The Reptile Theory In Practice

• Published date: 20 August 2021
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: Lewis Brisbois Bisgaard & Smith LLP
• Author: Mr Nicholas Hurzeler, James T. Whalen, Jr. and Greg S. Katz

New York, N.Y. (August 19, 2021) - The "Reptile Theory" is a trial strategy that attempts to use fear and anger to make the jury dislike the defendant so strongly they will award a plaintiff a grossly excessive amount of damages. The plaintiff's attorney will seek to activate the jurors' "survival mode" instincts by presenting the defendant's conduct as highly dangerous and worthy of punishment. The defendant's conduct will be portrayed as a threat to the safety of the general public, and the award as a deterrent needed to protect the community at large. The Reptile Theory appeals to the jurors' emotions in place of any rational, impartial evaluation of the evidence.

The term "Reptile Theory" originated in the writings of nuero-physiologist Paul D. MacLean in the 1950s, who suggested that one major part of the brain consisted of a "reptilian complex" that controlled instinctive behaviors involved in aggression, dominance, and territoriality. Then in the 2009 publication "Manual of the Plaintiff's Revolution" by David Ball and Don Keenan, the authors first described the "Reptile Theory" in the context of litigation. Since then it has become a hot topic in litigation as defense counsel develop methods to combat "Reptile" tactics resulting in runaway jury awards.

A plaintiff's attempt to use Reptile Theory begins with discovery responses and depositions, and continues in jury selection. It is therefore important to properly prepare your clients for questions incorporating "Reptile" strategies at the deposition, and to make the proper objections during the deposition. Then, defense counsel will primarily rely on motions in limine to hopefully convince the judge to preclude the Reptile Theory, particularly in opening statements and summations. Our office has had success in precluding the Reptile Theory by arguing at trial that the standard of care is not "the good of the community," or "safety standards," but controlling statutes and pattern jury instructions. In several cases, judges have accepted our argument that the plaintiff should be precluded from making such statements because they are prejudicial, vague, amorphous, and would distract the jury from the governing statutes and jury instructions.

As it turns out, however, there is very little legal authority that speaks to Reptile Theory in particular. The case law is somewhat undeveloped, without clear guidelines regarding what "Reptile" tactics are considered out of bounds. There is no statutory...