Dave Dolkas
Dave Dolkas


The Art And Science Of Investigative Questions: Part 2 (The Red and Blue Brains)

When lawyers question sources and witnesses, they need to target their questions to a portion of the recipient’s brain; and they need to know what portion of that person’s brain is answering each question. For purposes of asking questions, we can divide the brain into two parts: the red brain and the blue brain. Sometimes you’ll want the source’s red brain to answer, and other times you’ll want the source's blue brain to answer. Before we distinguish red from blue brains, it’s helpful to understand a few things about the layers of our brain and how those layers relate to asking and answering questions.

Three Brains in One

That weird and wrinkled cantaloupe-sized mass inside our heads called the brain is divided into three layers that have evolved over millions of years. There’s a primitive reptile layer, a more evolved mammal layer, and a cortex layer.

The lowest part of the brain is the reptilian layer. The reptilian layer sits at the top of the spinal cord at the center of the brain, containing the most primitive brain structures. This layer controls basic survival functions like breathing and eating. We share this brain structure with fish and reptiles. This is the part of the brain that issues the fight-or-flight signal when we’re confronted with a danger.

In the middle sits the mammal layer, which wraps around the ancient limbic system of the reptile layer. The mammal layer is the emotional part of the brain. One writer summed it up nicely: "It's the part of the brain that allows your dog to seem so pleased that you're home while your fish couldn't care less."[1] This is our red brain.

Within this red brain is an area called the amygdala, which scientists believe is the part of the brain that generates our emotions: courage, creativity, love, loyalty, passion, sympathy and anger. The amygdala is also the part of the brain that causes us to yearn for instant gratification and quick fixes.

The upper layer of the brain — often referred to as the modern cortex — performs logical and rational thinking and our executive functioning. This upper layer encases the other two older structures. While dogs, chimps and other mammals have cortexes, ours have grown to a larger size. The cortex manages all sorts of higher-brain processes. It’s where our personalities reside, our reasoning is formed, and our abstract thoughts occur. It’s also the part of the brain that can make us overthink problems and spin our wheels. This is our blue brain.

Despite millions of years of evolution, the newer part of the brain (this upper layer) did not overtake the older parts of the brain (the reptilian and mammal layers). Both our red and blue brains are involved in nearly every important decision we make — like how Roger Clemens decided to answer a tough-sounding question posed by Mike Wallace about whether he’d taken steroids (as discussed in Part 1 of this article).

Controlling the Red and Blue Brains

New Zealand’s All Blacks rugby team is likely the most successful sports team ever. As of 2015, and in 112 years of playing rugby, the All Blacks' win rate was a staggering 78 percent. They are known for performing a Haka dance — a traditional war dance of the Maori people of New Zealand — before each match. One of the keys to the All Blacks’ success is the effort the team makes to sustain a cool competitive temperament throughout a rugby match. The team works on and treats competitive temperament as a skill that can be practiced and honed just like any other necessary competitive skill. The team's standing slipped in 2003 after a disappointing and early exit in the World Cup. In response, a psychologist was brought in to help the team understand how the brain works under pressure. The team learned about the brain’s two mental states: red and blue.

Red brain occurs when a player is H.O.T. (heated, overwhelmed and tense). In red brain, the player is off task, panicked and ineffective. In red brain, the player plays too fast or too aggressively, doesn’t see patterns or opportunities, and rushes the play.

Blue brain is the just the opposite. The player is C.C.C. (cool, calm and collected). The play seems to slow down, so that patterns and opportunities are recognizable. You've no doubt seen a post- game interview of a winning athlete who described his or her mental state as "in the zone." Or: "Everything seemed to be going in slow motion." These are characterizations of the blue-brain mental state. This is the state lawyers should be in when asking questions.

The All Blacks use a trigger that will keep them in, or get them back to, a blue brain. They train to use a physical act or a thought to stay in or get back into blue-brain mode. One player stamps his feet into the grass to literally ground himself back to blue brain; another player stares off at the farthest point of the stadium to remember the bigger picture.

How the Red and Blue Brains Make Decisions

In their book "Switch: How to Change Things When Change is Hard," authors Dan and Chip Heath discuss how to make people switch their beliefs and how to get group agreement and buy-in on a new idea. The authors stress that to convince or persuade another person — even regarding straightforward and seemingly logical matters — we must appeal to both the red and blue brains. Numerous studies conclude that the red brain makes most important decisions, while the blue brain justifies and rationalizes those decisions.

So what happens when there is a decisional conflict between the red and blue brains? "Switch" gives us the answer: The red brain always overpowers the blue brain. “Anytime the six-ton Elephant [i.e., red brain] and the Rider [i.e., blue brain] disagree about which direction to go, the Rider is going to lose. He’s completely overmatched.”[2] (In "Switch," the red and blue brains are referred to as the “Elephant” and “Rider” brains, respectively.)

The takeaway is this: All decisions trigger both the red and blue brains. Studies conducted on people suffering from injuries to their red brains show they had trouble making the most routine decisions. Without the red brain, the blue brain kept spinning and could not decide even the most mundane things.[3]

The 10-Dollar Negotiation Game

One seemingly simple negotiation game illustrates the interplay of the red and blue brains in decision-making. There are two players in the game. The first player is given 10 dollars and told he or she can offer the second player any amount up to 10 dollars. The other player, the recipient, is told the offer can be accepted or rejected. But here’s the catch: If the offer is rejected, neither player keeps anything.

This should be a win-win, right? All the second player needs to do is accept whatever amount is offered by the first player and both players get free money.

The exchange breaks down when the second player is offered just a few dollars. In those instances, the recipients consistently turned down the offer and a free couple of bucks. Why? When asked to explain why they’d rejected the offer, the second players stated they were ticked off by the stingy partner’s offer. Their red brains took over and made the decision to reject the free money. (My Greek grandmother used to say: You don’t like me once, I don’t like you 10 times! That’s how this game plays out — You can take your measly two bucks and ...)

Dr. Alan Sanfey — a cognitive neurologist at the Donders Institute for Brain, Cognition and Behavior at Radboud University Nijmegen, the Netherlands — took brain scans of subjects while they participated in the game. The scans showed activity in the subjects’ red and blue brains while participating in the negotiation game. Dr. Sanfey’s results were reported in a Harvard Business Review article:

By tracking the activity of these two regions, Sanfey mapped what appeared to be a struggle between emotion and reason as each sought to influence the players’ decisions. Punish the bastard? Or take the money, even though the deal stinks? When the disgusted anterior insular [i.e., red brain] was more active than the rational goal- oriented cortex — in a sense, when it was shouting louder — the players rejected the offer. When the prefrontal cortex dominated, the players took the money. [4]

How does this red- and blue-brain stuff relate to lawyers asking questions? Lawyers must be aware that this dual-brain processing occurs during the formation of every decision, including how a question should be answered. Whatever part of the brain shouts the loudest will prevail. If the red brain shouts louder than the blue brain, the red brain decides what answer to give. The unplanned, harmful and damaging blurt-out answer given by a source or witness occurs when the red brain takes over. There are times when that’s exactly what lawyers want when they ask questions.

There will also be questions you want the source’s blue brain to answer — usually when trying to obtain reliable information from a source. This is what occurs when a cop tells an excited witness to an accident: "Take a deep breath, relax, and just tell me what you saw." The cop is trying to get the witness into blue brain.

The question itself will trigger which part of the brain answers. If you ask a binary, black-and- white question — one that offers a make-the-source-look-good answer versus a make-the-source- look-bad answer — the source’s red brain will demand a make-the-source-look-good answer. If you ask an overloaded, close-ended question with trigger words, the source’s red brain will also decide on what answer to give. This will occur even if the blue brain knows that answer is not the best choice or not true. However, if you ask a gray question where the question is not binary or loaded up, then the blue brain gets involved. The answer provided should reveal more information, possibly truthful information or, as Steven Colbert has put it, “truthier” information. (How the phrasing of the question determines the answer is discussed more fully in Parts 4 and 5 of this article.)

The Reid Technique

Police interrogators know how to exploit the workings of the red and blue brains. Like me, you probably have watched countless TV shows and movies where the cops do the “good cop/bad cop” routine. This is the Reid technique, attributed to polygraph expert John Reid who began using the approach in the 1940s.

The technique begins with isolating the suspect, usually in an interrogation room with a one-way glass window. The isolation should make the suspect feel alone and without options. It triggers the fight-or-flight response in the reptile brain. Then the bad cop begins by telling the suspect of his guilt — presenting a theory of the crime sometimes supported by evidence and sometimes completely fabricated. The purpose of providing this detail is so the suspect can parrot it back as part of the confession. The cop tells the suspect: Don’t waste my time telling me you didn’t do the crime. All protests and explanations of innocence are rejected. This goes on for some time.

Then the good cop enters the room, usually with a can of soda or a cup of coffee for the suspect. The good cop tells the suspect he understands why the suspect committed the crime and everyone else will understand it too. The good cop says to the suspect: Better for everyone, including you, if you confess. The good cop explains all of the good things a confession will produce: a lesser charge, a chance for parole, etc. The good cop poses this question: "Or would you rather stay in custody forever?" What the good cop is really asking the suspect is: "Won’t your red brain feel better and out of panic mode if you just confess?"

This technique has come under criticism and some jurisdictions forbid its use because it has produced several false confessions. Eager for a quick fix, the suspect’s red brain rejects what the blue brain shouts to the red brain not to do: confess to the crime.

"A Few Good Men"

We see the red and blue brains play out in movies. Here’s the courtroom scene from the 1992 film "A Few Good Men," wherein Tom Cruise’s character, Lieutenant Daniel Kaffee, extracts the admission from Jack Nicholson’s character, Colonel Nathan Jessup, that Jessup had ordered a “Code Red” on one of his Marines:

[Kaffee] Colonel Jessup, did you order the Code Red?!

