N.M. R. App. P. 12-319

As amended through November 1, 2024

Rule 12-319 - Oral argument

A.Oral argument. The appellate court may order oral argument at its discretion. No oral argument shall be heard on cases assigned to the summary calendar.

B.Request for oral argument. Any party may request oral argument by including on the cover page or first page of the opening brief a statement that oral argument is requested. The requesting party may separately set out a concise statement of the reasons why oral argument would be helpful to a resolution of the issues.

C.Settings.

(1)Notice of setting. Settings for oral argument will be fixed by the appellate court and notice thereof given by the appellate court clerk.

(2)Motion to reset oral argument. Except for good cause shown, a motion to reset oral argument shall be made within ten (10) days after service of notice of setting.

D.Order and content of argument. Unless otherwise ordered, the petitioner, movant, or party first filing a notice of appeal shall open and close the argument. If notices are filed on the same day, the plaintiff in the proceeding below shall open and close the argument. Unless the appellate court directs otherwise, a cross-appeal or separate, related appeal shall be argued when the initial appeal is argued. Counsel for the same side should avoid duplicative argument. Counsel must not read at length from briefs, records, or authorities. Counsel should assume that the justices or judges have read the briefs before oral argument.

E.Time for argument. The time for oral argument shall not exceed twenty (20) minutes on each side for motions, petitions, or applications and thirty (30) minutes on each side as to all other matters unless the time is extended or restricted by the appellate court.

F.Use of physical exhibits; removal. A party may use physical exhibits at argument only on prior motion and leave of the appellate court. The motion shall concisely state why the use of the exhibits may significantly aid in the appellate court's decisional process, shall indicate whether opposing counsel has any objection to the use of the exhibits, and shall be filed at least ten (10) days before the scheduled argument date. A party whose motion to use physical exhibits has been granted must make arrangements with the appellate court clerk to have the exhibits placed in the courtroom before court convenes on the date of argument. After argument, counsel shall remove the exhibits from the courtroom unless the appellate court otherwise directs. If counsel seeks to distribute documents or other material to the justices or judges during oral argument, counsel shall provide the necessary copies directly to the appellate court clerk during the argument at the appropriate time, with a copy to opposing counsel, and the appellate court clerk will then distribute the material to each justice or judge.

G.Nonappearance of parties. If a party fails to appear to present argument, the appellate court may, in its discretion, hear argument on behalf of the opposing party.

H.Joint argument. Two or more cases involving the same or related questions may be heard together on request of a party or by order of the appellate court.

I.Participating justices or judges. A justice or judge who did not hear the original argument may participate in the decision of any cause by reviewing a recording or transcript of the original oral argument.

N.M. R. App. P. 12-319

As amended, effective 12/1/1993;5/1/2003; as amended by Supreme Court Order No. 10-8300-001, effective 4/12/2010; 12-214 recompiled and amended as 12-319 by Supreme Court Order No. 16-8300-011, effective for all cases pending or filed on or after12/31/2016; as amended by Supreme Court Order No. S-1-RCR-2024-00114, effective for all cases filed on or after 11/1/2024.

Committee commentary. - In 2016, the committee renumbered Rule 12-214 NMRA and placed it in the general provisions article as Rule 12-319 NMRA.

Paragraph B was revised in 2010, and again in 2016, to adopt a new method of requesting oral argument for all types of appellate proceedings, except appeals assigned to the summary calendar. Oral argument may be requested by a statement on the first page or cover of any brief, petition, motion, or application filed by the party. The request may be supported by a statement of reasons appearing in the brief, petition, motion, or application. This method is similar to that adopted by other courts and eliminates the need for a separately filed request for oral argument.

When considering whether to request oral argument, a party should consider whether the dispositive issue or issues have been authoritatively decided, whether the facts and legal arguments are adequately presented in the briefs and record, and whether the appellate court's decisional process will be significantly aided by oral argument.

As a courtesy to the appellate court, counsel should file a notice of non-availability setting forth any dates that counsel is unavailable to attend oral argument. A notice of non-availability should be filed at the earliest practicable time.

