presented by - texasbarcle1 voir dire after proposition 12 i. the basics c. a. texas rules of civil...

VOIR DIRE AFTER PROPOSITION 12

PRESENTED BY:

SPENCER G. MARKLE MORGAN & WEISBROD, L.L.P.

6800 WEST LOOP SOUTH, SUITE 450 BELLAIRE, TEXAS 77401

(713) 838-0003 (713) 838-9911 (FAX)

GRIFFIN VINCENT ANDREWS KURTH LLP

600 TRAVIS, SUITE 4200 HOUSTON, TX 77002

(713) 220-4786 (713) 220-4285 (FAX)

State Bar of Texas 12TH ANNUAL ADVANCED

MEDICAL MALPRACTICE COURSE March 17-18, 2005

Santa Fe, NM

CHAPTER 5

The speakers would like to acknowledge and express their appreciation to Kevin Koronka, J.D. of Morgan & Weisbrod, L.L.P. and Mayson Mead, J.D. and Gail Bartlett, J.D. of Andrews Kurth, L.L.P for their assistance in the

preparation of this article.

SPENCER G. MARKLE MORGAN & WEISBROD, L.L.P.

6800 WEST LOOP SOUTH BELLAIRE, TEXAS 77401

(713) 838-0003 Phone (713) 838-9911 Fax

BIOGRAPHICAL INFORMATION EDUCATION:

B.S. in Business Administration, Duquesne University 1978 J.D., University of Pittsburgh 1981

PROFESSIONAL ACTIVITIES: LICENSURE: State Bar of Texas, Pennsylvania Bar Association, U.S. District Courts for the Southern and Eastern Districts

of Texas, U.S. Court of Appeals for the Fifth Circuit. U.S. Supreme Court BOARD CERTIFICATIONS : Personal Injury Trial Law and Civil Trial Law, Texas Board of Legal Specialization; Civil

Trial Advocacy, National Board of Trial Advocacy; Diplomat, American Board of Professional Liability Attorneys MEMBER: International Association of Defense Counsel (1992-2003), Texas Association of Defense Counsel (1982-

2003), American Bar Association, State Bar of Texas, Houston Bar Association, Association of Trial Lawyers of America, Texas Trial Lawyers Association, Million Dollar Advocates Forum

LIFE FELLOW: Houston Bar Foundation, Texas Bar Foundation MARTINDALE-HUBBELL: AV Rated

TEXAS MONTHLY MAGAZINE: Named a Texas “Super Lawyer” for 2003 and 2004 (Top 5% of Texas Lawyers) FIRST CHAIR JURY TRIALS : Over 90

LAW RELATED PUBLICATIONS AND ACADEMIC APPOINTMENTS

Member, Editorial Advisory Board; Texas Objections. Brown & Curry. James Publishing, 2003. Author/Speaker for the State Bar of Texas CLE 2003 Advanced Personal Injury Law Course “Dramshop Gone MADD” Author/Corporate Counsel Review, Vol. XXI No. 1, May 2002 “Dramshop and Liquor Liability” Author/Speaker for the State Bar of Texas CLE 2002 Advanced Personal Injury Law Course, “Update on Damages” Author/Speaker for the American Board of Professional Liability Attorneys Annual Meeting 1999 War Stories With a Purpose, “Defending the Doctor Against the Hospital’s Lawyer” Author/Corporate Counsel Review, Vol. XVIII No.1, May 1999 “Dramshop and Liquor Liability” Author/Speaker for the State Bar of Texas CLE 1999 Advanced Medical Malpractice Course, “Stowers, Caps and Credits” Author/Speaker for the State Bar of Texas CLE 1998 Advanced Personal Injury Law Course, “Premises, Security and Dramshop Litigation” Author/Corporate Counsel Review, Vol. XVII No. 2, Nov. 1998 “Premises Liability in Texas – A Current Analysis” Author/Speaker for the Texas Trial Lawyers Association 1997 Advanced Personal Injury Law Course “Dramshop and Liquor Liability” Author/Speaker for the State Bar of Texas CLE 1996 Advanced Personal Injury Law Course, “Dramshop & Liquor Liability” Author/Speaker for the State Bar of Texas CLE 1996 Advanced Medical Malpractice Course, “Questioned Documents”

Author/Speaker for the HBA CLE Series 1996, “Dramshop and Liquor Liability” Trial Advocacy Instructor, University of Houston Law Center, 1992-1994, 1996

Author/Speaker for the State Bar of Texas CLE 1995 Advanced Personal Injury Law Course, “Dramshop and Liquor Liability” Trial Advocacy Instructor, South Texas College of Law, April, 1995, “Trial Skills with the Masters” Author/Speaker for the State Bar of Texas CLE 1994 Advanced Personal Injury Law Course, “Direct and Cross Examination of Experts” Author/Speaker for the State Bar of Texas CLE 1992 Advanced Personal Injury Law Course, “Working with Expert Witnesses”

GRIFFIN VINCENT Andrews Kurth LLP

600 Travis, Suite 4200 Houston, TX 77002

(713) 220-4786 (713) 220-4285 (FAX)

EDUCATION B.A. in Economics and Speech , Magna Cum Laude, Baylor University (1987) J.D., Magna Cum Laude, Baylor University School of Law (1990) PROFESSIONAL ACTIVITIES Partner, Andrews Kurth LLP, Litigation Section Fellow, Texas Bar Foundation Member, American Society of Healthcare Risk Management Member, Greater Houston Society for Health Care Risk Management Member, Houston Bar Association Member, Texas Association of Defense Counsel Member, Defense Research Institute.

Voir Dire After Proposition 12 Chapter 5

i

TABLE OF CONTENTS

I. THE BASICS.............................................................................................................................................. 1 A. Texas Rules of Civil Procedure.............................................................................................................. 1 B. Statutory Provisions .............................................................................................................................. 1 C. Bias or Prejudice .................................................................................................................................. 1 D. Commitment Questions ......................................................................................................................... 2

II. RIGHT TO VOIR DIRE, PROPER QUESTIONS, AND PRESERVING ERROR........................................... 3 A. Right to Voir Dire................................................................................................................................. 3 B. Types of Questions ............................................................................................................................... 3 C . Preserving Error ................................................................................................................................... 4

1. Limits on Questions ....................................................................................................................... 4 2. When Judge Limits Scope of Voir Dire ........................................................................................... 5 3. Challenges for Cause/Peremptory Strikes ........................................................................................ 5 4. Time Limit Restrictions ................................................................................................................. 5

III. TIME LIMITS, CHALLENGES, OBJECTIONS AND QUESTIONNAIRES.................................................. 6 A. Time Limits ......................................................................................................................................... 6 B. Grounds for Challenges for Cause.......................................................................................................... 6 C. Objections to Venire or Panel................................................................................................................ 7 D. Juror Questionnaires ............................................................................................................................. 7

IV. VOIR DIRE FROM THE PLAINTIFF'S PERSPECTIVE .............................................................................. 8 A. The Impact Of Judge On Voir Dire From The Plaintiff’s Perspective ....................................................... 8 B. The Bottom Line Of The New Reality Is The Following: ........................................................................ 8 C. Recommendations Of What To Do As A Practical Matter ....................................................................... 9

V. VOIR DIRE FROM THE DEFENDANT'S PERSPECTIVE......................................................................... 10 A. What to Look for in Voir Dire ............................................................................................................. 11 B. Common Characteristics of Plaintiffs’ Jurors........................................................................................ 11 C How Jurors Are Changing ................................................................................................................... 11 D. What Is Important to Jurors Regarding Medical Malpractice Liability.................................................... 11 E. Juror Perceptions That Drive Medical Malpractice Damages................................................................. 12 F. Questions to Identify Plaintiffs’ Jurors ................................................................................................. 12 G. Some Common Misconceptions Regarding Jurors ................................................................................ 12

APPENDIX "A" ............................................................................................................................................... 13

APPENDIX "B"................................................................................................................................................ 15

TABLE OF AUTHORITIES.............................................................................................................................. 19


1

VOIR DIRE AFTER PROPOSITION 12 I. THE BASICS A. Texas Rules of Civil Procedure

Rules 221-235 include the rules for challenging the jury array and particular jurors.

1. A written challenge to the jury array,

specifying the grounds for the challenge and supported by affidavit, may be made before jury selection begins if the jurors were not been selected by jury commissioners or by drawing the names from a jury wheel. TEX. R. CIV. P. 221. If the challenge is sustained, the array is discharged and other jurors summoned. TEX. R. CIV. P. 222.

