office within five (5) days. The respondent shall participate in, attend
and complete counseling as recommended by the named agency.
[ ] Petitioner shall attend counseling at ______________, contacting that office within five (5) days. The petitioner shall participate in, attend
and complete counseling as recommended by the named agency.
[ ] Respondent shall report to __________________, for a [ ] drug [and] [ ] alcohol screen by ______________, __________ (date) with the
results returned to this court.
[ ] Petitioner shall report to ______________, for a [ ] drug [and] [ ] alcohol screen by ______________, __________ (date) with the results
returned to this court.
[ ] Other counseling requirements: _______________________________________
________________________________________________________________________.
7. CUSTODY
[ ] The court's orders regarding the minor child(ren) are addressed in the Custody, Support and Division of Property Attachment of this Order of
Protection.
8. PROVISIONS RELATING TO SUPPORT
[ ] The court's orders regarding support issues for the parties are found in the Custody, Support and Division of Property Attachment of this
Order of Protection.
9. PROPERTY, DEBTS AND PAYMENTS OF MONEY
[ ] The court's orders regarding property, debts and payment of money are found in the Custody, Support and Division of Property Attachment5
of this Order of Protection.
10. PARTIES SHALL NOT CAUSE VIOLATION
While this order is in effect, the parties shall refrain from any act that would cause the other party to violate this order.6
11. ADDITIONAL ORDERS
[ ] Review hearing. The parties are ordered to appear for a review hearing on the ________ day of ______________, __________, at
______________ (a.m.) (p.m.). Any party ordered to attend counseling shall bring proof of counseling to the review hearing.
IT IS FURTHER ORDERED7: ____________________________________________________
__________________________________________________________________________.
12. EFFECTIVE DATE OF ORDER; EXTENSION; MODIFICATION
This order is effective upon filing with the clerk of the court.
This order [with the exception of the orders in the Custody, Support and Division of Property Attachment5] shall continue until ______________
(date), or until modified or rescinded by the court.
13. NOTICE TO LAW ENFORCEMENT AGENCIES
ANY LAW ENFORCEMENT OFFICER SHALL USE ANY LAWFUL MEANS TO ENFORCE THIS ORDER.
[ ] Respondent [ ] Petitioner is ordered to surrender all keys to the residence to law enforcement officers.
[ ] Law enforcement officers or __________________ shall be present during any property exchange.
[ ] This order supersedes prior orders in ______________ County, State of ______________, Cause No. ____________ to the extent that there
are contradictory provisions.
14. NOTICE TO PARTIES
This order does not serve as a divorce and does not permanently resolve child custody or support issues.
15. RECOMMENDATIONS
I have:
[ ] reviewed the petition for order of protection;
[ ] reviewed the counter-petition for order of protection;
[ ] conducted hearings on the merits of the petition;
[ ] after notice and hearing as indicated in this order I prepared this order as my recommendation to the district court judge regarding disposition
of requests for order of protection.
_________________________________________________________________
Signed
_________________________________________________________________
Title
Court's telephone number: _______________________________________
SO ORDERED:
______________________________ __________________________________
District Judge Date
[ ] A copy of this order was [ ] hand delivered [ ] faxed [ ] mailed to [ ] respondent [ ] respondent's counsel on ______________ (date)8.
240
[ ] A copy of this order was [ ] hand delivered [ ] faxed [ ] mailed to [ ] petitioner [ ] petitioner's counsel on ______________ (date).
_________________________________________________________________
Signed
_________________________________________________________________
Title
USE NOTES
1. These use notes shall not be included in any Order of Protection issued by the court.
2. Mutual orders of protection are binding on the petitioner as well as the respondent and are entitled to full faith and credit when certain
procedural requirements are met. Because the mutual order of protection will only issue when a petition and counter-petition (or reversed-caption
petition) are filed and the court finds that both petitioner and respondent committed acts of abuse, a mutual order will be entitled to full faith and
credit pursuant to 18 U.S.C. Section 2265(c) and Section 40-13-6D NMSA 1978.
3. A mutual order may be entered only after a counter-petition has been filed and a hearing conducted of which petitioner received actual notice
and at which petitioner had an opportunity to participate if 18 U.S.C. Section 922 is to apply to this order.
4. This order may be entered only after a hearing at which respondent received actual notice and at which respondent had an opportunity to
participate if 18 U.S.C. Section 922 is to apply to this order.
5. See Form 4-967 for the Custody, Support and Division of Property Order attachment.
6. A violation of this provision may result in a finding of contempt of court, punishable by fine, imprisonment or both.
7. If appropriate, an order providing for restitution may be included in this paragraph.
8. Respondent or petitioner should be served at the time this order is issued, before leaving the courthouse. If a default order is issued, service
upon the non-attending party shall be made by mail or by personal service. See Section 40-13-6(A) NMSA 1978.
[Approved, effective November 1, 1999 until July 1, 2001; approved, as amended, effective May 1, 2001.]
241
Sample Petition for Dissolution of Marriage
SECOND JUDICIAL DISTRICT COURT
COUNTY OF BERNALILLO
STATE OF NEW MEXICO
Diane Diaz,
Petitioner,
v. NO. DR ___-___
Victor Diaz,
Respondent,
PETITION FOR DISSOLUTION OF MARRIAGE AND
JOINT CUSTODY OF CHILDREN
Petitioner states the following in support of this Petition.
I. JURISDICTION AND VENUE
1. Petitioner and Respondent are domiciled in New Mexico, and have resided in Bernalillo
County, New Mexico, for at least six months prior to the filing of this Petition.
II. THE MARRIAGE
2. Petitioner and Respondent were married on January 27, 1992 in Albuquerque, New Mexico
and have been husband and wife since that time.
3. Due to differences in temperament and outlook, Petitioner and Respondent are incompatible.
There is no reasonable expectation of reconciliation.
III. PROPERTY
4. Petitioner and Respondent have accumulated the following community property:
a. a red 1984 Toyota Corolla Station Wagon, Vehicle Identification Number
(VIN) 126F94769DF 573:
242
b. a green 1981 Chevy Conversion Van, Vehicle Identification Number 77735XS90351,
c. A joint checking account at New Mexico Federal Credit Union, account number,
0098987, with a current balance of approximately $497.00,
d. A savings account at the New Mexico Federal Educators Credit Union with $133.00,
e. A brown corduroy couch,
f. General Electric Washer and Dryer,
g. Oak bedroom set,
h. Red Tool box,
i. A 22 inch Zenith color television set,
j. General Electric Washer and Dryer,
k. Electrolux Vacuum cleaner,
l. Set of bunk-beds and children’s sheets, and
m. Half of the Family Photographs.
5. Petitioner’s share of the community property should include:
a. the red 1984 Toyota Corolla Station Wagon, Vehicle Identification Number (VIN)
126F94769DF 573, to the Petitioner,
b. A joint checking account at New Mexico Federal Credit Union, account number 0098987,
with a current balance of approximately $497.00,
c. A brown corduroy couch,
d. Electrolux Vacuum cleaner,
e. Set of bunk-beds and children’s sheets,
f. General Electric Washer and Dryer, and
g. Half of the Family Photographs.
243
6. Respondent's share of the community property should include:
a. the green 1981 Chevy Conversion Van, Vehicle Identification Number 77735XS90351,
b. the savings account at the New Mexico Federal Educators Credit Union with $133.00,
c. A 22 inch Zenith color television set,
d. Red Tool box,
e. Oak bedroom set, and
f. Half of the Family Photographs
7. Any other community property of the marriage is limited to minor household items and should
become the property of the party currently in possession of the item.
8. Petitioner and Respondent have been separated for approximately two years and have already
assumed responsibility for all of their respective separate property. The separate property
consists of personal effects and minor household items.
9. All separately owned property is in the possession of each party and should be confirmed in the
party having possession.
IV. DEBTS
10. Petitioner and Respondent have accumulated community debts during their marriage that
should be equitably allocated and divided between them.
11. The community debts known to the Petitioner are:
a. $1200.00 student loan taken out in the name of Petitioner,
b. $500.00 Bank of America Visa credit card debt on account number 579299, and
c. a $250 hospital bill, payable in installments of $5.00 per month to University Hospital.
12. Petitioner should assume responsibility for the $1,200 student loan taken out in her name.
13. Respondent should assume responsibility for the:
244
a. $500.00 Bank of America Visa credit card debt on account number 5792992 ,and
b. $250 hospital bill, payable in installments of $5.00 per month to University Hospital.
14. Petitioner is not aware of any other community or separate debts. Any debts that are not
listed should be paid by the party incurring the debt.
V. TAXES
15. The parties have filed their tax returns for the 2001 tax year, and received their tax refund
which has already been equally divided by the parties.
16. The parties shall file separate tax returns for the year of 2002.
VI. CHILD CUSTODY
17. There are three minor children of the marriage, Angelique Diaz, Brianna Diaz, and Milagro
Diaz who are six, four and two years old respectively.
18. Petitioner has had primary physical custody of the children since Mr. Diaz left them in 2001.
19. The children live together as a family and have had an opportunity to forge sibling
relationships that are in their best interests.
20. Petitioner and Respondent currently have an informal visitation arrangement that they would
like to make more formal in order to minimize the possibility of disrupting their children’s
lives in the future.
21. During the past three years all three minor children have lived with:
Who Where Dates
Ms. Diaz. 2408 Las Lomas SW 1996 - present
(petitioner, mother) Albuquerque, NM 87105
22. There is no other litigation known to the Petitioner concerning custody or visitation with the
minor children of the parties in New Mexico or in any other state in which the Petitioner has
participated as a party as a witness or in any other capacity.
245
23. Petitioner has no information of any proceeding that is pending in a court in New Mexico or
in any other state involving visitation or custody with the parties’ minor children.
24. Petitioner does not know of any other persons other than the parties who have physical
custody of the minor children or who claim to have custody or visitation rights to the minor
children.
25. Since the children and the Petitioner have a significant connection with New Mexico, the
court has jurisdiction over the custody issues and should exercise its jurisdiction because it is
in the best interests of the children to have a formal custody arrangement in place.
26. The parties should be awarded joint legal custody with primary physical custody in Petitioner
with time-sharing consistent with the best interests of the children.
VII. CHILD SUPPORT
27. Respondent should be ordered to pay child support in accordance with the New Mexico
Child Support Guidelines.
VIII. SPOUSAL SUPPORT
28. Each party is able to support him or herself adequately and no alimony or spousal support
should be awarded to either party.
246
IX. ATTORNEY'S FEES AND COSTS
29. Petitioner does not need an award of attorney's fees and costs to adequately prepare her
present case.
IX. NAME RESTORATION
30. Petitioner requests that the Court restore her name to Diane Dominguez.
WHEREFORE, Petitioner asks the Court to:
A. Dissolve the marriage between Petitioner and Respondent and grant a Decree of Dissolution
of Marriage on the grounds of incompatibility;
B. Order the distribution of property and debts as requested in this Petition;
C. Award Petitioner reasonable child supporting accordance with the New Mexico Child Support
Guidelines;
D. Exercise its jurisdiction to decide the custody issues and award joint custody of the children to
the parties, with timesharing in the best interests of the children;
E. Order that Petitioner's name be restored to Diane Dominguez; and
F. Award such additional and further relief, as the Court may deem equitable and appropriate.
Respectfully submitted,
____________________________
April Land, Supervising Attorney
CLINICAL LAW PROGRAM
1117 Stanford N.E.
Albuquerque, NM 87131-1413
(505) 277-5265
____________________________
Danielle Tsosie
Law Practice Student
247
VERIFICATION
STATE OF NEW MEXICO
COUNTY OF BERNALILLO
I, Diane Diaz, being first duly sworn upon oath depose and state:
That I have read the foregoing Petition for Dissolution of Marriage and the Statements
contained therein are true and correct to the best of my knowledge and belief.
____________________________________
Diane Diaz
ACKNOWLEDGED, SUBSCRIBED AND SWORN TO before me this ____________
Day of April 2002, by Diane Diaz.
__________________________________
Notary Public, State of New Mexico
My Commission Expires: _____________
248
Domestic Relations Information Sheet (Civil Form 4A-101)
SECOND JUDICIAL DISTRICT COURT
COUNTY OF BERNALILLO
STATE OF NEW MEXICO
Diane Diaz,
Petitioner,
v. NO. DV ___-____
Victor Diaz,
Respondent,
DOMESTIC RELATIONS INFORMATION SHEET
Case number: __DV _____ Assigned judge: Angela J. Jewell_
The following information is required by New Mexico law and federal law for child support
enforcement. The information also is needed to identify and monitor the case.
1. Information regarding petitioner and respondent. (Do not use an attorney's
mailing address. Use a separate sheet if necessary.)
Petitioner Respondent
Name: __Diaz, Diane_________________ Name: _Diaz, Victor_______________
Last name, first, middle) (Last name, first, middle)
Other names (e.g. maiden name): Other names (e.g. maiden name):
__Martinez_____________________________ N/A________________________________
Address: _1001 Unser Blvd. NW__________ Address: _406 Beaver Rd. SW_________
City: __Albuquerque___________________ City: ___Albuquerque_________________
State: __New Mexico____________________ State: ___New Mexico_________________
Zip code: ___87114_____________________ Zip code: _87105_____________________
Date of birth: __November 29, 1968_____ Date of birth: _July 31, 1954________
Social Security number: 525-99-3203
____ Social Security number: 585-66-2302__
2. Parties' minor children. (Provide the date of birth and social security number
for each minor child, if any. Use a separate sheet if necessary.)
Name: _Amanda Diaz__________________ Name: Johathan Diaz_______________
Last name, first, middle) (Last name, first, middle)
Date of birth: __August 17, 1993__________ Date of birth: __May 23, 1997________
Social Security number: _585-99-1011
__ Social Security number: _648-12-5566_
Has any court made an order for child support? ____X___ Yes _______ No
Has any court changed the amount of child support you requested? ______ Yes _X
__ No
If you answered “Yes” to either question, what state and what court issued the order?
New Mexico_________________ State _Second Judicial District ___________ Court.
249
Domestic Relations Cover Sheet (Civil Form 4A-101)
SECOND JUDICIAL DISTRICT COURT
COUNTY OF BERNALILLO
STATE OF NEW MEXICO
Diane Diaz,
Petitioner,
v. NO. DV 2001-0408
Victor Diaz,
Respondent,
DOMESTIC RELATIONS COVER SHEET
____________________________________________________________________________
THIS SECTION FOR OFFICIAL USE ONLY2
Case number: _____________ Assigned judge: _____________ Free process: Y N
__________________________________________________________________________
Information for court clerk's use.
