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Reptile Theory

By: Jackie Cooper

“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 book Reptile: the 2009 Manual of the Plaintiff’s Revolution. The theory, rather than focusing on creating sympathy for the plaintiff, emphasizes alleged failures of the defendant to keep the plaintiff and the community, including the jurors, safe.[1] Keenan and Ball claim that the strategy has resulted in more than $6.3 billion in verdicts and settlements.[2]

  1. From MacLean’s “Triune” Brain and the “Reptilian Complex” to Keenan and Ball’s “Reptile”

   In the 1960s, neuroscientist Paul MacLean, of Yale Medical School and The National Institute of Mental Health, introduced what he called the “Triune” model of the brain.[3]  MacLean suggested that the human brain consists of three parts – reptilian complex (reptile brain), the paleomammalian complex (limbic system), and the neomammalian complex (neocortex).[4] According to MacLean’s theory, the reptilian complex or “reptilian brain” is the oldest part of the brain and consists of the brain stem and cerebellum.[5]

In 1990, Dr. MacLean explained his theory in a book intended for specialists, “The Triune Brain in Evolution: Role in Paleocerebral Functions.” There have been countless papers and articles published on the subject since that time.

Psychologist Clotaire Rapaille adopted and developed the theory, ultimately employing the research and resulting tactics in successful national marketing campaigns.[6] Rapaille also suggested that research could be useful in the context of civil litigation.[7]  Rapaille explained the theory in Frontline interview published online in 2004.[8] According to Rapaille, “[w]hen we are born, we have the reptilian brain… Its part of survival; its breathing, eating, going to the bathroom. But then, in relationship with the mother, we develop the second brain, which is the limbic brain – emotions – …. Then, after 7, we have in place the cortex. The cortex is the last part of the brain that we develop, and that’s what we suppose to be ‘intelligent.’”[9] Rapaille claims to have been highly successful using this theory in developing marketing campaigns for companies including Nestle and Chrysler, among others.[10]

Then, in 2009, Keenan and Ball co-opted the theory and published “Reptile: The 2009 Manual of the Plainitff’s Revolution.” They contend that the reptilian brain controls our basic life functions, such as breathing, hunger, and survival, including the “fight or flight” response.[11] When those life functions become threatened, the reptilian brain instinctively overpowers the cognitive and emotional parts of the brain.[12] Its primary function is self-preservation.[13]

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]

However, the developing field of neurobiology confirms some of the practical aspects of MacClean’s theory and findings. The human brain tends to be more receptive to, and to better retain, negative information than positive information.[16]  This is known as “the negativity bias.”[17] This could explain the apparent effectiveness of the reptile theory even while the supposed biology underlying the theory is discredited.  Negative information and ideas based on or motivated by fear or anger are more powerful than positive ones.  For purposes of this paper, reptile theory should be interpreted loosely to include MacClean’s behavioral and cognitive theories, excluding the biological basis, as well as the concept of “negativity bias.”

Reptile strategy has been widely used in negligence cases, including personal injury, products liability and commercial transportion.[18]  In Texas, reptile theory is often used, with varying degrees of effectiveness, in medical malpractice cases. The common thread amongst these varied types of litigation is that each category of defendant – healthcare providers, manufacturers, and those who transport goods on public roadways – all have potential impact on every single juror. Everyone needs healthcare. Everyone purchases goods. Everyone travels on road.  These make for ideal characters in the reptile narrative because they not only impact (positively or negatively) the individual jurors and their loved ones, but also the community as a whole. 

This paper will address reptile theory generally, and primarily in the context of medical malpractice.

  1. To Evoke a Juror’s Reptile Brain…
  1. Generate Fear of the Defendant From the Beginning

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]

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.

  1. Replace the Standard of Care

Reptile attorneys, in addition to gathering evidence centered on the themes of safety and danger (policies, signage, handbooks, training materials, etc.), elicit testimony deisgned to equate safety with the standard of care.

The appropriate standard of care in any professional liability case is reasonableness. A physician in Texas, for example, is required to render care as would any reasonably prudent physician under the same or similar circumstances.[21] The standard of care is not strict liability; rather, it is ordinary care standard.[22]

Specifically in the context of medical malpractice, reptile theory attempts to replace the reasonableness standard of care owed by healthcare providers with the safest care. Keenan and Ball argue that the standard, which requires “prudent” care, actually elevates the standard of care above ordinary.[23] The “only allowable choice is the safest available choice.”[24] This is essentially a strict liability standard. It “makes no difference if the defendant met other standards of care. In medicine, every choice must meet the risk/benefit requirement: ‘No unnecessary risk,’ meaning ‘safest available choice.’”[25]

  1. Feed the Reptile Before and During Trial

   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]

   The deposition is the foundation of the reptile strategy.[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:

  • Safety is your top priority, correct?
  • You have an obligation to ensure safety, right?
  • It would be wrong to needlessly endanger someone, right?

