Austin Lawyer, October 2022

Dealing with Opposing Counsel the Ted Lasso Way

BY STEVE BENESH

Most Friday nights, my wife Jennifer and I order take out from the TexMex restaurant down the street, settle onto the couch in the den, and see what’s good on Netflix or Apple TV. One such Friday night not too long ago, we happened across Ted Lasso, watched the first episode, and were hooked.

Ted Lasso is a heartwarming series—about to enter its third season—about an American col lege football coach who agrees to coach a professional soccer team in England … although he knows nothing at all about the sport.

Jen and I enjoy the show for many reasons. The screenwriting is clever, the casting is spot-on, and the acting is wonderful. But mostly, we enjoy the show because of the unshakable opti mism and unbridled positivity of Ted Lasso himself, the show’s eponymous lead character. Even though he arrives in England to discover that his players mistrust him, the press skewers him, and the fans revile him, he eventually wins them all over with his up beat and courteous manner and the folksy adages that he offers in every otherwise-tense situation.

As I’ve thought about it, I’ve

realized that some of Lasso’s adages, his “Lasso-isms,” have real application to how we regard and treat each other in the course of our legal practices. At times, it feels like civility and mutual respect are at an all-time low in our society and that it has begun to fray the edges of our own profession. So, allow me to offer my thoughts about how some of Ted’s maxims serve as apt and timely reminders about how we should interact with our opposing counsel.

“Takin’ on a challenge is a lot like ridin’ a horse. If you’re comfortable while you’re doin’ it, you’re probably doin’ it wrong.” Practicing law can be very challenging, very trying, at times. The stakes for our clients are often high, and we owe them a duty to protect and advance their interests, usually in the face of vigorous opposition. In such times, clients sometimes want us to pursue tactics or en gage in conduct that is inconsis tent with the highest principles of our profession. It is important for us to remember that the Texas Lawyer’s Creed instructs us to advise our clients that we will be courteous and civil with counsel; that we will not pursue

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conduct intended primarily to abuse, harass, or delay; and that we will not pursue a course of action that is without merit.

Establishing this understand ing with clients at the start of representation may help to avoid conflict down the road.

“Even Woody and Buzz got under each other’s plastic.” Disagreements with opposing counsel are inevitable … even with lawyers who we knew and liked before the matter arose. As zealous advocates for our clients,

we just butt heads sometimes. But the way we do so must be consistent with our professional principles. The Texas Lawyer’s Creed instructs us that we are to disagree without being disagree able, to refrain from quarreling over matters of form or style, and to agree to reasonable re quests that don’t adversely affect our clients’ interests. Yet, often, there is a temptation in the heat of battle to oppose something

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FEATURED ARTICLES

1 Dealing with Opposing Counsel the Ted Lasso Way

9 Engaged for the Better Project Engage Program Enlightens Participants and Helps Shape Community

11 Good Fellows

The Austin Bar Foundation Recognizes New Fellows

13 Seeing is Believing Touring the New Civil Courthouse

14 Fulfill Your Moral Obligation to Central Texans, Worry-Free

23 Commitment Counts Way To Go, 50-Year Lawyers!

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Dealing with Opposing Counsel the Ted Lasso Way

from cover

merely because our opponent wants it. We must be vigilant to avoid that temptation, recogniz ing that such obstructionism often delays justice rather than serves it. Mindful of the Golden Rule, we should set the tone early in our matters by agreeing to reasonable accommodations with opposing counsel and seek ing common ground in an effort to resolve disagreements. I have found that, when I do so, my opponents most often respond likewise.

“You gonna give me the cold shoulder and the silent treatment? That’s a combo. Does it come with a medium drink?” Sometimes, our matters become too personal, when the bad blood between the parties, our clients, boils our own blood. When that happens, there is often the urge to either lash out at opposing counsel or ignore them entirely. But such conduct is ultimately counterproductive. The problems at issue in our matters are our clients’, not our own; our job is to pursue resolu tion of them. The Texas Lawyer’s Creed reminds us that we are not to be influenced by any ill feeling between clients, that we are to avoid disparaging personal remarks and acrimony toward attorneys and their clients, and that we are to refrain from antag onistic or obnoxious behavior.

At the inception of a matter, we should reach out to our opposing counsel, establish the ground rules for our communication and interaction, and let them know that we will be prompt, civil, and professional in our dealings with them and that we hope for the same from them.

“You know what the happiest animal on Earth is? It’s a goldfish. You know why? Got a ten-second memory. Be a goldfish!” Once a matter is

concluded, let it go and move on. But before you do, it’s a good idea to lay down your sword and shield and cement or reaffirm your friendship with opposing counsel. After the dust settles, ask them to lunch or take them out for a beer after work, and then talk about anything and everything. Keep in mind that they are going to be your colleague in this profession far longer than they are going to be your opposing counsel. As the Texas Lawyer’s Creed points out, we are members of a learned art, who pursue a common calling in the spirit of public service. Let that be our common bond with our opposing counsel, unbroken by the disparate positions that client engagements require us to take and unsullied by the manner in which we dispatch our responsibilities.

For a different take on the application of Ted Lasso’s axioms to the practice of law, I encourage you to read Heath Cheek’s excellent article, “Be a Goldfish – The Wisdom of Ted Lasso for Lawyers,” which you can find on The Texas Lawbook (texaslawbook.net).

Steve Benesh is partner in the Austin office of Bracewell LLP, where he engag es in a commercial litigation practice. Benesh is a former president of the Austin Bar Association, and he currently serves as chair-elect of the Texas Bar Foundation.

Once a matter is concluded, let it go and move on. But before you do, it’s a good idea to lay down your sword and shield and cement or reaffirm your friendship with opposing counsel.

Arielle Rosvall, Coleen Kinsler

partners: associate attorneys:

Me di a tor, Arbi t ra tor, Spe ci a l J udge a nd Li t i ga t i on Consult a nt

Senior District Judge Stephen Yelenosky

Engaged for the Better

Project Engage Program Enlightens Participants and Helps Shape Community

BY BRANDY MUELLER

Project Engage recently celebrated its tenth anniversary, and what a busy time it has been throughout 2022! The award-winning diversion program created by Judge Brandy Mueller, Travis County Court No. 6, which aims to keep teenage defendants out of jail by giving them structure and support, continues to thrive in Central Texas. Providing guid ance through positive outreach and engagement opportunities for juvenile offenders, the pro gram has completed many events this year and seeks to continue next year. To commemorate the anniversary, supporter and Grammy winner SaulPaul was on hand with Judge Mueller to share inspiration with Project Engage participants.

With both in-person and vir tual events throughout the year, Project Engage continuously strives to be a beacon of light for young offenders as they strive to get on track. The well-received program has received national recognition as a model for others to follow. It is also supported by Oscar-winning actor Matthew McConaughey. Here are a few highlights of what has been hap pening with Project Engage.

