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AHA! AND INSIGHT SOLUTIONS: INCORPORATING UNCONSCIOUS THOUGHT1 Patty Kuehn, JD, MA Patricia Kuehn Trial Consultant 102 N Cook Street, Barrington, IL 60010 847-381-4797 pfkuehn@aol.com Albert Einstein once described how he achieved his insights, by making “a great speculative leap” to a conclusion and then tracing back the connections to verify the idea Most people have experienced moments of insight where a solution to a problem emerges in a flash It can occur so suddenly the person actually exclaims “Aha!” Many people report this spark of insight happens only after they stepped aside from the task How does this happen if not during conscious analysis? The discovery or solution results from unconscious thought processes Only then is the insight viewed through lens of the conscious mind to determine the feasibility, appropriateness and/or application With advancements in imaging and neuroscience, researchers are studying our mind in ways never possible before What has emerged is the importance of our unconscious thought processes in decision making Complex decision making as required in litigation benefits from facilitating both conscious and unconscious processes instead of relying predominantly on logical reasoning found in consciousness To facilitate these processes, one must understand them Aha! Have you ever heard someone searching for a solution say, “Let me sleep on it and I’ll get back to you?” This person is pausing conscious thought to allow for his unconscious mind process to consider possible solutions The solving strategy of insight as described by Einstein’s “great speculative leap” could be defined as cognitive reserve engineering The sudden emergence of a solution—an insight— results from an unconscious process leading to that solution Only then is it consciously reconstructed after the fact.2 The alternative solving strategy is analysis: the conscious, deliberate search of a problem space to find a solution In contrast to the all-or-none availability Prepared for and distributed at 21st Century Advocacy Program, sponsored by Illinois Institute of Continuing Legal Education (2016) of insight solutions, analytic solutions yield intermediate results because analytic processing is largely available to consciousness There are advantages to both Once an insight solution is achieved, many report the solution to seem obvious and certain Einstein wrote “At times I feel certain I am right while not knowing the reason.” The history of great discoveries is full of successful insight episodes, fostering a common belief that when people have an insight, they are likely to be correct In his book Quantum Change William Miller interviewed 55 people who had experienced eureka type realizations transforming their lives.3 He found striking similarities among stories no matter the origin of the story or how benign the condition when the insight occurred The similarity was the feeling associated with insight They felt confident and certain of the result; so confident in their insights, they never looked back Not all moments of insight occur on a life changing scale An insight solution can occur when stepping away from a cross word puzzle or brain teaser It may be discovering a clue or a piece of a puzzle; it may be a life changing realization or solving a complex scientific problem with a significant stroke of insight No matter the scale, these insight solutions are all-or-nothing and regularly accompanied by considerable confidence As such, people rely upon them, act on them and defend them The concept of actionable confidence is significant when it comes to persuasion in litigation Aha! moments are regularly seen during pretrial research Some mock jurors even exclaim Aha! as they figure something out or have a “revelation.” When an attorney allows factfinders to reach their own conclusions or to “discover” information on their own it empowers them A factfinder who is given enough information to connect the dots but is not forced a solution becomes a fierce advocate for one side or another A key point to remember in litigation—one may accept what he is given, but he owns what he discovers for himself!4 Insight Investigation Advancements in imaging and neuroscience over the past 10-15 years allow researchers to investigate our brain functions during decision making in greater depth Some findings confirm principles proposed by psychologists for years about conscious cognitive processing, others observe new relationships, or investigate clues about insight In 2001 Marcus Raichle a neuroscientist from Washington University observes the brain in “idle” is actually far more active than the brain in conscious engagement The idle brain is bursting Salvi, C., Bricolo, E., Kounios, J., Bowden, E., and Beeman, M Insight solutions are correct more often than analytic solutions, Thinking & Reasoning 2016 http://dx.doi.org/10.1080/13546783.2016.1141798 Miller, W., C’de Baca, J., Quantum Change: When Epiphanies and Sudden Insights Transform Ordinary Lives Guilford Press, 2001 Keene, D Eureka! Epiphanies and Aha! Moments: Trust them www.keenetrial.com, April 20, 2016 with neurogenesis, crackling with interconnectivity and burning perhaps 20 times the metabolic resources of the “conscious” brain.5 The resting brain is essentially a party going on in the dark In 2003 Mark Beeman a cognitive neuroscientist gives subjects a “remote associates test.” It’s a kind of brain-teaser to produce associative leaps of thought This type of linguistic puzzle might appear on a computer screen: crab pine sauce People are asked to provide the missing link among these words to make each a compound word (People sometimes literally exclaim “Aha!” when the word apple pops to mind.) These people are wired to electroencephalograms and the electrical activity reveals a little of the brain’s inner workings He finds that shortly before conscious awareness of the insight, a burst of activity emerges over the back of the brain where the unconscious thought transpires Then when the solution arrives in the conscious brain—Aha!