Trial Strategies To Combat The Reptile Theory

Jun 2, 2021 | Litigation Management

In 2009, jury consultant David Ball and plaintiff’s attorney Don C. Keenan published a book, Reptile: The 2009 Manual of the Plaintiff’s Revolution (“Reptile Manual”). The concept of the “Reptile Theory” is based upon the reptilian or primal portion of the human brain, namely basic survival instinct. This basic survival instinct is commonly referred to as “fight or flight”. It is common knowledge that fear can be a great motivator. Once that fear is triggered, the jurors’ “reptile brains” will take over their higher-order thinking and will focus on survival instincts ultimately reaching a result that best protects their safety as well as the safety of others. Pursuant to this theory, plaintiffs’ counsel attempt to couch the defendant’s conduct in terms of the perceived threat to the community’s safety. Thus, plaintiffs will use phrases in their questions and/or arguments such as “safety must be paramount”, “a company must always put safety above profits”, and “a company must make the safest possible choice in all circumstances”. The “Reptile Theory” provides that regardless of the legal standard of making a reasonable choice among acceptable alternatives, the professional must adopt the “safest available choice”:

The Reptile is not fooled by defense standard-of-care claims. Jurors are, but not Reptiles. When there are two or more ways to achieve exactly the same result, the Reptile allows – demands! – only one level of care: the safest. And the Reptile is legally right. The second-safest available choice, no matter how many “experts” say it’s okay, always violates the legal standard of care. Reptile Manual, supra, p. 62, emphasis in original.

The ”Reptile Theory” has been a game changer for the plaintiffs’ bar in personal injury actions in being able to scare the jury into larger and larger verdicts. Thus, defendants must be prepared to fight back on this issue prior to the start of trial. It is important that the issue is raised with the court before trial in order to lay the ground work in preventing plaintiffs’ counsel from ringing a bell that cannot be reversed. Defense counsel must focus on the following key arguments:

(1) The “Reptile Theory” violates the bar against appeals to self-interests of jurors pursuant to the Golden Rule argument, and

(2) It is not a correct statement of the law.

The “Reptile Theory” is an improper attempt to ask the juror to become an advocate for the plaintiff as well as to become the conscience of the community, which exceeds the role of jurors.  One typically only needs to look at the oath that those jurors who are empaneled are required to take – “decide the case using only the evidence from the trial” and “to follow the judge’s instructions about the law.” Nothing within the oath compels the juror to become the conscience of the community. The jurors role is limited to deciding the case from the evidence presented at trial based upon the judge’s instructions of the law. This segues into the second point as it is the judge’s instruction on the law that provides the legal standard. This legal standard does not comport with the standard advocated under the “Reptile Theory”.

It is important to recognize the phrases and tactics used under the “Reptile Theory” and combat them before they be allowed to reach the ears of the jurors. Thus, one must be prepared throughout the pre-trial litigation phases to deal with these tactics. Defense counsel should raise the issue with the court early to prevent its use. Jurors are not reptiles, thus one must make counter this with  with rational appeals to human intelligence and thought.

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