The Advocate, Journal of the Nevada Trial Lawyers Association, May 2004 issue.

“Brain typing” is an interesting new tool that has some obvious potential uses for trial attorneys. 

If you are a sports fan, during the past year you have heard quite a bit about “Brain Typing.”  It turns out that there is a “brain typing” expert named Jonathan Niednagel, who is a guru-consultant to many major league professional sports teams, and has been serving in that capacity for many years (although only recently has his role become public.)  Danny Ainge, the former BYU basketball great and now general manager of the Boston Celtics, made drastic  wholesale changes in the Boston Celtic basketball organization based upon the advice of Mr. Niednagel, upon whom he heavily relies.  It turns out that former Celtic Kevin McHale, general manager of the Minnesota Timberwolves, has also been using Mr. Niednagel to help make selections of players ever since he became GM.  Sammy Sosa, the famous Chicago Cub, publicly credited Mr. Niednagel for helping to turn around his career soon after he was traded to the Cubs (Niednagel gave him advice on which gross motor skills  his “brain type” would best  use in a baseball swing.  Sosa changed his swing, and went from being a reasonably good player to becoming a superstar.)  Former San Diego Charger general manager Bobby Beathard admitted that Niednagel had strongly cautioned him not to draft Ryan Leaf, and he had foolishly disregarded the advice.  All of this is pretty interesting stuff.
 
Ainge was lambasted in the media for using a “witch doctor” to pick his team, but the fact is, many major league teams have been using Niednagel for years; and he has had a solid record of success. 
 
In doing a little research on my own, I found out that what Mr. Niednagel is doing is employing a psychological classification technique that has been around for some time.  The “father” of this technique is Carl Jung, who initially theorized that people are genetically “hardwired” into one of sixteen distinct “brain types.”  Jung’s theories were later developed more precisely by other psychologists, who developed a test called the “Myers Briggs” or “MBTI,” which test is used to categorize people into one of the sixteen types.

 Unwittingly, I had my own experience with this test years ago.  When I turned 40 years of age, my wife insisted that I get an overall physical, and I went to the Scripps Clinic to get the full day “executive” physical.  Part of the process involved me taking a test which I later found out was the MBTI.  The psychologist who met with me for forty minutes as part of the “executive physical” said I tested very strongly in one particular category, and he correctly analyzed me insofar as what my strengths and weaknesses were at home and in the work place.  I was amazed at how accurate he was, without knowing any of my personal history.
 
Years ago, I remember attending an ATLA trial skills seminar in which a couple of  prominent trial lawyers (real “heavy hitters”) mentioned using the “MBTI” as part of their voir dire techniques in large cases.  Frankly, I had forgotten about all this until Jonathan Niednagel and Danny Ainge hit the news last year.
 
The basic theory of brain typing is that in addition to the “nurture” effects on one’s thinking and personality, there is also a strong “nature” component that controls psychological predispositions.  These predispositions are “hardwired” into the brain.  Try as one might to change them, they will always be there.  Apparently the brain types are
also associated with various gross motor and fine motor skill functions (thus their usefulness to the sports franchise owners in picking players in draft picks.)
 
The sixteen brain types cut across gender and race.  That is, you will not find more of certain brain types in females versus males; or in one race versus another.
 
Of course, through cultural mores and so forth, we are all trained to act in certain ways, which sometimes are at odds with our “brain type.”  Because of this cultural overlay, for example, many men who would have brain types that might be associated with feelings or heightened sensitivity learn to hide it; and conversely, many females who have brain types associated with cold logical type behavior  learn to act differently.  However, despite the “act,” these men and women are still “hardwired” to be warm/feeling, or cold/logical down deep. 
 As I see it, the  biggest  problem with brain typing is the difficulty in accurately categorizing someone.  For example, the Myers Briggs test, which is the industry standard, has a high rate of inaccuracy.  The reason for this is because it is essentially a self assessment test, and the person who is answering the test will oftentimes have a misconception of himself, or will answer the questions in a way in which he or she thinks she should be, rather than how he or she actually is; or answers will be  based on the manner in which that person behaves in their job, which can be an artificial behavior .  For example, in order to be a successful attorney you have to have certain attributes; and if you have practiced law long enough, whether or not you “naturally” have these attributes, you will tend to adopt them.  Then, if you were to take the Myers Briggs test and answer it in accordance with how you perform on the job, you would perhaps inaccurately pigeon hole yourself into the wrong category; whereas, if you had answered in accordance with how you were before you were an attorney (e.g., how you behaved as a child or outside the office) you might be more accurate. Thus, I would caution anyone against taking the Myers Briggs test  thinking  that the assessment from it is totally accurate; such self assessments are, per the above, prone to inaccuracy.
 
