CU Law Profiles
Faculty Profile

Christopher B. Mueller

Evidence, Civil Procedure, Litigation

You may also visit my faculty home page.

Hometown

Laramie Wyoming

Favorite Book

Joyce, Ulysses;
Faulkner, The Sound and the Fury, Abaslom, Absolom;
Homer, Iliad and Odyssey;
Tolstoi, Anna Karenina;
Flaubert, Madame Bovary;
Dickens, David Copperfield

Favorite Movie

The Dead (directed by John Huston, with Angelica Huston, Donel McCann, Donel Helihy, after the Joyce short story by the same name) (1987).

Who?s Afraid of Virginia Woolf? (Richard Burton, Elizabeth Taylor, Sandy Dennis, George Segal, after the Edward Albee Play by the same name) (1966).

Five Easy Pieces (Jack Nicholson, Karen Black, Sally Struthers, Susan Anspach) (1970).

Sideways (Paul Giamatti, Thomas Hayden Church, Sandra Oh, Virginia Madsen) (2004).

Hombre (Paul Newman, Richard Boon, Martin Balsam, Frederic March, Diane Cilento) (1967).

Wait Until Dark (Audrey Hepburn, Alan Arkin, Richard Crenna, Ephram Zimbalist, Jr) (1967).

Hoosiers (Gene Hackman, Barbara Hershey, Dennis Hopper) (1986).

The Big Sleep (Humphrey Bogart, Lauren Bacall, John Ridgley, Martha Vickers) (1946).

What were you doing before you came to the University of Colorado Law School?

Teaching at the University of Illinois in Champaign/Urbana; before that, teaching at the University of Wyoming and at Emory in Atlanta; before that, practice in San Francisco.

What is one interesting, fun, or offbeat thing you have done in your lifetime?

Worked as a firefighter in Grand Teton National Park, where I fought small forest fires and went on mountain rescue missions carrying supplies up and wounded climbers down.

What do you consider to be one of your biggest accomplishments?

Here are three: Writing a treatise on Evidence Law, writing student hornbook and texts on Evidence Law; helping Colorado Music Festival find a new Conductor in Michael Christie (and survive the departure of the founder Giora Bernstein); helping keep the Boulder Open Space Department independent by insuring that Mountain Parks merged into Open Space rather than putting Open Space in the Parks and Recreation Department; managing to keep faith with my children through and beyond their teen years, seeing them go forth in the world while yet continuing to belong to their family.

What do you like most about Boulder?

Colorado Music Festival at Chautauqua in July and August every year (a program of classical music that is better than what you find in most big cities); the climate, the breathtaking views in all directions, the proximity to the mountains and the cultural life of Denver, the civic-mindedness of the citizens, the embrace of modern liberalism despite its obvious shortcomings, the responsiveness of local government and the people of Boulder to the challenge of handling urban sprawl and keeping Boulder livable.

What do you like least about Boulder?

The obsession with prairie dogs and other environmental trivia, the overly tuned bias against automobiles, the embrace of modern liberalism despite its obvious shortcomings, the willingness to spend endless amounts of money on nature as if it were in danger of disappearing if we so much as breathe on it; the unwillingness of so many, including some in local government, to spend money on culture as if it were less important than the environment and could survive and prosper without community efforts or governmental support; the unwelcoming and critical attitude of many in city government toward the University.

Favorite Place To Eat Out in Boulder

Pasta Jays (best atmosphere; best marinara sauce; best jumbo shells, just the best, period)

Why did you decide to become a professor?

Because I wanted to teach, to connect with young people entering the profession, and because working on law from the perspective of the academy is more challenging and engaging than practicing law, where the mechanics of cases and problems absorb so much of the energy of practitioners. Lawschool (it should be one word) provides a place to think and talk about law outside the pressures of actual cases and clients who must foot the bill. Students don?t know it, but they will miss lawschool when they leave and get into practice.

What do you like most about teaching at CU?

The quality of the students, the variety of intellectual points of view of my colleagues, the favorable student/teacher ratio that provides for much more one-on-one interaction than can be found in most lawschools of quality.

What area of law are you most interested in and why?

Evidence and Procedure (not surprisingly). In my application to lawschool, I wrote in my personal statement that I wanted to become a law professor afterwards, but after lawschool I wanted to stay in San Francisco and practice law, so I gave up the idea of teaching for awhile. After four years of practice, a friend in a nearby firm took a teaching position and encouraged me to do it too. I applied, and told schools I would teach ?anything? (although my first choices were Evidence and Procedure and Conflicts of Law), and I found work in several schools, and I chose the one that gave me the very teaching package that was looking for (the three courses just mentioned).

