United States: Defending Against The Reptile

In 2009, Don Keenan and David Ball authored a book entitled Reptile: The 2009 Manual of the Plaintiffs Revolution, which arguably glamor­ized jury nullification and created a "new" trial strategy for plaintiffs' lawyers across the country known as the "Reptile Theory." It is based on a plaintiff's attorney generalizing the defendant's conduct so that the jury members feel personally threatened by the alleged dangerous actions. The theory is that the "reptilian," or fundamen­tal, part of jury members' brains responds to the fear of danger and they will find the defendant liable in an attempt to eliminate danger from the community and to protect themselves. The strategy has been especially conducive to cases involving trucking accidents.1

THE REPTILE THEORY IN PRACTICE

The Reptile strategy is now a "ubiquitous threat to defendants across the nation,"2 and plaintiffs' firms are self-proclaimed "strong believers" in it.3 Currently, the Reptile Theory's official website claims that the strategy has resulted in more than $6.1 billion in verdicts and settlements across the country.4 In 2014 alone, there have been almost 50 notable cases where the Reptile strategy was implemented. Of those cases, one Florida attorney received a $2.6 million verdict for his client who was run over by a beach patrol truck while sunbathing; a New Mexico attorney settled a deadly car accident involving a semi-truck for $2.5 million; and a South Carolina attorney received a record $50 million verdict for a motor vehicle death case.

It is crucial that defense attorneys recognize and respond to their opponent's use of the Reptile approach early in the litigation process to disarm the strategy and execute their counter-attack.

Plaintiffs' attorneys representing clients injured in motor vehicle accidents involving trucking companies have employed a strategy, from discovery to closing argument, of attacking the company as opposed to focusing on the accident. If the plaintiff could find one relevant and admissible thing that the company did improperly, then the plaintiff could try the "out of control" company and instill fear in the jurors. Plaintiffs' attorneys also attempt to leverage the jurors' fear of the sheer size of trucks as a means to scare their way to victory. The two avenues taken together have helped plaintiffs' counsel motivate jurors to issue enormous awards to plaintiffs in trucking accident cases.5

The science behind the Reptile Theory, namely that the "reptilian complex" in the brain focuses on personal safety and controls the rest of the brain, has been largely refuted.6 Nonetheless, the Reptile trial strategy (often coupled with strategies outlined in Rules of the Road by Rick Friedman and Patrick Malone) has been an effective method of impassioning jurors to give pro-plaintiff verdicts and should therefore be recognized and addressed by defense counsel.

Attorneys using the Reptile approach generally develop and substantiate one primary theme through the use of a broad "safety rule" that the defendant allegedly violated and thereby caused the plaintiff's injury.

Each safety rule generally adheres to six characteristics:

  • The rule must prevent danger
  • The rule must protect people in a wide variety of situations, not just the plaintiff
  • The rule must be in clear English
  • The rule must explicitly state what a person must or must not do
  • The rule must be practical and easy for someone in the defendant's position to have followed
  • The rule must be one that the defendant will either agree with or be deemed stupid, careless or dishonest.7

An example of a safety rule: "A truck driver is not allowed to needlessly endanger the public."8 Such safety rules are more rigid and pro-plaintiff than the "reasonable person" standard that generally governs these cases. If plaintiffs' attorneys are allowed to impose their safety rule during trial in lieu of the reasonable person standard, it is more likely that the plaintiff will prevail.

RECOGNIZING THE REPTILE STRATEGY THROUGHOUT THE PROGRESSION OF A CASE

In practice, the implementation of the Reptile Theory is simple and straightforward. Counsel for the plaintiff will expose a violation of a safety rule that the defendant will ultimately concede it was supposed to follow and, in turn, the jury will view this violation as a societal safety concern. The application of the Reptile approach does not begin at trial, but rather is usually introduced early and developed throughout the entire course of litigation.

