“What if my witness pulls a fast one on?”
“Everyone in the courtroom thinks I’m a shark… a money grubber…. an ambulance chaser!”
“The jury’s going to kill my case.”
If any of those thoughts sound familiar, you probably feel pretty fucking stressed going to trial.
As a plaintiff attorney, you deal in risk. Therefore, you have to wire your brain for risk.
Our thoughts create our feelings.
Then our feelings determine our actions…
And that’s what we’re talking about in today’s episode.
Yes, you CAN rewire your brain. And it won’t take as much time as you think… if you practice.
You’ll want a pen and notepad for this one.
EPISODE 199 TRANSCRIPTION
Hello, hello, hello! We are one episode away from 200 episodes. Can you believe it? Definitely tune in next week for our 200th episode. But today, for Episode 199, we're talking about How to Wire Your Brain for Risk.
Let's first talk about why you need to wire your brain for risk. I'm talking "you" meaning trial attorneys. There are a lot of other people that have risky jobs, but y'all deal in risk. You have clients and witnesses that are unpredictable. You can give them all kinds of coaching before trial, but then they get on the stand, and some shit comes out, and you're like, "Oh, my God. Where did that come from?" They're unpredictable.
Opposing counsel is a nightmare. Trial by ambush is what happens here in Oregon. We don't have expert discovery, so half the time we go into trial, and we don't know what the fuck the other side's going to say or do, so that's very risky. The jury is unpredictable. We don't know how they're going to react to our information or to us. The judge can be unpredictable. Judges can be assholes, let's be honest. Just heard about one today. We've invested a lot of money that we definitely couldn't lose. We've got to go out there and we have to perform. We have to talk to strangers and motivate them to act. Then there's this confusion about what method to use and if it's the right method and then there's pressures from our partners and co-counsel. Oh, my God, y'all, there is risk and danger and trial is one big mind-fuck. It just is.
I mean, when we think about the SCARF model, and I talk a lot about the SCARF model as a system for help, you think about how the juror's brain is under attack, but this actually applies to anybody's brain, and it definitely applies here in trial. That S stands for "status." Let's think about it. What's your status when you're in trial? You're a plaintiff attorney. Right out the gate, you start behind the line because you're not viewed equally with the other side. You're the shark, the money-grubber, the person that's a fraudulent lawsuit, McDonald's, all the other you guys have on your shoulders, so status is in the toilet.
Then we have certainty. That's the C one. You don't have any certainty, as we just said, so many unpredictable things. Then we have A for "autonomy." You can't make this go the way you want it to go. You can't make the judge dismiss the motion from the defense. You can't make the judge do the things you want to do. You can't make the jury vote the way you want them to. We have relatedness. That's the stranger piece. You don't know the jurors. Fairness. There we are again. It's unfair to you most of the time. You are the David in a David-and-Goliath situation. That SCARF model says that the brain looks at those five factors and either views them as a reward or an attack, and if we look at those five factors like I just did, we know that your brain is under attack as well, so not only are jurors hostages, you're a hostage, too.
Knowing that, we want to rewire our brains so that we can become more familiar and more comfortable with risk because here's the bad news is the risk and the mind-fuck that trial is never going to go away. It is something that you are going to learn or going to have to learn how to deal with, or you're going to be extremely unhappy, drive yourself to madness, or quit. I want you not only kicking ass in the courtroom, but living happy, healthy lives, and in order to do that, you have to, you have to rewire your brain for risk because if we don't rewire, we do things like we settle. We settle our cases. Some cases should be settled, yes, don't get me wrong, but we do it because we're fearful of the risk that we're being asked to take. If we don't take those risks once we get to trial, meaning taking big risks, trying new things, we play small. Not to try to rhyme, but trial takes balls. It takes taking big risks. I'm going to change that. Trial takes vaginas. Why do balls have to be the strong thing?
When we're not rewiring our brain for risk, we're letting the defense make the rules. We're too scared to challenge them and say, "Wait a minute, we're allowed to do that in voir dire." We're afraid. This has an effect on our lives, in addition, I should say, to all the stuff that's happening in court because when you are so averse to risk, which is your job, then you are worrying all the time, and you're stressing all the time, and then you're not eating, or you're overeating, or you're drinking, or you're not sleeping, so I hope I've convinced you that you must rewire your brain.
In order to do that, because this problem is not going away, let's first talk about how the brain works, all right? We have the prefrontal cortex, that's our thinking, or our rational part of the brain, and then we have the back part of our brain that has the amygdala, or the reptile brain you've heard, which is the oldest part of our brain. That's the habit brain. It's the brain that just does the automatic things without thinking.
