The Reptile Theory—by name—is well over ten years old and was popularized by Atlanta-based plaintiff’s lawyer Don Keenan, and jury consultant David Ball, Ph.D. in their well-known book Reptile: the 2009 Manual of the Plaintiff’s Revolution. The book is based, in part, on research from neurophysiologist Paul D. MacLean dating back to the 1950s describing three parts of the human brain: Neo-mammalian brain (language/logic), Paleomammalian brain (emotion), and Reptilian brain (survival/fight/flight). Ball and Keenan argue that if a plaintiff’s counsel activates a juror’s Reptile brain triggering personal fear and personal protection instinct, the juror is likely to award higher damages to a plaintiff to protect the juror from potential future harm. According to Ball and Keenan, this is done by establishing a safety rule, establishing the defendant’s violation of the safety rule, and suggesting the defendant’s violation of the safety rule also puts the juror at risk for future harm.
Plaintiff’s counsel leveraging Reptile tactics focuses on:
- Angering the jury/generating emotion,
- The defendant’s bad acts or omissions, rather than sympathy for the plaintiff,
- Replacing the reasonable person standard with an “ensure safety” standard, and,
- Pushing a theme that a damages award will increase safety and decrease danger.
The science behind the Reptilian brain theory has largely been debunked. The belief in the Reptilian brain theory “although widely shared and stated as fact in psychology textbooks, lacks any foundation in evolutionary biology,” Joseph Cesario, David J. Johnson, and Heather L. Eisten, “Your Brain Is Not an Onion With a Tiny Reptile Inside,” Current Directions in Psychological Science, May 2020. Nevertheless, the tactics described by Ball and Keenan have been effective for the plaintiff’s counsel across the country.
Psychological Concepts
Although the “Reptile Brain” science has been debunked, plaintiff lawyer Reptile strategies utilize the following psychological and neuro-physiological concepts:
- Threats. The human brain evolved to focus on threats. We are genetically wired for negativity.
- Safety. The famous psychologist Abraham Maslow developed his eponymous Maslow’s Hierarchy of needs describing what motivates humans. Maslow’s hierarchy described human motivation in terms of a person’s fulfillment of five needs: physiological, safety, social, esteem, and self-actualization.
- Priming. Exposure to one stimulus influences our response to another. For example, if a person is repeatedly asked to think about the color yellow and is later asked to name a fruit, the person is more likely to say “banana” than “apple”. In vor dire, the plaintiff’s counsel exposes jurors to concepts like danger, safety, and risk—carrying those concepts through trial. Jurors will more likely evaluate the defendant’s actions with a “safety first” lens.
- Primacy and recency. The first thing the jury hears tends to have the highest recall. The last thing the jury hears has the next highest recall. With some exceptions, things in the middle become a blur. Plaintiff’s counsel leveraged this principle by putting their themes in front of the jury at the earliest opportunity.
- Simplicity. The human brain is constantly organizing information and seeking ways to understand vast amounts of information. We use heuristics or mental shortcuts to help us manage information. Often heuristics involve cognitive biases–systematic patterns of deviation from the norm and/or rationality in judgment. Examples include confirmation bias and hindsight bias. The more efficient the case and the narrower the focus, the easier it is for the jury to absorb. Plaintiff’s counsel using Reptile tactics have a laser focus on safety and danger. The object is to present the case such that a juror can articulate the entire case in a single sentence in deliberations. If you can’t explain your case with an 8-count box of crayons on one sheet of paper, you need to go back to the drawing board.
- Feelings. Far more of our brain is dedicated to emotion than to logical/rational processes. Emotional thought often hijacks rational thought. And, emotions are an integral part of attention, learning, and memory. Plaintiff’s counsel generates emotion and tells the jurors what they should care about: safety, danger, protecting their family and the community. That emotion often overrides a dry, fact-based, defense.
Application of Reptile Tactics
From the early stages of discovery, through trial, the plaintiff’s counsel establishes:
- The existence of a safety rule,
- The rule exists to protect/avoid a known danger to the plaintiff and community,
- The defendant had control over following or not following the rule, and
- The defendant broke the rule.
General Safety Rule Questions
- Safety is your top priority, correct?
- You have an obligation to ensure safety, correct?
- You have a duty to put safety first, correct?
General Danger Questions
- It would be wrong to needlessly endanger someone, correct?
- It would be wrong to expose someone to unnecessary risk, correct?
- Is it fair to say that you always have a duty to decrease risk?
Medical Malpractice Examples
Safety
- “If a patient’s status changes, the safest thing to do is ______________, right?”
- “If a patient is having chest pain and shortness of breath, the safest thing to do is _____________, correct?”
Danger
- “You’d agree with me that when ____________, the patient is in immediate danger, correct?”
- “You’d agree with me that a physician should review test results immediately, because any delay would put the patient at risk, right?”
Trucking Examples
Safety
- “You must follow the federal motor carrier safety regulations to ensure safety, correct?”
- “You’d agree that if someone violates federal motor carrier safety regulations and causes an accident, then the person should be held responsible, correct?”
Danger
- “Truck drivers must maintain daily log books to ensure other drivers are not put in danger, right?”
- “You’d agree that when a driver exceeds the speed limit, other drivers are put in danger, right?”
- “A driver who places others in danger should be held responsible, right?”
Products Examples
Safety
- “Manufacturers must make products that are safe and free from defects, correct?”
- “Product dealers must follow the product manufacturer’s policies when selling, servicing, or repairing a product to ensure safety, correct?”
Danger
- “You’d agree with me that a mislabeled product puts the end-user in danger, correct?”
- “Defects in the manufacturing process should trigger an immediate recall of a product, because any delay puts the end-user in danger, right?”
Reptile Theory in Vor Dire
In vor dire, the plaintiff’s counsel primes the jury with danger and safety rule themes:
- Does anyone disagree that safety is a top priority?
- Does anyone disagree that some companies put profit over safety?
- Does anyone disagree that the community deserves safe _________?
Defense Strategies
- Provide an alternate version of who was in control and who had knowledge.
- Focus on what the plaintiff did, or did not, do.
- Focus on what other defendants, or non-parties, did, or did not, do. Give jurors someone else to blame. (Empty chair defense)
- Read discovery requests carefully to spot Reptile safety rules, and danger questions. Objections to paper discovery:
- The Request is objectionable because it attempts to lower the plaintiff’s burden of proof, and it seeks to establish a duty contrary to law.
- This Request seeks to employ the so-called Reptile Theory. See generally, Ball and Keenan,Reptile: The 2009 Manual of the Plaintiff’s Revolution at pp. 66-68. This trial tactic is designed to develop a veiled Golden Rule argument. The tactic starts with a simple formula: “Safety Rule + Danger = Reptile.” See Ball and Keenan, Reptile: The 2009 Manual of the Plaintiff’s Revolution, p. 51. The Reptile Theory teaches the plaintiff’s counsel to create absolute “safety rules” and to argue a defendant violated the rules, thus subjecting the community, and the jury, to unnecessary danger or exposure to future potential harm. An attorney utilizing The Reptile Theory develops a set of “safety rules” while ignoring the actual legal duty established via common law or statutory authority. The theory improperly attempts to demonstrate how the defendant’s conduct threatens community safety. For example, the reference to ___________________ is an attempt to demonstrate some threat to the general public. A lawyer leveraging this tactic tries to demonstrate every type of negligent conduct violates some basic safety rule. The goal is to convince jurors a safety rule has been broken to awaken the survival instincts of the reptilian brain so jurors will award damages to protect their families and the community from danger through their verdict. Such tactics are improperly veiled Golden Rule arguments.
- The Request improperly implies that the defendant should have done everything possible to prevent __________. However, an “everything possible” standard is inapposite to the law.
- The defendant objects to this Request to the extent it improperly assumes the defendant did not ensure ____________.
- The defendant also objects to this Request because it seeks an admission about the safety of, and duty to, others in the community/other motorists/other patients/other end-product users. Other ________ are outside the scope of discovery. The Complaint only asserts claims for ___________. So, any discovery requests concerning other ________, is a veiled attempt at priming a jury on community standards, potential future harm to the community, and an otherwise objectionable attempt to utilize the so-called Reptile Theory and Golden Rule argument.
- Deposition Preparation is Key.
- Safety rules are almost never simple or absolute.
- The defendant’s conduct was reasonable.
- Many Reptile deposition questions require the application of a number of unknown facts to unknown or uncertain legal principles.
- Responses to safety/danger questions:
- In many cases, yes…..
- Safety is one priority.
- Sometimes ______is true but not here.
- It depends on _______.
- Motions in Limine preventing arguments on:
- Golden Rule.
- Future Harm.
- Safety of the Community.
- Vor Dire
- Does anyone believe the law requires perfection?
- Does anyone believe someone should always be held accountable when an accident happens?
- Does anyone believe that just because we are here in court that the defendant is at fault?
- Reported Decisions
- There are very few reported decisions on the Reptile Theory.
- Leverage Golden Rule decisions.
Conclusion
Although the Reptile Brain theory is not supported by science, tactics associated with the Reptile Theory are effective nonetheless. Defense counsel must remain vigilant throughout the discovery process for Reptile tactics. Defense counsel should directly address the Reptile Theory and Golden Rule through discovery objections and objections at depositions. Defense counsel absolutely must prepare every defendant for Reptile questions at a deposition, and conduct mock depositions aimed at helping the defendant respond to Reptile questions. If the plaintiff’s counsel utilizes Reptile tactics in discovery, the plaintiff’s counsel likely will utilize the same tactics at trial. Motions in Limine and a simple and focused counter-theory of liability and damages is essential at the trial stage to combat Reptile tactics.
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