“The mind is its own place, and in itself. Can make a heav’n of hell, a hell of heav’n.” ~Milton
Jury’s make decisions based on many things, emotions usually direct these decisions much more than simple raw facts. Decision science reveals even feelings very incidental to the problem situation drastically alters the decision people make. Current research in positive psychology consistently reveals making people feel good about themselves is actually much more effective than fear in shaping their behavior and decision making. This knowledge can be used effectively in combating the fear-based approach of the Ball and Keenan strategy of appealing to the reptile aspects of human cognition based on the Triune theory in Psychology.
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.
Pleasure is the Best Defense
One of the most basic assumptions in psychology is the idea that organisms seek pleasure and avoid pain; a response that would be initiated by the reptilian portion of the brain in this theory. This is the heart of the effectiveness of arguing safety by the plaintiff-the removal of the fear of potential pain. Interestingly, research repeatedly shows that pleasure is just as motivating a force as avoiding pleasure….if not more so. The single most effective defense to the Reptilian Argument in litigation is to offer the jury pleasure. Feeding the crocodile candy neutralizes the driving force of seeking safety by replacing it with a more desirable stimulus. So what can you tangibly offer a jury that will universally produce pleasurable results? Simple, make them feel good about themselves. Psychologically, when we are engaged in a positive self-reflection we are naturally engaging our more advanced cognitive mechanisms and we feel good. Offer jurors specific ways to feel good about supporting your clients perspective. This can be done in a variety of case-specific ways but anything that shows jurors as smart, savvy, just, empathetic, strong, etc. for supporting your client will support the pleasurable and potent state of positive self-reflection. Research actually shows this positive psychological strategy is more effective than fear/safety seeking in most decision making situations.
The Origin of Pleasure
What is the nature of pleasure, what will provide a strong enough pleasurable stimulus to neutralize the fear and safety seeking behavior the Reptilian strategy litigator is promoting? According the the notable psychologist Paul Bloom, it is something he calls Essentialism. The idea is that the origin of pleasure lies within our cognitive understanding of the essential history of something. His research reveals that people naturally base value on the unique history or context of people and things. For example, appealing to common experiences that everyone on the jury has had in one way or another and then directly stating that their ability to identify with your position and your client reveals they are unique, intelligent, and wise is an effective method of combating strategies that promote fear and the desire to seek safety. Unless, a person feels that the current situation is directly threatening their lives or the lives of their loved ones in the present moment, the urge to seek pleasure and feel good is stronger than the urge to avoid potential pain and seek safety.
The next article in this series will cover specific ways to apply this strategy.