Two weeks ago, my wife propped open the door of our (too-long-for-any-reasonable-use) screened porch.  She was shuttling plants in and out every night and got tired of latching and unlatching the porch door.  Well, it’s closed now—for good—because a hummingbird got into the porch.  I can’t seem to forget that little bird and I thought I should write about him.

I saw him from the breakfast table.  He was whizzing past the doors out to the porch, left and right, passing like a pendulum.  Like every wasp and moth before him, he didn’t know how screens work—how they entice you with light and scenery but abruptly stop you with mesh.  I went to try to herd him out the door.  He just flew higher than my head and hands.  Back and forth he went, missing the narrow porch door and smashing into the screens at each end.  I got a pillowcase to try to catch him.  It didn’t work.  At one point in my end-to-end pursuit, I thought his tongue was lolling out of him, from exhaustion, but I quickly realized that he had irreparably damaged his delicate black beak.  I made a fast and inexorable decision and I sent my wife back inside.  Nobody needed to see the place where the two of us were going—fleeing and chasing.

I eventually caught him in the pillowcase.  As I held him folded in the pillowcase, his squeakings, so familiar to me while I photograph them at our feeders, increased in tempo and timbre. I quickly picked up the nearest rock—and who knows why it was there on the deck outside—and put the whole affair to an end.  The rest of the day, however, I just re-lived it…over and over.  Our mutual helplessness.  The sounds.  The small red spot on the baby-blue pillowcase.

The rock.

I have been trying to ignore it.  Ignore what?  The emotion of the whole thing.  Pushing it down, shooing it away and, finally, coolly rationalizing each of the events; or, to put it more honestly, my decisions within those events.  Even as I write about it now, my eyes feel swollen with the press of tears that I’m blinking back.  If I can’t be free of the memory, can I at least be free of the emotion that always arrives with it?  Weeks have passed.  Then, just tonight, I read about a man suffering from a small brain tumor who, upon the excision of the tumor, had no apparent capacity for emotion left within him. He was rendered emotionless. But, the surgery didn’t perfect him.  It didn’t turn him into a most-intriguing rational razorblade, like Spock.  As I read about him, I thought of my hummingbird and I knew what I had to write my June blog about.

Before his brain tumor, writes Jonah Lehrer, “Elliot” was a rather intelligent and successful man with a near genius IQ.  Surprisingly, and despite losing a part of his brain to the surgery, he suffered no loss of intellect.  He remained rational and high functioning in most respects.  However, after his surgery those around him at work and home noticed two major differences: First, nothing seemed to touch him or move him. Not love, nor anger, nor fear.  That’s expected when one loses one’s emotional senses.  Now here’s the stunning part: Along with the absence of emotion, he seemed to utterly lose the ability to make even the simplest decisions.[1]  If he tried to decide something as perfunctory as where to have lunch, he would drive to various restaurants, weigh their menus, evaluate seating, and check their wait times, but struggle to choose where to eat.  His life crumbled around him.  His wife left.  He lost his job.  He had to move back in with his parents.  The more closely linked to things personal or social the decisions were, the harder it became for Elliot to make them.[2]  After watching Elliot weigh for 30 minutes the pros and cons of two different appointment times, the researcher working with Elliot said, “It took enormous discipline to listen to all of this without pounding on the table and telling him to stop.”[3]

Based on his work with Elliot and other similar patients, Antonio Damasio was able to isolate the small bundle of nerves in the brain, just behind the eyes, that “integrat[es] visceral emotions into decision-making.”[4] The excision of Elliot’s small tumor damaged this area, the orbitofrontal cortex (OFC), just enough to remove Elliot’s emotions and his capacity to decide.

It should go without saying that connecting law to fact has been a rational business. We, as lawyers and educators, have made it that way.  In neither semester of my torts class were we ever asked by our professor—a good and empathetic man—“Class, have you stopped to think what it must be like to have participated in the crippling of your own child because you yelled at him in order to stop him from drinking from a container of baby oil?[5]  And, if you’ll forgive my hyperbole here, I think it’s a sin if we don’t ask that question in torts, and if we teach our trial advocacy students, or foist on our jurors, a cool and completely rational opening or closing. Who knows?  We may be participating, in some small way, in the crippling of their decision-making.

The great trial lawyer, Gerry Spence, says of effective trial lawyering, “To move others, we must first be moved.  To persuade others, we must first be credible.  To be credible, we must tell the truth and the truth always begins with our feelings.”[6]  However, it’s hard to feel sometimes and even harder to adjust to the idea that others, jurors for instance, can or even should be let into our own feelings. There are so many things about law school that condition us against the instinct to share our emotions, don’t you think?  Well, may I just say to you, as an encouragement, that I think it’s a terrible idea for you to catch your feelings up in a pillowcase and reach for the nearest rock.  I hope none of us ever asks our students or jurors to do it.


[1] Jonah Lehrer, Feeling our way to decision, The Sydney Morning Herald (Feb. 18, 2009),

[2] Id.

[3] Id.

[4] Id.

[5] A rough summary of a failure-to-warn case that hasn’t left me in 23 years.  Ayers v. Johnson & Johnson Baby Products Co., 147 Wash.2d 747 (1991).

[6] Gerry Spence, Win Your Case 32 (2005).