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Fear-based decision making, and appealing to the Reptilian brain

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Don’t think attorneys don’t know how to do this.

Just a few links — I mentioned the “reptilian” brain.  Earlier searching had shown me a link to attorneys being coached on how to appeal to it, in jurors.

Family Court rarely gets to actual jury trials (it’s about psychology in this venue, right?) but the whole existence of this system, and others parallel to it, originated in this appeal to communal danger.  For example, the “fatherhood” movement to start with . . . .

I felt my readers should see a few links:

This is an advertisement for a service “JURISPRUDENCE.”  I don’t know the product, I am linking to it for teaching purposes only.  The more we know about tactics, and can pull from different venues (this is not directed towards family law venues, but from what I can tell, torts…), the better.

Maybe it will help some women.  Excuse me, I mean “protective parents.”  I have read one of my own transcripts, and remember the psychic shock I was in at the time, from the lost children.  I sounded like a fool, and didn’t go for the jugular of the legal issues, like I should have, or for violations of due process that resulted to the state of shock I was in to start with.

I utterly did not have control of the courtroom dialog — I was a mother in trauma, not a litigator.  As often happens, the attorney that began the proceedings was almost immediately dropped — who can afford one? Leaving us to muddle my way into trying to reverse the radically upended status quo.  Go figure about how well this went.

Don’t think that’s accidental! …..

Pre-Trial Research: Find the Facts that Tell Your Story

Each juror will tell themselves a different story about your case.  They will pay attention to the evidence which supports this story and they will disregard what does not.  Their individual stories depend on jurors’ life experiences, attitudes and personalities.  It also depends on how you present your case.  It is possible to shape any juror’s perception of your case by emphasizing the right facts and de-emphasizing others. Pre-Trial research illuminates which facts lead to a given story, what confuses people and what evidence, on both sides, resonates with jurors.

Overcoming Juror Bias

Given the technical expert testimony, you cannot win a toxic torts trial unless you research jurors’ biases and how they individually decide and collectively deliberate your case.   It is human nature to use short-cuts (psychologists call these short-cuts heuristics) to reach a decision when a problem is complicated.  Understanding and overcoming these resulting biases is essential in a complex case, where technical legal instructions and scientific evidence are presented.

Science Made Simple

The key evidence and testimony must be clear and memorable so that jurors will think about it first when deciding the case.  Not only are memorable facts more likely to be considered, but people erroneously believe that more accessible facts are also more credible.

People typically must hear something 9 to 12 times to memorize it, i.e., incorporate it into their subconscious, where it is not re-analyzed again for accuracy but simply referenced for decision-making.  Emotional experiences and powerful visuals are memorized faster, sometimes immediately.

It is just as important to know what evidence to exclude, as is what evidence to emphasize.  What issues are clear and require less explanation?  What testimony is too confusing and simply distracts from your key points?  Pre-trial research answers these critical questions so you are armed to present your strongest case and obtain the highest verdict amount possible.

And another page, same site:

Persuade “The Reptile” and Win

David Ball is fired up, here at the American Association for Justice annual convention. The attorneys are fired up. I’m fired up! David Ball says that he and a team of attorneys and trial consultants have figured out why tort reform rhetoric has worked so well — and they are using this new information to create a “nuclear bomb” that wins every time. David is convinced that the defense cannot do anything to effectively fight back.

I know this sounds too good to be true, but David’s uncharacteristic excitement about the future of public justice lawsuits convinced most of the attorneys in the standing-room-only ballroom. Based on what I know about how jurors make decisions, I also think this will work in my cases.

In a nutshell, the plaintiff wins if jurors believe that the kind of thing the defendant has done in this case is an immediate threat to the jurors and their kids. David spoke at length about the “reptilian brain” that has kept our ancestors alive for millions of years – that it has 100s of times more connections to the rest of the brain than any other structure, including the prefrontal cortex that gives rise to our conscious thought. That it is very powerful in our decision-making, yet resides in our unconscious.

I just gave a talk on Friday at HB’s benzene conference and spoke about the power of emotions in juror decision-making, that emotions are the conscious representation of a decision that takes place in the unconscious and that everyone, including more analytical “thinking” types, makes decisions based on which neurons win an emotional tug of war in the unconscious, between the pleasure and pain centers. Scientists who use MRI machines can see this neural activity and can predict how people will decide a research question before those people consciously know. For those attorneys who heard me talk about the neuroscience behind decision-making and the power of fear, the “double-edged sword” that drives jurors to assume causation and blame the plaintiff in toxic tort cases, David’s talk was even more enlightening. I think I “get it” now.

David’s book, Reptile, comes out August 7th. You can order it online at http://www.reptilekeenanball.com/ I also recommend the “Reptile Seminar,” since this technique has a “slow learning curve,” according to David. Obviously, you can’t tell jurors that what happened in the case is a threat to them. But you imply this – without violating the golden rule – by saying to a witness “you would agree, wouldn’t you, that a [manufacturer, physician, etc] is never allowed to NEEDLESSLY ENDANGER a [user of a product, patient, the public].” To do this well, throughout trial and in depositions before… to even know what facts you will need at trial to convince “The Reptile” (as David puts it), you must practice, practice, practice. I hope to put this to work in our mock trial CLE workshops, so I’ll need to work with attorneys who have read the book. Perhaps I’ll demonstrate some of it myself in an opening statement.

This is powerful stuff. It’s simple in theory and makes sense to me. I know fear drives juror decision-making and I’ve seen the reactions of jurors with perception analyzer dials, dialing down against Plaintiff when the attorney is making a strong, rational point that should be helping her case. Even the plaintiff-oriented jurors dial down against the plaintiff in these situations, where their rational prefrontal cortex must know this helps Plaintiff’s case, yet that reptilian brain wins the neural tug of war and the prefrontal cortex is put to work, justifying, verbalizing and defending an irrational decision. This is when jurors selectively attend to evidence, pull in life experiences and even make up facts to justify their decision – to protect themselves from their own fear.

That’s all I have time for now.  See also California Family Law Institute, and my blog on it where this site (directed towards MEN), appeals to the Divorce as War paradigm — not exactly what people are being taught, most likely, at the February 2010 AFCC conference (see my prior posts) — that “conflict” is the enemy.

I suppose that’s why US Troops are all over the world helping establish democracy, overseas, at least, or defending it….  Because “conflict” and “war” are wrong.  Go figure.

Written by Let's Get Honest|She Looks It Up

February 9, 2010 at 11:29 am

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