44TH LEGISLATURE - STATE OF NEW MEXICO - FIRST SESSION, 1999

RELATING TO CIVIL ACTIONS; ENACTING THE LITIGATION ACCOUNTABILITY ACT; PROVIDING FOR THE AWARD OF COURT COSTS AND ATTORNEY FEES IN CERTAIN INSTANCES; REQUIRING THAT THE ACTUAL NAMES OF THE PARTY BE USED IN CERTAIN CIVIL ACTIONS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. SHORT TITLE.--This act may be cited as the "Litigation Accountability Act".

Section 2. DEFINITION.--As used in the Litigation Accountability Act, "without substantial justification" means a claim or a defense in a civil action that is frivolous, groundless in fact or in law or vexatious.

Section 3. AWARD OF COURT COSTS AND ATTORNEY FEES.--

A. Except as provided in Subsections C and D of this section, upon its own motion or upon the motion of any party, a court in a civil action shall assess court costs and attorney fees if, after considering the factors specified in Section 4 of the Litigation Accountability Act, it finds that a claim or defense, or a part thereof, raised in the action:

(1) is without substantial justification;

(2) is raised for the purpose of delay or harassment; or

(3) otherwise unnecessarily expands the action by improper conduct, including abuse of discovery procedures.

B. If court costs or attorney fees are assessed pursuant to Subsection A of this section, the court shall allocate the assessment between the offending attorneys and parties in a manner that the court determines most equitable.

C. No court costs or attorney fees shall be assessed pursuant to this section for raising a claim or defense if the party or attorney that raised the claim or defense voluntarily withdraws or dismisses the claim or defense within a reasonable time after the attorney or party knew or should have known that it would not prevail.

D. Unless the party is licensed to practice law in New Mexico, no party who is appearing without an attorney shall be assessed attorney fees unless the court finds that the party knew or should have known that the party's claim or defense:

(1) is without substantial justification;

(2) is raised for the purpose of delay or harassment; or

(3) otherwise unnecessarily expands the action by improper conduct, including abuse of discovery procedures.

Section 4. PROCEDURE FOR DETERMINING COSTS AND ATTORNEY FEES.--In determining whether to assess costs or attorney fees, the court shall exercise its sound discretion, shall specifically set forth the reasons for the assessment and shall consider all relevant factors, including:

A. the extent to which an effort was made to determine the validity of a claim or defense before it was asserted;

B. the extent to which an effort was made after the commencement of an action to reduce the number of claims or defenses being asserted or to dismiss claims or defenses that were not found to be valid;

C. the availability of facts to assist the party to determine the validity of a claim or defense;

D. the relative financial position of the parties involved;

E. whether the action was prosecuted or defended in whole or in part in bad faith;

F. whether issues of fact, determinative of the validity of a party's claim or defense, were reasonably in conflict;

G. the extent to which the party prevailed with respect to the number of claims in controversy and the judgment amount;

H. the extent to which a claim or defense was asserted by an attorney or party in a good-faith attempt to establish a new theory of law;

I. the amount or conditions of any offer of judgment or settlement in relation to the amount or conditions of the ultimate relief granted by the court;

J. the extent to which a reasonable effort was made to determine prior to the time of filing of a claim that all parties sued or joined were proper parties owing a legally defined duty to the party asserting the claim; and

K. the extent of any effort made after the commencement of an action to reduce the number of parties in the action.

Section 5. USE OF ALIASES.--The actual name of each party to a civil action shall be specified in all pleadings and decisions filed in the action unless:

A. one of the parties is a minor, in which case an alias may be substituted for the name of the minor; or

B. the court determines that there is a public policy reason for keeping the name of a party confidential to avoid distress and embarrassment and issues a protective order that allows the parties to know the name of the party but prohibits them from disclosing the name publicly.

Section 6. STIPULATED COSTS AND FEES.--Nothing in the Litigation Accountability Act limits the power of a court to approve stipulations or agreements between the parties agreeing to no award of attorney fees or court costs or agreeing that attorney fees and court costs shall be assessed in a manner different than the procedure specified in the Litigation Accountability Act.

Section 7. APPLICABILITY TO OTHER LAWS.--The provisions in the Litigation Accountability Act shall not apply to civil actions brought under any other law specifically providing for court costs and attorney fees.