2. Challenge to a particular juror is either for cause or peremptorily. TEX. R. CIV. P. 227.

3. A challenge for cause is an objection made to a juror, alleging some fact which by law disqualifies him to serve as a juror in the case or in any case, or which in the opinion of the court, renders him an unfit person to sit on the jury. TEX. R. CIV. P. 228.

4. A potential juror not be asked about conviction for a disqualifying offense or pending charges for theft or any felony. TEX. R. CIV. P. 230.

5. If challenges for cause reduce the jury panel to less than 24 in district court or less than 12 in county court, additional jurors will be summoned, who are also subject to challenge for cause. TEX. R. CIV. P. 231.

5. No reason need be given for exercising a peremptory challenge. TEX. R. CIV. P. 232.

6. The general rule is that each party is entitled to 6 peremptory challenges in district court and 3 in county court. In multi-party cases, upon motion made before the exercise of peremptory challenges, the judge has the duty to equalize the number of peremptory challenges to ensure that no litigant or side has an unfair advantage. TEX. R. CIV. P. 233.

B. Statutory Provisions

TEX. GOV’T CODE ANN. §§ 62.101-62.113 govern qualifications for and exemptions from jury service.

1. Under TEX. GOV’T CODE ANN. § 62.102, a

person is qualified to serve as a juror generally if (s)he:

a. is at least 18 years of age; b. is a citizen of Texas and the county in

which the jury is impanelled;

c. is qualified to vote in the county in which the jury is impanelled;

d. is of sound mind and good moral character;

e. is able to read and write; f. has not served as a juror more than five

days during the preceding three months in the county court or during the preceding six months in the district court;

g. has not been convicted of a felony; and h. is not charged with or under indictment

for any misdemeanor or felony theft or any other felony.

2. Under TEX. GOV’T CODE ANN. § 62.105, a

person is disqualified to serve as a juror in a particular case if (s)he:

a. is a witness in the case; b. has a direct or indirect interest in the

subject matter of the case; c. is related to a party in the case within

the third degree consanguinity; d. has a bias or prejudice in favor of or

against a party in the case; or e. has served as a juror in a former trial

involving the same questions of fact. C. Bias or Prejudice

Bias or prejudice is the most frequently raised ground for disqualification of a potential juror.

1. “Bias” means an inclination toward one side

of an issue rather than the other to such an extent that the state of mind of the juror leads to the natural inference that he will not or did not act with impartiality. Compton v. Henrie , 364 S.W.2d 179, 182 (Tex. 1963).

2. “Prejudice” means prejudgment and embraces bias. Id.

3. “The record must conclusively show that the potential juror’s state of mind led to the natural inference that he or she would not act with impartiality. A juror’s indication that he cannot be fair and impartial because his feelings are so strong in favor of a party that he will base his verdict on those feelings and not the evidence supports a successful challenge for cause.” Sosa v. Cardenas, 20 S.W.3d 8, 11 (Tex. App.—San Antonio 2000, no pet.).

4. Bias cannot be established by general questions. The potential juror must be given

http://www.TexasBarCLE.com/CLE/PMCasemaker.asp?table=TX_caselaw&volume=364&edition=S.W.2d&page=179&id=57201_01




2

the applicable definition and asked if (s)he can evaluate the facts under that specific definition. Gant v. Dumas Glass and Mirror, Inc., 935 S.W.2d 202, 208 (Tex. App.—Amarillo 1996, no writ). The attorney asked potential jurors whether they would award damages for “mental anguish” without defining it. Because mental anguish was not defined or defined correctly for the panel, there was no basis for assessing bias or prejudice against awarding damages for it and neither bias nor prejudice is presumed.

5. Questions about hypothetical changes in the law, e.g., damage caps, do not constitute bias as a matter of law. Houghton v. Port Terminal Railroad Ass’n, 999 S.W.2d 39, 46-47 (Tex. App.—Houston [14th Dist.] 1999, no pet). Bias against the present, applicable law must be shown before a juror is disqualified for bias.

6. Admission of a “little bias” was not enough to establish bias as a matter of law. Sanchez v. Mica, 107 S.W.3d 13, 28 (Tex. App.—San Antonio 2002, judgment vacated in part). A juror’s statement that he “could probably be a little biased” was not evidence that his feelings were so strong that he would base his verdict on his feelings and not the evidence.

7. Pending cases regarding the standard for bias or prejudice as a matter of law:

a. The trial court did not excuse an

insurance adjuster in a nursing home negligence case who stated that he “would be very uncomfortable” sitting as a juror for a case involving an insurance claim and that he might have “preconceived notions” of the nature of the case. He then stated that he felt the case “could almost go either way,” that although he would “feel bias” he could not “answer anything for certain.” When the court asked if one party started ahead of the other, he responded, “In a way, yes.” He then stated that he would try to listen to all of the evidence, follow the court’s instructions, and decide the case on the law and the evidence. The appeals court upheld the trial court’s finding that no bias or prejudice was established as a matter of law. Cortez v. HCII-San Antonio, Inc., 131 S.W.3d 113, 118 (pet. granted). (Oral argument in December 2004.)

b. The trial court did not excuse a healthcare defense attorney in a medical

malpractice case who stated that although he would try to be objective, he would relate more to the defense attorneys and it would be natural for him to tend to look at the case from their perspective. The appeals court held that the testimony disqualified the juror as a matter of law and that the trial court committed reversible error by failing to grant plaintiffs’ motion to strike. Baker v. El Hafi, No. 2004 Tex. App. LEXIS 7882 (Corpus Christi Aug. 30, 2004, pet. filed).

D. Commitment Questions

Commitment questions to prospective jurors during voir dire are prohibited.

1. A commitment questions is one that, if

answered, tends to commit the juror in advance to a view on a fact which the juror has a duty to consider in connection with other evidence in determining an issue and thereby commit the juror to a certain view or conclusion on the issue. Campbell v. Campbell, 215 S.W.2d 134, 137 (Tex. Civ. App.—Dallas 1919, writ ref’d).

2. Asking jurors whether they would not be able to consider the rest of the evidence given a certain fact was found not to be a commitment question in Grey v. Wolf Drilling Co. v. Boutte, 2004 Tex. App. LEXIS 11194 (Houston [14th Dist.] December 14, 2004, no pet. h.). The question was held to be an attempt to discover prejudice or bias because it inquired whether potential jurors would listen to and consider all of the evidence before reaching a decision. Id.

3. The Supreme Court granted a petition for review and very recently heard oral argument in Vasquez v. Hyundai Moto r Co., 119 S.W.3d 848 (Tex. App.—San Antonio 2003, pet. granted). The Court of Appeals, perceiving “a clear distinction between questions that seek to determine the existence of unfair bias and those that seek instead to determine how potential jurors will treat certain evidence”, found that a question whether prospective jurors had a preconceived bias against the failure to use a seat belt that would prevent them from being fair and impartial regardless of the other evidence was not a commitment question.





http://www.TexasBarCLE.com/CLE/PMCasemaker.asp?table=KY_caselaw&volume=215&edition=S.W.2d&page=134&id=57201_01




3

II. RIGHT TO VOIR DIRE, PROPER QUESTIONS, AND PRESERVING ERROR

A. Right to Voir Dire The right to conduct a proper voir dire relates to

the constitutional right to a fair trial. Babcock v. Northwest Memorial Hosp., 767 S.W.2d 705, 705 (Tex. 1989). It is well established by numerous decisions that this constitutional right carries with it the right of counsel to interrogate the members of the jury panel. De La Rosa v. State, 414 S.W.2d 668, 671 (Tex. Crim. App. 1967). Of course, your voir dire generates the foundation for any challenges for cause or peremptory strikes you may make, thereby securing your client's right to fair and impartial jurors.

Because of this constitutional right, a judge's discretion regarding the scope of voir dire is limited by your client's right to a fair trial. That is, it is undoubtedly an abuse of discretion if a trial court prevents a litigant from making challenges for cause or from asking certain types of questions to establish need for peremptory strikes. Babcock at 709. Additionally, on appeal there will be no harmless error analysis in this type of situation. If a judge prevents questions to intelligently use your peremptory strikes, harm is presumed. A court abuses its discretion when its denial of the right to ask a proper question prevents determination of whether grounds exist to challenge for cause or denies intelligent use of peremptory challenges. Dickson v. Burlington N.R.R., 730 S.W.2d 82, 85 (Tex.App.—Fort Worth 1987, writ ref'd n.r.e.).

As such, the trial judge has no discretion to stop you from asking questions during voir dire which would lead you to making determinations about which panel members you would like to challenge for cause or use your peremptory strikes upon. Therefore, "a broad latitude should be allowed to a litigant during voir dire examination". This will enable the litigant to discover any bias or prejudice by the potential jurors so that peremptory challenges may be intelligently exercised. Id at 709; see also Lubbock Bus Co. v. Pearson, 277 S.W.2d 186, 190 (Tex. Civ. App.—San Antonio 1955, writ ref'd n.r.e.). The law prohibits a juror, who admits having a bias or prejudice, from being rehabilitated by the efforts of opposing counsel or the trial court. See White v. Dennison, 752 S.W.2d 714, 717 (Tex. App.—Dallas 1988, writ denied) (trial court must excuse juror who admits bias or prejudice even where juror is rehabilitated through the efforts of counsel or the court by stating that he would decide the case on the evidence and be fair to both sides); Gum v. Schaefer, 683 S.W.2d 803, 808 (Tex. App.—Corpus Christi 1984, no writ); Carpenter v. Wyatt Const. Co., 501 S.W.2d 748, 750 (Tex. App.—Houston [14th Dist.] 1973, writ ref'd n.r.e.).

B. Types of Questions Questions which seek to determine bias or

prejudice against the law are proper. Bias against any of the law upon which a litigant is to rely is ground for challenge for cause and is a proper for questioning. DeLeon v. State, 867 S.W. 2d 138, 140 (Tex. App.—Corpus Christi 1993 ,writ ref'd).; Smith v. State, 513 S.W. 2d 823, 826 (Tex. Crim. App. 1974). Obviously, in any voir dire examination there is tension between one party's right to determine if grounds exist for striking potentially biased jurors and the opposing party's right to a jury not unduly influenced by improper questioning. On one hand, the plaintiff's lawyer wants to question the panel on their feelings on tort reform. On the other hand, defense counsel doesn't want potential jurors to be unduly influenced by a plaintiff lawyer's questions dealing with tort reform and the media.

Because the motive for using a peremptory challenge generally may not be inquired into, the purpose of the particular question also may not be asked of counsel. Wise v. City of Abilene, 141 S.W.2d 400 (Tex. App.—Eastland 1940, writ dism'd). The examination of prospective jurors need not be confined to matters that might be a ground for challenge for cause. Greenman v. City of Fort Worth , 308 S.W.2d 553 (Tex. App.—Fort Worth 1957, writ ref'd n.r.e.). As long as it appears that the question may lead to an answer considered to be useful when exercising the peremptory challenges, the approved practice is to allow the question. Wise at 400. The right to interrogate jurors on voir dire is not unlimited, but it must, of necessity, be limited to those inquiries that are material and relevant to the particular kind of case being tried. Johnson v. Reed, 464 S.W.2d 689 (Tex. App.—Dallas 1971, writ ref'd n.r.e. (disapproved of on other grounds by, Exxon Corp. v. Shuttlesworth, 800 S.W.2d 902 (Tex. App.—Houston [14th Dist.] 1990)). The limits of relevancy are overstepped by a hypothetical question as to how the juror would decide issues of the case, and by inquiring as to the juror's knowledge of a custom, where the juror would be informed of it in the course of the trial. Gradney v. State , 87 S.W.2d 715 (Tex. 1935); Elliott v. State , 255 S.W. 183 (Tex. 1922) (overruled in part on other grounds by, Knight v. State , 31 S.W.2d 1082 (Tex. 1930)). Moreover, a question asked of individual venire members may be so broad that, rather than seeking particular information from a particular panel member, it presents a general topic for discussion. T.K.'s Video, Inc. v. State, 832 S.W.2d 174 (Tex. App.—Fort Worth 1992 pet. ref'd.). A trial court may exercise its discretion to prevent an improperly worded question from being asked when it presents so broad a question as to constitute a global fishing expedition. Id.
























4

So what is a proper question after Proposition 12? In judging the propriety of a question during voir dire, a court must first evaluate the relevancy of the question to the type of case that is being tried. Johnson v. Reed, 464 S.W. 2d 689, 691 (Tex. App.—Dallas 1971, cert. denied). Further, courts must take into consideration whether or not a question unfairly prejudices the jury against the opposition. Texas Employers Ins. Ass'n v. Loesch, 538 S.W. 2d 435, 442 (Tex. App.—Waco 1976, writ ref'd n.r.e.); Gulf States Util. Co. v. Reed, 659 S.W. 2d 849, 853 (Tex. App.—Houston [14th Dist.] 1983, writ ref'd n.r.e.). A question is proper if it seeks to discern a juror's views on an issue applicable to the case. Nunfio v. State, 808 S.W.2d 482, 484 (Tex. Crim. App.1991). In Babcock , the Texas Supreme Court states that allowing questioning about a "lawsuit crisis " is proper. Babcock at 707. (During voir dire, the matter arose when a prospective juror expressed doubt about his ability to be impartial because of his concern about the effect of judgments on insurance premiums. Apart from the rest of the panel, the juror was questioned about his concerns for malpractice premiums. The juror answered affirmatively when asked if he had read advertisements about the difficulty of obtaining insurance because of jury verdicts. He stated he believed the assertions made in the advertisements and would be concerned about insurance premiums. After that juror was struck for cause, the Babcocks again requested permission to question the remaining prospective jurors about the "lawsuit crisis"). This can be carried over to questions about present day tort reform, lawsuit media, and political agendas.

However, questioning jurors about more obscure topics to attempt to uncover potential bias and prejudice has been ruled improper. For example, in one case, the court held that trial court did not abuse its discretion in limiting voir dire questions regarding the O.J. Simpson trial. Boone v. Fisher, 1999 WL 33896852 (Tex. App.—Corpus Christi) (the attorney claimed that the unique nature of the Simpson trial would afford an opportunity to discover information regarding the venire member's biases in the most efficient manner available and that their purpose for the line of questioning regarding the Simpson trial was to uncover bias in those venire members who might have revealed they had made up their minds regarding Simpson's guilt before the evidence was fully presented). Additionally, it is clear that trial courts do indeed have broad discretion is determining who should be struck from the venire for cause. For example, in a recent case, the Texarkana court held that a panel member who admitted to knowing defense counsel for over twenty years and a panel member whose two daughters worked in the medical field who admitted possible bias should not be disqualified. Buls v. Fuselier, 55 S.W. 3d 204, 210 (Tex. App.—

Texarkana 2001) (Venireman was questioned regarding his relationship with defense counsel. He admitted that he had known defendant's attorney, in both a professional and social capacity for over twenty years. Venireman consequently answered in the affirmative when asked whether his personal knowledge of Lewis could cause a problem in the case. Finally, he commented that in light of this potential problem, he would "certainly" like to be excused from the jury panel. The second venireman indicated that because his daughters worked in medical administrative capacities, he "might be" influenced in the case. He then commented that he had heard of people "trying to get something for nothing." Finally, he indicated that because one of his daughters left her position at a medical facility, in some distress, he did not know whether he "could be fair in this situation."). The key response that supports a successful challenge for cause is that the veniremember cannot be fair and impartial because the veniremember's feelings are so strong in favor of or against a party or against the subject matter of the litigation that the veniremember's verdict will be based on those feelings and not on the evidence. Gant v. Dumas Glass & Mirror, Inc., 935 S.W.2d at 208; see also Julie A. Wright, Challenges for Cause due to Bias or Prejudice: The Blind Leading the Blind Down the Road of Disqualification, 46 BAYLOR L.REV. 825, 838 (1994). The court held that the "collective responses of both [veniremen] do not conclusively establish that either of them could not fairly consider the evidence in the case before them and further held that the plaintiff's attorney failed to adequately explore the issue of whether each juror could listen to the evidence and reach a verdict based on that evidence and not their feelings. Buls at 210. C . Preserving Error 1. Limits on Questions

As most trial lawyers have experienced, many judges today impose strict limitations on the questions an attorney may ask in voir dire. When the judge prevents counsel from asking more questions, in order to preserve error, counsel should, on the record:

(1) Immediately object; (2) Explain that more time is needed to gather

information to strike a panel member for cause or to use a peremptory strike;

(3) State the issues to be covered with the jurors that counsel was unable to cover due to time limitations; and

(4) Obtain a ruling from the court. See McCarter v. State, 837 S.W. 2d 117, 118-121 (Tex. Crim. App. 1992); Babcock v. Northwest Memorial Hosp., 767 S.W. 2d 705, 706-708. In turn, if the line of questioning you were pursuing involved a particular











5

juror, rather than the entire panel, you should ensure that the record you make reveals that you were forced to use one of your peremptory strikes upon the individual juror, and that you were not able to use that peremptory strike upon another juror that you also found objectionable because of the time limits the judge put on your voir dire. Texas Gen. Indem. Co. v. Moreno, 638 S.W. 2d 908, 912 (Tex. App.—Houston [1st Dist.] 1982, no writ). This, of course, only applies if you actually struck the individual juror from the panel with a peremptory strike. If the juror ends up making the jury, you must ensure that the record reflects that the individual sat on the jury. Id.

