The Reptile Theory has been all the rage among the plaintiffs’ bar for the past several years, and you have no doubt encountered a practitioner of this theory slithering his way around a courtroom.
The theory is simple: The most successful way for a plaintiff to persuade a jury is by using fear to appeal to the primitive, reptilian part of the brain that houses our survival instincts. By focusing on the supposed dangers of the defendants’ conduct, attorneys prompt jurors to react out of fear for themselves and the community and punish the defendants for putting the community at risk. The most common way they do this is by creating supposed “safety rules” and suggesting the defendants violated them – endangering the entire community, not just the plaintiff.
Although we’re skeptical of the neuroscientific trappings of the theory – which scientists have challenged – there’s no doubt scaring a jury can be an effective way to get jurors to react emotionally rather than intellectually – and emotion in a trial usually benefits the plaintiff.
But the defense bar has not taken this lying down, and in trials we’ve attended during the last couple of years, we’ve noticed defense attorneys challenging the reptile tactic more proactively. Here are a few things you can do to send the reptile on its way:
- Motion in limine – Many people have noted the Reptile Theory is nothing new – it’s really just a restating of the Golden Rule, in which jurors are encouraged to put themselves in the place of the plaintiff. Golden Rule tactics are usually not allowed, and we’ve seen several attorneys successfully obtain motions in limine against plaintiff attorneys mentioning “safety rules,” “safety principles” and other terms that suggest a duty to someone other than the plaintiff. We’ve also seen judges bar plaintiff witnesses from testifying about what would be the “safest” thing to do, as the standard of care is “reasonable,” not “best” or “safest.” We would encourage all defense attorneys to submit motions in limine in any case where the plaintiff might engage in Reptile Theory – even if the judge doesn’t grant it, the motion will get the tactic on his radar and you might prevail the next time around.
- Prepare your experts – A favorite tactic of reptile practitioners is to create demonstratives or charts of supposed “safety rules” or “safety principles” and get the defense’s expert witnesses to agree these rules are valid. The “rules” are often phrased in such a general way that witnesses fear looking unreasonable if they do not concede, but by conceding, the witnesses in effect “endorse” the plaintiff’s standards. Expert witnesses need to be warned about this tactic and made to understand what the plaintiff attorney is trying to do. Witnesses should push back against the assertion that these principles apply in all situations, and that they apply to any particular case.
- Choice, fairness, accountability – Safety can indeed be a powerful motivating factor for a jury, but there are other principles that resonate just as deeply. We have long believed that “choice,” “fairness” and “accountability” are the most popular words in the English language, and if you can couch your story in these terms, you can effectively appeal to jurors’ fundamental instincts. Jurors want to do what’s fair and hold the right people accountable – even if it’s plaintiffs themselves – and you need to convince them you are on the side of right.
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