[Judge Randolph] You don't have to answer that question!

[Jessup] I'll answer the question. You want answers?

[Kaffee] I think I'm entitled!

[Jessup] You want answers?!

[Kaffee] I want the truth!

[Jessup] You can't handle the truth! Son, we live in a world that has walls ... Either way, I don't give a damn what you think you are entitled to!

[Kaffee] Did you order the Code Red?

[Jessup] I did the job that—

[Kaffee] Did you order the Code Red?!!

[Jessup] You're goddamn right I did!

What’s interesting about the question posed by Lieutenant Kaffee is it’s a binary, directive question posed on cross-examination: “Did you order the Code Red?” It gave Jessup two choices: one good (No) and one bad (Yes). How did Kaffee get Jessup to choose the bad answer? We learn Kaffee’s strategy from an earlier scene.

As Kaffee and another lawyer, Sam, were preparing for the examination of Jessup, the two lawyers discuss Kaffee’s strategy:

[Sam] And you think you can get him to just say that [he ordered the Code Red]?

[Kaffee] I think he wants to say it. I think he’s pissed off that he’s got to hide from us. I think he wants to say that he made a command decision and that’s the end of that ... I need to shake him and put him on the defensive.

[Sam] You're gonna trip Jessup and he’s gonna confess.

[Kaffee] I’m not gonna trip him. I’m gonna lead him right where he’s dying to go.

This is fiction, of course, but we can learn from Kaffee’s strategy. Kaffee is telling Sam he will get Jessup pissed off and lead Jessup's red brain to answer the question: "Did you order the Code Red?" Remember, the blue brain is powerless to control the red brain if the red brain is shouting louder than the blue brain.

Put Your Oxygen Mask on First

Often lawyers question sources and witnesses in stressful circumstances. You may have faced an opposing lawyer in a deposition challenging every question you asked, trying to coach the witness through objections, and looking for ways to prevent you from gathering information. The opposing lawyer is trying to get you to operate in red-brain mode.

Or you place yourself into red-brain mode with an "oh, crap!" moment. Have you ever had such a moment? I have. Plenty of times. It happened when I asked a witness a question and the witness gave a completely unexpected harmful-to-my-client’s-case answer. The answer caught me off guard, like an uppercut I didn’t see coming. Staggered by the blow, I wasn’t sure where to go next. This also happened when the judge sustained an objection on a key question and admonished me to “move on, Counsel.” I thought: "Oh, crap! I’m losing control."

The first rule when you — the person asking the questions — slide into red brain is to get yourself under control. Get back into blue brain. That’s why flight attendants tell us to put on our oxygen masks before we help anyone else. We’re no good if we’re out of control, operating in red brain.

How do you get yourself under control and out of red brain?

First and in the moment, do some quick self-talk and acknowledge what’s happening. Studies show that acknowledging the feeling is the fastest way to get your emotions under control. This is similar to the triggers used by the All Blacks rugby team.

Second, take some slow, controlled breaths.

Third, and beforehand, make sure you’ve meticulously planned your questions. With investigative questions, plan your Level One and Level Two questions (discussed in Part 5 of this article). If you plan properly, there should be no surprises or "oh, crap!" moments because you’ve mapped out your questions, thought about the possible responses, and have a path for following up.

Also, never show emotions that exceed the source’s or witness’ emotions. You may have seen courtroom examinations or depositions where the lawyer appears to be losing it — emotions running out of control — while the witness remains calm. "Who’s winning this fight?" asks the observer. The witness. What’s happened is the lawyer’s red brain has taken over and emotions are pouring out. The lawyer is operating H.O.T., as the All Blacks say — heated, overwhelmed and tense. Instead, the lawyer should be C.C.C. — in full control and in blue-brain mode.

I’m not saying you can never show emotions. I’m saying keep your emotions in check. Show only those emotions you decided, in advance, to show. In his excellent book on trial practice, "The Trial Lawyer: What It Takes To Win," trial lawyer David Berg instructs that you need to stay under the witness emotionally on cross-examination. Berg writes: “Staying under a witness emotionally sends all the right messages to jurors, including that you are in control of the cross — and of yourself.”[5] This is sound advice.

David Dolkas was a litigator and trial lawyer for 34 years, most recently with McDermott Will & Emery LLP. He now trains and coaches lawyers on how to MAP (manage, analyze and present) complex cases and how to map careers.

[1] Gardiner Morse, “Decision and Desire,” Harvard Business Review, Summer 2014, 77.

[2] Chip Heath and Dan Heath, Switch, How to Change Things When Change is Hard, Broadway Books, 2010, 7.

[3] “Decision and Desire,” supra, 74.

[4] “Decision and Desire,” supra, 73.

[5] Dave Berg, The Trial Lawyer, American Bar Association, 2003, 164-165.

David Dolkas