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Should a potential juror who readily admits bias be struck for cause from a venire panel by a trial judge? Not necessarily, according to a recent opinion from the Texas Supreme Court that is drawing fire from plaintiffs attorneys. The March 11 decision in Cortez, et al. v. HCCI-San Antonio Inc. D/B/A Alta Vista Nursing Center rejects more than 40 years worth of Texas intermediate appellate court rulings that say once a veniremember expresses bias, he cannot be rehabilitated or questioned further to determine whether he can be fair. The ultimate result of Cortez will be to give trial court judges more discretion in determining just who is and isn’t biased on a venire panel, say five civil-procedure experts. Cortez involves a nursing home gross negligence case that the family of a 62-year-old woman, who fell at the home, filed in the 285th District Court in San Antonio. The woman died while the suit was pending. During voir dire in the case, lawyers questioned a veniremember who worked as an insurance company adjuster handling automotive claims. The veniremember told the lawyers that his experience might give him “preconceived notions” and “I would feel bias,” adding, “but I mean, I can’t answer anything for certain,” according to the opinion. Judge Janet Littlejohn asked the veniremember to explain his bias, and he said that he had seen “lawsuit abuse … so many times” and that, “in a way,” the defendant was “starting out ahead.” He later agreed that some automobile claims he reviewed had merit, so he was “willing to try” to listen to the evidence in the nursing home suit and decide it on the law and evidence, according to the Supreme Court’s opinion. The plaintiffs challenged the veniremember for cause by arguing he had demonstrated bias, but Littlejohn denied the challenge, forcing the plaintiffs to use a peremptory challenge to strike the veniremember and take another undesirable veniremember. The plaintiffs eventually won a $9 million verdict, but Littlejohn reduced it, because of settlement credits and apportionment of fault, to $337,869.36, according to the opinion. The plaintiffs appealed the verdict to San Antonio’s 4th Court of Appeals, attempting to gain a new trial by arguing that Littlejohn should have dismissed the veniremember for cause. But the 4th Court voted 2-1 to affirm the trial court’s decision. The Supreme Court, in an 8-0 opinion by Justice David Medina, affirmed the lower courts’ decisions, writing that efforts to rehabilitate a juror should be left to the “sound discretion of the trial court.” Justice Paul Green did not participate in the decision. The veniremember never said he could not find for the Cortez plaintiffs, Medina wrote, and the veniremember’s willingness to try to make his decision based on the law and facts of the case “is all we can ask of any juror.” “If a veniremember expresses what appears to be bias, we see no reason to categorically prohibit further questioning that might show just the opposite or at least clarify the statement,” Medina wrote in one of his first substantive opinions on the court. “Similarly, we do not believe the discretion accorded trial judges in ruling on challenges for cause is arbitrarily limited in cases involving rehabilitation,” Medina wrote. WHO GETS STRUCK? The decision is disappointing to Stephen Hornbuckle, a partner in Houston’s Hornbuckle Law Firm who represented the plaintiffs in Cortez and argued the case before the Supreme Court. “The better way to handle it is to have a bright-line rule when it comes to bias,” Hornbuckle says. And because of that decision, it may take a while for lawyers — including himself — to figure out how to convince trial judges to strike jurors who admit bias, Hornbuckle says. “I think people are going to have to look at this opinion and figure out how they’re going to disqualify now,” Hornbuckle says. “And until I’ve really analyzed it, I’m not sure how you’re going to do that.” Lori Proctor, a partner in Houston’s Proctor & Nagorny who defended HCCI-San Antonio in the case, did not return two telephone calls seeking comment before press time on March 17. But in her brief to the Supreme Court, Proctor argued that the plaintiffs were hardly harmed by the trial judge’s failure to strike a veniremember from the jury panel. “Even if the juror should have been stricken, there was no harm to the plaintiff in the court’s failure to do so,” Proctor wrote. “The jury returned a verdict, in favor of the plaintiff, to the tune of $9,250,000!” Two academics believe the high court’s ruling in Cortez — especially its take on rehabilitation — makes sense. Alex Albright, a professor at the University of Texas School of Law who teaches