9:00-10:15 a.m.
The Reptile
strategy has by analyzed, developed, crafted and perfected by the plaintiffs’
bar as an effective means of breaching the prohibition of breaking “The Golden
Rule”. The plaintiff’s bar has always
wanted to approach the jury and say, “Put yourself in my client’s shoes”. They want the jury to decide a case based on
emotion and passion as a means of maximizing the damages awarded by the
jury.
But, that pesky
“Golden Rule” and Tennessee Pattern Jury Instruction 1.01 -Before Voir Dire,
puts a full body block on that effort by mandating that the plaintiff’s lawyer
can’t do it, subject to objection and admonishment, if not a mistrial and
confronting jurors at the beginning of trial that “Jurors must be as free as
humanly possible from bias, prejudice, or sympathy and must not be influenced
by preconceived ideas about the facts or the law.”
So, what can the
plaintiff’s lawyer do to avoid the limitations of The Golden Rule and T.P.I.
1.01? Ladies and Gentlemen, I give
you . . . . The Reptile Theory.
The Reptile Theory
is based on the foundation that you can prevail at trial by speaking to, and
scaring, the primitive part of jurors’ brains.
It is that part of the brain humans share with reptiles. O.K. . . . stop laughing! This is serious and there is clear evidence
that when properly prepared and executed, it works!
The fundamental
concept is that the reptile brain is conditioned to favor safety and
survival. I was attending a Trial Tactics seminar a couple of years ago
and was in conservation with some other attorneys. One of the attorneys shared the
following:
“Plaintiffs' lawyers have changed. They're all talking about
"safety" now, and that word is finding its way into every deposition:
"What is the safe procedure?" or "What would've kept Mrs.
Johnson safe?" They're all talking about safety and security instead of
standard of care.”
By framing
arguments in terms of our most biologically basic need for security, the theory
goes, plaintiffs are able to successfully tap into jurors' primitive or
"reptile" mind. And when the
Reptile decides, our conscious mind and reason-giving ability follows. Based on that unifying concept, the perspective
has taken the plaintiff's bar by storm, spinning off more
books as well as frequent trainings. "Cases
are not won by logic," they write, "you need to get the Reptile to
tell the logical part of the juror’s brain to act on your behalf. To get the
Reptile to do that, you have to offer safety."
Therefore, if
plaintiff’s’ counsel can reach the reptilian portion of the jurors’ brains, they
can influence their decisions and the jurors will instinctively choose to
protect themselves, their families, their community, their town, their County
and their State from danger through their verdict. The Verdict is their
way of confronting the threat to their safety and survival created by the acts
of the defendant regardless if the defendant is an individual or a business
entity.
Get your arms and
head around this . . . the Verdict has nothing to do with the plaintiff in the
case. It has everything to do with
convincing the jury to collectively place themselves in the shoes of the
plaintiff and confront the danger and threat that the defendant’s conduct and
actions create to the jury. The verdict
is a by-product of the success of doing so.
Thus, the
focus of the plaintiff’s case is on the conduct of the defendant, not the
injuries of the plaintiff. Now, I want
you to think back at your trials as a plaintiff’s lawyer, defense lawyer or
both and examine how the plaintiff’s side of the case was tried. It was all about that plaintiff. Not about how the defendant’s conduct or
actions created a threat to the safety of others, their families, their
community, their town and their state.
The use of this
trial tactic results in jurors not necessarily being interested in plaintiff’s
injury, even when severe, according to the theory. Rather, the only truly effective way to
engage jurors is to demonstrate how the defendant’s conduct endangers the
jurors and their families. Wait. Before you start to worry about
malpractice, let’s look at how its done and how to defend against it.
The gurus of
Reptilian trial strategy are David Ball and Don Keenan, whose book, “Reptile: The 2009 Manual of the Plaintiff’s Revolution” purportedly
gives a significant edge over the defense in jury trials. Several
prominent lawyers on the plaintiff’s side have cited this book as the new bible
of advocacy. Plaintiff lawyer Pat Trudell advocating the
theory in an article titled "Beyond the
Reptilian Brain" and has gone as far and to proclaim, "The
Reptile Always Wins".
But
do they?
The defense bar
mounted a counter-attack. Minton Mayer of Wiseman Ashworth Law Group in
Tennessee (DRI, The Voice, 9/25/13), provides some effective tips for defusing
the subliminal codes plaintiffs seek to embed in the jury’s psyche.
In his article
titled, “Make Boots
Out of That Lizard – Defense Strategies to Beat the Reptile,” Mayer
provides good tips for defusing the subliminal codes plaintiffs seek to embed
in the jury’s psyche.
