Podcasts

Is the Jury on Your Side? – Episode 41

By: Christina Marinakis, JD, PsyD, Adam Bloomberg & Teresa Barber

Dr. Christina Marinakis discusses the importance of storytelling for trial attorneys and expert witnesses and shares effective voir dire strategies. Listen above or read the interview transcript below. (Part 1 of 2; Originally recorded July 2021)


Hello and welcome to the IMS Insights Podcast. Today, we’re speaking with IMS Jury Consultant & Strategy Advisor Dr. Christina Marinakis on the importance of storytelling, voir dire, and how jurors evaluate expert witnesses. Dr. Marinakis has over 20 years of experience in jury research, jury study, and applied practice in law and psychology. In addition to analyzing jurors, Dr. Marinakis regularly assists counsel in developing and implementing trial themes throughout voir dire, opening statements, and witness testimony—evaluating thousands of mock jurors through focus groups, mock trials, shadow juries, and post-verdict interviews.

Teresa Barber:

So, Dr. Marinakis, thank you so much. Welcome and thank you so much for joining us today.

Dr. Marinakis:

Wonderful. Thank you for having me.

Teresa Barber:

So I wanted to jump into one question. I wanted to talk with you a little bit about how you first got interested in litigation and jury research. You’ve led such an accomplished career, Juris Doctorate, Psychology Doctorate. So what sparked your interest in litigation and jurors?

Dr. Marinakis:

When I was in undergrad, I really couldn’t make a decision on whether to go to medical school or to law school. I was always interested in psychology. I took a lot of psychology classes in high school and then in college as well, and I found that absolutely fascinating. So I was thinking about going into psychiatry at the time, but I also had a tendency to like to argue my positions. And I was always a logic thinker as a kid. I enjoyed doing logic games, logic puzzles for fun. And so I was really struggling with that decision. And I had met with an advisor at my undergraduate program, and he had recommended this six-year dual degree program that was out of Philadelphia. And you get the opportunity to attend classes towards your doctorate in psychology during the day, but then you would also attend law school at night.

Dr. Marinakis:

And so it’s a six-year program, which is a pretty good bang for your buck, given that a PhD program is five years in itself. And so, I thought that would buy me some extra time to decide which path I wanted to go. It wasn’t medical school and psychiatry, but it was psychology, and that was close enough. And then it was there that we had classes that talked about how you could integrate the two fields. And that’s where I first even learned that trial consultants even existed. And the jury consultant was a thing. And I thought that was really interesting to see how the interplay of law and psychology takes place in the courtroom and in the deliberation room. And so it’s funny, though, is after I got into that program, my mom was cleaning out our basement and found an essay that I had written in the third grade. And in that essay, I said that I either wanted to be an attorney or a psychologist when I grew up. So that was pretty amazing because now I get to do both. It’s pretty cool.

Teresa Barber:

That’s great. That’s very, very interesting. And I bet your mom was cracking up too, that you somehow navigated yourself to the perfectly perfect path.

Dr. Marinakis:

Right. Most kids want to be a ballerina or an astronaut, but I had different aspirations.

Teresa Barber:

I love it. That’s great. Thank you for sharing. Can you talk to us a little bit about what storytelling is in the context of litigation and why litigators should even care about storytelling?

Dr. Marinakis:

Absolutely. Storytelling is really the foundation of our philosophy and how we approach consulting for trials and especially helping the attorneys formulate their opening statements and closing arguments and weaving all of that testimony into a cohesive narrative because jurors, they think in stories, they don’t think like attorneys do. It’s not like a set of facts and a set of laws. Instead, they are thinking about how the case relates to their own lives in a way. So just like when you hear a story being read to you, you visualize things, you fill in the gaps with your own memory, and that’s exactly what jurors do. They fill it in with their own experiences. And so, in order to connect with jurors, you need to be able to arm those jurors to advocate on behalf of your client. And so, the jurors can’t just memorize a set of facts.

Dr. Marinakis:

They don’t have the mental capacity to do that. They aren’t lawyers. Most of them haven’t gone to school, and they’re not used to that sort of memorization, but in order for them to repeat your arguments, they can remember things better if those facts are weaved into a story. And in fact, there’s research out of Stanford that shows that when you read people a list of words, a hundred words, about 10 minutes later, the recall is only about 30% of those words. But if instead of reading a list of words, you weave those words into a story, then the recall boosts by about 70%. And so, weaving things into a story is a way to help jurors remember the evidence. And so, good trial lawyers are the ones who are able to take this complex mountain of evidence and weave it into a compelling story that’s going to resonate with their audience. That’s going to fit in with what the jurors already expect the world to be.

