Sidley Austin Partner Jennifer Saulino joins IMS Jury Consulting & Strategy Advisor Dr. Christina Marinakis to discuss their work on a recent product liability case. They also share insights on the goals of jury research, voir dire and jury selection strategies, rural and metro venue considerations, cross-examination, and closing arguments.
Jennifer Saulino is a seasoned trial lawyer who specializes in complex commercial disputes, product liability, and white-collar crimes. Dr. Christina Marinakis has more than 20 years of experience in jury research, jury study, and applied practice in law and psychology.
Find the IMS Insights Podcast on YouTube or your favorite listening platform, and don’t forget to subscribe. Visit our website for more podcasts and articles featuring top litigators, consultants, and industry experts.
IMS has delivered strategic litigation consulting and expert witness services to leading global law firms and Fortune 500 companies for more than 30 years, in more than 43,000 cases. IMS consultants become an extension of your legal team from pre-suit investigation services to discovery and then on to arbitration and trial. Learn more at expertservices.com.
Sidley Austin Partner Jennifer Saulino joins IMS Jury Consulting & Strategy Advisor Dr. Christina Marinakis to discuss their work on a recent product liability case. They also share insights on the goals of jury research, voir dire and jury selection strategies, rural and metro venue considerations, cross-examination, and closing arguments.
Jennifer Saulino is a seasoned trial lawyer who specializes in complex commercial disputes, product liability, and white-collar crimes. Dr. Christina Marinakis has more than 20 years of experience in jury research, jury study, and applied practice in law and psychology.
Find the IMS Insights Podcast on YouTube or your favorite listening platform, and don’t forget to subscribe. Visit our website for more podcasts and articles featuring top litigators, consultants, and industry experts.
IMS has delivered strategic litigation consulting and expert witness services to leading global law firms and Fortune 500 companies for more than 30 years, in more than 43,000 cases. IMS consultants become an extension of your legal team from pre-suit investigation services to discovery and then on to arbitration and trial. Learn more at expertservices.com.
Hello, and welcome to the IMS Insights Podcast. I’m your host, Adam Bloomberg. Today we’re speaking with Sidley Austin partner Jennifer Saulino, who specializes in complex commercial disputes, product liability, and white-collar crimes. Joining her is IMS Jury Consulting & Strategy Advisor Dr. Christina Marinakis, who has more than 20 years of experience in jury research, jury study, and applied practice in law and psychology.
Our guests will discuss their work together on a recent product liability case, where they will share insights on the goals of jury research, voir dire and jury selection strategies, venue considerations, cross-examination, and closing arguments. If you are listening only and would like to watch the video version, please visit our YouTube channel.
Adam Bloomberg:
Thank you, Jennifer and Christina, for joining us today. At IMS we often talk about how we like to become an extension of a client's trial team from beginning to end, when we can. Now, you both recently partnered on a product liability case involving a biochemical company. You started with early pre-trial research and then ultimately took the case to trial, which resulted in a defense verdict, congratulations.
Jennifer Saulino:
Thank you.
Adam Bloomberg:
That had to be challenging in a lot of different ways. Jennifer, when you decided on a mock trial, what were the things, what were the goals that you wanted to accomplish?
Jennifer Saulino:
Sure. The goals, in any mock trial I think, are to learn about the jurors in the local area where you're going to be. And what I mean by that is, even for cases where a similar type of case has been tried in other jurisdictions, it's always important to learn what the local folks in that area are going to hear when you say something or when you show them something. And similarly, it's also important to learn whether there are certain folks in the local area that might respond differently, either more positively or more negatively to your client. And I think the most important piece in any jury exercise leading up to jury selection and trial is to find out who those jurors might be in that jurisdiction, who would be really bad to be jurors on the case.
Adam Bloomberg:
So, Christina, I know that you work on these sorts of cases all over the United States, sometimes several a week. In cases like this, who's the ideal juror and maybe who are ones you want to avoid?
