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Law and the Brain


Our knowledge of how the brain works has expanded dramatically. I tried to catch up with some of this research at the conference mentioned in the post below, whose main topic was how the legal profession, specifically mediators, can make use of the latest discoveries about the brain. It is really interesting to scientists to find out which parts of the brain light up during various kinds of activity, but is it possible for lawyers deliberately to stimulate the parts that will persuade juries to think favorably about their clients? Can mediators employ techniques used by brain researchers to boost the levels of brain chemicals that are conducive to obtaining a settlement?

It is interesting, for example, to learn that research has verified that humans are more guided by their emotions than their reasoning ability, but the best trial lawyers have always known this, even if they were not aware of which parts of the brain were responding to emotional arguments and which to logic. Clarence Darrow was famous for making the jurors and spectators weep during his closing arguments. These were not appeals to logic, but to emotion.

What may be even more interesting than knowing how brains typically react, is knowing how to manipulate the way brains can respond to various stimuli. I heard a lecture by Dr. Jeffrey Schwartz, and later picked up his book The Mind and the Brainin which he talks about how we can not only direct our brains to use logic to overcome instinct, but can also expand the areas of the brain devoted to the tasks that we practice. (My terminology may not be the same as neuroscientists, but hopefully I am getting across similar ideas.) Schwartz described an experiment in which people were shown pictures of gruesome car accidents, and taught to overcome their natural inclination to react with disgust or fear. They did that by trying to look at these pictures as if they were emergency medical technicians with a job to do. When they re-evaluated the same information with these instructions, researchers, using imaging technology, could see the subjects activating higher order mental processes instead of more basic “fight or flight” responses.

Often lawyers must deal with people’s emotions, either to exploit them for the purpose of pleading a client’s case, or to overcome these emotions for the purpose of getting a client or adversary or fact finder to look at the facts from a more logical viewpoint. The ability to encourage people to concentrate their minds on the facts of a case from various perspectives, which is an important part of what we do at trial, seems to be a powerful tool. Science seems to back up what the most skilled practitioners have known for a long time about techniques that are persuasive.

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