Now, when we're in fight or flight, which we are, when we are in a risky situation, that activates our sympathetic nervous system, so we start breathing higher, and now the amygdala takes over, and it bypasses the prefrontal cortex, which is the logical part of our brain because it is wired to keep us safe. It does not know the difference between, "Oh, my God, we're going to lose this trial," and, "Oh, my God, there's a bear that's about to rip my head off." Its whole job is to alert you to danger and get you to safety. But when you're in that fight-or-flight space, your prefrontal cortex gets completely bypassed and you go into habit mode.
Our job, we're talking about rewiring the brain, is how do we override that system? The good news is that we can override that system. It's called neuroplasticity. There's neuroplasticity in our brains. That refers to the brain's ability to rewire itself when there's a need for it to adapt. Now, there are two types of neuroplasticity because the brain automatically does this in cases, let's say, of a bad car crash, and a temporary brain injury. That's called experiential or experienced-dependent neuroplasticity. "It's a passive process," I'm reading this from something I found online so you know it's true, no, this is true, "in which reinforce habits by doing them unconsciously over and over again, whether they're good or bad, or by something that happens to you." But what we are talking about here today is doing it yourself, which is called self-directed neuroplasticity. That is something that you direct.
Now, you may be listening and thinking, "Well, if it's self-directed, I think that needs the prefrontal cortex because I'm thinking about it, I'm self-directing it." You would be right, for sure. But if trial activates our fight-or-flight response, and that overrides our prefrontal cortex, how do we do this? That's what I'm about to show you. It takes practice. We have to practice handling risk to, well, handle risk.
Here's what I mean. First, I want you to think about how we create new neural pathways in our brain. The way that we create new neural pathways is we do new things. Now, at first, the new thing is going to feel really, really hard to do. I've used this example many times, so I've probably even said it here, it's like walking in waist-high grass. You have to walk over that grass over and over again till you wear a path in there and then you can go faster. That's exactly how our neurons work in the brain, those neural pathways. The neurons can now go along the pathway quicker because it's a well-worn path.
Now, here's the bad news is that once you have a neural pathway, you always have a neural pathway. Even when you're rewiring your brain, you're not getting rid of old pathways, you're just creating new pathways, which is really super fucking cool, if you ask me. But that means that we have the tendency to slip back into old habits, so that's why we need to consistently grease the wheel, so to speak, on those new neural pathways so that they become habit and not need the use of the prefrontal cortex, if you catch my drift.
Here's what I want you to think about. Think about something that you want to change in your life, something that you want to rewire in your brain. For example, maybe you really struggle in trial with confidence, so what you want is you want to set the intention of, "I want to feel more confident in court." Let's say that's something that you want to change. You're sick and tired of being so scared and acting like a timid little mouse in front of the jury and that's something that you want to rewire your brain around.
Well, if we were working together, if you were working with one of our coaches, we would start by asking you, "How do you feel now when you're in court?" You might say, "Well, I feel scared," so then we'd ask, "Well, what thought pattern is making you scared?" Now, you might go, "I don't know." What we would do is we would take you into the moment. We'd say, "Okay, let's imagine that you're in trial and you're standing in front of the jury and you're about to start voir dire. Can you take yourself there now?" We might do some visualization so the person could get there.
We'd be like, "Okay, what are you feeling right now?" You might say, "I'm feeling my shoulders hunched over," and you might even be doing it as we're talking about it. "Okay, what else?" "I'm feeling this deep pain or gnawing in my stomach." "Okay, anything else?" "Well, my palms are sweaty." "All right, great. Now, stay there. Stay with that feeling. What's causing this feeling? What's going on in your head right now?" Normally, at that point, the person will say, "They're out to get me. They're going to kill my case," and it'll just pour out. Why? Because we took you there. You're in it right now. Now, this comes down to, you've heard me talk about before, I'm going to shorten the CTFAR model just to TFA for today. What I mean by that is thoughts for T, create our feelings for F, and our feelings cause us to take certain actions. There's the A, TFA, thoughts, feelings, and actions.
Then I might ask you, "All right, when you're thinking that which is causing your shoulders to move forward, which is causing this pit-in-the-stomach feeling, causing your palms to sweat, what do you do? How do you act? What does that cause for you?" You'll say, "Well, I speak really low. I can't project my voice. Then I'll forget what I was going to say, and then when I try to say it, I stumble over my words," and so I'll say, "Well, what does that feel like?" They'll say, "Well, then it just gets even worse. Then I start to sweat everywhere, not just my palms. Then I get this pounding headache." Now, you might think about this and think, "Well, I don't want to go through any of this," but I'm going to share with you in today's podcast why you must go through this if you want to rewire your brain.
