Texas juror-bias decision troubles plaintiff lawyers.

Trial lawyers say they're concerned about a decision allowing an insurance adjuster to serve on a jury despite his admission that he would "feel bias," saying the case not only changes established Texas law but also is emblematic of a movement that is slowly eroding the right to trial by jury.

In an 8-0 decision, the Texas Supreme Court ruled that prospective jurors who express a bias that would warrant dismissal for cause can be "rehabilitated" through further questioning. (Cortez v. HCCI-San Antonio, Inc., 159 S.W.2d 87 (Tex. 2005).)

The case involved a nursing home resident who sued the home, an employee, and others, alleging negligence and mistreatment. She died while the action was pending, and her heir, Jesus Cortez, pursued the claim.

During voir dire, a prospective juror who had been employed as an auto insurance claims adjuster told Cortez's counsel that his experience might give him "preconceived notions" and that he would "feel bias" about the case. When questioned by the trial judge, he explained he had seen "lawsuit abuse ... so many times," and that "in away" the defendant was "starting out ahead."

But upon further questioning, the prospective juror said he was "willing to try" to evaluate the case on the law and the evidence. The trial judge denied Cortez's challenge for cause, and his lawyer had to use the last of his seven peremptory challenges to strike the juror. Cortez appealed on the ground that the juror should have been dismissed for cause, and the court of appeals affirmed the trial court's decision.

Writing for the state supreme court, Justice David Medina pointed out that while the challenged juror admitted having a better understanding of the defendant's side, the apparent bias he expressed was actually against "lawsuit abuse." The man said he was "'willing to try' to make his decision based on the evidence and law. That is all we can ask of any juror," Medina wrote.

Several lawyers expressed concern about a decision they said changed more than 40 years of established Texas law. According to Peter Hoffman, director of the Blakely Advocacy Institute at the University of Houston Law Center, "Most states and the federal courts permit a prospective juror to be rehabilitated, at least under certain circumstances, by either the opposing party or the judge. The Texas decision caused surprise not because it was out of line with most other jurisdictions, but because it rejected a long line of cases holding that a prospective juror should be struck for cause if he states he is biased.

"The danger of the new rule," Hoffman said, "is that courts will too easily decide that a prospective juror has been rehabilitated even though he clearly states he is biased. In many jurisdictions, jurors are considered rehabilitated if they respond with a 'yes' to such talismanic questions from the court as 'Will you follow the court's instructions?' or 'Can you be fair and impartial?' It is now possible that the Texas courts will develop a similar practice."

But Alexandra Albright, a professor who teaches civil procedure at the University of Texas School of Law, does not think the decision is a bad one. "The automatic 'admission of bias' standard doesn't work well," she said, "and Texas courts had been fudging with it for a while in cases in which the bias was not as clear-cut as the party seeking to have the juror stricken claimed it was."

Some plaintiff lawyers, including Jim Perdue Sr. of Houston, believe the ruling casts one more blow to fair jury selection. "In Texas, our legislature and judiciary are making every effort to return us to the 1920s," Perdue said. "There is a not-so-secret agenda of slowly eviscerating the right to trial by an independent judiciary."

The case has touched lawyers' nerves in states other than Texas. Gregory Cusimano of Gadsden, Alabama, who writes and speaks extensively on juror bias against plaintiffs, called the case "disturbing," particularly because it was an 8-0 decision.

David Wenner--a Phoenix lawyer, author, and frequent co-presenter with Cusimano--added that judges are under enormous pressure from court administrations to move cases quickly. "This case should be a call to action for trial lawyers to begin a dialogue with the bench about the importance of voir dire and how juror bias may rob clients of fair trials," he said.