Reptile Theory: A Tail of Two Reptiles. Julia B. Semenak

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1 Reptile Theory: A Tail of Two Reptiles Julia B. Semenak If phrases like safety rules and community safety sound familiar, you have likely encountered a plaintiff s lawyer using the strategies set forth in Reptile: The 2009 Manual of the Plaintiff s Revolution. Successfully defeating the reptile lawyer s tactics hinges on recognizing the strategies early in this litigation, and implementing your own strategies to beat the reptile at its own game. This presentation will discuss what to expect from a reptile, and recommend methods to effectively encounter these tactics based on two tails of reptile trials. I. What is a Reptile? Yale Medical School and National Institute of Mental Health physician and neuroscientist Paul D. MacLean divided the brain into three parts. He referred to the part of the brain that controls basic life functions, including survival instincts, as the Reptilian brain because he believed it is identical in function to the brain of reptiles. According to Dr. MacLean, when a person s survival is threatened, the brain shifts into Reptilian survival mode. Once in survival mode, the Reptile has two tools: (1) Dopamine to reward decisions that enhance survival, and (2) anxiety and terror to deter decisions that threaten survival. II. The Plaintiff s Revolution Various industries, including advertising, have touted targeting the reptilian brain to manipulate decision making. Reptilian theory made its way into the courtroom with the publication of Reptile: The 2009 Manual of the Plaintiff s Revolution, authored by attorney Don Keenan of Atlanta and a jury consultant, David Ball. According to Keenan and Ball, the revolution was necessary to combat the effects of tort reform. Tort reform has poisoned the jury pool by convincing potential jurors that large verdicts undermine and threaten the quality and availability of healthcare, for example; that large verdicts can ruin the local economy by threatening and endangering jobs; that large verdicts make everything more expensive; or that large verdicts suppress the development of new products. In other words, tort reform has convinced potential jurors that large verdicts endanger the community as a whole. III. Harnessing the Reptile The foundation of the Reptile Theory is convincing the jury that a large verdict in the plaintiff s favor will keep the jury, and the rest of the community, safer than a defense verdict. So how does the reptile lawyer accomplish this? a. Community Safety To appeal to the jury s survival instinct, the Reptile lawyer must convince the jury that the lawsuit is not about an individual plaintiff; instead, it is about community safety. To determine whether a

2 defendant s conduct presents a community danger, the Reptile lawyer presents and answers the following questions for the jury: 1. How likely was it that the act or omission would hurt someone? 2. How much harm could it have caused? 3. How much harm could it cause in other kinds of situations? b. Tentacles of Danger The Reptile lawyer wants to convince the jury that the kind of thing the defendant did presents a danger to everyone in the community, not just the plaintiff. The Reptile lawyer does this by analogizing what the defendant did to other situations that the jury can identify with. This is what makes the lawsuit personal to the jury showing the case is relevant to their lives. c. Possible to Prevent Danger Once the Reptile lawyer establishes that the defendant s conduct creates a community danger, the Reptile lawyer has to show the jury that the danger can be prevented. According to the Reptile lawyer, a fair verdict will prevent or lessen the danger. The Reptile theory gives the jurors personal reason to want to see causation and dollar amount come out justly, because a defense verdict will further imperil them. Thus, by giving a large verdict to a stranger, the juror believes they are ultimately helping themselves by keeping the community safer. Full compensation will tell companies that if they come her and needlessly endanger our community, they will be made to pay in full measure. This has the added benefit of making jurors feel important by helping make the community safer. You have in your hands the power to tell people [companies, doctors, drivers, whatever] that they can t violate public- safety rules around here without people like you saying. Enough! Pay full compensation. That s what makes your work important. d. Safety + Danger = Reptile The Reptile lawyer makes their case about community safety by creating a set of safety rules and systematically showing that the defendants violated those rules. Violation of the rules creates a danger, not just to the plaintiff, but to the entire community. The safety rule cannot be too specific, or it will not implicate community safety. For example, the following rule is too specific: A coal- mining company is not allowed to turn off the lights while workers are in the mine. Instead, the Reptile lawyer will use a more general rule, such as A company must not needlessly endanger its employees. A good Reptile safety rule must do all of the following: 1. It must prevent danger. 2. It must protect people in a wide variety of situations, not just someone who was in the plaintiff s position. 3. It must be in clear English, not legalese. 4. It must explicitly state what a person must or must not do.

