For many, the words “lawyer” and “reptile” are probably synonymous. Since 2009, however, some lawyers have sought to transform the courtroom into a reptilian battleground.
That year, attorney Don Keenan and jury consultant David Ball published a book on trial strategy called Reptile: The 2009 Manual of the Plaintiff’s Revolution. I’m not sure how “revolutionary” it has really been, but the theory and the book have indeed received some attention, if only because the practice clarifies something clever (and successful) plaintiff lawyers have implicitly understood for decades.
What is the “reptile” theory? It is built upon research performed in the 1960s by neurologist Paul MacLean, who posited a theory that the brain is comprised of three parts: the reptilian complex, the paleomammalian complex and the neomammalian complex. The reptilian complex includes the brain stem and the cerebellum, the oldest part of the brain, which thrives on survival. The reptilian brain maximizes “survival advantages” and attempts to minimize “survival danger.” Id. at 17.
As applied to trial strategy, the theory attempts to capitalize on the need of the reptilian brain to avoid “survival dangers.” As Keenan and Ball write, “When the Reptile sees a survival danger, even a small one, she protects her genes by impelling the juror to protect himself and the community.” Id.
How does the 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. Further, jurors must be made to feel empowered, by virtue of their verdict, to prevent this conduct, thereby protecting the community.
The goal in getting jurors to think with the reptilian part of their brains appears to be (1) to obtain a winning verdict even when logic or emotion might cause jurors to find against the plaintiff’; 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 the safety of the broader community.
Coupled with the principles from the book Rules of the Road (about which I previously wrote here and here), lawyers can go reptile by invoking or establishing broad “safety rules” which the defendant violated, but which would have avoided the harm if they had been followed. Keenan and Ball offer six characteristics that each safety rule must possess in order to trigger jurors’ reptilian brains:
- 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; and
- The rule must be one that the defendant will either agree with or seem stupid, careless or dishonest. Id. at 52-53.
Some examples? Keenan and Ball begin with the broadest possible “umbrella rule.” Id. at 55. Think: “A [_____________] is not allowed to needlessly endanger the public.” Fill in the blank: doctor, car maker, construction scaffolding supplier, etc. You get the idea.
Next, the authors advocate eliciting admissions, from the defendant and/or its experts, to gradually narrower, more case-specific, safety rules. From the undeniable umbrella rule that “A doctor is not allowed to needlessly endanger the public,” for example, the case-specific rule is “If 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?
As I say, I don’t think the Reptile approach is all that revolutionary. I remember encountering lawyers long before 2009 using a very similar approach and it made a lot of sense to me, even without any tie to neuroscience. In my next post, I will discuss how to prepare a witness for a reptile deposition.