Why do some cases go nuclear while other cases with similar fact patterns or injuries do not? Every jury is different of course, but that does not tell us much about the variations in jurors’ psychological reactions to cases. There have been numerous attempts to outline the magic formula for nuclear verdicts from the plaintiff’s perspective. Two of the more prominent theories out there that are routinely embraced by plaintiff attorneys are Reptile and Rules of the Road. Reptileproposes a fear-based approach to the case presentation while Rules of the Road suggests a more principle-based approach. So, which one is right?
Reptile, authored by attorney Don Keenan and former theater director David Ball, relies on the triune brain theory work of Paul MacLean, which has been debunked by neuroscientists around the world. It turns out MacLean’s theory of the brain was simply wrong. Fortunately for Keenan and Ball, Reptile devotes all of two pages to “explaining” the science that the book relies upon, which in some respects, allows them to escape the book’s faulty, “scientific” foundation. I’ve written before that perhaps Keenan and Ball meant for Reptile to serve as more of a metaphor than an actual scientific foundation even though that is not what they indicate in the book. Notably, while the neuroscience Reptile claims to rely upon is fundamentally wrong, it is hard to dispute that fear has an impact on the way humans think about and perceive things. My colleague Scott Herndon recently wrote an interesting blog about the role of fear in juror decision-making. However, as Scott points out, fear cuts both ways. It can lead to a prosecutorial mindset that favors the plaintiff, but it can also lead to victim blaming since the latter often offers jurors the most psychologically-satisfying way of convincing themselves that they would never suffer the same fate as the plaintiff (i.e. “I would never make the kinds of poor decisions that the plaintiff made”). This makes fear an unreliable appeal at best.
We had the fortune last year to conduct a fascinating study with over 2,000 mock jurors that examined the psychological and emotional influences that drive “nuclear” verdicts, which are generally defined as verdicts where the jury awards $10M or more. We looked at numerous factors, but we were particularly interested in fear appeals as proposed by Reptile. Notably, we found no relationship between mock jurors’ fears that they could suffer the same fate as the plaintiff and their subsequent damage awards. We tested this across ten different cases and the relationship was not confirmed in any of those ten cases. This is notable because there does not appear to be any other research out there that has examined the relationship between fear appeals as proposed by Keenan and Ball and verdict outcomes.
Furthermore, in that same research, we repeatedly found that anger, not fear, was driving nuclear verdicts. This anger manifested itself in a variety of ways but was the most consistent emotional factor related to damages. What was clear from our research is that jurors have beliefs about the way things should be and get angry when a defendant violates those “rules.” The greater the anger, the larger the verdict. The research suggested that jurors adopt a principled approach to most cases. Consequently, Rick Friedman and Patrick Malone’s Rules of the Roads seems to better capture the driving factors behind headline verdicts than Reptile. To be clear, I’m not necessarily suggesting that the tactics outlined in Rules of the Road are effective. Instead, our research shows that the foundation upon which the book is written appears to be valid based upon the objective data.
Consequently, both plaintiff and defense attorneys should move away from the popularity of Reptile and its fear appeals and instead focus on the violation of core principles (and the anger derived from those basic violations) as the key factor driving nuclear verdicts. This is where jurors are triggered and should be the primary focus of all parties involved.