Evidence is absorbing because of the challenges of the hearsay doctrine, which forces us to come to terms with language and meaning, and with the different ways that language operates. Also Evidence is absorbing because of the difficulties of the rules governing character evidence, impeachment, and presumptions. Finally Evidence is absorbing because its major theme is how one learns the truth in an adversary setting that is largely run by lawyers supervised and policed by courts for the benefit of juries, and it is a combination of carefully wrought rules and compromises that offer a mix of specifics and generalities aiming toward getting it right without spending endless amounts of time and resources in the process.

Procedure is absorbing because of the tensions between ?getting it right? and ?limiting the opportunity of the parties? in the name of ?reaching a result? that resolves everything and endures. Also because of the struggle for control between judges and lawyers. And because of the temptation to avoid substantive issues by invoking (even stretching) procedural rules, apparently on the theory that it?s better to ?bend? procedural rules than actually to decide hard substantive questions. And finally because of the struggle between the point of view represented most vividly in people like Justice Brennan, who think that courts always make the world better, and people like Justice Rehnquist, who think that courts are limited in their capacities and should recognize those limits.

Conflicts of Law has dropped out of the curriculum, for all intents and purposes. In one respect, this event is tragic because deciding which law to apply in cases that connect with two or more states is as important today as it was in the days when nearly every law student took the course. In another respect, the disappearance of the course is prophetic and symptomatic of a deep problem in our social order, which is that nobody really knows the answer to the most difficult problems that arise in this area ? whose law to apply when two or more states have important connections to the events in litigation, and their laws point toward opposite results.

What piece of advice would you give a student about surviving being a 1L?

Don?t pay any attention to the talk about lawschool being a dog-eat-dog place. The world can also be described in those terms (although I wouldn?t describe it that way). Work hard, compete as best you can, be satisfied with nothing short of being prepared and doing your best, and don?t feel sorry for yourself because it?s a hard road. Life is a hard road, and if you don?t want to work hard, choose another career. Keep your perspective ? lawschool, for the moment, is the most important thing, but family and friends and having a little fun are important too. Be ready to make some sacrifices (and to ask others in your life to understand), but don?t give up completely on the rest of your life. If your idea is that you should ski every weekend, don?t come to lawschool. On the other hand, if your idea is that you?ll never have time to go to a movie, or have dinner out with your spouse or significant other, or have a date or spend time with friends, that?s overkill too ? there won?t be lots of time for that, but there will be a little.

What piece of advice would you give a student about getting the most out of law school?

Re-examine your ideas about the world in light of what you learn in lawschool. If you came to lawschool thinking that defendants in criminal cases are usually innocent or that they get a raw deal, or that corporations are usually bad and need to be punished, or that civil liberties are being trampled and the balance needs to be redressed, or that tree huggers and environmentalists are standing in the way of economic prosperity, don?t shrink from re-examining those ideas in light of what you discover. You?ve grown a lot before you come to lawschool, but you haven?t stopped growing, and lawschool will put in front of you lots of ideas that will challenge the worldview that you already have. Nobody wants you to abandon the things you consider most important in life, but don?t think that what you believe when you enter lawschool is the last word ? in three years you?ll find out many things that you do not now anticipate, and what you learn will lead you in at least some directions that you don?t see now.

What piece of advice would you give a 1L or 2L as they choose their 2L and 3L courses?

Take at least one course in an area of the law that you know you will never revisit because your career is going in other directions. If you know you?re going to do tort litigation, take a course in environmental law. If you know you?re going out to save the environment, take a course in antitrust or patents and copyright. If you know you?re going to represent defendants in criminal cases, take a course in employment discrimination. If you know you?re going to litigate civil liberties cases, take a course in tax law. And whatever you do, take Complex Civil Litigation. (For a third time, I must hope my colleagues will indulge my enthusiasm for a course that I teach.)

What are the top three reasons that you think a prospective student should choose CU Law?

1. Study Law here if you want to practice in Colorado. This is the best lawschool in the region and one of the best in the country, and for people who want to live in this state, CU is the very best place to go to law school.
2. Come to CU if you want a chance to be somebody in lawschool, to be noticed (if that?s what you want), to be a scholar or book worm (if that?s what you want), to be an activist (if that?s what you want). It?s all possible here.
3. Come to CU if you want to get to know some of your professors ? you won?t meet or even want to spend time with all of them, but you may want to meet or spend time with one or two. There?s a chance for that to happen at CU, and in most schools that will not happen.

