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“Who are these people who understand this brain science thing?”

Monday, January 5, 2015
posted by Douglas Keene

brain scienceIf you think neurolaw and neuroscience are everywhere–and don’t find it particularly challenging to talk about brain science, apparently you are living in a very rarified environment. It’s hard to believe but evidently, most people do not think the exploding field of brain science is fascinating! Instead, when they think of brain science they think of things that are far removed from their daily lives and things that make them anxious. [Or bore them to tears.] For litigators this has crucial ramifications, since any body of technical information that is worth presenting to a jury requires understanding if it is to be useful.

UK scientists interviewed 48 London residents about “brain science”. They found that most of the interviewees believed that they would only find themselves interested in learning more about brain science if they developed a neurological illness. Maybe… too little too late?

The researchers identified four themes in the participant’s interviews: the brain is something in the science domain; there was significant angst that something could go wrong with the brain; there was a belief that we are all in control of our brains to some extent, and that our brains are what makes us all different and unique. The individual quotes the researchers included however, highlight the lack of awareness of brain science or research:

“Brain research I understand, an image of, I don’t know, a monkey or a dog with like the top of their head off and electrodes and stuff on their brain.” [Male participant]

“It does conjure up images of, you know, strange men in white coats.” [Female participant]

“You just, like I say, blind people with science, don’t you. And then it becomes a subject that you just don’t understand. With me, I just switch off. I’m not understanding what you’re talking about here, so I just switch off.” [Male participant]

“Where do these people come from, that actually understand these things?” [Female participant]

The researchers highlight the reality that most people do not see “brain science” as something relevant or a part of their lives. However, if an individual developed a mental illness or a neurological condition–they believe they would have more interest in learning. Without those catalysts, however, they have little interest in pushing themselves to understand more. The researchers report the concept of “brain science” seemed foreign or “baffling” to most of those interviewed.

From a litigation advocacy perspective, this study highlights the importance of teaching the science. Whether “the science” of a specific case is patent law, high-tech and abstract concepts, or actual “brain science”–jurors need to hear it and have a sense that they understand it enough to actually make judgments on the case. Keep in mind that they are going to judge it whether it is understood or not. The question is simply whether the judgment is going to be informed by bias, by knowledge, or by a coin flip and a longing to be done with jury duty. We know from 20 years of interviewing jurors that they strongly prefer having clear understanding. And that, dear litigator, is up to you.

We have worked on cases in which animation helped jurors make sense of complex computer programming and on others where the analogy of ordering a pizza with different toppings or a hamburger with or without special sauce were used to help jurors understand different technology applications in an especially complex patent infringement case. We’ve also worked on cases where there were allegations of neurological injuries but a very normal looking Plaintiff and jurors had to “see” the injuries somehow to help them understand what had been lost.

Never lose sight of how foreign the concepts truly are, and help jurors understand so they do not have to “shut off” as one of the interviewees in this study confessed to doing. Often, our mock jurors help to make the abstract and complex both concrete and simple, or at least familiar. Just because you have been buried in a case for years and live, eat and breathe the science, doesn’t mean jurors will have a clue about what you are presenting to them. Teach them in a way that helps them relate the abstract and esoteric to their everyday lives. It empowers them to make the right call. If you don’t know how to explain it to ‘real people’, gather a group of mock jurors and ask them what makes sense, where they get lost, and what analogies are most useful to them. If you invite them to the conversation in the right way, they’ll tell you.

O’Connor, C., & Joffe, H. (2014). Social Representations of Brain Research: Exploring Public (Dis)engagement With Contemporary Neuroscience Science Communication, 36 (5), 617-645 DOI: 10.1177/1075547014549481

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