Now, if we were together, we might write that thought on a piece of paper. In fact, I've done this with several clients, "The jurors are out to get me." We'd put that on the floor and you'd stand there and I'd say, "Okay, get in the position when you're thinking this thought. Get into the position, your body position of what that feels like. Show me in your body." You would go through and you would do all the things we just talked about. Now, those of you who are like, "I don't want to do that," here's why it's so important that you fully feel it, because if you feel it now in a coaching session in your own office, in your bedroom, then it won't flood you when it actually happens. It'll be a familiar feeling and you'll be able to recognize it.
That's going to come in handy in just a minute when we talk about how to rewire. We don't want this feeling to be flooding over us so that we totally have the bypassing of the prefrontal cortex. That's why the prefrontal cortex gets bypassed is because we don't have any control over this emotion or this feeling because we don't want to feel it. If we don't want to feel it, we shove it down. If we shove it down, it's in our subconscious, and boom, now we have this straight narrow pathway straight to the amygdala. But if we bring it out into the light, if we look at it, if we examine it, if we feel it in our bodies, it's not so scary anymore. We also think, "Damn. I don't want to feel like that anymore. How do I change it?"
All right, I'm so glad you asked 'cause I'm about to tell you how to change it. The first thing you would do if you're doing this on your own, you're doing it with a coach, is you're going to now move. You're going to move. We don't want to be in the same physical location. When we're working with clients, we'll have people shake it off. We'll be like, "All right, how do you want to feel instead? How do you want to feel instead?" They'll say, "Well, I want to go out there, and I want to feel like I'm the best trial attorney in the world." I go, "Yeah, you're the best trial attorney in the world. What does that feel like?" It's just weird. Immediately, though, especially if we're together, not over the phone, I can see them, they'll stand up a little straighter. They're like, "It feels awesome."
I say, "Notice what's happening with your body. You're standing up straight. Your head is kind of swiveling around like, 'Yeah, I got this.' I mean, look at how you're standing. Weight over both feet." They'll be like, "Yeah, I didn't notice that. I am. Okay." I was like, "Just access this feeling. What does it feel like?" "Oh, it feels good." "Do you have that feeling in the pit of your stomach?" "No, not anymore." "Where are you feeling things now?" "Everywhere. I've got energy flowing through my body." I'm like, "Great, what are you thinking? Let's go in front of the jury. You're in front of the jury and you're standing there."
One of two things will happen. The first one, most of the time, they'll go, "Oh, I'm in front of the jury? Well..." Just notice what happened with my voice. This will happen with my clients. I'll go, "Ah, ah, ah," and I walk them back over to that first piece of paper. I go, "If you want to stay over here, you got to be with this piece of paper. Do you want to stay over here? Hunt your shoulders over, get into that..." They go, "No, I hate it over here." I'm like, "Okay, then. Then stay out of there. Let's come over here." I access that good feeling again, "All right. We're standing in front of the jury. We're a new lawyer, in fact, we're the best lawyer that ever lived. What are you thinking? What's going on in your head?" I remember one client said, "The jurors love me." I said, "Oh, yeah, they do," so we wrote that on a piece of paper. I said, "Just keep saying it, 'The jurors love me. The jurors love me. The jurors love me.'" That's how we access this new place that we wanted to play with.
Now, we're not done. We're not done. First, we set our intention. Here's what we want to feel and then we explored what we're currently feeling. Now, in the second piece, once you know what you did feel, and what you want to feel, what you're going to do is repeat it over and over and over. You want to continually tell yourself that the jurors love you if that's what your thing is. In fact, this attorney, he laughed. He wrote it all over the board when we were here. He wrote it on flip charts when he was here. When he left, he would send me emails before trial and he'd sign every email, "And P.S., the jurors love me." The night before we worked on closing, and I'm like, "Okay, the jurors love you." He's like, "They sure do. They love me." He called me two weeks later, he'd gotten his first, no, nine-figure verdict, $10 million. He said, "Sari, the jurors love me." I said, "Hell the fuck yeah they do. Look at that verdict they just got you."
