The Litigator’s Playbook:
Minding Your Manners/Engaging Your Jury

Jeri Kagel continues her advice on “good manners” during voir dire from our last issue.

The purpose here is to help you achieve your goals during voir dire: to learn about your potential jurors and uncover any biases and attitudes they may have to your case and its characters, and to begin to educate jurors as to your point of view. But you will not be able to accomplish these goals effectively unless you can build a rapport with jurors so they begin trusting you and what you have to say.

So, how to achieve these goals?

While the voir dire questions themselves are obviously important, I find that one of the most important ingredients in jury selection is how you, the litigator, conduct yourself during voir dire. Jurors’ perceptions of you may not win or lose your case, but if they begin to trust who you are and what you have to say, you will be countering many of the negative perceptions of lawyers that jurors bring with them into the courtroom. They may even begin to see you as someone to listen to rather than someone who “just wants to win.”

To that end, I present my proposed voir dire Code of Conduct that I believe would make Ms. Manners proud:

1. R-E-S-P-E-C-T! Tell about what it means to me! A respectful manner and an engaging – but not ingratiating – demeanor during voir dire help to prepare jurors to listen and relate to the story you tell in your opening statement, and to the questions you ask and answers you elicit during your direct and cross examinations.

2. If you listen, they will talk . . . and talk some more. You are more likely to be successful at all your voir dire goals if you behave in ways that encourage people to want to talk to you. Let the panel as a whole and individually know that their answers are important to you. Here are two traditionally accepted ways of showing interest:

a. Let the potential jurors know that you know them by using their names. If you have difficulty remembering names (or do not have someone with you to help you remember names), apologize and admit you have a problem remembering names. Demonstrating your own vulnerability and fallibility encourages them to do the same.

b. Let potential jurors know they matter, particularly by looking at them while you are interacting with them. This may prove challenging because you want to write down what they are saying, and you want to keep the pace moving so they don’t get bored and the judge doesn’t get impatient. But in order to get necessary information, you need for them to keep talking – to clarify an answer, react to a question on a different topic, or respond to a follow-up question. You encourage them to do so by engaging with them in a personal manner during voir dire.

3. Would you rather be invited or demanded? Do unto others as you would have them do onto you: fashion your questions as invitations! People in awkward situations, like your potential jurors, often do not want to stand out, nor do they want to be the center of attention. Instead of “picking on somebody,” make your questions more conversational in tone and inviting in substance.

a. Let them know they are not alone. Let your panel know that you are not trying to find the one person who thinks a certain way. Ask, “How many of you . . . ?” instead of, “Do any of you . . . ?” Likewise, ask, “Will those of you who believe . . . , please raise your hands?” instead of “Raise your hand if you believe . . .” Help them to sense themselves as having a socially acceptable answer by conveying that others may share their feelings.

b. Vary the style of your questioning to demonstrate your interest in the panel members. Begin some questions with, “Some people believe . . . while others believe . . . How many of you agree with the idea that . . .?” Instead of questions being the only things they hear from you, tell them more. For example, begin some questions with, “There are many issues in this case. I’m curious about your feelings about . . . ; how many of you . . .?” Or, “Mr. Smith answered my question about . . . saying that he thought . . . I’m wondering how many of you believe the same thing?”

c. Tell them about your own discomfort at “having to” ask some personal questions and tell them why you think them important to ask.

4. Use the old song “Getting to Know You” as your mantra and motto for voir dire. Getting to know someone means not being afraid to hear what he or she has to say. Better to know the answer before they are sitting as a juror. Yes, your opposing counsel may hear something that makes him/her want to strike the potential juror. Ask anyway. There are countless ways to rehabilitate answers or undermine assumptions resulting from answers. Check the Internet for some samples!

5. Ask about feelings. Levels of understanding begin with learning about the facts of people’s experiences, then to how they think about those experiences, and finally and more deeply to how they feel about those experiences. How did the experience affect them? Did it change how they felt about a particular situation? It can be risky to ask about feelings, but you will obtain so much more helpful information about your panel members.

6. Don’t forget “please” and “thank you!”

I hope these suggestions for minding your manners prove helpful in questioning your jury panels. But if you don’t find an answer to your voir dire manners question here, when in doubt, just remember how you needed to behave when you wanted that second date or your date’s family to like you. Using those standards should work every time.