In the April 2013
edition of For the Defense, David C. Marshall, a lawyer with Turner Padget
Graham & Laney PA in Columbia, South Carolina, provides an in-depth
discussion of new trial strategy in "Lizards and
Snakes in the Courtroom." According to
Marshall, using the "reptile" successfully "requires
creating safety rules and demonstrating that a defendant violated the rules,
subjecting a plaintiff and the surrounding community to needless danger….
Thus, in closing, the lawyer using this strategy must show a jury how the
dangers presented by a defendant extend beyond the facts of a case and affect
the surrounding community so the entire case boils down to community safety
versus danger." Marshall provides useful litigation tips for
keeping the reptile at bay during trial.
Similarly, Kathy
Cochran, a defense lawyer with Wilson Smith Cochran Dickerson in Seattle,
WA, cautioned in the DRI Blog Today in 2010, "As
defense lawyers, we need to recognize this [Reptile strategy] for what it
is. It is an attempt to resurrect Golden Rule arguments, which are usually
impermissible. Jurors are not to be asked to put themselves in the place of a
party and make a judgment based on that virtual reality. Ball and Keene provide
advice to their readers on how to circumvent this evidentiary rule.
"
Cochran cautions,
"we will now see plaintiffs emphasizing ‘safety rules’ and trying to gain
admissions from defense experts that such rules are important for the safety of
the community. "Never separate a rule from the danger it was designed to
prevent. … The greater the danger, the more the Reptile [juror]
cares."
In an article
titled, “Atticus Finch
Would Not Approve: Why a Courtroom Full of Reptiles is a Bad Idea,”
(American Society of Trial Consultants, May 2010), authors Stephanie West
Allen, Jeffrey M. Schwartz and Diane Wyzga provide a scathing critique of
reptile theory and suggest that an effective alternative is providing jurors
with a persuasive narrative at trial. According to the authors, reptile strategy
“disrespects” jurors and could result in juror backlash. Fear-based tactics
direct attention in an uncertain and unpredictable manner; in contrast,
thoughtful narrative directs attention toward action grounded in the reflective
mind. According to the authors, “narrative shines the mental flashlight of
attention which can refigure the brain and change behavior.”
How does The Reptile Theory work? The goal,
through witness examination and closing argument, is to capitalize on jurors’
innate need to minimize survival dangers.
In other words, the evidence and argument must convince a juror, not
only that the defendant acted negligently, but also that, such conduct
threatens the juror’s community (beyond the single plaintiff), which could
include the juror and his/her family.
Next, the Opening Statement and Closing Argument
must be crafted so that the jurors are made to feel empowered, by virtue of
their verdict, to prevent this conduct, thereby protecting the community. The goal in getting jurors to think
(conceivably with the reptilian part of their brains) that they should return a
winning verdict even when logic or emotion might cause jurors to find against
the plaintiff on an issue; and (2) to maximize the size of the verdict, by
encouraging jurors to think beyond the risk or the harm suffered by the
individual plaintiff, to their own safety and the safety of the broader
community.
Lawyers can invoke or establish broad “safety
rules” which the defendant violated, and which would have avoided the harm if
they had been followed. Each “Safety
Rule” has to possess the following in order to trigger jurors’ sense of self-
preservation and, thus, their reptilian brains:
1.
The rule must prevent danger;
2.
The rule must protect people in a wide variety of
situations, not just the plaintiff;
3.
The rule must be in clear English;
4.
The rule must explicitly state what a person must or must
not do;
5.
The rule must be practical and easy for someone in the
defendant’s position to have followed; and
6.
The rule must be one that the defendant will either agree
with or run the risk of looking stupid, careless or worse yet, dishonest.
Keenan and Ball begin with the broadest possible
“Umbrella Rule:”
“Do you agree that a [_______] is not
allowed to needlessly endanger the public?” (Fill in the blank: driver, doctor, car maker, construction scaffolding
supplier, etc.)
“Do you agree that when a [_______] does
[_______], they are needlessly endangering the public?”
The next step for the plaintiff’s lawyer is to
Draw Admissions, from the defendant, the defendant’s witnesses and/or its
experts, to gradually narrower, more case-specific, safety rules.
Let’s take a doctor. Under the
umbrella rule that “A doctor is not allowed to needlessly endanger the public,”
for example, the case-specific rule is, “[I]f a cardiologist has a choice
between two treatment alternatives, he/she is negligent unless he/she elects
the absolute safest choice.” After all, if a doctor picks any alternative that
is not the absolute safest, he/she is needlessly endangering the public, right?
