Read the latest issue of “Appellate Issues,” from the ABA’s Council of Appellate Lawyers

Don’t say I never did anything for you. This is a Friday, and you need something to do over the weekend, right?

Well, I’ve got you covered. The ABA’s Council of Appellate Lawyers has published the Summer 2014 issue of “Appellate Issues,” which features a number of articles about amicus curiae practice.

Print it out and take it home with you. Then, pour out a glass of your favorite libation, curl up on the couch, and enjoy. (Of course, you’ll want to finish reading before 5:30 p.m. tomorrow, when Notre Dame takes on Purdue. Go Irish!).

Hat tip to Howard Bashman of How Appealing.

Posted in Appellate Practice | Tagged | Leave a comment

DWI lawyer Ron Bell prevails on appeal in his own DWI case

Ron BellVirtually everyone in Albuquerque has seen Ron Bell’s billboards and television commercials proclaiming his willingness to sue malefactors of all sorts; many of these include his catchphrase “I sue drunk drivers!”

So some people experienced a fair amount of schadenfreude when Mr. Bell was arrested for alleged driving while impaired in Albuquerque in 2010.

But it is Mr. Bell who appears to be having the last laugh. The Court of Appeals, in an opinion by Judge Hanisee, has held that the District Court properly suppressed evidence  that was used to convict him in Metropolitan Court. See State v. Ron Bell (Sept. 9, 2014).

As the Court explains, the Supreme Court has interpreted the state constitution as providing greater protection to citizens during traffic stops than does the Fourth Amendment. Under New Mexico law, all questions asked during a traffic stop must be either related to the reason for the stop, or otherwise supported by reasonable suspicion.

The police officer who stopped Mr. Bell did so because he observed him, among other things, speeding and driving partially in the shoulder. The officer asked Mr. Bell if he was “under the influence,” which seems to have been proper, but then bizarrely asked him if he had any grenades, rocket launchers, or dead bodies. Mr. Bell answered “no” while shaking his head. This was a constitutional violation because the officer had no reason whatsoever to think Mr. Bell had any of these things in his car. Continue reading

Posted in New Mexico Court of Appeals, Opinions and Analysis, Preservation of Error | Tagged , , | Leave a comment

“It is enough to present a defense; harping on it is not required.”

I thought you might enjoy this quote from Judge Frank Easterbrook’s opinion in Jentz v. ConAgra Foods, Inc. (7th Cir., Sept. 9, 2014), at page 6.

Judge Easterbrook was responding to an appellee who argued that the defendant did not “feature” a particular defense at trial. Although it may not have played a significant role at trial, that defense ended up winning the day on appeal.

This quote is a reminder to every appellant’s counsel to carefully examine the record to discover what issues can be raised on appeal. The winning issue may not be the one that made the greatest splash at trial.

Posted in Appellate Practice, Preservation of Error | Tagged | Leave a comment

NM Court of Appeals: State may prosecute identity theft occurring entirely in other states, where victim is in New Mexico

Christopher Allen was convicted of stealing the identity of a New Mexico resident, and using it to obtain an Arizona driver’s license, to rent cars in Arizona, Nevada, and Georgia, and provided the stolen identity as his own when he was arrested in Georgia. None of his acts were committed in New Mexico.

In an interesting discussion of the territorial limits of a state’s criminal jurisdiction, the New Mexico Court of Appeals held on Monday that New Mexico does have jurisdiction over the defendant because the effects of his crimes were felt here (this is called the “detrimental effects” theory of jurisdiction). The Court also held that New Mexico does not have to enact a statute specifically authorizing the State to exercise this jurisdiction.

The opinion is State v. Allen, a unanimous decision written by Judge Michael Vigil. It also contains a useful discussion of the difference between jurisdiction and venue.

So if any out-of-staters are thinking of committing crimes against a New Mexican, think again, because you can run, but you can’t hide.

