Using Hypnosis in Legal Focus Groups and Mock Juries
The subconscious factors uncovered
Brief history of hypnosis
Hypnosis is usually described as an altered state of consciousness, similar to sleep but more like daydreaming. As in sleep, the conscious mind recedes and the subconscious gains control. Hypnosis is also characterized by relaxed muscle tone, reduced blood pressure, slowed breathing rate, enhanced receptivity to suggestions, and increased access to subconscious feelings, ideas, and memories. To induce hypnosis, the subject is instructed to relax and concentrate on the hypnotist's voice, usually followed by closing their eyes and following the suggestions made by the hypnotist.
Hypnosis was used by ancient peoples under the guise of sleep suggestions to help cure ills. Shamans and medicine men used it for purposes of control. The modern history of hypnosis can be traced to Friedrich Anton Mesmer, who presented his ideas in Vienna in 1776. Mesmer thought illnesses were caused by the bad distribution of “magnetic fluids” and that this could be “rebalanced” by magnetic forces. His patients would form a circle, hold hands, feel overpowered by what Mesmer considered “magnetism,” and undergo an intensive “corrective emotional experience” in a trance state. In France, a commission (that, interestingly enough, included Benjamin Franklin) could not find any basis for the foundations of Mesmer’s theories of magnetism, but they did find the results of his study to be related to imagination and suggestibility on the part of the patients.
The use of hypnosis gained ground in the early 19th century when John Elliotson, a surgeon in London, performed painless surgery after putting patients into a trance. In 1841, James Braid, a Scottish physician, found that the ability to go into a trance was within the subject, not the hypnotist. By the end of the 19th century, the French doctor Hippolyte Bernheim had treated more than 12,000 patients using hypnosis. The connection between hypnosis and memory was established in 1914 by Pierre Janet when he demonstrated that during the hypnotic state subjects could recall things they could not while awake.
Freud, a student of Bernheim, abandoned its use in the early 1900s in favor of his own form of psychoanalysis. The reason for this is now felt to be his misconceptions about hypnosis, as well as his own negative experiences using it with his patients. This put a pall over the use of hypnosis for the next 50 years. The use of hypnosis as a therapeutic technique, however, resurged mid-20th century as a result of the Korean War. Shell-shocked soldiers were treated using hypnosis by doctors who were looking for short-cut therapies. In 1958, the American Medical Association approved hypnosis as a medical technique. From then on, hypnosis has been used by doctors and dentists to reduce pain and by hypnotherapists to help people stop smoking, lose weight, and for many other reasons.
Introducing Hypnosis to Focus Groups
I began using hypnosis in marketing and advertising focus groups in 1972. I had been moderating focus groups for 10 years but found it difficult to overcome some problems in the focus group setting that still exist for conventional focus groups. First, there was a problem with dominant participants, who had strong opinions and could bully other participants to their point of view. In the face of this, shy participants would hold back their own conflicting points of view. Secondly, participants were not always able to remember key information, such as what they bought on their last shopping trip or the circumstances surrounding the first time they bought a particular brand. A third dilemma I faced was that participants did not always want to share their true opinions or feelings. Fourth, participants always seemed to provide rational answers to questions and very little emotional content would surface in the groups. Lastly, I found that participants were usually not able to come up with creative ideas or to brainstorm in a productive manner.
I had always been interested in hypnosis, and it struck me that perhaps by hypnotizing participants I could solve some or all of the problems I encountered in focus groups. I completed a course in hypnosis and began experimenting with the technique.
Using Hypnosis in Legal Focus Groups and Mock Juries
For the past 45+ years I have conducted Hypnosis Focus Groups for my Fortune 500 and major advertising agency clients in the marketing and advertising fields. Then, a few years ago, I realized that the same advantages hypnosis had in those areas could be applied to focus groups and mock juries for lawyers.
Trial lawyers have always known that jurors' subconscious thoughts and emotions can drive their verdicts, but until now there has been no way to uncover those thoughts and feelings. But now, the science of hypnosis can be used to delve into the subconscious thoughts and feelings in legal focus groups.
For legal focus groups and mock juries , the key advantage is that when participants are hypnotized we can access their subconscious mind, the "secret" area that they may be holding back from view. When hypnotized, participants are "compelled" to give their completely honest and truthful answers - they won't just tell you what they think you want to hear. This provides much clearer direction on what evidence has the most value and highest level of acceptance.
Their subconscious level will also give you better feedback on your trial strategy, latent biases, case strengths and weaknesses, which exhibits work best, voir dire questions, and many other issues. Further, there are no "dominant participants" bullying the rest of the participants , and so we will elicit independent and uninfluenced responses from all the participants. By questioning participants under hypnosis we are also able to develop new insights into how the subconscious weaves evidence and arguments together. Hypnotized participants also provide much more emotional content and reactions since their guard is down. And, participants are better able to brainstorm and provide new creative solutions without "holding back."