The rule must prevent danger and 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 and the rule must be one
that the defendant will either agree with or run the risk of looking stupid,
careless or worse yet, dishonest.
Let’s take a
context of a motor vehicle accident involving a driver of a passenger car
(plaintiff) and a tractor-trailer (defendant).
The plaintiff’s lawyer should attempt to employ the following techniques
during the defendant driver’s deposition:
1.
Establish
general safety rules – i.e. truck drivers should be well rested prior to
commencing their driving duties or non-driving duties, such as carrying out
pre-trip inspections with as much precision and care for safety as driving
2.
Get
every defense witness to agree to the safety rules
3.
Establish
that violating these safety rules can hurt anyone (by inference, members of the
jury and their family)
4.
Get
the witness to agree that the plaintiff was acting like everyone else – doing
normal and routine activities of daily living
5.
Emphasize
safety first, last, and always
6.
Repeat
principles, such as “No prudent person needlessly endangers anyone” and
“Violating a safety rule is never prudent”
7.
Establish
the defendant did not care about safety from the start
8.
Establish
the defendant did not care about the person he hurt and does not care now
9.
Establish
the subject occurrence taught the defendant nothing
10.
Establish
the defendant did not have the knowledge to do the job safely; unlike a
mistake, a lack of knowledge is a preventable danger
11.
Build
on trying to make the defendant the least safety-knowledgeable person in the
courtroom
12.
Expose
the defendant as a liar – inconsistencies, gaps in documentation, evidence
preservation, prior bad acts – anything that hurts believability and
likeability
13.
Show
that the defendant did not do his job
(See BALL & KEENAN, at
209-24).
For defendants
looking at the prospect of the other side increasing their effectiveness by
appealing to the survival instincts of the reptile brain, here is what I'd
suggest:
Step
One: Strip Away the Brain Baggage
A central support
for the Reptile approach is the "Triune
Brain" theory is the notion that there are three discrete parts
to the brain reflecting the stages of evolution:
But it is that
basic reptile level, the theory goes, that drives our behavior, and even when
we think we are acting based on the language and the logic of our neomammalian
brains (e.g., in deliberation), we are unknowingly responding to the commands
of the reptilian brain. Proponents of
the The Reptile Theory claim that the Reptile invented and built the rest of
the brain and now she runs it. The
message being conveyed by their belief is that since the Reptile is in control
of our thinking, our persuasion needs to tap into the only things that waken
and motivate the Reptile: safety, security, a freedom from threats. That is
what makes the approach unique and powerful at a level that goes beyond
reason-giving and is essentially precognitive.
Attorney Mark
Bennett wrote in a blog post entitled "Lizards Don't Laugh,"
that civil defendants can confront the attempt by plaintiff lawyers to use The
Reptile Theory by doing the following:
a)
make
a stronger appeal to the reptile brain, or
b)
disengage
the reptile brain, and engage the dog brain or the ape brain."
He goes on to
suggest that communicating The Golden Rule by either requesting that the Court
instruct the jurors and the plaintiff’s attorney or by explaining it to jury in
Voir Dire and Opening Statement gets the jury out of their reptile minds.
He also suggests
creating incongruity and relief, gets the jury out of their reptile minds. He suggests full frontal confrontation with
the “Use of the Tactic” by explaining it to the jury will show them that this
is a typical plaintiff’s lawyer trick and to fight against being taken
advantage of in order to put the plaintiff’s lawyer in a bad light as simply a
wolf in sheep’s clothing. “That lawyer
is using this tactic claiming to be a crusader against threats to safety and
the danger created by my client, but is really simply trying to elicit emotion
from you for money.”
Step Two: Recognize that
What is Left is Different, But Still Valuable
Los Angeles
plaintiffs' attorney Sonia Perez Chaisson put it succinctly in The Jury Expert, “We care not at
all about brain anatomy and solely about whether the Reptile works.” And
by all indications, it works.
But it most likely
works not because its users have found a way to communicate directly the fact
finders' primitive reptile brains, but simply because attorneys are recognizing
that motivation exists and
picking a very strong motivation angle to speak to. Instead of applying the
rational-legal model of jurors reasoning their way to a conclusion by applying
the law to the facts and deducing to a verdict, the Reptile practice forces
attorneys to speak to what would make jurors care about the verdict. The principle of
motivated reasoning is that once jurors, or any other decision makers, know
what decision they want to
reach, and then they'll have no problem coming up with reasons to support that
conclusion. The decision comes first and the reasons are filled in later.
So, what is the
defense angle and how can you motivate a jury with that angle. Speak to the motivator. Make it an individual
motivator, and make it an important motivator.
Step
Three: Find Your Own Motivation
A central part of
Ball and Keenan's argument is that the Reptile approach is a tool that helps
one side, not the other. “The Reptile prefers us," meaning plaintiffs,
"for two reasons: First, the Reptile is about community (and thus her own)
safety – which, in trial, is our exclusive domain. The defense almost never has
a way to help community safety. The defense mantra is virtually always, ‘Give
danger a pass.’ Second, the courtroom is a safety arena," they write,
"so when we pursue safety, we are doing what the courtroom was invented
and maintained for." Defendants might quibble that the more limited
purpose of the court is to resolve the claim before it, and not to broadly
enhance society's safety with each verdict. But at the level of personal
injury, product, and medical malpractice suits, Ball and Keenan do have a point
in emphasizing that it is often easier for the plaintiff to invoke safety than
the defendant, except in those cases where the defendant's own conduct is the
more salient source of the danger.
But remember, although “Safety” and
“Security” may be a very powerful human motivators, they are far from the only
human motivators.
Smart defendants
will tie their own case to a powerful principle that Responsibility, Innovation, or Fairness is at stake.
It can even be a
strong appeal to empower jurors to resist the pull of an emotive safety-based
verdict, and instead base their decision on evidence, science, and facts. There is one source of insecurity that
plaintiff lawyers have that can be hung on a plaintiff's case by an effective
defendant’s lawyer. The idea of a common
citizen juror being manipulated by a plaintiff’s lawyer can be very
threatening, if not devastating to the plaintiff’s case.
Call out the
Reptile strategy by name, pin it as a tactic and preview to the jurors what the
plaintiff lawyer as done in Voir Dire and is likely to do in the Opening
Statement and/or Closing Argument. Just like any other strategy, it becomes
less effective when it is known and named.
Defend Against the Umbrella Approach
and the Use of “Safety Rules”
As
stated above, lawyers invoke or establish broad “safety rules” which the
defendant violated, and which would have avoided the harm if they had been
followed. Each “Safety Rule” has to
possess the following in order to trigger jurors’ sense of self- preservation
and, thus, their reptilian brains:
1.
The rule must prevent danger;
2.
The rule must protect people in a wide variety of
situations, not just the plaintiff;
3.
The rule must be in clear English;
4.
The rule must explicitly state what a person must or must
not do;
5.
The rule must be practical and easy for someone in the
defendant’s position to have followed; and
6.
The rule must be one that the defendant will either agree
with or run the risk of looking stupid, careless or worse yet, dishonest.
1.
Protect Your ‘Safety Rules’
The key to the
plaintiff’s ability to persuade a jury is to ground the case, not in a legal
standard of care, but in a “safety rule,” or a commonsense principle juror can
immediately understand and apply to other contexts. Once the lawyer is able to identify such a
rule, and show fact finders the danger to themselves and the community when
it’s violated, then they’ve awakened those jurors’ reptile brains, motivating
them to equate justice in this case with their own security.
Underlying all six
elements of a safety rule is a black and white view of the world. But the
advantage for defendants is that the real world isn’t black and white, but is
instead situational and highly dependent on a case set of particular
circumstances. This sets up a conflict that has existed prior to and aside from
this Reptile approach, but has been magnified by it: As plaintiffs’ attorneys
push for a black and white worldview, defendants push back with a realistic
appraisal of shades of gray.
The response on
each of the six elements of the Umbrella Rule for Use of Safety Rules must be
used to prepare fact and expert witnesses for depositions and trial, conduct
voir dire, and create openings and closings. Each effort to deny a safety rule
in your own case can be part of your message at trial.
2.
The Safety Rule Must Prevent Danger
Of course, nothing is able to
literally and fully “prevent” danger. Teach your jury that the reality is that
real life is often swapping one danger for another based on the facts of the
case. Or, better yet that they like the
defendant are simply ordinary, reasonable, prudent people who who have acted
the same way under the same or similar circumstances.
In the context of a medical
malpractice action nothing is able to literally and fully “prevent” danger.
Teach your jury that physicians are instead trying to lessen its impact or
control its course. The reality is that medical care often involves swapping
one danger for another in an imperfect effort to make the patient better off.
For example, you prescribe a drug with known side effects in order to treat a
condition that is, probably, worse than the side effects. This means that the
line from the Hippocratic Oath to “first, do no harm” isn’t literally true.
Excising tissue in a surgery, for example, is doing harm, but a lesser harm
than doing nothing. This, of course, is something that doctors, claims
representatives, and defense attorneys understand intuitively. Jurors may
resist the message, wanting to believe that physicians can guarantee safety.
