By Thomas M. O’Toole, Ph.D.
Reptile has become a popular topic of discussion for attorneys across the country, perhaps because folks like myself continue to write about it. Most of us have witnessed the fall-out, whether it be panicked pleas for feedback on defense forums or pre-trial motions to preclude “Reptilian” tactics. I’ve written extensively on defense strategies to counteract Reptile, but the more important question is whether or not defense attorneys should even worry about it in the first place.
If we focus on the science alone, this discussion quickly ends. Keenan and Ball claim to have derived their theory from the work of Paul MacLean, a neuroscientist who did most of his work in the 1950s, 1960s, and 1970s. MacLean proposed the triune theory of the brain, a three-component theory of the brain. One of those components, under MacLean’s theory, is the reptilian complex, which houses our survival instincts. Unfortunately for MacLean, contemporary research has shown that many of his assumptions and conclusions associated with the triune brain theory are wrong.
Fortunately for Keenan and Ball, there is virtually no actual discussion of MacLean’s work in Reptile even though they cite it as the science behind Reptile, which potentially allows them to distance themselves from MacLean if they were inclined to do so. In fact, there is almost no discussion of any science or research whatsoever throughout the book. All readers get are a handful of personal anecdotes or vague references to focus groups. This leads me to believe Keenan and Ball always meant for Reptile to serve as a strategy metaphor rather than a scientific theory. Consequently, even if we dismiss Reptile for the total lack of scientific foundation, we are still left with a popular metaphor used to craft litigation strategy by many plaintiffs’ attorneys.
With this in mind, let’s look at five reasons defense attorneys still need not worry about plaintiffs’ attorneys who engage in Reptilian tactics.
1. There is little to fear. Most cases do not have the kind of fear component that Reptile requires in order to activate the brain’s survival instincts. There are some that do, such as groundwater contamination cases, violent crimes, and trucking accidents, but most cases do not provide scenarios that jurors can easily imagine them or their loved ones being in. For example, medical malpractice cases are too nuanced with specialized care. A juror may hear horrible evidence about how a pulmonologist screwed up, but it’s unlikely that the juror will have an acute sense that he or she could find him or herself in similar circumstances that require a pulmonologist consult. In a product liability case, a juror may not have a need for the product in question, which reduces the sense of fear or threat to his or her survival instincts. I could go on and on with examples, but I think the point is clear: Few cases have the opportunity to induce a sense of fear or threat to the community.
2. Fear leads to differentiation, which puts the focus back on the plaintiff. Keenan and Ball suggest that fear activates the part of our brains that sense threats. This causes the brain to go haywire until some sort or resolution of the threat is acheived. The problem with this is that the easiest way to resolve this fear is for jurors to differentiate themselves from the plaintiff. This allows jurors to conclude that there is no threat because they would not make the same kind of decisions the plaintiff made. Therefore, what happened to the plaintiff would not happen to them. This actually provides much greater resolution than any speculation about what a verdict can accomplish. Making matters worse for the plaintiff, this resolution puts the focus on the plaintiff. As I’ve said many times before, a verdict is a product of what jurors choose to talk about during deliberations. If the jurors focus on the plaintiff in deliberations, the defense will win the vast majority of the time.
3. Reptilian jurors are easy to spot. The kind of people who are susceptible to Reptilian tactics are not difficult to spot during voir dire if the right questions are asked by defense attorneys. These are people who have a tendency (even if only slight) towards paranoid, conspiratorial, or overly anxious views of the world. In my experience, they like to voice their thoughts on these kinds of matters if given the opportunity to do so. For example, if a venire member strongly dislikes large corporations and has fear and anxiety over them, he or she will not remain silent when given the opportunity to voice their opinions about large corporations. These are the types of people who like to voice their interesting views of the world. The key is simply to ask the right question, which is a topic for another post on jury selection. Fortunately, plaintiffs’ attorneys often walk these venire members into “outing” themselves because the plaintiffs’ attorneys believe these comments “taint the pool” or reveal that the plaintiff attorney was somehow effective at persuading in voir dire. They do not recognize the counterproductive effect of revealing these venire members to the defense so that the defense can redirect cause challenges or peremptory strikes accordingly.
4. Tort reformers travel in packs. Keenan and Ball decry the attack on the plaintiffs’ bar that is tort reform. While I disagree with their call to arms, it is certainly fair to say that a large number of jurors have tort reformer tendencies, even if they do not think of them in that sense. Media headlines have done a lot for the defense in this respect. It is why attorneys rarely conduct voir dire these days without hearing references to the McDonald’s coffee case. Popular media coverage has caused a lot of people to focus on plaintiffs who they believe are unfairly using the legal system to make a quick buck. Jurors are very conscientious of this and quick to question the veracity of a plaintiff’s claims when suspicion arises. This obviously does not mean that defendants will always end up with great juries. Instead, it just highlights the fact that the opportunity is there if the defense can effectively shape the case to these inclinations. This also puts plaintiffs’ attorneys in a difficult spot. If they engage in the kind of exaggeration and euphemism that Reptile requires, they risk activating the tort reformer mentality and undermining the overall credibility of the plaintiff and his or her claims.
5. Reptilian tactics do not undermine the effectiveness of a good defense strategy. The facts are the facts and a good defense strategy does not change just because some plaintiff’s attorney has decided he or she wants to try to scare jurors into a headline verdict. In fact, the greatest utility of Reptile for plaintiffs’ attorneys is the distraction it often creates for defense attorneys who get overly anxious about it. The reality is that Reptile can be defeated with the same strategies the defense should otherwise use in the case. If defense attorneys prepare their key witnesses to present well on the stand, make the case about the plaintiff or someone/something other than the defendant, and arm their advocates on the jury to successfully control the environment of deliberations, they are setting themselves up for success no matter what strategy is used by the plaintiff’s attorney.