Posted in New Mexico Court of Appeals, Opinions and Analysis | Tagged , , | Leave a comment

NM Supreme Court: Motion to disqualify lawyer must be resolved before agency or court hears the merits

When a motion to disqualify a lawyer is filed, a court or administrative agency must decide that motion before allowing the lawyer to participate in any proceedings on the merits. That’s essentially what the New Mexico Supreme Court held yesterday in Living Cross Ambulance Service, Inc. v. New Mexico Public Regulation Commission.

Lawyer W. Ann Maggiore defended Living Cross Ambulance Service in a wrongful death lawsuit where the plaintiff claimed that Living Cross’s delay in arriving at the scene contributed to a child’s death. Ms. Maggiore also defended the company when the Public Regulation Commission (PRC) ordered it to show cause why it should not be fined in connection with the child’s death.

Later, in 2013, American Medical Response applied to the PRC for permission to provide ambulance services in Valencia County, where Living Cross operates. Living Cross objected to AMR’s application, saying an additional ambulance company wasn’t necessary.

AMR, now represented by Ms. Maggiore, argued that another ambulance operator was necessary for Valencia County because Living Cross was providing deficient service, and that there had been occasions when Living Cross’s ambulances were either unavailable or had taken too long in responding to an emergency.

Living Cross moved to disqualify Ms. Maggiore and her firm because they had previously represented the company in a substantially related matter, and pointed out that a PRC hearing examiner had previously disqualified Ms. Maggiore from representing AMR in a dispute over an operating certificate in Bernalillo County. (N.B., the opinion does not describe the arguments, if any, that Ms. Maggiore made in response to this motion).

Living Cross also asked the PRC to stay the hearing on the merits until the disqualification issue was resolved, but the PRC declined to do so. Instead, Ms. Maggiore was allowed to participate in a hearing on the merits, present the testimony of AMR witnesses on direct examination, and cross-examine Living Cross witnesses. Later, a PRC hearing examiner disqualified Ms. Maggiore, but the PRC still considered the evidence she had developed, and granted AMR leave to operate in Valencia County. Continue reading

Posted in New Mexico Supreme Court, Opinions and Analysis, Procedure | Tagged , , | Leave a comment

Should the word limit for federal appellate briefs be decreased?

Opening and answer briefs in federal court are presently limited to 14,000 words, but a proposed amendment to the Federal Rules of Appellate Procedure would decrease that limit to 12,500 words. The limit on reply briefs would fall from 7,000 to 6,250 words.

In recent years, I’ve mostly worked on appeals in the New Mexico state appellate courts, where the word limit for opening and answer briefs is only 11,000 words. I’ve never had any real problem making my arguments within these limits, and the limit forces one to be selective and focused in choosing which issues to present on appeal.

Thus, I tend to think that reducing the federal word limit to 12,500 words will not result in any real disadvantage to litigants. The reduced word limit, if adopted, would force lawyers to be more succinct, and reduce the workload of federal appellate judges. If you want to submit a comment on this proposal, you can do so at this link. The deadline for submitting comments is February 17, 2015.

But what if you think your case warrants a word extension? I don’t know how liberal the Tenth Circuit is in granting word extensions (I’ve never asked for one there), but if you would like a word extension in a New Mexico state appellate court, then keep dreaming, because It. Ain’t. Gonna. Happen.

The New Mexico Court of Appeals “views requests to exceed the page limitations with extreme disfavor, and they will rarely if ever be granted. The Court’s experience in reading briefs in excess of the page limitations is that such briefs are almost never necessary and frequently of significantly lesser quality than briefs with page limitations, even in complex cases.” N.M. Court of Appeals, Policies and Procedures, May 21, 2013, at p. 30, paragraph 6. I suspect the New Mexico Supreme Court is of the same mind.

In several cases, I’ve seen lawyers move for page or word extensions, and in each instance the Court of Appeals denied the motion. One of those motions was unopposed, and it’s pretty unusual for the Court to deny an unopposed motion, which shows how strongly the Court is opposed to granting any sort of extension.

