21 Feb 2020
Over a decade since its introduction, the Reptile Theory continues to make a notable impact on personal injury litigation in the United States.
The theory, first introduced in Reptile: the 2009 Manual of the Plaintiff’s Revolution by David Ball and Don Keenan, started a movement that has evolved into seminars, retreats and law review articles aimed at understanding, exploiting and counteracting our “Reptile” brains.
What is the Reptile Theory?
The Reptile Theory focuses on safety and security issues to subtly encourage jurors to envision themselves in the same situation as a plaintiff.
The strategy relies on the “Triune Brain” concept of neuroscience, engaging the most primal part of a juror’s mind to provoke the feeling that if a defendant’s actions are allowed to continue, then the community and even the jury itself may be in danger.
Before the Reptile Theory, plaintiffs’ attorneys had to be careful to avoid invoking the Golden Rule when addressing a jury. Their arguments had to rely on the evidence presented. They could not implore jurors to reach a verdict based on jurors putting themselves in the shoes of a plaintiff or based on how those jurors wish to be treated.
The Reptile Theory allows plaintiffs’ attorneys to sidestep the Golden Rule, while making a similar impression on jurors. The attorneys start by establishing safety rules, and then demonstrating how a defendant’s unreasonable actions violated the rules to put a plaintiff in danger.
According to Ball and Keenan, plaintiffs’ attorneys who successfully use the tactic have garnered over $7.7 billion in verdicts and settlements. As expected, defense attorneys have responded quickly to develop strategies that blunt Reptile tactics.
Spotting Reptile Tactics in the Wild
Attorneys who practice the Reptile Theory try to establish safety rules from the outset of litigation, usually beginning with the complaint. These rules take the form of statutes, employee handbooks or industry standards.
The next indication of Reptile tactics comes during discovery, when a plaintiff’s attorney attempts to box a defendant into admitting a violation of these rules, rather than focusing on the plaintiff’s injuries or how the accident occurred. Written discovery often includes requests for industry standards and internal operating procedures, along with evidence of prior similar incidents that can establish a pattern of safety violations.
During depositions of employees or corporate representatives, attorneys employing Reptile tactics ask hypothetical questions that establish a rule with which no rational person would disagree, such as whether a person who causes damage should pay for it, forcing a defendant to agree to a standard of reasonableness.
Once a case proceeds to trial, an attorney relying on the Reptile Theory presents these safety rules to the jury, with a focus on why the rules should have prevented the accident. Closing arguments nudge jurors to conclude in their minds that these safety standards were intended to protect the larger public as well, and ultimately, the jurors themselves.
Responding to Reptile Tactics
Defense attorneys who recognize the Reptile Theory in action have several opportunities to counteract it.
When a complaint is filed, defense attorneys should ensure that the plaintiff has alleged sufficient facts to state a cause of action, especially where statutes may limit demands such as punitive damages. References to negligent hiring, supervision or training can be an indication of Reptile tactics as well as of a plan to open the door to evidence of prior similar incidents. In response, defense attorneys can limit these claims, and prevent the eventual introduction of Reptile-friendly evidence that could support the claims, by immediately filing motions to dismiss or strike.
During discovery, defense attorneys can fight a plaintiff’s attempt to establish safety rules, especially when plaintiff’s counsel uses hypothetical questions to do so. Because lay witnesses are not permitted to answer questions that aren’t based on their own direct perceptions, objecting to these inquiries during depositions, and even instructing a witness not to answer, can negate Reptilian questions.
In contrast, during expert depositions, hypothetical questions are permitted and should be anticipated. However, carefully preparing a witness to explain that their expert opinions are only based on facts of which the expert is personally aware can neutralize the effect of a Reptilian question.
After discovery, motions in limine can be especially helpful in preventing Reptile strategies. When the Reptile Theory first entered the scene, defense attorneys had difficulty identifying what they sought to exclude. While a judge may be reticent to grant a motion to exclude all Reptile tactics, if defense attorneys can establish that specific questions and evidence are part of the Reptile strategy, and explain how they may be used to inflame the jury, the likelihood of the judge granting such a motion increases.
Judges often rule that motions in limine are premature or defer ruling on them until the issue is raised at trial. However, filing these motions can put a judge on notice that the plaintiff is using the Reptile Theory.
At trial, defense attorneys should preserve objections to Reptile tactics for the record, as attempts to circumvent the Golden Rule can be reversible error on appeal in some jurisdictions. If a plaintiff is allowed to introduce evidence of past similar incidents, defense attorneys should be prepared to rebut this evidence by establishing a pattern of adherence to safety rules.
Even if a plaintiff is permitted to use the Reptile Theory throughout trial, defense attorneys can explain this tactic to the jury in opening or closing arguments and appeal to another part of a juror’s mind—the part that does not want to be manipulated into a decision.
The Beginning of the Reptile Theory’s Impact—or the End?
Over the past decade, few trial techniques have made the kinds of waves among trial attorneys that the Reptile Theory has. But the theory may end up being a victim of its own success.
As more plaintiffs’ attorneys adopt trial strategies and tactics that seek to exploit jurors’ Reptilian brains, and the defense bar becomes more aware of these strategies and tactics, expect judges to pay closer attention to whether the strategy is being employed in their courtrooms—and if they should put a stop to it.
