CHAPTER 3: Negligence and psychotherapeutic tools In any trial, the injured persons lawyer has to prove to the jury

at the very least that the perpetrator was negligent. What is negligent? In most places, the Court will instruct the jury that negligence is the failure to use ordinary care. And that ordinary care is the care that a reasonably careful person would use under the same or similar circumstances. This is not the way we normally talk about how an accident or injury happened. Making a case of negligence is therefore a primary dilemma for the trial lawyer because the definition of negligence is confusing and unfamiliar. What is ordinary? Who is a reasonably careful person? Doesnt a reasonably careful person make mistakes? Mistakes are forgiven, arent they? In many cases lawyers feel it is necessary to hire so-called experts to explain why in this case the careful person should be liable. Meanwhile, the other side hires counter experts to explain why the accident occurred despite the person being careful; this is the s*** happens defense and it often works very well. How does a jury think both consciously and unconsciously about this nebulous concept of negligence? I think that most jurors will think of negligence as synonymous with mistake. We can read definitions, jury instructions, and explain negligence to jurors, but because mistakes are often excusable outside the courtroom, most jurors, in their unconscious minds, will have a high level of resistance to making a person pay money for a mistake. The problem is that it is deeply embedded that it is human to err. So how do we overcome the resistance to punishing those who are only human?

There is an entire industry of lawyers and trial consultants who make a very good living teaching trial tactics to aspiring trial lawyers on this very topic. How to dress, where to stand, how to select the best jurors, methods to demonize the defendant, and how to polarize the case. These are all valuable and necessary trial strategies that every trial lawyer has to learn before stepping into the courtroom. But lawyers also need to go deeper into the way jurors are thinking, the dilemmas that face them because of their unique role, and the confusion inherent in the definitions of legal lingo that only the lawyers can clear up. Confusion causes resistance. In this search to provide clarity to confusing concepts, and to thereby overcome resistance, lawyers need to look to psychology. The genesis of psychodynamic solutions to unconscious resistance is the development of psychology, psychiatry and psychotherapy. A century ago there was another group of researchers in another embattled profession, psychiatry, searching for a way to help patients with mental disorders get better and live normal lives with their families rather than suffer lives of agony and deep emotional pain. The core idea advanced by Sigmund Freud, and then adapted by Gustav Jung and many others, is that the therapist, by uncovering and revealing more about how the unconscious brain was working, can help the patient get better by allowing the patient to gain insight. There are core psychotherapeutic tools therapists use to help patients delve deeply into their unconscious, such tools as transference, unconditional positive regard, free association, dream analysis and even hypnosis. Lawyers can use these same tools in modified ways to allow jurors to gain insight and to provide clarity.

Sigmund Freud, Carl Gustav Jung, Carl Rogers, Erik Erikson, Wilfred Bion, Kay Jamison, Glen Gabbard, as well as modern neuroscientists such as Daniel Kahnemann, Gary Klein and Jonah Lehrer, have dedicated their lifes work to studying and explaining the psychodynamic tools we need to tap and influence the unconscious of not only patients, but students, employees and groups. The creation and careful nurturing of the therapeutic alliance, transference and counter transference, establishing boundaries, and, of course, intuition and decision-making, are psychodynamic solutions we can use to overcome juror resistance in the same way that these tools help patients gain insight and heal. Through these doctors and researchers ideas and studies, we can learn how jurors, like patients in therapy, unconsciously engage in intuitive thinking, empathy, and decision-making. The juror, much like the patient, is often internally confused and looking for clarity. Like the therapist, we can guide jurors in ways similar to a therapist, but of course adapted to the courtroom. We also need to understand more about how to better incorporate and merge psychodynamic solutions with the methods of information delivery we have learned from legal scholars like David Ball, Don Keenan, Rick Friedman and Gerry Spence so this information can be better received by jurors at the unconscious and emotional level as well as the more rational and logical level. By combining psychotherapeutic tools with more traditional trial methods to reach jurors, we can maximize our ability to influence thinking and decision-making. We need both to overcome inevitable juror resistance. We can adapt core psychotherapeutic methods to the courtroom. Jurors are similar to therapy or analytic patients in this regard. We can transfer our lawyerly intuition about the case to jurors

so that their intuition is the same as ours. Finally, we can create a trial alliance with jurors and the jury as a group that is similar to the therapeutic alliance between a therapist and a patient. We must learn to do these things to most effectively reach jurors and help them overcome their natural resistance. Our legal system is historic and deeply ingrained in each of us, analogous to our unconscious connection to our repressed early childhood experiences. Trial lawyers are respected for our knowledge, our competitiveness and our success, much like parents or older siblings. We are feared, but we are also idealized. There is unconscious resistance to the very idea of a lawyer, an advocate. Worse, because of the recent partisan battle raging in our political system, the concept of frivolous lawsuits, runaway juries, and so called liberal judges, many jurors have an intuitive sense that the one filing a lawsuit against one who simply made a mistake is wrong no matter what the facts are. Our duty as a lawyer is to recognize this dilemma, absorb it, and then figure out ways to overcome it. But as we have learned, lawyerly tactics taught by our law schools through the Socratic method are not enough to deal with jurors deep and unconscious resistance to the nebulous and confusing concepts of negligence, proximate cause, and foreseeability. Even transactional lawyers engaged in making deals or corporate mergers should study to some degree the unconscious mind, the way transference may cloud or clarify the receipt of information, how people are guided by intuition as well as information, and how groups make decisions. This is a sophisticated and difficult thing to learn for lawyers, as most of us pride ourselves on our critical thinking, our logic, and our concrete decision-making, rather than on esoteric principles such as intuition and projection.

Throughout the rest of this book I will give examples of cases where I or other lawyers either knowingly or unconsciously used psychodynamic principles to help win a jury trial, and other cases where the failure to address the unconscious prevented a fair result. In hindsight, of course, I can clearly now see where I created positive transference, an alliance with a jury or some of the jurors by showing a family sense of unity with my client. Now, I do focus groups, settlement conferences, mediations, and jury trials with basic knowledge of psychodynamic and psychotherapeutic methods of influencing jurors and other decision makers. From the beginning of the trial to the end, the trial lawyer must seek out opportunities to connect with jurors, from showing unconditional positive regard for each juror in voir dire to the professional but intimate way the lawyer interacts with her client while in the observation of the jury. These, and other methods, are those that therapists use to make patients feel comfortable and open. A lawyer who shows kindness and is protective of a client can achieve a form of transference with jurors as a paternal or maternal figure, and make the jurors feel less resistant to the transfer of wealth from the other person to compensate the injured client. A lawyer should always face up to the fact that jurors will begin the trial, as patients begin therapy, with natural, unconscious resistance to change the status quo by giving money. The therapist overcomes resistance to therapy by acknowledging and working empathetically with the resistance to better allow the patients unconscious to overcome it. Even though after voir dire a lawyer can no longer talk with jurors, he continues to communicate with the jury by the way he acts and the questions he asks witnesses. These must be well thought out not only as to the facts elicited but also the unconscious messages jurors will receive.