After you make your objection, if the judge overrules you, a bill of exceptions should be offered to get the unasked questions and the identities of the unquestioned panel members into the record. There is no definite requirement to place the precise questions you would have asked in the record under Babcock , but obviously, the safest practice would be to so. 2. When Judge Limits Scope of Voir Dire

As stated above, it is clear that parties are allow to question prospective jurors on any matters relevant to intelligently exercising challenges for cause and peremptory strikes. See Babcock at 709. In order to preserve error, you must still conduct a complete voir dire; one who fails to do so waives his or her right to complain of prejudice. Coats v. Windham, 281 S.W.2d 207 (Tex. App.—Beaumont 1955); Texas Employers Ins. Ass'n v. Noel, 269 S.W.2d 835, 842. (Tex. App.—Fort Worth 1954). In order to preserve error in such a situation, and conduct a complete voir dire, an attorney must ensure he or she accomplishes the following:

(1) An inquiry about the subject on voir dire; (2) Specific, rather than general questions; (3) Questions that are clear and unambiguous;

and (4) Pursuit of inquiries suggested by the answers

of the panel members. City of San Antonio v. Willinger, 345 S.W. 2d 577, 578 (Tex. App.—San Antonio 1961, no writ).

3. Challenges for Cause/Peremptory Strikes

When a trial court denies your challenge for cause on a particular juror, a very specific set of steps must be taken to ensure that you preserve error. Brown v. Pittsburgh Corning Corp., 909 S.W.2d 101, 102 (Tex. App.—Houston [14 Dist.] 1995, no writ); Hallet v. Houston Northwest Medical Center, 689 S.W.2d 888, 890 (Tex. 1985). The steps are as follows:

(1) Challenge the venire member for cause; (2) State on the record the grounds for the

challenge for cause;

(3) Make sure that any discussion with the panel member is recorded by the court reporter;

(4) Obtain and ruling, and verify that the ruling is on the record;

(5) Inform the court that by denying your challenge for cause of challenged venire member, you are being forced to use your last peremptory strike upon that venire member;

(6) Identify the specific, objectionable venire member who will remain now that you have exercised your last peremptory strike upon the challenged venire member (this establishes harmful error by making clear that the court's decision forced you to take an objectionable juror);

(7) Provide the trial court the opportunity to remove the objectionable jurors;

(8) Then submit your list of peremptory strikes to the judge (you must do this last since handing your list over constitutes the exercise of your peremptory strikes.

The failure to make such a record before you exercise your peremptory strikes (by handing your list to the judge) waives any error. Beavers v. Northrop Worldwide Aircraft Servs., Inc., 821 S.W. 2d 669, 673 (Tex. App.—Amarillo 1991, writ denied); see also Lopez v. Southern Pac. Trans. Co., 847 S.W.2d 330, 333 (Tex. App.—El Paso 1993, no writ). 4. Time Limit Restrictions As referenced in many of Robert Hirschorn's articles, more and more judges have started to imposed time limitations on voir dire. If you think that the time limitations that the judge has placed upon your voir dire are unreasonable, you must preserve the issue for appeal. The Criminal Court of Appeals in Ratliff v. State , 690 S.W. 2d 597 (Tex. Crim. App. 1985)., set forth the following three-prong test to ensure preservation:

(1) Counsel did not prolong voir dire by asking irrelevant, immaterial or superfluous questions;

(2) Questions that counsel sought to ask were proper voir dire inquiries; and

(3) The jury included venire members whom counsel was not allowed to examine.

In the author's opinion, counsel should be mindful of the following, which Mr. Hirschorn has laid forth in his article How to Conduct a Meaningful and Effective Voir Dire:

(1) Resist the temptation to use the bulk of time in voir dire telling the panel about the facts












6

and issues. Instead, ask the jurors meaningful and relevant questions;

(2) Prior to jury selection, make a list of five to ten proper voir dire questions. When informed by the Judge that time has expired, approach the bench and ask for additional time. If that request is denied, dictate into the record the five to ten questions which were intended to be asked, but due to time limitations, were not;

(3) Be certain that the questions dictated into the record are:

a. Proper voir dire questions and

appropriate to the case; b. Not covered in one's own voir dire; or c. Not thoroughly explored during

opposing counsel's voir dire or the voir dire conducted by the court; and

(4) Once the jury has been selected, but before

they are sworn in, approach the bench and state for the record those jurors who are seated on the jury and were not asked any questions due to insufficient time.

This should adequately preserve error for appeal and often times, a judge may give the attorney additional time to conduct voir dire rather than run the risk of possible reversal. III. TIME LIMITS, CHALLENGES,

OBJECTIONS AND QUESTIONNAIRES A. Time Limits

The judge, in his or her discretion, may impose a reasonable time limitation on voir dire questioning. Ratliff v. State, 690 S.W.2d 597, 600 (Tex.Crim.App.1985); Whitaker v. State, 653 S.W.2d 781 (Tex.Crim.App.1983) (en banc); Cartmell v. State, 784 S.W. 2d 138, 139 (Tex. App.—Fort Worth 1990, no pet.); Caldwell v. State, 818 S.W.2d 790, 793 (Tex. Crim. App. 1991) ("the control of the voir dire examination is within the sound discretion of the trial judge, and it is well-settled that the trial judge's discretionary authority extends to imposing reasonable limitations on the time for which counsel may question the jury panel"); Clark v. State, 608 S.W.2d 667, 669 (Tex. Crim. App. 1980) ("we reiterate that reasonable time limits may, within the trial court's discretion, be placed on the voir dire examination"); Barrett v. State, 516 S.W.2d 181, 182 (Tex. Crim. App. 1974) (same). There is no specific time limitation which either is, or is not, necessarily reasonable. In one case a time limitation of 30 minutes may be reasonable, Barrett, 516 S.W.2d at 182 (30 minute time limit was reasonable when counsel "sought to extend the voir dire proceedings indefinitely by proposing to propound

an unspecified number of additional questions to the panel"), while in another 60 to 90 minutes may be unreasonable. Clemments v. State , 940 S.W.2d 207, 209-101(Tex. App.-- San Antonio 1996, pet. ref'd) (60 minute time limit unreasonable when defense was unable to question four panelists who became jury members about their personal knowledge or experiences with child abuse); Ratliff v. State, 690 S.W.2d 600, 598-600 (Tex. Crim. App. 1985) (81 minutes unreasonable limitation under particular circumstances). Each case must be examined on its own facts. Id. A reasonable time limitation for one case may not be reasonable for another. The amount of time allotted is not, by itself, conclusive. Various and unpredictable considerations such as the complexity of the case or the makeup of the venire may prolong a voir dire examination. Challenges for cause and discussions at the bench can contribute to a lengthy voir dire examination. Id at 600. However, courts have recognized that permitting parties to probe juror bias and prejudice is a lengthy procedure, and while "it is always commendable for a trial court to dispatch business with promptness and expedition, but this salutary result must never be attained at the risk of denying to a party on trial a substantial right." De La Rosa v. State, 414 S.W.2d 668, 672 (Tex. Crim. App.1967) , quoting Carter v. State, 272 S.W. 477 (1925). Although time constraints on voir dire are a legitimate concern of a trial judge, the paramount concern in a case such as this must be the appellant's freedom to intelligently exercise his peremptory challenges. Smith v. State , 703 S.W. 2d 641, 645 (Tex. Crim. App. 1985). B. Grounds for Challenges for Cause

A challenge for cause is an objection made to a juror, alleging some fact that by law disqualifies him or her to serve as a juror in the case or in any case or that, in the opinion of the court, renders the juror an unfit person to sit on the jury. Upon such challenge, the examination is not confined to the answers of the juror; other evidence may be heard for or against the challenge. Tex. R. Civ. P 228. The key response that supports a successful challenge for cause is that the venire member cannot be fair and impartial because the venire member's feelings are so strong in favor of or against a party or against the subject matter of the litigation that his or her verdict will be based upon those feelings and not on the evidence. Gant v. Dumas Glass and Mirror, Inc., 935 S.W.2d 202 (Tex. App.—Amarillo 1996).

