By: Moris Davidovitz and Doug Rees
The “reptile theory” posits that the human brain has a primitive side similar to that of reptiles, in that it is conditioned to pursue safety and survival. Claimants are encouraged to use this theory in their cases, particularly in personal injury and product liability cases, in an effort to appeal to jurors’ more primitive emotions.
Jurors are to decide cases based on evidence and the law, not on sympathy or prejudice. Analysis from litigation experience and gleaned from a number of recent articles in journals show that strategies are available to defend against claimants seeking to trigger emotional reactions through reptilian tactics.
First, in preparing for deposition or trial testimony, witnesses should have a general understanding of the reptile theory, and so, an understanding of testimony a claimant’s attorney will seek to elicit. In questioning a company’s safety director, for example, counsel may attempt to establish (1) a safety rule exists that protects the “community” [and so, the jurors/their families]; (2) an admission the company violated the rule, thereby putting the “community” [and so, the jurors/their families] in danger; and (3) the claimant would then argue that the companies should be responsible for threatening the safety of the “community” [and so, the jurors/their families].
Second, some general rules can help witnesses responding to reptile theory questions:
Rule 1 – Safety and Danger “Depends”
Reptile theory questions are designed to allow a claimant’s attorney to testify through a defendant’s witness answering a question with a simple “yes.” However, matters of safety, risk, mitigation of risk, and so forth are matters which depend on the circumstances. More appropriate may be a response such as, “Well, it depends. I do not think that I can answer ‘yes or no’ to that question. Would you like me to explain why?”
Rule 2 – The “Safety Rule” is Not So Simple
Claimants’ counsel want to show that a “safety rule” is simple. But rarely is a rule simple and absolute (like the maxim “never say never, never say always”). Each decision involves some safety risk, and almost every rule has an exception.
For example, consider a question such as, “safety is a top priority, right?” It is difficult to answer this question, “no,” so a witness may just respond, “yes.” But then consider what the question really means. When one gets into a car to drive, one is exposed to considerable risk of injury. Yet, if safety is always the top priority, then one might never drive.
Rule 3 - The Defendant’s Conduct was Reasonable
A particular defense position will, of course, be case specific but will likely involve the position that the defendant’s conduct was reasonable.
Claimants’ counsel will want to replace the vague standard of reasonableness with a clear, simple safety rule, which the defendant violated. The position of reasonableness may be worked into each answer where it is appropriate.
For example, employees are trained and tested to apply reasonable conduct to the situation presented, regulations are based on generalizations and do not always apply to an individual situation, and employees faced with a specific situation have to rely on their training, experience, and judgment to make reasonable decisions.
Rule 4 – Questions About Damages Are For Lawyers to Answer
Claimants’ counsel ask a witness a question about whether a person who causes damage should pay for that damage. Answering “no” to that inquiry before a jury would look callous. But that sort of question is not directed at the witness’s percipient knowledge, so a defense witness could appropriately respond that the question sounds like one that should be answered by lawyers and the court.