Christina Marinakis:
Yeah, that the latter is really the real question, because you can't get to choose who goes on a jury, you can only choose who you get rid of. So, while we might have our ideal juror in mind, in the end, it's always about identifying the more riskier jurors and trying to get them off the panel. So, in cases that you're representing a big company, one of the most predictive things is people that have anti-corporate beliefs. So that's one of the go-to questions is feelings about corporations, distrust of corporations. In cases where you're relying on regulatory bodies, say you've got a product that's been approved by the EPA or the FDA, it's also important to identify people that are mistrustful of government organizations and agencies, who feel like those agencies are in the pockets of the big companies. And so, you're asking a lot of questions that go to distrust of big companies, of the government, and then also health concerns. So, we do a lot of cases that involve toxic tort, allegations of cancer causation. And so people who are generally over-concerned about cancer, who only eat organic food, who avoid saccharin and red dye number five, those are the people that are ultra-sensitive to health issues and more likely to feel like this product, even if it has a possibility of causing cancer, are more likely to find liability. So, you want to identify those jurors and get them off the panel.
Adam Bloomberg:
Yeah. Now, this test This test was pretty unique in that you conducted a voir dire in the mock trial setting. Can you talk about why you both decided on that approach?
Jennifer Saulino:
Sure. So, I think the easiest answer to that question is: it's really good practice. And I say that because even seasoned trial lawyers will tell you we never get enough practice in jury selection. These days many judges will not allow extensive voir dire, those who do, those cases are sort of fewer and further between. And so, the opportunity to get in front of a group of people and practice asking those questions and learning how to move from one juror to another politely so that you don't offend the juror you were talking to, but have the opportunity to talk to more people is a skill and it's a skill that gets better with practice and so this is one of the ways to do that.
Adam Bloomberg:
Mm hmm. So, yep. Christina, do you have anything to add?
Christina Marinakis:
You know, so attorneys, you can practice your opening statement, your closing argument, you even have an idea when you're questioning a witness what the witness is going to say, approximately. But with a juror, you never know what's going to come out of their mouth. So, it is a really unique skill to be able to think off the cuff, to come up with those follow-up questions, not knowing what's going to come out of that juror's mouth, and then also to try to lead that juror down the path that either is going to lead them to admit that they can't be fair, if that’s a juror you want off, or to try to rehabilitate the juror and get them to say they can be fair. So, there's a little bit of trying to use particular language to get the jurors to do what you want them to do.
Jennifer Saulino:
What Christina and I did with it was, not just practice in front of the actual jurors, but she then took the video that was taken during the time that I was doing the practice voir dire, and she went through and analyzed the video and then sat with me and talked to me about how it how particular questions worked, how I might have used them differently, how I might have been a little more efficient in moving from one juror to another. And I found those lessons to be incredibly helpful when we got in front of the real jury.
Adam Bloomberg:
Well, let me ask, Jennifer. So how would you answer that question in a multi-plaintiff case?
Jennifer Saulino:
So, I think that I think the question really is the same in any case. It's always going to be helpful to practice voir dire. In a multi-plaintiff case, the things that you need to sort of figure out with the jurors become a little more complex because you have more than one injured person. And so the more than one injured person means more than one particular issues with that person that you want to make sure are not going to trigger in any particular juror. And so, figuring out how to be efficient with multiple plaintiffs, getting out the questions that you need in a group of people in a potentially short period of time becomes even more important to practice it.
Adam Bloomberg:
Alright. So maybe this is for both of you. Looking back in this case, what are some of the other benefits of conducting a mock trial for this sort of case?
Christina Marinakis:
I could chime in. I think one thing that Jennifer touched on is getting the local opinions and sometimes they can surprise you. So, you need to learn about what the media exposure is in that area. And so in some cases, you may have higher than normal plaintiff advertising. And so you need to understand what have people heard in the news, what billboards have they seen, what pre-ideas do they have about the case coming in? Or in the case of a defendant who might be local to that area, what opinions do people have? Is that company a good employer, a bad employer? What is their reputation in the community? And so that's particularly important to learn that information while you're doing the mock.
And I think the second piece is coming up with the themes, because the best themes of your case are going to come right from the jurors’ mouths. So when we're doing any type of jury research, I'm there jotting down the catch phrases that come out of the jurors. What is the language that they're using to describe the case? That way, we can try to adopt their language and speak to them in their own terms instead of in lawyer speak.
Jennifer Saulino:
To add to it, I think some of the particular things you learn, you might make assumptions in various places around the country, but until you actually hear the jurors talking, it's hard to know how that will affect how they see your case. So, for instance, levels of belief about personal responsibility and taking ownership for one's own actions change around the country. And they're different in different places and they're different with different products. Finding out whether people actually know about the product, for instance, in a product liability case – how much they know about it, whether they’ve ever used it. In some jurisdictions, in some areas, it might surprise you to know that they know more or less about it and have their own views about it. And so that is also part of what comes out of this.
Christina Marinakis:
So, I'm always thinking the end game in mind is to come up with the jury profile, too. So, while the attorneys are focused on improving their case and developing and strengthening their arguments, I always have the jury selection in mind. So coming up with those juror profiles and being able to run that statistical analysis to figure out, not just what are the characteristics of plaintiff jurors versus defense jurors, but what are the most predictive, because we only have a certain amount of time. So, we really need to focus in on what are the top ten questions that are going to be the most predictive of our most dangerous jurors so that we can focus on asking those questions of at least everybody that's in the strike zone.
Adam Bloomberg:
All right. So we're right where I wanted to go: in the trial setting. Jennifer, can you talk a little bit about your strategy for voir dire?
Jennifer Saulino:
Well, my strategy for voir dire is, it's different in each case and partly driven by how much time the judge allows and how much the judge will allow you to do before you actually get into the courtroom. So, some judges will allow, for instance, written questionnaires ahead of time, and that can give you a lot of information and really provide a jumping-off point. And the strategy then is to find out, from that jumping-off point, the things that you need to follow up on. In other cases, judges might not have a written questionnaire. And so then the strategy is to start off with sort of the broader questions and figure out who's in which category and then use that as the jumping-off point.
But my strategy sort of in a nutshell, is to identify those jurors who will end up in the zone of people who might end up in the jury box, who could be really bad for our case, and make sure that we know who they are so that we can figure out how to use our strikes.
Christina Marinakis:
In jurisdictions where you have a little bit more time, like this last one that I did with Jennifer, the goal was really twofold in that, primarily identify the bad jurors and get them off, but when you have a little bit more time, there's also a little bit of opportunity to do some preconditioning on things, especially when it's a high profile case where jurors may have seen advertisements. So I thought one thing that Jennifer did really well was, you know, right out of the gate targeted the people we needed off for cause, get those people off for cause, and then at the end of the voir dire, I was able to follow up with some questions that were, you know, sort of were digs on the plaintiff lawyers, digs into the plaintiff lawyer advertising, so that when the voir dire ended, the jurors left feeling like skeptical of the plaintiff's case.
Adam Bloomberg:
So, Jennifer, what sort of legal research do you do in preparation for jury selection?
Jennifer Saulino:
So I think this is incredibly key to a successful jury selection. So I want to know the entire, sort of, scope of the law in that local jurisdiction about how judges make decisions about strikes for cause and then other types of strikes, but most importantly, strikes for cause, because strikes for cause are strikes that don't count against my strikes.
So what I want to know is what can I learn from the, from the case law about what in some jurisdictions there are magic words that you need to get the jurors to say. In other jurisdictions, they're sort of a here's what they need to say, but then you need to follow up in this way in order to protect against rehabilitation. And then I want to see what has been approved as rehabilitation. So the opposite, when I think that either the plaintiff lawyer or the judge is about to strike somebody we like, I want to know how to rehabilitate them, so the research is incredibly valuable and important. And I make sure to have all of the updated research in a cheat sheet, sort of, ready for me at the table as we're going.
Christina Marinakis:
Right. I find that's a step that is often overlooked. I think there are many attorneys that just assume that the standard is can you be fair and impartial, can you follow the law. But there really are nuances that are different from state to state. And then, as Jennifer mentioned, there's case law that interprets that. So, you know, in one state, I'll try to be fair is good enough, whereas in another state it may not be. So, you know, we came to these jury selections with, as Jennifer said, a cheat sheet so that we argued the cause challenges, Jennifer was able to cite case law to say according to this case law, I'll try is not good enough. And then the judges then were able, sort of, their hands were tied, because usually the judges have quite wide discretion when it comes to court challenges, but if you pin them into the exact language of a case law, they feel a little bit more restrained in what they can do. And you're more likely to get those court challenges granted.
Adam Bloomberg:
So Jennifer, did you come across any challenges in this case during jury selection?
