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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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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