Proponents of the “Reptile Theory” claim it has produced $6 billion in jury verdicts and settlements for plaintiff’s in personal injury litigation since 2009. They say it derives from research by neuroscientists into brain organization and function, taps into jurors’ basic survival instinct, and “is revolutionizing the way the trial attorneys approach and win their cases.” While many doubt its scientific basis (here) (here) (here), defendants who have encountered the theory in litigation do not dispute its effectiveness.
So how to combat the Reptile?
The theory’s originators may have provided an answer themselves. In “REPTILE, THE 2009 MANUAL OF THE PLAINTIFF’S REVOLUTION” authors Ball and Keenan begin Chapter 3 by asserting that “[u]ntil now, the Reptile has been tort-‘reform’s’ tool. The forces of tort-‘reform’ used the Reptile to terrify more than a third of the public by fraudulently portraying plaintiff’s lawyers as menace” in several ways.
The so-called theory operates on fear. Deployed from the plaintiff’s point of view, its basic message to the jury is: See the horrible thing the defendant did to this plaintiff? Well, you know what, it could have been you or someone in your family. The only way to keep you and your family safe is to find for this plaintiff and award a big verdict. This is the only way that you can protect yourself!
Now, most lawyers would call this a “Golden Rule” argument; i.e., that is, an invitation to the jury to decide the case based on sympathy and emotion and as the plaintiff would want it decided, as opposed to making a decision based on the evidence presented at trial and the law as outlined by the judge. Most, if not all states do not allow “Golden Rule” arguments. REPTILE’S authors acknowledge, at least tacitly, that the theory is, at the very least, a variation of the “Golden Rule” theme. Indeed, REPTILE’S Appendix B-1 catalogues the leading case holdings on the “Golden Rule” across the 50 states.
So if the plaintiff’s lawyer is to be allowed to “push the fear button,” maybe the one response for defendants is to do some of the same. And Ball and Keenan have conveniently provided a list of talking points: lawsuits undermine the quality and availability of healthcare for jurors and their families; lawsuits ruin the local economy, costing people jobs; lawsuits drive prices up on just about everything; lawsuits suppress product development and innovation; and lawsuits endanger religion because plaintiff’s lawyers used the money they make to fund liberal, statist politicians who appoint liberal, statist judges who make rulings contrary to religious traditions and beliefs.
As awareness of the theory continues to spread, so too will more and more effective way to combat it develop. If, as the saying goes, “forewarned is forearmed,” consider yourself armed.
Paul E. Wojcicki is a Senior Shareholder of Segal McCambridge Singer & Mahoney, Ltd. and an experienced trial and appellate attorney who has been defending companies in product liability and other personal injury litigation for over 25 years. Paul will be addressing the Reptile Theory as a panelist at the 8th Annual ACI Summit on Defending & Managing Automotive Product Liability Litigation being held in Chicago, June 3-4, 2015.