It is remarkable, as one reads cases, to find a series of published ORDERS in which judges tell lawyers to keep the “reptile” theory out of the courtroom.
THIS MATTER having come before the Court on Defendant Ruta Obergfell, M.D.’s Motion in Limine #1 to Preclude Impermissible Use of the Reptile Theory, and the Court being fully advised in the premises,
IT IS HEREBY ORDERED that Defendant’s Motion is GRANTED.
The Plaintiffs and their counsel are hereby barred from arguing or soliciting testimony based on the REPTILE theory including, but not limited to, making arguments or soliciting evidence concerning “community safety or protection,” “public safety or protection,” “safety rules,” “sending a message, “needlessly endangering patients,” or “being guardians of the community.”
Hopper v. Ruta, 2013 Colo. Dist. LEXIS 249, *1 (Colo. Dist. Ct. 2013). See also, Pracht v. Saga Freight Logistics, LLC, 2015 U.S. Dist. LEXIS 149775, *4 (W.D.N.C. Oct. 30, 2015)(“ Defendants’ motion to prohibit any Golden Rule argument and/or Reptile Theory questions and argument is GRANTED.”).
A less successful attempt occurred more recently, but the ruling was based on a failure in pleading.
Defendants seek an order prohibiting Plaintiffs from offering testimony concerning violations of guidelines or safety rules or any other “scare tactics” in order to establish the standard of care. Defendants reference the “Reptile Theory,” which appears to be in use by the plaintiffs’ bar in some states as a way of showing the jury that the defendant’s conduct represents a danger to the survival of the jurors and their families. The Reptile Theory encourages plaintiffs to appeal to the passion, prejudice, and sentiment of the jury.
Defendants have again not identified the specific evidence that is sought to be excluded. The Court will be cognizant of appeals to the jurors’ prejudice, and any attempt by either party to appeal to the prejudice or sympathy of the jury will not be condoned. The motion is DENIED.
Hensley v. Methodist Healthcare Hosps., 2015 U.S. Dist. LEXIS 113565, *13-14, 2015 WL 5076982 (W.D. Tenn. Aug. 27, 2015).
What is Reptile Theory?
So, what is the theory and why are defense counsel challenging its use? As described by an opponent in court pleadings:
The “Reptile” strategy relies on the work of Yale Medical School and National [ Institute of Mental Health physician and neuroscientist Paul D. MacLean…Dr. MacClean theorized that the human brain consists of three separate, competing complexes, including: (1) the reptile; (2) the early mammal; and (3) the modem primate.
“Reptile” refers to the reptilian part of the brain that contains our survival mechanism. Authors Ball and Keenan urge plaintiffs to tap into jurors’ basic survival instincts to render higher personal injury verdicts.
…[T]his theory is based on the primitive human instinct to avoid danger; the Reptile brain will choose safety and survival. Ball and Keenan relying on two basic principles: (1) “[t]he Reptile is about community (and thus her own) safety,” and (2) “the courtroom is a safety arena.” …Reptile-trained attorneys attempt to tell the jury that “safety” is “the purpose of the civil justice system,” and “fair compensation can diminish . . . danger within the community.” Reptile tactics “give jurors [a] personal reason to want to see causation and dollar amount come out justly, because a defense verdict will further imperil them. Only a verdict your way can make them safer.”
PROFFITT v. ADVENTIST HEALTH SYSTEM/SUNBELT, 2015 FL Cir. Ct. Briefs LEXIS 138.
Does Reptile Theory Work?
Undergirding “reptile” theory is the premise that an appeal that generates anger and a perceived need to impose a corrective action – for the protection of the community – is more likely to win over jurors’ minds than an appeal to sympathy based on the plaintiff’s loss and resultant pain and suffering. Regardless of whether the biological science supports the theory, there is still a rational basis to the approach. As explained by one author:
The Reptile Theory works because it takes the emphasis off sympathy for the plaintiff and puts the focus on the failures of the defendant. And, importantly, it also works because it moves the emphasis from the individual to the community—jurors are not just protecting the safety of the individual plaintiff (again there is resistance to making one person rich), they are protecting the community’s safety, a much nobler motivation.
Greeley, A Brief Primer on the Reptile Theory of Trial Strategy: Plaintiff Psychology and the Defense Response (American Bar Association, Section of Litigation, Annual Conference 2015).
How to Combat Reptile Theory
The perceived efficacy of “reptile” theory questions and arguments has prompted not only legal challenges but the development of counter-strategies, starting with guidance on how witnesses should answer questions.
A company safety officer or a nurse is urged to answer the question of “safety is an important concern, isn’t it” not with a “yes” but a qualified statement such as ‘can you be more precise’ or ‘in what regard?’ See, e.g., Kanasky and Malphurs, “Derailing the Reptile Safety Rule Attack: A Neurocognitive Analysis and Solution (www.courtroomsciences.com). See also, Crawford and Johnson, “Outsmarting the Lizard: Strategies for Responding to Reptile Theory Questions, For The Defense (December, 2015).
One can reasonably question such a strategy, as it makes a witness look evasive in responding to an unremarkable proposition. So it may be that the stronger response to “reptiles” in the courtroom is the legal one – claims of irrelevance [as when safety arguments go beyond the accepted standard of care] or unfair prejudice [where the appeal becomes so emotional that it precludes rational analysis by the jury]. Or, with a thoughtful jury, the reptilian strategy can be laid bare in voir dire and the defense opening, and possibly in instructions from the court.
But the core concern of “reptiles” – safety – can easily be met within the parameters of the law. Consider the simple deposition questions of “do you have a protocol for this situation” and [once the protocol is detailed] “was it followed?” [Thanks to Attorney Tom Duffy for these inquiries.] If either one is answered “no,” the safety concern is paramount and the “reptile” jurors will respond.