By Thomas M. O’Toole, Ph.D.
In my last blog post, I discussed the merits of lobbying the court to preclude a plaintiff from engaging in “reptilian” tactics before the jurors. Following some lively discussion about the post among some thoughtful defense attorneys, it occurred to me that I might have put the cart before the horse. For example, one commenter reasonably suggested there is value in attempting to preclude “reptilian” tactics because it “throws the plaintiff off of their game.” The irony of course is that the defense’s fixation on the “reptilian” theory and the need to throw plaintiff “off of their game” suggests that it is the defense that has been thrown off of its game. This brought about the realization that more discussion is needed about what the “reptilian” approach really is and how it can be effectively dismantled.
Reptile has become a popular topic amongst some members of the defense bar. It is important to be aware of the so-called “Reptilian” approach, but the concern should not extend far beyond that awareness. The reality is that the strategies defendants should be deploying at trial, regardless of whether or not plaintiff is engaging in “Reptilian” tactics, are more than sufficient to counteract such tactics. Consequently, the effectiveness of “Reptilian” tactics may be overstated due to verdicts that are not a product of the strengths of plaintiff’s “reptilian” tactics, but rather the product of the defense’s failure to craft a trial strategy that provides the appeal and the tools for jurors to find for the defense.
The essence of Reptile is this: Scare jurors into believing that if they fail to act, the acts of the defendant will threaten them or the community. The authors point to a primitive, instinctual component of the brain they call the “reptilian brain” and argue that it cannot resist the temptation of a good fear appeal. Like most NY Times bestselling management books, authors Keenan and Ball proceed to transform what could be stated in 3 pages into a 300+ page book by stuffing full of self-serving anecdotes, cheesy prose, and grandiose hypothetical examples. The authors proclaim that their theory rests on scientific foundation, yet the science is rarely, if ever, discussed beyond the book’s forward. And while it’s true that dopamine releases influence human behavior, the authors make no attempt to substantiate how rhetorical strategies in litigation influence dopamine releases as there is no research out there addressing this connection.
There is nothing new or shocking about Reptile and there is certainly nothing that should warrant fear or fixation from the defense bar. The authors even recognize one of their most significant hurdles: that fear-based appeals often backfire because the easiest psychological outlet for jurors is to blame the plaintiff. By blaming a plaintiff, jurors can say, “that would never happen to me since I wouldn’t make those decisions.”
Furthermore, on this point, Keenan and Ball are wrong: fear does not drive large plaintiff verdicts; anger drives large plaintiff verdicts. The real danger of Reptile is the distraction it creates for defense attorneys paired with the common failure to present an affirmative case theory that shows jurors there is a fundamentally different story to the case. Instead, defendants often get trapped in “yah but” presentations that serve only to reinforce the plaintiff’s claims and, even worse, expose key defense witnesses. This is where the anger often kicks in: unprepared defense witnesses testifying within a “yah but” environment.
The best strategy against “reptilian” tactics is also the best defense strategy in general. Here are the essential components that should be addressed in the development of any defense strategy.
1. What is the psychologically-satisfying defense verdict? Defense attorneys should be able to articulate in a single sentence what jurors can feel good about if they find for the defense. This appeal should be grounded in core human principles. In my experience, some attorneys think the case has psychological satisfaction, but either go silent or into a long, convoluted ramble when I ask them to state it. Don’t underestimate the simple exercise of writing out a single sentence that captures the psychological satisfaction of the case. Sometimes the most obvious and important elements of a case are the most difficult for attorneys in the trenches to see and appreciate. This is a vital brainstorming and writing activity because it brings focus to the case and bring attorneys out of the weeds. People want to feel good about the decisions they make. The defense needs to find a way to provide this satisfaction. As Keenan and Ball suggest, personal responsibility is a good place to start. Jurors have strong feelings about personal responsibility. However, defendants should tread carefully. The defense often needs to earn the right to go on the attack before actually doing so. Otherwise, this focus could lead to juror backlash.
2. Focus the case on the plaintiff. A verdict is a product of what jurors choose to talk about in deliberations. Jurors will not spend hours of deliberation praising the focus of their discussion. Instead, they will criticize it and, over time, momentum against the focus of their discussion will develop. This momentum builds to agreement in leanings at which point jurors find a way to render the verdict they want to render, often through a practice of reverse-engineering the verdict form. Defendants need to craft presentation strategies that place the focus on the plaintiff and his or her burden of proof without going on the attack. The focus on the plaintiff’s burden of proof is effective when the defense can cast doubt on the plaintiff, which is why key central fact selection is so important.
3. Make the case about 3-4 central facts. Earning the right to focus the case on the plaintiff’s personal responsibility can occur through fact selection. Studies show jurors remember about 10% of what they hear over the course of trial by the time they reach deliberations. This is not shocking given the overwhelming nature of the trial process. Rather than overwhelm jurors, focus the case on 3-4 central facts that symbolically represent what the defense’s case is about. In other words, the 3-4 facts should tell jurors everything they need to know about the case. The best central facts are those that are easy to prove or are not in dispute. Furthermore, they should focus the case on the plaintiff in a way that does not require the defense to draw conclusions about the facts. In other words, the best central facts make the case about the plaintiff without the defense attorney having to tell jurors what those facts mean. The persuasive effect is infinitely greater when jurors draw the conclusion on their own. Central fact selection is an art in many respects since the central facts focus on the case and dictate what jurors talk about during deliberations. Once the 3-4 central facts are chosen, the defense should take every opportunity at trial to get the case back to those central facts, through opening, through each witness, and through closing. Repetition is vital to fact prominence and, consequently, juror recollection.
4. Prepare defense witnesses. “Reptilian” tactics thrive on unprepared or underprepared witnesses. Jurors make decisions about the character of a defendant with their eyes and ears. In other words, they closely watch and listen to representatives of the defense who take the stand. In doing so, they are particularly attentive to the defense witnesses’ demeanor. When verbal and nonverbal behavior conflict, research shows jurors will rely on the nonverbal behavior. That means, no matter how well a witness words his or her answer, if he or she engages in nonverbal behavior that leaves jurors with a negative perception of the witness, the substantive answer is largely meaningless. In short, jurors have difficulty rendering verdicts against people they like and have no hesitation to render devastating verdicts against people they don’t like. The people tell jurors a lot about a case and the parties. A well-prepared defense witness violates the expectations of a “reptilian” case theory and makes it much more difficult for plaintiffs to establish sufficient motivation for jurors in the deliberation room. Consequently, the key to effective witness preparation is practice. Don’t just sit in a room and talk through the case. Practice the witness’s testimony by staging a mock deposition.
The bottom line is that there is little to fear about “reptilian” tactics. To their credit, Keenan and Ball have developed a fantastic gimmick that has taken a lot of money out of plaintiff attorney’s pockets (check out how much they charge for the book!) and gained them a little notoriety. Yet, this gimmick is easily defused. The real threat is the distraction it can create along with the common “yah but” trap defense attorneys find themselves in when it comes to their presentation of the defense theory of the case.