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September/October 2005

KEEPING UP WITH...


Biased? Not Me

PBy Jocelyn Y. LaBove and Dimple Joseph

All litigators experience angst when deciding whether to challenge certain veniremembers. Each party wants the record to reflect a veniremember’s objectivity or the lack thereof, in the use of peremptory strikes, particularly where the trial court refuses to strike a potential juror for cause. Two recent Texas Supreme Court cases provide guidance for effective disqualification of veniremembers during voir dire.
In Cortez v. HCCI-San Antonio, Inc. 159 S.W.3d 87 (Tex. 2005), the Texas Supreme Court examined a plaintiff’s efforts to preserve error when he was forced to use a peremptory strike on an objectionable veniremember. Veniremember, Snider, who was an insurance adjuster, stated during voir dire that his work experience might give him “preconceived notions.” Snider elaborated that, “[he] would feel biased,” but could not state “anything for certain.” After, further questioning, Snider responded that he was “willing to try” to listen and decide the case on its merits. Based on these statements, Cortez moved to strike Snider for cause. The trial court denied the request. Cortez then used his last peremptory challenge to strike Snider.
On appeal, Cortez claimed that, had the trial court dismissed Snider for cause, he would have used his last peremptory strike on another allegedly biased juror. In response, the defendant contended that Cortez had waived error because he did not timely notify the trial court that a peremptory strike was used unnecessarily on Snider.
Following its earlier decision in Hallett v. Northwest Medical Center, 689 S.W.2d 888, 890 (Tex. 1985), the Cortez Court affirmed the intermediate appellate court’s conclusion that error was preserved since Cortez had given the trial court notice of his remaining objection to Snider before the jury was seated. The trial court’s refusal to strike Snider for cause was also upheld under an abuse of discretion standard. The Court reasoned that bias could not be established as a matter of law, from a juror who expresses a bias, but states the opposite, or at least clarifies his biased statement, after further questioning.
In El Hafi v. Baker, 164 S.W.3d 383 (Tex. 2005) the Texas Supreme Court underscored its Cortez holding and set out what constitutes bias sufficient to disqualify a juror for cause. The El Hafi court stated that the relevant inquiry when determining juror bias is not where the jurors start but where they are likely to end; holding that bias is disqualifying if it appears that the state of mind of the juror leads to the natural inference that he will not or did not act with impartiality.
El Hafi involved a medical malpractice case in which a veniremember, who was a defense attorney, was kept on the jury. Despite his assurance he would do his best to be objective, the veniremember twice revealed he would naturally relate to the defense because of his profession. The El Hafi Court held that the challenged veniremember’s statements taken as a whole reflected more of his attempt to “speak the truth” about his vocation as a defense attorney rather than any genuine bias.
Both cases hold that the appellate court’s review is of the totality of a challenged veniremember’s examination during voir dire and rehabilitation. Courts may discount a challenged veniremember’s better understanding of one [litigating] party’s side when the potential juror expresses a bias, but the record as a whole does not confirm the bias as a matter of law.

Jocelyn LaBove is board certified in Labor and Employment Law and is a Senior Assistant City Attorney in the Labor and Employment Section of the City of Houston Legal Department. Dimple Joseph is a third year law student at Oklahoma City University, School of Law.

 

Standards of Review For Legal Sufficiency Updated

By Fred A. Simpson


All In The City of Keller v. Wilson, ___ S.W.3d ___, Tex. 2005 (48 Tex. Sup. Ct. J. 848, June 10, 2005), Justice Scott Brister updates the well-known Texas Law Review article written by Justice Robert W. Calvert in 1960 (the “Calvert article”) which has been cited over 100 times by Texas courts during the last five years.
Although the issue in Keller was whether there was a showing at trial of an intentional governmental taking of property, the greater value of the dispositive decision is the analysis of the standard of review for legal sufficiency. The Supreme Court of Texas phrased the question this way, “Must an appellate court reviewing a verdict for legal sufficiency start by considering all the evidence or only part [of the evidence]?”
The intermediate appellate court in Keller made its legal sufficiency review by erroneously excluding certain evidence by applying the standard that “we are to consider only the evidence and inferences that tend to support the finding and disregard all evidence and inferences to the contrary.” By disregarding that particular evidence, the intermediate court missed the key point of the case: whether the defending municipality knew property was “taken” by flood damage that amounted to inverse condemnation.
The Court labeled the two prevailing statements of the methodology for determining legal sufficiency as the “exclusive standard,” being the one used by the lower court in this case, and the “inclusive standard,” which states that a reviewing court must consider “all of the evidence” in the light favorable to the verdict. The Court noted how the two standards have been used interchangeably over the years, disagreeing with named commentators who say the two standards are different.
The Court said the differences between the inclusive and exclusive standards are “more semantic than real,” “like a glass that is half-full or half-empty, both [standards] arrive at the same point regardless of where they start,” the rationale for those comments being that, under either standard, if the evidence allows only one inference, jurors should not disregard that evidence, but if they do, reviewing courts are not then justified in disregarding that same evidence just because it is contrary to the verdict.
The Supreme Court carefully explain-ed and harmonized the four familiar evidentiary scenarios presented in the Calvert article: (1) a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla, and (4) the evidence establishes conclusively the opposite of a vital fact. The Court then addressed “new claims and burdens of proof” that have arisen since the time the Calvert article was written, such as the elevated standards of proof and review under “clear and convincing” rules.
In further analysis, the Court showed how legal sufficiency tests should be the same for rulings on motions to take a case from the jury, such as motions for directed verdicts, and for j.n.o.v., and with some special considerations, to motions for summary judgment, including “no evidence” motions.
The conclusion of the decision is a standard of review for legal sufficiency to the effect that a reviewing court must view the evidence in the light favorable to the verdict, crediting favorable evidence if reasonable jurors could have done so, and disregarding contrary evidence unless reasonable jurors could not have disregarded that evidence.
Consistent with Keller, but in a decision issued one month later which actually does not cite Keller, is Diamond Shamrock Refining Co., L.P. v. Hall, __ S.W.3d __ (Tex. 2005); 48 Sup. Ct. J. 964 (July 8, 2005). Here the Supreme Court of Texas reversed and rendered a take nothing judgment in a worker’s gross negligence death case on grounds that there was no clear and convincing evidence that the employer knew of the extreme risks faced by the deceased employee but showed conscious indifference to his safety.