VISION BOARDS

Participants met with local volunteer Yasmin Evans to learn how to make vision boards. The concept is to create a vision for the future using creative ways to visually highlight plans and ideas. The objective for each individual is to use the vision board as a daily reminder to stay on the right path.

GRADUATION

There is nothing like a sweet pup to put a smile on faces! Service dog Bruno attended our 2022 Project Engage graduation. Par ticipants received their honors

and a “doggy handshake.” Bruno is part of Divine Canines.

READING OF DECLARATION OF INDEPENDENCE

This annual event, held by the Austin Criminal Defense Lawyers Association (ACDLA) and the Texas Criminal Defense

Lawyers Association (TCDLA), takes place on the steps of our courthouse, the Blackwell-Thur man Criminal Justice Center. The organizations are excitedly joining together to give partic ipants a chance to share in the spirit of the community.

Judge Mueller says the oppor

tunity to share insight with the youth in her courtroom through positive works, goal-setting, and guidance is something she is honored to do and believes our community is better for it.

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CLOCKWISE FROM TOP LEFT: Grammy-winning artist SaulPaul supporting Project Engage with Judge Brandy Mueller; actor Matthew McConaughey sharing thoughts during a Zoom meeting along with Judge Mueller and Project Engage coordinators and supporters; Bruno the therapy dog greets 2022 Project Engage graduates; Project Engage volunteer Yasmin Evans explains the purpose of a vision board to program participants.

Our first Austin Bar Association Board of Directors meeting was held on Aug. 31. We haven’t had strategic planning discussions as a board in some time, so we took a step back to consider, “What do we

AMANDA ARRIAGA , TEXAS CASA

The Heart of the Matter—Our Members

owe to our members?”

We had a great preliminary discussion, and since we haven’t figured everything out yet, I also want to hear directly from you, our members.

What do you want from your bar association? Do you want more community service events, more networking events, more CLE, or something else? Do you wish we had more events that had to do with your area of law?

I want your time as a member to be meaningful, so email me at amanda@austinbar.org and let me know what that would look like to you.

One upcoming event that we created based on feedback to have some more fun low-key events is a family-friendly Halloween event on Saturday, Oct. 29.

One upcoming event that we created based on feedback to have some more fun lowkey events is a family-friendly Halloween event on Saturday, Oct. 29 from 10 a.m. to 2 p.m. The entrance fee is a new stuffed animal (or a donation) to support Adoption Day, which will be held on Thursday, Nov. 10. If you have any other ideas about

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events we should incorporate into our programming this year, please let us know, and better yet please join one of our commit tees and help us turn those ideas into action.

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Good Fellows

The Austin Bar Foundation Recognizes New Fellows

The Austin Bar Association is excited to announce the newest Life Fellows and Fellows of the Austin Bar Foundation for 2022. These fellows proudly support our charitable work, and we are proud to have their dedicated service for initia tives, programs, and events.

NEW LIFE FELLOWS FOR 2022: Patrice Arnold, Arnold & Associates David Courreges, UFCU

Gavin R. Villareal, Baker Botts

NEW FELLOWS FOR 2022: Lea N. Brigtsen, Williams Simons & Landis PLLC

Jeff Lilly, Latitude

Zachary Wiewel, The Wiewel Law Firm

Support from fellows play a huge role in the continuation of initia tives, programs, and events. Are you interested in becoming an Austin Bar Foundation Fellow? Learn more about your opportunities with the Austin Bar Foundation.

FELLOWS

Attorneys who contribute to the Austin Bar Foundation through yearly donations of $200 for ten years.

LIFE FELLOWS

Attorneys who complete a $2,000 contribution to the Austin Bar Foundation.

SUSTAINING FELLOWS

Attorneys who have made it to Life Fellow status and continue contrib uting to the Austin Bar Foundation each year.

We are welcoming new fellows. Get started today! Contact Marissa Lara-Arebalo at marissa@austinbar.org.

TOP ROW: Arnold, Brigtsen, Courreges. BOTTOM ROW: Lilly, Villareal, Wiewel.

Many Roads, Same Dedicated Service

Practicing Law with State Agencies and Firms and Loving It

the benefit of those regulations whether at the local, state, or na tional level. Other times, we want to avoid or mitigate the conse quences of those regulations. You know exactly what I mean if you

own or do business with daycare centers, assisted-living facilities, nursing homes, home builders, real estate developers, electricians, cosmetologists, tow-truck opera tors, water-well drillers, water and

wastewater facilities, and other regulated activities.

As a mature attorney, I love practicing law. I find great self-sat isfaction in knowing that I am able to use my legal skills to help people solve their legal problems. So, as I approach my 30th year as a State Bar of Texas licensed member in good standing, “YES… I AM STILL LOVING BEING A LAWYER!” AUST INL AW Y ER AL AL

After graduating from The University of Texas in 1983, then the University of Houston in 1988, and lastly from South Texas College of Law in 1992, I began a general law practice in the private sector before joining the legal team at the newly formed Texas Natural Resource Conservation Commis sion, now known as the Texas Commission on Environmental Quality. Determined to further develop my litigation skills and fulfill my desire to serve the public, I decided to join the legal team at the Office of the Attorney General of Texas in 1995, where I practiced environmental and administrative law for the next 24 years. In addition to litiga tion, I also served as managing attorney and deputy chief of the Administrative Law Division for several years. In 2020, after leaving public service, I joined the Fowler Law Firm, P.C., a civil law firm in Austin.

Since most of our daily activi ties require some level of licensure or regulatory approval, it is no sur prise that government regulations impact our lives in more ways than you can begin to imagine. Sometimes we want to experience

We understand. We can help.

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Attorney Erin Leake Board-Certified in Family Law by the Texas Board of Legal Specialization

Eugene Clayborn is board certified in administrative law. The South Texas Col lege of Law graduate joined the Fowler Law Firm, P.C. in 2020.

I find great self-satisfaction in knowing that I am able to use my legal skills to help people solve their legal problems.

Seeing is Believing Touring the New Civil Courthouse

BY SONTA HENDERSON

Austin Bar Association leaders got a sneak peek of the new civil courthouse. The tour, coordinated by 261st Civil District Court Judge Lora Living ston, showcased what is to come for the legal community in 2023.

Austin Bar President Aman da Arriaga, Executive Director DeLaine Ward, and Associate Executive Director Debbie Kelly toured the massive complex which has beautiful views of the city’s skyline. 345th Civil District Court Judge Jan Soifer along with her staff and several county employ ees, were also on hand to get an up-close and personal look.

From courtrooms to meet ing rooms and a large parking garage, the new civil courthouse will have amenities geared toward easier access for attorneys and their clients.