Dr. Marinakis:

And so, knowing who your audience is and then being able to connect with them from a storytelling standpoint are two of the keys to becoming a successful storyteller and a successful lawyer. Remember, jurors will never remember all of the evidence, but they’ll remember the themes, and they remember the general story and how that evidence makes them feel about who should win the case. And when you do that, they’re better able to argue for your position in deliberations.

Teresa Barber:

That’s fascinating. And I would imagine there’s implications for expert witnesses as well, who often have quite a bit of complexity behind what they’re trying to get across to the jury.

Dr. Marinakis:

Absolutely. And we hear feedback during post-trial interviews where jurors give the highest rating of experts who are able to just relate things in a way that they understand, give easy analogies, walk them through and teach them as if they were more of a teacher, as opposed to just testifying.

Teresa Barber:

Yeah. And you’re kind of hitting on what sound like some fundamentals and really how people, but especially how jurors learn to process information, remember, make decisions. Are there some fundamentals that you typically share with clients?

Dr. Marinakis:

Right, there’s learning the motivation and theories that are in that aspect of psychology also apply to jurors, and jurors are people. And all people require four basic steps to learn information. They need to have attention. They need to encode the information. Then they need to store it in their minds. And then they have to be able to retrieve that information at a later time. And that applies just to the situation that we have with jurors. You need to get jurors to pay attention and hear you out. That’s the first thing, get their attention. And so we recommend to our clients to use mixed media. So don’t just stick with a PowerPoint, but also use a Flip chart and use the ELMO, keep it interesting and keep yourself moving around the room. Also, with expert witnesses, if the court allows them to, we recommend they stand up, walk over to the Flip chart, use that to teach, and that really keeps people engaged. That’s the attention aspect of learning.

Dr. Marinakis:

Second, the jurors have to assimilate that information, or psychologists call it encoding, and in order to do that, they have to take the new information and incorporate it into their existing schema. People have an idea of what they expect the world to be and their experiences, that’s how they see the world. And the information you give them has to fit into that. If you give them information that is inconsistent with their experiences, it’s a lot more difficult for them to assimilate that information. So to assimilate that, we also recommend using themes and themes using colloquial phrases or alliteration, things that are going to make them more memorable, helps jurors encode that into their own situation. Using analogies is another way to help jurors encode it into their existing schema.

Dr. Marinakis:

Then third, you need jurors to hold that information. That’s the storage aspect, and in a trial, that could be days, weeks, or even months that the jurors have to store this information. That again is where themes come in handy because those themes are going to stick in their mind, even when the evidence doesn’t, as we talked about earlier. And certainly, their notes are very helpful, but jurors are more likely to write down short phrases in their notes than to write down everything, and themes can help you do that. Also, giving the exhibit numbers to help jurors so they can go back to that helps them store that information and act as a reminder of what they were thinking at the time. And then the last piece is the recall retrieval. And you need jurors to not only remember what you said, but they have to be able to repeat it. And that’s really key for making your arguments to the jury because jurors don’t talk like lawyers. They don’t use the same vocabulary, and they don’t use the same sentence structure. So you have to be able to relate to the jurors in a way that they can repeat those terms.

Dr. Marinakis:

So you may have very complex evidence, but you need to drill it down to a simple phrase, a simple phrase that jurors will actually say, and that’s one of the reasons why I like alliterative themes, the rule of threes, and colloquial phrases as themes because jurors already say those things. And we know that they’re more likely to repeat those things because they’re familiar with those phrases. So I like using rhythm and rhyming, the most memorable theme of all time, right: “If the glove don’t fit, you must acquit.” Everybody remembers that. It’s a little cheesy because they’re rhyming. So I might not recommend such distinct rhyming, but using alliteration can help you do the same thing, but with more subtlety.

Teresa Barber:

Could you talk to us a little bit about voir dire, and are there any missed opportunities that you tend to see litigators making, attorneys making, heading into voir dire?

Dr. Marinakis:

Yeah. Lawyers are ingrained to advocate on behalf of their clients. That’s what they do. And it’s very difficult to turn that off. And in voir dire, the goal is to identify the bad jurors, so that you can get them kicked from the panel and hide your good ones so that they don’t get challenged for cause or so that opposing counsel doesn’t strike them from the panel. And in order to do that, it’s a bit counterintuitive. You don’t want to advocate for your client during voir dire. And in fact, you want to put out your bad facts of the case, because you need to identify those jurors who are going to look at those facts and never be able to get past them. And so what we see often is that attorneys want to make a good impression and for good reasons. I understand wanting to make that first good impression, but first impressions are actually very limited.

