{"id":899145,"date":"2021-09-16T14:29:22","date_gmt":"2021-09-16T20:29:22","guid":{"rendered":"https:\/\/www.myconstructionexpert.com\/blog\/?p=899145"},"modified":"2021-09-16T14:29:27","modified_gmt":"2021-09-16T20:29:27","slug":"reptile-theory-in-practice","status":"publish","type":"post","link":"https:\/\/www.myconstructionexpert.com\/blog\/reptile-theory-in-practice\/","title":{"rendered":"The Reptile Theory in Practice"},"content":{"rendered":"\n

Nicholas P. Hurzeler | Lewis Brisbois<\/a><\/p>\n\n\n\n

The \u201cReptile Theory\u201d is a trial strategy<\/a> that attempts to use fear and anger\u00a0to make the jury dislike the defendant so strongly they will award a plaintiff a grossly excessive amount of damages.\u00a0The plaintiff\u2019s attorney will seek to activate the jurors\u2019 \u201csurvival mode\u201d instincts by presenting the defendant\u2019s conduct as highly dangerous and worthy of punishment. The defendant\u2019s conduct will be portrayed as a threat to the safety of the general public, and the award as a deterrent needed to protect the community at large. The Reptile Theory appeals to the jurors\u2019 emotions in place of any rational, impartial evaluation of the evidence.<\/p>\n\n\n\n

The term \u201cReptile Theory\u201d originated in the writings of nuero-physiologist Paul D. MacLean in the 1950s, who suggested that one major part of the brain consisted of a \u201creptilian complex\u201d that controlled instinctive behaviors involved in aggression, dominance, and territoriality. Then in the 2009 publication \u201cManual of the Plaintiff\u2019s Revolution\u201d by David Ball and Don Keenan, the authors first described the \u201cReptile Theory\u201d in the context of litigation. Since then it has become a hot topic in litigation as defense counsel develop methods to combat \u201cReptile\u201d tactics resulting in runaway jury awards.<\/p>\n\n\n\n

A plaintiff\u2019s attempt to use Reptile Theory begins with discovery responses and depositions, and continues in jury selection. It is therefore important to properly prepare your clients for questions incorporating “Reptile” strategies at the deposition, and to make the proper objections during the deposition. Then, defense counsel will primarily rely on motions in limine to hopefully convince the judge to preclude the Reptile Theory, particularly in opening statements and summations. Our office has had success in precluding the Reptile Theory by arguing at trial that the standard of care is not \u201cthe good of the community,\u201d or \u201csafety standards,\u201d but controlling statutes and pattern jury instructions. In several cases, judges have accepted our argument that the plaintiff should be precluded from making such statements because they are prejudicial, vague, amorphous, and would distract the jury from the governing statutes and jury instructions.<\/p>\n\n\n\n

As it turns out, however, there is very little legal authority that speaks to Reptile Theory in particular. The case law is somewhat undeveloped, without clear guidelines regarding what \u201cReptile\u201d tactics are considered out of bounds. There is no statutory authority on Reptile Theory in particular (with the exception of a recently passed bill in the Texas legislature<\/a>), and the case law is scarce to the point that many states have no published opinions at all that specifically apply to it. However, the Reptile Theory does fall under the broader topic of inflammatory and unduly prejudicial trial tactics. Every state has case law on that topic, as do the federal courts. There is also a body of case law on the closely related \u201cGolden Rule\u201d tactic, when the plaintiff\u2019s attorney asks the jurors to treat the plaintiff as they themselves would like to be treated.<\/p>\n\n\n\n

Below are some examples from the few state cases that specifically address Reptile Theory:<\/p>\n\n\n\n