Discovery

At the outset of litigation, plaintiffs' attorneys set out to develop the Reptile Theory principles. Defense attorneys may recognize the Reptile approach at this stage because discovery requests are tailored to acquire as much information as possible pertaining to a corporate defendant's safety polices, protocols and records. This is noticeable in the commercial transportation world as plaintiffs' attorneys are requesting documents that are arguably irrelevant and/or have nothing to do with how an accident or incident occurred.

Common requests might include:

  • Company handbooks
  • Safety policies, procedures and protocols
  • Document retention policies
  • Accident investigation policies
  • SafeStat and CSA records
  • DOT audit results
  • Unrelated prior accidents.

The purpose of acquiring this information is to establish broad safety rules the commercial transportation company was supposed to follow. After the initial information is secured in written discovery, the plaintiff's counsel will attempt to obtain an admission that the rule was violated from the driver or corporate defendant(s) during the written and oral discovery stages. If counsel for the plaintiff can establish that a safety rule existed and that the commercial transportation company violated the rule, then the attorney for the plaintiff has obtained the necessary facts to use in arguments that are expected to motivate jurors to protect the community.


Voir Dire

Even before a jury has been selected and the opening statements begin, plaintiffs' attorneys using the Reptile Theory will aggressively target jurors they believe will litigate from the jury box and be willing to protect society from an unsafe defendant. Instead of the typical questions asked of jurors during voir dire, plaintiffs' attorneys will narrow their questions to further their reptilian goals.

Examples of reptilian voir dire questions:

  • Do you believe that trucking companies and their drivers have a responsibility to protect other drivers on the road?
  • Do you believe that a company with its own safety standards and policies has an obligation to the general public to follow those standards and policies?
  • Do you believe that a trucking company with a history of accidents and safety violations is a danger to the general public?
  • Are you a person who is willing to decide whether a trucking company and its driver acted in a safe and proper manner?

These sample questions illustrate the two goals plaintiffs' attorneys seek to achieve during voir dire: (1) identify individuals who will protect the public from a dangerous defendant and (2) prime the eventual jury for the reptilian theme the plaintiff will present throughout the trial.

Opening Statements, Witness Examinations and Closing Arguments

Once a jury has been selected, plaintiffs' attorneys prime the jury during opening statements and exploit their reptilian responses throughout witness examinations and closing arguments. It is during these phases of the trial that plaintiffs establish the safety rule, expose the violation and create a danger that the jury members feel compelled to protect against. Plaintiffs' attorneys may very well spend little time discussing the actual facts of an accident, and instead focus on appealing to the jury's sense of minimizing danger as a whole. For instance, during closing arguments counsel for plaintiffs focus on demonstrating how the defendants' behavior can affect the community, state and country, and follow up with statements that implore the jury to protect society.

DEFEAT THE REPTILE

Once a defense attorney recognizes that the plaintiff is using the Reptile Theory, there are multiple ways the defense can counter the technique. Defense attorneys should implement an aggressive approach at first sight of the strategy, which can be as early as the discovery phase of litigation.

Readily Object to Discovery Requests

While the discovery rules throughout the country and in the federal court systems are becoming more relaxed in favor of disclosure, counsel for defendants should set a tone early that "pulling at the heart strings" of the jury is unacceptable and will be challenged at trial. For instance, if there appears to be no reason for producing SafeStat or CSA information, do not turn it over. If certain portions of a handbook or safety manual are irrelevant to the specific issues contained in your case, seek to redact those portions.

Prepare Your Witnesses for a Reptilian-Style Deposition

Prepare your witnesses for the plaintiff's attorney's questions at depositions and ultimately at trial.9 The best way for drivers and corporate representatives to respond to "reptilian" safety questions, which are typically vague and overly broad, is to be honest and say that the answer "depends on the circumstances." It is paramount that defense counsel prepare witnesses to avoid agreeing to hypotheticals.10

File a Motion in Limine Barring Reptilian-Type Arguments

The first line of defense at the trial stage in minimizing the Reptile Theory is to file motions in limine barring any mention, comment, reference, testimony or argument regarding the Golden Rule, personal safety, community safety, community fear and community conscience. The argument should be made that the jurors should not be asked to step into the shoes of the plaintiff, decide the case as if they were faced with similar circumstances or send a message to the defendant or society. It is arguable that these types of approaches are improper, the issues are irrelevant and the probative value would be outweighed by prejudice to the defendant.

