Nicole Rhoades

The Reptile Theory[i] is a litigation strategy that has been credited with over $6 billion in verdicts and settlements since 2009.  While the strategy manifests itself in many ways, the idea behind it is simple: scare the jurors and then offer them safety via a judgment against the defendant.  Plaintiff’s counsel will create a “safety rule” based on avoiding all possible harm and argue that the defendant’s failure to follow that rule endangered the community—even though defendant did follow the applicable standard of care.  In theory, and often in practice, this will prompt jurors to discard the applicable standard of care—for example, a reasonableness standard—that the judge has instructed them to apply, in favor of something resembling strict liability.  The significance of this mistake is compounded by the fact that frightened jurors are often more susceptible to the suggestion that punishment will promote safety.  This can lead to punitive driven verdicts even when punitive damages are not in your case.

Daunting though this may seem, the defense bar should not despair. There are tactics to neutralize the Reptile Theory. But in order to make use of them, it is critical to first recognize when plaintiff’s counsel is setting up a Reptile Theory case strategy.

Pre-Trial Tactics

• Where appropriate, invoke the applicable standard of care in pleadings, discovery requests, motions, correspondence with opposing counsel, deposition objections (if appropriate) and the like. Never miss an opportunity to frame your client’s conduct in terms of the standard of care.
• Educate the judge on the Reptile Theory when objecting to improper discovery requests. Savvy plaintiffs’ counsel may seek to discover a company’s internal policies with the aim of showing any noncompliance, no matter how trivial, is proof that the “evil” defendant does not even comply with its own policies, let alone the law.  Make clear, when objecting to such requests, that a company’s internal policies do not represent the applicable standard of care and suggest (to both plaintiff’s counsel and the judge) that plaintiff is inappropriately requesting such irrelevant information to set up the Reptile Theory.
• Prepare your deposition witnesses to give qualified answers to safety-related questions. Rather than agreeing to the broad, and seemingly benign, “safety rule” proposed by plaintiff’s counsel, your witness should be prepared to answer in reference to the applicable standard of care.  For instance:
  • Question by plaintiff’s counsel: “Ms. Witness, wouldn’t you agree that construction contractors who fail to implement the safest possible building construction techniques are unreasonably endangering the public?”
  • Defense objection: “Object to form/relevance.”
  • Answer by unprepared witness: “Uh… I guess so.”
  • Answer by prepared witness: “A contractor who complies with the current building codes, like Good Building Company did, is one who follows the law and builds in a manner regulators have determined to be safe and appropriate.”
• Bring a motion in limine to prohibit plaintiff’s counsel from making arguments based on the Reptile Theory. Inform the judge that the Reptile Theory misstates the legal standard at issue.  It improperly seeks to compel opinions from lay witnesses, and encourages jurors to ignore and nullify the judge’s instructions.  Support your arguments with evidence of plaintiff’s counsel’s strategy taken from written discovery requests and deposition questions.

Trial Tactics

• Jury selection takes on an even greater significance when plaintiff’s counsel uses the Reptile Theory. It is important to ask the members of the jury pool to describe their safety fears.  Those members of the pool with existing safety fears are likely to be more susceptible to the fear-based characteristics of the Reptile Theory.  Furthermore, you can use voir dire to rebut fear-based safety rules, thereby arming the remaining jurors with tools to criticize the Reptile approach during trial.  For instance, in a medical-malpractice trial where plaintiff is expected to argue that the defendant doctor should have anticipated and prevented plaintiff’s rare surgical complication:
  • Defense lawyer: “Juror No. 1, you said you don’t really trust surgeons. Why don’t you trust them?”
  • Juror No. 1: “I think they are all rich and trying to get richer. Like they’d always push the priciest surgery, even if it could have side effects.”
  • Defense lawyer: “Juror No. 2, what do you think about that? Do you think surgeons should guarantee that their treatment will never have side effects?”
  • Defense lawyer: “Juror No. 3, if the judge tells you at the end of the case that Dr. Smith is liable only if she failed to treat plaintiff in the way that most reasonable doctors would have treated plaintiff, but plaintiff’s lawyer says Dr. Smith should pay for all side effects from treatment no matter how reasonable Dr. Smith was, who would you follow? The judge or the lawyer?”
• Prepare your trial witnesses to give qualified answer to safety-related questions. It is important that your trial witnesses are prepared, as in their depositions, to answer safety-related questions in reference to the applicable standard of care.  Additionally, your witnesses should not be flippant about safety when testifying; it must be shown that the defendant is safety-focused.
• Educate jurors on the applicable standard of care at every opportunity.  Get creative—use illustrations, graphics, memorable analogies, etc.

[i] The term “Reptile Theory” describes how the strategy appeals to the primitive, “reptilian” part of our brains.