June 3rd, 2010

Appeal to the Triune Brain (With Help From Clarence Darrow)


Donald McRae has written a wonderful book on the last trials of Clarence Darrow. There we see how Darrow appealed to the Triune Brain in his closing arguments.

First, Darrow always believed in his case. For Darrow, as for any lawyer, doubt or lack of sincerity translates to failure. Second, he internalized the facts and the law (especially the facts) so they were as familiar to him  as his own background. Third, the appeal was always  without notes, and  from the heart as well as from the mind.

In preparing for the emotional appeal to the unconscious mind in a death penalty case Darrow drew on his own childhood. He remembered  his father telling him as a boy of the revulsion he had in witnessing a hanging. According to Mr. McRae, Darrow’s father’s description of the scene marked Darrow. “Almost sixty years later those same feelings coursed through Darrow as he addressed the court.” D. McRae, The Last Trials Of Clarence Darrow (2009)(“brief quotations embodied in critical articles” allowed).

Here Darrow drew on his emotional memory of  feelings and images of  horror he had from childhood of a hanging to convey that same emotion in his closing argument. This is an appeal to the emotional unconscious mind. In relating hanging in his closing argument Darrow talked in a descriptive way in the present tense avoiding the use of any negative such as “we cannot hang a man.” Darrow conveyed his own emotional feeling about hanging. In this way Darrow related to the Limbic unconscious mind of the judge.

Later we learn in another murder trial Darrow appealed to the logical conscious Neocortex in using the legal definition of “a mob.” He clearly described the legal definition in a logical analytical way. The description  was narrow in scope but detailed in describing the legal elements.  Once he accomplished this he continued to appeal to the conscious logical mind by contrasting  the defense’s  description of the scene “of people merely passing by” as making no sense.

According to Mr. McRae once this was done Darrow switched gears by separating the logical argument from the emotional argument. He did this by separating the arguments going from logical words to emotional words  and pacing himself. For the emotional argument he recreated the terror his clients experienced when they were confronted by the mob.

Darrow also appealed to the Reptilian Brain. The murder case involving the mob was one in which African Americans shot  and killed a white man in the mob engaged in what defendants believed was a storming of their home. Darrow appealed to each juror’s R-Complex by discussing  the danger  of one’s home being stormed by an African American mob.

Clarence Darrow did not know about the Triune Brain. To Clarence Darrow it was instinctive to separate the logical from the emotional. It was instinctive to discuss safety and danger and how the jury could eliminate it in the future. It came natural to talk in a positive way in the present tense. It came natural to pace himself with pauses and going from a near whisper to a booming voice.

For us: when we believe in our case; when we have internalized our case; when we know the facts of our case like our own background; when we methodically explain the concrete factual and legal aspects of our case; when we draw on our own emotional memory to recreate for ourselves our client’s injury; when we illustrate how defendant’s conduct is a danger to the community with sincerity and honesty; and, when we forget who we are, and convey  from our heart and mind, we try our case naturally  to the entire Triune Brain.

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June 2nd, 2010

The Neocortex-Our Logical Conscious Brain


According to Dr. Paul MacLean and his Triune Brain theory the most recent evolutionary part of our mind is the Neocortex. The Neocortex is in the upper part of our brain. Here the Neocortex controls higher executive thought-language, mathematics, and reasoning. In a normal development situation our three brains work together from the top down. Thinking at our highest level occurs in the Neocortex, as we are emotionally balanced in the Limbic System, which allows us to go into action with our Reptilian Brain.

The Neocortex is our conscious logical mind. This is what we typically think of when we think of our brain. It is important to recognize the conscious mind has the following traits:

It is logical.

It can deal in the abstract.  “I am going to Hawaii.” The conscious mind pictures a beach in Hawaii.

It likes “the rule of three.”

It does not like more then seven (the number beyond which the conscious mind loses track).

Unlike the unconscious mind it is able to deal with negatives.

It is not emotional.

See Howard Nations, Publications- Powerful Persuasion.

When dealing with a jury or anyone in a decision making situation it is important to relate to the three parts of the Triune Brain. It our next post we will discuss putting together the traits of the R-Complex, the Limbic System and the Neocortex in a presentation that appeals to the entire Triune Brain.

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June 1st, 2010

The Limbic System-Our Emotional Unconscious Brain


As we learn from Dr. Paul MacLean the “limbic system” surrounds the R-System like a limb. This part of MacLean’s Triune brain is the emotional cognitive brain. This part of our brain adds our emotions which create long term memory.

“The limbic system is the heart of our brain from which our emotions and drives arise.” (Maria Robinson, Psychology Today).The limbic system operates unconsciously, it records likes and dislikes, it colors our impressions, and it is constantly judging experiences and people. Like the reptilian base of our brain the limbic system has its own agenda which often conflicts with our conscious wishes. See id.

It is important to recognize the emotional unconscious mind has the following key traits:

It records the total experience without dealing with details.

It experiences in the present tense like it is happening now..

It can deal with limitless information.

It cannot interpret a negative. Thus it only interprets positive statements.

It handles information emotionally.

See generally, Howard Nations, Powerful Persuasion (Howard Nations is a nationally recognized trial lawyer practicing in Texas. His website Publications are a must read for all trial lawyers).

Jurors will make decisions using all of their entire brain. This according to Paul MacLean means the R-Complex, the Limbic System, and the Neocortex.  In the next post we will discuss the Neocortex (the conscious brain).

