Written by John R. Layman
The purpose of this article is to provide general guidelines for developing themes and the unconscious mind for a TBI case. There are numerous articles by jury consultants, psychologists and trial lawyers regarding general theme development. I have identified several good articles and presentations regarding the development of themes.
My focus, however, will be on exploring the neuroscience research and its application to both the ramifications of a TBI on the unconscious mind and its relation to themes and presentation of your case.
The number one responsibility for a lawyer is PREPARARTION! If you don’t understand these cases associate or make a referral. The CDC Toolkit for Healthcare providers provides substantial information regarding the causes, frequency, symptoms and recovery of TBI. Only after these are fully understood can you adequately represent a TBI survivor.
We are familiar with the fine work done by David Ball and Don Keenan and the major axiom” WHEN THE REPTILE SEES A SURVIVAL DANGER, SHE PROTECTS HER GENES BY IMPELLING THE JUROR TO PROTECT HIMSELF AND THE COMMUNITY” (Reptile, 2009 Manual of the Plaintiffs’ Revolution p.19
The underlying neuroscience of the “Reptilian Brain” and the unconscious mind is explained in an excellent book Subliminal- How Your Unconscious Mind Rules Your Behavior by Leonard Mlodinow. Dr. Mlodinow has a Ph.D in theoretical physics and has co-authored The Grand Design (with Stephen Hawking).
In the book he explains the development of neuroscience and how the unconscious mind shapes our experience of the world and how we react to the events of our lives. He outlines how our mind works on two levels: both the unconscious and the conscious. The unconscious mind controls and/or influences many of our decisions, judgments and perceptions without us being aware it is even at work.
Dr. Mlodinow was not writing for trial lawyers but I believe it has a treasure trove of information to assist us in understanding our clients and effectively communicating to a jury. He actually compares the working of the unconscious mind to that of a lawyer vs. a scientist.
“THE HEART HAS ITS REASONS OF WHICH REASON KNOWS NOTHING” BLAISE PASCAL
Neuroscience is a new field that has advanced rapidly. Technology has made the rapid transition from theoretical psychological theories to hard science of how the mind works. The advance of new technology, specifically the ±MRI offering 3 dimensional pictures of the working brain has helped advance the science of the unconscious. Historically, the subliminal was speculated on by lung, Freud and many others. The first meeting of neuroscience took place in 2001. As an example, the ±MRI can actually take data from your brain and reconstruct what you are looking at. (2, p. 6)
As a result of the ±MRI, scientists are able to actually document the physiological changes in the brain. The result has been a greater understanding of the significant role that the unconscious mind plays in our lives.
The unconscious mind is not just limited to Freudian lust and anger parameters. Neuroscience has identified that the unconscious is really our basis for survival. The speed and necessity of actions and decisions have been delegated to brain structures outside our conscious awareness. (2, p. 18)
For trial lawyers, that unfortunately means the basis for decisions made by jurors are often not obvious. Even the actual juror will not be aware of the real reasons for their decisions as those reasons may often be buried in the unconscious mind. While certainly not without value, we should be aware that our post jury interviews may not reveal the reason for their verdict. In marketing and advertising tests participants proved over and over again that they were completely unaware of what factors actually influenced their decisions.
We judge boxes by the color and books by the covers when a pretty box or fancy cover are not really relevant. For example, does music influence the type of wine we purchase? A study was done where French music was played and the wine sales were 77 percent French, 73 percent German when German music played, and only one person in seven identified music as a factor in the decision. (2, p. 21)
Rangel proved that our enjoyment of a product is not only based upon its quality but also its marketing. Studies have shown in blind testing there is little correlation between taste and cost. However, the opposite is true when not tested blind.
Rangel conducted a test of two wines, one $90 a bottle and the other $10 a bottle and the wine tasting was done while having a fMRI brain scan. The results showed that the price ofthe wine increased activity in the area of the brain associated with experiencing pleasure. Rangel actually used the same wine in both bottles and the taste and experience should have been identical. However, the subject tasting the wine labeled
$90 actually experienced a different experience and relative enjoyment. (2, p. 25)
The message as in the Pepsi v Coke tasting is that our brains are not just recording a taste or experience but actually creating it. The influence of our unconscious is great and thus many of our basic assumptions about how our jurors reach decisions are false. The unconscious goes way beyond our greatest expectations.
