Lizards Don’t Laugh.

Personal injury lawyer Paul Luvera has written about Applying Reptile Concepts in Trial—describing how plaintiffs’ lawyers should appeal to jurors’ reptile brains.

The reptile brain is the core of the human brain, sitting right at the top of the spine surrounded by the later-developing dog brain and ape brain. The reptile brain is a survival engine, concerned only with survival: kill, eat, mate, flee. To get through to the reptile brain, you show it a threat, a way to mitigate or resolve that threat, and a greater threat that could otherwise result. In the example of a personal injury trial, says Paul, the plaintiff’s lawyer wants to make the points that:

  1. The defendant’s conduct threatens everyone’s safety;
  2. A proper verdict for the plaintiff will reduce the danger; and
  3. If a proper verdict for the plaintiff is not given, the danger will be increased.

Easy to see how these apply to many criminal trials (at least trials involving mala in se, rather than regulatory offenses), right? Prosecutors use something like it in every jury trial—make the jurors afraid, then give them a way to be safer—though probably without realizing that they are appealing to the reptile brain.

There is much research and thought being conducted into how to win plaintiff’s personal injury trials because there is so much personal benefit to the lawyer in winning one of those trials. Civil defense lawyers and prosecutors aren’t putting as much effort into finding new ways to try cases as plaintiff’s lawyers are.

Nor are criminal-defense lawyers—most criminal-defense lawyers are struggling to make a comfortable living, and those that aren’t don’t necessarily have the tools or inclination to spend their free time figuring out how to try cases smarter. Sometimes we borrow from the personal injury lawyers who, like us, are representing human beings.

Unlike us, though, the personal injury lawyers are fighting over a quantifiable form of justice—justice as dollars—and they are on the offensive. So often (as, I contend, with the Reptile Trial) we can’t use their science to our clients’ benefit.

Not, at least, directly. But if we recognize that what our adversaries are doing is (whether consciously or not) appealing to the jurors’ reptile brains, then we can try to a) make a stronger appeal to the reptile brain; or b) disengage the reptile brain, and engage the dog brain or ape brain. Neither is an easy proposition.

First, jurors expect the government to protect them from people doing bad things and expect us to try to protect people doing bad things. So in order to appeal to jurors’ reptile brains ourselves we have to reverse these expectations. We have to show why the government’s conduct threatens everyone’s safety. While it is often true that the government’s conduct threatens everyone’s freedom, such an argument is an appeal to the simian brain, and can’t serve to divert the reptile brain. It’s less often arguable that the government’s conduct presents a threat to jurors’ safety. If you can’t get the jury thinking that they have to protect themselves and their loved ones from the government, their reptile brains aren’t going to help you.

Second, evolutionary biology has given the reptile brain veto power over the rest of the brain when there is an imminent threat. Until the threat is resolved, the mammalian and simian parts of the brain—the parts that deal with emotion, complex social interaction, advance planning—don’t get a vote.

Fortunately, our higher brains have a mechanism for taking control back from the reptilian brain. We even have a universal signal to tell our fellow humans when this has been done.

The mechanism is incongruity. The reptile brain is simple, one-tracked and without nuance. It can’t handle incongruity or surprise. When the reptile brain encounters something unexpected, it hands the job off to more complicated parts of the brain (“okay, mammalian brain: I’ve never seen one of these before. Should we flee it or mate with it?”).

So the criminal-defense lawyer can destroy the government’s reptilian argument by revealing a surprise that doesn’t fit in with the government’s reptilian story (an argument for maintaining Nasty Little Surprises until trial). In the words of trial consultant Dennis Elias, “Suspending disbelief & creating doubt that leads to curiosity and surprise is the art of the criminal defense attorney.”

And what’s the universal signal that tells us when our lizard brains have handed off to our mammalian and simian brains? It’s laughter. According to both the incongruity and relief theories of laughter, the surprise that gets us out of our reptilian brains is a trigger for laughter, either because the incongruous is inherently funny or because we are relieved to discover that we are out of danger. Find the surprises in the case, and reveal them to the jury, and you can get them using their higher brains. Do it in jury selection, if you can—take some part of the case that the government hammered on in its jury selection, and show the jury why things aren’t as they expect. Make them laugh, and make it a Simian Trial.

Once you’ve got the jury using their more complex brains, you want to keep them there. How? Two ideas.

First, the government’s Reptile Trial is a Things-That-Go-Bump-In-The-Night Trial. Things that go bump in the night can seem silly in the light of day, and the government’s perceived threat can seem silly to the mammalian brain.

Second, the rule of Reptile Trials is “simplify, simplify, simplify.” Since the lizard brain doesn’t deal with complexity, the rule of Simian Trials is the opposite.

Complexify, complexify, complexify.

(If you’ve arrived here from Overlawyered, you might be interested in The Ethics of Pathos, Part I.)

0 responses to “Lizards Don’t Laugh.”

