David Ball is fired up, here at the American Association for Justice annual convention. The attorneys are fired up. I’m fired up! David Ball says that he and a team of attorneys and trial consultants have figured out why tort reform rhetoric has worked so well — and they are using this new information to create a “nuclear bomb” that wins every time. David is convinced that the defense cannot do anything to effectively fight back.

I know this sounds too good to be true, but David’s uncharacteristic excitement about the future of public justice lawsuits convinced most of the attorneys in the standing-room-only ballroom. Based on what I know about how jurors make decisions, I also think this will work in my cases.

In a nutshell, the plaintiff wins if jurors believe that the kind of thing the defendant has done in this case is an immediate threat to the jurors and their kids. David spoke at length about the “reptilian brain” that has kept our ancestors alive for millions of years – that it has 100s of times more connections to the rest of the brain than any other structure, including the prefrontal cortex that gives rise to our conscious thought. That it is very powerful in our decision-making, yet resides in our unconscious.

I just gave a talk on Friday at HB’s benzene conference and spoke about the power of emotions in juror decision-making, that emotions are the conscious representation of a decision that takes place in the unconscious and that everyone, including more analytical “thinking” types, makes decisions based on which neurons win an emotional tug of war in the unconscious, between the pleasure and pain centers. Scientists who use MRI machines can see this neural activity and can predict how people will decide a research question before those people consciously know. For those attorneys who heard me talk about the neuroscience behind decision-making and the power of fear, the “double-edged sword” that drives jurors to assume causation and blame the plaintiff in toxic tort cases, David’s talk was even more enlightening. I think I “get it” now.

David’s book, Reptile, comes out August 7th. You can order it online at http://www.reptilekeenanball.com/ I also recommend the “Reptile Seminar,” since this technique has a “slow learning curve,” according to David. Obviously, you can’t tell jurors that what happened in the case is a threat to them. But you imply this – without violating the golden rule – by saying to a witness “you would agree, wouldn’t you, that a [manufacturer, physician, etc] is never allowed to NEEDLESSLY ENDANGER a [user of a product, patient, the public].” To do this well, throughout trial and in depositions before… to even know what facts you will need at trial to convince “The Reptile” (as David puts it), you must practice, practice, practice. I hope to put this to work in our mock trial CLE workshops, so I’ll need to work with attorneys who have read the book. Perhaps I’ll demonstrate some of it myself in an opening statement.

This is powerful stuff. It’s simple in theory and makes sense to me. I know fear drives juror decision-making and I’ve seen the reactions of jurors with perception analyzer dials, dialing down against Plaintiff when the attorney is making a strong, rational point that should be helping her case. Even the plaintiff-oriented jurors dial down against the plaintiff in these situations, where their rational prefrontal cortex must know this helps Plaintiff’s case, yet that reptilian brain wins the neural tug of war and the prefrontal cortex is put to work, justifying, verbalizing and defending an irrational decision. This is when jurors selectively attend to evidence, pull in life experiences and even make up facts to justify their decision – to protect themselves from their own fear.

I’ll write more on this later. I need to get back to a very exciting convention, here in San Francisco.

Filed under: Persuasion by admin