Litigator’s Playbook
Miss Manners Matters – So Do First Impressions

by Jeri Kagel, M.Ed., J.D.

Voir dire. Anglo-Norman derivation: voir (truth) + dire (speak), or
Voire dire. French derivation: “to speak the truth.”
Voir dire. Legal practice: question/answer.

Attorneys ask questions and veniremembers speak the truth. Based on this definition, the goal of voir dire should be obvious: to seek the truth. However, judges and many attorneys often have another goal for voir dire: to get it done quickly. But giving voir dire short shrift neglects many of the benefits that may be reaped from a thoughtful and well-executed voir dire. Three important goals, which have been discussed and debated over the years, include:

1. Educate: voir dire educates the jury about your case;
2. Eliminate: voir dire uncovers any bias, prejudice, or attitude that could hurt or help your case;
3. Engage: voir dire begins to establish rapport with the jurors.

By keeping these three goals in mind, you can start winning your case before speaking the first word in opening argument. Obviously, knowing what questions to ask is important. But what may be surprising is the importance, not just of what you ask, but how you ask. This month’s column focuses on how you should ask questions.

An attorney’s manner when he asks questions sets a tone that continues to resonate with jurors beyond voir dire and throughout the trial. As the old adage says, you’ve only got one shot to make a first impression. The most obvious mistake is the stereotypical brusque lawyer. But perhaps more common is the sensitive lawyer; the lawyer who doesn’t want to invade another’s privacy. I’ve seen seasoned attorneys who feel more awkward asking “personal” questions than the person who is answering.

“Miss Manners,” the well-known newspaper column penned by Judith Martin and begun in 1978, answered all kinds of questions about etiquette and politeness. Imagine the questions attorneys could submit about voir dire. “Dear Miss Manners, my case requires me to ask complete strangers some very sensitive questions that require rather personal information. What should I do?” Miss Manners invariably answered with wit and wisdom, reminding readers to remain resolutely polite in the face of awkwardness and adversity.

Like the advice given by Miss Manners, we find that to achieve any of the three goals of voir dire, an attorney must practice “good manners.” Good manners are like those we might use on a first date. Good manners indicate a genuine interest in your date and what she or he has to say. Your interest, coupled with continued good manners, encourages your date to relax, to feel safe in your company, and to readily share more about herself or himself. Doesn’t this sound like the same feelings and behavior you want to evoke from the panel during voir dire and your jurors throughout trial?

So, Dear Reader, always remember to be polite. Good manners smoothes the way for you to educate jurors, to identify and even curb negative biases and attitudes, and to engage the jurors to establish a rapport.

In next month’s Litigator’s Playbook, we will explore some specific ways of asking questions that help you accomplish your voir dire goals – and would make Miss Manners proud!