Dr. Marinakis:

First impressions are only important when you only have a very limited opportunity to spend time with people. When you have several days, several weeks, or months, the first impressions actually mean very little, and jurors will form their impressions of you over the length of the trial. And by the time you get to deliberations, which is that the judgment that you want to influence what happened during voir dire is such a far distant memory to them. It’s not going to have an impact. So you’re better off using that time during voir dire not to pre-condition on your themes, but to take that time to identify the bad jurors and get them removed from the panel. We just often see attorneys doing things like asking jurors to commit to follow the law. Will you commit that you won’t allow sympathy to affect your judgment? Well, jurors don’t really expect at that moment in time that they’re going to end up on the jury.

Dr. Marinakis:

We’ve all seen when a jury gets sat, and you yell the names out, the people are super surprised that they made it onto the jury. So when they’re answering your questions, they don’t really have any context in mind. They don’t even know what they’re trying to set aside. They haven’t seen the evidence. They don’t know what the pictures look like. It’s easy to say that you can set aside sympathy when you haven’t seen the evidence that’s going to make it sympathetic. So spend your time instead on identifying jurors by putting out the bad information, seeing how jurors think about that information and who’s going to have difficulty siding with your client because of that. So for jurors, you’re also not going to change their beliefs. You see so many lawyers that want to try to drill in their themes during opening statements and convince jurors to believe that their client is different, you know .

Dr. Marinakis:

Instead of saying who thinks corporations put profits above safety, you would acknowledge that not all corporations do that, and there’s some very good corporations out there because they’re trying to defend their client, but you’re not going to change a juror’s views about corporations in those five minutes. Juror’s views have been shaped their entire lives, since they were young children. And it’s hard enough to change people’s views when you have evidence to support that; you’re not going to change views just based on the questions that you’re asking in voir dire. So instead, identify the people that have those negative views and just instead of trying to convince them during voir dire, get them off your panel. Start with the jury that’s already on your side.

Teresa Barber:

So can you tell us a little bit, I want to spin the talk from jurors to how jurors tend to evaluate expert witnesses. What do they look for?

Dr. Marinakis:

Confidence certainly is important. Confidence without being cocky. So jurors want to see that an expert witness is knowledgeable about their subject matter but is also willing to concede when they don’t know things or when things are outside of their expertise. Nobody likes a know-it-all. So if experts stick in their lane and show confidence in and belief in what they’re saying, but also giving, acknowledging where there might be some differences in opinion within the industry or the state of the science is uncertain. Acknowledging those things makes the witness ultimately more credible and more trustworthy. And then communication is the other aspect. So I say confidence and communication. There’s that alliterative theme for you. Confidence and communication are key for expert witnesses. Expert witnesses are so knowledgeable about their subject matter that sometimes they have difficulty translating that into juror vernacular. Their peers, their colleagues, are usually on the same educational level and the same experiences they do. And they have difficulty relating to different people who don’t have those experiences, who maybe don’t have a college education at all.

Dr. Marinakis:

So being able to communicate complex ideas, as if you’re teaching a high school class or even a family member. You’re teaching your elderly mother about this new subject matter; how would you explain it to that person? Walk them through the steps, use visual aids if possible, or demonstratives, videos. So all of those things, having that clear communication and being able to tell it in a story format, if you can, is certainly a better way to connect with jurors. And so, to be trustworthy, you need to be confident without being condescending, admit your limitations, but also show consistency between direct and cross examination.

Dr. Marinakis:

And that’s the other thing that we hear jurors say is that “the witness was an expert witness who was great,” when their attorney was asking the question, but totally unraveled or became combative when they were on cross examination, which caused us to question their credibility. Jurors want to see the same person, no matter who’s asking the questions. And if you have that consistency, you have that credibility. So now we’ve got confidence, communication, and consistency are key.

Teresa Barber:

Very interesting when you think about some of the principles you talked about too and how those translate, how people process information, how they retain information, how they encode it to their normal, what they’re familiar with, what they’re accustomed to when you translate that into the role of an expert in a trial.

Dr. Marinakis:

Absolutely.


Thank you to Dr. Christina Marinakis for speaking with us today, and a special thanks to our listeners.

At IMS, we’re trusted to deliver consulting services to the most influential global law firms early with pre-suit and investigation services, then in litigation during discovery, arbitration, and trial. It’s been our privilege to serve our clients on more than 20,000 cases and over 2,000 trials. Be sure to subscribe to our podcast and join us next time on the IMS Insights Podcast.


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