I’ve previously written here about the Reptile litigation strategy, and here about how to prepare a witness for a Reptile deposition. In this post, I want to explore how to challenge the Reptile strategy using legal principles. Credit for explaining these strategies goes to Columbia, South Carolina lawyer David Marshall, who wrote about the Reptile strategy in the April, 2013 issue of For the Defense.

According to Marshall, “Every jurisdiction recognizes some version of the golden rule, which disallows any argument asking jurors to put themselves in the shoes of a party.” Id. at 68. The prohibition is premised on a view that such arguments are designed to destroy juror impartiality and encourage jurors to decide a case based on personal interest and bias.

Marshall refers to Reptile as a “veiled” golden rule argument “because it seeks to have jurors decide a case not on the actual damages sustained by the plaintiff but rather on the potential harms and losses that could have occurred within the community, which includes each juror and his or her family members.” Id. 

Marshall also points out that an outsized punitive damage verdict that results from jurors punishing a defendant for potential infliction of hypothetical damages, beyond what the plaintiff actually suffered, is vulnerable on due process grounds. The Reptile strategy attempts to appeal to survival instincts and a juror’s innate urge to protect her community. Marshall writes that “the Due Process Clause specifically prohibits punitive damage awards based on potential injuries that could have been inflicted on other members of the community.” Id. (emphasis in original).

Another avenue Marshall discusses involves the prohibition, in most jurisdictions, of “other similar incidents” evidence. Again, the Reptile is concerned, not only with what did occur in the case at hand, but what hypothetically could have occurred based on the defendant’s blameworthy safety practices. There is little difference, in terms of evidentiary value and risk of prejudice, between an “other similar incident” and a hypothetical similar incident that could have occurred (but fortuitously didn’t).

Marshall points also to an argument available in certain jurisdictions barring a lawyer in closing argument from urging the jury to “send a message” to the defendant, or to “act as the conscience of the community.” Id. at 74. Since this is exactly what the Reptile strategy is based on, there may be  a basis for exclusion/preclusion of Reptile tactics on this basis, as well.

Finally, Marshall suggests that, if efforts to exclude or limit Reptilian trial tactics are unsuccessful, it may be possible to dilute the effectiveness of the Reptile strategy by explaining it to the jury. Marshall suggests it may even be appropriate to “compliment the plaintiff’s attorney in . . . closing and praise his or her ability and zeal” (Id.), using this as an opportunity to explain the psychology of the Reptile strategy and why they should not get too carried away by it.

See, there’s more than one way to skin a . . . er . . . lizard.

In my last post, I attempted to describe what has come to be known as the Reptile technique of discovery and trial presentation, as advocated in the book, Reptile: the 2009 Manual of the Plaintiff’s Revolution. Again, the goal with this technique is to invoke the reptilian brain of jurors, which thrives on evolution, and therefore maximizes “survival advantages” and minimizes “survival dangers.”

As Reptile becomes more common, it falls to us to ensure that our lay and expert witnesses are adequately prepared to deal with the technique during deposition. To better understand what your witness will be up against, here is an example of a Reptile examination of a medical expert concerning a doctor’s care:

“Q: Physicians are not allowed to needlessly endanger patients?

A: Correct.

Q: That’s the standard of care?

A: Yes.

Q: When diagnosing or treating, do doctors make choices?

A: Yes.

Q: Often, several available choices can achieve the same benefit?

A: Yes.

Q: Sometimes, some of those are more dangerous than others?

A: Yes.

Q: So you have to avoid selecting one of those more dangerous ones?

A: Correct.

Q: Because that’s what a prudent doctor would do?

A: Yes.

Q: Because when the benefit is the same, the extra danger is not allowed?

A: Yes.

Q: The standard of care should not allow extra danger unless it might work better or increase the odds of success?

A: Yes.

Q: So needless extra danger violates the standard of care?

A: Yes.

Q: And there’s no such thing as a standard of care that allows you to needlessly endanger a patient?

A: Yes.”

Imagine your client is a doctor. He/she treats a patient suffering from an ailment for which multiple treatment options are available. At least when I was in law school, we learned that a doctor is held to the standard of care that a similarly qualified practitioner would have performed under the same or similar circumstances. Yet, it is difficult to take issue with the “umbrella rule” that “A doctor is not allowed to needlessly endanger patients.” No one should be allowed to “needlessly endanger” anyone, right?

The rub here is the word “needlessly.” Sure, if there is a 100% fail-safe, side-effect-and-risk-free treatment option, then the choice for the doctor should be simple. In the real world, however, nothing is “risk-free.” Every treatment has risks and benefits which must be weighed and evaluated. And the jury must understand this. Practicing medicine is not a game of darts. The problem with the above set of questions, however, is that they (purposely) leave no room for the crucial weighing of risks and benefits. The Reptile strategy works best when jurors sense at a primitive level that the defendant doctor is out there, on the loose, preying upon unsuspecting patients, and the only way to stop him is by returning a monster jury verdict.†

The challenge for your witness, then, will be to ensure that she does not get boxed in by questions that leave out the weighing of risks and benefits. Remember I generally take an “activist” role in defending depositions, which means I will do everything within my (albeit limited) power to prevent my witness from being bullied into answering an unfair question. Thus, to a question like, “Physicians are not allowed to needlessly endanger patients?” I would object that this question is vague, ambiguous, unintelligible, overly broad and presents a hopelessly incomplete hypothetical. I would challenge the examiner to be more specific about what he/she means by “needlessly” and “endanger.” I would hope that, even if the examiner ignores my invitation to re-frame the question (as I expect she will), the judge will later agree that, in the real world of ailments and treatment options–and assuming the doctor did not perform surgery drunk–the phrase “needlessly endanger” is functionally meaningless.

