Reptile Series Part 3 – Harness The Reptile And Use it To Your Advantage

In our most recent Reptile posts, we introduced a simple, proposed strategy for defense lawyers to deal with the Reptile, and introduced step 1 of the process. The following is step 2 of the proposed plan:

  1. HARNESS THE REPTILE AND USE IT TO YOUR ADVANTAGE

As set forth in our prior posts, the effectiveness of the reptile strategy lies in its ability to simplify the message and convey it to jurors in a form that they can understand and care about. The defense bar tends to overcomplicate everything. Typically, defense lawyers feel the need to provide way too much detail. If the simple message is effective, why not simplify the message? I would argue that the reptile strategy can be used by defense lawyers to simplify the message and to make jurors care about the defense’s case.

This proposed strategy works best in situations where the defendant has asserted an affirmative defense such as contributory negligence or misuse of a product. The reptile strategy can be used to establish safety rules that the plaintiff must follow, and the consequences to the plaintiff and the public of not following those safety rules. For example, the defense counsel can establish that warnings and instructions are provided not only to protect the plaintiff, but members of the general public who may be in the vicinity of the plaintiff while the product is being used.

Consider the following line of questioning:

  • Plaintiff, you would agree that manufacturers provide warnings and instructions pertaining to the proper and safe use of their products?
  • And you would agree that a user of a product must read and follow the warnings and instructions provided by the manufacturer?
  • And one of the reasons you must read and follow safety instructions is so that you will protect yourself?
  • And when you use this product, there could be members of the public in the vicinity? And another reason you would of course want to follow the safety information provided by the manufacturer is to avoid endangering members of the public who may be in the vicinity?
  • So you would agree with me that when the user of a product fails to read and follow safety instructions, he could endanger not only himself, but members of the public who may be in the vicinity?

The line of questioning would then proceed through getting the plaintiff to agree that owner’s manuals and warning stickers are the type of safety information about which he was questioned earlier, and which he agreed must be read and followed. This strategy not only simplifies the information provided by the manufacturer by grouping it all into the category of safety information, but it establishes for the jury that the instructions are there to protect the plaintiff and members of the general public. Therefore, when the plaintiff fails to follow the safety information provided by the manufacturer, he endangers not only himself but members of the general public. The result is that the message is simplified, the consequences of the plaintiff’s conduct are of interest to jurors, and the reptile is harnessed.

Please feel free to reach out directly with any thoughts on this strategy, or leave thoughts in the comments section.

Reptile Series Part 2 – Don’t Give Them The Soundbite

In the most recent of our Reptile posts, we began a Reptile series that proposes a two-step plan for harnessing the Reptile instead of fearing it.  The following explains step 1.

  1. DON’T GIVE THEM THE SOUND BITE

Jury consultants and psychologists who have studied the reptile have debunked the scientific premise behind it. So why is the reptile so effective? My theory is that the reason the Reptile is so effective is because it simplifies what the plaintiff is required to prove and includes consequences of the defendant’s conduct about which jurors actually care. So the first step in this proposed method for dealing with the reptile is don’t let them simplify it. The reptile practitioner relies on simplified sound bites that can later be used to concisely breakdown what the defendant did wrong and how they did it.

The plaintiff’s attorney will attempt to establish through your witnesses various safety rules. For example, the classic reptile safety rule is the “umbrella rule,” which states that a reasonable [insert category of defendant] must never needlessly endanger the public. If your witness agrees, the plaintiff’s attorney gets his sound bite. If your witness disagrees, he looks nefarious and is led down a rabbit hole that will result in nothing more than your witness looking bad. So the solution is, don’t give them the sound bite.

The lawyer should object to these attempts to establish the safety rule. The witness should absolutely never give a yes or no answer to the safety rule questions. The witness should re-frame the question, ask for clarification, and again, should never give a yes or no answer only to the question. The witness should be instructed that no matter how many times the plaintiff’s attorney asks the safety rule sound bite question, a yes or no question should absolutely never be given. There is nothing improper about this, and the witness is always allowed to explain his or her answer. The witness should be instructed to calmly do this, and to not become combative with the plaintiff’s attorney. The plaintiff’s attorney will undoubtedly become combative, complain about the witness’s failure to answer with a yes or no, and hopefully, ultimately, move on from the line of questioning without having acquired the sound bite sought after.