Ward says seeing the court house firsthand was important be cause it allows her team to know what is available for members.

She adds, “This tour was special to us. We know many of our members spend a lot of time at the courthouse. They will be very pleased to see that much thought went into every detail of the building. It is amazing.”

The final touches are being completed and the new facility is slated to open in early 2023.

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TOP: Front Row: Amanda Arriaga (far left), Judge Jan Soifer (third left), DeLaine Ward (center), Judge Lora Livingston (third right). Back Row: Debbie Kelly (third left), Elliott Beck (center). BOTTOM RIGHT: Judge Jan Soifer (center) along with Elliott Beck (right), and Michelle Williamson. BOTTOM LEFT: Final touches being added inside a courtroom.

Austin Bar members will be very pleased to see that much thought went into every detail of the building.

Fulfill Your Moral Obligation to Central Texans, Worry-Free

BY KARINA GARZA

employees? We must remember that within the Texas Disciplinary Rules of Professional Conduct (DRPC) it clearly states that “the provision of free legal services to those unable to pay reasonable fees is a moral obligation of each lawyer as well as the profession generally.” (Texas Disciplinary Rules of Professional Conduct, Preamble, Rule 6). Thus, a dilemma: How can government attorneys be expected to live out this mandate AND remain conflict-free?

Enter Rule 6.05: Conflict of Interest Exceptions for Nonprofit and Limited Pro Bono Legal Services:

A lawyer providing limited pro bono legal services is not obligated to perform a conflict check before undertaking the limited representation.

Have you heard? Attorneys can provide legal advice at one of Volunteer Legal Services of Central Texas (VLS)’s many clinics without needing a conflicts check in the moment. You can provide legal advice to your low-income neighbors, worry-free. Clinic work creates no conflict.

Donating your time to VLS is the perfect way to celebrate National Pro Bono Week, Oct. 23-29!

Historically, government attorneys have been very careful of volunteering in a pro bono capacity, as the potential for con flicts of interest were perceived to be too great. In fact, the risk of conflicts of interest has been a large deterrent for many attor neys who would otherwise donate their time and skills to pro bono service providers, such as Volun teer VLS here in Austin.

How can legal service orga nizations (LSOs) expand their volunteer attorney networks if one of the largest pools of attor neys in their areas is risk-averse (and rightly so) government

Adopted May 25, 2021, Effective July 1, 2021.

What are “limited pro bono legal services?” According to Rule 6.05, they are:

(d) As used in this rule, “lim ited pro bono legal services” means legal services that are: (1) provided through a pro bono or assisted pro se program sponsored by a court, bar associ ation, accredited law school, or nonprofit legal services program;

(2) short-term services such as legal advice or other brief assistance with pro se docu ments or transactions, provided either in person or by phone, hotline, internet, or video confer encing; and

(3) provided without any expectation of extended representation of the limited assistance client or of receiving any legal fees in that matter.

The Committee on Disci plinary Rules and Referenda held

a public hearing on April 18, 2019, in which Texas attorneys were able to speak their sup port, opposition, or hesitation regarding the proposed rule before they voted on its passage. Despite some initial opposition and proposed semantic revisions at this April hearing, the rule was passed a month later, on May 25, 2021. This rule, made effective July 1, 2021, knocked down one of the largest barriers to attorneys donating pro bono hours to their Texan communi ties. However, VLS and other LSOs have realized that many Texan attorneys are not aware of the existence of Rule 6.05 at all, despite it being adopted more than a full year ago. Less than one percent of VLS’s current attorney volunteers are government attorneys.

Kate Hannaher, VLS director of legal services, says that this rule can help Texan attorneys “close the justice gap,” as “[m]any hands make light the work. For most of [VLS’s] advice clinic at tendees, a VLS consult is the only time they see a lawyer about their case. Access to justice for these community members is extremely limited. All of us who have been granted the privilege to practice law bear a solemn responsibility to help close that gap.”

VLS equips our attorney volun teers with every possible resource imaginable: access to our invalu able library of CLEs, tailored mentorship, one-pager resource guides, access to our staff attor neys, and much more. Remote phone clinics are held twice a

week, on Tuesdays from 9 a.m. to 1 p.m. and Wednesdays from 5 p.m. to 8 p.m. In June of this year, we reopened our in-person legal clinic at Austin Community College’s Highland campus once a month, on Wednesday evenings from 6 p.m. to 8 p.m. There are three more clinics this year: 10/26, 11/16, and 12/7.

VLS Clinic Coordinating Attorney Susanne Pringle stresses that many VLS clients have legal issues that require highly specialized attorneys, such as employment or healthcare law, fields that often demand strict conflicts checks. “With our new Sharepoint system, pro bono at torneys giving clinic advice never have to download any applicant information,” Pringle explained. “Because [volunteer attorneys] are operating entirely through the web, there isn’t even the appear ance of possibility of them having to ‘maintain’ the confidential information of an applicant such that it would create a conflict.”

The need for accessible pro bono services is only increas ing. Will you personally ensure that Central Texans have equal access to justice during the most challenging periods of their lives? As National Pro Bono Week approaches, make the commitment to sign up for a clinic today. Visit our volunteer hub portal at: vls.volunteerhub. com/ Or, scan this QR code:

Karina Garza works as the development and communications coordinator for Volunteer Legal Services of Central Texas. She is well versed in government and nonprofit arenas alike, having worked for both the Department of Veterans Affairs and the Migrant and Community Action (MICA) Project in St. Louis, Mo. Garza is passionate about equity, justice, and up lifting historically oppressed communities.

VLS equips our attorney volunteers with every possible resource imaginable: access to our invaluable library of CLEs, tailored mentorship, one-pager resource guides, access to our staff attorneys, and much more.

Liz

Megan

A Circus You Can Be Proud Of…

Meet Attorney Jorge Vela and Learn About His Trailblazing Family

“

My great-grandfather, Edmondo Zacchini, was credited with inventing the human cannonball. My grandmother, Duina Zacchini, and her brothers were shot from the cannon as human cannonballs. ... John Ringling, from the Ringling Brothers circus, saw their act in Europe and immigrated my entire family to the United States[.]

Law, a criminal defense firm in Austin. We handle state and federal cases all over Texas. No question, the best part about my job is heading to jury trial. Every trial is intense and challenging. I enjoy going against a quality opposing counsel, then getting a beer together when it’s all said and done.

AUSTIN BAR: Tell us a hobby or something about you people may be surprised to know.

”trial. Watching legal dramas feels like I’m back at work. Plus, they never portray courtroom proce dure correctly. I can’t be the only lawyer that feels this way.

AUSTIN BAR: Which tele vision judge would you most rather go before on a case: Judge Mathis, Judge Judy, Judge Steve Harvey, Judge Joe Brown, or any other?

