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April 11, 2016 Articles

Swamp Things: Some Highlights and Lowlights of the Reptile Theory

The old axiom "litigation is preparation" has never been more true.

By Theresa W. Parrish

The so-called reptile theory, with its underpinnings regarding the primitive brain and various fear factors, fundamentally shifts the emphasis in lawsuits away from sympathy for an individual or class-action plaintiff and toward anger and punishment for a wrongdoer in order to vindicate the safety or similar interests of the community of which trial jurors are members. In so doing, it encourages counsel to develop broad themes from the very beginning of a case and to use them effectively throughout depositions and trial.

The theory has been highly effective, according to its creators David Ball and Don Keenan, whose website features a running total and a weekly tally of the dollar amount of verdicts and settlements reported by its users—more than $6.3 billion so far and more than $28 million in a recent week. Several authors have analyzed what makes it attractive and effective, and there are plenty of reports and articles online for those who want to learn more about it. Buying into the science behind the theory is not even necessary to invoke the best parts in order to use them affirmatively or defensively.

Ann T. Greeley, who presented on the topic at last year’s Section of Litigation Annual Conference (fittingly held in New Orleans, Louisiana, with swamps nearby), noted it has exposed some common misperceptions about the thought processes of jurors. The reliance on invoking sympathy from jurors with graphic presentations of the suffering of a plaintiff or family of a victim has been shown to backfire and actually lead to skeptical scrutiny. Asking jurors for a large damage award has been perceived as giving away money and only making individuals (and their lawyers) wealthy. In shifting the emphasis, proponents of the theory focus on the community’s interests in protection and punishment—protecting others from the same injury (physical or emotional) suffered by a plaintiff, and punishing the defendant. Although use of the theory has been increasing in frequency in trucking accident and medical device or malpractice cases and product liability cases, its applications can easily be broadened to many tort or contract claims.

Attempts to make any corporate defendants in particular seem more “human” and appealing through the telling of a “good company story” about all the people employed or their great products or services have been shown to be relatively ineffective as part of a defense against the theory, according to Greeley. Apparently, “companies are not people in the eyes of most jurors and will never be seen as made up of human beings who are just like the people on the jury,” she said. Negative predispositions about companies and attractions to the position of the underdog skew the picture. When coupled with the common perception that a trial would not be going forward unless a defendant had done something wrong, the courtroom playing field sometimes does not appear very level.

Because jurors want to care about how to make the decision as to who was in the wrong in a disagreement between the parties, providing alternative sensible explanations for what happened is important. Despite all the preliminary instructions and warnings to not decide a case before all the evidence is in, jurors still will respond to what they are seeing and hearing and will reach a point where they tend to know what decision they want to reach, after which they start collecting support for that decision. This is the principle of motivated reasoning, and successful users of the reptile theory focus heavily on it. Attorneys using the theory reach out for what will make jurors care about their verdict, and tap into that motivation with the telling of a consistent story. The development of the story begins in the deposition stage of a case, moves through voir dire and opening statement at trial, and culminates with the trial testimony of the parties, after which it all comes together in closing argument.

Bill Kanasky, Jr. and Ryan A. Malphurs have written about specific tactics from the defense side to repel the reptile theory. Fully developed deposition testimony of the witnesses is a critical component, and extensive preparation is a must, especially since a party’s prior testimony, particularly when recorded on videotape, can be used effectively at trial both affirmatively and for impeachment. While the theory focuses on committing a defendant to basic concepts involving the value of safety and the avoidance of danger, the antidote is making sure a defendant’s witnesses avoid commitment and look at answering questions from a viewpoint of “it depends” while being prepared to explain why that is. A witness must be able to carefully and sincerely expand on the “it depends” answer. This tactic requires early and thorough preparation by the attorneys in anticipating specific lines of questioning and having responses ready, which has to be followed by intensive preparation of witnesses. Those with the most at stake in a case—a doctor in a medical malpractice case or a high-ranking company official in a trucking or products-liability case—may feel this is an imposition on their time but should be persuaded that the investment on their part is crucial.

Kanasky and Malphurs explain that the intensive preparation involves “cognitive and communicative restructuring.” They warn that when plaintiff’s counsel asks questions seeking a defendant’s agreement that “safety (or protection from harm) is always a top priority” or “danger (at home, at work, in the hospital or on the roads) is never appropriate” the witness should avoid being lured into the trap. Instead, they say the “only honest answer to a vague, general question is a vague, general answer,” such as “it depends on the circumstances,” or “sometimes that is true, but not always.” Of course, the witness then has to be ready to explain why the general statement cannot be accepted, in order to avoid being committed to an agreement to a basic safety rule which creates a clear contradiction between the rule and the actions of the defendant.

Kanasky has expanded on these concepts and their application. He advises that a defense attorney can “defeat a reptile attack in three ways: defusing a plaintiff’s attorney’s voir dire priming of the jury panel, delivering a more effective opening statement, and preparing defense witnesses differently.” He notes that at trial, “during the ‘opening’ of an opening statement, meaning the first three minutes, jurors form a working hypothesis that affects how they interpret the rest of the information presented to them.” He advises attorneys to seize the opportunity by “flash-forwarding immediately to [plaintiff’s] culpability, alternative causation, or both.” This can be done through effective use of the deposition testimony.

There are plenty of resources available regarding these techniques. Savvy attorneys on either the plaintiff or defendant side will become the masters of storytelling, words, and themes if they study the theory and methods for repelling it. The old axiom “litigation is preparation” has never been more true.

Copyright © 2016, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).