Can Defense Lawyers Co-Opt the Reptile Strategy?
In 2009, David Ball and Don Keenan published a book called REPTILE: The 2009 Manual of the Plaintiff’s Revolution (“REPTILE”). The $95 book is billed as a manual that teaches Plaintiff’s attorneys how to reduce tort reform’s impact on juries by using the jurors’ primitive safety and self-preservation instincts. For those who have not read the book, it begins with the premise that insurance companies, big business, et cetera, have convinced prospective jurors via tort reform propaganda campaigns that jury verdicts impact the economy in their community – that jurors walk into the courtroom with the understanding that jury verdicts threaten their basic survival. Keenan and Ball explain that jurors will disregard the facts and law to do whatever it takes to survive, and that tort reform has taken control of those survival-oriented decision making parts of the brain.
At first glance, it seems that the reptile strategy is a gimmick designed to bilk plaintiff’s attorneys out of $95; however, those who have faced the reptile strategy know that it can be dangerous. In fact, Keenan and Ball’s website boasts that the reptile strategy has been responsible for over $6 billion in verdicts and settlements. This article examines pertinent aspects of the reptile strategy and suggests two potential ways that civil defense lawyers can use reptile tactics to their advantage.
1. What Do Reptiles Have to Do with Litigation?
In REPTILE, Keenan and Ball begin by providing the scientific background of the reptile strategy. They explain that Yale Medical School and National Institute of Mental Health physician and neuroscientist Paul D. Maclean developed a theory that the human brain can be divided into a three-part “triune” brain. See REPTILE at 13; see also Jay E. Gould, Triune Brain Concept, available at http://uwf.edu/jgould/triunebrain.pdf. The theory suggests the first part of the human brain that developed was the “proto-reptilian brain.” This part of the brain controls “feeding, fighting, and reproduction-the so-called Four F’s.” The photo-reptilian brain, or “reptile brain” as it is called in REPTILE, is associated with survival instincts and protecting one’s genes. In REPTILE, Keenan and Ball suggest that this part of the brain will override all other brain functions to ensure the survival of the genes. The triune brain theory suggests that humans evolved to develop a second part of the brain, the paleo mammalian brain or limbic system, which is responsible for emotion, learning, memory, and various other increased levels of brain function. The third step in the brain evolutionary process was the neomammalian brain or neocortex, which enhanced stimulus analysis, and added abilities such as language, planning, foresight, and hindsight. The reptile theory suggests that the reptile brain remains in control of the other two parts of the brain, and that human beings will always do what it takes to promote safety and eliminate danger, above all else. The reptile theory at its core suggests that if the jurors’ reptile brains can be controlled, so can the outcome of the trial.
Keenan and Ball believe that tort reform efforts during the 1990’s took control of the reptile brains of jury pools. Reason being, the stronger one believes his or her community to be, the safer he or she feels. Tort reform allegedly persuaded potential jurors that large civil lawsuit verdicts endangered the financial stability of the community, thus plaintiffs became a dangerous threat in the minds of potential jurors. Jurors now enter the courtroom with their reptile brains programmed to eliminate the danger to the community by returning a defense verdict (or a small verdict), regardless of the facts presented to them.
Accordingly, the Reptile strategy is used to retake control of the reptile brain and use that control to manipulate jurors into returning large verdicts. For the reptile strategy to work, the jurors must be convinced that public safety, and their personal survival, will be negatively impacted absent a large verdict in favor of the plaintiff.
2. Safety Rules and Danger to the Community
One of the goals of the reptile strategy is to direct the jury’s focus to the total harm that could have happened, rather than the harm which actually happened. The strategy involves establishing “safety rules” that protect the public from harm and then showing that the defendant violated those rules. In order to make the jury care about the safety rule, the jury must be convinced that the rule protects the community, and by extension, the juror. A proper safety rule is broad and easy to understand. According to Keenan and Ball:
Some safety-rule violations are too specific to endanger the juror’s reptile. ‘A coal mining company is not allowed to turn the lights off while workers are in the mine’ applies only to the Reptiles of miners. But it becomes useful when positioned as a special case of a more general rule, such as, ‘A company must not needlessly endanger its employees’ or ‘A company is never allowed to remove a necessary safety measure.’ That connects it to everyone’s job.