A. Parties' names and petitioner's attorney information.
Petitioner's information
Petitioner's name: __Diane Diaz
___________________________________________
Attorney's name: __Richard Begay, Student Attorney, April Land, Supervising Attorney
Attorney address: _1117 Stanford NE ________________________________________
City: __Albuquerque_________________________________________________________
State: __New Mexico_________________________________________________________
Zip code: __87131___________________________________________________________
Telephone: __(505) 277-5265_________________________________________________
Respondent's name: __Victor Diaz__________________________________________
B. Case tracking (select codes from page 3)3
Primary case type. (Insert three letter code) ___DDC
________.
Primary claim for relief (cause of action) (Insert three letter code) ___DDC
_____.
Other claims for relief (cause of action) (insert three letter codes)4: __DPV
____.
C. Type of pleading (mark only one)
____X___ FIRST PLEADING for this party (petition)
________ RE-OPENED (Post judgment decree, motions, petitions for enforcement
or modification)
Information for judge's use. (mark all that apply)
Has mediation or settlement facilitation been attempted? ________ Yes ____X___ No.
Are there any pending or closed cases, including any domestic violence or children's
court cases, involving the same parties or children? ____X
__ Yes ________ No.
END OF COVER SHEET. GO TO INFORMATION SHEET.5
NOTE TO CLERK: PLACE THE COVER SHEET IN THE COURT FILE.
250
Summons (Civil Form 4-206)
SECOND JUDICIAL DISTRICT COURT
COUNTY OF BERNALILLO
STATE OF NEW MEXICO
Diane Diaz,
Petitioner,
v. NO. DV 2001-0408
Victor Diaz,
Respondent,
SUMMONS
THE STATE OF NEW MEXICO
TO:
ADDRESS:
GREETINGS:
You are hereby directed to serve a pleading or motion in response to the petition within thirty
(30) days after service of this summons, and file the same, all as provided by law.
You are notified that, unless you serve and file a responsive pleading or motion, the petitioner
will apply to the court for the relief demanded in the petition.
Vincent Martinez
Practicing Law Student
Michael Norwood
Supervising Attorney
UNM CLINICAL LAW PROGRAMS
1117 Stanford, N.E., Room 3228
Albuquerque, New Mexico 87131
(505) 277-5265
WITNESS the Honorable _____________________, district judge of the second judicial
district court of the State of New Mexico, and the seal of the district court of Bernalillo County,
this __________ day of _____________________, 19____.
_______________________________,
CLERK OF THE DISTRICT COURT
By: _______________________________
Deputy
251
RETURN
STATE OF NEW MEXICO )
)ss.
COUNTY OF BERNALLIO )
I, being duly sworn, on oath, say that I am over the age of eighteen (18) years and not a party to
this lawsuit, and that I served the within Summons in said County on the _________ day of
___________________, 19____, by delivering a copy thereof, with copy of Petition attached, in
the following manner:
(check one box and fill in appropriate blanks)
[ ] [to Respondent _____________________________. (used when Respondent receives
copy of Summons or refuses to receive Summons).
[ ] [to _______________________________, a person over fifteen (15) years of age and
residing at the usual place of abode of Respondent ____________________, who at the time of
such service was absent therefrom.]
[ ] [by posting a copy of the Summons and Petition in the most public part of the premises of
Respondent _________________________. (used if no person found at dwelling house or usual
place of abode)
[ ] [to _______________________________________, an agent authorized to receive
service of process for Respondent _______________________________.
[ ] [to _______________________________________, (parent) (guardian) of
Respondent ____________________________ (used when Respondent is a minor or an
incompetent person)
[ ] [to __________________________ (name of person), ____________, (title of person
authorized to receive service) (used when Respondent is corporation or association subject to a
suit under a common name, a land grant board of trustees, the State of New Mexico or any
political subdivision)
Fees:
Signature of Person Making Service
Title (if any)
*Subscribed and sworn to before me this
____ day of ____________, 19___.
___________________________
Judge, Notary or Other Officer
Authorized to Administer Oaths
___________________________
Official Title
My Commission Expires:
252
____________________________
Temporary Domestic Order (Form 4A-112)
[1-121]
STATE OF NEW MEXICO
________________________ COUNTY
________________________ JUDICIAL DISTRICT
________________________________________,
Petitioner,
v. No. ____________
________________________________________,
Respondent.
TEMPORARY DOMESTIC ORDER1
This order is issued pursuant to Rule 1-121 NMRA. This is not an order of protection under federal or state law. It
is otherwise fully enforceable. It applies to both parties. This order will continue in effect until modified. The
procedure for modification of this order is described below.
THE COURT ORDERS THE PARTIES AS FOLLOWS:
(1) Do not injure or physically or mentally abuse, molest, intimidate, threaten or harass the other party or any child
of either party.
(2) Do not interfere with the relationship of your spouse with any child of either party. If you are living apart, you
shall each continue to have frequent contact and communication with any minor child of both parties, personally and
by telephone. A party shall notify the other party of any change of address or telephone number within twenty-four
(24) hours of the change.
(3) Do not change a child's school, religion, child care, doctor, dentist, physical or mental treatment or recreational
activities in which the child has been participating.
(4) Do not remove, cause or permit the removal of any minor child of both parties from the State of New Mexico
without court order or written consent of the other party.
(5) Do not make the other party leave the family home, whether it be community or separate property, without
court order. You should attempt to resolve the question of who leaves the home in a fair manner. If you cannot
agree, you must ask the court to decide.
(a) Whoever moves from the family home may return to pick up personal belongings at a reasonable time as you
may agree. Personal belongings do not include furniture unless you agree or the court permits. If an order
prohibiting domestic violence has been entered, you must arrange to have a law enforcement officer present to
monitor the removal of personal belongings. The party moving out of the residence is not prejudiced by reason of
the move in any way with respect to custody of any minor child, with respect to a claim of any interest in the family
residence or the personal property in or on the premises.
(b) Whoever leaves the family residence shall notify the other party, within twenty-four (24) hours of an address
where the vacating party can receive mail.
(c) At a reasonable time, you are entitled to examine the contents of the marital residence and to have access to all
properties owned by either of you, for inspection, valuation or appraisal. If you ask, the other party must provide
access to the home within fifteen (15) days after the date of the request.
(6) Do not incur unreasonable or unnecessary debts. Any debt that does not contribute to the benefit of both spouses
or the minor children of the parties which is incurred after you have separated, may be the separate debt of the party
who incurs the debt.
(7) Do not sell, remove, transfer, dispose of, hide, encumber or damage any property, real or personal, community
253
or separate, except in the usual course of business or for the necessities of life. Keep an accounting of any
transactions to show to the court.
(8) Do not drop or cancel any insurance policy, including automobile or other vehicle insurance, household
insurance, medical or dental insurance or life insurance.
(9) Do not terminate or change the beneficiaries of any existing life insurance policy.
(10) Do not close any financial institution account2 or cancel any credit cards nor remove the other party from any
credit card account during pendency of this case, unless the parties otherwise agree in writing.
MODIFICATION BY COURT3
This order may be modified by the court upon request of either party. To request the court to modify this order, a
motion must be filed with the clerk of the court. The motion must include reference to each paragraph number the
party is requesting to be modified or terminated. The party making the request must provide the other party with a
copy of the motion requesting the change. If the other party agrees with the request, an order approving the request,
which has been initialed by both parties as “approved”, shall be filed with the motion.
WAIVER BY PARTIES
The parties may modify a specific provision of this order by entering into a written agreement and filing it with the
court. The parties may also waive a provision of this order on a specific occasion if both parties sign an agreement to
waive the provision. A waiver must include the paragraph number of each paragraph waived by the parties.
OTHER ORDERS
If an order of protection from a domestic violence case has been served on either party or if there is any other order
in effect governing the relationship of the parties, and there is a conflict between this order and the other order, the
other order controls unless the court specifically orders otherwise.
VIOLATIONS
Violation of this court order may result in the imposition of a fine or imprisonment. This order is binding on the
petitioner at the time the petition is filed. This order is effective on the respondent two (2) days after it is served on
the respondent. The parties are cautioned that actions taken by either party that are contrary to the terms of this order
are subject to redress by the court, including costs and attorney fees.
______________________________ __________________________________
Date District Judge
USE NOTES
1. A scheduling order may be issued at the time a domestic relations case is docketed and served with the petition,
however, the scheduling order must be issued as a separate order.
2. See Section 58-1-7 NMSA 1978 for notice to any bank of an adverse claim to a bank account.
3. Within two (2) days after service of this order, a party may file a motion requesting a hearing to dissolve this
order. If the court finds the motion was frivolous or was not filed in good faith it may assess the party filing the
motion with costs and attorney fees.
[Approved, effective November 1, 2000 until November 1, 2001; approved, effective November 1, 2001.]
254
Motion for Free Process ( LR2-Form A)
SECOND JUDICIAL DISTRICT COURT
COUNTY OF BERNALILLO
STATE OF NEW MEXICO
Diane Diaz,
Petitioner,
v. NO. DV ____-____
Victor Diaz,
Respondent,
MOTION FOR FREE PROCESS
Petitioner, Diane Diaz, moves this Court for an order allowing free process in this case. As
grounds for this motion, Petitioner states that because of indigency, she cannot afford to pay the
court fees and costs in this case. Petitioner has attached the affidavits required by Second Judicial
District Local Rules, Rule LR2-115.
___________________________
April Land, Supervising Attorney
University of New Mexico
CLINICAL LAW PROGRAM
1117 Stanford NE
Albuquerque, NM 87131-1413
___________________________
Daniele Tsosie
Law Practice Student
255
Affidavit of Indigency
SECOND JUDICIAL DISTRICT COURT
COUNTY OF BERNALILLO
STATE OF NEW MEXICO
Diane Diaz,
Petitioner,
v. NO. DV 2001-0408
Victor Diaz,
Respondent,
AFFIDAVIT OF INDIGENCY
I state, under penalty of perjury, that to the best of my knowledge and belief the following
statements and information are true and correct. I wish to file a Petition for Dissolution of
Marriage with Child Custody and Child Support in this case, and I cannot afford to pay any court
fees or costs.
EMPLOYMENT INCOME
I am not employed.
I am employed as a ___________________________________________________, at
________________________________________________________________, and earn
__________________ per hour/week/month.
I am paid every ________ weeks. My next payday is ________________________.
My gross pay is $ ________________________.
The following amounts are deducted from my gross pay:
Federal income tax $___________
Social security $___________
State income tax $___________
Union dues $___________
Insurance payments $___________
Retirement $___________
Other $___________
My take-home pay is $___________
OTHER INCOME
In addition to wages and salary, I receive the following income:
Social security $ ____________
Welfare $ ____________
Unemployment $ ____________
Food stamps $ ____________
256
AFDC $ ____________
Child support $ ____________
Alimony $ ____________
Investments $ ____________
Other $ ____________
Total other income $ ____________
BANK ACCOUNTS AND CASH ON HAND
I have a checking account at ________________________, and the present balance is
$____________.
I have a savings account at __________________, and the present balance is $____________.
I have $ ____________ cash on hand.
REAL PROPERTY AND OTHER TANGIBLE ASSETS
I own houses, buildings, land or other real property at ______________________________, with
a present value of $ ____________.
I own stocks, bonds, certificates of deposit, etc., valued at $ ____________.
MONTHLY EXPENSES
My monthly expenses are as follows:
House payment/rent $ ____________
Utilities $ ____________
Telephone $ ____________
Groceries (after food stamps) $ ____________
Car payments $ ____________
Gasoline $ ____________
Insurance $ ____________
Child Care $ ____________
Other $ ____________
HOUSEHOLD
I live at _________________________________________, and I am the head of the household.
Other than myself, members of the household are:
Name Age Employment I support
__________________ ____________________ [ ]
__________________ ____________________ [ ]
__________________ ____________________ [ ]
__________________ ____________________ [ ]
__________________ ____________________ [ ]
__________________ ____________________ [ ]
_____________________________ ______________________________
Danielle Tsosie, April Land
Law Practice Student Supervising Attorney
CLINICAL LAW PROGRAM
1117 Stanford NE
Albuquerque, NM 87131-1413
257
VERIFICATION
STATE OF NEW MEXICO )
)ss.
COUNTY OF BERNALILLO )
I, Diane Diaz, have read this Petition for Dissolution of Marriage including Child Custody and
Child Support and certify that I am the above named Petitioner and that I have read and
understand this Petition for Dissolution of Marriage and it is true and accurate to the best of my
knowledge and belief, this _______day of March, 2002.
______________________________________
Diane Diaz
SUBSCRIBED, SIGNED AND SWORN TO before me on this _____ day of ___________,
2002.
_______________________________
Notary Public
My commission expires on___________.
258
Attorney’s Affidavit Supporting Indigency
(modified LR2 Form C) (attorney notarization added)
SECOND JUDICIAL DISTRICT COURT
COUNTY OF BERNALILLO
STATE OF NEW MEXICO
Diane Diaz,
Petitioner,
v. NO. DR ____-____
Victor Diaz,
Respondent,
ATTORNEY'S AFFIDAVIT SUPPORTING INDIGENCY
I hereby certify that to the best of my knowledge and belief the statements and information
contained in Diane Diaz’s affidavit of indigency are true and correct. I further certify that I have
not received any attorney fee from Diane Diaz, and that if any attorney fee is paid to me, court
fees and costs shall be paid to the clerk from such fee.
________________________ ___________________________
Danielle Tsosie April Land, Supervising Attorney
Law Practice Student University of New Mexico
CLINICAL LAW PROGRAM
1117 Stanford NE, Albuquerque,
NM 87131-1413
(505) 277-5265
SUBSCRIBED, SIGNED AND SWORN TO by me on this ______ day of ___________, 2002.
_______________________________
Notary Public
My commission expires on___________.
I hereby certify that a copy of this Motion
was mailed first-class postage prepaid to opposing
counsel at 400 Lead, NW Albuquerque,
New Mexico 87108. this _____ day of_________, 2002.
_________________________________
259
Order for Free Process (modified LR2-Form D) ($30 court mediation
fee added)
SECOND JUDICIAL DISTRICT COURT
COUNTY OF BERNALILLO
STATE OF NEW MEXICO
Diane Diaz,
Petitioner,
v. NO. DV _____-____
Victor Diaz,
Respondent,
ORDER FOR FREE PROCESS
THIS MATTER having come before the court on Petitioner's Motion for Free Process and proof
of indigency by affidavit.
The Court ORDERS:
[ ] the original fee is waived
[ ] a post decree filing fee is waved
[ ] a portion of the filing fee is waived. The movant is to pay the thirty dollar ($30) court
mediation fee
[ ] the movant is granted free service of process in Bernalillo County, New Mexico.
[ ] the movant is denied free process.
