The Reptile’s In Our Midst – Defending against the “Triune Brain” trial strategy

swordshield

As you’ve surely heard by now, the plaintiffs’ bar has come up with a can’t-miss-science-based trial strategy. Its creators boast that it has produced over $6.25 billion in jury verdicts and settlements in personal injury suits since 2009, including nearly $19.2 million in the past week alone. And they’ve given their strategy a name; it’s called: The “Reptile Theory.” While there are many who dispute its claimed scientific basis (hereherehere), defendants who’ve squared-off with the Reptile don’t doubt its effectiveness.

Hatching the Reptile

Atlanta attorney Don Keenan and jury consultant Robert Ball first introduced their brainchild to the world in “Reptile, The 2009 Manual Of The Plaintiff’s Revolution,” and now claim it “is revolutionizing the way the trial attorneys approach and win their cases.” They’ve since published a follow up book, “Reptile In The Mist,” and are hawking the theory via a website, DVDs and nationwide seminars. They say it’s based on 1960’s research into brain organization and function by psychiatrist and neuroscientist Paul MacLean.

TriuneBrainUpdate-8.9.2012Reptile’s authors claim that using MacLean’s “Triune Brain” theory, they’ve come up with a way to tap into jurors’ basic survival instincts to drive richer and richer personal injury verdicts and settlements. Dr. MacLean theorized that the human brain consists of three separate but competing complexes: the reptile, the early mammal, and the modern primate. 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 posited, “is filled with ancestral memories,” and “controls muscles, balance and automatic functions, such as breathing and heartbeat.” And according to Keenan and Ball, it’s not just individual survival that drives the “Reptilian” brain, but survival of the whole human race. What this means for the courtroom is that “[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.”

There is some debate whether the Reptile Theory operates on fear or anger. But either way, “[t]he theory shifts the jury’s thinking to a much broader concept of injury, beyond injury sustained by the plaintiff, to possible injury to the jurors themselves or the public.” Viewed from the plaintiff’s perspective the message sent to the jury goes something like this:  “See the horrible thing this terrible defendant did to the plaintiff? Well, you know what; it could have been you or someone in your family. And next time it just might. So the only way to keep you and your family safe is to hit the defendant with a huge damages award. This is what you must do to survive!”

For the theory to work, the plaintiff’s lawyer must lay the groundwork during the pre-trial discovery period. While questioning defense witnesses both at deposition and trial, Reptile 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.

Additionally, safety rules should be as broad as possible – and seemingly innocuous. For example, prior to trial in a products liability case, the defendant 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, what fair-minded person 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 agreed to “the safety rules” at deposition tries to retract, qualify, or explain a prior response when testifying in front of a jury, she will be portrayed, and may be perceived as dishonest, evasive, or uncaring. When the latter occurs, jurors are made to feel that any one of them could have been the victim of the “safety rule violation.” And once angry at the defendant, the jury is likely to lash out against it when returning its verdict.

Slaying the Reptile

Now, many defense lawyers see the theory as just a clever variation of the forbidden “Golden Rule” argument, i.e., inviting the jury to decide the case based on sympathy and emotion, rather than on the evidence presented at trial and the law as outlined by the judge. They may be on to something. After all, Reptile’s authors ostensibly confirm this view when they catalog the leading “Golden Rule” decision in each of the 50 states in Reptile’s Appendix B-1. But then again, unlike the traditional “Golden Rule” approach, the Reptile shifts the jury’s focus from the plaintiff’s injuries to the defendant’s conduct. Rather than engender sympathy for the injured plaintiff’s, the goal is to “make the jurors believe the worst about the defendant.”

In fending off the Reptile, a defendant’s strategy must include both the sword and the shield.

From an offensive perspective, consider first observations from the theory’s originators.  Reptile’s third chapter begins by arguing 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.” Defendants, they say, have successfully argued that 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. Consider weaving one or more of these themes into the defense case.

Next, don’t be afraid to tell and then show the jurors what really happened. By and large, jurors want to reach a fair and just result. It is for this reason critical that defense counsel develop facts in discovery by which it may supply the context missing from the plaintiff’s anger-engendering narrative. In this way, counsel may then provide the jury with a plausible and logical explanation about how these facts show that factors wholly apart from the defendant’s conduct or product characteristics lie at the heart of the matter. This should include, where the evidence permits, showing that the plaintiff’s knowledge level, decision-making process and actions or failures to act caused her injuries and damages.

Another arrow in the defense’s quiver just might be to expose the theory for what it really is – a manipulative tool. Think about showing the jury Reptile’s gaudy (tawdry?) website and read juicy quotes from the book itself. It just might work to gut the Reptile.

Much has been written on Reptile defense strategies – Google “reptile theory litigation” and you get over 45,000 hits. Much of the guidance offered centers around three primary themes.

First, most commentators agree that that thorough witness preparation is the critical first step. (See, e.g., here, here.)

Both company representatives and experts must be prepared to both recognize and effectively respond to reptile-type questions. On the latter score, this frequently includes counseling witnesses to abandon the unwritten deposition rule of giving only a “yes” or “no” answer whenever possible. To avoid being ensnared in the Reptile’s safety-rule trap, it often necessary for a witness to qualify or explain their answers and to do so up front during questioning by the plaintiff’s attorney, rather than waiting until defense counsel’s examination.

Witnesses should also be counseled against responding to hypothetical questions where possible, or to heavily qualify responses if responding to the question cannot be entirely avoided. Such questions tend to consist of woefully inadequate or misleading factual assumptions but generate a generalized response that can be spun in any number of ways, many of which can be simply unfair to the witness and the defendant.

And witnesses must be able to withstand the shaming tactics and affronts inherent in the Reptile approach. Through preparation and practice a witness must be conditioned to remain cool and calm in the face of the inevitable personal attacks on their competence and credibility and to maintain focus. This is particularly true where their testimony is being captured on video. Body language can speak volumes.

A second common recommendation – which could easily be included in offensive category – is for a defendant to develop a theme of its own. (here, here) It should be woven into witness testimony at deposition as well as trial, introduced to jurors during voir dire, developed during opening statement and serve as the glue that holds the closing argument together. This offers the defendant an opportunity to control, or at least influence how the case is communicated to the jury throughout the trial. And it arms the jury with an alternative framework for evaluating the case. Keep the message and the path to the conclusion the jury should reach as simple as possible. Express the theme clearly and in simple, everyday language. That is, do not burden the jury with legal, scientific or technical jargon; and if terms-of-art must be used, explain them in a way all can understand.

The third major theme for effectively defending against the theory is for the defendant to turn the jury’s focus back on the plaintiff whenever possible. Jurors tend to be inherently skeptical about a company’s methods and motives. They are not likely to take the company’s word for it when it describes itself as model corporate citizen. A defendant invites the plaintiff’s attorney to leverage jury skepticism when it focuses its defense case on itself, rather than on the plaintiff and the other factors underlying the events on trial. Plus, the plaintiff bears the burden to establish adequate grounds to hold the defendant liable. A defendant that makes the case about itself takes on the burden of having to prove the opposite negative proposition.

The Reptile Theory isn’t going away anytime soon. So think of it what you will, but don’t ignore it.

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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