civil procedure, says she’s found it difficult to teach students about veniremember rehabilitation because of conflicts between old decisions and recent decisions on the issue. “What the cases have been trying to do for years is draw the line between a juror who is really biased and when the lawyers try to put words in a juror’s mouth,” Albright says. Cortez tackles that problem, she says. “What they’re doing here is they’re looking at the entire record — they’re giving the trial court substantial discretion. And if a judge refuses to strike for cause, it’s going to be very difficult to show that the juror is actually biased,” Albright says. “Just because a juror’s experience makes them identify with one side or the other doesn’t mean that they should be disqualified — that’s the business of peremptory challenges,” Albright says. “That may be a juror you don’t want on the jury, but you use your peremptory strike.” Bill Dorsaneo, a professor who teaches state and federal civil procedure at Southern Methodist University Dedman School of Law, says the rehabilitation issue has been controversial for some time. Many plaintiffs attorneys take the position that any admission of bias by a veniremember is cause for a strike without the need for further questioning, he says. “How much discretion the trial court would have in deciding the rehabilitation is a significant issue,” Dorsaneo says. “The court makes a pretty good decision there, saying the rehabilitation is not flat-out prohibited.” FURIOUS TRIAL LAWYERS Several plaintiffs attorneys who make their living in trial courts say they are not happy with Cortez. Rehabilitation attempts by a trial judge, they say, often do not work on veniremembers. “Here’s what happens,” says John Gsanger, a partner in Corpus Christi’s Edwards Law Firm. “You get somebody to concede they’re prejudiced or biased. And the judge can look at the person and say, ‘If I give you instructions, you won’t follow it?’ For all they know, a ‘yes’ answer might land them in jail.” Cortez is a big change in the law, Gsanger adds. “I hope [ Cortez] puts the stake in the heart of the notion that this is a conservative court. It’s a more activist court than we’ve ever seen,” Gsanger says. “Here they’re throwing out 40 years of well established law.” Lawyer Robert Hirschhorn, a jury and trial consultant at Lewisville’s Cathy Bennett & Associates, has an even harsher analysis of Cortez. He believes the decision “spells the beginning of the end of voir dire as we know it in Texas.” “The goal of voir dire is to uncover bias and prejudice. Now the judges are going to have this power to rehabilitate biased jurors, and that power is just one step away from eliminating attorney voir dire,” Hirschhorn says. “If a judge can rehabilitate a disqualified juror, then there’s an argument that you don’t need any attorney voir dire,” Hirschhorn says. “And that will be a disaster for the justice system.” Rob Roby, a civil defense attorney and partner in Dallas’ Gwinn & Roby, says the decision is hardly cause for alarm. It just gives trial judges more discretion to determine if jurors are really biased, he says. “It helps clarify an issue the trial courts have struggled with,” Roby says. “A juror gives an answer that sounds as if they may have a bias, but when you delve further with questions, it tends to alleviate the problem.” Mickey Shuffield, judge of Beaumont’s 136th District Court, says he always treads lightly when a veniremember admits bias. It’s trickier in the age of tort reform, when so many people come into his courtroom with preconceived notions, he says. “The most sensitive area I’ve seen over the years is the negative feelings toward lawsuits, lawsuit abuse and damages. It’s commonplace now to hear a juror say, “Yeah, I’d cap damages,’” Shuffield says. “The fact that someone says ‘I can be fair and impartial’ doesn’t get you there,” Shuffield says of rehabilitating veniremembers who admit bias. Years on the bench and as a practicing trial lawyer have taught Shuffield that some jurors just can’t be rehabilitated. “If they say something in voir dire where they’ve stepped over the line, I don’t bother talking to them,” Shuffield says. But Cortez isn’t a complete washout for plaintiffs attorneys, says David Bright, of counsel at Corpus Christi’s Watts Law Firm. “What’s going to be the pronouncement when a juror makes a similar comment about widespread corporate abuse, faulty products, greedy insurance companies and the defendant seeks to have them struck for cause?” asks Bright, who regularly represents plaintiffs at trial. “They always end up cutting both ways,” Bright says of decisions such as Cortez. “That’s the thing.”

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