We would argue that without the sound bites to over simplify the concepts that the plaintiff needs to prove, the Reptile will fail. A reptilian practitioner without sound bite ammunition isn’t a reptile at all. Stay tuned for the next installment in which we explain step two of the proposed strategy.

Reptile Series, Part 1 – To Be Feared or Embraced by Defense Lawyers?

We have written numerous posts about the popular Reptile tactic, which has taken the plaintiff’s bar by storm. Practitioners of the reptile method boast alarming success. Meanwhile, the defense bar has been scrambling to identify the best way to deal with the reptile. Motions in limine are filed to keep out the reptile. Witnesses are prepared extensively on the sound bite questions on which the plaintiff’s attorney will attempt to obtain agreement. Defense lawyers instruct witnesses not to answer and move for protective orders to seek judicial intervention to keep out the Reptile. Is it possible that the defense bar is going about it all wrong? Is there really anything to fear? I would propose that instead of fearing the reptile, the defense bar should consider harnessing it and using it to its advantage. In that end, I would propose the following two-step strategy:

(1)       Don’t give them the sound bite;

(2)       Harness the Reptile and use it to your advantage.

These two parts will be explored in additional detail in upcoming posts.

Reptile Update Summer 2016

It has been approximately six months since our last Reptile case law update. We have been unable to find any Reptile-related case law or trial court order handed down since our last update, but we have located several recent jury verdicts and settlements referencing the Reptile, as well as some secondary sources on the subject:

The following is an excerpt from the recap of a jury verdict for the defense in a Kentucky medical malpractice case:

He referenced that some other lawyers (ones from Georgia) created a Reptilian guide to trying cases and that it is used by plaintiffs as a Bible of sorts. Moving from reptiles Nicholls finished that Chalhoub was a good doctor who cared about his patients and the community — he asked the jury to return a verdict telling Chalhoub he had done nothing wrong especially as the plaintiff had painted him as a liar.

From a recent article:

I have a slightly different, but not inconsistent, theory: fear sells. Readers are attuned to negative information for the same reason that the negativity bias is evolutionarily adaptive: you need to know about the bad stuff that might cause you harm. We cannot escape the reptile buried deep within our psyches.
SYMPOSIUM: Of Reptiles and Velcro: The Brain’s Negativity Bias and Persuasion, 15 Nev. L.J. 605.
And for another interesting analysis of the Reptile tactic, consider the following law review article for which we provide the following excerpt:
Let us begin with identifying some of the problems with finding the right place to start. For a factual narrative, the natural choice-the earliest event-is not obvious. What is the earliest event? In a personal injury case, is it the injury or the events leading up to the injury? Current books on the plaintiff’s side – Rules of the Road and Reptile – put the emphasis on the defendant and what the defendant has done before introducing the plaintiff. Even the natural “tell the story from the beginning” has many notable exceptions. We are well aware, especially with movies, of the technique where the story is not strictly chronological, but the narrative is shaped by flashbacks, which sharpen the understanding of the events as the chronology is resumed.
ARTICLE: ON EDITING, 60 S.D. L. REV. 1
We will do our best to continue keep you posted on Reptilian developments. In the meantime, please feel free to share any information or materials that you run across.

$55 Million Reptilian Verdict in Erin Andrews Peephole Video Trial

The Nashville jury in the Erin Andrews peephole trial has reached a verdict. The jury has reportedly awarded $55 million. Our recap of the trial leading up to closing arguments is here. After our trial recap post, we had the opportunity to watch the live stream of the closing arguments. What struck us was the Plaintiff’s lawyer’s Reptilian closing. We have previously written on the Reptile Strategy here, here, and here. In the Erin Andrews case, the Plaintiff’s closing argument repeatedly harped on safety rules, safety rule violations, and public endangerment, all of which are tenants of the Reptile Strategy. We also noticed that the damages discussion in the Plaintiff’s lawyer’s closing was reminiscent of the strategy taught in the popular Plaintiff’s lawyer strategy book, David Ball on Damages 3.  That strategy involves tying noneconomic damages to something concrete. Here, the Plaintiff’s lawyer reminded the jury that the video had been viewed 16.8 times over five years and that it would be viewed millions of times in the future. The Plaintiff’s lawyer asked the jury whether it was worth $1, $5, or some other amount every time a stranger was able to watch a video of Erin Andrews without clothes. Our takeaway: This is yet another cautionary tale as to the effectiveness of the Reptile Strategy and the need for defense lawyers to be prepared to defend against it. It will be interesting to see how much Erin Andrews is actually able to collect and whether the verdict will survive any appeal.

