If you had a litigated file tank on you recently, it just might be the result of reptile advocacy. While not a new theory, the practice has taken the plaintiff’s bar by storm in recent years, said T. David Higgins, a North Carolina-based managing partner with Cozen O’Connor.
Higgins moderated the session hosted by the American Bar Association’s annual Tort Trial & Insurance Practice Section’s Insurance Coverage Litigation Committee, during a mid-year meeting held in Phoenix this year.
The reptile theory was introduced in the 1960s by Paul D. MacLean, a brain scientist, Higgins said. According to MacLean, the human brain is divided into three parts: the limbic system where emotions arise, the cortex where intellect develops and the reptilian section which is considered the oldest part of the brain and where the survival instinct survives. The decades old theory was shaped for use in litigation by two men, David Ball, a North Carolina jury consultant and Don Keenan, a seasoned lawyer with hundreds of verdicts and settlements under his belt. The two authored a book, Reptile: The 2009 Manual of the Plaintiff’s Revolution, to educate lawyers on how to apply the theory at trial.
According to their website, www.reptilekeenanball.com, the two claim $6 billion worth of recoveries using this theory during settlements and trials.
It’s an aggressive strategy used by plaintiff lawyers to manipulate jurors by fostering fears that are broader than the case at issue.
Higgins said the theory relies on a juror’s desire for self-preservation. Jurors see themselves as guardians of community safety and that by awarding damages they will enhance safety and decrease danger.
While the theory has been disproven by the scientific community, it is effective and speaks to juror motivation.
Cases aren’t won by logic, rather the focus is on the conduct of the defendant and not on the plaintiffs’ injuries, he said. Lawyers using the reptile theory will engage jurors by demonstrating how the conduct of the defendant could affect them. If the defendant endangers the community, only a verdict for the plaintiff will deter safety actions. The formula, Higgins said, is a safety rule plus danger invokes a reptile response. Jurors’ gut reactions, based on the theory, is that by reducing danger the chance of survival increases.
Safety is paramount, he explained, not just for the plaintiff but for the entire community.
A safety rule in a reptile case:
- Must protect people;
- Be in clear English;
- Explicitly state what a person must or must not do;
- Should be easy to follow;
- Must be agreed with by defendant;
- If the defendant doesn’t agree with the safety rule than he or she is perceived as careless or stupid.
In order to protect the carrier from reptile advocacy, defense counsel needs to understand what it is in order to develop a strategy to combat it during litigation.
According to Barron Weinstein, a California-based policyholder lawyer and partner at Meredith, Weinstein & Numbers, LLP, it’s generally known that trial attorneys want to influence juries and it isn’t fair to look at the practice as evil.
Mark Worischeck, a Phoenix-based lawyer and president and managing shareholder at Sanders & Parks, P.C., recommended that defense counsel stay ahead of a lawyer using reptile tactics. He said a first encounter with this type of strategy will likely result in a report to the carrier on how bad an adjuster or expert did during a deposition. He noted that he was once blindsided by adjuster and expert depositions that fell apart unexpectedly, even though both were well-prepared. They were hooked with general safety rules. He explained that the strategy works because it confuses witnesses and results in detrimental admissions.
They posed an example of reptile voir dire in a hypothetical Florida sinkhole case where a house was found to have cracks, the carrier was alerted to the problem and sent an adjuster and engineer to visit the house prior to its collapse three weeks later.
Weinstein, an experienced complex insurance dispute litigator, offered questions he might pose to potential jurors during voir dire:
- How worried are you about dangers of sinkholes?
- Do you think insurers can put the community in danger, how?
- Have you or your family members experienced any financial effects resulting from your dealings with insurers?
He explained that he would be looking for jurors using words like protect, danger and risk.
Judge David Sims, of the First Judicial Circuit in West Virginia, said that “Voir dire is the most underutilized part of any trial.” He recommended using jury questionnaires as much as a judge will allow.
Plaintiff reptile voir dire is deliberate, Worischeck said. Tone, demeanor, eye contact and body language are examined by plaintiff counsel employing reptile advocacy. Plaintiff counsel will spend 50 percent of their time evaluating the jury and 50 percent indoctrinating them. He said voir dire is used to prime the jury with terminology and to remind them of the unreasonable risk. It’s focused on creating community panic.
He recommended defense counsel spend 80 percent of its time evaluating the jury and 20 percent indoctrinating them. He also recommended defense counsel identify juror experiences involving negative defendant interactions, experiences that lead to a view of plaintiff’s actions in a positive light. They should also consider eliminating jurors who won’t listen to the defendant side of facts.
Weinstein said that a typical reptile theory opening statement avoids sympathy, focuses on the safety rule and uses persuasion to emphasize that the violation of safety rule endangers the community. In essence, the case is arranged around a set of safety rules, he said.
Worischeck noted that the focus on a reptile case is on the conduct of the defendant and almost none on the plaintiff. To defeat a case like this, he recommended defense counsel use the first five minutes of an opening statement to tell a good story and limit the total time to 30 minutes. He also recommended that counsel refrain from introducing themselves or thanking the jury.
A reptile theory witness exam, according to Weinstein, works by:
- Confirming bias – have to agree to general safety rules.
- Anchoring bias – linking safety to danger.
- Creating cognitive dissonance – creating psychological distress.
- Revealing hypocrisy – forcing admission of fault.
Break the cadence, suggested Worischeck, who recommended taking the word “yes” out of a witness’ vocabulary. A witness needs to understand that a safety rule isn’t a standard of care.
“Distinguish between a fact question, hypothetical question and a safety question,” said Worischeck.
The answer should be dependent upon the circumstances, he said, adding that it will take at least three sessions to prepare witnesses. He explained that other acceptable answers to deposition questions include: “Not in every situation”; “Not always”; “Sometimes this is true, but not all of the time”; and “It can be in in certain situations.” Another answer utilized in bad faith cases is “We investigate claims so that we pay what is owed and not what we don’t owe.”
Higgins recommended that defense counsel utilize jury instructions, motions in limine and expose psychological manipulation back to jury.
A set of facts delivered the right way, good use of voir dire and extensive training of witnesses for depositions and trial are essential to combating the reptile theory, Worischeck said.
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