Jennifer Saulino:
Well, there's always challenges in jury selection. And this case was no different than most. What we were just talking about is sort of the biggest challenge, and that's figuring out how to make clear that the folks that you know will be sort of worst for your case and your client because of biases that they have that you can make that clear to the judge in a way that sort of gets over the threshold of the standard of having to strike them. And then the flip side is rehabilitating the folks that you really don't want to lose. And so that's always a challenge. And that didn't change here. In addition to that, it's always challenging to figure out how to talk to these folks in a way that's engaging. This is your first opportunity to get to know them. Those who stay on the jury will remember the conversations that you've had.
And so you don't want to put anyone off. You don't want to offend anyone. But at the same time, there's always a few that want to talk more than others. And it's tricky to move between the ones who want to talk and the ones who don't want to talk because the ones who want to talk, you don't want to offend them, but then you also don't want to offend those who really don't want to talk by making them talk. So that's always a tricky balance. And that was no different here.
Adam Bloomberg:
Well, so this one's for both of you. Do you have any suggestions for what to do when you have limited time during jury selection?
Jennifer Saulino:
Sure. I think from my perspective, it's to learn as much as you possibly can learn in advance, to work with the court to see whether you can at least get the list of names in advance or if there's a possibility of an advance questionnaire. Whatever you can do to cut down on what you need to do in the room. And then when you get into the room, I think the key there, and I'm sure Christina will elaborate more on this, is to work with a jury consultant that you really trust who has worked with you in the mock trial to figure out these are the key issues that you need to get to and just get to them right away.
Christina Marinakis:
Yeah. The other thing that's a bit of a skill that Jennifer also touched on about focusing on certain individuals is you really need to know where your strike zone is. So, if you've got a panel of 60 jurors, it's not likely you are going to get past juror number 40, but you need to know what the strike zone is. So, when I'm there, I want Jennifer to focus on connecting with the jurors and asking the questions. But I'm focusing on where the strike zone is. So, we know the number of jurors that are going to be sat. We know the number of strikes we're going to have. And I can anticipate the number of likely hardships and cause challenges based off of the questionnaire.
So I know that she needs to question at least to juror number 34 or whatever, so then when juror number 60 raised their hand and starts talking, Jennifer has to figure out a way to get that juror to be quiet almost immediately, because we just don't want to waste any time on these later jurors. So one thing I think that she did very well was just to say, you know, “Juror 67, I hear you, we'll get back to you in a moment,” and move on and just and never get back to that juror. But you have to do it politely so that you're not offending anybody, but really focus on the people on the front, because that's all the people that matter.
Jennifer Saulino:
One thing that really, really helps in such a situation is, and I say this again, to have a jury consultant that you trust so that for instance, so my brain doesn't have to work on the half that she's working on. So she can just sort of slip me a note and say, you don't you know, once we get to a certain place with cause strikes, you don't need to go past 42. And that way I know, “okay, well, I'm going to get juror 67 to stop talking now because I need to move forward”.
Adam Bloomberg:
Yeah. So let me ask you this, Jennifer. How do you go about introducing your jury consultant in the courtroom? Do you introduce that person?
Jennifer Saulino:
Well, I never like jurors to have mystery. I don't want them to make assumptions about things. So I do introduce the person, but I don't introduce them as a jury consultant. So the way that I would typically do it is to say, you know, “This is Christina Marinakis. She's a colleague of mine who's helping me stay organized today,” and just leave it at that. I think, I think I said in the last trial, because we had we had all sorts of charts with sticky notes and such. And I said, “Actually, she's here to help me with my arts and crafts project”. And the jury thought that was amusing, but I don't refer to them as jury consultants.
Adam Bloomberg:
A little plug here. Christina, you wrote an article, “How Should I Introduce My Jury Consultant at Trial?” What do you typically recommend to your clients?
Christina Marinakis:
Exactly what Jennifer did is to say that the consultant is here to assist, here to help them stay organized, here to take notes for me. Just that you're here says, usually when you say something like that, the jurors just assume that you're a paralegal. Especially when I was younger, people assumed that I was just an assistant.
But the worst thing you do is to ignore me, right? If you are just ignored, you introduce every other person to the table. You ignore the person sitting next to you. And now the jurors start to wonder, and they may say, you know, I've had cases where they I've talked to the jurors afterwards and they said, “Well, he introduced all the males at the table, but not the lone female or not the younger person, the assistant.” So it could be offensive to people, if you're skipping over someone, they may make assumption of why you're skipping over that person.