Dr. Mlodinow outlines how our brains process information through two parallel tiers, one conscious and one unconscious. The unconscious operates independently of the conscious and plays a critical role shaping our experience and response.
“Senses Plus Mind Equal Reality” LEONARD MLODINOW
The science has established that this two tier system operates together and the unconscious tier is more fundamental. This supports the Reptilian approach. Basically, our unconscious was developed early in our evolution to ensure our very survival. Most non-human species survive with little ability for conscious reasoning and thought. It is estimated that the human sensory system sends the brain 11 million bits of information every second. (2 p. 33)
Our conscious minds have trouble multi-tasking between two or three things at a time. Our conscious mind can’t keep up with this flow of data. It is believed that the unconscious mind processes such massive data in order for us to survive. Our processing of this large amount of data all seems effortless because it is processed seamlessly in the unconscious,
Have you ever asked how a TBI interferes with this unconscious efficiency?
Some scientists estimate that only 5% of our cognitive function is actually conscious. (2 p.34) If the other 95% goes on beyond our awareness, how can a TBI survivor fully understand and explain the result of the injury?
Is this one of the reasons we hear explanations from survivors like “My brain doesn’t work right,” “I want the old John back”, and “I have lost my mind?” We know that the loss of subtle processing can interfere with speech and the ability to process meanings which we take for granted. As an example, “The cooking teacher said the children made good snacks.” We instantly understand what “made” means. But it could be interpreted that the teacher is a cannibal. Many TBI patients suffer from problems understanding such subtle language intricacies.
Unconscious Mind And Fatigue
A very good illustration of the complexity and importance of the unconscious mind is energy consumption. If we lay on the couch our physical energy is very low compared to if we run wind sprints when the physical energy demands go up 100 times. However, testing has shown that mental zoning out on the couch vs. playing chess or other high concentration effort only changes the energy output by 1 %. The reason is the unconscious mind is what uses most of the energy of the brain. A TBI causes fatigue even when the survivor is not performing any strenuous mental activity. Extra effort and energy is required to assist the unconscious and conscious brain. I have had doctors explain that functioning with a TBI is like running a marathon every day.
Processing Data For The Eyes
A very important function of our unconscious is processing data for our eyes. Evolutionary “Reptilian” nature has required that we effectively and rapidly see and react to danger and food opportunities. Over a third of our brains are devoted to processing vision: interpreting color, motion, distances, identifying objects, recognition and many others. All this work by a third of your brain goes on without our awareness. (2 p. 35) We simply receive a nice neat summary and report put together by our unconscious mind.
Many TBIs cause damage to the visual processing. This is not 20/20 vision testing. Interference with interpretation of facial expressions can greatly impact one’s life. Faces playa unique role in our behavior (2 p. 38). As one example, Helen of Troy was said to have “the face that launched a thousand ships” and not “the body that launched a thousand ships.” In our daily lives we look at people’s faces to quickly judge their emotions and reactions. The unconscious mind controls a large part of our facial reactions which are thus often our most honest responses. If a TBI interferes with reading faces, the survivor’s ability to exhibit socially “correct” behavior will be impacted.
As we are aware, many TBI survivors have social issues that include withdrawal, inappropriate behavior and depression. This is an area in which we fail to fully develop. So much of our life is spent devloping social skills and this development plays a major role in our happinesss and success in life. The unconsious mind plays a significant role in our social awareness. Much of our communication is not limited to language. We understand a significant amount of communication without speech and without conscious thought.
The ability to feel connected with others starts at a very early age and continues to develop as we mature. Studies have indicated that long before we can ever verbalize our feelings we are attracted to the kind and repelled by the unkind. In times of uncertainty andlor anxiety, it is our nature to seek out others for comfort. We can look at any phone book and see that numerous support groups are listed for addictions, diseases and ailments of any nature reflecting our need to associate with others for support, approval and friendship. We are social beings at the essence of our fabric.
