Volume 16, Issue 1 Summer 2011 Neurolaw or Frankenlaw? Brain-Friendly The Thought Police Have Arrived Case Stories By Larry Dossey, MD Part Two Reprinted with the author’s permission “This technology . opens up for the first time the possibility of punishing By Eric Oliver people for their thoughts rather than their actions.” —Henry T. Greely, bioethicist, Stanford Law School Without the aid of trained emotions the intellect is powerless against the animal organism.” Wonder Woman, the fabulous comic book heroine, wields a formidable - C. S. Lewis weapon called the Lasso of Truth. This magical lariat makes it impossible for anyone caught in it to lie. FIRST THINGS FIRST American psychologist William Moulton Marston created Wonder After the August, 1974 resig- Woman in 1941. He hit a nerve; Wonder Woman has been the most popular nation of Richard Nixon, an apoc- Continued on pg. 32 ryphal story began making the media rounds. It seems one of the major outlets had run a simple poll, asking respondents who they had voted for in the previous presi- dential race: McGovern or Nixon. have a most productive and practical contribution According to the results, Nixon had to share with you from my friend and consulting lost to “President” McGovern by a colleague, Amy Pardieck, from Perceptual Litigation. No stranger to these pages, Katherine James, landslide! Whether it is true or not, of ACT of Communication, makes the case that ac- the story rings of verisimilitude. Hi All – tors and directors have known for decades what tri- What the pollsters didn’t measure, Welcome to the second issue of the new al attorneys interested in bridging the gap between and which would have been much Mental Edge. This little newsletter has long been themselves and decision makers of all stripes may a repository for articles and items dealing with the want to learn, sooner than later. Interestingly, you more revealing, is just how many brain, the mind and legal decision making, and this may find, the focus for successful communication of those people now claiming to issue is no exception. First, the brain. My friend Dr. with another isn’t best placed on that other, but on have voted against the man who Larry Dossey has allowed me to reprint an article your own “performance”. actually did win by a landslide really from the journal EXPLORE, of which he is the ex- Finally, the second half of my piece, begun ecutive editor, dealing with the history and current last issue, was prompted by a single question about believed they had voted for the real fascination with measuring neurological processes the mind and legal persuasion. The question is, if loser. Polygraphs wouldn’t have and trying to pin down mental ones by doing so. As case stories all start in the decision makers’ minds been much help, as they can only the great neurologist Wilder Penfield wrote, “Now outside conscious reach and control, but we must measure physiological reactions that we know so much about the brain, does it tell respect their conscious parts, too, what are the us any more about the mind?” The ramifications of a necessary and essential steps to take to make sure to what someone thinks is true or rush to prefrontal judgment are scary, indeed. you’ve adequately addressed the whole brain judg- not. Whether people just wanted Next, the mind of the judge, and what you ing your case? Last issue, I laid out three essential can – and should – be doing to influence them steps to develop a persuasive case story. This article Continued on pg. 9 with some respect for how the mind works behind is dedicated to exploring three essential steps for the bench, in particular. I’m pleased to once again case story delivery. Enjoy! - E.O. FROM JUDGES TO JURORS – By Amy Pardieck, Perceptual Litigation, Bloomington, Indiana Reprinted with the author’s permission A trial lawyer’s ability to persuade favorable rulings daily. Independent the three main “frames” discussed be- jurors begins by establishing a positive of the merits of the case before them, low. relationship with the judge. Although most are resistant to game playing, jurors have no actual knowledge about long-winded arguments, disorganiza- BUILDING RAPPORT the judge’s opinions of you and your tion, abuse of court time, off topic rants, The strongest rapport builders and case, they quickly develop a sense of a confusing exhibits, and even uninten- rapport saboteurs with the judge be- judge’s attitude about the lawyers and tional misstatements of the law. Their gin with speaking tempo and volume. each party’s case. It is as if jurors have perspective makes them especially re- When your judge speaks slowly and “extra-sensory perception” in this re- ceptive to arguments that are on