The Reptile Strategy and Expert Witnesses: How to Navigate this Courtroom Chameleon

There is a relatively new trial strategy being invoked throughout courtrooms that has plaintiff attorneys tapping into jury’s basic survival instincts. The “reptile” theory gained popularity after David Ball (a jury consultant and former theatrical director) and Don Keenan (a plaintiff attorney) published a book entitled, Reptile: the 2009 Manual of the Plaintiff’s Revolution, which sets forth a unique approach to influencing jurors. 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.

Lauded by some as a successful litigation strategy, the reptile theory should be carefully implemented when used by plaintiff attorneys, lest it backfires for its novelty and slight suspension of disbelief. 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.

How Does the Reptile Strategy Work?

To fully understand this strategy, it is critical to appreciate the science behind it. The idea of the “reptile mind” was first created by neuroscientist Paul MacLean’s “Triune Brain” theory. Consisting of three separate parts of the brain, this theory identifies the R-complex (“R” stands for reptilian) as the part of the brain that is identical in function to the brain of a reptile. The R-complex is the part of the brain that controls basic life function and primitive survival instincts. This is also the section that is activated when a person feels threatened or in danger. Therefore, the R-complex is not based in logic and reason, but the need to feel safe and secure.

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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.

How Can Plaintiff Attorneys Use the Reptile Strategy to Their Advantage?

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?

Hypothetical questions are also an effective way for an attorney to highlight general safety procedures using expert witnesses. For example, an expert in automobile accidents may be asked questions like: Is it important for drivers to keep their eyes on the roadway? What is the safest position of a driver’s hands on the steering wheel? In such instances, the jury is presented the safety information in a vacuum, influencing them to ignore specific facts or exceptions to the real-life circumstances that brought about the action.

While the reptile strategy was created for plaintiffs to succeed, it does not necessarily mean it is a foolproof means to victory. 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.

How Can Defense Attorneys Successfully Counter the Reptile Strategy?

Before the defense expert testifies, sometimes the best defense to the reptile strategy is a strong offense. Usually the earliest opportunity a defense attorney will have to combat the plaintiff’s expert is during voir dire. If it appears that the plaintiff attorney will try to appeal to the conscience of the community opposed to the specific facts of the case (which can oftentimes become apparent in plaintiff’s pre-trial motions and expert disclosures), the defense attorney should object accordingly. Testimony that grossly misrepresents the evidence to inflame the jury is also generally prohibited. Likewise, a plaintiff attorney who is a little too reliant on the reptile theory may not have properly vetted their expert, in which case, the defense may have an argument to exclude such testimony on the basis of lack of qualifications.

A defense expert’s cross-examination is the key to combating an overly zealous “reptilian plaintiff.” On cross-examination, it is likely that an expert for the defense will be questioned on general safety procedures, much like the plaintiff expert’s own direct examination. It may seem natural for a medical expert to respond in the affirmative to such questions as, Would you say a doctor has the duty to perform the safest surgery possible? However, these overly broad questions should act as an opportunity for the defense expert to testify to the real-life, practical challenges of any surgery and the fact that oftentimes, perfection is not guaranteed.

Defense attorneys should also use their cross-examinations to inject as much scientific and technical information as possible into the jury’s minds. While the reptile strategy avoids the specifics of the case, it is all the more reason for defense counsel to utilize the facts to their advantage. For example, a plaintiff expert in a medical malpractice action may only testify to the general standard of care and circularly conclude that the defendant did not meet such a standard. This gives the defense the opportunity to “fill in the blanks” of the plaintiff’s broad testimony, by either expanding on the standard of care (and the variety of deviations that may exist in real-world application) or by specifically applying the facts of the case to the defendant’s conduct to illustrate that no duty was breached. Overall, the defense should use the reptile strategy to highlight their expert’s own base of knowledge on the subject. So although a plaintiff might invoke the reptilian mind of a jury, a qualified and credible defense expert can trigger the more logical parts of their brain in an effort to even the playing field.