Reptile Theory: Lipstick on a lizard

Lipstick
Is the “Reptile Theory” now slithering through civil trial courts across the U.S. truly a product of science or something else? Its critics view it as lipstick on a lizard. Its creators promote it as a can’t miss scientifically based trial strategy for obtaining huge jury awards and settlements in civil litigation. Think of it what you will, but if you are likely to ever be a defendant in a civil trial, don’t ignore it.

The plaintiffs’ attorney and jury consultant hawking the reptile strategy in books, DVDs, and seminars claim that it derives from the “Triune Brain” theory first espoused in the 1960’s by Paul MacLean, a psychiatrist and neuroscientist. He theorized that the human brain consists of three separate but competing complexes: the reptile, the early mammal, and the modern primate. According to MacLean, the three complexes represent three distinct stages of brain evolution and function like “three interconnected biological computers, [each] with its own special intelligence, its own subjectivity, its own sense of time and space and its own memory.” The primitive or “reptile” brain, MacLean hypothesized, “is filled with ancestral memories,” and controls muscles, balance, automatic functions, such as breathing and heartbeat.”

Keying on MacLean’s description of the primitive brain’s role, the Reptile Theory’s authors boldly assert hat it houses the human survival instinct. And it is not just survival of the individual that drives the “Reptilian” brain, but survival of the species. In the courtroom, this means, “[w]hen the Reptile sees a survival danger, even a small one, she protects her genes by impelling the juror to protect himself and the community.” In other words, the theory holds that if you want a large recovery for your client, push the jurors’ fear button. Or is it the anger button?

Leading up to the trial, the theory instructs plaintiffs’ lawyers to:

1. Establish your general safety rules;
2. Relate general safety-rules to specific safety-rules;
3. Show the violation of a safety rule could hurt anyone; i.e., someone other than the plaintiff; i.e., you [the juror];
4. Emphasize safety first, safety last, safety always
5. Establish that the defendant did not care about safety to start with;
6. Establish that the defendant did not care about the person he hurt and does not care now;
7. Establish that the defendant did not learn a lesson from the injury event;
8. Establish that the defendant did not know how to do the job safely;
9. Make the defendant out to be a liar;
10. Show that the defendant did not do his job, and
11. Show that plaintiff did her job.

Safety rules should be as broad as possible – and seemingly innocuous. For example, prior to trial a car-maker’s representative should be made to agree that her company: should never needlessly endanger the public; is never allowed to ignore or hide a danger; is never allowed to fake safety tests, and must always prioritize safety over profits. Viewed in a vacuum, who can argue with any of these “rules”? But lawsuits don’t arise in a vacuum and generalized statements rarely may be categorically applied to a discrete set of facts. So when that corporate representative who previously agreed to the rules tries to retract, qualify, or explain a prior response when testifying in front of a jury, she may be portrayed or perceived as dishonest, evasive, or uncaring. If this happens, and the jurors are made to see that any one of them could have been the one injured by the “safety rule violation,” the jury is likely to become angry with the defendant and lash out when returning its verdict.

While the theory’s scientific validity may be questionable (here) (here), its impact on litigation results cannot be ignored.

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.

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