Naptime in the Courtroom

Last weekend I read Brain Rules, by John Medina. It’s a slender book concisely describing 12 of the principles that govern how our brains work, and suggesting ways that businesses and schools might take advantage of these principles to help employees and students perform and learn better.

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 and
performance resulting from nights with little or no
sleep. “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.

3 Comments

  1. Don’t forget #13: Start smoking.

    Seriously, though, sleep is more important than most people realize and should be one of the highest priorities. Of course, as I type this it’s 1:21 a.m. But there’s a hurricane coming so I can sleep in.

  2. Throughout my career, I’ve always been the “night owl”, taking pride in getting a brief out after staying up all night working on it instead of doing it during the day. Recently, I’ve had to abandon this practice as my medical regime (following a hemorrhagic stroke) included several blood pressure medications that made me sleepy. So, for my first jury trial after getting back to work, I was forced to do my last minute prep from 6 to 8:30 a.m. instead of the night before trial. And I’m kicking myself for not having structured my sleep this way all along. For me, it’s not just better performance during the day, though that has happened; it’s that the work I was doing at night was terrible inefficient because I was so easily distracted. In the morning, I was so focused that tasks I’d budgeted half an hour for took ten minutes. Timed moved much more slowly — the first time I’d experienced that as an attorney, and a welcome change! That led to more confidence the night before (“I can do that before court in the morning, so I can go to bed now”). I’d long ago abandoned the habit of sleeping late on the weekends — the only day of the week that (occasionally) belongs to me, and I’m spending it in bed??) and now I still wake up before 7 on Saturday and Sunday.

    Benjamin Franklin was right.

    And here’s my # 14: “Quit watching TV.”

  3. I’ve always prided myself on staying up late as well (why this should be a source of pride, I have no idea) and working off of 4-6 hours of sleep. For the last two months, I’ve been taking 10mg of Melatonin every night and getting 7-8hrs of deep sleep, complete with dreams! Who would have thought I would cope better during the day?

    #15 “Stop surfing the web.”

    Disclaimer: I do not work for, nor do I own stock in any company involved in the manufacture, distribution, or sale of the aforementioned product.

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