There is an informative book I  read: Incognito: the secret lives of the brain  by David Eagleman which I recommend to anyone who is interested in how our brains function. Here are few excerpts I found interesting.

The brain  is an amazing organ. The brain is three pounds of the most complex material we have discovered in the universe. This is the mission control center that drives the whole operation. Your brain is made up of cells  called neurons – hundreds of billions of them. Each one of these cells is as complicated as a city. Each cell sends electrical pulses to other cells up to hundreds of times per second. The cells are connected to one another in a network of staggering complexity. A typical neuron makes about 10,000 connections to neighboring neurons. This means there are as many connections in a single cubic centimeter of brain tissue as there are stars in the Milky Way galaxy.

Contrary to our thinking we are not purely rational creatures. Our brains run mostly on autopilot and the conscious mind has little access to the factory that runs below it. As Carl Jung put it,”In each of us there is another whom we do not know” or as Pink Floyd has put it in song lyrics: “There’s someone in my head, but it’s not me.”

Since most of our function is done without rational involvement we’ve all experienced the situation where we have done something many times, but if we stop to think about what we are doing we began to fumble. In trial, as soon as we begin to think about what we are doing, or how we appear to others or what we are saying we start to get nervous and flustered. I thought this poem illustrated this fact. It’s named “The puzzled centipede.”

“A centipede was happy quite, until a frog in fun said, pray tell which leg comes after which? This raised her mind to such a pitch, she lay distracted in the ditch not knowing how to run.”

One of the interesting research tests that demonstrated how the subconscious mind works independent  of the rational mind involved playing cards. In 1997 neurosciencetists  conducted research with the subject being connected to a device to measure nervous system reaction. They gave the subjects four decks of cards and asked them to choose one card at a time. Each card represented a gain or loss of money. Unknown to the subjects the decks had been stacked either favorable or unfavorably to winning. It took the subjects an average of 25 draws of  cards from the decks to realize which decks were good or bad for them and express this at a rational level. However the connections to their autonomic nervous system indicated the subconscious mind had determined which the deck was better long before the subject was consciously aware of it.  Studies involving fMRI have clearly demonstrated that the subconscious mind makes decisions as much as ten seconds before the rational mind expresses the decision and then gives a rational reason without realizing the decision had been made subconsciously.

The “conflict” of functions between the right and left brain is best understood as a “team of rivals.” The right brain is the side of creative thinking and open to new thoughts or ideas. It is the creative side. The left brain is the logical, rational and orderly side of the brain. When we are presented with arguments or ideas that conflict with our established values or opinions, fMRI has demonstrated that while the right brain is “willing to listen” the left brain reacts exactly as it would if faced with a fight or flee situation. It is strongly resistant to new or conflicting ideas. There is a balance between them that allows us to function in a normal manner. However, one cannot overlook the significance of emotion in this process as well. It is impossible to make a decision without involving emotion. There is a always balance involving the rational and the emotional functions of our brain in our thinking, decision making and daily activities.

These facts are important for us to know as trial lawyers because we must not present our communications or our cases assuming rational analysis will be used to receive it. We need to understand the importance of the emotional part of our story telling about our cases. We must accept the fact that since the unconscious mind plays such an important part of decision making our trial work is really a matter of impression and not logical persuasion.


  1. Hi Paul,

    Don Keenan sent out this blog of yours a couple days ago. Here’s my reply to Don, which was meant for both of you. Thanks, Ed

    Hi Don,

    I just read Paul’s blog and felt the need to share a comment with both of you. What’s prompted me to write is this sentence: “We need to understand the importance of the emotional part of our story telling about our cases.” What I have noticed for several years is the substantial lack of knowledge that trial lawyer have about the human emotions. Here’s Paul writing an insightful and useful piece on the brain and it’s functions, and his conclusion is that the reason that it’s important to understand the brain (a very popular topic currently) is so that we understand how crucial the emotions are in human decision-making – and therefore in jury trials. But in my experience in the plaintiffs’ personal injury world for the last 12 years, limited admittedly to California, I have not met any lawyers who have a real understanding of the human emotions and how they work — not lawyers who’ve been to many of your seminars, and not graduates of the Trial Lawyers College, and not members of the teaching staff of TLC. They don’t know the emotions behind betrayal (which Gerry Spence says is the key theme to every plaintiff’s case); they don’t know fear/anxiety in any depth, how it works, it’s range, how to identify it in any instances other than its most obvious manifestations, or how to work effectively with clients who are experiencing it; or grief/anguish; or anger/rage; and especially and particularly they have practically no knowledge of or facility for working with the most powerful of all emotions, shame. I have been struck by the very poor vocabulary that many lawyers have in even talking about the emotions.

    (I was a trial lawyer for about 20 years and then happened to go back to grad school and earn an MA in Counseling Psychology (the psychotherapist’s degree). That’s the reason I have some awareness of emotions – plus my ongoing education in psychology.)

    I think what’s really missing in both your Reptile training and in the Trial Lawyers College training is a thorough working knowledge of what Paul pointed to in the blog today. What are the basic human emotions (there are about eight), how do they work, what are the ranges of expression for each, how can the trial lawyer recognize them (whether in talking with the client, reading reports, doing depos, preparing openings, and especially in conducting voir dire), and what impact do the various emotions have on other people (i.e., jurors). Emotions are so important because a) they give Meaning to behavior and events, and b) they indicate our Motivations – both highly significant for trial work.

    Thank you for all you do for plaintiff’s attorneys, and thank you to Paul for all he does too.
    If you feel it’s appropriate, please forward this to Paul.

    Best regards, Ed

    Ed Semansky, JD, MA, TEP
    Attorney at Law
    San Mateo, CA 94402

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