________________________________
Honorable
Submitted by:
_______________________________
Danielle Tsosie
Law Practice Student
______________________________
April Land
Supervising Attorney
University of New Mexico
CLINICAL LAW ROGRAM
1117 Stanford NE
Albuquerque, NM 87131-1413
(505) 277-5256
260
Rule 1-099 Certificate (modified LR2 Form J) (“proceeding without
costs” added)
SECOND JUDICIAL DISTRICT COURT
COUNTY OF BERNALILLO
STATE OF NEW MEXICO
Diana Diaz,
Petitioner,
v. NO. 2002-0138
Victor Diaz,
Respondent.
RULE 1-099 NMRA, CERTIFICATE
The UNM Clinical Law Program, Danielle Tsosie, Practicing Law Student, and April
Land, Supervising Attorney, attorneys for the Petitioner, hereby certify, pursuant to Rule 1-099
NMRA, and Second Judicial District Local Rules, Rule LR2-132, that no Rule 1-099 NMRA fee
is required because:
[ ] this case is pending.
[ ] the attached pleading, motion, or other paper is filed within sixty (60) days after the last
disposition; the last action taken in this case was _______________; a judgment or decree was
filed ________________________, ______.
[ ] the attached pleading, motion, or other paper is requesting action which may be
performed by the clerk pursuant to these rules --or-- seeking to correct a mistake in the judgment,
decree, or record filed on, , 20___, -or- a motion accompanied by signed stipulated order
disposing of the issue(s) raised by the motion.
[ ] the attached pleading, motion, or other paper is seeking only enforcement of a child
support order filed on, 20___.
[X] proceeding without costs.
______________________________ ______________________________
Danielle Tsosie April Land
Student Attorney for Petitioner Supervising Attorney
UNM CLINICAL LAW
PROGRAMS
1117 Stanford, N.E., Room 3228
Albuquerque, NM 87131-1431
(505) 277-5265
I certify that a copy of this
certificate was mailed to Attorney
for Respondent this _______ day
of ________________, 2002
________________________________
April Land
Supervising Attorney
261
Interim Forms
Interim Monthly Income And Expense
4A-122
[1-122]
STATE OF NEW MEXICO
COUNTY OF ___________________________
___________________ JUDICIAL DISTRICT
_________________________________________,
Petitioner,
v.No. ______________
_________________________________________,
Respondent.
INTERIM MONTHLY INCOME AND EXPENSES STATEMENT
(fixed percentage for child expenses)
STATE OF NEW MEXICO )
) ss.
COUNTY OF _____________ )
I, ___________________ (petitioner) (respondent) state under penalty of perjury that the
following is true and correct at this time:
Husband Wife Combined
1. Gross monthly income $_________ $_________ $_________
a. Gross monthly wages $_________ $_________ $_________
b. Rental income $_________ $_________ $_________
c. Self-employment income $_________ $_________ $_________
d. Dividends and interest $_________ $_________ $_________
e. Other income $_________ $_________ $_________
2. Total gross monthly income $_________ $_________ $_________
3. Payroll deductions
a. Federal withholding $_________ $_________ $_________
b. State withholding $_________ $_________ $_________
c. Estimated tax payments $_________ $_________ $_________
d. FICA $_________ $_________ $_________
e. Medicare $_________ $_________ $_________
f. Health insurance $_________ $_________ $_________
g. Life and disability insurance $_________ $_________ $_________
h. Union dues $_________ $_________ $_________
262
i. Mandatory retirement $_________ $_________ $_________
j. Other_____________ $_________ $_________ $_________
4. Total payroll deductions $_________ $_________ $_________
(Add items in #3) $_________ $_________ $_________
5. Net monthly income $_________ $_________ $_________
(Subtract Line 4 from Line 2)
6. Monthly fixed expenses:
a. Residence $_________ $_________ $_________
b. Utilities $_________ $_________ $_________
c. Car payments $_________ $_________ $_________
d. Insurance premiums $_________ $_________ $_________
(1) Car or other vehicle $_________ $_________ $_________
(2) Life $_________ $__________ $_________
(3) Health $_________ $__________ $_________
(4) Homeowners or renters $_________ $__________ $_________
(5) Other $_________ $__________ $_________
e. Day care $_________ $__________ $_________
f. Credit card payments $_________ $__________ $_________
g. Loan payments $_________ $__________ $_________
h. Child support payments $_________ $__________ $_________
i. Medical $_________ $__________ $_________
j. Other ___________ $_________ $__________ $_________
7. Total monthly fixed expenses $_________ $__________ $_________
(Add items in #6 and #7) $_________ $__________ $_________
8. Net spendable income $_________ $__________ $_________
(Line 5 minus Line 7) $_________ $__________ $_________
9. 1/2 of combined net spendable
income (1/2 of Line 8 Column 3) $_________ $_________
10. Amount transferred and received $_________ $_________
11. Child support adjustment $_________ $_________
(see table, Use Note 15)
12. Total to be transferred $_________ $_________
_____________________________________
Signature
Subscribed to and sworn to before me this ______ day of _________________, _____, by
___________________________
___________________________
Notary Public
263
USE NOTES
1. This form is to be used with an Interim Order Allocating Income and Expenses, Domestic
Relations Form 4A-123 NMRA. Unless, upon motion of a party, the court orders the division of
separate income and expenses, only community income and expenses should be included on this
form. In minimal or negative income cases, the court will have discretion to fashion an
appropriate order.
2. Gross monthly income” is income from all sources except child support received from a prior
court order. For self-employed individuals, gross monthly income means gross receipts less
reasonable and ordinary business expenses. For varying income and expenses, use the average of
the last three (3) months' income and expenses.
Gross monthly income is to be computed by using one of the following: hourly wage x average
hours worked per week x 52 divided by 12; weekly wage x 52 divided by 12; every two weeks
wage x 26 divided by 12; twice monthly x 2. For varying wages, use the average of the last three
months' income.
3. Deductions” are payroll deductions for taxes, social security, health insurance, union dues,
retirement and other employer-related deductions. Payroll deductions are to be computed on a
monthly basis as described in Use Note 2.
4. Monthly fixed expenses” include periodic expenses even though paid quarterly, semiannually
or yearly. Fixed expenses are to be computed on a monthly basis by using one of the following:
annual income or expenses divided by 12. For varying expenses, use the average of the last three
months' receipts or expenses.
5. Residence fixed expense is mortgage or rent actually paid. If a party receives free rent, e.g.,
by living with parents, that party's rent is imputed as zero. If residence expense is a mortgage
payment for the residence of a party, unless already separately stated, include insurance and
taxes.
6. Include monthly average payments for gas, electricity, water, sewer, refuse and basic
telephone bill, if not paid as part of rent. Use average for last 12 months if known.
7. Do not include medical, dental, liability, life or other insurance that is deducted by payroll
deduction.
8. Do not include homeowners insurance premiums if the premium is included as part of the
residence expense, Line 6(a).
9. Day care fixed expense is work-related day care and does not include baby-sitting or
occasional day care.
10. Credit card payments” is listed as a fixed expense and includes only the minimum monthly
payment as of the date of the filing of the petition.
11. Any regular monthly payment ordered by a prior order of child support or alimony, which is
actually paid, is a fixed expense.
12. Line 8. “Net spendable income” and “combined net spendable income” are determined by
subtracting Line 7, “total monthly fixed expenses”, from Line 5, “net monthly income”.
Negative combined net spendable income. If the “combined net spendable income” (Line 8,
Column 3) is a negative number, and there are no children, adjust the
allocations of income or expenses between the parties, or transfer an amount from one party to
another so that the amount of net spendable income for the “Husband” and “wife” on Line 9 is
equal. Do not complete Lines 10, 11 and 12. If Line 8, Column 3 has a negative or minimal
264
“combined net spendable income”, and there are children, the court will need to fashion an
appropriate form to divide interim income and expenses of the parties.
13. Line 9. Equalizing spendable income. If “net spendable income” on Line 8, Column 3, is a
positive number, divide “combined net spendable income” by two and enter the result in each
column of Line 9.
14. Line 10. Amount transferred and received. The party with the larger net spendable income
will transfer an equalizing amount to the party with the smaller net spendable income. To
determine the amount of the transfer or receipt, subtract Line 9 (one-half of combined net
spendable income) from Line 8, “net spendable income” and enter the amount on Line 10. This
is the amount to be transferred by the party with the larger net spendable income to the party
with the lower net spendable income.
For example, if the husband has a net spendable income of $1,000.00 per month and the wife
has a net spendable income of $500.00 per month, divide the total, $1,500.00, by two. Since the
husband has the larger net spendable income, enter the result, $750.00, on Line 9, under Column
1. To determine the amount the husband transfers, subtract Line 9 of Column 1 from Line 8 of
Column 1 ($1,000.00 minus $750.00 = $250.00) and this amount ($250.00) will be transferred
each month by the husband to the wife.
15. Line 11. Children. If Line 8, Column 3, is a positive number, an adjustment for child support
is made by multiplying the amount on Line 8, Column 3 (combined “net spendable income”) by
the applicable percentage in the table below and enter the amount in the party column of the
party with primary custody of the child or children. Do not count children who are covered by a
prior child support order.
One child 10%
Two children 15%
Three children 19%
Four children 22%
Five children 25%
Six children 28%
If more than six children, add three percent (3%) for each additional child.
For example, if the combined “net spendable income” of husband and wife
(Column 3, Line 8, is $1,500.00) and there is one child multiply, Column 3, Line 8, ($1,500.00
by ten percent (10%)) and enter the result, ($150.00), on Line 11 in the husband and wife
columns.
16. Line 12. Total amount transferred. Line 11 is used to adjust the amount to be transferred by a
party or received by a party on Line 10 by the parties. Using the example in Use Notes 14 and
15. if there is one child and the combined net spendable income of the parties is $1,500.00, an
adjustment of ten percent (10%) of $1,500.00 ($150.00) is made for child support. If the wife has
primary custody, she will receive another $150.00. If the husband has primary custody, subtract
$150.00 from the amount the wife is to receive on Line 10. Using the example in Use Notes 14
and 15, if the wife has primary custody, the husband will transfer $400.00 to the wife. If the
husband has primary custody, the husband will transfer $100.00 to the wife.
[Approved, effective November 1, 2000 until November 1, 2001; approved, effective November
1, 2001.]
265
Interim Order
4A-123
[1-122]STATE OF NEW MEXICO
COUNTY OF ___________________________
___________________ JUDICIAL DISTRICT
_________________________________________,
Petitioner,
v.
No. ________________
_________________________________________,
Respondent.
INTERIM ORDER ALLOCATING INCOME AND EXPENSES
This matter having come on for a hearing by the court and the court being sufficiently advised
FINDS, CONCLUDES AND ORDERS:
1. NOTICE AND APPEARANCES
(check only applicable paragraphs)
[ ] Petitioner was present.
[ ] Petitioner was represented by counsel.
[ ] Respondent was present.
[ ] Respondent was represented by counsel.
[ ] Respondent was properly served with a copy of the notice of hearing on the motion for
temporary order dividing income and expenses.
2. The parties have agreed to the income and expenses of the parties except:
_____________________________________________________________.
3. The parties shall receive the income and pay the expenses as listed on the Interim Monthly
Income and Expense Statement.
4. Each party shall presumptively be responsible for any debts the party incurs during the
pendency of this case.
5. Any assets obtained by either party after the entry of this order from that party's share of net
spendable income are presumptively the separate property of the obtaining party.
6. Each party shall use the party's share of the income to pay the party's respective expenses for
food, clothing, telephone, utilities, gasoline, car maintenance, entertainment, meals out, haircuts,
attorney fees, ordinary medical and dental expenses and other personal expenses.
7. _____________________ (name of party) shall pay to ____________________ (name of
party) _____________________ dollars ($__________)2 per month by check or money order,
delivered or postmarked on or before the ______ of each month during the pendency of this case.
8. The medical and dental expenses of the child or children not covered by insurance shall be
paid one-half by each party.
9. Notwithstanding entry of this order, all claims and defenses are preserved.
10. This order shall remain in effect during the pendency of this case except as modified by
court order.
266
11. Disobedience of this order can constitute contempt of court and subject the violator to fine,
imprisonment and other sanction, plus payment of attorney fees and costs to the other party.
______________________________
District judge
Recommended by:
____________________________
Hearing officer
____________________________ ___________________________
Attorney for petitioner Attorney for respondent
CERTIFICATE OF MAILING
I _________________, certify that I caused a copy of this report and recommendations to be
served on the following persons by (delivery) (mail) on this ______ day of ____________,
_________________:
(1) _____________________
(Name of party)
(2) ______________________
(Name of party)
_______________________
Attorney
USE NOTE
1. This form is used with Domestic Relations Form 4A-122 NMRA.
2. For the amount to be transferred or paid, see Line 12 of Domestic Relations Form 4A-122
NMRA.
[Approved, effective November 1, 2000 until November 1, 2001; approved, effective November
1, 2001.]
267
Community Property Schedule
4A-131
[1-123]
STATE OF NEW MEXICO
COUNTY OF ___________________________
___________________ JUDICIAL DISTRICT
_________________________________________,
Petitioner,
v.
No. ________________
_________________________________________,
Respondent.
[PETITIONER] [AND] [RESPONDENT]'S COMMUNITY PROPERTY
AND LIABILITIES SCHEDULE
Neither party is required to submit a proposed distribution. Any stipulation regarding value or
distribution should be indicated by an asterisk.
ASSETS Value
Husband Wife Combined
1. Cash $_________ $_________ $_________
2. Financial institution accounts:
a. __________ Account # _________ $_________ $_________ $_________
b. __________ Account # _________ $_________ $_________ $_________
c. __________ Account # _________ $_________ $_________ $_________
d. __________ Account # _________ $_________ $_________ $_________
3. Stocks, bonds and mutual funds:
a. ____________ Sh.___________ $_________ $_________ $_________
b. ____________ Sh.___________ $_________ $_________ $_________
c. ____________ Sh.___________ $_________ $_________ $_________
4. Insurance policies:
a. Company _________________
[Face amount $____________]
Cash value $_____________ $___________$_________ $_________
Loan balance $ __________ $___________$_________ $_________
b. Company _______________
[Face amount $_________]
Cash value $___________ $_________ $_________
Loan balance $ __________ $_________ $_________ $_________
5. Real estate:
a. ___________ $________
Mortgage ($/mo) $________
268
REC ($/mo) $________
Cost of sale
($/%) $________ $________ $__________ $________
b. ___________ $________
Mortgage ($/mo) $________
REC ($/mo) $________
Cost of sale ($/%) $________ $________ $_________ $________
6. Vehicles:
a. ___________ $________
Lien ($/mo) $________ $________ $_________ $________
b. ___________ $________
Lien ($/mo) $________ $________ $_________ $________
7. Business assets $________ $_________ $________
8. Household furniture and
goods $________ $_________ $________
9. Tax refunds $________ $________ $________
10. IRA/Keogh/Annuity $________ $_________ $________
11. Retirement $________ $_________ $________
12. Retirement $________ $_________ $________
13. Other total assets $________ $_________ $________
Total assets $_________ $_________ $________
LIABILITIES (Mo/Pmt) Value: Husband: Wife:
1. ____________ $(_____) $________ $________ $________
2. ____________ $(_____) $________ $________ $________
3. ____________ $(_____) $________ $________ $________
4. ____________ $(_____) $________ $________ $________
5. Tax Liability $(_____) $________ $________ $________
Total liabilities: $(_____) $________ $________ $________
ESTIMATED
NET ASSETS: $________ $________ $________
Equalization of
Assets: $________ $________ $________
EQUAL ASSETS: $________ $________ $________
I have read the foregoing and the amounts are true and correct. I understand that if I make a
material misstatement of fact, I may be prosecuted and punished for perjury.