point, softly, firing high volume rounds at full gard. They are not aware of the impact succinct and well founded. speed of even articulate argument will a judge’s non-verbal behavior has on Everyone reacts to first impressions prevent you from being able to estab- them, but when a judge thinks either – whether they want to or not. Primacy lish a good rapport. Likewise, when your positively or negatively about you or affects judges the same as it affects ju- judge operates in the fast lane, s/he will your case, jurors pick up on that and of- rors and the rest of us. As a result, the quickly lose interest if your argument ten follow suit. judge’s opinion of you and your case runs in slow motion. The closer your Judges are the ultimate authority in starts with his/her first impression. speaking tempo and volume mirror the jurors’ eyes. Jurors watch judges closely Therefore, it is important to begin de- judge’s, the more rapport you can build. for both large and small clues indicating veloping a positive relationship with Most judges and jurors don’t consciously their opinion about specific issues, the the judge by presenting yourself and notice a mismatch between your speak- parties, and the attorneys. These clues your case in the most positive and pro- ing style and the judge’s, but everyone include how many objections are sus- fessional manner as early as possible. unconsciously notices this mismatch. tained and overruled for each side; the Hearings provide you with an op- Similarities in tempo and volume are judge’s rapport with the attorneys; the portunity to begin educating the judge one way of showing the judge and jurors tone of the judge’s voice when address- about your case and to begin develop- on an unconscious level your respect for ing each lawyer, party and witness; the ing a rapport with the judge – that is, the judicial relationship. judge’s attentiveness to one side over giving him or her reasons to have a Attorneys usually present argu- the other; the length of time the judge positive attitude toward you, your cli- ment in a manner most appealing to looks at or speaks with one attorney ent, and your case. However, for many themselves, rather than in the manner over the other; the judge’s willingness attorneys, hearings become so routine that makes the argument most acces- to accommodate each side with regard that no real consideration is given to sible to their decision maker. Present- to breaks, admission of exhibits, use of effective presentation techniques. In- ing argument according to your judge’s audio visual equipment; and any other stead, attorneys come armed only with preferred decision-making process, rath- matter requiring the judge’s interven- their argument; and, as a result, fail to er than your own, can enhance rapport tion. take full advantage of what is an op- and will help to establish a positive rela- While most judges work to neutral- portunity to begin demonstrating to tionship with the judge. ize their demeanor, give both sides a the judge the merits of your case and Judges demonstrate their preferred fair trial and minimize their personal in- the legal positions you are taking, your decision-making process each and ev- fluence on jurors, they have no control respect for the court’s time, and your ery time they rule. Most decisions are over their unconscious, nonverbal be- credibility. made in one of seven ways, based upon: havior. Nonverbally and unconsciously, Your relationship with the judge snap judgments, authoritarianism, de- everyone, including judges, responds can be broken down into three com- liberation, rules, procedures, following to effective and ineffective communica- ponents: your level of rapport; how the leaders, or contrarianism (figuring tion techniques. A judge’s perspective compelling the story about your case is; out what others are thinking or doing is unique. They have people wanting and, how well your arguments focus on Continued on pg. 4 News from the Mental Edge Page 2 EVERYTHING I EVER NEEDED to KNOW ABOUT LIVE Communication I LEARNED from Konstantin StanislaVSKI: Common Mistakes and Best Practices – By Katherine James Reprint by permission of Author I am a lucky woman. I have been an One of my friends has changed the go to some extreme over-the-top place actor since I was five years old. I have old adage, “I teach best what I most sooner or later in rehearsal. I try to stay had the great fortune of working with need to learn” into a newer saying I em- “grounded” in performance (even more and studying under some of the finest brace with this piece: “I teach best what difficult with the splendid magic of a disciples and practitioners of the great I learn best - and I love what I teach.” It live audience).