By Thomas M. O’Toole, Ph.D.
I recently had the pleasure of witnessing an attorney make a motion to the court to preclude the plaintiff from engaging in “reptilian tactics” at trial. I had heard that some defense attorneys out there had been making such motions, but had laughed off the stories, failing to appreciate the profound ridiculousness of such motions. Based on what I saw, I’d suggest there are three downsides to this kind of motion.
1. It’s extraordinarily difficult to understand what practical action these attorneys are asking the judge to take. In the example I saw and the explanations I’ve heard from other attorneys who have made similar motions, I have yet to understand what attorneys are actually asking judges to do. The end result is failure…Nothing is gained by the motion. In my example, the judge expressed his confusion over what it was that he was being asked to do. Perhaps this is not a significant problem, but it becomes more problematic when you consider the two other downsides.
2. It undermines the attorney’s credibility. Setting aside the fact that it was difficult to understand what the judge was being asked to do, the mere suggestion that the defense is concerned about plaintiffs engaging in “reptilian tactics” sounds silly. It sounds as if the defense fears some sort of voodoo, mystical powers from the plaintiff. The last thing an attorney wants to do at the start of trial is undermine his or her own credibility with the judge, which such motions certainly did.
3. It sends a clear message to the plaintiff that the defense is afraid of them. As I write this, it is extraordinarily difficult to understand any scenario in which this is beneficial to the defense.
The fact is that defense attorneys need to settle down and come to grips with the gimmick that is the “reptilian strategy.” All Ball and Keenan did was take fundamental principles of persuasion (i.e. fear and psychological satisfaction drive decision-making), give it a fancy, but scary title, and try to tie it to science by talking about brain studies.
First, until plaintiffs are able to conduct jury research using fMRI machines or start hauling fMRI machines into the courtroom, I’m not sure what the science actually adds to this discussion. Yes, there is overwhelming research that demonstrates dopamine has a significant impact on decision-making. However, there is almost no research tying trial tactics to dopamine releases. The most reliable application is the basic proposition that jurors will always go with the psychologically-satisfying verdict, but you don’t need to stick your head in a neuroscience book to appreciate this. It is persuasion 101.
Second, Ball and Keenan are wrong. I strongly disagree that large plaintiff verdicts are driven by fear. Instead, they are driven by anger, which is a very different emotion from fear. In fact, fear-driven approaches can be risky since one of the most common ways in which the human brain deals with fear associated with harm suffered by others is to blame the other. This allows the individual experiencing the fear to say, “that would never happen to me because I wouldn’t make those kinds of decisions.” Additionally, there are plenty of strategies out there to deal with juror anger, starting with simply prepping your key witnesses for their depositions and trial testimony. This seems like a no-brainer, yet so many defense attorneys either fail to prepare their witnesses properly or even at all. The result can be a witness that jurors strongly dislike, which results in jurors concluding that a message needs to be sent (and for the record, sometimes jurors just call punitives “pain and suffering” if punitives are not technically allowed). Consequently, reptilian strategy is not the reason these attorneys lost at trial…malpractice is the reason.
Finally, defense attorneys need to place greater focus on developing a compelling theory of the case and implementing a communication strategy that effectively presents that compelling theory of the case. There are experts (such as jury consultants) out there who can help. If your case has significant exposure, it’s time to consider retaining a jury consultant. But the problem is not so much defense attorneys, but their insurance adjusters. I had an experience on a case where the exposure was $10M+ exposure, yet the insurance adjuster would not approve $1,500 to prepare a key defense witness for his deposition. It’s time to educate insurance adjusters about the important role jury consultants can play in controlling the exposure in the case. A bad depo from a key defense witness can fundamentally change the dynamic of a case and make a $2M case a $12M case. Insurance adjusters need to appreciate this.
To read more about strategies for overcoming plaintiff’s “reptilian” tactics, check out my article on the issue in the publications section: https://soundjuryconsulting.com/Publications.html