Adam Bloomberg:
Mm hmm. So, Jennifer, I guess this would be both of you. You're involved in cases all over the United States in all sorts of venues. When you're in a small-town venue, do you approach the jury selection differently than you would, say, if you're in a large metropolitan area?
Jennifer Saulino:
So I think conceptually, no, but practically yes. And what I mean by that is conceptually, the way that I approach it is to figure out ahead of time, hopefully through a mock trial or jury research, which jurors in that jurisdiction are going to be problematic for us and why, and then focus in on that. And that's no different in a big city or in a small town. But I think practically speaking, the way that plays out can be very interesting in different kinds of jurisdictions. In a bigger city, your jurors tend to be more diverse. They tend to have more diverse attitudes. In a smaller town, you start to see that there’s sort of a lot of nodding while people are talking and that they have very similar experiences. They will remember, for instance, something that happened 20 years ago in the town that they all remember that maybe is somehow analogous to something that's happening in your case. So those are the kinds of things you want to sort of figure out ahead of time.
And the other thing is, in a small town, I once worked in a small jurisdiction, it was actually an island where we had to be really careful about the work that we did ahead of time, and even showing our faces ahead of time, because it was so small that we really ran the risk of people actually talking to each other and knowing ahead of time who we were and that we were there trying to do some jury research. So there's all sorts of local considerations that you have to think about. But at the end of the day, it's really all about just figuring out what locally is the most important thing to know about your case.
Christina Marinakis:
That's absolutely right. If we're doing jury research in a smaller jurisdiction, most likely we're going to have to find a surrogate. And so we would try to find an area where people are not going to be talking amongst themselves that is demographically similar to where we're going to end up, but also keeping local concerns in mind. So, you know, recently I did a mock where the jurors commented that there was a chemical spill 30 years ago, and that reminded them of this particular case. If we had done that in a surrogate, we may not have found that out because we wouldn't have that local attitude. So you almost have to do two types of research. One is going to be jury research in a surrogate, and then other is more just like library research of what's going on in the town to see if there's any differences between that jurisdiction and your surrogate.
Adam Bloomberg:
Christina, you relate the strategy and psychology of jury selection to a chess game. I've heard you say that several times. What do you mean by that?
Christina Marinakis:
It's really trying to figure out when you make a strike, what is the consequence of that strike? Who is going to be moving into that seat? And then you also have to anticipate the strikes that the other side is going to make. So, if you know you have a certain number of strikes, you're going to, you really have to think through of what your strike strategy will be and what the plaintiff's strike strategy is going to be, and then try to anticipate what that means for your ultimate jury, because you don't want to make strikes that are just going to put worse jurors on your panel. You always have to have who’s coming up, and are they likely to be dismissed for cause or hardship because that's going to change who's going to be ultimately in the box. So you really have to plan out in advance what the consequence of your potential strikes are. And if I do this, what are plaintiffs likely to do? And if they do that, what happens? And if they don't do that, what happens? And just always be thinking a couple of steps ahead.
Adam Bloomberg:
Switch gears a little bit. One of the tools for your strategy in jury selection is social media searches on the panel. Jennifer, I'm curious to know, can you tell us a little bit about your experience with conducting social media searches, and softball question, have you found them to be useful?
Jennifer Saulino:
So absolutely I have found them to be useful, and I've used them in a couple, in very, a number of different kinds of cases. But the first and most important thing as a lawyer who will be conducting voir dire in any judge's courtroom is to know whether the judge has views on and/or rules about using social media. And the biggest mistake that I think a lawyer can make is not checking that in the local jurisdiction where they are and in the local courtroom where they are, because it can change judge to judge. So and there are some judges that feel very strongly about not allowing any kind of research online about the jurors. And that is the most important thing to know ahead of time.
Now, once that threshold is met, if it is a judge who does allow it, you can get incredibly valuable information from social media research and from online research. You can see things that folks might not necessarily talk about publicly, but if you know them ahead of time, there are things that, they are then things that you can find ways to bring up during the voir dire to follow up on. And that helps you sort of build your profile ahead of time so that you go in with a better understanding of the group of people that you're going to talk to. In the case that I recently did with Christina, we had a good deal of research, and she used it quite effectively to help me understand what we already knew about some folks that were sort of coming up that we needed to talk to and what we still needed to find out about them.