In order to get an accurate brain typing it would take a trained professional to not only have the Myers Briggs test, but also to do some other analysis.  Apparently, many things in the way of body language and other objective criteria can be used to better sharpen the “diagnosis” of the brain type, in the hands of a skilled professional.
 
Each brain type has its own strengths and weaknesses.  No particular brain type is the type of “criminals,” for example.  Any particular brain type could be a criminal, or a saint.
 
But, there are indeed certain brain types that would be very good at certain jobs, and certain brain types that would not be good at certain jobs.  (The brain type is not associated, to my knowledge, with IQ.)  This would tend to explain to me why some persons, who are very intelligent and go into the practice of law because they think “lawyers are smart,” end up being very unsuccessful.  The practice of law requires certain predispositions which not everyone possesses. .  The same would be true for any profession.
 
How, then, is all of this discussion relevant to the practice of law?
 
You can, to a certain degree, “brain type” people into some of the broader categories; and to do so gives you a better tool to use in how to relate to others, whether they be a judge, juror, opposing counsel, etc.  We have to learn to appreciate and respect the differences between us, and realize that not everyone thinks, or should think, or perceive things, in the same way as you.  It really takes all types to make the world “go round.”

To me, the “brain typing” explains to at least some degree why jurors seem so confusing to us.  In any given pool of people, you will have a certain percentage who perceive things by intuition and feelings; and an equal number, approximately, of persons who perceive strictly through their five senses and logic.  If you had a jury that was mostly comprised of “feelers/perceivers,” and made arguments that depended only on logic and time line poster boards, you would tend to fall flat; conversely, if you had mostly “thinkers/five sense” type individuals and tried to appeal to high ideals, empathy, etc., this would fall flat on its face. The likelihood is that in any given jury panel you will have both types.  Then the question becomes: of the two types, which is the majority; and, of the two types, which has a person or persons who would be foremen or leader types?
 
It is also useful to know that brain types have nothing to do with gender, race, religion, etc.  To assume that female jurors will be more empathetic than male jurors is wrong, for example.  To conform to cultural role models, women may  try to act warm and empathetic; but the fact is, about half of them are hardwired to be just as insensitive to others and logical as any “tough guy.”  Conversely, juror number 6, that construction worker with the Marine tatoo, may be very feeling and empathetic brain type-wise, and not the uncaring person he portrays.  (However, in the end, people do tend to end up in careers that match their brain types; either that, or they have rather unhappy, and likely, unsuccessful, careers.)
 
I  think each of us has some sort of innate sense of judging other persons’ brain types.  Some would be more gifted in this area than others (i.e., the “feeling” brain type would do better at sensing this sort of thing  than would the “logical” brain types.)  Thus, this would emphasize the importance of following “gut feelings” about jurors doing voir dire; to some extent, the voice inflection, speaking patterns, or body language of persons does exhibit their “brain type,” and the “gut feeling” of the attorney could well be picking up on this.
 
This would also explain why certain trial lawyers seem to be so much more skilled at picking up on the “gut feeling” of which jurors are good and bad for a given case.  Some people just naturally have this gift of feeling/perception hardwired in; some do not.
 
I must admit that at this point, I regard the “brain typing” phenomena as something more akin to an interesting parlor game than useful tool, as I have a difficult time in assessing other’s types.  But, in the back of my mind I know that the biggest big shot lawyers in the country have used it as a jury selection tool; and sports owners are paying big bucks for consultants to help them pick players . When big money is at stake, the big money people are “betting” on brain typing.  Therefore, I think this is one interesting tool that trial attorneys should consider using, not only in trial situations, but also in everyday business  activities. 
 
An interesting place to start is to take the Myers Briggs MBTI  test.  This is available from several sources on the internet for a modest fee.  Mr. Niednagel also has several books and so forth available on the internet.  It will not take you long to become expert enough to ask “what brain type are you?” the next time you are in a singles bar.