2014 Reptile Theory

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Plaintiff “Reptile Theory”: What is it? And, how to plan strategic defense responses at any stage: case management, defense, and trial Why are plaintiff’s lawyers injecting “safety” arguments into all aspects of litigation strategy? In this fact sheet we’ll unleash our own dragon on the Reptile Theory and discuss responses to a popular tactical approach embraced by plaintiff’s lawyers. The approach is designed to win cases by appealing to a juror’s “primal” instincts. The Reptile Theory was developed by plaintiff attorney, Don Keenan, and jury consultant, Dr. David Ball, in 2009. It was released as a detailed psychological trial method and published under the title: REPTILE: The 2009 Manual of the Plaintiff’s Revolution. Since then, the theory has gained increasing popularity with the plaintiff’s bar. Currently, proponents claim that use of this strategy has resulted in nearly $6 billion in settlements. Seminars and CD training sets are available to teach the method, and more books, including REPTILE in the Mist (Keenan and Ball, 2013) are available on specific aspects of litigation preparation. A psychological method The Reptile Theory is designed to frame issues and answers to arrive at a plaintifffriendly conclusion. The theory proposes that 1) the “reptile” has a primitive brain that houses survival instincts, 2) when the reptile brain senses danger it goes into survival mode to protect itself and the community, 3) the courtroom is a public forum to ensure safety, 4) damage awards enhance safety and decrease danger, 5) jurors (reptiles) are guardians of community safety, and 6) safety rule + danger = plaintiff’s verdict. Thus, if base reptilian safety instincts are “awakened” in a juror’s brain, decisions based on survival instincts are triggered, resulting in a jury verdict that protects jurors and society.

While the validity of the neurological construct is an interesting debate, and the claimed value of settlements based on successful use of the tactic may be questioned, the persuasiveness of the method is real. As a result, it’s essential for claims professionals and defense counsel to understand the Reptile Theory tactics and prepare counter strategies. Without a clear view of how the theory is put into action, the strength of the tactics can continuously erode the defense, leading to increased claim exposures. Knowledge and preparation will be powerful for advance case management, deposition preparation, or trial. We expect that these tactics will be used most often in bodily injury cases stemming from auto claims, premises accidents, medical malpractice, and product liability cases. Underwriters and their claims departments should consider the value of familiarity with the Reptile Theory, particularly for these lines of business. Safety questions and general defense strategies In its simplest form, the theory sets up “safety” questions that relate to the case, but appeal to broader safety concerns which hint at personal risks to the decisionmaker (the juror). The reptile methodology typically begins with a series of black and white “safety” questions such as: “Don’t you agree that you should take steps to keep consumers safe?”; “Don’t you agree that safety is always a top priority?”; “Don’t you agree that safety is important to the

(implied reptile’s) community?” The premise is to build agreement with safety rules that seem thoughtlessly simple. To disagree would appear careless or unintelligent. Effective responses to reptile strategies deviate from the age-old defense advice to answer questions: “yes” or “no”. Defense witnesses need to be ready to distinguish strict fact questions from questions leading to safety rule traps. Witnesses also need to be prepared to offer examples of how actions can be situational, can involve a multitude of considerations, and often involve complex economic or timesensitive components. A key defensive theme should be to show that risk is everywhere and that risk is normal and reasonable. For example, ask yourself: Do you drive the highest safetyrated car? Why not? You perceive the risk as low and there are other considerations that are important. You do not feel that you are compromising your own safety, your family’s, or your community’s safety. While the safety questions presented by plaintiffs represent a different scale of interests, the foregoing example shows that the highest levels of safety and risk avoidance are often impractical and unrealistic. A reptile tactic will be to attempt to blow danger out of proportion and make a risk larger, scarier, and more threatening to a reptile-minded juror. The theory’s ultimate goal is to trap a defense witness into agreeing that his/her