—the neocortex lights up like a Christmas tree Researchers continue to find that complex decision making happens in multiple parts of the brain It is not solely controlled by reason as history believed Our brains use both logical reasoning and emotional systems to process data during decision making The front brain which is where logical conscious thought largely occurs is illuminated in neural studies during the intentional problem-solving mode When the cognitive load is reduced, redirected or inactive the unconscious mind activates Even though different areas of the brain control certain aspects of decision making, they are not autonomous—they are interconnected and necessary Understanding the conscious mind verses the unconscious mind In order to appeal to all cognitive processes, it is helpful to understand how the conscious mind functions in opposition to and in conjunction with the unconscious mind Some distinguishing features of each are highlighted below Raichle, M., MacLeod, A., Snyder, A., Powers, W., Gusnard, D., and Shulman, G., A Default Mode of Brain Function Contributed by Marcus E Raichle, October 26, 2000, 676–682 Proceedings of the National Academy of Sciences of the United States of America (PNAS), January 16, 2001, vol 98 u no Bowden, E M., & Jung-Beeman, M Aha! Insight experience correlates with solution activation in the right hemisphere Psychonomic Bulletin & Review, 10, 730-737 (2003a) Phelps, E., Lempert K., Sokol-Hessner P Emotion and decision making: multiple modulatory neural circuits Annu Rev Neurosci 2014; 37:263-87 doi:10.1146/annurev-neuro-071013-014119 Epub 2014 May 29 Review PubMed PMID:24905597 Grierson, B Eureka! Psychology Today March/April 2015 pp 49-57 (54) To trigger an insight, the best strategy may be to try to generate a preparatory state of mind CONSCIOUS THOUGHT UNCONSCIOUS THOUGHT Analytical Intentional / purposeful Progressive / systematic Gist Non-deliberate Linked by connections and association/ disjointed Emotional reasoning Illogical Association based Unlimited capacity Bottom up processing Cannot interpret negatives Logical reasoning Rational Rule based Capacity restrictions Top down processing Deals with negatives Conscious mind The conscious mind functions in a logical, rational, and many times linear fashion to perceive, process and encode individual details This analytic style creates a top-down reasoning process in which decisions are assumed to be deliberate and logical The conscious mind analyzes alternatives and carefully weighs the pros and cons when making a decision The ability to abstract is a primary function of conscious thought The conscious mind can comprehend and appreciate a category without having to think of every example within the category It can think about dogs and not need picture one specific dog Distinguishing reality from dreams and other non-reality is a key differentiating factor of conscious thought The conscious mind knows when one is awake and when one is asleep A limiting factor is its restricted capacity for handling information The conscious mind operates in working memory and is not capable of processing large quantities of data at once The maximum quantity appears to be seven with an optimal amount of three a Rule of Three For hundreds of years across industries and genres three has been recommended as an optimal quantity for understanding and memory It can be heard in phrases as simple as “it’s as easy as one, two, three.” Good speakers and politicians make no more than three points during a speech Successful comedians generally only three jokes, not four One evening in the 1960s, Johnny Carson was telling jokes about President Lyndon Johnson and his dog His fourth joke flopped and he immediately said to his writers off stage, “I told you never to give me more than three jokes on a subject.” Similarly, for maximum persuasion a litigator should Some scientists (first identified by Ap Dijksterhuis) believe that any problem with four or more distinct variables overwhelms the rational brain This phenomenon is known as the rule of three organize and simplify to follow the rule of three—provide only three primary points in opening, plan a witness to testify to no more than three focal points etc b Rule of Seven Others believe we can sufficiently process seven pieces of information at any given moment.10 If possible, a litigator should stay within the parameter of seven for cognitive ease, but optimize at three when feasible Another powerful aspect of the conscious mind includes the ability to interpret and understanding language It comprehends executive functions like understanding the concept of a negative thought or idea Unconscious mind The unconscious mind functions in many respects as a complement or the opposite the conscious mind The unconscious mind functions on an emotional level rather than on the logical level It encodes the totality of an experience and its gist and stores it on an unconscious level It does not focus on specific details Through a phenomenon we still not fully understand, our total life’s experience is recorded and stored in the unconscious mind (It