Does this no-extension policy have costs? I think so. While New Mexico’s 11,000 word limit is adequate for most cases, there are almost certainly some cases of unusual complexity, or cases with extremely lengthy records, in which the word limit does not allow for an adequate presentation of the appellant’s case, or a full answer from the appellee.

The problem is knowing what cases those are. The number of cases where attorneys think they need a word extension is greater than the number of cases that actually warrant one. And when the Court receives a motion for a word extension (i.e. before the briefs are filed), it is usually not in a good position to determine whether the case is one of those few that might actually deserve one.

My belief is that the Court is aware that extensions might be warranted in some case, but has adopted a policy of denying nearly all word extensions because it is too difficult to separate the wheat from the chaff.

What are your thoughts on this issue? Do you believe that the federal word limit should be reduced to 12,500? Do you think that New Mexico’s 11,000 word limit is just right, or not enough? I’d especially be interested in hearing from anyone who has succeeded in persuading a New Mexico appellate court to extend the word limit. If you’ve done so, please let us know what sort of case it was.


Posted in Appellate Practice, News | Tagged | 3 Comments

10th Circuit: If you think someone’s stealing your beer, take your claim to the bar before it’s barred

Eric Alden knew something funny was going on at the Wyoming liquor store that he managed and operated. In 2005, the store’s accountant notified him that beer purchases had exceeded beer sales for some time. Mr. Alden also learned about significant discrepancies between the invoices of one of the store’s suppliers, Orrison Distributing, and the store’s beer sales. He “wondered about it” but did not look into the matter further.

The store’s mysterious losses on beer continued through August 2007, when Mr. Alden finally decided to investigate. He conducted inventories over an 11-day period which him to believe that an Orrison employee was stealing beer. He then installed video cameras, and caught the employee red-handed.

It turns out that the Orrison salesman, Gary Kirchhefer, had been ordering extra cases of beer on the store’s account. When he delivered the beer to the store, he would take the extra cases and sell them to two bars at a discount, pocketing the money for himself.

The store filed a RICO lawsuit in August 2011 against Kirchhefer and the bars who had benefited from buying the stolen beer, but the trial court dismissed the case because RICO’s four-year statute of limitations had expired. Continue reading

Posted in Opinions and Analysis, Tenth Circuit | Tagged , | Leave a comment

Non-parties who seek to enforce contract are bound by arbitration agreement, says NM Court of Appeals

Normally, arbitration is a matter of contract. If you didn’t sign an arbitration agreement, you’re not bound by it.

But there are exceptions, and the New Mexico Court of Appeals recognized one of them in Damon v. StrucSure Home Warranty, LLC. In sum, if you seek to enforce a contract that you didn’t sign, you will also be bound by an arbitration provision in that contract.

Defendant StrucSure provides warranties for homes, one of which was part of a contract between the builder and the original buyers. Plaintiffs were subsequent purchasers, and while they didn’t sign the contract, they bought the home at least in part because it was covered by the warranty.

Plaintiffs later discovered structural defects in the home, and sued StrucSure and other defendants. StrucSure moved to compel arbitration, but Plaintiffs argued that they were unaware of the arbitration provision in the warranty contract, and therefore could not be bound by it. The trial court agreed, relying on cases which state the general proposition that arbitration is a matter of contract. Continue reading

Posted in New Mexico Court of Appeals, Opinions and Analysis | Tagged , | Leave a comment

Tenth Circuit proposes changes to its local rules; comment period open through October 20

The Tenth Circuit is inviting comment on the latest proposed changes to its local rules. The Clerk’s Office has released this memo summarizing the changes, and you can review the actual changes in redline in this lengthy document.

The most notable change is the proposed amendment to Local Rule 30, which will require retained counsel in civil and criminal cases to file the appendix electronically.

If you would like to comment on any of these proposed changes, you may email your comments to by October 20, 2014.

Posted in Appellate Practice, News, Tenth Circuit | Leave a comment