________________________________________
Signature
________________________________________
Name (print)
________________________________________
Address (print)
________________________________________
City, state and zip code (print)
________________________________________
Telephone number
269
NOTARY PUBLIC
Signed and sworn to before me this _____ day of __________________, ______.
____________________________
My commission expires: ____________________________.
USE NOTE
1. Include all checking, savings and money market accounts and certificates of deposit.
[Approved, effective November 1, 2000 until November 1, 2001; approved, effective November
1, 2001.]
270
Separate Property Schedule
4A-132
STATE OF NEW MEXICO
COUNTY OF ___________________________
___________________ JUDICIAL DISTRICT
_________________________________,
Petitioner,
v.
No. ________________
_________________________________,
Respondent.
[PETITIONER] [AND] [RESPONDENT]'S SEPARATE
PROPERTY AND LIABILITIES SCHEDULE
ASSETS:
Husband Wife
1. Checking & Savings Accounts:
a. __________Bk, Ck. #__________ $_________ $_________
b. __________Bk, Sav. #_________ $_________ $_________
c. __________CD # ____________ $_________ $_________
d. __________Cr Un #___________ $_________ $_________
2. Bonds/Stocks:
a. ____________ Sh.___________ $_________ $_________
b. ____________ Sh.___________ $_________ $_________
3. Financial institution accounts: 1
a. __________ Account # _________ $_________ $_________
b. __________ Account # _________ $_________ $_________
c. __________ Account # _________ $_________ $_________
d. __________ Account # _________ $_________ $_________
4. Stocks, bonds and mutual funds:
a. ____________ Sh.___________ $_________ $_________
b. ____________ Sh.___________ $_________ $_________
c. ____________ Sh.___________ $_________ $_________
5. Insurance policies:
a. Company ____________________
Policy No. _________________
Face amount $_______________
Cash value $________________
Loan balance $_______________ $_________ $_________
b. Company _____________________
Policy No. __________________
Face amount $________________
271
Cash value $_________________
Loan balance $_______________ $_________ $_________
6. Real estate:
a. _______________
Present value $______________
Mortgage ($/mo) $____________
REC ($/mo) $_________________ $_________ $__________
b. _______________
Present value $_________________
Mortgage ($/mo) $_________________
REC ($/mo) $_________________ $___________ $___________
7. Vehicles:
a. ________________ $___________ $___________
Lien ($/mo) $___________ $___________
b. ________________ $___________ $___________
Lien ($/mo) $___________ $___________
8. Business assets $___________ $___________
9. Household furniture and goods $___________ $___________
10. Tax refunds $___________ $___________
11. IRA/Keogh/Annuity $___________ $___________
12. Retirement $___________ $___________
13. Retirement $___________ $___________
14. Other total assets $___________ $___________
Total Separate Assets: $___________ $___________
LIABILITIES:
a. ________________________ $___________ $___________
b. ________________________ $___________ $___________
c. ________________________ $___________ $___________
d. ________________________ $___________ $___________
Total Separate Liabilities: $___________ $___________
NET SEPARATE PROPERTY: $___________ $___________
I have read the foregoing and the amounts are true and correct. I understand that if I make a
material misstatement of fact, I may be prosecuted and punished for perjury.
______________________________________
Signature
______________________________________
Name (print)
______________________________________
Address (print)
______________________________________
City, state and zip code (print)
______________________________________
Telephone number
272
NOTARY PUBLIC
Signed and sworn to before me this _____ day of ___________________, ______.
____________________________
My commission expires: ___________________________
[Approved, effective November 1, 2000 until November 1, 2001; approved, effective November
1, 2001.]
273
Simple Final Decree 4A-341
4A-341
STATE OF NEW MEXICO
____________________ COUNTY
____________________ JUDICIAL DISTRICT
_____________________________________,
Petitioner,
v. No. _____________
_____________________________________,
Respondent.
FINAL DECREE OF DISSOLUTION OF MARRIAGE
(No Children)
This matter was brought before the court by ___________________ (husband's name) and
___________________ (wife's name). They have asked the court to end their marriage and enter
a Final Decree of Dissolution of Marriage. In addition, the parties have filed a Verified Marital
Settlement Agreement (“agreement”) that settles the claims related to their marital relationship.
This court has considered the parties' agreement set forth here, and finds the parties' requests to
be reasonable.
THIS COURT FINDS AND CONCLUDES:
1. The court has jurisdiction over the parties and the subject matter of this action. The parties are
entitled to a decree of dissolution of marriage on grounds of incompatibility.
2. The parties have sworn, under oath, that the agreement is complete, true and correct.
3. The parties have sworn, under oath, that the agreement divides all known property and debt of
the parties, settles their rights and obligations and is fair.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED:
1. The marriage of husband and wife is dissolved on the grounds of incompatibility.
2. (Wife to choose A or B)
[ ] A. Wife will keep her present name.
[ ] B. Wife's name is changed from
_____________________ to _____________________. (Wife must use a name previously used
by her and not a new name.)
3. The parties are ordered to comply with the terms of the Verified Marital Settlement
Agreement, the terms of which are incorporated here by reference.
4. This case is now closed.
________________________________
District judge
When I sign here, I am telling the judge that I have read this document and agree with everything
in it. I state, upon oath, that this document, and the statements in it, are true and correct as far as I
know and believe.
__________________________ __________________________
Husband's signature Wife's signature
274
Address: __________________ Address: _________________
___________________________ __________________________
Telephone:________________ Telephone: _______________
[Approved, effective November 15, 2001 until November 15, 2002.]
Cross reference
See Rule 4A-209 for an explanation of this form.
Final Decree With Children 4A-342
STATE OF NEW MEXICO
____________________ COUNTY
____________________ JUDICIAL DISTRICT
_____________________________________,
Petitioner,
v.No. _____________
_____________________________________,
Respondent.
FINAL DECREE OF DISSOLUTION OF MARRIAGE
(with children)
This matter was brought before the court by ________________________ (husband's name)
and ________________________ (wife's name). They have asked the court to end their marriage
and enter a Final Decree of Dissolution of Marriage. In addition, the parties have filed a Verified
Marital Settlement Agreement (“agreement”) that settles the claims related to their marital
relationship. They have also entered into a Parenting Plan and Child Support Agreement
(“parenting plan”) that sets out the custody and child support of their [child] [children]. This
Court has considered the parties' agreements, and finds the parties' requests to be reasonable.
This court has considered the parties' agreement set forth here, and finds the parties' requests to
be reasonable.
THIS COURT FINDS AND CONCLUDES:
1. The court has jurisdiction over the parties, the [child] [children] and the subject matter of this
action. The parties are entitled to a Final Decree of Dissolution of Marriage on grounds of
incompatibility.
2. The parties have sworn, under oath, that the agreement and the parenting plan are complete,
true and correct.
3. The parties have sworn, under oath, that the agreement divides all known property and debt of
the parties, settles their rights and obligations and is fair.
4. The filed parenting plan determines custody and child support of the parties' minor [child]
[children]. The parties have sworn, under oath, that the parenting plan is in the best interest of the
children.
5. (Judge to complete.)
[ ] The child support guidelines are appropriate in this case.
or
275
[ ] The child support guidelines are unjust or inappropriate in this case because they result in
substantial hardship. It is appropriate to deviate from the child support guidelines in this case.
276
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED:
1. The marriage of husband and wife is dissolved on the grounds of incompatibility.
2. (Wife to choose A or B)
[ ] A. Wife will keep her present name.
[ ] B. Wife's name is changed from _________________ to ________________________.
(Wife must use a name previously used by her and not a new name.)
3. (Judge to complete as appropriate.)
[ ] Husband [ ] Wife is ordered to pay child support in the amount of _____________ to the
other parent.
4. (Judge to complete as appropriate.)
[ ] The parties have joint custody of the [child] [children].
or
[ ] Father [ ] Mother is the sole custodian of the [child] [children].
5. The parties are ordered to comply with the terms of the Verified Marital Settlement
Agreement and the Parenting Plan and Child Support Agreement, the terms of which are
incorporated here by reference.
6. This case is now closed. However, the court will have continuing jurisdiction over issues
relating to the [child] [children] of the marriage until the [child reaches] [children reach] the age
of majority as provided by law.
________________________________
District judge
When I sign here, I am telling the judge that I have read this document and agree with everything
in it. I state, upon oath, that this document, and the statements in it, are true and correct as far as I
know and believe.
__________________________ __________________________
Husband's signature Wife's signature
Address: ___________________ Address: ___________________
___________________________ ___________________________
Telephone:__________________ Telephone: _________________
[Approved, effective November 15, 2001 until November 15, 2002.]
Cross reference
See Rule 4A-209 for an explanation of this form.
277
Sample Final Decree Of Dissolution Of Marriage
SECOND JUDICIAL DISTRICT COURT
COUNTY OF BERNALILLO
STATE OF NEW MEXICO
Diane Diaz,
Petitioner,
v. NO. DR 2002- 1138
Victor Diaz,
Respondent,
FINAL DECREE OF DISSOLUTION OF MARRIAGE
This matter comes before this Court upon Petitioner’s request for a Final Decree of
Dissolution of Marriage. Petitioner appeared in person and by counsel, Danielle Tsosie,
practicing law student of the University of New Mexico Law School Clinical Programs, and
April Land, supervising attorney. Respondent appeared in person, and by counsel, Juan
Hernandez. The Court has reviewed the pleadings, and considered the documentary evidence and
is otherwise fully advised, makes the following Findings of Fact and Conclusions of Law.
I. JURISDICTION AND VENUE
1. Petitioner and Respondent are domiciled in New Mexico, and have resided in Bernalillo
County, New Mexico, for at least six months prior to the filing of this Petition.
II. THE MARRIAGE
2. Petitioner and Respondent were married on January 27, 1992 in Albuquerque, New Mexico
and have been husband and wife since that time.
3. Due to differences in temperament and outlook, Petitioner and Respondent are incompatible.
There is no reasonable expectation of reconciliation.
278
III. PROPERTY AND DEBTS
4. Petitioner and Respondent have entered into a Marital Settlement Agreement that is reasonable
and settles the rights and obligations of the parties regarding their property. The Marital
Settlement Agreement dated August 1, 2002, is attached to this Decree and is, incorporated in
this Decree by reference.
5. The Marital Settlement Agreement is reasonable and settles the rights and obligations of the
parties.
IV. CHILD CUSTODY
6. There are three minor children of the marriage, Angelique Diaz, born December 15, 1995,
Brianna Diaz born June 23, 1998, and Milagro Diaz born March 12, 2000.
7. The parties have agreed upon a Parenting Plan in which the parents share joint custody of the
children and time-sharing. The Parenting Plan dated July 27, 2002, is approved and incorporated
in this Decree by reference.
V. CHILD SUPPORT
8. Respondent should be ordered to pay child support in accordance with the New Mexico Child
Support Guidelines as set forth in the attached Child Support Worksheets.
9. The parties shall annually exchange financial information in accordance with §40-4-11.4
NMSA.
VI. SPOUSAL SUPPORT
10. Each party is able to support him or herself adequately and no alimony or spousal support
should be awarded to either party.
279
VII. ATTORNEY'S FEES AND COSTS
11. Petitioner does not need an award of attorney's fees and costs to adequately prepare and
present her case. Respondent shall pay his own attorney fees and costs.
VIII. NAME RESTORATION
12. Petitioner’s request for restoration of her former name should be granted.
IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED:
1. The marriage between Petitioner and Respondent is dissolved on the grounds of
incompatibility.
2. The property of the parties is distributed according to the terms of the Verified Marital
Settlement Agreement, and the parties are ordered to comply with the terms of that
Agreement.
3. The parties are awarded joint custody of the children of the marriage, and are ordered to
comply with the custody and timesharing provisions of the Parenting Plan.
4. Respondent shall pay Petitioner child support as provided in the Verified Marital
Settlement Agreement.
5. Petitioner’s name is restored to Diane Dominguez.
_______________________________
District Judge
Approved:
_____________________________ ___________________________
Diane Diaz, Petitioner Victor Diaz. Respondent
_____________________________ ____________________________
Danielle Tsosie Juan Hernandez
Practicing Law Student for Petitioner Attorney for Respondent
UNM Clinical Law Program 1348 San Mateo
1117 Stanford Drive N.E. Albuquerque, New Mexico 87112
Albuquerque, New Mexico 87131 (505) 265-4563
(505) 277-5265
280
____________________________
April Land
Supervising Attorney
281
Sample Marital Settlement Agreement
SECOND JUDICIAL DISTRICT COURT
COUNTY OF BERNALILLO
STATE OF NEW MEXICO
Diane Diaz,
Petitioner,
v. NO. DR 2002- 1138
Victor Diaz,
Respondent,
VERIFIED MARITAL SETTLEMENT AGREEMENT
The parties, Petitioner, Diane Diaz and Respondent, Victor Diaz, have reached the
following agreement regarding the distribution of their property and debts. This Agreement is a
complete and fair settlement of all rights and obligations arising out of their marriage. Petitioner
and Respondent also stipulate that all representations in this Agreement are true and accurate
statements and ask that the Court enter a Final Decree of Dissolution of Marriage adopting all of
the terms of this Agreement as a final judgment.
Each party has consulted with an independent attorney who was freely selected before
signing this Agreement. Each party signs this Agreement with full knowledge of its contents,
with advice about its meaning and legal significance, and without coercion, duress or undue
influence of any kind.
PROPERTY
A. Separate Property
. Petitioner and Respondent have been separated for approximately
two years and have already equitably divided all of their respective separate property. The
separate property consists of personal effects and minor household items.
282
B. Community Property. The community property of the parties is hereby described and
divided in the following manner.
