I have had a long-running interest in Don Keenan and David Ball’s perspective on plaintiffs’ trial and discovery advocacy called “The Reptile,” the notion that one can motivate jurors to side with a plaintiff by tapping into the tendency of the primordial reptile brain to flee from threats and gravitate toward safety. The theory has interested me, not because I believe all of its tenets. I don’t: The notion of a quasi-independent ‘reptile brain’ responding to appeals in the courtroom, for example, is pretty dubious. Instead, I’ve found it interesting based on its ability to work at a practical level by encouraging trial lawyers to think about why jurors might have an interest in a case and why they should care about a particular verdict. Whether the brain science is sound or not, the perspective has captured many in the plaintiffs’ bar, and has increasingly motivated a search for effective responses from the defense bar.
I have regularly shared my thoughts on the Reptile on these pages, and this past Wednesday, I was invited to present at DRI’s seminar on “Striking Back Against the Reptile in Medical Malpractice and Long-Term Care Cases” with Cecilie Loidolt of Bassford Remele. Our presentation focused on the ways defendants can find their own motivators in order to counter the plaintiff’s focus on safety, since jurors also care about supporting doctors, protecting medical judgment, enforcing patient responsibility, defending innovation, as well as preserving the jurors’ own independence of judgment. The entire seminar was interesting and useful, but as I listened to the other presenters, I was inspired with a few additional thoughts that I’d like to highlight in this post.
The Reptile Might Also Work Due to Negativity Bias
In the opening presentation, Minton Mayer of Wiseman Ashworth in Memphis, Tennessee noted that “negativity bias,” or the tendency to notice and respond to negative information more than positive information, may underlie the Reptile’s influence. That is consistent with what we know about negative political advertisements working, and increasing negativity becoming a response to “news fatigue.” The reason that would help the Reptile is that it explains, even without an autonomous “reptile brain,” why a focus on personal threats would cut through the clutter more effectively than would more abstract or standard-of-care-oriented appeals. The implication of a focus on negativity bias is that it explains why a positive message (“We did our best”) fails when compared to a negative message (“Yet the threat still exists”). In response to this, defendants need to remember that a possible negative appeal centers on the potential loss of something positive, like the physician’s ability to exercise judgment, to innovate, or to adapt to the particular needs of an individual patient.
The Reptile Is Not Hibernating, It Is Adapting
One theme running through several presentations was that defendants can’t just count on recognizing The Reptile based on the obvious questions from Ball and Keenan’s initial 2009 book. Plaintiffs are applying the theory with greater subtlety and sensitivity to objections from the defense table and the bench. For example, some plaintiffs have found that a safety rule can be as effective without the language of “must” or “must not.” Without these absolute terms, the safety rule sounds more reasonable and more medically appropriate, while still setting up a standard that the defendant failed to meet. In addition, Reptile plaintiffs are not necessarily ignoring the notion of “standard of care,” but are instead arguing that the notion of “safety rule” captures the legal meaning of that concept. The implication is that those who are on the defense side should not expect to keep seeing the simplistic cookie-cutter application of the Reptile. Instead of responding to your own notion of “the theory,” you need to respond to the adversary on the other side.
Make Objections Familiar to the Court
While awareness of The Reptile has seeped into defendants’ awareness, judges are not yet fully acquainted with it. And even when they are, it isn’t always obvious when the plaintiff is making use of the approach. Instead of calling the court’s attention to the book and setting up a charge that may look personal and petty, or that the plaintiff might deny, it is better to focus on what the court already recognizes and understands. As Pete Gregory of Bassford Remele in Minneapolis emphasized, the judge may not get the Reptile, but definitely does get the Golden Rule, and the “send a message” appeal, and is typically primed to shoot these down. And I’d add that they are also likely to lean toward restricting anything that preinstructs by telling the jury what their job is, especially if they’re preinstructing inaccurately by saying that the job relates to a “safety rule,” and not to the standard of care.
Expect the Reptile to Ride the Coming Wave of Opioid Litigation
In the seminar’s final session, Michael Gross of CogentEdge and Jerrod Mills of Trial Exhibits, Inc. shared some sobering data on the extent of the crisis involving prescription drug addictions and deaths, as well as the developing public attitudes on the crisis. The conclusion is that the expected wave of litigation against both pharmaceutical manufacturers and prescribing physicians presents the “perfect playground for the Reptile,” and the reasons why serve as a useful guide to the factors determining the Reptile’s applicability in other cases. The factors that make for a perfect fit are many: The opioid epidemic is seen as a widespread public danger; it directly or indirectly impacts a large part of the population; the dangers were hidden or long-denied; and even those with the role of protecting us from medical dangers (doctors) are implicated. Those same dimensions of harm, deception, and failed protection can apply in other cases, whether we are talking about physical injuries or other damages. That can make other case types susceptible to Reptile-style appeals as well.
The bottom line messages from these and many other good presentations at the Chicago conference was that the Reptile may be a little more complex than we think. Rather than railing against a caricature, defense attorneys need to understand and adapt.