The trial court is in a better position than the appellate court to evaluate the qualifications of prospective jurors. Speer v. Continental Oil Co., 586 S.W.2d 193 (Tex. App.—Eastland 1979, writ ref'd n.r.e.). It is up to the trial court's discretion whether to excuse a potential juror for cause, and the trial court's















7

determination will not be disturbed in the absence of an abuse of discretion. Brentwood Financial Corp. v. Lamprecht, 736 S.W.2d 836 (Tex. App.—San Antonio 1987, writ ref'd n.r.e.); Ramirez v. Wood, 577 S.W.2d 278 (Tex. App.—Corpus Christi 1978). Thus, a trial court's decision regarding challenges for cause on the basis of bias is subject to an abuse of discretion standard, and the reviewing court must defer to the trial court's evaluation of a veniremember's demeanor and credibility and must consider the evidence in a light favorable to upholding the trial court's decision. Guerra v. Wal-Mart Stores, Inc., 943 S.W.2d 56 (Tex. App.—San Antonio 1997, writ den.); Texas Dept. of Human Services v. Green, 855 S.W.2d 136 (Tex. App.—Austin 1993 writ den.). A challenge for cause not based on the statutory grounds of disqualification is ordinarily addressed to the discretion of the trial judge, and his or her action will not be disturbed on appeal unless it clearly appears that a fair and impartial trial was thereby prevented. City of Hawkins v. E. B. Germany and Sons, 425 S.W.2d 23 (Tex. App.—Tyler 1968, writ ref'd n.r.e.). An overruling of a challenge for cause to a prospective juror carries with it an implied finding that there exists no such bias or prejudice as to constitute a disqualification, and that fact finding will not be disturbed in the absence of abuse of discretion. Ramirez v. Wood, 577 S.W.2d 278 (Tex. App—Corpus Christi 1978). C. Objections to Venire or Panel

The Rules of Civil Procedure provide for two objections to the makeup of the jury. First, a party may challenge the array. Second, a party may demand a "shuffle" of the panel. Martinez v. City of Austin, 852 S.W.2d 71 (Tex. App.—Austin 1993, writ denied). The Rules provide that when the jurors summoned have not been selected by jury commissioners or by drawing the names from a jury wheel, any party to a suit in district or county court, which suit is to be tried by a jury, may challenge the array before the jury is drawn. Tex. R. Civ. P. 221. All such challenges must be in writing, setting forth distinctly the grounds of such challenge and supported by the affidavit of the party or some other credible person. When the challenge is made, the court must hear evidence and decide without delay whether the challenge will be sustained. Id. A challenge to the array may be waived if it does not comply with the requirements of this rule. Mann v. Ramirez, 905 S.W.2d 275 (Tex. App.—San Antonio 1995, writ denied). When the parties to a jury case in the justice court have announced themselves for trial, either party may challenge the array of jurors. The cause and the manner of making such challenge, the decision thereof, and the proceedings when the challenge is sustained are as provided for similar proceedings in the district and county courts. Tex. R. Civ. P. 547. A complaint concerning the manner of

selection of the jury commission that selected the panel from which a jury was chosen must be deemed a challenge to the array. King v. Moberley, 301 S.W.2d 202 (Tex. App.—Eastland 1957). Under the interchangeable jury system, any objection concerning the array should be presented to the district judge, designated as the person to whom members of the array should report for duty, before or at the time the judge organizes the prospective jurors into panels. Consequently, any objection presented to the judge after he or she organizes the panels is considered untimely, and untimely objections waive any error on appeal. Thus, it is generally too late to complain of errors when the complaint is first made in the motion for new trial. This rule is primarily designed to prevent a party from taking his or her chance on a favorable verdict, and then obtaining a second trial by reason of some irregularity in the array selection process. The rule applies not only when the party is aware of the irregularity, but also when the party could have discovered it by inquiry. Benavides v. Soto, 893 S.W.2d 69 (Tex. App.—Corpus Christi 1994). However, where the challenging party first learns of the basis for and first has an opportunity to object to the randomness of the jury panel during voir dire examination, the application of the rule that a challenge must be made before or at the time the judge organizes the prospective jurors into panels puts an unreasonable and impractical burden on the challenging party. Mendoza v. Ranger Ins. Co., 753 S.W.2d 779 (Tex. App.—Fort Worth 1988, writ denied). D. Juror Questionnaires

A new tool increasingly being permitted in the courts is the prospective juror questionnaire. Jury consultants can assist attorneys in preparing these background questionnaires which are submitted to potential jurors prior to the actual jury selection. Permission to use a juror questionnaire is often at the sole discretion of the judge and the questions posed on jury questionnaires traditionally are attributed to the trial court. Carr v. Smith, 22 S.W. 3d 128, 139 (Tex. App.—Fort Worth 2000, writ denied). The purpose of jury questionnaires is to elicit basic information, possible biases, and other problems that would otherwise be brought out during voir dire, the time when the attorneys actually speak with the prospective jurors. Id. Counsel may rely on these questionnaires to determine which questions to ask during voir dire and which jurors to strike, thus minimizing the length of voir dire. Juror questionnaires should not be a substitute for oral voir dire. They should be used to obtain important data, which is supplemented through oral voir dire. Attached as Appendix "A" is a sample jury questionnaire.


















8

IV. VOIR DIRE FROM THE PLAINTIFF'S PERSPECTIVE

Based on twenty three years of practice and voir diring a number of jury panels in multiple Texas cities following the passage of Proposition 12, it is my impression that lawyers representing victims face difficult challenges in a new reality. With a few exceptions, the majority of the landscape in Texas is hostile territory. The following are some of my observations of the new reality:

• More Texans than ever before proudly hold themselves out to be Republicans.

• The majority of the jury panel in most venues in Texas embrace Republican ideals.

• Minorities are significantly under represented, especially in large cities.

• Conservative white, educated people are over represented, especially in large cities.

• Over the last four years the jury pool has been subjected to a proliferation of propaganda carpet bombing from business interests and Republican politicians which portrays medical malpractice lawsuits, victims of malpractice and plaintiff's lawyers in an extremely negative light.

• A significant proportion of the jury pool believes that:

a. The vast majority of medical

malpractice lawsuits are frivolous; b. Most jury awards are significantly

excessive; c. The existence of medical malpractice

lawsuits threatens the availability of healthcare for them and their family;

d. Medical malpractice lawsuits and awards cause a direct financial burden upon the members of the jury pool by driving up the cost of their healthcare insurance;

e. That there is a real and significant medical malpractice litigation crisis;

f. That physicians are more victimized by medical malpractice litigation than patients are victimized by medical mistakes; and

g. Non-economic damages are to be viewed with skepticism and awarded grudgingly.

A. The Impact Of Judge On Voir Dire From The

Plaintiff’s Perspective Fortunately, Texas trial judges are generally not as susceptible and vulnerable to the media propaganda program that has created negative bias within so many

members of the jury pool. Regardless of whether the trial judge is a Democrat or Republican, I believe that he or she understands that the debate regarding tort reform and the pros and cons thereof are political football and do not necessarily reflect the reality experienced at the court house. However, that same trial judge has a significant admitted interest in moving his or her docket and is strongly interested in disposing of your case via verdict or settlement as quickly and efficiently as possible. Trial judges are not interested in granting mistrials and starting over. In general they are not interested in allowing Plaintiff's counsel to "bust" the panel through challenges for cause and preemptory strikes. What this translates into is the following:

• Judges increasingly place arbitrary and often unfair time limitations on voir dire examination of the jury panel.

• Trial judges often request a panel of insufficient size in view of the foreseeable strong feelings among members of the jury panel about medical malpractice litigation in general.

• In order to preserve the panel and seat a jury, trial judges will often ignore the law in regard to demonstration of bias and improperly allow rehabilitation of venuemen or perform the rehabilitation themselves after calling prospective jury panel members to the bench.

B. The Bottom Line Of The New Reality Is The

Following:

• The majority of the average jury panel will not give the plaintiff in a medical malpractice lawsuit a fair trial.

• Increasingly, "defense jurors" are reticent about admitting disqualifying bias.

• Without effective voir dire and jury selection it is difficult for the plaintiff to prevail in a medical malpractice lawsuit, regardless of the evidence.

• Effective voir dire examination of the jury panel is increasingly inhibited by arbitrary and unfair time limitations placed on voir dire by trial judges.

• Trial judges are reluctant to grant challenges for cause to the extent that the panel is busted and the case mistried.


9

C. Recommendations Of What To Do As A Practical Matter

• The more information that the plaintiff's

lawyer has about each perspective juror the better off he is.

• The more prospective jurors that are on the jury panel, the greater the chance of obtaining a jury which will give the plaintiff a fair trial.

• Use a questionnaire like the one page questionnaire attached as an exhibit to this paper.

• Fit the questionnaire to the specific type of case.

• File a motion for a use of a questionnaire early rather than late in the life of the lawsuit.

• File a motion requesting a larger than usual panel. Seek at least seventy-five members.

• File a motion advising the court that you are requesting time for voir dire of at least three hours.

• Educate the court about the prior three requests and the reason why the relief is appropriate.

• Seek a schedule that will allow the jury panel to answer the questionnaire one day and return the next working day for voir dire examination. The questionnaire is of little value unless you have at least one night to review and synthesize the information.

• If the potential reward of the case justifies it, a jury consultant should be used to review the questionnaire, help you prepare your voir dire examination, and be present for jury selection.

• Prepare in advance a list of questions or topics in writing to tender to the court in the event that the time for voir dire is limited such that all significant questions or topics are not covered in your voir dire.

• Remember that the purpose of voir dire examination is to identify those jurors holding negative bias or prejudice and to strike those for cause whose bias or prejudice rises to the level of disqualification and to intelligently exercise preemptory strikes regarding those jurors for whom your challenge for cause has failed.

• Object to impermissible attempts by the court or defense counsel to rehabilitate panel members who have already demonstrated bias.

• Do not argue your case during voir dire. • Do not try to win your case during voir dire.

• Let the defense lawyer try to win his case in voir dire and use valuable time trying to persuade the jury panel rather than attempting to identify jurors who have a negative bias or prejudice.

• Do not be afraid of strongly negative feedback. Most of the people on any given jury panel do not like medical malpractice lawsuits and especially do not like plaintiff's lawyers. Develop a thick skin and get used to it.

• Do not worry about a panel member poisoning the remainder of the panel. Generally that is a myth unless it is in the form of an educated opinion, either good or bad, about you, your client, the defendant or the defense lawyer.

• Spend less than five minutes telling the jury about your case. Recite the facts in plain vanilla fashion without emphasis.

• Remember that attempts to argue your case in voir dire will only result in an increased inability to identify jurors holding a negative bias and increase difficulty in striking jurors for cause.

• Tell the jury that you are seeking three million dollars in actual damages (for example) and one million dollars in exemplary damages without giving any dramatic story telling support for those numbers. That way you will be in the best position to identify jurors who are offended or turned off by significant damage awards or the award of exemplary damages.

• Be mindful of the fact that the two most common fears held by your jury panel members are the following:

a. The fear of public speaking; and b. The fear of rejection.

• Let your panel know early in the voir dire

that there is no such thing as a wrong answer and that even scathing editorials about lawsuits, plaintiff's lawyers, damages awards, etc. will be greeted with a sincere appreciation for their honest response. Demonstrate to your panel members that they are in a secure environment where they can tell you exactly what they think without any fear of rejection or embarrassment.

• Explain that "bias" is inherent in everyone. I like to describe bias in terms of sports fans who would rather had the home team win or their favorite team win, than the "best team." In Houston I find out which panel members


10

are Texans fans, Astros fans or Rockets fans. This is an easy way to get the jury panel relaxed and comfortable in speaking in front of each other while at the same time indoctrinating them to the concept that bias is a normal part of every day life and good people all have biases of one type or another.

• Conceptually focus on your job as striking the panel and mistrying your case. By doing so, you will increase your chance of success in eliminating those jurors who will not give you a fair trial.

• If you are unsuccessful in striking the entire panel, assuming that you have been given adequate time by the court and you have used that time wisely, your chances of a fair trial will have increased dramatically.

• Follow the previous outline procedure in objecting if the court halts your voir dire or says "times up" before you have enquired about every crucial area or asked every important question.

• Follow the previously stated procedure in objecting to the court's failure to grant challenges for cause and a timely objection to preserve error when this results in the necessity of accepting one or more jurors whom you would have struck with a preemptory challenge.

• Discover and eliminate every juror who is biased against medical malpractice lawsuits in general.

• Follow up with questions to discovery bias among those who believe that medical malpractice lawsuits threaten their access to healthcare.

• Discover every panel member who believes that medical malpractice lawsuits and particularly jury awards in those lawsuits directly impact the premiums that they pay for health insurance.

• In regard to burden of proof: Find out which panel members believe that "51%" or "probably right" is too low a burden of proof and that they could not find in favor of the plaintiff and against the physician if the plaintiff carried the day with only 51% of the proof or proof that he was probably right.

• Discover all panel members who could not award money for non-economic damages such as pain and suffering.

• Find those jurors who would hold you to a higher burden of proof than a preponderance of the evidence to award money for non-economic damages.

• Uncover negative bias in regard to those panel members that believe that medical malpractice in general is unfair to doctors.

• Discover those panel members who believe that a lawsuit for money damages is the wrong forum to address a complaint against a doctor (as opposed to a complaint with the board of medical examiners).

• Find those panel members who for religious reasons, believe that they cannot effectively sit in judgment of another human being.

• Discover those panel members who feel incompetent, unable or unwilling to sit in judgment of a medical doctor.

• Although generalizations can be dangerous and inaccurate, I recommend that you strike every single person who has a healthcare provider in the family or has worked in the healthcare industry at any time.

• If your opponent spends much of his voir dire time arguing his case, have the court reporter type it up and do likewise with his opening statement. There may be one or more misstatements which you can prove through the evidence are completely false and will eviscerate his credibility before the jury.

• Resist the temptation to tell the jury why you should win until opening statement.

• Do not compromise and willingly accept a bad jury, just for the sake of getting a jury.

V. VOIR DIRE FROM THE DEFENDANT'S

PERSPECTIVE On January 5, 2005, the Kaiser Family

Foundation and the Harvard School of Public Health released the results of a survey they conducted recently. Among the results are the following findings:

• 61% of those surveyed believe patients bring

too many lawsuits against doctors • 49% of those surveyed believe juries award

too much money to patients • 63% of those surveyed favor and 33%

oppose a limit on patients’ non-economic damages

• 53% of those who favor a cap on pain and suffering award believe the cap should be at least $500,000

• reduction of malpractice awards against healthcare providers ranked 11th on the list of health care priorities of those surveyed.

The information in the remainder of this section is derived from jury research by Dan Jacks, Ph.D., RandD Strategic Solutions, 808 Russell Palmer Road,


11

Suite 158, Kingwood, Texas 77339, (281) 312-5007, [email protected]. The speaker and authors wish to express their sincere appreciation and gratitude to Dan for his thorough research and significant contribution to the preparation of this presentation. A. What to Look for in Voir Dire

1. Attitudes regarding the health care system, e.g, regarding the accessibility and cost of health care and medical malpractice litigation.

2. Experiences with the health care system, e.g, during emergency room visits or hospitalizations of potential juror or family members.

3. Demographics, e.g., educational level, income level, health insurance coverage, work history, and the degree of similarity to plaintiffs.

B. Common Characteristics of Plaintiffs’ Jurors

1. Negative experiences with health care providers with a resulting tendency to attribute a bad outcome to poor or substandard care.

2. Anti-health care system attitudes. 3. Demographics:

a. lower level of education, i.e., no college

degree; b. lower income; c. under-insured; e. unstable work history and/or

underemployment; and/or d. similar to the plaintiff’s or plaintiffs’

demographics. 4. A feeling of being economically on the brink,

including feelings of:

a. marginal socio-economic status; b. downward mobility; and/or c. things getting worse.

5. Social transience or a lack of attachments,

including:

a. not feeling a part of his or her community;

b. lack of membership in social organizations;

c. frequent job-hopping; d. frequent change of residence; and/or e. multiple marriages.

6. Victim mentality, including:

a. feeling that (s)he is controlled by circumstances rather than having control;

b. feeling that (s)he does not receive the credit (s)he deserves for contributions at work;

c. loss of a loved one; d. divorced; e. the victim of assault or other crime;

and/or f. feeling that (s)he has been treated

unjustly. 7. Authoritarian orientation, including:

a. belief that those who violate the rules

should be punished; b. low tolerance for mitigating

circumstances; c. low tolerance for ambiguity; d. belief in rigid adherence to social

hierarchies; and/or e. extreme religiosity.

C How Jurors Are Changing

1. The sense of entitlement is increasing. 2. The belief in personal responsibility is

decreasing. 3. Desensitization to large damage amounts is

increasing. 4. The fear of losing control is increasing. 5. Impatience is increasing.

D. What Is Important to Jurors Regarding

Medical Malpractice Liability Jury research indicates that, in deciding medical

liability cases, jurors often focus on: 1. Communication by health care providers:

a. with the patient; b. with the patient’s family or loved ones;

and c. with other care providers.

