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Using fear as a weapon and thus trying to win arguments – and cases – has been a tactic used in many courtrooms. Sometimes it’s a very useful tactic; others it backfires spectacularly. Stephanie West Allen, Jeffrey Schwartz and Diane Wysga have written a very interesting article on the subject where they defend the adoption of a more narrative-like argumentation and against what the deemed “reptiling” the jury:

Some members of the trial bar have taken a keen interest in a model of trial advocacy that features manipulating jurors by fostering fear. What is this model? It claims you can predictably win a trial by speaking to, and scaring, the primitive part of jurors’ brains, the part of the brain they share with reptiles. The theory may sound intriguing on its face, but advocacy is not reducible to mere technique not only because people are much more than their brains, but because advocacy is as much art as science. (If science is relied upon, we think it should be good science, not pop science which presents the brain anatomy incorrectly.) To reduce the human being to a body organ, even the brain, disregards the value of the reflective mind – something no reptile possesses. From time immemorial we have used imagination and supporting evidence in narrative to persuade. A reptile hears no human story. It reacts as a coiling rattlesnake or a slithering lizard. To equate men and women serving on a jury with reactive sub-mammals is both offensive and objectionable. Bringing together decades of experience, research, and insights in the law, healthcare, social relationships, and narrative we posit an alternative viewpoint for lawyers interested in reevaluating the wisdom of ‘reptiling’ the jury.

You can read the article here, and make sure you check the responses to it at the end.

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