how about a reptilian attorney

Attorneys using reptilian theory use facts to provoke feelings of danger, then suggest ruling against the defendant as a way to eliminate the danger. If jury members feel like they are keeping themselves and their loved ones safe by holding a defendant accountable for dangerous or unsafe conditions, they are more likely to do so.

Full Answer

Are lawyers turning the courtroom into a reptilian battleground?

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.

What does a reptile attorney do in a criminal case?

The reptile attorney must establish with the witness that there was a “safety rule” in place to protect the community from the danger the particular defendant (s) posed, regardless of any codified or common-law rule. The reptile attorney will attempt to lead the defendant into an admission that a safety rule existed. [28]

What is the reptilian brain theory in criminal law?

The main purpose of the theory is to unlock the jury’s “reptilian brain,” that is, to trigger the primitive part of their mind opposed to using logic and applying the facts of the case to the law.

What is the reptile theory in law?

New York, N.Y. (August 19, 2021) - The “Reptile Theory” is a trial strategy that attempts to use fear and anger to make the jury dislike the defendant so strongly they will award a plaintiff a grossly excessive amount of damages.

What does reptile mean in law?

(August 19, 2021) - The “Reptile Theory” is a trial strategy that attempts to use fear and anger to make the jury dislike the defendant so strongly they will award a plaintiff a grossly excessive amount of damages.

How do you defend against a reptile theory?

One way to defend against Reptile is to meet it with a similar tactic: Reverse Reptile. Any Reference to Damages should be deferred to Counsel • “Sounds like a question for my lawyer…” Use simple, straightforward answers to show how the plaintiff (or co-defendant) was not safe and how they ignored the hazard.

What are reptile questions?

Reptile-theory questions are actually de- signed to allow a plaintiff's attorney to testify, with a defendant's witness simply an- swering “yes” in response to all of the ques- tions. A plaintiff's attorney wants to get into a rhythm and provoke “yes” answers to the easy questions to establish a pattern.

What are lizards defense mechanism?

Spikes And Spines Many lizards have sharp spikes or spines on their bodies to protect themselves from another animal attempting to eat them or do them harm. Used in a similar fashion as whipping their tail, the spikes are used to fight back against the predator.

How can lawyers go reptile?

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:

What is the goal of thinking with the reptilian part of the brain?

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.

Who published Reptile: The 2009 Manual of the Plaintiff's Revolution?

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 brain?

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.

Description

In this segment, Healthcare Matters interviews ALL MD attorney Troy Bundy on the “Reptilian Theory,” one of the hottest trends employed by the plaintiffs bar in medical liability lawsuits, and how a defense attorney can combat the plaintiff attorney’s strategy.

Transcript

Mike Matray: Hello and welcome to Healthcare Matters, where the medical and legal communities come together to discuss healthcare matters. I’m your host, Mike Matray and today’s guest is Troy Bundy. Mr.

What is reptile theory?

“Reptile theory” is the most recent incarnation of a trial strategy that seeks to make use of the primal, inherent and often subconscious instincts and/or fears of jurors. Don Keenan, a trial lawyer, and David Ball, a jury consultant with a theatre background, articulated their version of the theory for the plaintiffs’ bar in their ...

How is reptile theory put into action?

Reptile theory is put into action throughout the course of litigation, including in written discovery, depositions of parties, fact witnesses and experts, as well as during trial in voir dire and opening statement. [26]

Why do jurors shift from individual to community?

The emphasis shifts from the individual to the community, which gives the jurors the impression they are protecting the community’s safety, a more honorable stance than just protecting oneself. [20] The thought is that jurors’ survival instincts will override logic and reason in order to protect themselves, as well as their community.

What is the purpose of a reptile deposition?

[27] The reptile attorney must establish with the witness that there was a “safety rule” in place to protect the community from the danger the particular defendant (s) posed , regardless of any codified or common-law rule. The reptile attorney will attempt to lead the defendant into an admission that a safety rule existed. [28] They begin by asking a series of general safety and danger questions, ostensibly about general safety principles. Some examples include:

What is the function of the reptile brain?

[12] Its primary function is self-preservation. [13]

What is the goal of a jury trial strategy?

Ultimately, the goal of the strategy is to convince the jury to (1) go beyond the level of harm or damages actually caused; (2) consider the maximum potential harm the conduct could have caused within the community, rather than the actual harm caused; and (3) believe the defendant has endangered the community by its conduct and unwillingness to accept responsibility . [19]

Is the reptile theory alive?

While the idea of “Reptile Theory” is alive and well in the legal community , and it functions in other areas, including marketing/advertising and politics, MacLean’s Triune brain theory is no longer espoused by the majority of comparative neuroscientists. [14] It has been largely discredited as being inaccurate. [15]

Who is the scientist behind reptile theory?

The “science” behind Reptile Theory is the work of neuroscientist Paul MacLean. His hypothesis of a triune brain has been met with sharp criticism. [2] . Therefore, the Ball and Keenan’s explanation of the workings of the “reptile brain” should not be taken literally. [3] .

What is the reptile theory?

Reptile Theory. The “scientific” core of Reptile Theory is that it there is a latent, “reptile” portion of the human brain. It is fearful and bent on survival. [1] . It stays dormant most of the time, thanks to evolution and the relative safety afforded by human civilization.

What is the Golden Rule argument?

Golden Rule arguments are already well-known to judges. The court may be more receptive to motions in limine seeking to forbid any Golden Rule arguments, instead of banning “Reptile Theory” wholesale. The classic Golden Rule argument asks jurors to place themselves in the shoes of another person.