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May 30th, 2010

Clotaire Rapaille “The Reptile Always Wins”


Recently I have seen posts to the effect it is demeaning to jurors to “appeal to the reptilian brain.” When we understand the reality of the reptilian brain and how it is thought to play a role in decision making we have a duty as advocates to recognize there is nothing wrong with advocacy that appeals to the reptilian part of the brain.

Appealing to the “reptilian brain”  began as a Madison Avenue selling concept developed by Clotaire Rapaille  a European psychologist. Mr. Rapaille  initially studied autism in children. He theorized there are “code words” that lead to conduct. Finding a particular code word  helped in treating an autistic child. Mr. Rapaille believes the “code” is within the reptilian brain, regardless of wheather a person is autistic.

From there Mr. Rapaille changed his career to help large corporations find their “code” to appeal to the reptilian brain of the consumer. He teaches “the reptile always wins.” This means final decisions are made subconsciously based on buried codes within the reptilian brain that Mr. Rapaille terms “the reptilian hot button.”

Exhibit A for Mr. Rapaille is the Hummer SUV. He explains the Hummer does not make logical sense as most people drive their vehicles on city streets. For an SUV Clotaire Rapaille explains the code is “domination.” Thus, the Hummer sells because it is the dominate vehicle on the road. This appeals to the reptilian “sense of safety” which is where the purchase decision is made as “the reptile always wins.”

From an advocacy standpoint it makes good sense to recognize what major corporations recognize and  have used for years. That is the reptilian brain is a key component to decision making. Jurors like all of us seek safety and security. We all have the reptilian brain and we all dislike conduct that is dangerous.

In our system when the case gets to trial the dangerous conduct has already taken place. When the dangerous conduct effects or potentially effects all of us we naturally what to stop it from happening again.  For jurors the only way to stop the conduct from happening again is through a money judgment. In our society a money judgment sends a message  the dangerous conduct is unacceptable and must stop or not happen again.

There is nothing sinister about this reality. The lawyer for an injured plaintiff is not trying to sell a product. The lawyer is trying to accomplish justice. The lawyer has a duty to point out dangers to the jury. The jury has a civic duty to act through a money judgment of fair compensation. When this is done a twofold benefit to society occurs: Plaintiff receives fair compensation for injuries caused by the wrongdoer and the wrongdoer receives the message society does not accept the wrongful conduct.

In our next post we discuss the reality of the emotional subconscious part of our brain and how it impacts decisions.

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May 29th, 2010

Beyond The Reptilian Brain


Jury consultants including David Ball have advocated appealing to “the reptilian brain” when presenting a case to the jury. I read David Ball’s books and consider him to be a high level jury consultant dedicated to advancing trial advocacy. I believe all serious trial lawyers read Ball and learn from him.

It is important to consider the source of the Reptilian Brain, and tailor Reptilian theories accordingly. This is because our brains are  more complex than the Reptilian Brain proponents give us credit. A couple of years ago I was introduced to the Triune Brain when reading The Biology of Transcendence: A Blueprint of the Human Spirit, by Joseph Clinton Pearce (Park Street Press, Rochester, Vermont) (2002). From Pearce I learned Dr. Paul MacLean, a physician and neuroscientist,  years ago developed the theory of the Triune Brain.

According to MacLean the human brain has evolved in three stages and  is composed of three parts. Each has its own intelligence, its own sense of time, and its own unique function. (But see Appropriateness of Triune Brain Theory).

First, we have the oldest part of our brain located at the base of the brain which he termed the Reptilian Brain. The Reptilian Brain or R-Complex evolved hundreds of millions of years ago. The R-Complex is referred to as the Reptilian Brain because it is similar to the brain of the modern day reptile. It replicates bodily processes of breathing, heart beat, and the fear and flight mechanism. The R-Complex functions in a habitual patterned way. It is unable to alter learned behavior.

The R-Complex takes over physical parts of our learned skills such as walking, running, typing, biking, driving, playing an instrument, or playing a sport. This in turn frees the upper more highly evolved areas of the brain to stand outside of motor function and observe and discover ways to improve.

Second, surrounding the R- Complex MacLean teaches we have the more recently evolved Limbic System. This is the emotional cognitive part of our brain. According to MacLean our long term memory stems from this part of our brain. Long term memory occurs when there is an emotional arousal associated with an event. The limbic system (emotional brain) is where we evolve our relationships. According to Joseph Pearce the key time frame for development of our emotional brain is the first few years of life. If we have a stable situation we are fortunate and will develop in a well balanced emotional way. Lack of stability translates to impaired emotional development.

Third, MacLean teaches stacked on top of the Limbic System and more recently evolved is our Neocortex. This is the upper and frontal parts of our brain. The Neocortex controls higher executive thought. This includes speech, mathematics, thinking and reasoning.

According to Joseph Pearce, under MacLean’s Triune Brain theory, in normal development the three brains work together, and they work together from the top down. A positive emotional state developing after birth allows the three systems to compliment one another. Thus, we are free to think and learn (Neocortex), as we are emotionally balanced (Limbic System), and on auto pilot (R-Complex). We are thinking from the top down.

Conversely, in deviant development our three brains do not work together. Because of a negative emotional state our three brains are divided. This means learning and development are impaired. Thus, we shift or reverse our thought from top down (normal) to bottom up (deviant). In a bottom up situation the reptilian controls. We become defensive, fearful, and reactionary.

In the next series of posts we will explore considerations on how we make decisions with our foundation being the entire Triune Brain. We will begin with the R-Complex Reptilian Brain.

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