In today’s world of litigation, strategy and tactics have evolved into more than putting your evidence on at trial and making good arguments on behalf of your clients to achieve the desired outcomes. Occasionally, lawyers may retain jury consultants to help pick a jury that may be best suited to hear a particular case, but more recently plaintiff lawyers have begun to utilize a method of psychological manipulation that is known as the Reptile Theory for litigating and trying cases. Indeed, the Reptile Theory is based on the psychological theory that jury members respond to a danger stimulus by wanting to correct dangerous behavior and in doing so protect the general public at large. Plaintiff attorneys argue that the only way a jury can protect the public from unreasonably dangerous activity is to award large sums of money to their clients in order to send a message that similar dangerous activity will not be tolerated in the future. It is theorized that this form of psychological manipulation affects the part of the brain that triggers a survival instinct when a person is faced with danger. The plaintiff attorney’s job is to connect the dangerous activity with the possible harm of danger to the community at large and, therefore, convince the jury to award damages based on an emotional response rather than a reasonable application of the law.
What makes the Reptile Theory potentially dangerous is that it attempts to convince a jury to focus on what could happen instead of what actually happened. The tactics of the theory work to establish danger in the community by focusing on the defendant’s violation of a safety rule, which in turn empowers the jury to improve community safety. Some plaintiff attorneys may go so far as to suggest the jury punish the defendant for its unreasonably dangerous conduct which puts us all in harm’s way. The developers of the Reptile Theory even promote the success of their work which can be seen in more detail at www.reptileverdicts.com.
Generally speaking, the plaintiff attorney starts to develop this theory in written discovery and depositions by posing hypothetical questions such as:
- Keeping a reasonable lookout while driving keeps people safe from accidents?
- Failing to keep a reasonable lookout while driving creates a risk of harm to others on the road?
- Creating a risk of harm by failing to keep a reasonable lookout can put the public in danger?
The most logical, and common sense, answer to these questions are “yes” – failing to keep a reasonable lookout does create the possibility of an accident. However, a good reptile lawyer drives the message home by repeated references to putting the public in danger. This, in turn, starts to activate the part of a jurors mind that will elicit an emotional reaction to the defendant allegedly endangering the public at large. The theory is that the jurors will feel vulnerable and, in order to reduce the risk of danger they will send a message to the defendant that similar conduct will not be tolerated. This approach is also successful at convincing the defendants to make large settlement offers in order to avoid the risk of a catastrophic trial verdict.
The defense bar is now becoming savvy to this reptile approach and has begun to develop strategies to counteract it. The Reptile Theory plays on the emotional reaction of a jury, so conversely, the defense lawyer must point out that the case is about law and reason – not emotion. There are several ways the defense can counter the reptile approach.
First, the defense has to point out where the reptile plaintiff lawyer is substituting ambiguous community and social standards for the law and the facts of the case. This generally starts with answering discovery and preparing witnesses to testify in deposition. Defense attorneys need to recognize the broad hypothetical questions posed by the reptile lawyer and state the proper objections. To the extent a fact witness may be required to answer these hypotheticals they need to be prepared to also recognize the reptile questions and answer by explaining that a safety rule hypothetical may not in all cases apply, and then relate the questions to the facts and circumstances of the individual case. As always, the witness must be prepared to answer honestly as it pertains to the individual case, but not blindly agree with every hypothetical question.
Second, defense attorneys must be prepared to educate the judge about what is going on during pre-trial motions. The Reptile Theory of litigation is nothing more than a disguised method of attempting to get the jury to make a decision based on sympathy, anger, or passion which in and of itself is improper. It is also another method for utilizing the improper “Golden Rule Argument” at trial. Prior to trial, the defense attorney needs to point in a motion in limine that Plaintiff may try to utilize the Reptile Theory in trial. I suggest using questions from deposition transcripts and/or the plaintiff’s own interrogatories to support your arguments. It is likely the reptile lawyer’s cross exam questions will be at trial will be the exact same questions he asked in depositions. If so, the judge should quickly recognize the tactic and be educated on how to rule.
Third, starting in voir dire, defense attorneys have to begin developing the theme of reasonableness, and that the case is about the facts of the case, and nothing more. In one trial, I turned the plaintiff’s reptile argument around on the plaintiff by telling the jury that opposing counsel may attempt to play to your emotions and even try to make you mad at the defendant for causing the accident. After the plaintiff’s attorney utilized her reptile questions in trial, I told the jury in closing that the case was an accident and that was it, and that the plaintiff attorney’s attempt to denigrate my client because he caused an accident was nothing more than her attempt to stir them up and make them mad in hopes they would punish my client for the accident. This was not what the law contemplated and their job was to follow the law.
Finally, if you can’t beat them join them. In jurisdictions with contributory or comparative negligence, it may be helpful to turn the Reptile Theory around on the plaintiff. For example, in North Carolina, where pure contributory negligence applies, all drivers have a duty to keep a reasonable lookout in order to avoid an accident. If there is evidence of a plaintiff’s contributory negligence, the same questions can be asked to him as well. If the same safety standard applies to both the plaintiff and defendant, then the plaintiff cannot be entitled to a favorable result if he is violating the same standards he accuses the defendant of violating.
In conclusion, the Reptile Theory is a creative spin of the old plaintiff technique on appealing to a jury’s emotion rather than reason. It hopes to make a jury angry with the defendant in order to send a strong message through its verdict. The defense attorney must recognize these tactics, and be prepared to deal with them from the outset of the case.
Please contact Andy Stein with questions about this article or if you would like to discuss further.
The information published in Hedrick Gardner Alerts is general in nature and not intended to take the place of legal advice on any particular matter. © 2017 Hedrick Gardner Kincheloe & Garofalo LLP