3 5. The rule must be practical and easy for someone in the defendant s position to have followed. 6. The rule must be one that the defendant has to agree with, or reveal himself as stupid, careless, or dishonest for disagreeing with. The purpose of these rules is to establish that what happened was not an accident. Accidents happen and cannot be prevented. Instead, the Reptile lawyer wants to show that the plaintiff was injured because the defendant chose to violate a safety rule. The Reptile lawyer deploys the rules by doing the following: 1. In discovery and in trial get the other side to agree with each rule. 2. Show how the rule decides a verdict issue. 3. Show that violating the rule is related to violations that endanger everyone, not just someone in the plaintiff s situation. 4. Show that the more dangerous a violation can be, the more careful the defendant had to be to follow the rule. 5. Show that the defendant is further endangering the community, and showing others that they can get away with the same conduct, by trying to escape responsibility for choosing the violate a public safety rule. The Reptile starts with an umbrella rule, which is general enough that all jurors can identify with it. For example, a driver [or physician, company, policeman, lawyer, accounting firm, etc.] is not allowed to needlessly endanger the public. Once the Reptile lawyer has established the umbrella rule, s/he develops case specific rules. The Reptile lawyer then spreads the tentacles of danger by analogizing what the defendant did to other situations. Analogizing to familiar situations gets past the narrow circumstance of this case, clarifies the rule, and shows how dangerous the violation is to everyone in the community, not just the plaintiff. IV. But does it work? Keenan and Ball s website credit the Reptile Theory for over $6,000,000,000 in jury verdicts and settlements across the country. Their website also includes a list of reptile allstars, who have reported large verdicts or settlements. V. Making the Reptile Turn Tail The following strategies are geared towards defeating the Reptile lawyer s tactics before, during and after trial. a. Pre- Trial i. Witness Preparation and Depositions

4 The Reptile lawyer will use discovery to set the Reptilian trial themes. During depositions, the Reptile lawyer s goal is to accomplish the following: 1. Establish the general safety rules. 2. Relate general safety rules to specific safety rules. 3. Show the Reptile how this can happen to her, i.e. spread the tentacles of danger by analogy. 4. Emphasize safety first, last, always. 5. Establish that the defendant did not care about safety to start with. 6. Establish that the defendant did not care about the person he or she hurt and does not care now. 7. Establish that what happened taught the defendant nothing. 8. Establish that the defendant did not have the knowledge necessary to do the job safely. 9. Expose the defendant as a liar. 10. Show that the defendant did not do his or her job. 11. Establish that the plaintiff did his or her job. Prepare your witnesses for these issues. Defense witnesses should not accept the safety rules blindly. In preparing your witnesses, reinforce that safety is not always the most important thing, and safety can be taken to extremes. Prepare defense witnesses to explain what they did and why their actions were reasonable. ii. Expert Discovery The Reptile lawyer will use its experts to explain the process experts must use to arrive at a reliable conclusion, and what can go wrong when someone omits a step of this process or does not do it thoroughly. The Reptile expert will then confirm that they followed this process. During trial, the Reptile expert will try to show that the defense experts skipped crucial steps, making the defense opinions unreliable. Provide the Reptile expert s deposition to your expert so that they are prepared to refute these attacks and to explain why the process they used is reliable. The other task of the Reptile expert is to show how the rule violations in this case can cause harm in other contexts. Attack the analogies, and explore how the analogies are dissimilar from your case. When deposing your expert, the Reptile lawyer will try to get your expert to agree with every safety rule, and have your expert explain why violating that rule is dangerous. The Reptile lawyer will also want your expert to endorse the analogies provided by the Reptile s experts. Prepare your expert to challenge the safety rules and analogies. iii. Motions in Limine The purpose of Motions in Limine is to get evidence in or keep evidence out. But also consider Motions in Limine as an opportunity to educate your judge. Explain reptile theory. Consider attaching