2. The qualify and quantity of information

documented in the medical records. 3. The patient’s conduct.

The prevailing view is that the patient is equally responsible for the healthcare (s)he receives, including:

a. the extent of compliance with the orders

of physician(s);


12

b. the extent to follow up appointments are scheduled and kept; and

c. overall attention to personal health. E. Juror Perceptions That Drive Medical

Malpractice Damages Jury research indicates that juror are much more

likely to award extraordinary damages if there is evidence:

1. that the caregiver was hurried:

a. because (s)he had more pressing

business, or b. because (s)he buckled under pressure:

2. that hospital policies are designed to cut costs

at the expense of patient care; 3. that indicated tests were circumvented

(caregiver should “err on the side of caution”);

4. that attending physician failed to “cross-check” care provided by residents in a teaching hospital; and

5. that a caregiver was short, uncaring, or uncommunicative with the patient.

F. Questions to Identify Plaintiffs’ Jurors

In addition to the following generally applicable questions, similar questions specific to the circumstances and condition or disease on which the case is based should also be asked.

1. Have you ever received what you felt was

substandard care at a hospital, clinic or health care center?

2. Has a member of your family ever received what you felt was substandard care at a hospital, clinic or health care center?

3. Have you ever received care that was less than what you needed given the circumstances?

4. Has a member of your family ever received care that was less than what (s)he needed given the circumstances?

5. Have you ever been treated unfairly by a hospital or doctor in connection with your bill?

6. Has a member of your family ever been treated unfairly by a hospita l or doctor in connection with his or her bill?

7. Have you ever left the care of a doctor for another because you weren’t getting the care you needed given the circumstances?

8. Has a member of your family ever left the care of a doctor for another because (s)he

wasn’t getting the care (s)he needed given the circumstances?

9 Have you ever complained to a hospital, doctor, nurse, or department about care you were given?

10. Has a member of your family ever complained to a hospital, doctor, nurse, or department about care (s)he was given?

11. Have you ever observed a care provider give preferential treatment to someone at a hospital, clinic, or health care center?

12. Has a member of your family ever observed a care provider give preferential treatment to someone at a hospital, clinic, or health care center?

13. Have you ever had difficulty receiving care at a hospital, clinic, or health care center?

14. Has a member of your family ever had difficulty receiving care at a hospital, clinic, or health care center?

G. Some Common Misconceptions Regarding

Jurors 1. Jurors expect doctors to be right all the time. 2. Jurors think doctors care more about money

than they do about their patients. 3. Jurors think medicine is an exact science. 4. See Appendix "B" for graphs of responses

regarding other commonly held beliefs about the opinions of jurors.


13

APPENDIX "A" Name: Address: Age:

Educational background: Spouse’s educational background:

Do you believe that a doctor’s testimony is more creditable than other people’s just because he/she is a doctor? [] YES [] NO Please explain:

Occupation: Employer: Job Duties If retired or unemployed, state past occupations:

Which group do you identify with most? [] Executives [] Managers/Supervisors [] Workers

In general what are your feelings about lawsuits brought against doctors or other health care providers?

Marital Status: If married, spouse’s name: Spouse’s occupation: How many children do you have?

Have you, your spouse or close family member ever owned a business? [] YES [] NO If Yes, who? What kind of business?

Do you believe there should be caps on the amount of damages that can be awarded in lawsuits for (check all that apply): [] Mental anguish [] Disfigurement [] Pain and suffering

Have you or a family member ever been a defendant in a lawsuit? [] YES [] NO What type of case?

Have you or any family member ever worked in the medical field? [] YES [] NO If Yes, please explain:

If supported by evidence, how comfortable would you feel awarding millions of dollars to a family for their mental anguish? [] [] [] [] Please tell us why you feel this way?

If you’ve served on a jury before: Were you the presiding juror: (foreperson)?____ What was the verdict?_____________________ Did you agree with the verdict?_____________

Have you, a close friend or family member ever experienced complications with labor and/or delivery? [] YES [] NO If Yes, who? Please explain:

In general, what are your feelings about: A. Lawsuits asking for money? B. Awarding money for mental anguish?


14

Have you, any family members or friends ever worked for an insurance company or in the field of insurance claims? [] YES [] NO If YES, who, for what company(ies) and what was this person’s job?

Do you believe that doctors should not be sued because of what they do? [] YES [] NO Please explain:

Are you, any family member or friend a member of CALA (Citizens Against Lawsuit Abuse) or any other group (s) or organization(s) favoring tort reform? [] YES [] NO If YES, who and what group(s) or organization(s) and why did you or this person join?

Are you a: [] Republican [] Democrat [] Independent [] Other __________

If you or a loved one were harmed by medical malpractice would you file a lawsuit? [] YES [] NO

Are there any comments you wish to make or anything you think in important for us to know about you? Is there any reason you feel you would not be a good juror for this case?


15

APPENDIX "B"

Even the very best medical care cannot guarantee Even the very best medical care cannot guarantee a good outcome for a patient.a good outcome for a patient.

71

25

400

20

40

60

80

100

Strongly agree Somewhat Agree Somewhat Disagree Strongly disagree


16

Even the very best doctors make mistakes that are Even the very best doctors make mistakes that are excusable.excusable.

23

73

400

20

40

60

80

100


Doctors care more about money than caring for Doctors care more about money than caring for patients.patients.

4

33

46

17

0

20

40

60

80

100



17

Medical providers order fewer diagnostic tests Medical providers order fewer diagnostic tests today because they are pressured by insurance today because they are pressured by insurance

companies to keep costs down.companies to keep costs down.

25

46

1712

0

20

40

60

80

100


Hospitals and medical professionals will cover for Hospitals and medical professionals will cover for one anotherone another’’s mistakes.s mistakes.

27

41

23

9

0

20

40

60

80

100



18

What is your opinion about the status of medical What is your opinion about the status of medical care in the last 5 years? It has gotten...care in the last 5 years? It has gotten...

17

50

17 16

0

20

40

60

80

100

Much better Somewhat better Somewhat worse Much worse

What is your opinion about the status of obstetric What is your opinion about the status of obstetric medical care in the last 5 years? It has gotten...medical care in the last 5 years? It has gotten...

33

50

17

00

20

40

60

80

100

Much better Somewhat better Somewhat worse Much worse


19

TABLE OF AUTHORITIES

Cases

Babcock v. Northwest Memorial Hosp., 767 S.W. 2d 705, 706-708. ....................................................................... 4

Babcock v. Northwest Memorial Hosp., 767 S.W.2d 705, 705 (Tex. 1989). ............................................................. 3

Baker v. El Hafi, No. 2004 Tex. App. LEXIS 7882 (Corpus Christi Aug. 30, 2004, pet. filed). ................................. 2

Barrett v. State , 516 S.W.2d 181, 182 (Tex. Crim. App. 1974) ............................................................................... 6

Beavers v. Northrop Worldwide Aircraft Servs., Inc., 821 S.W. 2d 669, 673 (Tex. App.—Amarillo 1991, writ denied)...................................................................................................................................................................... 5

Benavides v. Soto, 893 S.W.2d 69 (Tex. App.—Corpus Christi 1994)..................................................................... 7

Boone v. Fisher, 1999 WL 33896852 (Tex. App.—Corpus Christi) ........................................................................ 4

Brentwood Financial Corp. v. Lamprecht, 736 S.W.2d 836 (Tex. App.—San Antonio 1987, writ ref'd n.r.e.) ........... 7

Brown v. Pittsburgh Corning Corp., 909 S.W.2d 101, 102 (Tex. App.—Houston [14 Dist.] 1995, no writ) ............... 5

Buls v. Fuselier, 55 S.W. 3d 204, 210 (Tex. App.—Texarkana 2001) ..................................................................... 4

Caldwell v. State, 818 S.W.2d 790, 793 (Tex. Crim. App. 1991) ............................................................................ 6

Campbell v. Campbell, 215 S.W.2d 134, 137 (Tex. Civ. App.—Dallas 1919, writ ref’d).......................................... 2

Carpenter v. Wyatt Const. Co., 501 S.W.2d 748, 750 (Tex. App.—Houston [14th Dist.] 1973, writ ref'd n.r.e.)......... 3

Carr v. Smith, 22 S.W. 3d 128, 139 (Tex. App.—Fort Worth 2000, writ denied) ..................................................... 7

Carter v. State, 272 S.W. 477 (1925) .................................................................................................................... 6

Cartmell v. State, 784 S.W. 2d 138, 139 (Tex. App.—Fort Worth 1990, no pet.); .................................................... 6