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actions were negligent, the action could have led to much greater damage (or resulted in many more victims), and that such action represents an unacceptable danger to the “reptile” and his/her community. Specific techniques and responses An illuminating exercise is to review Ball and Keenan’s recommendations for a plaintiff’s deposition preparation. Keenan and Ball propose that the plaintiff develop five to seven “Major Truths” about the case. One of the Truths will be that the plaintiff did “what he was supposed to do” and acted 100% reasonably regarding his own actions as they relate to the case. The plaintiff is also to state that he “trusted” the defendant’s actions. The plaintiff is to fall back on the Truths when asked challenging questions. In contrast, for the defense, Ball and Keenan recommend attacks which focus on gaining agreement with safety rules and repetition that violation of safety rules is bad. They also suggest questions which attempt to demonstrate that a defendant didn’t care about safety, didn’t care about the plaintiff, and wasn’t sufficiently knowledgeable, or that the defendant was inconsistent, untruthful, or did not do his job. While many of these recommendations are classic witness preparation and crossexamination techniques, Ball and Keenan have built a micro-industry marketing these methods in compelling playbooks, seminars, and videos. Responses that will bolster the defense will include full knowledge of these tactics and the implementation of neutralizing counter tactics.

complexity of a situation will broaden the case beyond the Reptile Theory’s emphasis on simple safety rules and violations. Defendants will also be well-served to highlight unusual facts, characteristics, or unique circumstances in order to make a case more difficult to generalize as a threat to the reptile (juror’s) individual environment. Lastly, the defense should focus on establishing credibility in a field, industry, or occupation as a counter to strategies that imply poor/negligent performance. Alternate defense tactics Considering the effectiveness of the Reptile Theory, one commentator has gone as far as recommending advanced cognitive witness training in order to achieve proper focus, and desensitization to pre-programmed agreement with “safety is good”, “danger is bad” questions.* This viewpoint also advocates that “sometimes” and “it depends” answers gives jurors perspective — allowing the defense to explain actions in real contexts. Investment in witness preparation at all stages is essential.

Alternate defense recommendations include deliberately highlighting use of the Reptile Theory to the judge or jurors. Individual jurors may be suitably offended by the notion that they’re being manipulated with a strategy that assumes they make decisions with the brain of a reptile. Alternately, a judge may be tipped off to use of the theory through motion practice. Conclusion A plaintiff’s reptile attack is a probability, not a possibility. Claims professionals and their defense counsel need to be acquainted with this popular theory in order to wage effective counter efforts. Without such preparation, you, your witnesses, and counsel may be caught completely off guard. And, whether you agree or disagree with the purported science of the Reptile Theory, a lack of preparedness may leave you with a bite that feels very real. For more information, contact your Swiss Re Claims Representative. *Kanasky, Bill, Debunking and Redefining the Plaintiff Reptile Theory, For the Defense, April 2014.

Additional defensive recommendations include researching prohibitions on “Golden Rule” arguments. Golden Rule arguments aren’t allowed in many jurisdictions, and can result in reversible error. A Golden Rule argument asks jurors to put themselves in the plaintiff’s shoes. The impropriety is that jurors are being asked to deviate from their juror role and decide how they would like to be compensated if they were the plaintiff. It’s easy to see how the Reptile Theory can spark Golden Rule objections.

References: Broda-Bahm, Dr. Ken, Respond to the Reptile, Persuasive Litigator, December 17, 2012. Howard, Ben, Neill Dymott: A Field Guide to Southern California Snakes: Identifying and Catching Plaintffs’ Reptile Theory in the World, verdict, Volume 3, 2013. Marshall, David C., Lizards and Snakes in the Courtroom, For the Defense, April 2013. Rincon, Carlos and Todd Silberman, Coaxing the Reptile Back under the Motor Carrier Rock:

Accordingly, defense responses should focus on the 5 “C”s: Care, Competence, Context, Complexity, and Credibility. Defense efforts will benefit from humanization of defense witnesses and empathy with personal aspects for the plaintiff. An individual defendant will need to establish competence in his position and be able to describe the context and circumstances to support a conclusion of reasonable behavior. Addressing the

However, to avoid Golden Rule objections, the theory poses slightly more general questions, such as: “Would anyone feel unsafe about this behavior?” Use of the word “anyone” is intended to translate to: Would “you” feel unsafe? Some courts will agree that the re-phrasing isn’t sufficient to withstand a Golden Rule objection.

Countering the Plaintiff’s Reptile Theory to Inciting Survival Instincts in Jurors towards Large Verdicts. Federation of Defense & Corporate Counsel, Winter 2013 Meeting. Ruskin, Bill, Plaintiffs’ Bar Embraces Reptile Strategy and Defense Bar Responds, DRI Today, post 10/9/2013.

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