5 copies of excerpts from in Reptile: The 2009 Manual of the Plaintiff s Revolution. Ask your judge to exclude argument unrelated to your case; for example, arguments about community safety and the safety rules. b. Trial i. Voire Dire Expect the Reptile lawyer to begin his or her community safety campaign during jury selection. This takes time. Ask your judge for time limits. If you cannot get time limits, take just as much time to learn as much about your jury as possible. Expect the Reptile lawyer to ask a lot of open ended questions that asks the jury to reflect upon their own situation and experiences, for example, Some folks feel that they and their families are safer in cars now than ten years ago. Other folks feel travel by car has become more dangerous. Which folks are you a little closer to? The defense voir dire should be as case specific as possible. Do not be afraid to attack the Reptile theory directly. As the jury if they will follow the court s instructions on the law, or the rules created by the plaintiffs attorney. ii. Opening Statements Expect the opening statement to follow a formula. The Reptile lawyer will start by reciting the safety rules. The Reptile lawyer will then tell the story of what happened in this case and why they are suing the defendant. The Reptile lawyer will then go through the safety rules again and explain how the defendant violated each safety rule. Object to the use of the rules. In your opening, explain to the jury that the rules were made up by the Reptile lawyer. Then refocus the jury on the facts of the case. iii. Witness Testimony The Reptile lawyer will take each witness through the safety rules. If your witness agrees with the safety rules, they are helping the Reptile lawyer. If the witness disagrees, the Reptile lawyer will try to make the witness seem stupid or dishonest. For example, a Reptile lawyer may ask your witness to agree that when there are two ways of doing something, you must always choose the safest way. Most witnesses instinctively agree with a question like this. Try to keep these safety rules out by attacking the safety rules in Motions in Limine. If the Reptile lawyer is allowed to use the safety rules during trial, object to questions regarding the safety rules. Prepare your witnesses to respond to refute these rules and explain that the rules are inappropriate. For example, why it is not always appropriate to do the safest thing. Prepare them with examples of when the safest choice is not the best choice. iv. Closing The Reptile lawyer s primary focus during closing will be to show how the dangers represented by this case affect the entire community. The Reptile lawyer will explain that it is the job of the jury to protect the community. For example, expect the Reptile lawyer to argue that the jury system exists to protect the community. The government built the courthouse for that purpose. The government keeps courthouse and courtroom open to the public because everything that goes on in them affects the

6 public. That s what all those galley chairs are for: the community. Everyone in the community has the right to come watch because what happens here determines their well- being and safety. The Reptile lawyer will instruct the jury that they are the enforcer of safety in the community. It s up to you to decide how far someone can go in violating public safety rules in this community before the community s jurors stand up and Enough! Now you must meet your full responsibility. As in opening, be prepared to object. Explain where the Reptile lawyer has made arguments that are inconsistent with the jury instructions. Ask the jury not to make an emotional decision, but to instead decide the case based on the evidence, science, and facts. Make sure the jury understands it must make its decision based on the facts and the law, not the rules created by the plaintiffs attorney. c. Post Verdict Many of the Reptile lawyer s tactics skirt the line of proper argument, and can form the basis for a variety of motions after verdict. Ensure that you object at trial to preserve these issues for motions after verdict and appeal. Keep a list during trial to ensure that you remember to raise these issues after trial. Conclusion According to Keenan and Ball, the Reptile theory can be applied to any case, from a low speed motor vehicle accident with minimal damage, to a complex medical malpractice case. Keenan and Ball even include a chapter for using the Reptile theory in cases where the defense has stipulated to negligence. They also promote their strategy nationally, touting its success. If you have not yet encountered a plaintiff s lawyer using the Reptile theory, expect to encounter it. Successfully defending a Reptile case requires recognizing the Reptile strategy early in the litigation process, preparing your witnesses to respond to this strategy, educating your judge, and aggressively countering the tactics at the time of trial.

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