In a TBI case, damage can occur to both the unconscious and conscious social awareness. We frequently have clients who, without understanding, have withdrawn from previous social relationships. The inability to make social connections should be explored and fully developed. When this area is deprived, we suffer. In fact, there have been brain imaging studies that show “hurt feelings” is more than just a metaphor. There are two components to physical pain: the unpleasant emotional feeling; and the feeling of sensory distress. Interestingly, the same area of the brain deals with the pain of a physical injury and sting of a relational snubbing. (2, p. 83).
It has been proven that medication such as Tylenol or Ibuprofen may help us reduce the pain of physical injury. However, in tests utilizing fMR!, it was established that Tylenol may help reduce the level of hurt feelings from an emotional insult. In fact, subjects who took Tylenol had actual reduced activity in the brain areas associated with social exclusion indicating that it did indeed reduce the response to social rejection. (2, p. 83)
The significance in our cases is that social pain and physical pain are linked to an actual physiological process in our body. Social rejection doesn’t just cause emotional pain but actually affects the physical being. Social relationships play such a significant part of our lives that if a person suffers from a major interruption, it may actually impact their health. Lack of social interaction is a major risk factor for health equaling even the effects of cigarette smoking, high blood pressure, obesity, and lack of physical activity. (3)
In many TBI cases we have clients suffering from social isolation and withdrawal. Many are unable to cope and adapt to the social demands of their preinjuy life. We need to incorporate lay and medical testimony ofthe potential major health risk this poses for their lives.
Many studies have indicated that we have an actual need for social interaction and it is one of the driving forces behind the development of our superior human intelligence. Some believe that our social intelligence is what differs us from other animals. Specifically what distinguishes us appears to be our ability and interest in understanding what other people think and feel. Scientists have named this “theory of mind”. This is the ability to make sense of other people’s behaviors and then predict future behavior. (2, p. 86)
“Theory of mind” is necessary for us to accomplish the many collaborative efforts that make our society what it is today. “Theory of mind” begins developing at a very early age. It is believed that all of us develop some level of “theory of mind” by age 4. If the “theory of mind” is not fully developed and/or breaks down, we have a very difficult time functioning in society. Many TBI patients have a break down in their “theory of mind”. Think how much more difficult life would be if you were not able to perceive and anticipate others thoughts. If a person is not able to correctly read cues from facial expressions and anticipate behavior all interpersonal relations will be impacted.
“Theories of mind” can be developed into several levels of sophistication. The more developed the “theory of mind”, the more successful a person will be in strategic thinking and planning. A CEO or CFO must be able to determine and relate to budgets,
projections and personnel in order to develop a successful strategic plan. This is a process, however, that all of us participate in. Our daily lives are filled with the dance and balance of anticipating and reading social cues from others we interact with. If our ability to read the jury, judges or other lawyers was abridged, it would significantly impact our success.
An illustration of steps ofthe theory of mind is as follows: If! come into a room filled with people and there are bananas on the table, I may think I want a banana. Or, I may believe that Frank wants my banana, or that Frank thinks that I want his banana. You could continue to take this out to the next several degrees. The more successful a person’s “theory of mind,” the better they are able to exist in a social connection. If a TBI injury impacts the levels or sequencing of a persons’ theory of mind, they have suffered a significant loss.
Studies have shown that the average human group size is approximately 150 people. As example, the average number on a Christmas card list is approximately 150. (2, p. 90) There is a connection between the number of members in a social network and our cognitive abilities. The social circles can be discreet and overlap consisting of friends, relatives, work associates. If they get too big and are beyond our cognitive capacities, we cannot track nor anticipate how one relates to the other. We are no longer able to trust and determine who we can rely upon. We can become easily overwhelmed and then seek withdrawal. Our unconscious mind assists us in organizing and handling many of our social demands. The unconscious mind automates tasks which frees us to respond to other demands. This has been described as the essence of multi-tasking. The ability to focus on one task with the aid of automatic scripts, while performing others.
This can provide a framework to establish pre and post social relationships. Many TBI survivors’ social circles shrink without them understanding or being able to control. If the average is 150, then a jury will understand that a circle often is a significant loss and correlates to a loss in cognitive function.
Socially Appropriate Behavior
TBI survivors frequently have difficulty interacting with many people. They have difficulty maintaining relationships and/or properly interpreting social cues. We need to further develop and understand the significance and global impact of such a deficit. We have all had situations when other persons have indicated to us “don’t look at me like that.” And you respond “don’t look at you like what?” When this happens, too often we know that our true feelings were displayed. Many of our non-verbal communications are automatic and performed outside of our conscious awareness. We communicate numerous non-verbal cues about a great deal of information. This social and unconscious development is as important to success as is actual IQ. We have all observed school children and as they reach middle school, some are full of social calendars, others seem to spend the day isolated and staring out the window or in basic misbehavior that is socially unacceptable. One of the factors that seem to determine a child’s social success
is the ability to sense non-verbal cues. Research has found a strong correlation between a child’s popularity and his or her ability to read others. (2, p. 124)
This non-verbal ability continues to provide benefits, both personally and professionally as we age and enter the work environment. It plays a significant role in the perception of a person’s warmth, credibility, and persuasive power. (2, p.l24)
These are areas in which numerous TBI survivors have impacts into their unconscious social skills. An example would be perseveration when a survivor continues to go on and on and on about a topic ad nauseam. The deficit may be akin someone who wants to continue to show home movies at social gatherings. We need to sit down with our clients and family and friends to fully understand if, and to what extent, the social skills have been impacted.
As part of our unconscious social development, we have a process of automatically seeing ourselves as a member of a group. We unconsciously classify ourselves as either an in group or out group. A classification impacts unconsciously our decision process and a reaction toward the groups. Identifying in or out groups for our clients will assist us in relating to the jury on an unconscious level. Generally, we find people more likeable merely because we associate with them in some manner. As a result, we tend to favor in groups in our social and business dealings and evaluate their work product in a more favorable fashion. This generally correlates to suggest that regardless of religion, race and nationality, we have a built in tendency to prefer those who are also a part of our in group. This attribute can be so strong as to even trump individual dislikes of a specific person. (2, p. 168)
We must know our clients and their activities well in order to be able to categorize and outline potential groups they may participate in. We need to use voir dire to help determine what potential theme and/or group we may be able to relate to each individual juror. These are unconscious decisions that impact the person’s relationship and/or thinking about a particular person. The unconscious favors an in group classification based upon the simple fact that knowing you belong to a group triggers your in group affinity. Just as companies and businesses attempt to foster in group culture and mentality, we need to work toward developing in group relationships with potential jurors. Studies have consistently shown that we are all highly motivated for distinquishing ourselves from one another and thus feeling superior regardless how flimsy the grounds. These groupings occur unconsciously and should be identified as part of our potential in group or themes.
Feelings and Motivations
In order to understand how we react or will react in many situations, we need to understand the basis of our feelings. Many of our feelings come from the unconscious, from the structures such as the thalamus, hypothalamus and other parts of the brain.
As I mentioned above Dr. Mlindinow makes the comparison that the unconscious mind works more the way of a lawyer than a scientist. Scientists gather evidence, look for irregularities and form theories explaining their observations and then attempt to test them. Attorneys on the other hand, will begin with a conclusion and then proceed to convince others and seek evidence to support it. In addition, the attorney will discredit evidence that conflicts with his theory or conclusion. However, the unconscious mind works with both. As a result the unconscious mind is a decent scientist but “it’s an absolute outstanding lawyer.” (2, p. 201)
The unconscious mind is in a struggle to seek a coherent view of ourselves and the world. It is “the impassioned advocate that wins over the truthseeker.” (2, p. 201). The unconscious mind will use and interpret limited data to construct a version that appears realistic and fits its perceptions. In organizing and directing our themes, we must remember that the fundamental information of our unconscious mind is based upon the direction of survival and happiness.
The Invisible Injury Meets the Unconscious Mind
In order to develop a theme that can be utilized from voir dire, opening statement, direct examination and closing, a thorough understanding of your client’s background activities and “in group” affiliations needs to be obtained. In addition, a thorough understanding is necessary of how your client’s potential deficits may impact the unconscious mind which processes 95% of all activity and decision making. Any successful argument must appeal to the unconscious mind.
Each particular theme will be different and individual with some basic concepts that are outlined below that can potentially be applicable and tailored. Having identified potential areas in which the clients’ deficits may impact the unconscious mind, those particular areas can be utilized through testimony of lay witnesses, family, co-workers and medical doctors to talk about how they will impact the client’s potential future livelihood.
