Naptime in the Courtroom

 Posted on August 04, 2008 in Uncategorized

Last weekend I read Brain Rules

As knowledge workers and creative workers, we should be interested in how our brains work, so that we can extract as much from them as possible. As advocates, we should be interested in how our audiences' brains work, so that we can best tell our stories (and disrupt our adversaries' stories).

Rule #7 is "Sleep well, think well." I found two important points for criminal defense trial lawyers in this rule.

First, studies have shown massive losses in overall cognitive skill andperformance resulting from nights with little or nosleep. "Sleep loss hurts attention, executive function, immediate memory, working memory, mood, quantitative skills, logical reasoning ability, general math knowledge."

So if it's the night before trial and you've got the choice between a) staying up late writing your opening statement; and b) going to bed early and getting a good night's sleep, choose (b). And if you're so busy that your practice is keeping you from getting a full night's sleep most nights, it's time to cut down on the number of clients your representing by doubling your fees.

Second, there is a period of time in the mid-afternoon when most people experience transient sleepiness. "It can be nearly impossible to get anything done during this time, and if you attempt to push through, which is what most of us do, you can spend much of your afternoon fighting a gnawing tiredness. It's a fight because the brain really wants to take a nap and doesn't care what its owner is doing." This sleepy time, which Medina calls "the nap zone", is

not related to a big lunch (although a big lunch, especially one loaded with carbs, can greatly increase its intensity). It appears, rather, to be a part of our evolutionary history. Some scientists think that a long sleep at night and a short nap during the midday represent human sleep behavior at its most natural.

There are at least three things that we need to think about here: our own midafternoon mental functioning, which is ordinarily diminished and might be further diminished by a carb-heavy lunch; our adversaries' mental functioning, which suffers the same diminution; and juries' mental functioning.

We probably don't want to assign ourselves any intellectual heavy lifting in mid-afternoon... unless we know that the prosecutors have loaded up on beans and rice at lunchtime. The nap zone is not the best time to tell the jury a part of your story that you want them to think about or remember. If you have the flexibility in the order of storytelling, keep your most important witnesses out of the nap zone.

On the other hand, the nap zone might be the perfect time for the jury to be hearing the part of your adversary's story that you don't want the jury to remember; if bad facts are going to come out, better that they come out at two in the afternoon, because the jurors are fighting sleep and not paying a lot of attention.

There's much more for the scavenging in Brain Rules. Here are the twelve rules:

Rule #1: Exercise boosts brain power.Rule #2: The human brain evolved, too.Rule #3: Every brain is wired differently.Rule #4: We don't pay attention to boring things.Rule #5: Repeat to remember.Rule #6: Remember to repeat.Rule #7: Sleep well, think well.Rule #8: Stressed brains don't learn the same way.Rule #9: Stimulate more of the senses.Rule #10: Vision trumps all other senses.Rule #11: Male and female brains are different.Rule #12: We are powerful and natural explorers.

I'll write soon about Good Fear, Bad Fear (inspired by Rule #8), and probably some other topics from the book, but I can't cover all that I learned from it. Buy it and read it yourself.