Trial Magazine

Experiencing Other Minds in the Courtroom

Neal Feigenson
University of Chicago Press
www.press.uchicago.edu
240pp., $45

Reviewed by Thomas D. Penfield

Since 1943, when Melvin Belli famously brought a large model of a cable car intersection and a gear box and chain to trial to demonstrate the cause of a cable car gripman’s injuries, plaintiff lawyers have creatively used demonstrative evidence to develop greater empathy and understanding in jurors.

In Experiencing Other Minds in the Courtroom, Neal Feigenson, associate dean and professor at Quinnipiac Law School, conducts a historical and philosophical analysis about whether anyone can ever truly share someone else’s experience.

Feigenson uses four actual cases to illustrate each example’s evidentiary differences, impact on admissibility, and potential ­effectiveness in influencing jurors. One study involved botched laser surgery. In that case, the attorney distorted a photograph of pill bottles until the plaintiff pharmacist identified it as a fair and accurate representation of what he now sees following the surgery. Another case involved the criminal prosecution of a police officer who shot a fleeing suspect. His attorneys used animation and video footage to show jurors the officer’s point of view, which bolstered his testimony that he feared being hit by the suspect’s car.

One case example involved a plaintiff who suffered hearing loss and tinnitus when a tire exploded. Instead of the jurors having to reach an agreement over what a description of “loud” means, they received an actual demonstration: An acoustical expert created sound files that the plaintiff identified as identical to the tinnitus sound he hears. But was the sound played for the jurors through headsets a fair approximation, given the absence of environmental sounds that would normally be present? Feigenson explores this and other issues that arise.

Given this discussion, however, I was ­disappointed to see that Feigenson did not discuss noted psychologist Daniel Kahneman’s work on “recalled memory,” which found that people are incapable of accurately recalling an actual experience. Kahneman’s findings seem to suggest that recreations can be accurate only  when describing a present sense phenomenon.

I initially thought that this book might not be of much practical import to someone actively engaged in trial practice—but when I discussed it with a young associate, he became very animated and excited about the possibility of applying some of the techniques to his own cases. This book will stimulate your legal mind, and you will also get good ideas on how to search for experts and new technology to use in your cases.

The concepts discussed in this book will become more important as virtual reality and powerful computers advance the technology available in courtrooms—and as the field of medical knowledge expands exponentially. If you don’t want to be left behind, you will want to add this book to your library.

Thomas D. Penfield is a partner at Casey, Gerry, Schenk, Francavilla, Blatt & Penfield in San Diego and an adjunct professor at the University of San Diego Law School. He can be reached at tompen@cglaw.com.