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...