Now, there's a whole other podcast I could do on how setting our intentions and manifesting and all that stuff, all of our energy toward that makes things happen, but here for the purposes of rewiring our brain is once we feel those two places, the things we don't want to feel and things we do want to feel, now we have to practice feeling the things we do want to feel, so we say it over and over again, whether in our brain, we write it.
But here's really important. Those of you who do affirmations or think they're silly, like, "I am the best trial lawyer in the world," or whatever, the reason why so many affirmations do not work is because the feeling doesn't accompany it. If you don't have a feeling... Think about it this way. In the TFA model, thought produces a feeling, produces an action. Thoughts create our feelings, which then cause us to do something. Here, we're starting with a thought, but we don't feel it yet. It's not real yet. We've got to have that fuel of the feeling to back it up, so you've got to get in the place of what it would feel like if you truly believe that the jurors love you, so you got to practice feeling that, not just thinking the thought, but feeling it, standing up tall, adopting that body posture.
Now, let's talk about how habits work, or how the brain works really, because you probably heard about this cue, craving, response, reward. Normally what will happen when you have a habit, something that's going right through your amygdala, is there'll be a cue. Let's say your cue is an email from defense counsel and so the craving is this negative thought. We crave thinking negative. Why? Because it's just something we do naturally, so we just start thinking, "Oh, shit. Here they are again. I hate this case and I can't believe it's going to trial. I'm not ready."
Our response to that craving is to try to push it down, try to scroll social media, drink, not think about it. The reward in that moment is we're not thinking about it. It goes away temporarily. But it gets trapped. That's why when we're in trial, all that stuff comes flooding out because we never fucking dealt with it in the first place. Now, when we're trying to rewire our brain, what we're going to do is we're still going to have the cue. The email still comes in. We don't stop that from happening. You're probably going to still have the craving, the, "Oh, shit, I'm going to lose."
But now, since you've been practicing, you're going to do a couple of things. First, you're going to notice that you have that pit in the stomach feeling. You're going to notice that your shoulders are leaning forward. Why? Because we took you there. Because you felt it on purpose, and you're going to go, "Wait a minute, wait a minute. This is my old wiring. I'm starting to go down that old neural pathway," so then you can catch it, you can stop, and you can go, "Wait a minute." You can get your shoulders back up. You can probably even stand from your desk, and you can either say out loud, or in your head, "The jurors love me." The reward? Peace. Isn't that what we want? That's why we feel both things, so that when we get that cue, when there's something that reminds us right of the upcoming trial, and all of our fear around it, that we have this way of knowing what that feels like because we're familiar with it and we stop it in its tracks and we choose to think and feel something differently.
Now, here's the real clincher for rewiring your brain. That, my friends, was all rehearsal. All of that work, which is a lot of work, don't get me wrong, is rehearsal. Now, you got to practice. Now, you got to take all of that and keep putting yourself in the positions where you have to practice managing risk, which means going to trial, which means being in front of mock juries, which means trying things out on your colleagues. You've got to actually put it to practice. I mean, this is the whole reason why H2H exists. We help your wire brain and then give you a place to practice your new rewiring. You've got to put yourself in the position to test out your new neural pathways.
By the way, it won't always work. Why? Because those old neural pathways, you've heard me say before, most of my clients have been practicing 20-plus years, so you have a lot of practice in that negative wiring. It's going to be so easy. Those are slippery neural pathways. Your neurons are just going to want to go down that like a slip-and-slide, and the other one's still got some gravels in it, some rocks. It's not quite a clear path yet. It takes practice, it takes time. In fact, I was reading somewhere that it takes three months to a year to rewire your brain, so if you don't get it right away, don't worry.
To review, first, what do you want to feel?
Second, how do you feel now? Then look at the thought that produces.
Third, get intimately connected to that feeling so that you can catch it later.
Fourth, practice feeling what you want to feel and identify the thought there that's connected to that thought.
Five, catch yourself after you get your cue, stop the negative, and put in your new programming.
Six, practice all of that in real situations, trial. I wouldn't say "real." I mean, H2H isn't a real trial, but in situations that it's not just you, there's places for you to try it on.
Rewiring your brain is possible. Rewiring your brain is something you must do as a trial attorney so that you can face this job, this risky, risky job, and know and have confidence that you can handle it. I know you can handle it. Hopefully, this podcast has helped. Talk soon.
If you liked this episode topic, check out these others:
- Episode #198 – What They Don’t Teach You in Law School But Should. (With Dave Maxfield)
- Episode #197 – Struggling With Time Management? Here’s Why
- Episode #196 – Do You Have Trial Trauma?
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