is only our retrieval access and organization of those experiences which can be problematic.) The unconscious mind has the great ability to handle unlimited information It is the system which processes the vast amount of data taken in by our five senses The emotional unconscious mind is especially useful for helping us make hard decisions Its ability to process millions of bits of data in parallel ensures that humans can analyze relevant information when assessing alternatives The connections and associations made during the unconscious thought processes are critical These connections allow us to access information later Dreaming is an example of an unconscious thought process where an individual’s experiences are collapsed across each other It uses dreams as mechanisms to identify associations and connections in sometimes unusual ways The unconscious mind cannot abstract or think theoretically nor can it distinguish reality from dreams or other states of awareness The unconscious mind experiences and encodes everything in the present tense and ONLY the present tense It absorbs and processes everything as if it is happening now 10 Miller, George, The Magical Number 7, Plus or Minus Two, Some Limits on Our Capacity for Processing Information Psychology Review 63 (1956), 81-97 Language is a limitation for the unconscious mind It cannot comprehend concepts in the negative, such as interpreting the words “no,” “don’t,” or “not.” Young children demonstrate this principle as their conscious logical thought process are developing If you tell a young child “don’t drop those crackers,” his unconscious mind hears “drop those crackers” and the child will drop the crackers anyway The unconscious mind plays a key role in the ability to recall information Visceral representations (feelings and emotions) developed by the unconscious emotional system are closely linked with memory.11 Information stored in the unconscious mind is accessed through memory trace connections These connections can be perceived by the conscious brain through direct access or through emotions, feelings or insight Each experience shapes the unconscious emotional system and predisposes us to react and act on events in particular ways.12 These experiences and their resulting feelings drive decision making When we have general beliefs about the world—for example, that cheaper products are of lower quality—they translate into specific expectations about specific products Comparing the processes Some scientists now believe the brain’s resting-state circuitry employs the best, wisest, and most creative mechanics.13 This contradicts the longstanding view that conscious processing is optimal for decision making Meta-analyses from 2008 and 2015 challenge the findings of the unconscious mind as superior to the conscious mind at problem solving.14 Thus, the authors conclude that unconscious processing is not better Nonetheless, subsequent research continues to justify having confidence in an insight In 2016 new research by Salvi finds that insight solutions are correct more often than analytic solutions supporting the premise of superiority in that context.15 Nonetheless, it remains under investigations and debated Despite the current uncertainty about superiority what remains clear is that both conscious and unconscious thought processes impact decision making, especially complex decision making The application for litigation advocacy—appeal to both unconscious gist processing and to conscious analytical reasoning, in contrast to the traditional analytical only approach Directing information to persuade and facilitate unconscious thought can only benefit a litigator 11 Lehrer, Jonah How to Decide (2009) First Mariner Books New York at 244 Narvacz, Darcia, Triune Ethics: The Neurobiological Roots of our Multiple Moralities New Ideas in Psychology (2007) doi:10.1006/j.newideapsych.2007.07.008Id 13 Grierson, supra 14 Nieuwenstein, M., Wierenga, T., Morey, R., Wicherts, J., Blom, T., and Wagenmakers, E., On making the right choice: a meta-analysis and large-scale replication attempt of the unconscious thought advantage Judgment and Decision Making 10.1 (Jan 2015); Acker, Felix New findings on unconscious versus conscious thought in decision making: additional empirical data and meta-analysis Judgment and Decision Making, Vol 3, No 4, April 2008, pp 292–303 15 Salvi, supra 12 Interdependent thought processes Despite the unconscious mind’s computational powers, it has limitations and inaccuracies, as does the conscious rational brain Interdependence is necessary because of these limitations If the different parts of our brain did not work together for one purpose, every person would have psychosis or disabilities such as schizophrenia or autism.16 How memory functions remain under investigation Yet, a key component is the interaction of our unconscious and conscious minds In order access and recall information from the unconscious mind we use pathways called synapses Once the concept or connection has been located thru the unconscious process it is moved to the conscious mind for interpretation, analysis and application As multiple pathways to the same concept develop or a single pathway is strengthened by repetition we recall more quickly and with less cognitive effort According to the law of conservation, humans not want to expend more energy than necessary to complete a task, including decision making Instead of performing the complex process of consciously attending to, categorizing, and storing each and every detail it experiences individually, it unconsciously crunches the data and produces a