City of Hawkins v. E. B. Germany and Sons, 425 S.W.2d 23 (Tex. App.—Tyler 1968, writ ref'd n.r.e.).................... 7

City of San Antonio v. Willinger, 345 S.W. 2d 577, 578 (Tex. App.—San Antonio 1961, no writ). ........................... 5

Clark v. State , 608 S.W.2d 667, 669 (Tex. Crim. App. 1980) ................................................................................. 6

Clemments v. State, 940 S.W.2d 207, 209-101(Tex. App.-- San Antonio 1996, pet. ref'd) ........................................ 6

Coats v. Windham, 281 S.W.2d 207 (Tex. App.—Beaumont 1955); ....................................................................... 5

Compton v. Henrie, 364 S.W.2d 179, 182 (Tex. 1963). .......................................................................................... 1

Cortez v. HCII-San Antonio, Inc., 131 S.W.3d 113, 118 (pet. granted). (Oral argument in December 2004.).............. 2

De La Rosa v. State, 414 S.W.2d 668, 671 (Tex. Crim. App. 1967). ....................................................................... 3

De La Rosa v. State, 414 S.W.2d 668, 672 (Tex. Crim. App.1967) ......................................................................... 6

DeLeon v. State , 867 S.W. 2d 138, 140 (Tex. App.—Corpus Christi 1993 ,writ ref'd).; ............................................ 3

Dickson v. Burlington N.R.R., 730 S.W.2d 82, 85 (Tex.App.—Fort Worth 1987, writ ref'd n.r.e.)............................. 3

Elliott v. State, 255 S.W. 183 (Tex. 1922) (overruled in part on other grounds by, Knight v. State , 31 S.W.2d 1082 (Tex. 1930)).................................................................................................................................................... 3

Gant v. Dumas Glass & Mirror, Inc., 935 S.W.2d at 208; ...................................................................................... 4

Gant v. Dumas Glass and Mirror, Inc., 935 S.W.2d 202 (Tex. App.—Amarillo 1996). ............................................ 6

Gant v. Dumas Glass and Mirror, Inc., 935 S.W.2d 202, 208 (Tex. App.—Amarillo 1996, no writ) ......................... 2

Greenman v. City of Fort Worth , 308 S.W.2d 553 (Tex. App.—Fort Worth 1957, writ ref'd n.r.e.)........................... 3

Grey v. Wolf Drilling Co. v. Boutte, 2004 Tex. App. LEXIS 11194 (Houston [14th Dist.] December 14, 2004, no pet. h.). ................................................................................................................................................................. 2

Guerra v. Wal-Mart Stores, Inc., 943 S.W.2d 56 (Tex. App.—San Antonio 1997, writ den.).................................... 7










http://www.TexasBarCLE.com/CLE/PMCasemaker.asp?table=KY_caselaw&volume=215&edition=S.W.2d&page=134&id=57201_01





















20

Gulf States Util. Co. v. Reed, 659 S.W. 2d 849, 853 (Tex. App.—Houston [14th Dist.] 1983, writ ref'd n.r.e.)............ 4

Gum v. Schaefer, 683 S.W.2d 803, 808................................................................................................................. 3

Hallet v. Houston Northwest Medical Center, 689 S.W.2d 888, 890 (Tex. 1985). .................................................... 5

Houghton v. Port Terminal Railroad Ass’n, 999 S.W.2d 39, 46-47 (Tex. App.—Houston [14th Dist.] 1999, no pet)... 2

Johnson v. Reed, 464 S.W. 2d 689, 691 (Tex. App.—Dallas 1971, cert. denied)...................................................... 4

Johnson v. Reed, 464 S.W.2d 689 (Tex. App.—Dallas 1971, writ ref'd n.r.e. (disapproved of on other grounds by, Exxon Corp. v. Shuttlesworth , 800 S.W.2d 902 (Tex. App.—Houston [14th Dist.] 1990)).................................... 3

Julie A. Wright, Challenges for Cause due to Bias or Prejudice: The Blind Leading the Blind Down the Road of Disqualification, 46 BAYLOR L.REV. 825, 838 (1994). ................................................................................... 4

King v. Moberley, 301 S.W.2d 202 (Tex. App.—Eastland 1957) ............................................................................ 7

Lopez v. Southern Pac. Trans. Co., 847 S.W.2d 330, 333 (Tex. App.—El Paso 1993, no writ). ................................ 5

Lubbock Bus Co. v. Pearson, 277 S.W.2d 186, 190 (Tex. Civ. App.—San Antonio 1955, writ ref'd n.r.e.)................ 3

Mann v. Ramirez, 905 S.W.2d 275 (Tex. App.—San Antonio 1995, writ denied). ................................................... 7

Martinez v. City of Austin , 852 S.W.2d 71 (Tex. App.—Austin 1993, writ denied). ................................................. 7

McCarter v. State, 837 S.W. 2d 117, 118-121 (Tex. Crim. App. 1992);................................................................... 4

Mendoza v. Ranger Ins. Co., 753 S.W.2d 779 (Tex. App.—Fort Worth 1988, writ denied) ...................................... 7

Nunfio v. State, 808 S.W.2d 482, 484 (Tex. Crim. App.1991)................................................................................. 4

Ramirez v. Wood, 577 S.W.2d 278 (Tex. App.—Corpus Christi 1978).................................................................... 7

Ramirez v. Wood, 577 S.W.2d 278 (Tex. App—Corpus Christi 1978)..................................................................... 7

Ratliff v. State, 690 S.W. 2d 597 (Tex. Crim. App. 1985) ....................................................................................... 5

Ratliff v. State, 690 S.W.2d 597, 600 (Tex.Crim.App.1985) ................................................................................... 6

Sanchez v. Mica, 107 S.W.3d 13, 28 (Tex. App.—San Antonio 2002, judgment vacated in part) .............................. 2

Smith v. State , 513 S.W. 2d 823, 826 (Tex. Crim. App. 1974). ............................................................................... 3

Smith v. State , 703 S.W. 2d 641, 645 (Tex. Crim. App. 1985). ............................................................................... 6

Sosa v. Cardenas, 20 S.W.3d 8, 11 (Tex. App.—San Antonio 2000, no pet.)........................................................... 1

Speer v. Continental Oil Co., 586 S.W.2d 193 (Tex. App.—Eastland 1979, writ ref'd n.r.e.) .................................... 6

T.K.'s Video, Inc. v. State, 832 S.W.2d 174 (Tex. App.—Fort Worth 1992 pet. ref'd.).............................................. 3

TEX. GOV’T CODE ANN. § 62.102 ........................................................................................................................ 1

TEX. GOV’T CODE ANN. § 62.105 ........................................................................................................................ 1

TEX. GOV’T CODE ANN. §§ 62.101-62.113 ........................................................................................................... 1

Tex. R. Civ. P 228............................................................................................................................................... 6

TEX. R. CIV. P. 221..........................................................................................................................................1, 7

TEX. R. CIV. P. 227. ............................................................................................................................................ 1

TEX. R. CIV. P. 228. ............................................................................................................................................ 1

TEX. R. CIV. P. 230............................................................................................................................................. 1

TEX. R. CIV. P. 231. ............................................................................................................................................ 1

TEX. R. CIV. P. 232. ............................................................................................................................................ 1

TEX. R. CIV. P. 233. ............................................................................................................................................ 1

Tex. R. Civ. P. 547.............................................................................................................................................. 7



























21

Texas Dept. of Human Services v. Green, 855 S.W.2d 136 (Tex. App.—Austin 1993 writ den.). .............................. 7

Texas Employers Ins. Ass'n v. Loesch, 538 S.W. 2d 435, 442 (Tex. App.—Waco 1976, writ ref'd n.r.e.);.................. 4

Texas Employers Ins. Ass'n v. Noel, 269 S.W.2d 835, 842. (Tex. App.—Fort Worth 1954). ..................................... 5

Texas Gen. Indem. Co. v. Moreno, 638 S.W. 2d 908, 912 (Tex. App.—Houston [1st Dist.] 1982, no writ). ............... 5

Vasquez v. Hyundai Motor Co., 119 S.W.3d 848 (Tex. App.—San Antonio 2003, pet. granted). .............................. 2

Whitaker v. State, 653 S.W.2d 781 (Tex.Crim.App.1983) (en banc);....................................................................... 6

White v. Dennison, 752 S.W.2d 714, 717 (Tex. App.—Dallas 1988, writ denied) .................................................... 3

Wise v. City of Abilene, 141 S.W.2d 400 (Tex. App.—Eastland 1940, writ dism'd). ................................................. 3