Recruiting participants for the groups is done in the same manner as for conventional groups, using all the major focus group facilities around the country. Normally, the facilities will recruit from their own database, but they can also use special lists . During the recruiting interview participants are asked the normal demographic and other screening questions and then asked if they would be willing to participate in a focus group or mock jury where they will be hypnotized. While most potential participants are familiar with hypnosis, some participants may have questions about our reasons for using it. For this purpose recruiters are provided with a list of FAQs about hypnosis and are trained to answer participants’ questions.
The hypnosis process
During the first 45 minutes of the focus group, we discuss our reasons again for using hypnosis and offer a chance for Q&A. Participants then go through the hypnosis process as a group, which is basically a series of relaxation and deepening techniques. We want participants to get in touch with their subconscious where their memories and emotions are stored. Participants will usually have their eyes closed for most of the session, unless there is a need to have them open their eyes to view exhibits or other visual materials. However, even when their eyes are open, they will remain hypnotized.
No “dominant” participants
Even the most skilled moderator can have difficulties with a dominant respondent, and efforts to try to neutralize such a person can often send negative signals to others in the group. However, In a hypnosis focus group or mock jury, the participants have given the hypnotist/moderator permission to control the flow and content of the discussion. Therefore, even if the hypnotist/moderator cuts off a respondent’s answer, no one is alienated or upset, and even the shyest respondent in the group will provide information and join the discussion.
Hypnosis as “truth serum”
When participants are hypnotized, their first instruction is to tell the truth because we only want completely honest answers. They are instructed not to tell us things just because they think it might make us feel good, impress us, or enable them to look good in front of the other participants. The information we get is coming directly from their subconscious and we tell their conscious mind not to filter it. We also tell them that if they hear something from another respondent with which they agree or disagree, we want them to share that with us. In hypnosis focus groups there is no yea-saying.
Age regression, memory, and “imprinting”
One of the most unique hypnosis techniques is “age regression.” Age regression is a process whereby the respondent is able to return to an earlier event in their life and recall it. The reason this is possible is that our subconscious is like a computer hard drive that has stored information about every event, person, and thing we have experienced in our lives. When we are conscious, our minds prevent us from accessing all but the most important parts of our subconscious memory bank. In hypnosis, however, participants can be directed to specific areas of their subconscious mind and retrieve hidden information. This can be very important in legal focus groups and mock juries since we are interested in what events in their lives remind them of the case at hand.
One of the most important uses of “age regression” in hypnosis is to uncover the subconscious “imprints” that determine their current thinking and behavior about the case. Konrad Lorenz, an Austrian ethologist, invented the science of “imprinting” as it related to animal behavior. He found that for many animals their first experiences could create imprinted behavior that lasted for the remainder of their lives. Later research has demonstrated that humans can also be “imprinted” and that those experiences can establish the pattern that controls their future thinking and behavior. Once we know the imprints, we can take them into account and build a better legal case.
Hypnosis and emotions
Participants in conventional focus groups and mock juries can be resistant to sharing emotional content during the discussion. This is not surprising considering they don’t know the moderator, the other participants, or the people observing behind the mirror. Participants also want to appear rational and logical in their answers to questions. The idea of political correctness can affect their responses as well. From a brain function standpoint, this means participants will tend to use their left brains more in conventional focus groups and mock juries , even if it is not their usual way of thinking or approaching a question. (The left brain is believed to be the center of language and objectivity: logic and reasoning. The right brain is usually thought of as the center of non-verbal activity and subjectivity: emotions, feelings, underlying beliefs, motivations, and intuitions.)
In hypnosis focus groups and mock juries , participants will be able to access their right brain functions more intensively, especially their ability to get in touch with their subconscious where emotions are stored. Under hypnosis participants will share their true emotions and feelings in connection with their beliefs and actions. We can also dig down beneath their emotional reactions to find the premises underlying them.
Hypnosis and brainstorming
Hypnosis can help participants generate truly creative ideas. The reason is that hypnosis reduces participants normal senses of reality and they become less inhibited. Participants can be given instructions to brainstorm and come up with their most wild and crazy ideas without worrying about how others will respond. As a result, many more unconventional ideas will develop in hypnosis focus groups and mock juries, ideas that will lead to preparing a stronger case.
Using hypnosis in focus groups and mock juries can give trial lawyers an edge in a case versus using conventional legal research by uncovering new and unique factors. For a project bid please contact us.