visceral reaction, a feeling or sensation, as its neural connection Feelings and emotions are windows into our unconscious This explains why we are able experience an insight solution or “gut” reaction to a question we have been mulling over An enduring paradox of the human mind is that is does not know itself very well During the unconscious emotional processing, much of the “work” of the brain is being done outside our awareness The conscious brain is ignorant of its own underpinnings, blind to all the neural activity taking place outside the rational brain (prefrontal cortex) It may be restructuring information and combining it in different ways to solve a problem, but it doesn’t know it Once the information reaches consciousness, then it can be intentionally processed Strategies for Litigation Law has historically focused on the conscious mind appealing to its analytical top down processes almost to the exclusion of the unconscious emotional processes Allowing for discovery, encouraging a global view of the situation, and communicating outside the framework of language will foster more opportunities for the unconscious mind to work For a litigator to optimize persuasion, the structure, content, and display should appeal to both the conscious mind and unconscious mind.17 16 Just, M., Cherkassky, V., Keller, T., Kana, R., and Minshew N J (2007) Functional and Anatomical Cortical Underconnectivity in Autism: Evidence from an FMRI Study of an Executive Function Task and Corpus Callosum Morphometry Cereb Cortex 17 (4): 951–61 17 Please contact the author Patricia Kuehn for other articles and information about litigation persuasion, this is a brief overview only Be cognitively efficient (helps the conscious mind) Since our conscious mind holds and processes only a limited number of variables in working memory (three or no more than seven), it is important to be cognitively efficient The quantity of what can be encoded at any one time increases through the use of cognitive shortcuts and grouping information Furthermore, the initial associations and possibly significance of the information facilitates the unconscious thought processes Other links, restructuring and combining will be made after it has entered into the unconscious mind Furthermore, recall potential increases as the strength of connections and number of links increase But first things first, information needs to get in before it can get out Chunk information Combine information into generalized categories Talk about the category as a whole for application Then consider maximizing by employing the Rule of Three or the Rule of Seven to the information within the category It sounds simple, but outlining the case can assist lawyers in grouping information and simplifying the case Employ heuristics Heuristics sometimes called rules of thumb are cognitive shortcuts that allow a person to assess information and make judgments without needing to process every detail leading to get to that point Common heuristics include: a Representativeness heuristic Assumes the characteristics and behavior of one person in a group represents the characteristics and behavior of everyone in the group I.e If one daughter is athletic, then all her siblings will be athletic too b Availability heuristic Occurs when an individual makes a judgment about the likelihood or probability of an even based on the ease with which an example comes to mind (is available.) For example, if one juror has a friend who takes drug X for an off-label purpose, then many people must take drug X for the same off label purpose Highlighting events in the newspaper or talking in depth during jury selection can activate this heuristic Or if detrimental to the case there are strategies to address it c Anchoring and adjusting heuristic This principle has been greatly studied and confirmed in the litigation context Its powerful impact is undeniable Anchoring occurs when individuals rely heavily on an initial piece of information (figure, fact, or opinion) to make subsequent judgments One uses this anchor as a point of comparison or a position from which to adjust, negotiate, and compromise A plaintiff’s money damages request is an anchor from which jurors use to adjust based on their perceptions of liability, perceptions of the plaintiff, and personal attitudes Identify schemas Schemas are established patterns of thought or scripts which guide our recognition and understanding of new information by providing expectations about what should occur a One example is a Role Schema: patterns of expected behaviors or characteristics based on an individual’s role, such as a Doctor schema Based on our professional experiences with doctors, people generally expect them to be smart, caring, trustworthy, time pressed, possibly arrogant, dressed conservatively (or in a lab coat or scrubs), relatively polite etc When a factfinder hears about the actions of a doctor that schema is evoked and they anticipate this doctor’s actions will be consistent with that perception Allow for discovery (helps the unconscious mind) Save items for factfinder discovery during evidence to facilitate an insightful moment During pretrial research mock jurors have been heard actually exclaiming Aha! when they believe they have discovered a key piece of information or connection between facts These pieces have greater impact on the factfinder’s perception of facts as a result This impression will be long lasting, stronger and adopted by the discoverer Foster the global perspective (helps the unconscious mind) Present a story Provide a narrative story of the case to foster the global