THE CONCEPT OF “SCARF” – APPLIED TO TRIALS

The Sunday New York Times published an interview with David Rock by reporter Adam Bryant. Rock is the director of the Neuroleadership Institute. http://www.neuroleadership.org/index.shtml  Rock has developed an acronym SCARF to better explain people’s behavior. It stands for: status, certainty, autonomy, relatedness and fairness.

Rock says that it is a summary of what motivates us, the things we feel passionately about and that are driving behavior. He says that the brain divides everything into one of two categories: threat or reward. He says “We are driven unconsciously to stay away from threat, and to go toward reward. This decision about threat or reward happens five times every second. It is very subtle.”  This is consistent with what we know about people, that they are driven by reward and punishment – the carrot or the stick. This is why we present our case as not being merely about our client, but about the protection and welfare of the juror, their family and the community.

He explains the acronym. The word “status” is your perception of where you are in the pecking order – a feeling of being better or worse than others. We want the jury to know that our cases have importance outside  the individual client and that they are empowered, as a group or team, with extraordinary power to do the right thing which will benefit them and others. We tell them in summation that they will be very proud of their verdict for the plaintiff  in future months and years.  That they will have played an important role in the community.

“Certainty” is a constant drive for the brain. He says “the more we can predict the future, the more rewarded we feel. Unless we can predict, the more threatened we feel. As soon as any ambiguity arises in even a simple activity, we get a threat response. We are driven to create certainty.” This is why rules are so important. Survival depends upon certainty about things we encounter in life. We need to know what  is safe and what is a danger. This need for certainty also is the reason jurors will always create a story that makes  sense  to  them about the facts.

“Autonomy” refers to a sense of control and is similar to certainty. Certainty is the knowledge about the future events but autonomy is about control.   It’s important for us to feel a sense of control, so much so that a small stress where you have no control generally is, in fact, a very big stress.” We know that lack of control means a threat to survival and activates a very basic  part of our reptile brain. We need to be in control and that means having rules of conduct that are enforced as well as control over our safety. This is consistent with our trial communication to the jury.

“Relatedness” refers to our interactions with others. The decision we make about everyone is: “are you in my group or out of my group.” Rock says that at an unconscious level we evaluate the other person by asking ourselves: “is this person similar to me? Are they on my team? Do we have shared goals or are they in an out group?” It becomes an issue of trust. This is a very important idea to us as trial lawyers. We must be part of  their (the juror) group. We must join their tribe starting in jury selection, where it is allowed, by never arguing or rejecting what jurors  tell us. We  need to project their shared values and ideas, to join  their tribe, before we can even consider suggesting there may be exceptions which apply to your case or your client. 

The final is “fairness” and is a fundamental factor. Rock says that a fair exchange of anything is intrinsically rewarding. An unfair exchange of anything is intrinsically threatening. Fairness is essential to the relationship and attitude of an individual. We know that one of the primary drives  of  the jury is to “do the right thing.” A trial is really a morality contest. The jurors apply a test of right and wrong. Is this consistent with my values? Is it fair? Is it basically right? Those are the unconscious filters through which the jurors weigh the evidence at trial.

While Rock was talking about leadership in a business, it seemed to me that what he had to say had  application to us as trial lawyers.

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