Adam Bloomberg:
Christina, I know you do this several times a month, sometimes several times a week. What's the process for how the jury consulting team conducts these social media searches?
Christina Marinakis:
Yeah, I think there's a misbelief, often, that you can't do it very quickly. A lot of times clients will say, “Well, I don't get the list of names until the morning of and so we don't have time to do research”. But when you've got a lot of people to help, it can be done. And so usually what we do is set up a shared document with our office, a shared Excel on Teams or whatnot. And that way we can immediately enter the names of the jurors and their basic demographic information. And back at the office, each searcher can take a name and search that person.
And we've got 15 searchers, that means within an hour we've got a huge dossier on the first 15 jurors. And by lunchtime we've got all 45 jurors done. So it can be done very quickly. And then the people back at the office can also show me a picture real quick and say, “Is this the right person?” And I can look, yes, that's the right person or no, that's not the right person. There's a different Jane Smith out there. This one is blonde with short hair. And so I can communicate directly with them as the jury selection is happening, to make sure we're finding the right people.
And what I found incredibly helpful is, you know, in 2020, people had a lot of time on their hands. So people who were not normally posting on social media were posting more than usual during 2020. And there was a lot of things going on during that year where you could find out people's political beliefs or whether they are big on personal responsibility or whether they had entitlement attitudes. So our searchers are sort of keyed in to as soon as you find the jurors page, scroll back to 2020 and see what that person was posting. Were they anti-mask? Or were they pro-vaccine or anti-vaccine? And that gives us a glimpse into their political leaning and how they might think about government organizations, the FDA, the CDC. It's very important to see what people were doing back then.
Adam Bloomberg:
Well, let me ask you both this one. Do you have any good examples of something you've learned about a juror that's really surprised you as a result of conducting social media searches?
Christina Marinakis:
Yeah, I certainly have. You know, I can tell you, we had one juror who was, did not have a high school education, was a GED, union worker, his questionnaire was full of misspellings. And the client did not like this juror, you know, they thought they wouldn't be able to follow the science of the case. But when we looked at his social media, he was posting things like, he said, “Don't complain that it's cold outside. Be grateful you have a job”. And they said, your work ethic determines your job security. He had several posts that were all about personal responsibility, owning. He said something like “Successful people, they take responsibility for their mistakes. Unsuccessful people blame others.” And that really showed us that he was somebody who was going to look at the plaintiff, see what the plaintiff's role was in their own harm. And ultimately, he ended up being on the jury, ended up being the foreperson on that jury. And we had a defense verdict quite quickly.
Jennifer Saulino:
And the examples that I can think of are similar to the type that Christina was just talking about. You know, it's very true that you can't judge a book by its cover. And there are things that you can learn from social media that may surprise you about folks. So the opposite can also be true. So you can have somebody in your pool who has a certain level of education and perhaps has moved a few times who you would assume might have sort of broader scope of understanding and attitudes than maybe folks who had stayed more local. And then you look at their social media and you realize that what they're posting is suggesting the opposite is true. And I have actually had that happen in a case.
Adam Bloomberg:
Christina, we've been talking a lot about jury selection in state court, but let's say we're in federal court and time is limited and Judge is going to ask the questions. It's 10 AM. They're seated. It’s started. Go. We've got the names, what can we learn about the panel in two hours?
Christina Marinakis:
Really just as much as you can learn in two days. I mean, if you have enough manpower, or woman power, to do the research, we can get the feedback on each juror, you know, within a half hour. So the more people that you have working on it, the faster you can get those results. So the only thing that's a little bit different is I don't have time to go through the results in detail.
Instead, I would have a colleague that's either in the courtroom or even back at home, at the office, that is going through the social media and then just getting the highlights. You know, juror number five is a social justice warrior. Juror number six went on a diatribe about anti-corporate beliefs. And they just give me the highlights. And that way, you know, I don't have to spend time looking through the jurors’ pages. I just know, quick snapshot, what are the most important things you know about that juror?
Adam Bloomberg:
Okay. So Jennifer, do you have any tips for obtaining cause challenges?