A party is not required to use all the allotted time for oral argument. Before argument starts, the party that opens oral argument may reserve time for rebuttal. If the party that opens oral argument does not use all of the time allotted for the opening argument, the party may seek leave of court to reserve the unused time for rebuttal. Points of substance may not be reserved for rebuttal.

[Adopted by Supreme Court Order No. 10-8300-001, effective April 12, 2010; as amended by Supreme Court Order No. 16-8300-011, effective for all cases pending or filed on or after December 31, 2016.]

ANNOTATIONS The 2016 amendment, approved by Supreme Court Order No. 16-8300-011, effective December 31, 2016, provided that oral argument will not be heard on cases assigned to the summary calendar, revised the procedure for requesting oral argument, placed a time limit on filing a motion to reset oral argument, provided the order in which oral argument shall proceed, required parties to obtain leave of the appellate court prior to using physical exhibits at oral argument and the procedures for using exhibits following court approval, provided the appellate court with discretion to order joint argument, provided that a justice or judge, who did not hear an original oral argument, may participate in the decision of the case by reviewing a recording or transcript of the original oral argument, and revised the committee commentary; in Paragraph (A), deleted the former language, "All matters and causes will be decided without oral argument, unless the appellate court, in its discretion, determines otherwise, either on its own motion or on request of a party pursuant to this rule." and added new language; in Subparagraph (B)(1), deleted the former heading, "Appeals and proceedings on writ of certiorari." and added the new, after "on the cover page", added "or first page", after "brief", added "petition, motion, or application", and after "requested", deleted the remainder of the subparagraph and added the last sentence; deleted former Subparagraph (B)(2), relating to motions requesting oral argument, and added a new Subparagraph (B)(2); in Paragraph (C), designated the language from former Paragraph (C) as Subparagraph (C)(1) and added the heading "Notice of setting."; added new Subparagraph (C(2); in Paragraph (D), in the heading, added "and content", and after the first sentence, added the remainder of the paragraph; added new Paragraph (F) and redesignated the succeeding paragraphs accordingly; in Paragraph (G), added "appellate" prior to "court"; in Paragraph (H), after "together", deleted "by leave of the appellate court" and added "on request of a party or by order of the appellate court"; in Paragraph (I), deleted the heading "Reargument" and added the new heading, deleted "Reargument shall not be required to enable", after "original argument", deleted "to" and added "may", and after "any cause", added the remainder of the paragraph; and in the committee commentary, summarized the amendments and added the last three paragraphs. The 2010 amendment, approved by Supreme Court Order No. 10-8300-001, effective April 12, 2010, in Paragraph A, after "motion or on" deleted "written", and at the end of the sentence added "pursuant to this rule"; in Paragraph B, in Subparagraph (1), added the first sentence, and in the second sentence after "Any party may" added the remainder of the sentence; and in Subparagraph (2), inserted all new language and deleted the former language which provided for requests for oral argument by separate pleading, the content of requests for oral argument, the waiver of oral argument by a failure to request oral argument, and deadlines for filing requests for oral argument, and prohibited oral argument in cases placed on the summary calendar. The 2003 amendment, effective May 1, 2003, in Subparagraph B(1), inserted "and proceeding on writ of certiorari or writ of error" and substituted "and" for "or" following the semicolon. The 1993 amendment, effective December 1, 1993, rewrote Paragraph E, which read "Oral argument of thirty (30) minutes will be allowed to each side as to all matters unless the time is extended or restricted by the appellate court." Recompilations. - Pursuant to Supreme Court Order No. 16-8300-011, 12-214 NMRA was recompiled and amended as 12-319 NMRA, effective December 31, 2016.

For federal rule, see Fed. R. App. P. Rule 34. Law reviews. - For annual survey of civil procedure in New Mexico, see 18 N.M.L. Rev. 287 (1988). Am. Jur. 2d, A.L.R. and C.J.S. references. - 5 Am. Jur. 2d Appellate Review § 579 et seq. 5 C.J.S. Appeal and Error § 668 et seq.