The single most revered precept in law is that of objectivity, rational thinking and absence of emotion in arriving at conclusions. It was drilled into our heads by law professors, case law and legal textbooks that we were to completely exclude any emotional component when analyzing or reasoning. For trial lawyers our experienced has historically been a repeated insistence by the judge, jury instructions and appellate decisions that all emotion must be excluded in evidence  or with regard to arriving at conclusions. No  emotion is allowed with regard to the role of the judge, the trial lawyer or the jury. The law historically has adhered to the idea that human beings on a jury can exclude in their mind testimony which they have heard no matter how prejudicial simply because the judge has told them to do it. Judges have quickly accepted the assurance of jurors that they can set aside values, life experiences, and lifelong prejudices because they say they will follow the law no matter how they feel emotionally. Historically the law has adhered to these totally erroneous views in spite of research and advanced which overwhelmingly demonstrates how untrue they are.

The evidence has been piling up throughout history and now neuroscientist have proved that it’s true, that is, the brain’s wiring emphatically relies on emotion over intellect in decision-making. For example USA Today has reported the results of a published study in an article entitled” Emotion Rules the Brains Decisions.”  Dr. Benedetto De Martino led  a study at University College, London which was published in Science. He reported that in their studies:” we found everyone showed emotional biases, more or less; no one was totally free of them.” The study is one of a number of research studies into neuroeconomics which studies the brain’s role in buying and selling decisions. Economists believe that irrational psychology, rather than cool calculation, plays a significant role in such decisions. This study suggests that emotion rules decisions almost completely.

Excluding all emotion in decision making would probably not be a good idea even if it were possible. As one scientist said: “I am  not really sure you would want someone like Mr. Spock making all of your decisions.”  In fact, they note that people who lack emotions, because of brain injuries, often have difficulty making decisions at all. What makes us rational is not suppressing emotion but tempering it in a positive way based upon memories of past decisions and life experiences.

From this study and a great deal of research using fMRI studies we now have proof as to the essential role emotion plays in decision making. The judge or appellate court who are self assured no error occurred because a jury was instructed not to pay any attention to evidence or because a juror  has agreed to disregard emotional feelings and follow the law are simply totally misinformed. Lawyers  who ignore the power  of emotion in telling  their client’s story are missing the boat  and ignoring reality.


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