With a little explanation, however, they can realistically set that notion
aside.
3. The Safety Rule
Must Protect People in a Wide Variety of Situations,
Not Just Someone
in the Plaintiff’s Position
Key to the
Reptile’s advice is to encourage jurors to abstract beyond the particular
plaintiff and to view the rule as broadly applicable and personally
relevant. Always be case specific. Reduce the issue to the case at hand. Always draw the jury back to what happened on
this day, this moment, this accident, this plaintiff and this defendant.
4.
The Safety Rule Must Be in Clear English
A dumbed-down
principle can be a less accurate principle. Complexity for its own sake is the
defendant’s enemy, and can be rightly seen as obfuscation. But realistic
complexity — factors and distinctions that are critical to the situation in
your case that can be patiently and accurately taught to the jury — is the
defendant’s friend.
5.
The Safety Rule Must Explicitly State
What a Person Must or Must Not Do
The key language
here is “must” and “must not.” There is no room in a Reptile perspective for
“typically,” “probably,” or “in most cases.” It has to be an imperative: “If
the doctor sees X, she must do Y.” There
are plenty of situations where it isn’t a “must” or a “must not”. It fact, more often than not, it is a
realistic “it depends.” Help jurors
understand that by explaining and supporting all of the factors that go into what
happened.
6. The Safety Rule Must Be Practical and Easy for
Someone in the
Defendant’s Position to Have Followed
Things are often
practical and easy in hindsight. But,
your case involves the circumstance of what was known or believed at the time.
In the context of
a medical malpractice case an example would be , could the physician have
ordered a different test at an earlier time? Of course, that is going to be
both practical and easy. But did the physician have solid reasons at
the time to have ordered that test? That is a different question.
Of course, getting
jurors past this psychological preference for hindsight can be a challenging
task, but not an insurmountable one. You can encourage jurors to adapt a
hindsight-resistant mindset by using a timeline to walk through the story based
on what was known at the time, not just the one obvious choice that could have
been made in hindsight.
7. The Safety Rule Must Be One That the Defendant
Will Either Agree With or Reveal Him or Herself as Stupid, Careless, or
Dishonest in Disagreement
This final rule
really sums up the mindset: You either agree with a simplistic rule, or you are
stupid, careless or dishonest. To fight back, you need to mount
an educational offensive that frames the choice as something other than
that. For example, craft your own safety rule that is simple, yet honest: a
principle that jurors can understand and that the defendant followed in this
case. If the true rule is a little more complicated than the plaintiff’s
proffered rule, then make jurors proud of the extra effort it takes for them to
get it: They aren’t taking the easy route; they’re taking the accurate route.
A lot of time, the
safety questions are in the form of hypothetical safety questions and are more
specific and often take the form of an if-then statement, like “Doctor, you
would agree that if you see A, B, and C symptoms, then the standard of care
requires you to order tests X and Y, correct?”
Then there is the nightmare at
trial:
Attorney: “Doctor, patient safety is your top
priority, isn’t it?”
Doctor:
“Yes, of course.”
Attorney:
“And the emergency procedure
you chose to perform during Mr. Smith’s surgery wasn’t very safe because it
resulted in his death correct?”
Doctor:
“That’s true, but you have to understand
that I-”
Attorney: (with emphasis) “Doctor you didn’t make Mr.
Smith’s safety your top priority, and because you are ignoring your own rule,
you put Mr. Smith and perhaps all of your patients in danger, didn’t you?”
It is at this
point the Reptile Plaintiff attorney has his or her claws into the witness.
Jurors simplify the case to be one in which the doctor knowingly put his
patient at risk and violated his own safety rule.
These questions
are effective because they provide just enough information (compared to the big
picture safety questions) to lure defendant witnesses into providing an
inflexible, absolute answer. By definition, the safety rule and hypothetical
safety questions are inherently flawed because they lack the proper specificity
to allow for a specific answer.
Therefore, the
only honest answer to a vague, general question is a vague, general
answer. For instance, a response to the
question posed above would be “It depends on the circumstances”, “Not necessarily
in every situation”, “Not always”, “Sometimes that is true, but not all the
time” and “It can be in certain situations”
The bottom line
that the defense attorney must training a witness to withstand these reptilian
attacks and that goes far beyond traditional “witness preparation.” Instead,
more sophisticated witness training is needed, as the witness must undergo
cognitive and communicative restructuring.
Witnesses must literally develop a new process of thinking and
communicating through intense conditioning methods to ensure cognitive and
communicative changes take place.