1. Petitioner’s share of the community property that is distributed to her as sole and separate
property includes:
a. the red 1984 Toyota Corolla Station Wagon, Vehicle Identification Number (VIN)
126F94769DF 573, to the Petitioner.
b. A joint checking account at New Mexico Federal Credit Union, account umber 0098987, with
a current balance of approximately $497.00.
c. A brown corduroy couch
d. Electrolux Vacuum cleaner
e. Set of bunk-beds and children’s sheets
f. General Electric Washer and Dryer
g. Half of the Family Photographs
2. Respondent's share of the community property that is distributed to him as his sole and
separate property includes:
a. the green 1981 Chevy Conversion Van, Vehicle Identification Number 77735XS90351.
b. the savings account at the New Mexico Federal Educators Credit Union with $133.00.
c. the 22 inch Zenith color television set
d. Red Tool box
e. Oak bedroom set
f. Half of the Family Photographs
283
3. Any other community property of the marriage is limited to minor household items and shall
become the sole and separate property of the party who has possession of the property.
DEBTS
A. Debt Allocation. The community and joint debts are hereby allocated between the
parties as follows:
1. Petitioner shall pay as her sole and separate debt:
a. the $1,200 student loan taken out in her name.
2. Respondent shall pay as his/her sole and separate debts:
a. the $500.00 Bank of America Visa credit card debt on account number 5792992;
and,
b. the $250 hospital bill, payable in installments of $5.00 per month to University
Hospital.
B. Other. Any debt not listed will be the sole responsibility of the party who created it.
C. Indemnification. Each party indemnifies the other party for all expenses, costs and
attorney's fees incurred when a creditor attempts to collect or does collect a debt from one party
that was assumed by the other party under this Agreement.
D. Credit
. Each party will cooperate in turning in all credit cards and do all other
necessary acts to cancel or change any credit account established on community or joint credit.
Any charges made after the effective date of this Agreement on any account shall be the separate
debt of the party who made the charges.
284
TAXES
A. Tax Returns. The parties will file separate state and federal tax returns for the 2002 tax
year or as otherwise required by law. Each acknowledges that from January 1 of 2002 up to the
effective date of this Agreement, each will declare one-half of the community income of the
other party on his or her respective return. Each party will also declare one-half of the other
party's community withholding and estimated prepaid tax for that period, and one-half of the
deductions created by paying community or joint obligations with community monies. Each
party will keep his or her own tax refund from such return.
The parties will exchange information regarding earnings, income, withholding, prepaid
tax, and deductions on or before March 1 of the year in which the return will be prepared. The
parties will cooperate in providing other information necessary to prepare such returns.
In the event that Petitioner has to pay any additional tax, interest or penalties as a result of
having to declare one-half of Respondent’s income, withholding and/or prepaid estimated tax,
then Respondent will promptly pay Petitioner for all such additional tax, interest or penalties
before Petitioner's return is filed or by way of reimbursement.
B. Indemnification and Prior Joint Returns. Each party will indemnify the other for all
costs, expenses and attorneys' fees incurred when any tax authority attempts to collect or does
collect a tax obligation from one party that was assumed by the other party under this
Agreement. In the event any prior joint return is audited or contested, and any additional tax,
interest or penalties are found due, the parties will each pay only one-half of such additional tax,
interest or penalties. The indemnification stated above shall also be applicable to the tax liability
on prior returns.
285
C. Exemption. Petitioner will claim the income tax exemptions under §151 of the Internal
Revenue Code or its successor section and under any state law tax counterpart for the children
for each taxable calendar year.
SPOUSAL SUPPORT
Each party waives any claim to alimony or spousal support.
GENERAL TERMS AND CONDITIONS
A. Good Faith Disclosure. Each party has made representations or provided information
in good faith to the other party concerning all of the property and debts known by that party.
Each party has relied on the representations made to him or her by the other.
B. Documents. The parties shall execute whatever documents are necessary to effect the
division of and clear title to the property set forth above. Should any party fail or refuse to do so,
this Agreement shall constitute an actual grant or assignment and conveyance of the property
rights set forth above or may be used to obtain a court order to effect the division and to clear
title.
C. Legal Expenses. Each party will bear her or his own legal expenses and costs incurred
in this action up to the entry of the Final Decree of Dissolution.
D. Default
. In the event either party defaults on his or her obligations under this
Agreement, the defaulting party shall be liable to the other party for all reasonable expenses
incurred by the other party, including attorneys' fees, in pursuing enforcement of the obligations
created by this Agreement.
E. Effective Date. This Agreement shall be fully effective and binding upon the parties
and their personal representatives and assigns as of August 31, 2002. Any property acquired by
either party after the effective date shall be the sole and separate property of the party acquiring
the same.
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F. Severability. If any term of this Agreement shall be deemed void or otherwise
unenforceable, the other terms shall survive, be severable and be enforceable independently.
G. Final Agreement. This Agreement shall be deemed the complete and final agreement
between the parties and no prior or contemporaneous communications, discussions or
negotiations may be used to vary or contradict its terms. All prior or contemporaneous
statements or communications are deemed fully merged into this Agreement.
H. Release. Each party is released and absolved from any obligations to the other except
those obligations arising out of this Agreement, and each releases the other from any liabilities,
debts or obligations of any kind incurred by the other and from any claims or demands except
those arising out of this Agreement. Each party relinquishes any right, title or interest in or to any
earnings, accumulations, future investments, money or property of the other party except as
contained herein.
I. Modification. Any modification of this Agreement to be deemed effective must be in
writing and signed by both parties.
__________________________
Diane Diaz, Petitioner
STATE OF NEW MEXICO )
) ss
COUNTY OF BERNALILLO )
SUBSCRIBED AND SWORN TO before me on this ________ day of __________________,
2002, by Victor Diaz.
__________________________________
NOTARY PUBLIC
My commission expires:____________________
287
__________________________
Victor Diaz, Respondent
STATE OF NEW MEXICO )
) ss
COUNTY OF BERNALILLO )
SUBSCRIBED AND SWORN TO before me on this ________ day of __________________,
2002, by Victor Diaz.
__________________________________
NOTARY PUBLIC
My commission expires:____________________
Approved:
Attorneys for Petitioner: Attorney for Respondent:
__________________________ ____________________________
Danielle Tsosie Juan Hernandez
Practicing Law Student for Petitioner Attorney for Respondent
UNM Clinical Law Program 1348 San Mateo
1117 Stanford Drive N.E. Albuquerque, New Mexico 87112
Albuquerque, New Mexico 87131 (505) 265-4563
(505) 277-5265
____________________________
April Land
Supervising Attorney
288
Sample Parenting Plan
SECOND JUDICIAL DISTRICT COURT
COUNTY OF BERNALILLO
STATE OF NEW MEXICO
Diane Diaz,
Petitioner,
CASE NO. DM-2002-1138
v.
Victor Diaz
Respondent.
PARENTING PLAN
The parties have agreed to the following parenting plan to resolve custody and time-
sharing issues regarding their three children. The three minor children of the parties and the
marriage are Angelique Diaz, born December 15, 1995, Brianna Diaz born June 23, 1998, and
Milagro Diaz born March 12, 2000.
1. LEGAL CUSTODY
Both parents are fit and proper persons to raise their children and it is in the best interests of the
children that the parents share joint legal custody.
Joint legal custody means that the parents will consult with each other on major decisions
involving their children before implementing those decisions; neither parent will make a
decisions or take an action which results in a major change in their children’s lives until the
matter has been discussed with the other parent and the parents agree. No changes will be made
until a new agreement or resolution has been made.
Major decisions will include, but are not limited to: elective medical and dental treatment;
school; day care; place of residence; religious denomination and religious activities; and,
recreational activities. Ordinary childcare decisions will be made by the parent during his or her
period of responsibility.
2. STATUS QUO FOR: Angelique Diaz
Residence: With Mother
2408 Las Lomas SW
Albuquerque, NM 87105
Religion: Catholic
Doctor: Dr. Seelinger
Dentist: Bright Teeth Dental Clinic
Therapist: None
289
School: Monte Vista Elementary
Child Care: Maternal grandparents or Sweetheart Day Care
Recreational: None
3. STATUS QUO FOR: Brianna Diaz
Residence: With Mother
2408 Las Lomas SW
Albuquerque, NM 87105
Religion: Catholic
Doctor: Dr. Seelinger
Dentist: Bright Teeth Dental Clinic
Therapist: None
School: Monte Vista Elementary
Child Care: Maternal Grandparents or Sweetheart Day Care
Recreational: None
4. STATUS QUO FOR: Milagro Diaz
Residence: With Mother
2408 Las Lomas SW
Albuquerque, NM 87105
Religion: Catholic
Doctor: Pediatric Associates
Dentist: Bright Teeth Dental Clinic
Therapist: None
School: None
Child Care: Maternal Grandparents or Sweetheart Day Care
Recreational: None
5. TIMESHARING:
Mother and Father have been flexible about time-sharing, and will continue to be flexible
about time-sharing. However, when the parties are unable to reach an informal agreement about
the periods of timesharing responsibility, the fixed schedule will be as follows:
Weekdays: During the week, the children will stay with their Mother. Father and all paternal
relatives agree not to take the children out of school for unannounced weekday visits. If Father
wishes to, and Mother agrees, Father may have children during the week if he picks them up
after school hours and drops them all off, with homework completed, at Mother’s home by 7:00
p.m. Father must make weekday timesharing arrangements at least three days in advance.
Weekends: Father will have the children the second weekend of every month, beginning at 3:30
p.m. on Friday and ending at 11:30 a.m. on Sunday. If this is not possible, the children will stay
with Mother. Father may have more than one weekend a month with the children if he gives
Mother at least three day’s notice.
Vacations/Summer: Each parent will have uninterrupted time with the children for two weeks
each summer, provided that the parent gives the other at least ten (10) days notice.
290
Christmas Holidays: The children will spend the Christmas school holiday with both parents as
they agree to from time to time. However, on Christmas Day, Mother will have children
beginning at noon until 8 p.m. Christmas night. The children will stay with their Father on
Christmas Eve. Otherwise, Father has timesharing on the second weekend of this month.
Thanksgiving Holidays: On Thanksgiving Day, Father will have children either in the morning
after 9:00 a.m. up to 1:00 p.m. or in the afternoon from 1:00 p.m. to 5:00 p.m. The children will
stay with their Mother both the night before and the night of Thanksgiving.
Spring Break from School: Father will have the children only the portion of the break that falls
on the second weekend of the month. Otherwise, the children will stay with their mother.
Other Holidays/Events: The children will stay with Mother on Mother’s Day and on Mother’s
Birthday and with Father on Father’s Day and on Father’s Birthday.
Children’s Birthdays: The children will stay with their Mother on their birthdays. Father will
have the children on the day before or the day after the child’s birthday, as agreed by both
parents.
6. PARENTING PROVISIONS
a) Periods of Responsibility:
During a parent’s period of responsibility, that parent is responsible for transporting the children
to day care and to school; that parent is responsible for caring for the children if they become ill
during that parent’s period of responsibility. Father is responsible for transporting the children to
and from the Mother’s home for his periods of responsibility.
b) Parental Involvement:
The parents further agree to be actively involved in the decisions and responsibilities regarding
the children and to communicate and be flexible about their children’s needs especially as those
needs change due to the children’s growth and development.
c) Supportive of Relationships:
The parents agree to be supportive of the children’s relationship with the other parent. Each will
give permission to the children to enjoy the relationship with the other parent and neither will
interfere with or hinder the parent-child relationship with the other parent. The parents agree that
neither will align the children with him or her against the other parent or the other parent’s
family.
d) Change of Address and Telephone Numbers:
The parents will promptly notify each other of any changes in residential addresses and
residential, work and mobile telephone numbers.
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e) Telephone and Mail;
The parents agree that the children have a right to place phone calls to and receive phone calls
from the absent parent, and to send and receive letters and packages, without interference from
the other parent.
f) Emergencies:
The parents agree that in case of a medical emergency the parent with that period of
responsibility will contact the other parent concerning the treatment of the children as soon as
possible. If the absent parent cannot be reached, the available parent will make any decisions for
emergency medical treatment in the child’s best interest.
g) Exceptions and Temporary Changes to the Timesharing Schedule:
Either party may ask the other for exceptions to this timesharing schedule from time to time, but
both understand that the other parent has the right to say “No.” Neither parent will argue about or
criticize the decision.
h) Notice of Cancellation and Scheduling:
Both parties agree that notice and predictability of periods of timesharing are important for the
welfare of the children and the well-being of the parents. The parties agree that notice of
cancellation of weekend and weekday visitation shall be a minimum of 8 hour’s notice to the
other party. Cancellation of summer holiday timesharing shall require 5 days notice. Cancellation
of timesharing will not be construed as a waiver of future timesharing; however, the party who
misses his or her period of timesharing is not entitled to make-up time unless the parties agree.
i) When a Parent Cannot Care for the Children During His or Her Period of Responsibility:
If a parent cannot care for the children during his or her scheduled period of responsibility, he or
she will notify the other parent who may care for the children during that period of
responsibility.
j) Removal from New Mexico:
Neither parent will remove, cause to be removed, or permit removal of the children from the
State of New Mexico without the written consent of the other parent or resolution of the dispute
by the methods agreed to in this Parenting Plan.
7. DISPUTE RESOLUTION
a) General Concerns (day to day matter and temporary changes in the timesharing
schedule):
1. Oral discussion: The parents will discuss general concerns, day to day matters
regarding their children, and temporary changes to the timesharing schedule. The
parents will make good faith efforts to reach agreement on the matters discussed. If
they cannot reach an agreement, either party may request mediation and they both
agree to participate in mediation.
b) Changes in Status Quo and Permanent Changes to Timesharing Schedule:
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1. Written proposals: If either parent wants to permanently change the timesharing plan
or any aspect of the status quo, the parent who wants the change will give to the other
a written change proposal that will include: 1) what (s)he wants to change; 2) why
(s)he wants the change; and, 3) enough information so that the other parent will be
able to investigate. For example, the change proposal will include necessary names,
addresses and phone numbers and a reasonable time limit for responding. The parent
who receives the change proposal will investigate the proposed change and will
respond in writing within a reasonable time. If one parent does not agree to the
proposed change, (s)he must say why, and when appropriate, make a counter-
proposal, also in writing.
8. MEDICAL INSURANCE AND EXPENSES
a. The parents will consult with each other before incurring extraordinary medical expense,
including orthodontia expenses, except in the case of an emergency situation, where it is
impractical to consult with the other parent prior to incurring the extraordinary medical
expense.
b. Father will maintain medical and dental insurance for the benefit of the minor children.
c. If the children have health and/or dental insurance coverage through an HMO, the parent
who accompanies the child to routine medical / dental treatment will pay the co-pay for
that treatment.
d. Father and Mother will each pay one-half of the children’s uninsured medical expenses
including medical, dental, psychological, prescriptions and one-half of other deductibles.
9. GENERAL PROVISIONS
a. Total agreement. This written document contains the entire understanding of the parties.
The parties rely on no representations other than those expressly stated in this document.
b. Modification and Waiver of Provisions. A modification or waiver of this Parenting Plan
must be in writing and signed in front of a notary public. Either party’s failure to insist
upon performance of any provision of this Parenting Plan shall not be a modification or
waiver of that provision.
c. Payment of Attorney Fees and Costs. Both parties will assume and pay their own attorney
fees and costs incurred in the negotiation and preparation of this Parenting Plan.
d. New Mexico law. This Parenting Plan shall be governed, construed and enforced in
accordance with the laws of the State of New Mexico.
__________________________
Diane Diaz, Petitioner
STATE OF NEW MEXICO )
) ss
COUNTY OF BERNALILLO )
293
SUBSCRIBED AND SWORN TO before me on this ________ day of __________________,
2002, by Victor Diaz.
__________________________________
NOTARY PUBLIC
My commission expires:____________________
__________________________
Victor Diaz, Respondent
STATE OF NEW MEXICO )
) ss
COUNTY OF BERNALILLO )
SUBSCRIBED AND SWORN TO before me on this ________ day of __________________,
2002, by Victor Diaz.
__________________________________
NOTARY PUBLIC
My commission expires:____________________
Approved:
Attorneys for Petitioner: Attorney for Respondent:
__________________________ ____________________________
Danielle Tsosie Juan Hernandez
Practicing Law Student for Petitioner Attorney for Respondent
UNM Clinical Law Program 1348 San Mateo
1117 Stanford Drive N.E. Albuquerque, New Mexico 87112
Albuquerque, New Mexico 87131 (505) 265-4563
(505) 277-5265
____________________________
April Land
Supervising Attorney
294
Child Support Worksheet A
WORKSHEET A - BASIC VISITATION
MONTHLY CHILD SUPPORT OBLIGATION
Custodial Other
Parent
Parent Combined
1. Gross Monthly Income $_______ + $_______ = $_______
2. Percentage of Combined Income
(Each parent's income divided
by combined income) ________% + _______% = 100%_
3. Number of children ________
4. Basic Support from Table A
(Use combined income from
Line 1) = _______
5. Children's Health and Dental
Insurance Premium ________ + ________ = _______
6. Work-related Child Care ________ + ________ = _______
7. Additional Expenses ________ + ________ = _______
8. Total Support (Add
Lines 4 [sic],5, 6 and
7 for each parent and for
combined column) ________ + ________ = _______
9. Each Parent's Obligation
(Combined Column Line 8 X each
parent’s Line 2) ________ ________
10. Enter amount for each parent
from Line 8 _________ _________
11. Each parent's net obligation
(Subtract Line 10 from Line 9
for each parent).
_______________ _______
Custodial Parent Other Parent pays
this Amount this Amount
PAYS EACH MONTH $___________
Use with Table A and instructions.
_________________________ _________________________
Petitioner Respondent
295
_____________________ _________________________
Attorney for Petitioner Attorney for Respondent
Date:
Bibliography
Herman, Michelle, Domestic Relations Handbook For New Mexico (Unm Law Clinic 1991)
David H. Kelsey & William N. Henderson, New Mexico Divorce Manual: A Systems Approach
To Family Law In New Mexico (Institute Of Public Law 1978).
Thomas C. Montoya, New Mexico Domestic Relations Law And Forms (Lexis Law Publishing
1997).
Shapiro, Barbara L., Family Law In New Mexico (Abogada Press, 1998).
State Bar Of New Mexico, New Mexico Domestic Relations Manual (1985).
296
XVI. Custody Options for Non Parent Caregivers
Many children in New Mexico are living with caregivers other than their parents. This
chapter discusses the legal mechanisms by which a person, other than a parent, can secure some
legal decision-making authority over a child that is already in his or her care. This chapter does
not address cases involving formal allegations of abuse and neglect by the Children Youth and
Families Division of the state as provided by the Children’s Code. See NMSA §32-4-1, et seq.
The chapter begins with a brief overview of the legal context in which decision-making
powers over children are transferred between private parties. It then briefly explains several of
the options that are available in the state of New Mexico for caretakers seeking legal decision-
making authority over children in their care. It also outlines the procedures necessary to establish
each of the options.
The options are set forth beginning with the mechanisms that transfer the least parental
authority, and ending with the mechanism which transfers the most parental authority. A chart
comparing the different legal mechanisms, and some sample forms are included.
Legal Framework
Legal Custody is Decision Making Power
In order to evaluate the best option for a client seeking to transfer decision-making
authority over a child to another person, it is important to understand that physical custody is
different from legal custody. Physical custody involves attending to the daily needs of a child.
Legal custody is the right to make decisions about important aspects of a child’s life. Legal
custody is, generally, the right to make decisions about a child’s education, religion, medical
care, residence, and recreation. These are the decision-making rights that are transferred through
the legal mechanisms discussed in this chapter.
Parents have a Constitutionally Protected Fundamental Right to Parent
Parents have a fundamental liberty interest in the care custody and management of their
children. See, Santosky v Kramer 455 U.S. 745 (1982). This fundamental interest is the starting
point for any transfer of legal decision-making power. The protection of parents’ constitutional
rights is the basis for many of the statutory requirements in this area, and for the limitations on
the rights of caretakers to make decisions for children in their care. Nonetheless, New Mexico
law does provide for several mechanisms through which legal decision-making authority can be
transferred to caretakers.
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Legal Mechanisms For The Transfer Of Authority
Caregiver’s Authorization Affidavit
A person over 18 with whom a child resides, and who provides the child with care
maintenance and supervision, may secure authority to enroll the child in school and for school
related medical care by executing a “Caregivers Authorization Affidavit” pursuant to § 40-10B-
15. NMSA. If the caregiver is a qualified relative, within the definition set forth in § 40-10B-3.
E, then the caregiver’s affidavit may also be used to authorize medical care, dental care and
mental health care for the child. All the caregiver must do is fill out and sign a copy of the
statutory form in front of a Notary Public.
The form does not impact the parents’ rights, other than to allow a caregiver to change a
previous decision made by a parent about school or medical care. The parents still retain their
rights to make those decisions for the child. Because of the minimal impact on the parental
rights, the caregiver must indicate only that the parent has been advised of the intent to
authorized medical treatment and has not objected, or that the caregiver is unable to contact the
person.
The Caregivers Authorization Affidavit is effective for up to one year. And, if the child
stops residing with the caregiver, the caregiver must notify any school, health care provider or
other person to whom the affidavit has been given. The statute also provides health care
providers with protection from liability for any good faith reliance on the affidavit to authorize
medical care.
Power of Attorney
A parent can transfer any legal decision-making power the parent has to another person
for six months by executing a Power of Attorney. NMSA § 45-5-105. The only parental powers
that cannot be delegated by a Power of Attorney are the authority to consent to marriage or
adoption. The statutory form set forth at NMSA § 45-5-601 is designed primarily for the
delegation of property interests, but can be modified to include the care and custody, property
and maintenance of children. The Power of Attorney form can specify the powers that the parent
seeks to delegate.
A Power of Attorney can, by its own terms, continue to be effective even if the parent
who issued the Power of Attorney becomes incapacitated during its six-month duration. A Power
of Attorney is a good mechanism for a parent to use to transfer parental authority to a specific
person for a fixed period of time, not to exceed six months.
The Power of Attorney can be revoked by the parent at any time by simply destroying the
document, and giving notice to anyone who had previously been given a copy of the document.
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Guardianship
A more secure and comprehensive manner of transferring legal decision-making power is
through the creation of a permanent guardianship. Permanent guardianship is, generally, the
transfer of all parental rights to person designated by the parent. The transfer is generally viewed
as a permanent suspension of parental rights, but does not terminate parental rights, leaving open
the possibility that the parents will resume a parenting role in the future.
This section outlines the basic forms of guardianship in New Mexico, briefly pointing out
the options available under the Probate Code and focusing, primarily, on the Kinship
Guardianship Act that was passed by the New Mexico Legislature in 2001.
Parental Appointment of a Guardian of a Minor
A parent may appoint a permanent guardian for a minor in a writing signed by the parent
and attested by at least two witnesses, pursuant to NMSA § 45-5-202. This provision is under the
probate code and appears to contemplate guardianship upon death of a parent. However, written
parental appointments have been used by living parents to delegate their parental authority. A
problem with the parental appointment from the guardian’s perspective, is that the parent could
also revoke the guardianship and deprive the guardian of decision-making authority. A child, 14
years or older, can object to the parental appointment of a particular guardian pursuant to § 45-5-
203.
Court Appointment under the Probate Code
Most guardianship actions will now be filed pursuant to the Kinship Guardianship Act
enacted in 2001, as discussed below. However, prior to the enactment of the Guardianship Act,
all private guardianship actions were filed under the Probate Code, which still includes some
important provisions relating to guardianships. The Probate Code provides that a child 14 years
or older can nominate his or her own guardian pursuant to § 45-6-206. The notice requirements
and procedures for Court Appointment of a guardian set forth in § 45-1-401 of the Probate Code
are still the relevant notice requirements under the Kinship Guardianship Act.
The Probate Code includes the statute regarding the Powers and Duties of a guardian of
minor. Those powers and duties include the powers and responsibilities of a parent, but also limit
the liability of the guardian to third persons. See § 45-5-209.
The Probate Code also provides for court appointment of a guardian of a minor, “if all
parental rights of custody have been terminated or suspended by circumstances or prior court
order.” NMSA§ 45-5-204.A. However, where a parent contests the guardianship, this provision
of the Probate Code does not give the court authority to grant a guardianship. Therefore, prior to
the passage of the Kinship Guardianship Act, discussed below, contested guardianships had to be
considered under the Children’s Code. See NMSA § 32A-4-32. In the Matter of the
Guardianship Petition of Lupe C, 112 N.M. 116 (1991), and In Re Guardianship of Sabrina Mae
D, 114 N.M. 133 (1992). This created logistical problems because the Children, Youth and
Families Department had to file a petition alleging abuse and neglect pursuant to §32A-4-15, but
the Department did not have the resources to do so where children were not in danger. The
299
Kinship Guardianship Act was, therefore, enacted to create a meaningful cause of action for non-
parents seeking permanent guardianship of children in their care.
Under the Kinship Guardianship Act
The Kinship Guardianship Act provides a legal mechanism for transferring legal
decision-making power over a child to a caregiver by the establishment of a permanent
guardianship. A permanent guardianship does not terminate the parental rights of the biological
parents, but the guardian has the legal rights and duties of a parent except for the right to consent
to adoption of the child, and any other rights specified in the order appointing the guardian.
Unless the guardianship order specifies otherwise, the guardian may make all decisions
regarding visitation with the parents and the child.
This section describes requirements and process for Kinship Guardianships in New
Mexico under NMSA § 40-10B-1 et seq., and provides some practice tips, as well as a warning
about the financial consequences of filing for guardianship to caregivers who are currently
receiving Temporary Assistance to Needy Families (TANF). The substantive requirements for
the establishment of the statute are discussed primarily in the section detailing the Petition for
Guardianship.
Initiating an Action for Kinship Guardianship
To initiate a Kinship Guardianship Action, the following papers must be prepared and
filed.
1. Petition for Kinship Guardianship (with Parental Designation/Consent, where
applicable)
2. Request for Hearing
3. Notice of Hearing
4. Summons
5. Motion to Proceed without Costs (or $122 (as of July 2002))
In the Second Judicial District, actions pursuant to the Kinship Guardianship Act will,
almost always, be filed in the Civil Division on the first floor of the Courthouse at 500 Lomas
Blvd.
In the exceptional case where you intend to file in the Family Division, if for example,
you believe that Court Clinic will be helpful to your client, or if you would like a Temporary
Domestic Order to be issued upon filing, you will also need:
6. A filing fee of $137 instead of $122
7. A Temporary Domestic Order
8. Domestic Relations Information Sheet (Civil Form 4211)
9. Domestic Relations Cover Sheet (required by Rule but yet not by clerks)
300
The Petition for Kinship Guardianship
A Petition for Kinship Guardianship must be verified by the Petitioner, meaning the
client must sign it in front of a Notary Public. The Petition must include the following
allegations, as set forth in § 40-10B-5.
Jurisdiction and Venue
The district court where the child resides has jurisdiction over proceedings under the
Kinship Guardianship Act pursuant to § 40-10B-4.
Kinship Caregiver
The Petition must also allege that the Petitioner is a kinship caregiver, a caregiver
nominated by a child over 14, or a caregiver designated by formal writing by a parent. § 40-10B-
B.
A caregiver is an adult with whom the child resides, and who provides care, maintenance,
and support for the child consistent with the duties and responsibilities of a parent. § 40-10B-3.
Kinship is defined as a relationship between a child and a relative, godparent, member of the
child’s tribe or clan or an adult with whom the child has a significant bond. § 40-10B-3.
In the absence of parental consent, or the prior termination of a parent’s rights, the child
must have lived with the petitioner, without the parent, for a period of ninety days or more
immediately preceding the date the Petition is filed. § 40-10B-8B(3).
Grounds and Standards of Proof for Permanent Guardianship in Contested Cases
The Petitioner must allege that he or she can prove by clear and convincing evidence that
a parent having legal custody of the child consents, or is currently unwilling or unable to provide
adequate care, maintenance and supervision for the child, or there are extraordinary
circumstances.
The Petitioner must also prove at the final hearing on the Petition that guardianship is in
the best interest of the child. Therefore, the allegation of best interests should be included in the
Petition.
If, the Indian Child Welfare Act applies, as discussed below, the proof must be by clear
and convincing evidence.
Applicability of the Indian Child Welfare Act (ICWA)
The Indian Child Welfare Act of 1978 (ICWA) is a federal law that protects Native
American families and children against the unwarranted break up and removal of children from
their tribes. ICWA requires notice to tribes, higher standards of proof, and a series of placement
preferences in cases where Indian children are being removed from their parents. The Kinship
Guardianship Act refers to ICWA in setting forth the applicable burden of proof, and notice
301
requirements stating that notification and the higher burden of proof are required only as set out
in ICWA.
ICWA applies in cases, among others, involving foster care placement of children. The
definition of “foster care placement” includes removal and placement “in any home of a
guardian where the parent or Indian custodian cannot have the child returned upon demand, but
where parental rights have not been terminated.” 25 US.C.§ 1903 (1) (i)[emphasis added].
Therefore, even where the child has been living with the Petitioner for ninety days prior to the
filing of the Petition, the Kinship Guardianship proceedings formalize the legal separation of the
child from the parent and tribe. In addition, the effect of the guardianship is to create a legal
barrier to the return of the child to an Indian parent, a case that appears to be covered by ICWA.
Moreover, the tribal notification provisions of the New Mexico Children’s Code require
notice to the tribe of an Indian child, even where the child is placed voluntarily. NM § 32A-1-14.
This provides protections for children and the tribe beyond the scope of ICWA, and therefore,
appears to indicate that a broad definition should apply throughout New Mexico state law. This
stronger protection is allowed under ICWA. 25 U.S.C 1921.
Some practitioners have argued that ICWA does not apply to Kinship Guardianship
actions because ICWA only applies to “actions removing an Indian child from its parent or
Indian custodian.” 25 USC §1903. They claim that it is not possible to remove a child from a
parent or custodian in Kinship Guardianship proceedings because Kinship Guardianship Act
requires that the child have lived with the Petitioner for 90 days prior to the filing of the Petition.
Therefore, ICWA would never apply to Kinship guardianship proceedings. Moreover, they
argue, protections only apply where children are going to be adopted or placed in foster care
through the abuse and neglect proceedings instigated by the state. Because Kinship Guardianship
proceedings generally do not involve foster care or adoption, and are private actions, some
practitioners conclude that ICWA would not apply.
Even though there is debate on this issue, given the strong policy of protecting New
Mexico’s tribes, it is best to notify the tribe at the beginning of the proceedings to avoid long-
term challenges to any Kinship Guardianship involving an Indian child.
Other Information required by § 40-10-B-6
The Petition must also include:
-the date and place of birth of the child or the reason why that information is not known
-the legal residence or place of residence of the child
-the marital status of the child
-the name and address of the petitioner
-the kinship, if any between the petitioner and the child
-the names and addresses of the parents of the child
-the names and addresses of persons having legal custody of the child
-the existence of any matters pending involving custody of the child
-a statement that the petitioner agrees to accept the duties and responsibilities of
guardianship
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-the existence of any pending proceedings under the Children’s Code and, if so, consent
of the Children, Youth and Families Department
-whether the child is subject to provisions of the Indian Child Welfare Act and, if so, the
tribal affiliation of the child, and specific information regarding contact with the tribe
Requirements for Written Consent
A parent who consents to the appointment of a permanent guardian under the Kinship
Guardianship Act must sign a formal written “designation” stating that the signing parent
understands the purpose and effect of the guardianship, and that the parent understands that he or
she has a right to be served with the petition and notices of the hearings in the case, and that he
or she may appear in court to contest the action. §40-10B-5.
Notice and Service
The Kinship Guardianship Act states that at the time of the filing of the Petition, the
Petitioner shall obtain a Notice of Hearing setting the matter within 30 to 90 days. §40-10B-6 A.
This is why you must take a Request for Hearing and Notice of Hearing form to the Courthouse
at the time of the filing of the Petition.
Once the Notice is issued, the Petition and Notice must be served upon CYFD, if a matter
is pending under the Children’s Code, the child if he or she is over 14, the parents of the child,
and, if ICWA applies, to the tribe.
The Kinship Guardianship Act provides that service must be made according to the
provisions of §45-1-401 that requires that the Notice of Hearing be served by mailing a copy, by
certified, registered or ordinary first class mail, to the business or residence of the person, at least
fourteen days prior to the hearing, by service in accordance with the Rules of Civil Procedure, or
by publication, if the address or identity cannot be ascertained with reasonable diligence.
Notification by mail is probably sufficient for service on CYFD, and the child.
Emergencies and Temporary Guardianships
It is possible to move the Court for the appointment of a Temporary Guardian pursuant to
NMSA §40-10B-7. The statute provides that the temporary guardian shall serve for up to 180
days or until the hearing on the merits, which ever occurs first. The motion may be filed anytime
after the petition is filed, and a hearing must be held within 20 days.
In an emergency, where a guardian for the child is needed immediately, a motion may be
ex parte. The Motion may be ex parte for good cause shown. NMSA §40-10B-7 C. The Order
must be served upon all parties entitled to notice in the action. And, if a party objects to the
Order, a hearing must be held on the objections within 10 days of the filing of objections. NMSA
§40-10B-7 C.
Another method for securing a form of immediate relief is to file the Petition for
Guardianship in the Family Division and request the issuance of a Summons, which
automatically triggers the issuance of a Temporary Domestic Order by the Clerk. The Temporary
Domestic Order should preserve the status quo on an emergency basis. The Temporary
303
Guardianship is a clearer and more direct way to get relief, but the TDO is an option to consider
in some cases, for example, where an immediate hearing is not possible.
The Conduct of the Hearing
At the hearing on the permanent Kinship Guardianship the Petitioner must meet the
elements of proof set forth in § 40-10B-8. Essentially, the petitioner must prove, by clear and
convincing evidence that the, required notices have been given, that a parent consents or is
unwilling an unable to care for the child and that the Kinship Guardianship serves the best
interest of the child. If the Indian Child Welfare Act applies, then the burden of proof shall be
beyond a reasonable doubt.
The Court may award child support to the caregiver. Visitation may also be ordered.
Standard of Proof for Revocation
The policy of the state, according to the Kinship Guardianship Act, is that the interests of
children are best served by when they are with their parents. Therefore, a parent seeking
revocation of a guardianship must provide a proposed transition plan for the child, and
demonstrate, by a preponderance of the evidence, a change in circumstances and that revocation
is in the best interest of the child §40-10B-12. If the parent meets this burden, the motion for
revocation shall be granted. Thus, the burden of proof for setting aside a guardianship is lower
than the burden of proof to create a guardianship.
Impact on Income of Caretakers of Children on Welfare/TANF
It is important to consider the financial impact of a guardianship for caretakers of
children who are receiving welfare in the form of cash assistance. The most common form of
cash assistance for children who are not disabled is Temporary Assistance to Needy Families
(TANF). In determining whether a child is eligible for TANF, the Human Services Department
looks at the income of the child’s “assistance group.” The definition of the “assistance group”
was changed after the Kinship Guardianship Act became law. The child’s “assistance group”
now includes the “legal guardian of the dependent child” § 8.102.400 NMAC. Therefore,
caretakers who depend on the TANF income to support the child must be advised that they are
likely to lose their cash assistance if they become a legal guardian of the child.
304
Legal Custody
Persons other than parents, usually grandparents, can Petition for Legal Custody of a
child. Because of the parents’ constitutional fundamental liberty interest in parenting their
children, the legal framework in custody cases gives a strong preference for the rights of the
parents. Therefore, the grandparents must show that the parent is unfit. See Shorty v. Scott 87
NM 490. The process for the Petitioning for custody is explained in the Section on Practicing
Law in the Second Judicial District.
Adoption
Adoption terminates the rights of parents and gives those rights to the adoptive parents.
Private parties may Petition for Adoption of children in their care, as set forth in NMSA § 32A-
5-2 et seq. There are different requirements or adoption depending on whether the Petitioner is a
relative of the child, a step- parent or a private agency. The processes for applying for adoption
are beyond the scope of this Manual.
305
CUSTODY CONTINUUM
(FOR NON-PARENTS)
IN NEW MEXICO
KINSHIP CAREGIVERS
AFFIDAVIT
40-10B-17 (FORM)
POWER OF
ATTORNEY
45-5-104 (authority)
45-5-501 (durable)
45-5-601 (FORM)
CUSTODY
(If Domestic Violence, 40-13-
1 et seq for 6-month
emergency custody)
GUARDIANSHIP
45-5-202 parental
appointment
45-5-204 court appointed)
40-10B Kinship Guardianship
ADOPTION
32A-5-1 et seq
TERM
Up to 1 year
Only up to 6 months
Can be very specific as
to time, such as, only
for a week, or can be
broad
Indefinite
Modification upon
“substantial and material
change in circumstances”.
Indefinite.
Guardianships are valid until
revocation of guardianship.
Permanent
PARENTAL
RIGHTS
No effect on parental
rights
No effect on parental
rights.
Parents retain all rights
Court or agreement
determines allocation of
parental rights
Suspends all parental rights Terminates all parental rights
PARENTAL
CONSENT
Only notice to parents
required, where ability to
contact.
At least one parent
must consent.
Non-parent must prove that
parent is unfit. Shorty v. Scott
87 MN 490
(Where domestic violence
“household member” must
show immediate harm or fear
of harm to child)
Parents may consent or are
unavailable, deceased or
incapacitated. If contested, the
child must be with the potential
guardian, and guardian must
prove parent is unwilling or
unable to care for child.
Consent must be after Counseling, or
implied by Abandonment or
relinquishment 32A-5-18
POWERS &
DUTIES
If “caregiver” authority to
enroll in school and school
related medical care
If “qualified relative,” also
authorize medical and
dental care
Only those powers
specifically stated in
the Power of Attorney.
Can be specific, such
as, only for educational
decisions, or can be
broad, such as, for all
parental decisions
Decision-making and daily
needs
All those of a parent (except for
consenting to adoption.)
See duties outlined in 45-5-209
NMSA 1978
All those of a parent
FINALIZED
Must sign in front of
Notary
Signed by a parent or
legal guardian and
witnessed by a Notary
Public
Do not have to go to
court.
Must Petition Court and prove
unfitness of parent.
Parent may appoint by signing
in front of two witnesses under
Probate Code, or Petition the
court, and a judge must sign
Order Appointing Guardian.
Must petition the court and a judge
must sign a Final Order of Adoption
LIABILITIES
No parental liabilities
are assumed with a
Power of Attorney.
Guardians are not liable for the
child’s expenses or to third
persons for the acts of the child.
All parental liabilities
306
Sample Forms
Caregiver’s Affidavit
Power of Attorney
Petition for Kinship Guardianship
Emergency Motion for Appointment of Temporary Guardian
Temporary Kinship Guardianship Order
Order Appointing Permanent Kinship Guardian
Caregiver’s Affidavit
CAREGIVER’S AUTHORIZATION AFFIDAVIT
Use of this affidavit is authorized by the Kinship Guardianship Act.
Instructions:
A. Completion of Items 1-4 and the signing of the affidavit is sufficient to authorize
enrollment of a minor in school and authorizes school-related medical care.
B. Completion of Items 5-8 is additionally required to authorize any other medical care.
Print clearly:
The minor named below lives in my home and I am 18 years of age or older.
1. Name of Minor:
______________________________
2. Minor’s birth date:
______________________________
My name (adult giving authorization):
______________________________
_______________________________
My home address:
_______________________________
_______________________________
3. ( )I am a grandparent, aunt, uncle or other qualified relative of the minor (see back of this
form for a definition of “qualified relative”).
4. ( ) Check one or both (for example, if one parent was advised and the other cannot be
located):
( ) I have advised the parent(s) or other person(s) having legal custody of the minor of my intent
to authorize medical care, and have received no objection.
( ) I am unable to contact the parent(s) or other person(s) having legal custody of the minor at
this time, to notify them of my intended authorization.
5. My date of birth:
307
_______________________________
6. My NM driver’s license or other identification card number: _____________________
_______________________________
I declare that under the penalty of perjury under laws of the state of New Mexico that the
foregoing is true and correct.
Signed:
_______________________________
The foregoing affidavit was subscribed, sworn to and acknowledged before me this _____ day of
_________, 20__, by _______________________________.
My commission expires: ______________________
_______________________________
Notary Public
NOTICES:
1. This declaration does not affect the rights of the minor’s parents or legal guardian
regarding the care, custody and control of the minor, and does not mean that the caregiver has
legal custody of the minor.
2. A person who relies on this affidavit has no obligation to make any further inquiry or
investigation.
3. This affidavit is not valid for more than one year after the date on which it is executed.
Additional Information:
TO CAREGIVERS:
1. “Qualified relative”, for purposes of Item 5, means a spouse, parent, stepparent, brother,
sister, stepbrother, stepsister, half-brother, half-sister, uncle, aunt, niece, nephew, first cousin,
godparent, member of the child’s tribe or clan, an adult with whom the child has a significant
bond or any person denoted by the prefix “grand” or “great”, or the spouse or former spouse of
any of the persons specified in this definition.
2. If the minor stops living with you, you are required to notify any school, health care
provider, mental health care provider, health insurer or other person to whom you have given this
affidavit.
3. If you do not have the information requested in Item 8, provide another form of
identification such as your social security number or Medicaid number.
WARNING: Do not sign this form if any of the statements above are incorrect, or you will
be committing a crime punishable by a fine, imprisonment or both.
308
TO HEALTH CARE PROVIDERS AND HEALTH CARE SERVICE PLANS:
1. No person who acts in good faith reliance upon a caregiver’s authorization affidavit to
provide medical, dental or mental health care, without actual knowledge of facts contrary to
those stated on the affidavit, is subject to criminal liability or to civil liability to any person, or is
subject to professional disciplinary action, for such reliance if the applicable portions of the form
are completed.
2. This affidavit does not confer dependency for health care coverage purposes.
309
Sample Power of Attorney
POWER OF ATTORNEY
FOR (CHILD)
BORN:
SS#
I, (Parent), residing in Albuquerque, NM, am the Mother of (Child). I hereby appoint
(Custodian) of Albuquerque, New Mexico, to act as my attorney-in-fact, to act in my name,
place and stead, in the event that a decision must be made, or authorization given for my child,
(Child). This Power of Attorney extends to decisions about medical treatment, educational
matters, participation in recreational activities, and any other matters involving ( Child). I
authorize (Custodian) to take any and all steps, as fully and for all intents and purposes as I
might do, or could do, if personally present.
I understand that this power of attorney terminates six months from the date executed and I may
renew it at that time.
IN WITNESS WHEREOF, I set my hand and seal this ____ day of ______, 2002
__________________________
(PARENT’S NAME)
STATE OF NEW MEXICO )
)
COUNTY OF BERNALLILO )
SUBSCRIBED AND SWORN TO before me this ____ day of ____________, 2000 by
(parent).
____________________________
NOTARY PUBLIC
My Commission Expires:
310
Sample Petition for Kinship Guardianship
STATE OF NEW MEXICO
IN THE SECOND JUDICIAL DISTRICT COURT
BERNALILLO COUNTY
NO.
IN THE MATTER OF THE GUARDIANSHIP
OF THOMAS CRUZ, MINOR.
PETITION FOR KINSHIP GUARDIANSHIP OF GRANDSON
Petitioners, Anita and Ricardo Cruz, through counsel, UNM School of Law Clinical Law
Program, Richard Begay, student attorney, April Land, supervising attorney, Petition this Court
for guardianship of their grandson Thomas Cruz. Petitioners make the following allegations in
support of this Petition.
1. Petitioners are the paternal grandparents of Thomas Cruz.
2. This Court has jurisdiction to appoint Petitioners as guardians pursuant to the Kinship
Guardianship Act § 40-10B-1 NMSA 2001, et seq., and its inherent equitable power.
3. Venue is proper in this case because both Petitioners and Thomas Cruz reside in Bernalillo
County.
4. Thomas Cruz was born on April 17, 1997, in Albuquerque, New Mexico.
5. Thomas has resided with Mr. and Mrs. Cruz, for most of his life, including the year prior to
the filing of this Petition.
6. Mr. and Mrs. Cruz tend to his daily needs in a manner consistent with the duties and
responsibilities of a parent.
