I recently had a good friend, a successful District Attorney, read the post Feed the Crocodile Candy: Using Pleasure to Override the Reptile Brain, where it was outlined how this novel theory in psychology has been used to craft a very successful strategy in litigation. His reaction was basically two-fold: 1) interesting theory and 2) why do I need a trial consultant even if this strategy is used? The later is an excellent question, that has five very good answers. But first a brief reminder of the basic tenets of the theory.
Brief History of the Theory
There has been a tremendous amount of discussion on the book Reptile: The 2009 Manual of the Plantiff’s Revolution by Ball and Keenan outlining a strategy of using a controversial psychological theory of the brain to guide litigation, especially for the litigation of a plaintiff. The foundation of this strategy rests on the “Triune Brain” theory and is based on the work of neuroscientist Paul MacLean, who theorized in the 1960s that there are three distinct parts to the brain correlating with the stages of evolution the human brain has undergone: a reptilian complex at the core of the brain (primitive and survival-based), a paleomammalian complex located in the mid-brain (focused on emotion, reproduction, and parenting), and a neomammalian complex in the front (dedicated to language, logic, and planning). According to the theory it is the primitive reptile portion of the brain that guides our basic behavior and even when we think we are acting based on conscious decision making and the logic of our neomammalian brains (e.g., in deliberation), we are in reality unconsciously responding to the commands of the reptilian brain. According to Ball and Keenan,
“Cases are not won by logic…you need to get the Reptile to tell the logical part of the juror’s brain to act on your behalf. To get the Reptile to do that, you have to offer safety.”
Undoubtedly, there is some scientific truth to the theory Ball and Keenan outline in their book (which by the way is selling on Amazon for $337.56 used/paperback…), as is evidenced by the $5 Billion in associated verdicts . There have been many excellent discussions on how to effectively combat this strategy by notable experts (e.g. Ken Broda-Brahm PhD, Mark Bennett,). The key to all these strategies lies in the idea of activating other aspects of the human mind by overriding the fear response so inherent to the primitive reptilian portion of the brain in this theory.
5 Reasons A Trial Consultant Can Help You Beat this Strategy at Trial
1) A Trial Consultant with a PhD in psychology understands the latest neuroscience. A good trial consultant trained in psychology and neuroscience understands much more about how the human mind/brain works than is outlined by this controversial and incomplete theory. Although, there are tenets of truth within the triune brain theory, the function of human cognition is far more complex than this theory details. If this theory is used by the opposition in court, a good trial consultant can assist you in a) derailing the strategy with more effective cognitive methods and b) help you succinctly make the jury aware of what is happening. It is always powerful to identify the strategy the opposition is using, expose it, and counter it with one that is better. A trial consultant with expertise in psychology can help you identify psychological strategies being used and come up with research-proven ways of beating them!
2) Theory of Mind Trumps the Reptilian Brain Strategy. A trial consultant trained in psychology can assist counsel in effectively leveraging cutting-edge research in Theory of Mind practices related to persuasion and decision making. Theory of Mind is based on modern research revealing that the human mind engages social comprehension and empathy-based processing when learning new information and reveals the most powerful part of the brain involved in decision making is the portion of the brain dedicated to empathy and social understanding. It was long thought that the fear and safety concerns revealed in the Reptilian Brain Strategy were the primary basis of decision making in humans, modern fMRI studies; however, reveal the aspects of the brain related to empathy are actually more involved in decision making than any other part of the brain.
3) Great Storytelling is Key to Evoking Empathy. An effective trial consultant can assist litigators in crafting an underlying story that naturally elicits empathy for their client. Every case has multiple perspectives, different ways of telling the story, and a variety of methods of highlighting blame/innocence/fault/responsibility etc. The Reptilian Brain Strategy is simple and appeals only to fear and safety concerns, whereas the more powerful and effective Theory of Mind strategy relies on empathy which can be revealed through the art of good storytelling. It is more than simply stating to the jury that they should feel for your client….you must give them the experience of feeling for them. This proverbial experience is created when powerful storytelling takes the listener on an emotional not intellectual journey. Trial attorneys are often mired in details, evidence, facts, and figures; although very important and critical to “proving your case”, jurors are notorious for disregarding facts and making decisions based on their “gut feeling”. A good trial consultant can help litigators design a compelling and emotional story to highlight their facts and evidence.
4) Activate the Senses and Evoke Pleasure. A Psychologically trained trial consultant can help lawyers craft verbiage that naturally activates pleasurable sensory appeal. As was discussed in the last article in this series, pleasure is the best method of counteracting the fear and safety seeking predilections of the Reptilian Brain. Using carefully selected words within opening and closing statements, as well as within questioning and graphics, allows for the jury to naturally experience pleasurable sensory experience through word pictures. Empirical research reveals well crafted language, related to sensory experiences, can evoke as powerful of a pleasurable experience within the brain as actually being in the “real” situation.
5) Identify Bad Science. Trial consultants can assist counsel in identifying bad science. A trial consultant with a background in psychological science and statistics can assist in uncovering questionable science, statements of facts, or attempts at covert manipulation. It is rare that the opposing counsel will announce, “hey, I am going to go ahead and try and manipulate the jury through this cool theory I discovered called the Reptilian Brain Theory!” It is usually deeply embedded and without the eye of someone specially trained to identify it and combat it with more effective methodologies, it is easy for it to go unnoticed….and be effective.
To answer my erudite friend who posed an excellent question that many other practicing attorneys might have as well, it is simple: trial consultants with a background in psychology can help attorneys beat this Reptilian Brain Strategy by complementing the skills of the litigator with the skills of a research psychologist. Specifically, they can help by providing more modern and more effective neuroscience, tactics available from Theory of Mind that are superior to the old Reptilian Brain theory, assist in crafting a great story evoking empathy through the pleasurable use of language and graphics, and finally can help council see the bad science or bad tactics in play. The most successful and winning situations involve a team of highly specialized people working together for a common goal.