Chapter 10

• Jurisdiction: United States

Chapter 10 Resistance to and Rejection of Advocacy

Tour proposition may be good, but let's have one thing understood: Whatever it is, I'm against it. And even when you've changed it or condensed it—I'm against it!

—Professor Wagstaff (Groucho Marx) in the 1932 movie Horse Feathers by Paramount Pictures

When a doctor taps your knee with the rubber hammer, your normal reflexes cause your lower leg to react involuntarily. The rejection of persuasion will be a similar reflexive reaction depending on how information is presented. Why don't the best facts always win the case? The brain resists persuasion, accepting some information but rejecting other information regardless of the logic. This chapter discusses the science of why the brain works this way.

There are powerful psychological barriers that protect everyone, including jurors, from being overwhelmed by new information. Components of these barriers might be described as a belief system or worldview in which people can make sense of their environment. To maintain the comfort of this status quo, the brain is skeptical. And this skepticism favors the defense because it can prevent juries from being persuaded by lawyers representing plaintiffs who are asking that the status quo be changed. The brain's resistance to persuasion cannot be overcome by overwhelming evidence or eloquent oration. When a person's belief is challenged with solid evidence to the contrary, the belief often becomes stronger. When people are told what they should believe, many reject the message and strongly consider the opposite. Each of these phenomena occurs in part because of how the brain works. And when the subject matter is complex, it is frequently rejected in favor of simpler explanations. Many political candidates are successful because they recognize that simple solutions and appeals to core beliefs often overcome logical explanations of how complex things really are. Every juror's brain is wired to resist persuasion and reject some of what they hear.

Some resistance to persuasion is reflexive and some is hard-wired. Recent studies have proved that there are two areas of the brain that are involved when new information is received: the learning part and the conflict detection part.¹ Functional magnetic resonance imaging (fMRI) has demonstrated that when information was received that conflicted with a person's beliefs, the conflict detection part of the brain was activated, supporting the theory that there is a "biological filter" that prevents the inconsistent evidence from being considered. Persuading people whose beliefs prevent the consideration of contrary views is discussed in later chapters. But there is also reflexive rejection of facts and logic that is a common psychological characteristic. Trial lawyers who understand the pertinent brain science and psychology will be able to avoid these reflexive cognitive triggers. Using a nautical analogy, a ship can't be steered safely if the captain doesn't know...