perspective.18 Stories are as old as time and span cultures As humans we are wired to understand and relate to story As such, capturing the gist of a story and storing it in the unconsciousness mind is comfortable and easily done The story framework is both cognitively efficient and effective at evoking existing pathways Convey the gist and theme The gist is the core or central meaning of the case When people learn new information, like case facts and evidence, they encode it using both general and specific representations General gist representations are centered on the meaning that a person derives from the information as compared to specific verbatim representations which 18 Extensive research exists about the benefits and strategies for story telling in litigation Strategies exist for developing and presenting the story regarding: theme, point of view, structure, sequencing, language, neurolinguistics programming, etc preserve the exact wording or precise numbers In complex judgment and decisionmaking gist usually trumps verbatim representations.19 Structure the case to convey the gist representations of the case to facilitate the unconscious process.20 A simple exercise to hone or verify the essence or gist of the case includes briefly answering the question, “What is this case about?” Would the response lead a factfinder to an initial gut reaction in favor of the client? Use visuals As the saying goes, a picture is worth a thousand words; or in this case a thousand pieces of individual data that the conscious mind does not have to process Visuals can capture complex relationships, concepts and data from one image Carefully design and screen images to convey those points Create, reinforce and evoke the strongest associations possible (helps the unconscious mind) Stronger connections yield better recall and faster access There are multiple ways to facilitate strong connections Infuse values and meaning Make the case and story value driven and meaningful to the factfinders They will take greater interest and hopefully embrace the position if it means something to them Meaning will engage the unconscious emotional processes more than separate facts and logic Use all five senses Utilize descriptions that evoke the senses, particularly smell and taste Smell and taste have stronger traces or links to memory than the more commonly relied upon sight and sound a For example, describe an infection using multiple senses She awakens to a peculiar smell Did a yogurt spill without anyone cleaning it up? Did someone leave an egg to rot in her room? No, it smells more pungent than that, more acidic She shifts in her bed and recoils from the waft of air She realizes the odor is coming from her She reaches down and hesitantly touches her wound 19 Hans, V., Reyna, V., To Dollars from Sense: Quantitative to Qualitative Translation in Jury Damage Awards, J Empirical Legal Studies (Special issue) 120 (2011) They draw from psychological and economical research on judgment, decision making and numeracy 20 Learn more about using this concept when determining damage figures in Kuehn, P More Than a Number: Damage Award Figures (2015) 10 It’s oozing with cloudy yellow puss which sticks to the side of her bandage and now her fingers Repeat, reinforce, restate Convey a consistent message, gist, or fact multiple times to form stronger pathways and connections This reinforcement need not be verbatim but can take many forms Conclusion Stories of great discoveries and life changing epiphanies abound They have occurred over thousands of years and across cultures But now the Aha! moment when an insight solution just seems to pop into consciousness is being investigated in new ways Modern neuroscientists are able to see which parts of the brain are bursting with neural activity during certain activities including the moment of insight Some researchers believe insight solutions are better or at least more accurate than conscious reasoned solutions Others challenge that conclusion Currently the data is inconclusive This is an important inquiry, especially for solution driven problems But for complex judgement and decision making as in litigation the best approach right now is to facilitate both conscious and unconscious processes—use both logical reasoning and emotional reasoning Litigators are classically trained to rely on logical reasoning and conscious thought to the exclusion of unconscious thought processes when preparing their cases Sometimes a solution may be derived by reasoning cognitively step by step and considering alternatives for the best answer Or a decision may emerge as a subjective experience (unconscious mind) which is then validated with logic (conscious mind) as Albert Einstein experienced Once a factfinder has an Aha! insight, it will drive their decision as no other piece of information can Modern lawyers should prepare their cases to employ the powers of both the conscious mind and unconscious mind 11 ... significant stroke of insight No matter the scale, these insight solutions are all-or-nothing and regularly accompanied by considerable confidence As such, people rely upon them, act on them and defend... old as time and span cultures As humans we are wired to understand and relate to story As such, capturing the gist of a story and storing it in the unconsciousness mind is comfortable and easily... Conclusion Stories of great discoveries and life changing epiphanies abound They have occurred over thousands of years and across cultures But now the Aha! moment when an insight solution just seems to
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