AUSTIN BAR: Tell us about your background.

VELA: I was born and raised in Laredo, Texas. I attended Vander bilt University, where I graduated with a double major in Spanish Literature and Political Science. Before law school, I spent two years traveling and working in the hospitality industry. I spent time in Madrid, Argentina, Peru, and Bolivia. I eventually went to The University of Texas School of Law and became a lawyer in 2011.

AUSTIN BAR: What was your idea of a “dream job” growing up? What profession did you picture for yourself?

VELA: Growing up, I told myself I would never wear a suit to work. My dream job was to be an expe dition/mountain guide. I have always been an avid outdoors

man. I make sure I take at least two backcountry camping trips a year. I really enjoy taking people backcountry camping for the first time. I think it would be fulfilling to do that for a living.

AUSTIN BAR: What’s a favor ite thing to do or place to go in Austin?

VELA: I think Barton Springs and Deep Eddy are the last crown jewels in Austin. There is a “secret spot” in Barton Springs where you can actually feel the spring water coming out of the rocks. During hot summers, that little spot feels like the fountain of youth.

AUSTIN BAR: What is your current job, how long have you had it, and what do you enjoy most about it?

VELA: I am the owner of Vela

VELA: I come from a family of circus performers! My great grandfather, Edmondo Zacchini, was credited with inventing the human cannonball. My grand mother, Duina Zacchini, and her brothers were shot from the cannon as human cannonballs. They were known as the “Flying Zacchinis.” They started a circus in Italy. John Ringling, from the Ringling Brothers circus, saw their act in Europe and immigrat ed my entire family to the United States in the 1930s. The phrase, “The Greatest Show on Earth,” originated from their circus act.

AUSTIN BAR: Choose your favorite legal drama from television and tell why: Law & Order, Night Court, LA Law, Perry Mason, or another?

VELA: I actually hate legal dra mas! Lol. All I do is prepare for

VELA: Without a doubt, the best TV judge is Judge Chamberlain Haller from My Cousin Vinny! I would love to try a case in front of that guy. AUST INL AW Y ER AL AL

Jorge Vela is a criminal defense attorney in Austin. He is the son of a Mexican immigrant and provides legal services to the Spanish-speaking community in Texas. Vela is a former Assistant U.S. Attorney and a former Assistant District Attorney. He now defends clients accused of both state and federal crimes.

Readable Contracts Part 3

Readability, Grade Level, and Sentence Length

BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

This is part 3 of a series discussing the study, “Poor Writing, Not Specialized Concepts, Drives Processing Difficulty in Legal Language,”1 in which the authors compared contract language with everyday written English. I was able to contact the authors and access the corpora they used, and I conducted my own assessments. (Note: The corpus of contracts I used had 837,000 words; the corpus of ev eryday written English had more than a million words.)

I assessed the text for average sentence length, Flesch Reading Ease, and Flesch-Kincaid Grade Level, and also included those averages from my last 10 columns that have appeared here. The results are represented in the table to the right.

These results support the con clusions of the original study’s authors, but I’ll say a bit more about them here.

AVERAGE SENTENCE LENGTH

The average for the everyday English text—13 words—is quite short. Typically, everyday English sentences would average 15 to 20 words. But this corpus included blogs, webpages, and TV and movie scripts, so the low number makes sense.

The 42-word average for the contracts is, well, huge. As I pointed out last month, these are commercial contracts entered into by sophisticated parties represented by counsel, so the long sentences aren’t as troubling as they might be if the contracts were apartment leases, credit-card agreements, or software-user agreements.

The 42-word average means that there are some really long sentences, and even experienced

Thus, the grade level is appro priate given the context: These contracts were prepared by and for attorneys.

RECOMMENDATIONS

Still, the 42-word average sen tence length is taxing at best and on the border of impenetrable. Anything we can do to reduce that average will make the con tract easier to read and under stand and, therefore, easier to draft, easier to review, and easier to explain to the client.

Avg. Sentence Length

Flesch Reading Ease

FleschKincaid Grade

Everyday written language 13 67 7

Schiess’s last 10 columns 17 52 10

transactional lawyers might find reading those long sentences difficult.

FLESCH READING EASE

This formula, included in Micro soft Word, was finalized in 1948 by Rudolf Flesch, an Austrian lawyer who fled the Nazis in 1938 and earned a Ph.D. in education in the United States. It assesses the number of syllables and sentences per each 100 words and uses that assessment to produce a score from 0 to 100: 30 is difficult, and 65 is plain English.2

At 67, the everyday English text achieves Flesch’s standard for plain English—as it should. And as we might have predicted, the Reading Ease score for the con tract language is low—what Flesch labels “very difficult.”3 The long average sentence length doubtless contributes to this low score, but the average number of syllables

per word surely does, too.

FLESCH-KINCAID GRADE LEVEL

This scoring system was derived from the Flesch Reading Ease score by J.P. Kincaid4 and reports the number of years of formal education a reader needs in order to understand the text. The everyday English scored a 7, meaning one who has completed the seventh grade should be able to read and understand it. My own writing—which is mostly about writing—tends to hover around the tenth-grade level.

The Flesch-Kincaid grade level for the contract language is high at 19, although I once read a decision from an admin istrative-hearing appeal that scored a 20. But grade level 19 is, unsurprisingly, the equivalent of a reader with a high-school education (12), a college degree (16), and a law degree (19).

Next month: a report of addi tional findings based on the two corpora.

Footnotes

1. Eric Martinez, Francis Mollica, & Edward Gibson, Poor Writing, Not Specialized Concepts, Drives Processing Difficulty in Legal Language, Cognition 224 (2022).

2. William H. DuBay, Smart Language: Readers, Readability, and the Grading of Text 56 (2007); Rudolf Flesch, How to Write Plain English 25 (1979).

3. Flesch, How to Write Plain English at 25.

4. DuBay, Smart Language at 90-91.

OPENING STATEMENT OCTOBER 2022 | AUSTINLAWYER 17 Contract language 42 20 19

NEW MEMBERS

The Austin Bar welcomes the following new members:

Jorge Amador-Gutierrez

Rashmin Asher

Victoria Cadis

Sarah Chavey

Andrew Eckhous

Kevin Green

Puruda Kothari

Aashi Morales

Cathryn Rudolph Sarah Shumate-Connor

Matthew Taylor

Jessica Underwood Sarah Vargas

Katlyn Winters

Sarah Wood Chris Wyatt

KUDOS

 Scott K. Field was appointed to the 480th District Court in Williamson County by Governor Greg Abbott. Field, of Liberty Hill, was a partner at Butler Snow, where he practiced primar ily within the Appellate and Writ ten Advocacy and Commercial Litigation groups. Before Butler Snow, Field served on the Third Court of Appeals in Austin.

 Austin Bar Association

Executive Director DeLaine Ward was elected to the Board of the National Conference of Bar Foundations. Ward has a reputation of collaborating with

organization leaders across the county. She’s been at the helm of the Austin Bar for more than 35 years, where she led efforts for the Austin Bar’s purchase, renovation, and relocation to the historic Hilgers House.

 Justice Brett Busby of the Texas Supreme Court received the Judicial Civic Education Award for 2022 from the Ameri can Lawyers Alliance (ALA). ALA is a national charitable and edu cational nonprofit. Justice Busby helped to create and taught a lesson plan for seventh-grade students. The initiative, called “Taming Texas Judicial Civics

and Court History Project,” recruits judges and attorneys to teach lessons to seventh-graders in the state. Justice Busby is a seventh-generation Texan.

 Congrats to W. Stephen “Steve” Benesh. The State Bar of Texas Board of Directors

Nominations and Elections Sub committee voted to recommend Benesh as a candidate for 202324 State Bar president-elect. If the board approves the nomi nation, Benesh will appear on the ballot in April 2022. Benesh served as president of the Austin Bar Association in 2006-07 and is a partner at Bracewell, LLP.

ABOVE: (from left) Benesh, Busby, Field, Ward

Safety First: Meet Kevin Mullen, Employment Law Section Chair

Learn About the Austin Bar’s Employment Law Section and Leadership

Kevin Mullen is a board-certified 20-year employment lawyer who left the world’s largest employment boutique five years ago to start his own solo practice. Nowadays, he advises management clients and executives on various employment matters and represents clients in employment and business litigation. He is particularly interested in OSHA matters and noncompete litigation. Mullen trained as a mediator at Cornell University’s Industrial and Labor Relations School in New York City, and he serves as a panel mediator for the Nuclear Regulatory Commission. He also serves as a FINRA arbitrator.

AUSTIN BAR: Why did you want to be an attorney?

MULLEN: I didn’t, I just went to law school thinking it would get me into the FBI. Dodged a bullet there!

AUSTIN BAR: Why did you want to join this section? Why were you interested in being section chair?

MULLEN: Employment law is what I do all day long (at least five days per week). When I moved back to Austin seven years ago, I wanted to renew relationships with employment

lawyers I had known when I practiced here in the early 2000s and meet other employment lawyers, so it made sense to join the section and become active in its leadership.

AUSTIN BAR: What area of law do you practice and what is most interesting about it to you?

MULLEN: I handle all sorts of employment matters, but within that space, I’m particu larly interested in OSHA-related matters. I like this area because it truly involves life and death

and it gets me out of the office and onto (or into) client job sites, kitchens, factories, man ufacturing facilities, and other workplaces. I enjoy learning about the products and services clients offer (think of Mike Rowe’s Dirty Jobs) and consult ing with clients and experts to ensure that employee safety is paramount. And, when a client is cited by OSHA for alleged violations of safety standards, I enjoy the challenge of contesting the citations in administrative proceedings.

AUSTIN BAR: Briefly share your plans for the Employment Law Section this year.

MULLEN: Our emphasis is on returning to in-person meetings and social events to restore the

From front left to right: Kevin Mullin with his family: Haley, Jackson, and Angela.

camaraderie that makes this section unique.

AUSTIN BAR: If you were not practicing law, what would you do for a career?

MULLEN: The path not taken was a military career.

AUSTIN BAR: Tell us a fun fact we would be surprised to know.

MULLEN: I make really good Mexican creamed corn (mayon naise is the secret ingredient, believe it or not).

AUSTIN BAR: Are you a cat person or a dog person?

MULLEN: I grew up a dog per son (my dad’s bird-hunting dogs were our “pets”), but our current furry friends are two cats, Winnie and Oliver. AUST INL AW Y ER

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I enjoy learning about the products and services clients offer (think of Mike Rowe’s Dirty Jobs) and consulting with clients and experts to ensure that employee safety is paramount.

“ ”

AYLA PRESIDENT’S COLUMN

BLAIR LEAKE , WRIGHT & GREENHILL, P.C.

A Stellar Business-Building Opportunity

A Monthly Mixer For the Entire Austin Legal Community Already Exists— and It Is One of the Best In Town

It was mentioned by more than one person at a recent Austin Bar Asso ciation meeting that the Austin legal community needs more events that provide a place for people who practice in differ ent legal fields to socialize and network with one another. Such events already exist and have been going strong for years.

The AYLA Sustaining Mem bership—available to attorneys of all ages and experience levels— grants access to free monthly AYLA Docket Call happy hours, as well as numerous other AYLA events. Both an AYLA Regular Membership and Sustaining Membership only cost $75 each, either one of which will pay for itself in refreshments alone based on my liberal arts math skills—and will become a boun tiful compounding monetary investment if even one referral source develops as a result.

As our legal community grows, it simultaneously becomes more insular. Gone are the days when everyone knows everyone. As more specialized sections and CLEs are operated, it becomes easier and easier for construc tion-law attorneys to only attend construction-law events and to only communicate with construc tion law attorneys, and on and on for each specialized field of law, respectively.

Anecdotally, during my first

several years of practicing in Aus tin, I knew exactly one probate attorney and exactly one criminal defense attorney. I must have sent those two attorneys a dozen referrals each because I simply did not personally know any other attorneys in those fields I first met and spent some time with both of those attorneys at AYLA events, including a Docket Call happy hour or two.

For anyone worried about engaging others at AYLA events, don’t be. I invite anyone who attends and is looking for conversation to come find me or another AYLA officer—look for the metal name tags—and we will personally spend time with you and introduce you to other attor neys at any given event. Beyond monthly Docket Calls, AYLA offers regular community service opportunities, the Judicial Reception, Health & Wellness Committee events (e.g. yoga and bouldering), Family Fall Festival, the AYLA Tailgate fundraiser, the Diversity Mixer, the Crawfish Boil, and more. Upcoming Dock et Calls (or similar events in lieu of the same, where indicated) are currently scheduled for Oct. 27, Nov. 12 (Tailgate), Dec. 15, Jan. 19, Feb. 16, March 23 (Diversity Bar Mixer), April 15 (Crawfish Boil), and May 18.

Referral opportunities aside, AYLA creates a regular space to meet and socialize with other attorneys outside of one’s legal bubble, and there are numerous social and wellness reasons for doing so that have nothing to do with monetary gain. For those looking to build or sustain a

client base—or to lay the ground work for potentially doing so in the future—the benefits of an AYLA membership of any flavor crosses the threshold of being a no-brainer. If even just one referral comes to fruition then the $75 membership cost will have paid for itself tenfold. If one regular referral source comes to fruition then the

benefits will compound for years to come. Even if none of the above pans out, you will have gained good conversation and libations. Conventional advertis ing opportunities can’t beat that level of return on investment with a stick. AUST INL AW Y ER AL AL

UPCOMING EVENTS

THURSDAY, OCT. 27, 2022

AYLA Docket Call

Star Bar, 600 W. 6th St. 5:30 – 7:30 p.m.

RSVP: ayla.org Sponsored by Floyd Real Estate

Visit ayla.org for a complete list of events and updates.

From left to right: Jessica MacCarty, Sarah Harp, Sam Denton, and Dave Floyd.

Find Your Way with AYLA Join an AYLA Committee

NEW: TRIAL INSTITUTE

Co-chairs: Blair Leake and Cath erine Marsolan

This committee organizes a series of Continuing Legal Education (CLE) courses focused on improv ing specific trial skills. Each CLE will include a live demonstration of a skillset, as well as a panel of judges and attorneys to discuss the demonstration and skillset.

ANNUAL FUNDRAISER –CRAWFISH BOIL

Co-chairs: Sarah Harp, David Holmes, and Will Hailey

This committee plans and organizes an annual crawfish boil fundraiser each spring.

BENCH BAR

AYLA Co-chairs: Rachael Jones and Blair Leake

This committee helps plan the annual day-long CLE hosted joint ly by the Austin Bar and AYLA.

CONTINUING LEGAL EDUCATION

Co-chairs: Emily Morris and Myra Dioquino

This committee plans and orga nizes quarterly CLEs for AYLA members.

COMMUNITY SERVICE DAYS

Co-chairs: Jenna Malsbary and Meghan Kempf

This committee provides lawyers and non-lawyers with periodic (non-law-related) opportunities to volunteer for nonprofit organi zations. The community-service events provide an opportunity for lawyers to make a relatively small time commitment, usually just a few hours on one day, while being exposed to various charitable organizations and meeting other members of the legal and non-legal community.

MLK DAY OF SERVICE

Co-chairs: Jenna Malsbary, Meghan Kempf, and David Holmes

This committee coordinates mul tiple community-service events on MLK Day, in honor of Dr. Martin Luther King, Jr. DOCKET CALL

Co-chairs: Sarah Harp, Jillian French, and Kelly Combs

This committee hosts a monthly happy hour for AYLA members. This event is the gateway event for many of our members, as nearly everyone’s first experience with AYLA is a Docket Call.

HEALTH AND WELLNESS

Co-chairs: Joseph Keeney and Lena Proft

This committee is focused on lawyer wellbeing through group exercise and promoting healthy

lifestyles. The committee aims to bring lawyers together in monthly activities such as running, biking, hiking, swimming, etc. Get to know other lawyers in an envi ronment outside of the office or courtroom.

HOLIDAY PROGRAM

Co-chairs: Ciara Parks and Morgan Shell

The holiday program utilizes the legal community’s resources to provide special holiday gifts and informative materials to Austin-area families in need. This year we will partner with the YMCA.

JUDICIAL RECEPTION

Co-chairs: Ciara Parks and Gracie Wood Shepherd

This committee hosts a reception for AYLA members to interact with members of the judiciary.

LAW-RELATED EDUCATION

AYLA Chair: Samantha McCoy

This committee plans and implements various educational programs aimed at school-aged children. This is a joint committee with the Austin Bar.

TAILGATE FUNDRAISER

Co-Chairs: Sarah Harp, Emily Morris, Eric Cuellar, and Jillian French

This committee plans and hosts a tailgate fundraiser event at a University of Texas football game each year.

FAMILY FRIENDLY EVENTS

AYLA Co-chairs: Ciara Parks and Gracie Wood Shepherd

This committee focuses on cre ating events that are targeted to families. This is a joint commit tee with the Austin Bar. AUST INL AW Y ER AL AL

Anji Maddox

AYLA members performing community service at the Lady Bird Johnson Wildflower Center.

Commitment Counts

Way To Go, 50-Year Lawyers!

Congratulations to these attorneys from Bas trop, Hays, Travis, and Williamson counties,

Antonio Alvarado

Donald Eugene Barlow

Michael M. Barron

Jackson B. Battle

David Ross Bawcom

Allen Eli Bell

Terry L. Belt

Judge F. P. Benavides

Frank Richard Bernasek

Robert T. Binder Jr. Ernest F. Bogart Jr. John E. Bromberg

William T. Buida

George B. Butts

Mark S. Caperton

Gerald Conley Carruth

Gregory Lee Ceshker

Francis J. Coleman Jr. Russell Louis Cook Jr. Charles Davis Craig Beryl Ponton Crowley

C. Robert Dorsett

Larry Joseph Dowling

John C. D. Drolla Jr.

Charles Leigh Eppright

Mary Ellen Felps

Ronald Jay Freeman Linda S. Freeman

Alberto Garcia Robert M. Gillespie Edwin F. Guyon Herbert S. Harris III

Claude Robert Heath George Ervin Henderson Daniel Hrna Howard D. Hughes William F. Ikard

Philip Cater Joseph Scott Russell Kidd Gerald H. Klossner Kenneth A. Korth Charles B. Kreutz

Larry Richard Laden Wayne A. Langham Glen E. Lewis Jr.

Roger Dale Linebarger Randell W. Livingston Jr. William H. Locke Jr.

Patrick who are celebrating their 50th year of practicing law! The Austin Bar Association appreciates your service to the legal community. AUST INL AW Y ER AL AL

Hugh S. Lowe

Daniel E. Maeso

Gene Majors

James Marvin Martin

Dale V. Matthews

Stephen T. Matthews

Robert Usher Mayfield

Judge Charles E. (Chuck) Miller Jr. Susannah R. Mills

Jesse Tyson Murphy Jr. David Lynn Orr

Mark Weaver Owen Albert N. Pfeiffer

Thomas Wilson Reavley Brian C. Rider

Daniel Joseph Riley John L. Ritts Mark B. Schreiber

Cicily J. Simms

Martha E. Smiley

Roy C. Snodgrass III

Joe Daniel Stokes III Bobby R. Taylor

Jay Alan Thompson

Anna L. Tiemann

Wallace G. Tingley Jr. John B. Turney

Frankie Vanderford

Kenneth J. Vitucci

James Munroe Williams

Robert Joseph Wilson

Lance C. Winchester

Judge Jon N. Wisser

John Hammond Wofford

Keel

Former District Judge

Mediator Arbitrator patrickkeel.com

Available by video and in person.

The following are summaries of selected civil opinions issued by the Third Court of Appeals during August 2022. The summaries are an over view; please review the entire opinion. Subsequent histories are current as of Sept. 6, 2022.

MANDAMUS: Court grants mandamus relief in condemnation proceeding.

