The Bar Association of the Fifth Federal Circuit is the bar association to belong to if you’re interested in the work of the U.S. Court of Appeals for the Fifth Circuit. More information about member benefits is detailed on the BAFFC’s website. One of those benefits is a terrific set of short (c. 500 word) articles about appellate practice (here’s an example that I did about a year ago on oral-argument preparation).

Please consider writing one yourself! A link will be emailed out several times to the BAFFC’s thousands of members, as part of its daily updates about recent decisions, and it’ll be available to the membership online as part of the full collection of these pieces. Contact BAFFC administrator Mary Douglas at mary@baffc.org!

The National Court Reporters Association recently published a fascinating “white paper” about “ethical and legal issues related to the use of artificial intelligence … and digital audio recording of legal proceedings.” It’s succinct, thoughtful, and raises questions relevant to just about any area of law practice or court administration that’s touched by the influence of generative AI and related technologies.

Fagin v. Inwood Nat’l Bank rejected a request to recognize “truth” as a defense to a tortious-interference claim, holding:

We agree with our sister courts’ reasoning. As with affirmative claims, recognizing an affirmative defense that the supreme court has expressly declined to adopt raises a “litany of questions regarding the contours and scope” of the defense that we are ill-suited to answer. We conclude that neither this court nor the trial court below can legitimately recognize, in the first instance, an affirmative defense of truth to a claim for tortious interference with an existing contract.

No. 05-21-00878-CV (footnotes omitted) (mem.op.).

Continuing a theme begun earlier in the week, the Fifth Court again analyzed (and turned down) a permissive appeal in Singh v. Rategain Travel Techs., Ltd., this time on a question about arbitrability. (My LPHS colleague John Volney represented the successful respondent in this matter.)No. 05-23-01088-CV (Dec. 14, 2023) (mem. op.)

Hartline Barger LLP v. Denson Walker Properties, LLC provides insight on when the Fifth Court will (and will not) accept a permissive appeal: “Although the possibility exists that a controlling legal question as to which a substantial ground for disagreement exists might arise in determining whether a fact issue exists in the context of a summary judgment, it is rare, and this fact-intensive case is not that rare occurrence.” No. 05-23-00126-CV (Dec. 11, 2023) (mem. op.).

The supreme court granted mandamus relief in the high-profile abortion case of In re State of Texas, reminding that “we may grant mandamus relief when the trial court effectively resolves the merits of a case in a temporary restraining order,” and applying that principle to hold:

A pregnant woman does not need a court order to have a lifesaving abortion in Texas. Our ruling today does not block a life-saving abortion in this very case if a physician determines that one is needed under the appropriate legal standard, using reasonable medical judgment. If Ms. Cox’s circumstances are, or have become, those that satisfy the statutory exception, no court order is needed.

No. 23-0994 (Tex. Dec. 11, 2023). Not addressed (because not presented) is whether the courts will be so deferential to medical judgment if it is challenged in the context of a later criminal prosecution, as opposed to the unusual “pre-clearance” type of injunction at issue in this case.

In November, the supreme court gave final approval to a new rule of procedure about permissive appeals. The key provision is as follows:

The defendants in a bus-accident cases disputed venue in Dallas County, arguing that the bus was ordered from, and ultimately delivered to, Parker County. The plaintiffs responded that “bookends are meaningless without the books,” contending that “determining where the bus was supplied also includes all actions that made negotiation and final delivery meaningful.”  The Fifth Court ruled for the plaintiff,s concluding that the activities conducted in Dallas between order and delivery “were key components of an integral to [Defendant]’s transaction with [Plaintiff] for the sale of the bus. Rush Truck Centers of Tex. v. Sayre, No. 05-23-00775-CV (Nov. 30, 2023) (mem. op.). The Court continued: “[W]hile some of the Dallas actions involved clerical work, those actions are nonetheless relevant to determining whether the claim has substantial connection to the plaintiffs’ chosen venue.”

The Fifth Court’s website has added this notification, reflecting new laws that create a 15th Court of Appeals with jurisdiction over specified subject matters: