A great deal of attention has been paid in recent months by advertising and marketing companies to a concept advocated by Dr. Clotair Rapaille (pronounced “rah-pie”), a French born psychologist-turned-marketing consultant. The objective is to discover a message which will trigger instinctive actions at an unconscious level and motivate the person to buy the product. To understand his theory we need to look at the human brain.According to the triune brain theory developed by Dr. Paul MacLean, Chief of Brain Evolution and Behavior at the National Institutes of Health, you have three brains, not just one. This theory may help you explain some of your behavior, your coworkers’ behavior, and the behavior of people you encounter. He explains that the brain stem is the reptilian brain. It is a remnant of our prehistoric past. The reptilian brain acts on stimulus and response. It is useful for quick decisions without thinking. The reptilian brain focuses on survival and reproduction in order to ensure survival of the species. It takes over when you are in danger and you don’t have time to think. In a world of survival of the fittest, the reptilian brain is concerned with issues of survival. The reptilian brain is fear driven, and takes over when you feel threatened or endangered. A second part of the brain is the limbic stem or mammalian brain. The limbic stem is the root of emotions and feelings. It affects moods and bodily functions. The neocortex is the most evolutionary advanced part of your brain. It governs your ability to speak, think, and solve problems. The neocortex affects your creativity and your ability to learn. The neocortex makes up about 80 percent of the brain. This the logical and rational brain. It is not fully in place until age 7 years. Before that age children are not discerning. The cortex is a controlling brain. It tries to control the other parts of the brain. It wants to slow things down. It gives a better chance of survival because it exercises control. "Give me a reason" is a product of the cortex to explain a reptilian response based upon instinctive motives of survival or reproduction. However, where there is conflict, the reptilian brain always prevails and the cortex invents an intellectual alibi for the instinctive decision or action taken.

Dr. Rapaille says we humans imprint impressions upon our first experience with something new. The process involves the limbic brain as it requires remotion to imprint. This imprinting process is different in different cultures. But the imprinting results in “codes” or instinctive reactions to information or experiences. The belief is that there is always a first time for learning or experiencing. The first time you understand or experience, you imprint a meaning or mental reaction that stays with you for the rest of your life. This imprint or code operates at an unconscious level and resides in the third brain as a code or imprint for life.

Images and sounds are more powerful then words The goal of advertisers is to discover the "code of the unconscious mind." To break the code. Because unconscious forces explain why people do what they do. He argues that imprinting is our “mental highway” to our reactions. He tells companies they must market their product to all three brains. His procedures to discover the imprinted code are unique and involve large teams of people, but his success is well documented with such companies as Folger coffee, Hummer automobiles and Chrysler PT automobiles. He argues that traditional marketing gives answers to the wrong questions because the goal should be to discover the "collective unconsciousness" of prospective buyers. His objective is to determine the code for the product, the logic of the emotion in response to it, the first imprint they have and so on. He argues that the first rule of this investigation is that one must not believe what people say their reasons are, because the cortex supplies rational alibi’s for instinctive behavior. He argues you have to appeal to the "reptilian hot button" and that you cannot rely upon the words people use in focus studies to know why they do what they do or buy.

In fact, marketing now is directed to the "unconscious"  as more important then that to the conscious. There is even the term "neuromarketing" involving attempts to map brain function and target the human decision making part of the brain. Research is being done using MRI imaging to observe how the brain responds to things and messages. They have measured how beta activity on the left side of the brain – the analytical side – diminishes and how quickly the purchase decision is made not utilizing that part of the brain.He argues the airline industry is marketing wrongly. Their focus studies indicated people said they wanted cheaper tickets, but his studies indicate that the reptilian need is for comfort rather then feeling like you are in a high security prison.

He maintains that nothing happens by chance. When people do things, there is always a code that determines why they did it. Finding the code is the challenge. If you want to appeal to humans find the code or imprint. The Republican advisor Frank Luntz (as well as George Lakoff) are involved in this even though they talk about "framing" issues. For example, Luntz’s advise to change Republican references from "estate tax" to "death tax" convinced millions of middle and lower class citizens that the tax was unfair to them because it connected with deep seated reactions people carried at an unconscious level. Another example is that Luntz also advised changing "global warming" to "climate change" with far different gut reactions by people.

Trial lawyers therefore need to be aware of these concepts. The challenge is applying these concepts to litigation. The biggest obstacle is the pre conceived ideas and opinions lawyers bring to the study of these issues. Most lawyers assume they think like other non lawyers and know how people think. But, we know that most often lawyers do not think at all like other non lawyers and their opinions about human behavior are very often totally in error

In our focus studies we need to be on guard not to assume the accuracy of explanations people give us, but rather look behind the words to unconscious motivations they may not be aware of themselves. In focus groups, we are far more likely to discover these deep seated reasons when we restrict the information we give the groups about the case and issues that concern us. Letting them express a flow of consciousness is far more likely to expose these hidden motivator s then providing details. Creative application of focus studies through focusing on what lies behind the reasons offered is our best opportunity to do this short of hiring an expert in this area.