A good reptile safety rule has six characteristics:
- it must prevent danger
- it must protect people in a wide variety of situations
- it must be clear and simple
- it must explicitly state what one must or must not do (e.g. drivers must travel at a safe speed)
- it must have been easy for the defendant to follow (e.g. it is easy for the defendant to follow the steps of differential diagnosis
- the rule must be one that the defendant has to agree with – or seem stupid, careless, or dishonest
The end goal is to show that the defendant chose not to follow a safety rule, and thereby endangered the community, and by extension, the juror (or someone the juror cares about). In theory, the juror’s reptile brain will then take over and will render a large verdict against the defendant to prevent the defendant from endangering the community in the future.
3. Challenges to Reptile Tactics
Several excellent articles provided strategies for combatting the reptile strategy. See, e.g., Jack Life and Allan Campo, “Croc-Proofing Your Witnesses to Croc-Proof Your Case,” DRI Product Liability Conference, February 4-6, 2015; Minton Meyer, “Make Boots Out of that Lizard – Defense Strategies to Beat the Reptile,” DRI: The Voice, volume 12 issue 38, September 25, 2013. These strategies typically involve objections, preparing witnesses to reframe the reptile questions, and addressing reptile tactics with pretrial motions. The commentary suggests that witnesses should respond to broad questions regarding “needlessly endangering the public” by explaining that there are just too many undefined variables to answer such a general question definitively. Motions in limine are used to attack the reptile tactic as an improper attempt to circumvent “Golden Rule” prohibitions. These reptile counter tactics are quite effective, and can result in the reptile being barred from entering the courtroom. However, as alluded to above, this article suggests ways that defendants can use the reptile strategy. Obviously, it may impair a defendant’s credibility in reptile-preventative pretrial motions if the defendant is using reptile tactics as well, so that is something to consider. However, absent those concerns, there may be ways for defendants to harness the reptile tactics and use them to their advantage.
4. Reptilian Affirmative Defenses
As a practical matter, the reptile strategy is better-suited for plaintiffs because plaintiffs have the burden of proving that the defendant violated an applicable standard of care. However, typically the defendant has the burden of proof on any affirmative defenses that it asserts. Some of which require the defendant to show that the plaintiff violated an applicable standard. For example, a defense of contributory negligence or comparative negligence typically requires the defendant to prove that the plaintiff violated an applicable standard of care, and that the plaintiff’s conduct caused or contributed to the injury. In product liability cases, defendants will often assert a misuse defense, which involves demonstrating that the plaintiff misused the product, and that the misuse of the product caused the injuries. In short, there are numerous defenses which require a defendant to prove that the plaintiff’s conduct was violative of a standard. It seems that the reptile strategy can be used to prove these affirmative defenses.
As noted above, the reptile tactic involves establishing arbitrary safety rules which allegedly protect the public and then showing that the defendant broke those rules, thereby endangering the public. A defendant employing the reptile strategy on an affirmative defense will establish a simple safety rule that protects the public, and then show that the Plaintiff violated that safety rule, which endangered the public. Consider the following hypothetical:
John Doe is operating a piece of industrial equipment when it explodes, burning Doe severely, but no one else is injured. John Doe files suit, and Doe’s experts and the defendant’s expert agree that the explosion was caused by a loose fuel valve. It is undisputed that the loose fuel valve would have been discovered if Doe would have inspected it prior to the shift, and that tightening the fuel valve would have prevented the explosion. Doe’s employer told him he was responsible for performing a pre-shift inspection, but he was never instructed by his employer to specifically check to see if the valve was loose during the inspection. Doe’s employer did tell him that he needed to be familiar with the owner’s manual, and a label affixed to equipment directed him to the owner’s manual for instructions on how to inspect the machine. The Plaintiff claims that he did skim over the manual, but that he did not read the instruction regarding inspection of the valve at issue. The Plaintiff’s human factors expert says that the warning is buried in the manual, it is not color-coded correctly, etc. so the manual did not adequately instruct the Plaintiff regarding the inspection of the valve.
Obviously, in the hypothetical above, the defendant will want to show that adequate warnings were provided and that the Plaintiff’s failure to read the manual carefully is the true cause of the explosion. A reptile defense lawyer will engage the reptile brain of the jury by showing that the Plaintiff’s actions not only caused his injuries, but his actions also caused needless danger. Employing the reptile strategy, the defense may establish a safety rule and a violation of the safety rule as follows:
- Mr. Doe, you would agree that it is never ok to needlessly endanger yourself or your co-workers?