What piece of advice would you give a prospective student about choosing a law school?

Don?t forget that lawschool is three years of your life, and the last time in most lives that you will spend in school. Spend those years in a place that you will enjoy. If cities are your thing, that counts: Go to a lawschool in a major metropolitan area. If what you most like is the south, choose a place there. Geography counts not only in the larger picture but in the picture of the three years you will spend in lawschool. Choose a place you think you will like to live in for that period of your life.

Could you describe each of the main classes that you teach, and give your explanation of what those classes are about?

Civil Procedure
I?m hoping my colleagues will forgive me for saying that Procedure is the most important course in lawschool. Almost everyone who enters lawschool has ideas about when or whether a person should be able to recover because of a tort like negligence or libel, or because of a breach of contract, or because of a violation of civil liberties, but almost nobody comes to lawschool with any sense of what a system of procedure looks like or ought to look like. From the beginnings of Procedure, which involves pleadings (complaint and answer) to the end of procedure, which involves looking at appeals and res judicata (the finality of judgments), the details of our procedural system come as news to students. In the beginning, Procedure is almost counterintuitive, but by the end of the course everyone acquires a new set of intuitions, and there?s no going back. Show me a student who has taken about half a semester of Procedure, and I?ll show you a student who has left innocence behind. If you are that student, it is still possible that you?ll decide not to become a lawyer (although you probably won?t decide that), but even if you abandon the road to becoming a lawyer, you have already crossed the Rubicon and you will never see the world with the same eyes again. You have looked at questions that you didn?t even know to ask, and now you?ll always see them, and you?ll have lots of answers for your nonlawyer friends when you talk about well-known cases at parties or other social occasions. You are not who you were when you started lawschool.

Procedure is multiple stories. One of the stories is about providing fair but not endless procedural opportunities to the parties. Another story is about having rules that are functional rather than wooden, but even functional rules have dysfunctional aspects and very often the question is whether to bend a bit in the interest of achieving a good result or refuse to bend and penalize a party who may have a good case: The reason is that if you have rules, then there must be some consequence for not abiding by the rules, and yet enforcing procedural rules may keep a case from going forward. In a broad sense, the reason Mellville?s Billy Budd is a compelling story is that it asks the question whether a rule that seems to be working badly should be enforced anyway, which is the same problem that proceduralists face every day. Another story in Procedure is federalism ? when should state courts defer to federal courts, and when should federal courts defer to state courts? When should state law give way to federal law, and when should federal law give way to state law? (For some, by the way, state law always gives way, and state courts always do, but if that?s literally and always the way it should be, why exactly do we have states, and why state courts?) Another story in Procedure is the interplay between lawyers and judges, and how the two branches of the profession, thrown into the same boat in every lawsuit, function together. Yet another story in Procedure is how lawyers function as lawyers: It comes as something of a shock that lawyers represent clients rather than justice, and that lawyers actively work to create litigation. And of course another story in Procedure is how judges function: It comes as something of a shock that judges have extraordinary power, even while they struggle through each day (especially in the state systems) with too little resources.

Evidence
Evidence law is the second-most important course in lawschool (and once again I hope my colleagues in other disciplines can forgive me for making this claim). It is a combination of intuition, experience, and doctrine that has a kind of formal beauty but endless problems of application. Like Procedure, the law of evidence is partly about giving parties a fair opportunity to present their cases, but not endless opportunities. But Evidence law takes over where Procedure (and its sibling on other side of the docket, Criminal Procedure) leave off ? Evidence supplies the rules of actually trying cases.

The key to the hardest part of Evidence law is understanding the difference between the assertive quality of language (its ability simply to serve as vessels containing information) and the performative quality of language (its ability to shape the world and to do everything from committing crimes to shaping relationships). The key to relevance is in understanding the rules governing character evidence, and the hard part is seeing the difference between character as a general quality with predictive power and particular aspects of character with stronger (and more accepted) predictive power. The key to impeachment is in recognizing the different ways that credibility can be brought into question, and the big challenge is in regulating impeachment by contradiction, which seems to operate almost outside the legal rules, but is actually subject to some particular rules of its own. Second after hearsay in terms of difficulty is the area of presumptions, which in criminal cases operate as a thumb on the scales of justice favoring prosecutors, and in civil cases as devices that get around difficulties in proof and implement substantive policies.

Is there anything else you would like to add?

When you?re in lawschool, work hard and play hard and grow. When you get out (or while you?re in school if you can), work hard and play hard and keep growing. And listen to Haydn and Brahms and Mahler; read Joyce and Faulkner. And grow some more.