  1. Mark: Thanks for the thoughts. My Simian brain is really thinking about them. I like this line of thinking. I was definitely up against the boogey man in my last child pornography trial. I Iremember that Tony Vitz introduced “outside pressures” in his last dui trial. I am wondering how to make this work to get past a judge’s knee jerk reaction that he must lock up a young man despite his brain damage because he looked at child porn, when this young man will get brutalized in prison. Anna

  2. I really enjoyed this post. And I believe it is advice to be followed, particularly in cases where the “simple truth” of the case seems to be harmful to the client. Complexities such as justification, mitigation, and — if nothing else — explanation, can serve to get the higher parts of the jurors’ brains working. You’re spot-on about that, and also about somehow getting juries to laugh. Most prosecutors are warned early (or learn the hard way) about defense attorneys who are successfully able to blunt a serious case with humor.

    But at the same time, this advice appears to conflict with some other good advice you’ve given on this blog, that seems even more fundamental: Find a truth in the case that helps your client, and forcefully present it to the jury. Make it your own and ride it as far as it will take you. The best and most effective presentations of evidence are always — and of necessity — simple. Jurors can often sense when artful arguments and intricate theories are simply meant to distract them. When they do, the reptilian brain takes over again with a vengeance and such efforts can seriously backfire.

    So, in light of this, do you think it is fair to say that a defense attorney going into trial needs to decide, among other things, whether they are facing a “Reptile Trial” where the facts are not in their favor (even more so that the norm) and the State will be appealing to the more primitive reptilian instincts: Mate, flee, or (as you omitted) kill. Or is the trial going to be an actual contest of facts, where there are certain facts, which, if proven, will be difficult for the Government to overcome?

    If the latter is true, “complexifying” could prove to be a big mistake. –Oh, and congrats for earning a dubious comparison to NFL announcer-speak by “verbifying” an adjective. Actually heard one use the word “escapability” the other day. Speaking of reptilian brains…

  3. Dear Mark ~I am grateful to you for the time and insight you gave to this post. I have been troubled by the rush to appeal to the the “reactive brain” while ignoring or forgetting that folks also have a reflective mind. As an RN, JD and trial consultant who works on the Plaintiff (and criminal defense) side of the aisle, I recognize that there are many tools and techniques available to tell the story of the case in a compelling and masterful way to connect with the decision-maker on an emotionally meaningful level. Yet, one of the things that may go missing with an appeal to the more primitive structure is neglecting the complex, higher functioning (dare I say compassionate?) nature of human beings who decide our cases. And, as I was reminded today by an attorney headed to trial armed with a compelling story: his passion and belief will shine through to the jury. That is his truth. He is relying on an ancient aspect of communication taught by Aristotle. I wish him well.

  4. Dear Mark,
    I really enjoyed and benefitted from your post. As we discussed on the internet a couple months ago, I went to a lecture by one of the researchers of the reptiallian brain book for lawyers. I practice primarily criminal defense but I wanted to know what all this “hoopla” was about this book. Jim Fitzgerald, a great personal injury lawyer, was the speaker. He basically said the book boils down to three reptillian concepts when we interact with our world: can we eat it? can it eat us? and can we mate with it? I have only taken a cursory look through the book at this point in time and would like to add more to this discussion when I am more versed in the concept. Based upon what little I know now I think somome of the concepts can be used: we, as a society, need protection from the police who will eat us (eat our client) to meet their own perspective of what the ends should be if we don’t stop them; we need protection against prosecutors who are more concerned about winning that about justice (eat our client). I agree that most prosecutors don’t know (or care much) about how to most effectively appeal to the jurors true selves and perhaps their reptillian brain. I will report back after I have read more of the book. Great Post. It’s motiviating me to read the book over Christmas holidays.

  5. Three things: First, there are Reptilian methods for criminal defense that are effective enough to change the face of criminal defense practice as effectively as they have changed plaintiff’s civil practice.
    Second: The notion that the Reptilian brain deals only with immediate threats is dead wrong — ask Karl Rove, who along with insurance companies and corporations used Reptilian methods to effectively poison more than a third of the population with respect to civil trials (not to mention getting Bush re-elected) mainly by means of mid-term and long-term Reptilian-level threats. Hitler used the same Reptilian methods — with mid-term threats. It is true that the Reptilian part of the brain does not deal with mid and long-term threats on its own, but it is running the show during any threat (or any potential survival advantage) be it short, medium, or long term. If this were not true, birds would not fly south in winter because the threat of no food and freezing is — for a bird — long term.

    Third: Laughter does not get anyone out of a Reptilian mode; instead, laughter can be a result something that “pleases” the Reptilian brain by diminishing a threat or increasing a survival advantage. In other words, laughter is a result, not a cause. As for incongruity: Incongruity is in itself a basic Reptilian threat and thus increases the activity of the Reptile.

    I’m sorry there is so much misunderstanding of how Reptilian advocacy works, because a proper understanding is of inestimable value. In any event, at least don’t start laughing in trial unless your liability insurance is paid up! At most, a very few lawyers might be able to pull it off. Don’t gamble on it unless you are somehow certain you are one of them.

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