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. The $95 book is meant to teach Plaintiff’s attorneys “how to make tort reform’s impact on juries insignificant by using the jurors’ most primitive instincts of safety and self-preservation.” 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, law, and so forth to do whatever it takes to survive and that tort reform has taken control of those survival-oriented decision making parts of the brain.
Accordingly, the Reptile strategy is used to retake control of the same “reptile” part of the 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 unless they return a verdict in favor of the plaintiff. One of the goals of the reptile strategy is to direct the jury’s focus to the total harm that could have happened, not 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.
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 $6,211,466,889 in verdicts and settlements. In reading the book, we wondered whether the reptile strategy can be used by the defense as well, and two possible uses for the reptile by the defense come to mind.
We first wonder whether the reptile tactic can be employed in support of affirmative defenses such as contributory negligence arguments. 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. Why can’t the defense establish that, in the process of contributing to or causing his own injuries, the plaintiff endangered the public? Why can’t product warnings provided to the plaintiff be safety rules which protect not only the plaintiff, but the public who may be in close proximity while the product is being used? Why doesn’t the user of the product who disregards product warnings thereby endanger the public? There are numerous articles on combating reptile tactics by reframing questions, objecting, filing motions, et cetera. Obviously, if a defendant takes the position that the Court should exclude the reptile from the courtroom, it would be unwise for the defense to then employ the tactic. We simply suggest here that, if the reptile does end up in the courtroom, perhaps the defendant can fight reptile with reptile.
We also wonder whether the reptile tactic can be employed by the defense to present to the jury all of the safety rules that the defendant did follow. That is, can the reptile brain be calmed by showing that the defendant was compliant with x number of safety rules at the time of the incident? Depending on the facts of the case, can the defendant show that it complied with the myriad of OSHA regulations, ANSI standards, FMVSS regulations, local ordinances, municipal laws, or any rules or regulations which are potentially applicable? And that compliance with these rules not only provided protections to the plaintiff, but to the public at large? Obviously, this is already done to an extent, but we simply ask whether the reptile tactic can be employed in this context by the defense.