In re ETC Tex. Pipeline, Ltd., No. 03-22-00387-CV (Tex. App.—Austin Aug. 3, 2022, orig. proceeding) (mem. op.).

ETC initiated a condemnation proceeding after unsuccessfully negotiating with the landowner. The trial court granted land

owner’s plea in abatement to conduct discovery on ETC’s eminent-domain authority and whether the proposed taking was for public use. The court of appeals observed that there is no appellate remedy when a trial court improperly interferes with the administrative phase of a condemnation proceeding.

According to the court, during the administrative phase a trial court’s jurisdiction is limited to appointing commissioners, receiving their value opinion, and rendering judgment on the award. No statute permits a trial court to suspend the administra tive phase for discovery. Condem nation authority and whether a taking is for public use are issues for the judicial phase. The court granted mandamus relief.

HEALTHCARE LIABILITY: Compliance with hospital’s treatment protocols does not negate physician’s awareness of risk of harm.

Dunnick v. Marsillo, No. 03-2100296-CV (Tex. App.—Austin Aug. 31, 2002, no pet. h.).

Marsillo treated Dunnick’s child for a rattlesnake bite at a hospital emergency department.

Dunnick sued Marsillo, alleging that delay in giving antivenom caused complications and injury to her child. The trial court granted summary judgment for Marsillo, concluding there was no evidence of willful and wanton negligence. According

to the court of appeals, Dunnick presented summary-judgment evidence that snake envenom ation is a time-sensitive emer gency and antivenom is required to stop the venom’s progression. The court rejected Marsillo’s argument that compliance with the hospital’s treatment protocols negated subjective awareness of the risk of harm. The court held that Dunnick raised a fact issue on whether adherence to the hospital’s snakebite treatment protocols posed an extreme risk of harm. The court reversed and remanded.

TRIAL PROCEDURE: Limitations not tolled with misidentified defendant.

Broadway v. Lean on 8, Inc. d/b/a Chick-fil-A, No. 03-2100663-CV (Tex. App.—Austin Aug. 26, 2022, no pet. h.) (mem. op.). Broadway sued Chick-fil-A, Inc. the day before limitations ran. A month later, Chick-fil-A, Inc. informed Broadway that Lean on 8, Inc. was the correct defendant. Broadway added Lean on 8, Inc. d/b/a Chick-fila-A. The trial court granted Lean on 8’s motion for summary judgment on limitations. Broadway argued that her misidentification tolled limitations when the correct enti ty was aware of the facts, was not misled, and not disadvantaged in defending the suit. According to the court of appeals, Broad way failed to establish that the correct defendant had notice of

the lawsuit within the limitations period. Without evidence that Broadway served Lean on 8 before limitations ran or that it otherwise received notice of the suit before limitations ran, she failed to raise a fact issue on her misidentification defense. The court affirmed.

CONTRACTS: Court affirms summary judgment on limitations.

Wells Fargo Bank, N.A. v. Express Limousines, Inc., No. 03-2100266-CV (Tex. App.—Austin Aug. 3, 2022, no pet. h.) (mem. op.). Beginning in 2008, Ex press’s credit card account with Wells Fargo remained in contin uous default. The account was closed in 2013. Express made its last payment on the account in August 2014. The bank sent a notice of acceleration in March 2015. In January 2019, Wells Fargo sued for breach of contract to recover the unpaid debt. The trial court granted Express’s mo tion for summary judgment on limitations. The court of appeals observed that the applicable four-year limitations accrued on the date of the accountholder’s last payment. The court further concluded that credit card in debtedness is not a debt to which acceleration of maturity applies. Thus, Wells Fargo’s notice of acceleration had no effect on the limitations period and did not re vive the breach-of-contract claim. The court affirmed. AUST INL AW Y ER AL AL

Northland Dr.,

414 Austin,

Laurie Ratliff is a former staff attorney for the Third Court of Appeals. She is board certified in civil appellate law by the Texas Board of Legal Specialization and an owner at Laurie Ratliff LLC.

The following are summaries of opinions issued by the Fifth Circuit. The summaries are overviews of particular as pects of the opinions; please review the entire opinions.

due process test.

PERSONAL JURISDICTION:

The Fifth Amendment due process test for personal jurisdiction—which governs personal jurisdiction over foreign defendants sued on federal claims—mirrors the Fourteenth Amendment due process test.

Douglass v. Nippon Yusen Kabu shiki Kaisha, No. 20-30379, 2022 WL 3368289 (5th Cir. Aug. 16, 2022) (en banc). Nippon Yusen Kabushiki Kaisha (“NYK”), in corporated and headquartered in Japan, is a major global logistics company that transports cargo by air and sea. In June 2017, a container ship chartered by NYK collided with a U.S. Navy destroy er, killing seven American sailors and injuring dozens of others. The injured sailors and the per sonal representatives of the seven killed sailors sued NYK in federal court, alleging that NYK was sub ject to personal jurisdiction under Federal Rule of Civil Procedure 4(k)(2), based on its substantial, systematic, and continuous contacts with the United States as a whole. The plaintiffs did not contend that their claims arose out of or related to NYK’s contact with the United States.

NYK moved to dismiss for lack of personal jurisdiction, and the district court granted the motion. The district court held that the Fifth Amendment due process test governed the personal juris diction issue in the suit and mir rors the Fourteenth Amendment’s due process test. Applying that test, the court concluded NYK lacked sufficient contacts with the United States to be “at home” there—the central requirement of establishing general jurisdiction over non-resident defendants un der the Fourteenth Amendment

On appeal, the Fifth Circuit panel affirmed because the rule of orderliness bound it to follow earlier precedent holding that Fifth Amendment due process test mirrors the Fourteenth Amendment test. In a concurring opinion, however, two members of the panel noted their disagree ment with that precedent and indicated that they would hold otherwise if not bound by it.

The full court then granted the plaintiffs’ petition to rehear the case en banc. The en banc court affirmed the district court. The en banc court first rejected out of hand the notion that foreign defendants like NYK lack due process rights under the Fifth Amendment, observing that the Supreme Court has repeatedly afforded foreign corporations dueprocess-based personal-jurisdiction protections. The en banc court likewise rejected the argument that Rule 4(k)(2) provides a sub stantive source of jurisdiction over NYK, emphasizing that the rule is merely a procedural rule govern ing territorial limits of service.

Turning to the heart of the dis pute, the en banc court held that Fifth Amendment test for due process is the same as the Four teenth Amendment test, except that the Fifth Amendment test looks at contacts with the United States as a whole. Applying that test, the en banc court affirmed the district court’s conclusion that NYK is not subject to general jurisdiction because its contacts with the United States are insuffi cient to render it “at home” here. Judge Elrod, joined by Judges Graves, Higginson, Willett, and Oldham, wrote a dissenting opin ion, forcefully arguing that the meaning of “due process of law” underwent linguistic drift in the more then 75 years between the ratification of the Fifth Amend ment in 1791 and the Fourteenth Amendment in 1868.