 

   These types of propositions are difficult for the witness to deny without adversing impacting their credibility. The result is that the witness agrees that safety is important and danger should be avoided.[29]

      Next, the reptile attorney must link the safety and danger to specific conduct.[30] Examples of questions in a medical malpractice case include:

  • If a patient’s status changes, the safest thing to do is call a physician immediately, right?
  • If a patient is having chest pain and shortness of breath, the best way to ensure the patient’s safety is to send them to the ER immediately, correct?
  • Documentation in the medical chart must be thorough, otherwise a patient could be put in danger, right?[31]

      Agreements to these questions force the witness into an inflexible stance on safety issues and lay the foundation to introduce specific facts.[32]

      The reptile attorney then presents facts specific to the case that do not align with the previous agreements regarding safety and danger, which results in admissions of fault.[33] Examples include:

  • Failing to call a physician at 4 p.m. was a safety rule violation, correct?
  • It exposed my client to unnecessary risk and harm, right?[34]

      By trial, the defense is faced with a admissions about safety rules and violations which will be used in an effort to supplant the reasonableness standard of care in the jurors’ minds.

      Voir dire is another opportunity to indirectly elicit similar admissions from the jury. For example:

  • Who here believes they have the right to be safe when they are in the hospital?

The jury is primed for the introduction of the themes of safety and danger from the very beginning.[35] The result is that the jurors themselves have to agree with the general safety rules or they become the threat to the community.

Then the reptile attorney uses opening argument to lay out the witnesses’  admissions for the jurors’ reptile brains, which they have just woken in voir dire. 

  1. Conclusion - Snake Charming at Pretrial and Trial

There is nothing new or guaranteed in terms of how to respond to discovery or handle depositions. Every litigator, plaintiff or defense, seeks to capitalize on opportunities to influence the jury.  Given recent findings in the field of neurobiology, this tactic of developing the fear and/or anger of the jurors, rather than their sympathy, whether you call it “reptile theory” or “negativity bias,” may well prove more successful than others.

As always, the defense should make timely and appropriate objections to broad discovery requests. Fact and expert witnesses can and should be prepared to recognize the reptile questions and to use caution in agreeing to anything related to safety or rules, particularly general and hypothetical questions. For trial, the defense can consider motions in limine on improperly characterizing the standard of care, as well as irrelevant evidence regarding safety and danger that is intended to prejudice the jury by awakening the reptile. [36]

Reptile theory is an old strategy with a new name.  However, as with any trend, it is important to recognize it in order to effectively address it. 

 

 


[1] Ann T. Greeley, Ph.D., A Brief Primer on the Reptile Theory of Trial Strategy: Plaintiff Psychology and the Defense Response at 1.

[3] Paul Wojcicki, The Reptile’s In Our Midst – Defending against the “Triune Brain” trial strategy, https://drivingvalue.com/2015/05/04/the-reptiles-in-our-midst-defending-against-the-triune-brain-trial-strategy, (May 4, 2015)

[4] Ann T. Greeley, Ph.D., A Brief Primer on the Reptile Theory of Trial Strategy: Plaintiff Psychology and the Defense Response at 3.

[5] David C. Marshall, Legal Herpetology Lizards and Snakes in the Courtroom, 55 No. 4 DRI for Def. 64 (April 2013).

[6] Minton Mayer, Wiseman Ashworth Law Group, Make Boots Out of that Lizard, DRI 9/25/13 vol 12 issue 38

[7] Id.

[8]http://www.pbs.org/wgbh/pages/frontline/shows/persuaders/interviews/rapaille.html

[9] Id.

[10] Id.

[11] Kenneth D. Chestek, Of Reptiles and Velcro: The Brain’s Negativity Bias and Persuasion, 15 Nev. L.J. 605, 614.

[12] Id.

[13] Id.

[14] Ann T. Greeley, Ph.D., A Brief Primer on the Reptile Theory of Trial Strategy: Plaintiff Psychology and the Defense Response at 2.

[15] Id.

[16] Kenneth D. Chestek, Of Reptiles and Velcro: The Brain’s Negativity Bias and Persuasion, 15 Nev. L.J. 605, 606.

[17] Id. at 606, 618.

[18] Id. at 2.

[19] David C. Marshall, Legal Herpetology Lizards and Snakes in the Courtroom, 55 No. 4 DRI for Def. 64 (April 2013).

[20] Ann T. Greeley, Ph.D., A Brief Primer on the Reptile Theory of Trial Strategy: Plaintiff Psychology and the Defense Response at 5.

[21] Chandler v. Singh, 129 S.W.3d 184, 188 (Tex.App.—Texarkana 2004, no pet.).

[22] Jackson v. Axelrad, 221 S.W.3d 650, 655 (Tex. 2007).

[23] Keenan & Ball, Reptile: the 2009 Manual of the Plaintiff’s Revolution, at 63.

[24] Id. at 64.

[25] Id. at 63.

[26] Ann T. Greeley, Ph.D., A Brief Primer on the Reptile Theory of Trial Strategy: Plaintiff Psychology and the Defense Response at 1.

[27] Bill Kanasky Jr., Ph.D & Ryan A. Malphurs, Ph.D., Derailing the Reptile Safety Rule Attack: A Neurocognitive Analysis and Solution, at 3, http://www.iadclaw.org/assets/1/7/Reptile_Theory_2015_Trial_Academy.pdf. 

[28] Id. at 5-6.

[29] Id. at 6.

[30] Id.

[31] Id.

[32] Id.

[33] Id. at 9.

[34] Id.

[35] Ann T. Greeley, Ph.D., A Brief Primer on the Reptile Theory of Trial Strategy: Plaintiff Psychology and the Defense Response at 2.

[36] A big thank you to Cooper & Scully, P.C. Associate, Kristen Haltom, for her research and contribution to this paper.

 


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