Prepare the Jury During Voir Dire

During voir dire, defense attorneys should take the opportunity to prime the jury for their trial themes. For example, if the plaintiff's counsel primes the jury with the following question: "Do you believe that the top priority for a trucking company should be safety?" then the defense counsel should take the opportunity to re-prime the jury with its own defense themes such as, "Do you believe that the top priority for a trucking company is to move products for the benefit of the community from one location to the next in the most efficient and safe manner?" Doing so will enable the defense to rebut any attempt by the plaintiff to establish their reptilian themes.

Refocus the Jury at Trial

Because reptilian safety rules are clear-cut and widely applicable, the plaintiff using the Reptile approach will commit to a simplistic view of the law and facts of the case to make the case conform to the espoused rule. The plaintiff's argument is vulnerable because truth is not on their side. Defense attorneys should shed light on the plaintiff's simplifications, and appeal to the view that simple rules rarely exist and complex rules with carve-outs and exceptions are the norm. Defense counsel can take this one step further by asserting that the plaintiff is attempting to cloud the judgment of jurors by tapping into their natural desire to simplify a complex situation. Counsel may also expose the Reptile Theory to the jury and demonstrate what the plaintiff is intending to do. These messages should be raised in the defense opening statement or voir dire to prevent the plaintiff's view from poisoning the jurors' minds.

The defense should also present opening statements and closing arguments that refocus the story at trial. The defense should aggressively explain alternative liability, the standards of care that apply in the case, and how the standard of care applies to the facts.11 Defense attorneys should remind jurors that their purpose is to consider all of the evidence and reach a fair, honest and just verdict based on the jury instructions they are provided. This can be an effective way to refocus the jury and reframe the defense theories so that societal concerns do not enter into the jury's decision and the case is decided on its specific facts.

CONCLUSION

The Reptile Theory is a technique that plaintiffs' attorneys are undoubtedly implementing with great success. Like any trial strategy, however, there are ways to defuse the intended results of the strategy plaintiffs' attorneys seek to employ. It is imperative from the outset of any case where the plaintiff is using the Reptile approach that the defense proactively attack the strategy so that the jury can decide the specific issues at hand rather than the simplistic rules and broader societal questions plaintiffs' attorneys seek to exploit.

Footnotes

1 Richard P. Traulsen, A Trucking Case: So Much More Than the Average Auto Case¸ 2012 Winter AAJ-Papers 40.

2 Bill Kanasky, Invalid, Yet Potentially Effective, Debunking and Redefin­ing the Plaintiff Reptile Theory, 56 No. 4 DRI for Def. 14 (2014).

3 See The Herrera Law Firm of San Antonio, TX, Case Themes and Clos­ing Argument in Trucking Litigation, 2013 Annual AAJ-Papers 213.

4 http://www.reptilekeenanball.com/  (last visited November 5, 2014).

5 http://www.reptilekeenanball.com/reptile-results/#tab-id-1  (last visited November 5, 2014).

6 See Bill Kanasky, loc. cit.; Ken Broda-Bahm, Taming the Reptile, The Jury Expert, November 2013.

7 Keenan and David Ball, Reptile: The 2009 Manual of the Plaintiff's Revolution, 52-53.

8 http://atcounseltable.wordpress.com/2013/05/20/beware-the-reptile-lawyer/  (last visited November 4, 2014).

9 See Bill Kanasky, loc. cit.

10 See Bill Kanasky, loc. cit.

11 See Bill Kanasky, loc. cit. at 10.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions