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The Advantage Blog

  • Tsongas Litigation Consulting


Updated: Jul 14, 2023

It’s not often that my 15 year-old son tells me there’s this “great” show he wants me to watch with him that doesn’t involve car chases, fights, and some bad jokes. But that’s what happened last week when he told me about a show on the National Geographic Channel called Brain Games. On the air since 2011, I’m just finding it and am completely addicted.

The show makes the science, magic, and mystery of the brain interesting and interactive as it gives viewers a number of “brain games” to complete that emphasize the episode’s point. Titles include: “Battle of the Ages,” “In Living Color,” “Seeing is Believing,” and “Focus Pocus.” Each will teach you something fascinating about how the brain works; and each has the potential of teaching you something important about your trial strategy.

For example, one of the first episodes dealt with attention. It’s a fascinating look at how much we miss, not only due to our inability to focus on more than one thing at a time, but also because of the choices our brains make about what is and isn’t important. The inability to focus on multiple things at once becomes painfully obvious while trying to do what sounds like a simple task: count the number of bells in a picture while also counting the number of time you see the word “BELL,” and the number of times you hear a bell ring. Try it here. It’s impossible (and was also quite helpful as I used it to show that same son that he cannot listen to music, Snap-chat with friends, and study for a biology test all at the same time).

The episode also deals with how our brains can be tricked or manipulated into focusing on one idea over another. In trial, it’s essential for jurors to pay attention to your key points, which can be difficult for them considering everything that happens in court, and on top of the jury’s real task: trying to make sense of the conflicting information constantly thrown at them. Understanding how movement, colors, language choices, and certain persuasive strategies can help you not only gain your jury’s attention, but also keep it focused on the things most important to your case, is critical to success.

Another topic dealt with persuasion. Considering the field we are all in, I’m sure we’ve all done plenty of reading on this topic. And I bet we all consider ourselves resistant to various persuasive tactics. However, all of us, even persuasion experts, are prone to our brain’s natural predilection for choosing items and positions that “feel” better – those that fit our preexisting attitudes and experiences, and those that come to us without much cognitive effort. Persuasion is not a rational, straight-forward process where people analyze the arguments, and then come to a reasoned conclusion. We are all cognitive misers. The brain looks for short-cuts that can be activated through “anchoring,” the use of an “authority” figure (perhaps an expert), or appeals to the norm. Understanding these short-cuts so you can utilize a strategy that activates the helpful ones does not make your argument or case weak, and it definitely does not mean your jury is “dumb.”

The more we learn how much of what we do − how we think and how we make decisions − comes from brain activity beyond our awareness, the more we might want to throw up our hands and think there’s nothing we can do. But, “beyond our awareness” doesn’t mean “beyond our ability to learn and adjust.” Understanding how the brain works should bring more clarity to your litigation efforts. It should help prioritize what can and can’t make a difference – what can and can’t help any audience (not just a jury, but also a judge, mediator, or arbitrator) pay attention to, process, and remember your case to your advantage. It also highlights the importance of jury selection, because what should be obvious is that you can present the best case possible, but if the jurors’ pre-existing attitudes and experiences run counter to your story, it will be next to impossible for that jury to fairly “hear” your case.


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