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Damages and the reptilian brain: the 'reptilian brain' governs our survival responses. Tort 'reformers' have long used these responses dishonestly to their advantage. This introduction to a new kind of advocacy will help you show jurors that the real danger is from the defendant's misconduct.

Article Excerpt
For nearly four years, three attorneys--Don Keenan of Atlanta; James Fitzgerald of Cheyenne, Wyoming; and Gary Johnson of Pikeville, Kentucky--and I have been investigating apart of the brain neuroscientists call the R-complex, or "reptilian," brain and how it affects the kinds of decisions jurors are called on to make.

Our impetus came from a beach where Don Keenan has a home. Soon after moving in, Don discovered that his next-door neighbor is Karl Rove, one of the plaintiff bar's archenemies. During what Rove probably thought was casual conversation, Keenan got him talking about persuasion. Rove particularly praised the work of marketing guru Clotaire Rapaille. (1)

Soon after hearing about Rapaille, Keenan propelled us into the adventure of our lives. It took us through evolutionary science, neuroscience, and an extensive series of participant-centered research projects across the country.

We began, as good research demands, with deep skepticism. And we had reason for skepticism: Although Rapaille and other marketers had long demonstrated that enlisting the reptilian brain is marketing's most persuasive tool, and although Karl Rove and company are only the latest in a line of persuaders who have empirically proved the principle over thousands of years, marketers need to persuade only a few percent of the population. And political persuaders such as Rove need only a bare majority.

But trial lawyers need to persuade 75 percent to 100 percent of the jurors in a case. Could the reptilian brain get us there? The mere possibility seemed worth the effort of finding out.

Rapaille's techniques provided our starting point. They derive from the work of National Institute of Mental Health neuroscientist Paul MacLean, who developed the concept of the three-part (triune) brain in humans. MacLean called the most primitive part "reptilian" because it is identical to the full brain of modern reptiles. (2)

The reptilian part of the brain--which my colleagues and I simply and affectionately call "the reptile"--runs our autonomic life functions. She (an arbitrarily chosen pronoun) creates, directs, and motivates our survival drives, such as hunger, sex, and danger avoidance. She has no emotion, thought, or memory but enlists those services from other parts of the brain to fight for your--and your genes--'survival chances.

Whenever anything can potentially affect those chances of survival--even a little--this most primitive thing in your head grabs full control of the entire brain. This includes control of your logical, emotional, and other decision-making resources. As soon as a survival danger crops up, the reptile rearranges the brain's priorities, placing the reptile's only concern--survival--on top.

Lineages in which survival concerns took a lower priority could not have survived the unforgiving macro and micro forces of evolution. (3) Lions' primary survival...

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