By Thomas M. O’Toole, Ph.D.
One of the most popular strategies used and advocated by many plaintiff’s attorneys across the country is the “broken rule” strategy. The theory is that the most important strategy for any plaintiff is to establish a clear rule up front, and then prove that the defendant broke that rule. Some of the popularity of this theory comes from Reptile, written by David Ball and Don Keenan.
As I’ve written before, there are a variety of significant problems and shortcomings associated with the Reptile strategy, one of which is that the “science” that serves as the foundation for the theory has largely been disproven. However, just like some people still believe vaccinations lead to autism, many attorneys have brushed aside the problems with the science behind the Reptile strategy. So let’s set the science discussion to the side and take a closer look at the “broken rule” strategy.
Keenan and Ball instruct plaintiff’s attorneys that it is critical to ground the entire case in a fundamental rule and then show that the defendant broke that rule. Here are six characteristics they offer for consideration when developing the rules for the plaintiff’s case:
1. The rule must prevent danger;
2. The protection provided by the rule must cover a broad range of people, not just someone in the plaintiff’s position;
3. The rule must be in clear English;
4. The rule must clearly establish how someone like the defendant should act;
5. The rule must be practical and easy to follow; and
6. The rule must be something that the defendant has to agree with or otherwise risk looking foolish.
I understand the appeal here. If nothing else, Keenan and Ball are making it clear that it is critical to reduce a case to its most painfully simple logical structure. It’s hard to disagree with that. Furthermore, they are fundamentally suggesting a case should be grounded in clear principles, which makes sense. However, this “broken rules” theme has several significant shortcomings.
First, making the entire case about “rule-breakers” creates risk for the plaintiff. One of the biggest problems with the fear-based approach of the reptile strategy is that the most common way people cope with news of traumatic events is by differentiating themselves from the victim. This offers greater reassurance that the same will not happen to us. We say things like, “that would never happen to me because I would never be in the same situation as the plaintiff.” “I would never make that kind of decision, so this won’t happen to me.” A focus on “rule-breaking” is very broad and general and the chances are that, in most cases, the defense can show that the plaintiff broke a rule or two as well. This can leave plaintiff’s advocates uncertain as to how to proceed, which undermines critical momentum in the plaintiff’s favor in deliberations.
For example, take a product liability case. Perhaps the plaintiff got their deposition soundbite where a corporate representative agreed that products should be made without defects. Great, right? Not if it is easy for the defense to show that the plaintiff used the product incorrectly (i.e., also broke a rule). This could actually make the plaintiff’s rule-breaking a more salient issue since the plaintiff has established “rule-breaking” as the issue that should drive the verdict. It is not fear-inducing since jurors can easily separate themselves from the situation by saying, “I’d never use it that way,” or “I always follow the directions” (even when the truth is they do not). It could also mean that the defendant did not break a rule if jurors’ critical focus on “rule-breaking” makes it easier to conclude that the plaintiff’s misuse caused the injury.
Second, a well-prepared defendant knows how to carefully manage “rule-breaking” questions in deposition and at trial. The plaintiff’s attorneys I’ve talked to, who advocate for the “rule-breaker” strategy, often treat the kinds of admissions that Ball and Keenan suggest as “game over” moments in the litigation. Far from it, admissions to obvious principles can make a defendant look much more reasonable to jurors. Additionally, a clever defendant such as a doctor in a medical malpractice case will find a variety of ways to hammer home the fact that every patient is different, meaning that there are very few hard rules. This forces plaintiffs to revert to much broader rules such as “do no harm,” but these are too vague and abstract to exert significant influence over deliberations.
Finally, in my experience, the plaintiff’s attorneys who advocate for the “rule-breaker” strategy often follow it so blindly that they end up force-fitting this framework into their case presentation, creating disorganization and incoherence. This makes it hard for the real story to come through, leaving potential advocates for the plaintiff unmotivated and insufficiently armed to exert meaningful influence over deliberations.