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Houston trial lawyer Joseph Jamail has proven many times he knows how to pick a jury — he’s won more than 200 jury verdicts or settlements in excess of $1 million in a career spanning nearly five decades. Jamail, 75, may be in the waning days of his practice, but the combative ex-Marine isn’t sitting back while the Texas Supreme Court Advisory Committee considers rules for conducting voir dire. Jamail says limits on voir dire pose a threat to the jury system. “A lawyer knows more about his case than a judge. I think any arbitrary time limit on voir dire is senseless and wrong. In complicated cases, you can’t have a fair trial without lawyers being able to question the jurors about their biases and prejudices,” says Jamail, a partner in Jamail & Kolius. “If you want a charade, just eliminate voir dire,” he says. While Jamail is not a member of the advisory committee, he sent a fiery letter about voir dire to Chief Justice Thomas Phillips and Justice Nathan Hecht, the liaison to the advisory committee. “The right of trial by jury must not be burdened by the imposition of onerous conditions, restrictions or regulations which diminish the right,” Jamail wrote. “Proposals to modify voir dire examination, diminish peremptory strikes and allow for rehabilitation of prima facie disqualified jurors do just that, however.” Jamail’s comments may flame an already vigorous debate on whether the advisory committee should recommend the Supreme Court adopt a new voir dire rule. The issue is on the agenda of an advisory committee meeting on May 20, although committee Chairman Charles “Chip” Babcock, a partner in Jackson Walker in Houston, says the committee is unlikely to finish its discussion of the issue at that meeting. The committee, however, may not recommend a new voir dire rule at all if it takes the advice of a subcommittee. The subcommittee looking at voir dire since January decided by a 4-2 vote that a rule isn’t currently needed. The Supreme Court asked the advisory committee to look at voir dire after an unsuccessful legislative effort in 1999 that would have required judges to give each side in a civil suit at least one hour to conduct voir dire. (A bill introduced by Sen. David Cain of Dallas, which would have set the minimum time limits for voir dire, came out of the Committee on Jurisprudence, but was later removed.) Dallas’ Paula Sweeney, chairwoman of the subcommittee, says time allotted to voir dire became an issue after lawyers started complaining about judges who were allowing only a few minutes per side for voir dire in complicated civil litigation. Sweeney, a plaintiffs’ lawyer, says that problem may have corrected itself. “The subcommittee doesn’t think that we need a rule at this point because it seems like — it’s not completely unanimous — most trial judges have stopped doing this [thing of] you only have 15 minutes, and are permitting litigants adequate time,” says Sweeney, a partner in Howie & Sweeney. But others on the subcommittee think the Supreme Court should adopt a voir dire rule. One member of the subcommittee, 234th District Judge Scott Brister of Houston, has asked the committee to consider adopting some voir dire proposals that came out of a 1997 Jury Task Force study. The task force recommendations call for a rule that would give judges the right to impose reasonable time limits for voir dire, to prohibit unreasonably invasive questioning and to allow rehabilitative questioning. Brister, who served on the task force, also would like the committee to adopt a Jury Task Force proposal to eliminate a shuffle of random panels of jurors. Additionally, Brister advocates a rule to limit peremptory strikes to three per side in civil cases, a reduction from the current six, a change rejected by the Jury Task Force. “My experience is if you give attorneys three [strikes], they will take three. If you give them 30, they will take 30,” he says. “If it is up to just attorneys, they would consume the entire gross national product of the U.S. in voir dire.” Brister says that while most trial lawyers oppose restrictions to voir dire, judges have a different view: “Almost all judges think it’s a waste of time; I would be on the stronger end of that,” he concedes. Jamail, clearly, maintains a strong view on the other end of the spectrum. Jamail wrote in his letter that it’s not a good idea to reduce the scope of examination in voir dire. That would, in turn, reduce lawyers to legal technicians and judges to legal technocrats, he says. Jamail acknowledges in his letter that while the right to a trial by jury is inviolate, it does not carry with it a right that rules cannot be changed. But he says he’s concerned jury reform is merely a “stalking horse” for tort reform. “I don’t want to see the most basic component of our system of justice used as a pawn for ideologic innovations and [short-sighted] political agenda. Nor do I want to castrate the professionalism of advocacy by sterilizing the moment of truth,” Jamail wrote in the March 30 letter that was copied to members of the Texas Supreme Court and the advisory committee. Jamail says he has an obligation to speak out about the voir dire proposals “if I’m going to have any pride in myself.” “I don’t appoint myself in charge of anything, but I do have a right to make my view known — and I am,” he says. Babcock says the committee will consider the veteran trial lawyer’s points: “He obviously is one of the leaders of the bar, so we take his comments seriously.” ‘DANGEROUS TERRITORY’ Like Babcock, Sweeney doubts the Texas Supreme Court Advisory Committee will make a recommendation on a voir dire rule at the meeting on May 20. She says the full committee may ask the subcommittee to go back and draft some kind of a rule. The subcommittee did agree on two provisions that could be part of a voir dire rule proposal. One is the idea attorneys for the parties have a right to a reasonable time for voir dire, and the second is the idea judges may set reasonable time limits that do not unreasonably abridge the time for voir dire. Other proposals, which come largely from the Jury Task Force’s report, did not get unanimous support. They include a prohibition on questions about a panelist’s probable vote or on questions about how much weight they would give to certain evidence, and would require judges to prevent questioning that’s unduly invasive, repetitive or argumentative. Babcock says that if the advisory committee gets in a half day of debate on the voir dire rules on May 20, the committee may be able to recommend something to the Supreme Court by the conclusion of its August meeting. Debbie Branson, president of the Texas Trial Lawyers Association, says the group would not take a position on a voir dire rule until and unless there’s a specific proposal on the table. But Branson, of the Law Offices of Frank L. Branson in Dallas, says her experience is that the existing framework for voir dire works. “The judges certainly have discretion now to stop it if a lawyer gets out of line or is unreasonable in their questions,” Branson says. “It’s such an important part of the trial that to start placing restrictions on it seems to be dangerous territory.”

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