We know that the brain has two hemispheres. The left hemisphere of the brain controls the right half of the body and the right hemisphere controls the left half of the body. The left part of the brain is responsible for logic. It contains the language centers, interprets patterns and is detail oriented. The right side of the brain is responsible for emotions. It searches for meaning. It is also the center for music, art and kinesthetic abilities. Many people favor one brain hemisphere over the other in their communication and learning.

There is therefore a balanced conflict between the functions of the two hemispheres. The left part of the brain is resistant to change and new ideas. It adheres to established values and opinions. The right side of the brain is essential for balance. Without it we would be incapable of making decisions because emotion is essential for decision making.

This means that the resistance to change is part of our human nature. Conservative people are particularly resistant to change and are most likely to engage in black and white thinking processes. Consequently when we suggest to jurors that it is up to them to set new safety standards or establish new rules or otherwise abandoned the status quo, we are asking them to do something that is in conflict with their unconscious thought process.

Instead, we should suggest that our position is consistent with an established principle, safety rule or code of safe conduct. Our goal should be to show a well-established, long-standing rule of conduct which we are asking the jury to enforce as an existing principle rather than something new. In fact, our position should be that it is the defendant who is trying to change an existing safety rule or principle and wants to ignore the established order of things which threatens our protection and safety.

When we frame our position as one of maintaining established safety codes of conduct and the defendant’s position as wanting to change the established order of things, we are appealing to deeply held subconscious beliefs. Moreover we want to show that  the defendants position is one that creates a loss for the jurors. That is, a defense verdict would be a personal, family or community loss of protection of  safety or our welfare.

Our position in a malpractice case, for example,  should be that the defendant threatens to eliminate or modify a safe and established medical practice. We want to show that  a verdict for the defendant would lower the standard of care and is a new, changed position. We, on the other hand, want to maintain the established safety principles for our protection. We want to maintain the status quo and are resisting new, lower standards.

Keep in mind that people are reluctant to give up what they already have. Framing the defense as a loss of safe health care unconsciously motivates the jurors more than the prospect of gaining a new or better healthcare protection. People in general and conservatives in particular are deeply resistant to change.

For the same reasons jurors attach greater responsibility to a defendant’s conduct which is the exception rather than the norm. For example, in a products case,  jurors want to know how other manufacturers have acted or designed a similar product and compare this defendant to the others. Evidence of a defendant not conforming to normal practices means a change in the status quo which conflicts with subconscious thought processes. Much of this depends upon framing. Take for example, research involving physicians who  advise patients the statistical number of people who die with a particular treatment and those who advise patients about the statistical number who survive the same treatment. The statistical outcomes in both cases are identical. However the research showed that the patient’s who were told the percentage who survived were much more likely to consent to the treatment then the former .

So, let’s keep in mind the importance of framing our position as fighting to maintain established principles of safety while the defendant wants to change the status quo with lower standards that are a threat to everyone’s safety and protection.

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