7. Mr. and Mrs. Cruz have legal guardianship of Jordan’s older brother, Ernie Cruz.
8. Thomas has been living with Mr. and Mrs. Cruz for approximately one year at 1271 Patricio
Place NW, Albuquerque, NM 87107.
9. Estella Rodriguez is Jordan’s mother.
311
10. To the best of our knowledge and belief Estella Rodriguez lives at 84502 Grambling, Salina, CA
91111.
11. Estella Rodriguez, is currently unable to provide adequate care, maintenance or supervision for
Thomas.
12. Mark Chavez, Thomas’ father, currently resides at the home of Petitioners, his parents,
Anita and Ricardo Cruz, at 1271 Patricio Place NW, Albuquerque, NM 87107.
13. Mike Cruz consents to this guardianship.
14. Mike Cruz and Estella Rodriguez were never married.
15. Mike Cruz, in an effort to ensure that Thomas Cruz have a stable and enduring home,
wishes that Petitioners be appointed the legal guardians of Thomas.
16. Petitioners wish to be appointed guardians of Thomas Cruz.
17. Petitioners understand that as guardians, they will have all of the legal rights and duties of a
parent except the right to consent to adoption of Thomas Cruz and except for any parental
rights and duties that the Court orders that the parents retain.
18. No matter involving the custody of the child is currently pending.
19. No matter pursuant to the provisions of Chapter 32A, Article 4 NMSA 1978 is currently
pending.
20. Thomas Cruz is not subject to the provisions of the federal Indian Child Welfare Act of
1978.
WHEREFORE, Petitioners respectfully request that this Court:
1. Grant Petitioners Permanent Guardianship of Thomas Cruz; and
2. Award such other relief as deemed appropriate or necessary by the Court.
Respectfully Submitted by
312
______________________________
Richard Begay
Student Attorney for Anita Cruz
UNM CLINICAL LAW PROGRAMS
1117 Stanford, N.E. Room 3228
Albuquerque, NM 87131
(505) 277-5265
______________________________
April Land
Supervising Attorney
VERIFICATION
STATE OF NEW MEXICO
COUNTY OF BERNALILLO
I, Anita Cruz, being first duly sworn upon oath, state that I have read the foregoing
Petition for Appointment of Guardian of a minor and the statements contained therein are true
and correct to the best of my knowledge and belief.
______________________________
Anita Cruz
ACKNOWLEDGED, SUBSCRIBED AND SWORN TO before me this ______ day of
___________ 200__ by Anita Cruz.
__________________________________
Notary Public, State of New Mexico
My Commission Expires: ______________
STATE OF NEW MEXICO
COUNTY OF BERNALILLO
I, Ricardo Cruz, being first duly sworn upon oath, state that I have read the foregoing
Petition for Appointment of Guardian of a minor and the statements contained therein are true
and correct to the best of my knowledge and belief.
______________________________
Ricardo Cruz
ACKNOWLEDGED, SUBSCRIBED AND SWORN TO before me this______ day of
____________200__, by Ricardo Cruz. __________________________________
Notary Public, State of New Mexico
My Commission Expires: ______________
313
Emergency Motion for Appointment of Temporary Guardian
STATE OF NEW MEXICO
IN THE SECOND JUDICIAL DISTRICT COURT
BERNALILLO COUNTY
NO.
IN THE MATTER OF THE GUARDIANSHIP
OF THOMAS CRUZ, MINOR.
EMERGENCY MOTION FOR TEMPORARY KINSHIP GUARDIANSHIP
Petitioners, Anita and Ricardo Cruz, through counsel, UNM School of Law Clinical Law
Program, Richard Begay, practicing law student, April Land, supervising attorney, respectfully
request that this Court appoint Petitioners as temporary guardians of their four year-old
grandson, Thomas Cruz. Petitioners make the following allegations in support of this Emergency
Motion.
1. This court has authority to appoint a temporary guardian pursuant to the Kinship
Guardianship Act § 40-10B-2 to § 40-10B-7 NMSA 2001.
2. Petitioners are the paternal grandparents of two bothers, Thomas Cruz, age four and his
older brother Ernie Cruz.
3. Mr. and Mrs. Cruz have been the primary caregivers for both children for much of their
lives, including the year preceding this filing.
4. Mr. and Mrs. Cruz have a legal guardianship of the older child Ernie Cruz.
5. The mother, Estella Rodriguez, has had sporadic visitation with Ernie, supervised by
Peanut Butter and Jelly for the last year.
6. Recently, Estella Rodriquez, requested an unsupervised visit with the older child, Ernie.
7. Mrs. Cruz informed Estella that she would be able to visit with Ernie at Peanut Butter
and Jelly with a counselor present.
314
8. Estella threatened to remove the younger child, Thomas, from the home on Saturday,
February 9, 2002 if she is not allowed an unsupervised visit with the elder son, Ernie.
9. Mr. and Mrs. Cruz are fearful that Estella will take Thomas to California because that was
her last known residence.
10. The children’s father, Mike Cruz, wants Jordan to live with Petitioners and has authorized
the Petitioners to care for him.
11. Furthermore, Thomas wants to remain in the home with his grandparents, Mr. and Mrs.
Cruz.
12. There is good cause to enter this Order Ex Parte because the mother is threatening to take
the child, Thomas, and may possibly take him out of the state.
WHEREFORE, Petitioners respectfully request that this Court:
a. Grant Petitioners Temporary Guardianship of Thomas Cruz; and
b. Award such other relief as deemed appropriate.
Respectfully Submitted By:
__________________________
Richard Begay
Student Attorney for Anita and Ricardo Cruz
UNM CLINICAL LAW PROGRAMS
1117 Stanford, N.E., Room 3228
Albuquerque, NM 87131-1431
(505) 277-5265
_________________________
April Land
Supervising Attorney
315
VERIFICATION
STATE OF NEW MEXICO
COUNTY OF BERNALILLO
I, Anita Cruz, being first duly sworn upon oath, state that I have read the foregoing
Emergency Motion for Temporary Guardianship of a minor and the Statements contained therein
are true and correct to the best of my knowledge and belief.
______________________________
Anita Cruz
ACKNOWLEDGED, SUBSCRIBED AND SWORN TO before me this ____________
Day of February 2002, by Anita Cruz
__________________________________
Notary Public, State of New Mexico
My Commission Expires: ______________
STATE OF NEW MEXICO
COUNTY OF BERNALILLO
I, Ricardo Cruz, being first duly sworn upon oath, state that I have read the foregoing
Emergency Motion for Temporary Guardianship of a minor and the Statements contained therein
are true and correct to the best of my knowledge and belief.
______________________________
Ricardo Cruz
ACKNOWLEDGED, SUBSCRIBED AND SWORN TO before me this ____________
Day of February 2002, by Ricardo Richard Begay
__________________________________
Notary Public, State of New Mexico
My Commission Expires: ______________
316
Temporary Kinship Guardianship Order
STATE OF NEW MEXICO
IN THE SECOND JUDICIAL DISTRICT COURT
BERNALILLO COUNTY
NO.
IN THE MATTER OF THE GUARDIANSHIP
THOMAS CRUZ.
TEMPORARY KINSHIP GUARDIANSHIP ORDER
The Court, upon the Petitioner’s verified Emergency Motion for Kinship Guardianship grants the
Motion. The Court makes the following Findings of Fact and Conclusions of Law.
1. This court has authority to appoint a temporary guardian pursuant to the Kinship
Guardianship Act § 40-10B-2 to § 40-10B-7 NMSA 2001.
2. Petitioners are the paternal grandparents, and primary caretakers of two brothers, Thomas
Cruz, age four and his older brother Ernie Cruz.
3. Thomas Cruz has lived with the Petitioners for most of his life, including the year
preceding the filing of this Motion.
4. Estella Rodriguez has recently contacted the Petitioners and threatened to remove
Thomas, from the home on Saturday, February 9, 2002 if she is not allowed an
unsupervised visit with her older son, Ernie Cruz.
5. Mr. and Mrs. Cruz are fearful that Estella will take Thomas to California, her last known
residence.
6. It is not in Thomas’ best interest to be removed from the home of the Petitioners.
7. The children’s father, Mike Cruz, consents to the appointment of the Petitioners as
guardians for Thomas.
8. Mike Cruz wants Thomas to live with Petitioners and has authorized the Petitioners to
care for him.
317
9. Thomas wants to remain in the home with his grandparents, Mr. and Mrs. Cruz.
10. There is good cause to enter this Order Ex Parte because the mother is threatening to
take the child, Thomas, and may possibly take him out of the state.
WHEREFORE, this Court hereby:
1. Appoints the Petitioners, Ricardo and Anita Cruz, as Temporary Guardians of Thomas Cruz.
This Guardianship will be valid for 180 days, or until further Order of this Court. If an objection
to this Order is filed, the court shall schedule a hearing to be held within 10 days.
IT IS SO ORDERED.
____________________________________
HONORABLE DISTRICT COURT JUDGE
SUBMITTED BY:
__________________________
Richard Begay
Student Attorney for Anita and Ricardo Cruz
UNM CLINICAL LAW PROGRAMS
1117 Stanford, N.E., Room 3228
Albuquerque, NM 87131-1431
(505) 277-5265
_________________________
April Land
Supervising Attorney
318
Order Appointing Permanent Kinship Guardian
SECOND JUDICIAL DISTRICT COURT
COUNTY OF BERNALILLO
STATE OF NEW MEXICO
IN THE MATTER OF GUARDIANSHIP
PROCEEDINGS
FOR THOMAS CRUZ, a Minor. NO. DM 2002-0560
ORDER APPOINTING KINSHIP GUARDIANSHIP OF THOMAS CRUZ
THIS MATTER having come before the Court on the Petition for Appointment of
Guardian of a Minor, and the Court being fully advised on the premises FINDS:
1. Venue is proper in Bernalillo County.
2. Estella Rodriguez is the biological mother of minor child, Thomas Cruz.
3. Mike Cruz is the biological father of the minor child, Thomas Cruz.
4. Petitioner Anita Cruz is the paternal grandmother of the minor child, Thomas Cruz.
5. Petitioner Ricardo Cruz is the paternal grandfather of the minor child, Thomas Cruz.
6. Biological father, Mike Cruz, consents to the appointment of Petitioners as kinship
guardians of his minor child, Thomas Cruz.
7. Estella Rodriguez was served with the Petition for Kinship Guardianship and a Summons
February 15, 2002 at 84502 Grambling, Salina, CA 91111, and she has not filed a
responsive pleading or entry of appearance.
8. Petitioners provide the minor child with the care, maintenance and supervision consistent
with the duties and responsibilities of a parent.
9. Petitioners are qualified to serve as Guardians.
10. The minor child, Thomas Cruz, has not had any previously appointed guardians.
11. Appointment of Petitioners as Guardians is in the best interest of the minor.
IT IS THEREFORE ORDERED that pursuant to the Kinship Guardianship Act:
319
Anita and Ricardo Cruz are appointed as Kinship Guardians of the minor child, Thomas Cruz.
Anita and Ricardo Cruz are hereby vested with all the rights and responsibilities of the parents of
Thomas Cruz, except the right to consent to the adoption of the minor child, Thomas Cruz.
Visitation with the minor is to be determined and carried out at the discretion of Anita and
Ricardo Cruz.
___________________
DISTRICT JUDGE
Submitted By:
________________________________
Richard Begay
Student Attorney for Anita and Ricardo Cruz
UNM CLINICAL LAW PROGRAMS
1117 Stanford, N.E., Room 3228
Albuquerque, NM 87131-1431
(505) 277-5265
_________________________
April Land
Supervising Attorney
Students are cautioned that the above court form and pleading samples are provided as
general guides. All pleadings or forms drafted or submitted on behalf of a client should be
carefully edited and tailored to met the legal needs of the individual client. If any questions
arise regarding forms or pleadings, students should consult their faculty supervisor.
320
New Mexico Practice Materials Bibliography
Appellate Practice
Schwarz, Michael, New Mexico Appellate Manual (2
nd
ed., Michie 1997).
Bankruptcy
Millet, Lori L. and Darryl W., Bankruptcy Guide, (UNM Law Clinic).
Business Law
Martin, Nathalie, Business Law Clinic, Supplemental Reading Materials (UNM Law Clinic
2003).
Civil Procedure
Occhialino, M. E., Walden’s Civil Procedure in New Mexico (2
nd
ed., UNM School of Law
Institute of Public Law 1988).
Consumer Law
Feferman, Richard N. et al., Consumer Law: a Practice Manual Developed for New Mexico
Legal Services Programs (State Bar of New Mexico 1983).
Corporations
Desiderio, Robert, Planning Tax Exempt Organizations
New Mexico State Corporation Commission, New Mexico State Corporation Commission Forms
and Requirements (1996?)
Martin, Nathalie, Non-Profit Corporation Materials (UNM Law Clinic).
Criminal Law
Barbara E. Bergman, New Mexico Criminal Practice Manual (Continuing Legal Education of
New Mexico, Inc. 1992).
Debtor/Creditor Law
David G. Reynolds, New Mexico Creditor/Debtor Law (LexisNexis 2002).
DWI
William T. MacPherson, Prosecutor’s Manuel for DWI Cases (Institute of Pulic Law, University
of New Mexico (1984)
321
Environmental Law
Bohannan, Paul M., New Mexico Environmental Law Handbook: A Practical Guide to New
Mexico Law and Regulations (Butterworth Legal Publishers 1994) 1990.
Rodey, Dickason, Sloan, Akin & Robb, P.A., New Mexico Environmental Law Handbook (5
th
ed., 2000).
Evidence
Larkin, Murl A., New Mexico Rule of Evidence (Revised ed., Michie 1997).
Vigil, Jacob G., Evidence Handbook: New Mexico and Federal (New Mexico Trial Lawyers’
Association 1992).
Family Law
Herman, Michelle, Domestic Relations Handbook for New Mexico (UNM Law Clinic 1991)
Kelsey, David H. & Henderson, William N., New Mexico Divorce Manual: A Systems
Approach to Family Law in New Mexico (Institute of Public Law 1978).
Montoya, Thomas C., New Mexico Domestic Relations Law and Forms (Lexis Law Publishing
1997).
Shapiro, Barbara L., Family Law in New Mexico (Abogada Press, 1998).
State Bar of New Mexico, New Mexico Domestic Relations Manual (1985).
Multiple Practice Areas
Bustamante, Michael & Salvador, Vernon, New Mexico Trial Lawyers Foundation Litigation
Series (New Mexico Trial Lawyers Foundation 1994) 1985.
Trial Practice
LexisNexis, New Mexico Local and Federal Rules Handbook (2003) 2000.
J. Duke Thornton, New Mexico Practice Library: Trial Handbook for New Mexico Lawyers
(Lawyers Cooperative Publishing 1992).
Tribal Court Practice
Continuing Legal Education and the Indian Law Section of the State Bar of New Mexico, New
Mexico Indian Tribal Court Handbook (1991).
