January 16, 2020 Articles

Avoiding the Snake Pit—Caging “Reptile” Tactics in Court

A Massachusetts appellate court became the first appellate court to address certain “reptile litigation” tactics in product liability litigation and to determine that they were improper.

By James M. Beck

Recently, a Massachusetts appellate court, in Fitzpatrick v. Wendy’s Old Fashioned Hamburgers, 2019 WL 5792847 (Mass. App. Ct. Nov. 7, 2019), became the first appellate court specifically to address certain “reptile litigation” tactics in product liability litigation and to determine that they were improper. The court held several reptilian techniques beyond the pale of acceptable argument:

  • Appeals “to the jurors’ emotions, passions, prejudices, or sympathies,” Fitzpatrick, 2019 WL 5792847, at *12.
  • “[A]sk[ing] the jurors to put themselves in the position of any person involved in the case,” id.
  • Use of “we” and “us” to “impermissibly integrate[] the jurors with the plaintiff,” id.
  • “[D]raw[ing] the jurors into the position of the plaintiff,” id.
  • “[I]nvok[ing] future possibilities of harm, or that the jury through their verdict could protect the community from such dangers,” id.
  • Arguing “that a defendants’ verdict would give the defendants a ‘pass’ or ‘reward’ them,” id.
  • Arguing that the jury’s function is to “enforce” the “safety rules” of “our community,” id. at *12 n.15.
  • Making claims that “safety rules were violated,” id. at *13.
  • “[I]magining a hypothetical future moment when [jurors] might think about their jury service and remember” how they “helped to make a wrong right.” Id.

Finding that the court’s order overturning the verdict applied the wrong standard, however, Fitzpatrick remanded for reconsideration of the grant of a new trial. Id. at *11.

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