What is the goal of reptile tactics?

Ergo, the goal of Reptile tactics is to provoke these fears in jurors, and to make the defendant the object of that fear. To that end, plaintiff’s counsel will attempt to paint defendant as a menace to the community, or perhaps even a threat to the jurors themselves.

How does the reptile strategy work?

The Reptile strategy often works through subtlety and suggestion, and it begins as early as depositions . The main focus is on the defendant’s unsafe behavior, not the plaintiff’s injuries. [5] . Questions that focus on “safety rules,” as opposed to the standard of care, can be a sign that a Reptile strategy is at work.

Why was the defendant's motion denied?

The court acknowledged that the Reptile Theory encourages plaintiffs to appeal to the passion and prejudice of the jury. Id. However, the court denied Defendants’ motion, because it failed to identify specific evidence that was sought to be excluded. Id.

Why do jurors have to punish defendants who violate safety rules?

The jurors, as the defenders of community safety, must punish defendants who violate “safety rules,” in order to protect society and loved ones. The logical portion of the mind must be conscripted to act on behalf of the “reptile” portion’s desire for safety.

What should plaintiffs seek in reptile cases?

As a general rule in cases utilizing the reptile strategy, plaintiff attorneys should seek experts to testify to the “ big picture ” safety issues as often as possible, such as the common goal of maintaining safety, reducing risk, and avoiding danger, regardless of the particular field or topic. For example, in a medical malpractice action, the plaintiff’s medical expert may be asked questions such as: Do physicians need to abide by the applicable standard of care? Is it safe to deviate from that standard of care? When deciding the proper treatment of a patient, is a physician obligated to make the safest choice?

How does reptile theory work?

The main purpose of the theory is to unlock the jury’s “reptilian brain,” that is , to trigger the primitive part of their mind opposed to using logic and applying the facts of the case to the law. By encouraging jurors to put themselves in the plaintiff’s place, the strategy causes the jurors themselves to feel subjected to or threatened by the same harm that the plaintiffs allege they suffered from the defendants.

Why is reptile theory important?

It is important for plaintiff attorneys, first and foremost, to retain experts who are credible, reliable specialists in their respective fields. The main purpose of a plaintiff attorney utilizing the reptile theory is to invoke the jury’s sense of danger while also using an expert to provide the scientific or technical information needed to understand the facts.

What is the purpose of reptile theory?

The main purpose of a plaintiff attorney utilizing the reptile theory is to invoke the jury’s sense of danger while also using an expert to provide the scientific or technical information needed to understand the facts.

What is the purpose of Ball and Keenan's 2009 Manual of the Plaintiff's Revolution?

Ball and Keenan’s 2009 book, the 2009 Manual of the Plaintiff’s Revolution, argues that safety and security issues should be the focal point of a plaintiff’s case theory so as to trigger the jury’s reptilian mind. By influencing a jury to feel in danger by the defendant’s actions, it encourages the rendering of a favorable verdict to the plaintiffs. The reptile strategy can be utilized in a variety of cases, from automobile accidents to product liability claims, so long as the defendant’s conduct appears to be a threat to human safety.

What is reptile strategy?

The reptile strategy can be utilized in a variety of cases, from automobile accidents to product liability claims, so long as the defendant’s conduct appears to be a threat to human safety.

Why do defense attorneys need to be weary?

Likewise, defense attorneys need be weary when opposing counsel uses this type of approach , as it requires some sensitivity to the jury’s sense of safety. An understanding of how to properly use (and argue against) this theory is also pivotal to experts on both sides.

What is the reptile theory?

(August 19, 2021) - The “Reptile Theory” is a trial strategy that attempts to use fear and anger to make the jury dislike the defendant so strongly they will award a plaintiff a grossly excessive amount of damages. The plaintiff’s attorney will seek to activate the jurors’ “survival mode” instincts by presenting the defendant’s conduct as highly dangerous and worthy of punishment. The defendant’s conduct will be portrayed as a threat to the safety of the general public, and the award as a deterrent needed to protect the community at large. The Reptile Theory appeals to the jurors’ emotions in place of any rational, impartial evaluation of the evidence.

What is Scheirman v. Picerno?

2012CV2561, 2015 WL 4993845 (Colo. Dist. Ct. April 16, 2015) (motion to exclude Reptile tactics denied after finding that “ [a] general rule prohibiting Plaintiff from referring to rules or standards is not workable in that it could preclude Plaintiff from arguing at all about the standard of care and is denied. As stated above, the Court will, however, prohibit direct appeals that violate the Golden Rule”);

Can defense counsel combine the Golden Rule?

In the meantime, defense counsel can combine what law there is with the more general principles described above, and with case law on the “Golden Rule,” in support of a motion in limine at the trial stage. By this method, defense counsel can attempt to convince a judge at trial to exclude any questions and/or answers premised on Reptile Theory before it taints or inflames a jury.

Is there any legal authority on reptile theory?

The case law is somewhat undeveloped, without clear guidelines regarding what “Reptile” tactics are considered out of bounds. There is no statutory authority on Reptile Theory in particular (with the exception of a recently passed bill in the Texas legislature ), and the case law is scarce to the point that many states have no published opinions at all that specifically apply to it. However, the Reptile Theory does fall under the broader topic of inflammatory and unduly prejudicial trial tactics. Every state has case law on that topic, as do the federal courts. There is also a body of case law on the closely related “Golden Rule” tactic, when the plaintiff’s attorney asks the jurors to treat the plaintiff as they themselves would like to be treated.