Recent Reptile Tactic Cases

Reptile Cases

We have previously discussed the popular Reptile litigation strategy utilized by the Plaintiff’s bar here and here, and we have even posed the question of whether defense lawyers can co-opt the Reptile strategy. Until recently, there was minimal case law on the Reptile. Motions in limine to exclude the Reptile were left unaddressed, and the courts were otherwise silent as to the Reptile. Recently, however, we have noticed an increasing number of Reptile-related rulings, from which we provide snip-its below:

  • The Court denied a motion to exclude Reptile tactics where the defendants “have again not identified the specific evidence that is sought to be excluded”; however, the Court noted that “any attempt by either party to appeal to the prejudice or sympathy of the jury will not be condoned.”  Hensley v. Methodist Healthcare Hosps., No. 13-2436-STA-CGC, 2015 WL 5076982, at *5 (W.D. Tenn. Aug. 27, 2015).
  • “BSC’s Motion to Preclude “Reptile” Litigation Tactics is DENIED.” Winebarger v. Boston Sci. Corp., No. 3:15CV211-RLV, 2015 WL 5567578, at *10 (W.D.N.C. Sept. 22, 2015).
  • Granting motion to “[p]reclude any attempt by plaintiff’s counsel to utilize the Reptile Strategy.” Glover v. State, No. 10-2-35124-8, 2015 WL 7355966 (Wash. Super. Ct. September 9, 2015).
  • Granting “[m]otion in limine regarding use of Reptile Theory Tactics, Golden Rule references, or other “safety rules.” Palmer v. Virginia Orthopaedic, P.C.,No. CL14000665-00, 2015 WL 5311575 (Va. Cir. Ct. June 19, 2015).
  • Motion to exclude Reptile Tactics denied, but “parties may not violate the ‘golden rule’ and have agreed to this.” Berryhill v. Daly, MD, No. STCV1102180SA, 2015 WL 5167586 (Ga. State Ct. May 8, 2015).
  • Motion to exclude Reptile denied after finding that “[a] general rule prohibiting Plaintiff from referring to rules or standards is not workable in that it could preclude Plaintiff from arguing at all about the standard of care and is denied. As stated above, the Court will, however, prohibit direct appeals that violate the Golden Rule.” Scheirman v. Picerno,No. 2012CV2561, 2015 WL 4993845 (Colo. Dist. Ct. April 16, 2015).
  • Denying “[m]otion to exclude use of ‘reptile strategy’ which includes evidence and argument by Plaintiffs referring to general physician “safety rules”, arguments asking jurors to place themselves in Plaintiffs’ position, or arguments that jury should “send a message” or otherwise punish Defendant.” Hutson v. Rooney, MD,No. 142045603, 2015 WL 3455867 (Wash. Super. Ct. April 14, 2015).
  • Trial court that was admittedly “handicapped because of its unfamiliarity with the Reptile Strategy” denied motion to exclude Reptile tactics. Pressey v. Children’s Hosp. Colorado, No. 2013CV72, 2015 WL 1583852 (Colo. Dist. Ct. March 15, 2015).
  • “Defendant’s Motion in Limine to Exclude the ‘Reptile’ should be and hereby is denied.” Upton v. Northwest Arkansas Hospitals, LLC, No. CV-2010-270-4, 2012 WL 12055084 (Ark. Cir. Ct. March 8, 2012).

So, it appears from the non-exhaustive list of Reptile-related opinions that Courts are virtually split on whether to keep out Reptile tactics on a motion in limine. Accordingly, lawyers on both sides of the “v” should be familiar with the strategy, as the Reptile practitioners apparently continue to obtain sizable verdicts:

Reptile verdicts

Can Defense Lawyers Co-Opt the Reptile Strategy?

As you know, we here at Abnormal Use sometimes contribute content to other publications, and this week is no exception. Our own Kyle White saw the publication of his “Can Defense Lawyers Co-Opt the Reptile Strategy?” piece in the most recent issue of DRI’s Strictly Speaking. Here’s the first two paragraphs:

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.

Strictly Speaking is the official newsletter of DRI’s Product Liability Committee. You can read the full article here. This longer work is a revisiting of Kyle’s earlier blog post on the topic, which you can find here.