Jennifer Saulino:
This is where I will go back to the research we talked about earlier. I think that having that research and making sure that you know what the case law is in the local area and how it is used by judges in the local area, because sometimes speaking with local counsel, you can find out that there are certain sort of cases that the judges see as sort of the standard, even if they sort of were all on par from the same court. So figuring that out ahead of time and then knowing exactly what that standard is and how it has been used in previous trials is really critical. And then talking with the jurors and making sure you've got that standard in mind, getting them to the place where they've crossed that threshold and then stopping is really important, and then making the challenge to the judge and citing the case law and showing the judge in the case law, this is where the juror, you know, quote from the juror and this is where the juror crossed the threshold.
And then as I brought up earlier, in many courtrooms, then you need to be ready to go to the next step when the judge says, “Well, let's talk to that juror again. I want to see whether this is really where they are.” And that can cause the juror to maybe do a little backsliding and then knowing how to sort of get back over that threshold and make the argument to the judge again, is the critical piece. So it's really all about knowing the law ahead of time and being ready to argue it on your feet based on the facts that show up in front of you.
Adam Bloomberg:
We spent a lot of time talking about early research and jury selection. Just a couple of bonus questions if you don't mind.
Jennifer Saulino:
Okay.
Adam Bloomberg:
I’m curious, Jennifer, what's your approach? What would you say your overall approach is when you're cross-examining a witness?
Jennifer Saulino:
Cross-examining a witness is all about figuring out how to try to approach the credibility of the witness in the eyes of the jurors. And what I mean by that is, for any witness, whether they're a fact witness or a sophisticated expert witness, the real issue is how much is the jury going to trust what that person said? Because no matter how much they remember about what the person said, if they really come away with a feeling of trust that they have learned something important from that witness, then that's what they'll remember.
And so, my approach to cross-examination is to eat away at that credibility and that trust. Sometimes it's through exposing bias of the witness, sometimes it's through pointing out flaws in the analysis. So focusing in on pieces of an expert's analysis, for example, and showing the jury where the flaws are. And sometimes it's about sort of exposing contradictions. So, for instance, if the witness has given testimony before through depositions or other trials and has said something different in the courtroom, being prepared ahead of time and knowing where those contradictions are and then exposing those to the jury can eat away at the credibility. And at the end of the day, the way to get there is to be really ready ahead of time for any of those types of categories so that you can then expose those to the jury in cross.
Adam Bloomberg:
Alright, Jennifer, last question for you. When do you start preparing your closing?
Jennifer Saulino:
Oh, I start preparing my closing, I mean the latest, the latest might be the day of opening statement. And then I work on it every single day between then and the actual closing to make sure that my team and I are focusing in on the things that were important in the courtroom to the jurors on that day.
Adam Bloomberg:
And Christina, last question for you. What's your suggestions for a good close?
Christina Marinakis:
I think it's important, especially when you're representing a big company or a type of company that is not the most popular, a chemical company, a cable company, you know, companies that people love to hate, is to have the jurors walk away feeling good about a defense verdict. They have to feel good about siding for a big company. So, you really have to put into their minds the sense of justice, of doing the right thing, of being courageous and doing the right thing, even though it may not be the easy thing or the simple thing to do, and just, and talk to them about justice is going to look different. And everybody deserves a fair and impartial trial, whether you're black, white, rich, poor, big company, small company. It's just getting jurors to really wrap themselves around Lady Justice and to feel good walking away, not giving any money to a sympathetic plaintiff.
Adam Bloomberg:
Well, thank you, Jennifer and Christina, for joining me today. I really enjoyed talking with you both about insights into jury research and the psychology of jury selection and the consulting process. It felt like a masterclass. Thank you so much.
Christina Marinakis:
Thanks.
Jennifer Saulino:
Thank you. This was a lot of fun.
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Thank you to Jennifer and Christina for speaking with us today, and a special thanks to our listeners. Please join us next time and subscribe to the IMS Insights Podcast.
IMS has delivered strategic litigation consulting and expert witness services to leading global law firms and Fortune 500 companies for more than 30 years, in more than 40,000 cases. IMS consultants become an extension of your legal team from pre-suit investigation services to discovery and then on to arbitration and trial. Learn more at expertservices.com.