- And your employer gives you safety information which tells you how to avoid needless danger to yourself and your coworkers?
- And the plant where you work has people from the community come in to look around every now and then – students, employees’ spouses, customers, etc.?
- And you are never allowed to needlessly endanger visitors to the plant?
- And the safety information your employer gives you is meant to protect visitors to the plant from danger as well, correct?
- And you know that if you ignore safety information provided by your employer, you could endanger yourself and your coworkers, and any visitors?
- So, you must not ignore that safety information?
- And if that safety information is in writing when you get it, you should read it?
- Part of the safety information that your company gives you when you are training tells you to inspect the equipment before your shift?
- Because it is important to make sure the equipment is working properly before you operate it?
- Because if the equipment is not working properly, you, your coworkers, or visitors could be endangered?
- And there was a label on the equipment that said to read the entire operator’s manual, correct?
- And the safety information your company gave you told you to read the entire operator’s manual for the equipment, correct?
- And you admit that you did not read the section of the owner’s manual that told you to inspect the fuel valve?
In the line of questioning above, the safety rule is that one must not ignore safety information, and the rule protects coworkers and the public. So, Doe’s testimony that he did not read the entire manual is an admission that he ignored safety information in the manual, and that he therefore endangered his coworkers and any visitors to the plant. At that point, the reptile brain should engage, and a plaintiff that has endangered others by violating a safety rule should not be entitled to recover against the defendant.
5. Reptilian Good Company Defense
The reptile may also be used to advance a defense similar to the “good company defense.” See Childs, John C., “Developing and presenting the Good Company Case,” The Practical Litigator, 19-25 (2003). The good company defense is used to humanize the corporate defendant and to illustrate to the jury the safety culture and general decency of the people who operate the company. The good company defense involves showing the jury information such as: company efforts to recognize, test and implement safety initiatives; the company behaving as a good corporate citizen; favorable government agency evaluations; and other information general positive information pertaining to the company. If the reptile brain is awakened by violations of arbitrary safety rules, why can’t the reptile brain be calmed by information showing that the defendant complied with a myriad of safety rules, and therefore protected the public from harm in a myriad of ways?
Numerous defendants do business in areas that involve tremendous amounts of federal regulation. For example, consider the following line of questioning in a case in which the defendant children’s toy manufacturer faces product defect allegations:
- You would agree that when a company tries to make its product safer, the company is doing something good, correct?
- And the government occasionally enacts safety regulations that companies must follow so that products are safer for people to use?
- So when a company follows those safety regulations, users of the product in the community are safer?
- A manufacturer of children’s toys must comply with a number of federal safety regulations?
- A manufacturer of children’s toys must comply with ASTM F963-11?
- And that requires children’s toys to be tested for compliance with the toy safety standards?
- And the goal of that regulation is for the product to be safer for people to use?
- So when a manufacturer tests its products for compliance with the toy safety standards, the manufacturer has done something that makes its product safer?
- And in this case, ABC Company tested the product to ensure compliance with toy safety standards?
- And the testing must by conducted by a consumer product safety commission accepted laboratory?
- And requiring a community product safety commission accepted laboratory is meant to make the testing more reliable, and that would enhance customer safety?
- So when ABC decided to comply with the requirement to use a CPSC accepted laboratory for its testing, it did something that made its product safer?
The questioning would then continue in a similar manner through all of the safety regulations with which the manufacturer complied. Following the hypothetical line of questioning above, the juror will be reminded of the great lengths to which ABC Company went to protect the public from harm. The jurors would hopefully understand that ABC Company is not a threat, and their reptiles would focus on avoiding the danger to the community imposed by large jury verdicts.
The reptile strategy is dangerous when used properly. The same aspects of the strategy that make it effective for plaintiffs could make it effective for defendants in the context of affirmative defense and/or a good company-type defense. A reptile defendant will obviously need to consider the impact that its use of the reptile will have on motions to exclude reptile tactics, but barring those considerations, it will be interesting to see how successful a reptile defense could be in practice.
Kyle J. White is an associate with Gallivan, White, & Boyd, PA in Greenville, South Carolina. He practices primarily in the fields of product liability and complex civil litigation, along with toxic tort, mass tort, and insurance subrogation.
DRI – The Voice of the Defense BarStrictly Speaking – Products Liability Committee Newsletter
May 14, 2015