Early last month the Texas Supreme Court handed down an opinion changing the rule on rehabilitation of biased potential jurors. In Cortez v. HCCI-San Antonio, Inc., the Texas Supreme Court rejected the view that once a potential juror has expressed bias, further questioning is not permitted and the potential juror must be excused. Instead, the Court stated that if a potential juror expresses what appears to be bias, there is no reason to categorically prohibit further questioning that might show just the opposite or at least clarify the statement. Ultimately, the proper stopping point in efforts to rehabilitate a potential juror must be left to the sound discretion of the trial court.

In Cortez, a potential juror who had handled automobile claims as an insurance adjuster stated that his experience might give him preconceived notions, that he would feel bias, and that the defendant was starting out ahead. The plaintiff challenged the potential juror for cause, and the trial court denied the challenge. The Supreme Court upheld the trial court's decision, noting that the potential juror was rehabilitated despite the initial apparent bias.

The Court explained that an initial statement of bias does not preclude subsequent rehabilitation attempts. “If the initial apparent bias is genuine, further questioning should only reinforce the perception; if it is not, further questioning may prevent an impartial veniremember (potential juror) from being disqualified by mistake.

In Cortez, the Court noted that although the potential juror admitted having a better understanding of the defendant's side, his answers to the trial judge's questions revealed that any initial apparent bias he expressed was actually against lawsuit abuse. The potential juror stated he was willing to listen to all the evidence and to withhold judgment until the entire case had been presented. Many potential jurors have some sort of life experience that might impact their view of a case; we do not ask them to leave their knowledge and experience behind, but only to approach the evidence with an impartial and open mind. The veniremember here expressed willingness to do that. Any bias he did express was equivocal at most, which is not grounds for disqualification.

The Court also explained that a potential juror's statement that one side would be starting out ahead cannot be grounds for disqualification. The relevant inquiry is not where jurors start but where they are likely to end. An initial leaning is not disqualifying if it represents skepticism rather than unshakeable conviction. Moreover, where evidence and information about a case has been disclosed, asking which party is ahead may be an improper attempt to elicit a comment on the evidence which is impermissible. Such a question is only appropriate before any evidence or information about the case has been disclosed.