Nuclear verdicts… a term that is becoming all too common among personal injury defense practitioners related to verdicts like the 25-million-dollar verdict out of Philadelphia in September. While these verdicts can be case-specific, some tactics appear to contribute to some of these large verdicts. For those attorneys who litigate personal injury cases, it will come as no surprise that the Reptile Theory is becoming a more popular strategy among Plaintiff attorneys when litigating personal injury cases. The Reptile theory” seems to have evolved from Paul MacLean’s “triune brain” theory. Mr. MacLean theorized that the brain could be split into three distinct areas: the new mammalian brain, the old mammalian brain, and the reptilian brain. According to MacLean, the reptilian brain is the “primitive” brain responsible for survival, fear response, and regulating the brain’s fear center. Thereafter, the term Reptile theory became popular after David Ball & Don Keenan released their book Reptile: The 2009 Manual of the Plaintiff’s Revolution (2009). The Reptile theory is based on the premise that by tapping into a juror’s reptilian brain, a plaintiff’s attorney can elicit a fear response, inspiring the juror(s) to find in favor of the plaintiff. In simpler terms, a plaintiff’s attorney will attempt to put jurors in a position where they feel threatened or at risk of harm. Then, counsel will convince the juror(s) that it is up to them to take action to keep the public safe. That action to protect the public, of course, is finding in favor of the plaintiff and awarding significant damages. In doing this, jurors may feel that they are giving a deterrent effect to what they perceive as a scary incident.[1]
Plaintiff’s attorney will emphasize and plan on a handful of themes. The first theme is dependence—the idea that the public has no control over potentially dangerous conditions created by defendants. The second theme is common in negligence cases: duty—defendant(s) have an ethical duty to look out for the public and protect them from threats. This theme presents itself in the context of corporate negligence cases. The third and fourth themes also target corporate negligence: greed—corporations should not make a huge profit at the expense of the public—and self-interest—corporations make it too difficult to report incidents or deal with threats to safety. The theory projected by plaintiff attorneys is that corporations protect their own and have several hurdles in place to shield themselves from liability.[2]
The Reptile theory has gained popularity among plaintiff’s attorneys due, at least in part, to the theory’s success at maximizing damages. In response, defense attorneys have employed several strategies to combat this. Defense counsel can attempt to limit the use of this theory by filing motions in limine, in which they attempt to bar the plaintiff’s attorneys from using this tactic at trial. However, this strategy is not always successful. Often, Judges will wait to rule on reptile theory tactics until they are actually employed during trial. Therefore, defense attorneys must employ other strategies to combat the Reptile theory during discovery. One of the most effective is for the defense attorney to recognize reptile theory questions. Whereas ordinarily, questions in personal injury cases will deal specifically with the defendant’s conduct, with the reptile theory, the questions will often be broader and intend to evoke a community fear response. Defense attorneys can prepare themselves, and more importantly, their corporate representatives, to identify questions in written discovery and depositions that attempt to elicit responses that support the Reptile tactics. As the Reptile theory continues to gain popularity, it is more important than ever that a defense attorney in personal injury cases is aware of the Reptile theory. The best way to deal with this theory is to be knowledgeable about it and to know how to address it in the courtroom and before. Doing so gives the attorney a playbook that they can use to refute the plaintiff’s attorney’s attempt to garner sympathy from the jury by invoking their community’s fear response.
[1] https://legal.thomsonreuters.com/blog/what-attorneys-need-to-know-about-reptile-theory/
[2] Id.
