What attorneys need to know about Reptile Theory

Jun 11, 2024 | Reports

Thomson Reuters

Courtroom lawyers have an array of tactics at their disposal when trying to sway a jury to their side of a case. Some of these approaches are rooted in academic theories while others rely heavily on rhetoric and psychology. In almost every case, though, the approach is meticulously planned out and strategically deployed with one goal in mind: win at all costs.

One such tactic, “Reptile Theory,” has particularly drawn the attention of legal scholars and attorneys for both its emerging prominence and relative controversy. Here, we will break down some of the key components of the approach, assess its true value, and consider ways to combat its application.

What is the Reptile Theory?

The Reptile Theory strategy hinges on jurors’ so-called “reptilian” region of the mind, which is biologically sensitive to danger. The concept can be attributed to ex-theatrical director, David Ball and plaintiff attorney Don Keenan, as described in their book Reptile: The 2009 Manual of the Plaintiff’s Revolution.

The strategy works in two separate stages. First, a juror must be presented with the idea that a defendant is, in fact, dangerous. Then, the attorney’s job is to convince that juror it is within their power to help mitigate this danger by taking action. This can be done, naturally, by awarding massive damages to the plaintiff.

The Stetson Journal of Advocacy and the Law noted, “… if a juror is placed in a position where he or she feels threatened, anxious, or potentially at risk of harm, that juror is likely to react. This is, at its most basic core, the underlying mechanic behind the Reptile. Instead of employing jurors with reason and logic to reach the desired conclusion, the Reptile takes a linear path directly to a juror’s emotions by showing a juror the end result and providing a prism through which all evidence presented at trial may be viewed.”

Essentially, the Reptile Approach suggests jurors should award damages to punish defendants while deterring other presumed bad actors. Sometimes, attorneys will suggest that without a “proper” verdict featuring an “appropriate” punishment, the danger facing the public will actually be worsened.

What about the “Golden Rule?”

As discussed above, Reptile Theory relies heavily on the idea jurors can be swayed using hypothetical inquiries aimed at theoretically preventing future harm. Many legal scholars find this practice predatory and often criticize it for its perceived use as a skirt on “Golden Rule” argument prohibitions.

The Golden Rule involves asking jurors to put themselves in the place of an injured person or victim. By doing so, they are then more inclined to deliver a larger, more favorable award to a plaintiff. However, this tactic has been rejected by many as improper, and in some instances is outright banned.

For example, in U.S. v. Palma, the Eighth Circuit held a golden rule argument is “universally condemned because it encourages the jury to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on the evidence.” In general, this is something you want to avoid in a properly functioning legal space.

What does Reptile Theory look like in practice?

Reviewing the Stetson Journal again, let’s consider some questions that might appear in a case where the plaintiff’s attorney is employing Reptile Theory. In this instance, imagine the case involves torts pertaining to a motor vehicle accident featuring a commercial driver.

Questions aimed at tapping into our “reptile brain” might look like: “You would agree with me that failing to look both ways before pulling into an intersection unnecessarily endangers the public and community?” or “You would agree with me that the failure to continually scan the roadway while driving needlessly endangers the public?”

The words “unnecessarily” and “needlessly” are prominently included in the inquiries. This is a tell-tale sign you could be head-to-head against a reptile argument; and the best way to counter the theory is to identify its application as quickly as you can and reintroduce the jury to objectivity and the facts of the case.

All told, there are better ways to win than by deploying Reptile Theory. Having confidence in the integrity of your work is just one of the areas we cover in our white paper, “Three Traits that Make for an Unrivaled Attorney.

Armed with proper preparation and the tools needed to deliver for your client, you will be primed for a successful argument every time – even if opposing counsel tries to snake bite you with a Reptile Theory attack!

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