Generally, liability themes are easier and more appropriate to develop an attack on the “reptilian.” Once the threat to the reptilian survival is exerted, the unconscious mind will seek to support that particular position or result. Outlining the frequency and impact to society of a traumatic brain injury can help potentially impact the unconscious mind. Using the CDC guidelines, it can be established that the majority of traumatic brain injuries occur by accidents and not the fault of a particular individual. These accidents include many activities such as falls, biking, and other sporting injuries-activities each potential juror or juror’s family may well participate in.
The theme may be”Traumatic brain injuries do not discriminate.” In other words, it can happen to anyone including a juror and/or their family. A theory that may raise the Reptilian part of the unconscious mind.
Additional areas in which reptilian nature in the unconscious mind can be attached are the cost to society and to the community in which a person suffers a traumatic brain injury.
In the state of Washington, the the legislature set forth the Lystedt Act, RCW 28A.600.190 and RCW 74.31.005 to recognize a cost to society and the long term increased risk for future dementia and progressive disease:
Youth sports – Concussion and head injury guidelines – Injured athlete restrictions – Short title.
(l)(a) Concussions are one of the most commonly reported injuries in children and adolescents who participate in sports and recreational activities. The centers for disease control and prevention estimates that as many as three million nine hundred thousand sports-related and recreation-related concussions occur in the United States each year. A concussion is caused by a blow or motion to the head or body that causes the brain to move rapidly inside the skull. The risk of catastrophic injuries or death are significant when a concussion or head injury is not properly evaluated and managed.
(b) Concussions are a type of brain injury that can range from mild to severe and can disrupt the way the brain normally works. Concussions can occur in any organized or unorganized sport or recreational activity and can result from a fall or from players colliding with each other, the ground, or with obstacles. Concussions occur with or without loss of consciousness, but the vast majority occurs without loss of consciousness.
- Traumatic brain injury can cause a wide range of functional changes affecting thinking, sensation, language, or emotions. It can also cause epilepsy and increase the risk for conditions such as Alzheimer’s disease, Parkinson’s disease, and other brain disorders that become more prevalent with age. The impact of a traumatic brain injury on the individual and family can be devastating.
Governmental regulations can be utilized to bring in the issue of survivability. These legislative findings can be used to bring awareness to the reptilian brain. Once aware the unconscious mind will understand it is necessary to protect her genes and the community. Our State and many others have assisted with the definition that a concussion is a brain injury that is not just an event. It is necessary to hold the responsible party accountable for all costs rather than shifting the burden to society and the community in which the
juror may potentially participate. The reptilian brain needs to be awakened. A similar chart of our fundamental thought process is the famous Maslow’s Hierarchy of Needs. See Attachment A.
A Traumatic Brain Injury Is a Disease Not an Event
TBI is seen by defendants, insurance companies and many health care providers as an event. This impacts the perception that once clients have received initial treatment they may face no lasting effects, or that there is nothing else that may be done. In fact, TBI, once it has reached a certain diagnosis, is a chronic disease process. We have state legislative bodies adopting language that TBI will result in continuing progressive problems. The World Health Organization has outlined a TBI having one or more of the following characteristics: “it is permanent, caused by non-reversible pathologic alterations, requires special training of the patient through rehabilitation, and/or may require a long period of observation, supervision of care. TBI increases long term mortality, reduces life expectancy. It is associated with increased instances of seizure, sleep disorders, neurodegenerative diseases, neuroendocrine disrelgulation, and psychiatric diseases, as well and non-neurological disorders such as sexual dysfunction, bladder and bowel incontinence, systematic metabolic disregulation and may arise two years post injury.” ( 3)
It is important to encourage and incorporate the medical testimony that TBI is the beginning of an on-going and long term, perhaps life long, process that attacks multiple organ systems.
Making of Uncool
Example: Brain Injury – the makings of un cool. As demonstrated and incorporated by the unconscious mind, the development of social awareness and theory of mind helps determine your success and status in society. An impact on the “theory of mind” will impact a person’s development status and place in society. We work our whole lives to develop our “theory of mind” and to fit in. We strive from grade school to be cool, and popular to peers and members of the opposite sex. This desire is the core of our human development. As a result of traumatic brain injuries, many survivors report complaints that can be the basis for themes.
They will be recognized with a “gimp” and they laugh or respond inappropriately with loud noises. They may demonstrate disinhibition or heightened anxiety, wild mood swings, temper. Basically it is difficult to maintain old relationships and very difficult to start new ones.
A theme or analogy may be going through life as if stuck in a traffic jam with total loss of patience and no capacity to avoid road rage. Another theme may be the real loss is one of community. The parents aren’t equipped, friends move on, relationships fall apart, jobs
change. Scott will never be the same person he was before the collision: he can’t think: the same; he doesn’t act the same; he doesn’t feel the same about himself.
Correlation to the military. 20% of the military comes back with traumatic brain injuries. “The Walking Wounded.”
Who is flying the plane if the autopilot is broken?
Cell suicide through Apoptosis is an additional theme that being developed through Chronic Traumatic Encephalopathy. However this is generally the result of repeated blows.
Any theme must be developed through all aspects of the case. A powerful theme correlates a TBI to that of a Wrongful Death case. Once the TBI has occurred the person has actually died and is starting life over. A new person has emerged with different personality, capabilities and social skills.
As each TBI is different so are the many themes that are available. They are not mutually exclusive and can be woven together to fit the evidence. Remember that that there is no such thing as a “Mild” TBI. Never use that word. Brain damage is the theme!
Pain and suffering
- Loss of dignity
- Mental anguish
- Loss of independence
- Loss of choice
- Loss of enjoyment of life
- Loss of manhood
- Loss of womanhood
- Loss as a friend
- Loss of self esteem
- Loss of self worth
- Loss of self respect
- Loss of pride
- Loss of his or her dream
- Fear and terror
- Loss of intimacy
- Fatigue and nightmares
- Loss of sleep
- Loss of family
- Loss of fatherhood
- Loss of motherhood
- No cure
- Loss of freedom
- Loss of sense of self
- Loss of hope
Defense Recognizes the Reptile
The defense bar has recognized the threat of the “Reptile” and is working to keep it asleep. As an example a recent seminar “Keeping A Lid on Damages” was recently put on to assist defense lawyers with a focus on the “Reptile”. (6)
The defense wants us to focus solely on the plaintiff which will not awaken the juries unconscious mind for protection. We need to back up and show why our client was injured and the threat to the juries survival and safety.
A lawyer representing a brain injured client must become educated in the anatomy, medicine, and recovery process. Only after a full understanding can a lawyer adequately present a case where the plaintiff looks normal. Each brain injury case is unique with numerous themes to interweave throughout the case. Lay witnesses are extremely critical in a TBI case. Lay witnesses are the most important witnesses in developing a theme and telling the story of the death of cool, theory of mind and reality as our clients knew it. While incorporating different themes, remember that the human mind accepts theories that it can relate to based upon its previous experience and it pushes us in the direction of survival and happiness.
Selecting & ThemingA Plaintiff’s Case, Steven Laird, Law Offices of Steven C. Laird, P.C.
Special Summation Techniques in a Severe Brain Injurv Case, Thomas C. Doehrman, Conour- Doehrman
Lethan -A Revisit to the Themes ofTBI Voices, Gordon Johnson © 2011-2013
Trial Themes: A Trial Without a Theme is a Trial Without a Purpose and Without a Hope. Michael J. Warshauer
TBI Voices Launches with Lethan Candlish; Performance of “Who Am I Again”
Jury-Validated Trial Themes,’ How to Establish, Enhance and Employ Such Themes for Courtoom Success, Amy Singer, Ph.D.
Reptile, The 2009 Manual ofthe Plaintiff’s Revolution, David Ball, James E. Fitzgerald, Gary C. Johnson, and Don Keenan
Lost & Found.’ What Brain Injury Survivors Want You to Know, Barbara J. Webster, Lash & Associates
2. Subliminal How Your Unconscious Mind Rules Your Behavior, Leonard
3. “Social relationships and health “, James S. House, et al, Science 241, (July 29,
4. Traumatic Brain Injury: A disease process not an event, Masel BE, De Witt.
6. “Keeping a Lid on Damages “, Cliff Harrison, Harrison, Bettis, Staff, McFarland
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