ARBITRATION: Local delivery drivers who pick up items from a warehouse and deliver them

to local customers are not “workers engaged in foreign or interstate commerce” under the Federal Arbitration Act (FAA) and, thus, are not exempt from the FAA, even though the items arrived at the warehouse from out of state.

Lopez v. Cintas Corp., No. 2120089, 2022 WL 3753256 (5th Cir. Aug. 30, 2022).

Douglas Lopez was a local deliv ery driver for Cintas Corporation. His job required him to pick up items from a Houston ware house—where the items had been received from out of state—and deliver them to local customers.

During his hiring process, Lopez signed an employment contract that included an arbitration agreement. After Cintas fired Lopez, he filed suit in state court, arguing that Cintas violated his rights under the ADA.

Cintas removed the case to federal court and then moved to compel arbitration. Lopez argued that the FAA does not apply to his employment agreement because Section 1 of the FAA exempts from its coverage “con tracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.”

The district court rejected that argument, holding that Lopez did not fall within this exception be cause his duties did not require him to pick up or deliver items out of state or to cross state lines. Lopez appealed. After the Fifth Circuit heard oral argument, the Supreme Court decided South west Airlines v. Saxon, 142 S. Ct. 1783 (2022), in which it held that an airline ramp supervi sor who physically loaded and unloaded cargo from planes trav eling in interstate commerce was a transportation worker engaged in the transportation of goods in interstate commerce and, thus, covered by the exemption in Section 1. In so holding, the Supreme Court rejected the argu ment that the exemption applies only to workers who physically moved goods across borders. The

COURT

Court expressly did not consider, however, whether the exemp tion covers other workers who carry out duties further removed from the channels of interstate commerce or the actual crossing of borders than the airline ramp supervisors at issue in that case. Applying Saxon and other prece dent, the Fifth Circuit held that the exemption did not apply to local delivery drivers like Lopez. Once the goods arrived and were unloaded at the Houston warehouse, the court reasoned, anyone interacting with the goods, including Lopez, was no longer engaged in interstate commerce. The court noted that the Seventh Circuit had reached the same conclusion concerning local delivery drivers, whereas the Ninth and First Circuits had held the opposite.

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David Shank represents clients in highstakes, complex disputes in Texas and around the country. He is a partner at Scott Douglass McConnico, LLP.

THIRD COURT OF APPEALS

CRIMINAL UPDATE

daycare. At trial, Coulter sought to admit evidence of prior bad acts committed by the child’s father, under the theory that he might have committed the offense. The trial court excluded the evidence.

The following are summaries of selected criminal opinions issued by the Third Court of Appeals from February 2022. The summaries are an over view; please review the entire opinions. Subsequent histories are current as of Sept. 1, 2022.

EXCLUSION OF EVIDENCE –ALTERNATIVE PERPETRATOR:

Trial court did not abuse its discretion in excluding evidence that someone else might have committed offense.

Coulter v. State, No. 03-20-00100CR (Tex. App.—Austin Feb. 3, 2022, pet. ref’d) (mem. op., not designated for publication).

Coulter was convicted of knowing ly causing serious bodily injury to a child who had attended Coulter’s

On appeal, Coulter argued that the evidence was admissible. The ap pellate court disagreed. For alter native-perpetrator evidence to be admissible, it must be “sufficient, on its own or in combination with other evidence in the record, to show a ‘nexus’ between the crime charged and the alleged alternative perpetrator.” The evidence is “inadmissible if it is merely specu lative about whether the purported alternative perpetrator committed the offense.” In this case, the proffered evidence “concerned long-past attacks and assaultive behavior and did not concern the period on or about” the date when the offense was committed. More over, proving the father’s character was not an essential element of Coulter’s alternative-perpetrator theory. Thus, the evidence was not admissible under Rule 404(b). The court also rejected Coulter’s argument that the exclusion of the evidence violated her constitu tional right of confrontation. According to Coulter, “the trial court should have allowed her [] to cross-examine [the father] about the specific instances tending to show his violent character,” because “he, as ‘the alternative suspect,’ had ‘a bias in favor of himself, a motive to testify falsely of his gentle disposition and his

interest in the outcome of trial.’” The court disagreed, observing that “cross-examination for bias is admissible by operation of the Confrontation Clause only when the cross-examination topic bears a ‘logical relationship’ or ‘causal connection’ to the witness’s potential bias.” In this case, the proposed cross-examination in volved the father’s alleged assaults against other people, which “is not evidence that he ever hurt the victim.” Thus, there was no “plausible logical relationship or causal connection linking the prof fered cross-examination” to the father’s alleged bias. Finally, the court rejected Coulter’s argument that the exclusion of the evidence violated her constitutional right to a fair trial because it left the jury with “a false impression” of the father. The trial court admitted some evidence of the father’s past assaults, which prevented the jury from forming a “false impression” of the father.

EXCLUSION OF EVIDENCE –INSANITY: Trial court did not abuse its discretion in excluding evidence of defendant’s insanity.

Acy v. State, No. 03-20-00132CR (Tex. App.—Austin Feb. 11, 2022, pet. ref’d) (mem. op., not designated for publication). Acy was convicted of aggravated assault with a deadly weapon. At trial, Acy, attempting to present an insanity defense, sought to admit testimony from his mother and a psychologist that he was mentally

ill at the time he committed the of fense. The trial court excluded the evidence. On appeal, Acy argued that the exclusion of the psychol ogist’s testimony denied him the “opportunity to obtain a jury charge on his only defensive issue” and violated his due-process rights because it “effectively precluded him from presenting a defense.”

The court disagreed, observing that “[a]lthough the psychologist concluded that appellant was insane at the time of the alleged offenses, he also concluded that appellant’s insanity at that time was due to intoxication.” Insanity caused by voluntary intoxication “does not constitute a defense to the commission of a crime.” Thus, the trial court reasonably could have determined that the testimo ny would not have helped the jury determine a fact of consequence. Acy also argued that the exclusion of his mother’s testimony was error because “observations by lay persons alone can be enough competent evidence to warrant the [insanity] issue being decided by the jury.” The court rejected this argument, concluding that the trial court “reasonably could have determined that his mother’s testimony about appellant’s mental health was not relevant, probative evidence on the issue of sanity at the time of the alleged offenses because she testified that he seemed fine ‘[t]he day before’” he committed the offense, which was “the last time she saw him before the incident.”

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Zak Hall is a staff attorney for the Third Court of Appeals. The summaries repre sent the views of the author alone and do not reflect the views of the court or any of the individual Justices on the court.

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