I like everything professor of Cognitive Science George Lakoff (University of California, Berkley) writes. His latest book The Political Mind should be required reading for all trial lawyers. I am working on an outline of his ideas and will present some of them here in the future, but a few of the concepts follow.
Most of our thought, an estimated 98%, is not conscious. It is below the level of consciousness. It what our brains are doing that we cannot see or hear. It’s been shown that we also have emotional reactions at a level we are not aware of as well. Even though we don’t feel it or are aware we are reacting, we are doing so without our conscious knowledge.
He explains a most important fact about us, one I’ve written and spoken about many times, namely that we are not logical – we are emotional. Trial is a battle of impression and not logic. Lakoff describes traditional belief about this as an "eighteenth century view of the mind." Many judges and lawyers have this mistaken idea about human brain workings. They think all you have to do is point out where the person’s interest’s lie and they will respond to it. They belief in the accuracy of the answers given at a conscious level in polling. They believe people proceed logically and arrive at decisions rationally weighing all the evidence. They believe jurors keep a score card of evidence and proof with the highest score being the winner. As Lakoff says, those that believe this "are dead wrong." They ignore the cognitive unconsciousness, the deepest values of people and ignore the emotional appeals. They also ignore the importance of how issues are framed in presenting them. He points out that "politics is about moral values." Every political leader presents their ideas on the basis they are "right" that is, that they are moral. Therefore, a trial needs to be about values, morals, ethics, doing the right thing and key issues must be framed correctly. We must appeal to the unconscious motives of our jurors. These are the reason people vote against their own interests, because they are consistent with strongly held values. This also explains why the conservative juror believes in personal responsibility and punishment for wrong doing. Why they will vote for a plaintiff even when they don’t want to if they believe by doing so they are enforcing the rules and punishing the wrongdoer.
This is a great book and we need to change our myths we learned in law school about people being logical beings to adapt to the realty that cognitive scientists have been publishing about.