Examining Brain Models Used in Trial
Given our line of work, we find that people frequently reference brain models in conversation with us. Having heard about right/left brain thinking, some attorneys want to choose predominately left- (or predominately right-) brained jurors. Or they want to ensure that their presentations appeal to the appropriate side of the brain. Others, responding to fears concerning the Reptile Brain approach, are looking for ways to draw jurors back into conscious and deliberate decision-making. But is this focus well-placed? Do these brain models accurately describe how jurors make decisions?
The right/left brain theory relies on the understanding that the different sides of the brain control different functions (logical/mathematical vs. creative/emotional). The Reptile Brain approach claims to be using cues about safety and harm to trigger primal, instinctive decision-making. In truth, brain science has evolved from the left brain/right brain theory. And unless jurors are put into actual and immediate physical danger, they are not accessing their primal instincts or their “reptile brain” when making decisions – no matter how many safety cues they are given. So while fully adopting either of these approaches will cause you to miss the mark, the use of such strategies does raise legitimate concerns that must be considered and addressed.
Both of these approaches are actually designed to exploit the role of emotion in decision-making. What has typically been called a right-brained approach is really an emotional approach – one that tugs at the heartstrings of jurors and appeals to their sympathy. The Reptile Brain approach also appeals to emotions, but rather than relying on sympathy, it strives to evoke the stronger and more reactionary emotions of fear and anger. Although the theory may be scientifically incorrect – even baseless – an approach that evokes strong sympathy for the plaintiff, or even worse, fear of or anger at the defendant is likely to be effective.
So how should these approaches be countered?
-Recognize the fallacy in what they are claiming to do. They are not engaging a side of the mind that your presentation cannot reach, nor are they creating a path for jurors to make decisions on a primal, subconscious level. They are simply inciting inflammatory emotions. And inflammatory emotions can be quelled.
-Attack the veracity of their claims. Such emotion-evoking strategies tend to rely on hyperbole and exaggeration that when exposed, annoys jurors.
-Build your own persuasive and competing narrative rather than simply trying to shoot holes in their narrative.
-Illuminate their strategy. Such strategies are designed to blatantly manipulate the emotions of jurors and manipulation is much less effective if the subjects of that manipulation are alerted to it.
While these brain models appear as frequent topics of discussion at legal conferences, they are not accepted as current or legitimate in brain science or psychology. But those who utilize these strategies are skilled at tapping into strong emotions in a way that can be compelling. For this reason, we would recommend ignoring the questionable theory behind the strategy and focusing on what makes the strategy work. Once you understand that the sole strength of these strategies lies in on evoking and manipulating emotions, you can learn to counter them effectively.
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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict decisions.
