Most of us were taught in law school the legal system is a rational, logical system. Our trial system was created with the belief that people are intelligent and rational beings who think and decide as such. The whole system was designed to eliminate emotion in dispensing justice and rely solely upon rational, logical and intellectual processing. Over the many years our trial and justice system has functioned judges and appellate courts have clung to that belief. For example, the judicial belief you can tell jurors to disregard statements, testimony or exhibits they have heard or seen and the confidence the jurors can and will do so. Another example is the juror who has said, for one reason or another, they have a fixed view critical to an issue in the case and therefore shouldn’t sit on the jury. The response commonly is by the trial judge, in his or her black robes, sitting high above the jury, to peer down and say "But, if I tell you that you must set aside that opinion and follow the law, you can do that can’t you? The intimidated juror is usually quick to assure the judge they not only can, but certainly will set aside a long held belief or deeply held value if told to do so and the judge is satisfied with that response. In summary, we see this idea that people have the power to disregard strong emotional feelings or beliefs by applying their intellect and rational mind to the matter. We see lawyers who still believe that people arrive at their jury verdict by a rational, unemotional weighing of the evidence.
What neuroscience and research has conclusively proven is that these ideas are total poppycock. Not only is the separation of emotion from decision making impossible, it would be abnormal. In fact, studies of people with brain injury have shown that those with normal IQ but who have suffered a brain injury impairing their emotional functioning end up unable to function normally. Emotion is an essential part of making a decision. With neuroscience we have the ability to use fMRI to actually see what parts of the brain are involved when people are presented with information and asked to make a decision. Emotion is a critical part of the process.
What happens when people are presented evidence or information which agrees with their existing values, attitudes or belief’s is that the areas of the brain associated with logic and reason are most active. However, when they are presented with evidence or information which is in conflict with t heir existing values, attitudes or beliefs’s the emotional area of the brain becomes active. People simply make an interpretation that is consistent or ignore the information at an unconscious level to maintain consistency of belief.
The traditional view of reason is that we apply conscious logical, rational and intellectual reasoning without emotion. If that were true, decision making would always be rational. The truth is very much to the contrary. Some researchers say that up to 99% of thought happens outside of awareness. We know that most thought is unconscious. The reality is that reason requires emotion. Our brains function by having reason and emotion work together. If, as in the case of a brain injury, one is not functioning, then the person is not longer capable of normal living in the real world. Someone has said that when emotion and reason collide, emotion always wins.
The result is that in the court room when jurors are presented with statements, testimony or communication that does not fit their conscious or unconscious views that information will be re interpreted or just plain ignored. If you have some inkling of a jurors values, beliefs or significant past experiences you have an opportunity to present the information from a viewpoint that is more consistent with presently held ideas. Framing therefore, is important. How you characterize the fact or issue makes a tremendous difference in whether it will be accepted or not.
We can talk about "clear cut logging" or we can talk about "reforestation and renewal" We can talk about an "estate tax" or it can be said to be "a death tax." How we describe or frame something makes all the difference in the mind of the listener. There are some basic principles that apply to this idea. For example, we know that we ignore the negative in a statement of conclusion. When Richard Nixon declared: "I’m not a crook" psychologist tell us that the human mind records "I am a crook." Therefore, when we are addressing our opponent’s frames it is very important we do not repeat them and rely upon a denial they are true because only reinforces the opponent’s claims. We should not say: "My opponent has told you…….., but we will prove this is not true" because you reinforce the statement. Instead, you should be telling your own story and not repeating your opponents.
Lets also remember to use commonly held beliefs to our advantage. The idea of "personal responsibility and accountability" work very well when applied to a defendant’s negligence and denial of fault. These and many other similar ideas make good themes for us in trial.
While we are talking about this subject we also should keep in mind the fundamentals that apply to an opening statement.
We should tell a story and not narrate facts. Dates are rarely important to understanding a story and are details that are frequently meaningless to the jury. Instead of saying "On January 3d Harry goes to the doctor again" we should say "three days after that visit, Harry went back to the doctor." It’s sequence of events that move the story along. Not dates.
Tell your story in the present tense as if it were happening now. Think about it as if you were describing a movie to a sightless person. You would be describing events as they were happening. Follow the same practice in an opening statement.
Telling your story in the first person as if you were the plaintiff can be tricky and may not come off as you planned. You need to be good at story telling and comfortable about assuming such a role plus carry it off with sincerity and authenticity. It’s a consideration however.
Simplicity is such an important idea for trial lawyers and one they have so much trouble with. They tend to want to use big words or legal terms because they learned to do that in law school and because they want to sound important. But, a trial lawyer is supposed to be a great communicator and that means simplicity. I’ve often said your explanation and language should be at an 8th grade level. Not because people are stupid, but because they are receiving so much information so quickly it is hard for them to assimilate it. Make it easier for them by using simple language with lots of analogies or metaphors as well.
So there you have some really basic ideas that most of you already know, but which we should review and remind ourselves about from time to time.