Let’s assume, however, that the examiner ignores my objections and the court overrules them. The witness needs to be prepared to deal with this kind of question. And I believe she can learn, with practice, not to get boxed-in by questions that are frankly absurd. First, as I noted in my objection, the question is vague, ambiguous and unintelligible. The deponent should refuse to answer any question until she feels the meaning is crystal clear. I submit that “needlessly endanger” is far from crystal clear. If the examiner steadfastly refuses to break down or define what she means by “needlessly,” then the deponent should re-frame the question in her answer in a way that makes it reasonable. I’m no doctor–I don’t even play one on TV–but I believe the following answer beats “correct” any day:

“Q: Physicians are not allowed to needlessly endanger patients?

A: Correct. If you mean in prescribing treatment or medication, must a doctor consider and balance the risks and benefits of all treatment options available and known to him, I would agree with that. Otherwise, I don’t understand your question.”

Your witness must refuse to be drawn into empty over-generalizations. She needs to be prepared to endlessly reframe unfair questions, lest she will commit herself to enormous, sweeping “rules” or standards which have no real relevance or application to the concrete facts of the case. This actually holds true in any kind of deposition. The only difference with Reptile is that the questions will be cunningly tailored to prey upon jurors’ unconscious fears that doctors like your client are out there “needlessly endangering” patients like the juror and his/her family, and must be stopped. If your client did not “needlessly endanger” the plaintiff, but simply prescribed one among many accepted treatments, then the jury must–absolutely must–understand the balancing of risks and benefits that physicians undertake every time they prescribe a treatment. They can still conclude the doctor breached the applicable standard of care, but they should only do so based on an informed application of the appropriate standard to the specific facts.

†Let me say here that, while my practice does not include suing doctors for alleged malpractice, I do not have a built-in bias against plaintiffs or their lawyers.

For many, the words “lawyer” and “reptile” are probably synonymous. Since 2009, however, some lawyers have sought to transform the courtroom into a reptilian battleground.

That year, attorney Don Keenan and jury consultant David Ball published a book on trial strategy called Reptile: The 2009 Manual of the Plaintiff’s Revolution. I’m not sure how “revolutionary” it has really been, but the theory and the book have indeed received some attention, if only because the practice clarifies something clever (and successful) plaintiff lawyers have implicitly understood for decades.

What is the “reptile” theory? It is built upon research performed in the 1960s by neurologist Paul MacLean, who posited a theory that the brain is comprised of three parts: the reptilian complex, the paleomammalian complex and the neomammalian complex. The reptilian complex includes the brain stem and the cerebellum, the oldest part of the brain, which thrives on survival. The reptilian brain maximizes “survival advantages” and attempts to minimize “survival danger.” Id. at 17.

As applied to trial strategy, the theory attempts to capitalize on the need of the reptilian brain to avoid “survival dangers.” As Keenan and Ball write, “When the Reptile sees a survival danger, even a small one, she protects her genes by impelling the juror to protect himself and the community.” Id. 

How does the theory work? The goal, through witness examination and closing argument, is to capitalize on jurors’ innate need to minimize survival dangers. In other words, the evidence and argument must convince a juror, not only that the defendant acted negligently, but also that, such conduct threatens the juror’s community (beyond the single plaintiff), which could include the juror and his/her family. Further, jurors must be made to feel empowered, by virtue of their verdict, to prevent this conduct, thereby protecting the community.

The goal in getting jurors to think with the reptilian part of their brains appears to be (1) to obtain a winning verdict even when logic or emotion might cause jurors to find against the plaintiff’; and (2) to maximize the size of the verdict, by encouraging jurors to think beyond the risk or the harm suffered by the individual plaintiff, to the safety of the broader community.

Coupled with the principles from the book Rules of the Road (about which I previously wrote here and here), lawyers can go reptile by invoking or establishing broad “safety rules” which the defendant violated, but which would have avoided the harm if they had been followed. Keenan and Ball offer six characteristics that each safety rule must possess in order to trigger jurors’ reptilian brains:

• The rule must prevent danger;
• The rule must protect people in a wide variety of situations, not just the plaintiff;
• The rule must be in clear English;
• The rule must explicitly state what a person must or must not do;
• The rule must be practical and easy for someone in the defendant’s position to have followed; and
• The rule must be one that the defendant will either agree with or seem stupid, careless or dishonest. Id. at 52-53.

Some examples? Keenan and Ball begin with the broadest possible “umbrella rule.” Id. at 55. Think: “A [_____________] is not allowed to needlessly endanger the public.” Fill in the blank: doctor, car maker, construction scaffolding supplier, etc. You get the idea.

Next, the authors advocate eliciting admissions, from the defendant and/or its experts, to gradually narrower, more case-specific, safety rules. From the undeniable umbrella rule that “A doctor is not allowed to needlessly endanger the public,” for example, the case-specific rule is “If a cardiologist has a choice between two treatment alternatives, he/she is negligent unless he/she elects the absolute safest choice.” After all, if a doctor picks any alternative that is not the absolute safest, he/she is needlessly endangering the public, right?

As I say, I don’t think the Reptile approach is all that revolutionary. I remember encountering lawyers long before 2009 using a very similar approach and it made a lot of sense to me, even without any tie to neuroscience. In my next post, I will discuss how to prepare a witness for a reptile deposition.