Of greatest import are the legal sufficiency standards used by the Court concerning clear and convincing evidence:

In a legal sufficiency review, a court should look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. To give appropriate deference to the factfinder’s conclusions and the role of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. This does not mean that a court must disregard all evidence that does not support the finding. Disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence.

"If after conducting its legal sufficiency review of the record evidence, a court determines that no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then that court must conclude that the evidence is legally insufficient."

Fred A. Simpson is a litigation partner at Jackson Walker L.L.P. He is an associate editor for The Houston Lawyer.

 

Government May Display Ten Commandments In a Secular,
Non-Divisive Manner


By Sam A. Mullin


The United States Supreme Court ruled on the constitutionality of governmental displays of the Ten Commandments in two narrow decisions, both dated June 27, 2005. The Court upheld a display of the Ten Commandments on the Texas State Capitol grounds, but disapproved of displays of the Ten Commandments in two county courthouses in Kentucky.
In McCreary County, Kentucky v. ACLU,
1 two Kentucky counties prominently displayed framed copies of the Ten Commandments in their respective courthouses. When the ACLU sued, the Counties expanded their displays to include additional historically important documents containing religious themes, explaining that elected officials have a duty to publicly acknowledge God as the source of America’s strength and direction.2 The District Court, using the “Lemon test”3 test, found the displays had no secular purpose and ordered their removal.4 After hiring new lawyers, the Counties responded by installing a replacement display entitled, “The Foundations of American Law and Government Display,” consisting of equal-sized framed copies of the Ten Command-ments, the Magna Carta, the Declaration of Independence, the Bill of Rights, the lyrics of the Star Spangled Banner, the Mayflower Compact, the National Motto, the Preamble to the Kentucky Constitution, and a picture of Lady Justice.5 The Counties’ officially declared the purpose for the new display was to educate the public and demonstrate the foundational role that the Ten Commandments and other historical documents played in American law and government.6
The Supreme Court in McCreary held that the government’s purpose in presenting the new display was of dispositive importance to an Establishment Clause
7 inquiry, and the history and context of the government’s actions were relevant in determining that purpose.8 The Supreme Court found that the Counties’ revised statement of purpose was presented only as a litigating position and, viewed in the context of the Counties’ earlier displays emphasizing a religious theme, the reasonable observer would not see a predominately secular purpose for the Counties’ new display.9
In Van Orden v. Perry,
10 a plurality composed of Chief Justice Rehnquist, Justices Scalia, Kennedy, and Thomas—all of whom dissented in McCreary—were joined by Justice Breyer (in judgment only) to hold that the Establishment Clause allows the display of a monument inscribed with the Ten Commandments on the Texas State Capitol grounds.11 The plurality’s opinion was driven by the “passive” nature of the monument, the Decalogue’s historical significance, and by the Nation’s history of religious traditions.12 The Court noted that Texas’ Capitol grounds contain 17 monuments and 21 historical markers commemorating the “people, ideals, and events that compose Texan identity” and that the Fraternal Order of Eagles had presented and paid the cost of erecting the monument, which stood 40 years without legal challenge.13
In a separate opinion, Justice Breyer, examining the history and context of how the text of the Ten Commandments was used, found the State intended the monument’s message of Texans’ historical moral ideals to predominate over the Decalogue’s religious significance.
14 The fact that the display stood 40 years without legal challenge—evidence of the monument’s non-divisive effect—was determinative in this “borderline case.”15

Endnotes
1. McCreary County, Ky. v. ACLU, No. 03-1693 (U.S. June 27, 2005). 2. Id., slip op. at 4-5. 3. Lemon v. Kurtzman, 403 U.S. 602 (1971). 4. McCreary County, No. 03-1693, slip op. at 5. 5. Id. at 6-7. 6. Id. at 8. 7. U.S. CONST. amend. I. 8. McCreary County, No. 03-1693, slip op. at 2. 9. Id. at 23. 10. Van Orden v. Perry, No. 03-1500 (U.S. June 27, 2005). 11. Id., slip op. at 1. 12. Id. at 6-7. 13. Id. at 1-2. 14. Id., slip op., at 4-5 (Breyer, J., concurring). 15. Id. at 12.

Sam A. Mullin practices complex business litigation with Dylewski & Associates, PC in Houston, Texas. Mullin graduated from South Texas College of Law in 2002. He authored The Place for Prayer in Public Policy: A Reevaluation of the Principles Underlying the Decision in Santa Fe Independent School District v. Doe, 44 S. TEX. L. REV. 555 (2003).


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