Nicholas P. Hurzeler | Lewis Brisbois
The “Reptile Theory” is a trial strategy that attempts to use fear and anger to make the jury dislike the defendant so strongly they will award a plaintiff a grossly excessive amount of damages. The plaintiff’s attorney will seek to activate the jurors’ “survival mode” instincts by presenting the defendant’s conduct as highly dangerous and worthy of punishment. The defendant’s conduct will be portrayed as a threat to the safety of the general public, and the award as a deterrent needed to protect the community at large. The Reptile Theory appeals to the jurors’ emotions in place of any rational, impartial evaluation of the evidence.
The term “Reptile Theory” originated in the writings of nuero-physiologist Paul D. MacLean in the 1950s, who suggested that one major part of the brain consisted of a “reptilian complex” that controlled instinctive behaviors involved in aggression, dominance, and territoriality. Then in the 2009 publication “Manual of the Plaintiff’s Revolution” by David Ball and Don Keenan, the authors first described the “Reptile Theory” in the context of litigation. Since then it has become a hot topic in litigation as defense counsel develop methods to combat “Reptile” tactics resulting in runaway jury awards.
A plaintiff’s attempt to use Reptile Theory begins with discovery responses and depositions, and continues in jury selection. It is therefore important to properly prepare your clients for questions incorporating “Reptile” strategies at the deposition, and to make the proper objections during the deposition. Then, defense counsel will primarily rely on motions in limine to hopefully convince the judge to preclude the Reptile Theory, particularly in opening statements and summations. Our office has had success in precluding the Reptile Theory by arguing at trial that the standard of care is not “the good of the community,” or “safety standards,” but controlling statutes and pattern jury instructions. In several cases, judges have accepted our argument that the plaintiff should be precluded from making such statements because they are prejudicial, vague, amorphous, and would distract the jury from the governing statutes and jury instructions.
As it turns out, however, there is very little legal authority that speaks to Reptile Theory in particular. The case law is somewhat undeveloped, without clear guidelines regarding what “Reptile” tactics are considered out of bounds. There is no statutory authority on Reptile Theory in particular (with the exception of a recently passed bill in the Texas legislature), and the case law is scarce to the point that many states have no published opinions at all that specifically apply to it. However, the Reptile Theory does fall under the broader topic of inflammatory and unduly prejudicial trial tactics. Every state has case law on that topic, as do the federal courts. There is also a body of case law on the closely related “Golden Rule” tactic, when the plaintiff’s attorney asks the jurors to treat the plaintiff as they themselves would like to be treated.
Below are some examples from the few state cases that specifically address Reptile Theory:
- Regalado v. Callaghan, Cal.App.5th 582, 597-599 (2016)(playing to the jury’s emotions during closing arguments by employing the “Reptile Theory” is improper);
- Fitzpatrick v. Wendy’s Old Fashioned Hamburgers of New York, Inc., 96 Mass. App. Ct. 410 (Mass: Appeals Court 2019)(reversing trial court ruling that granted the defense a mistrial based on Reptile Theory);
- Hensley v. Methodist Healthcare Hosps., No. 13-2436-STA-CGC, 2015 WL 5076982, at 5 (W.D. Tenn. 2015)(denying motion to exclude Reptile tactics at trial where the defendants “have again not identified the specific evidence that is sought to be excluded”; however, “any attempt by either party to appeal to the prejudice or sympathy of the jury will not be condoned”);
- Glover v. State, No. 10-2-35124-8, 2015 WL 7355966 (Wash. Super. Ct. 2015)(granting motion to “[p]reclude any attempt by plaintiff’s counsel to utilize the Reptile Strategy”);
- Palmer v. Virginia Orthopaedic, P.C., No. CL14000665-00, 2015 WL 5311575 (Va. Cir. Ct. June 19, 2015)(granting “[m]otion in limine regarding use of Reptile Theory Tactics, Golden Rule references, or other ‘safety rules’”);
- Berryhill v. Daly, MD, No. STCV1102180SA, 2015 WL 5167586 (Ga. State Ct. May 8, 2015)(motion to exclude Reptile Tactics denied, but “parties may not violate the ‘golden rule’”);
- Scheirman v. Picerno, No. 2012CV2561, 2015 WL 4993845 (Colo. Dist. Ct. April 16, 2015)(motion to exclude Reptile tactics denied after finding that “[a] general rule prohibiting Plaintiff from referring to rules or standards is not workable in that it could preclude Plaintiff from arguing at all about the standard of care and is denied. As stated above, the Court will, however, prohibit direct appeals that violate the Golden Rule”);
- Hutson v. Rooney, MD, No. 142045603, 2015 WL 3455867 (Wash. Super. Ct. 2015)(denying “[m]otion to exclude use of ‘reptile strategy’ which includes evidence and argument by Plaintiffs referring to general physician ‘safety rules’, arguments asking jurors to place themselves in Plaintiffs’ position, or arguments that a jury should ‘send a message’ or otherwise punish Defendant,” but stating that “the Court assumes all of plaintiff’s arguments will comply with the Court Rules, the Rules of Evidence, and the medical malpractice statute. . . The court will consider any legal objection made at trial”);
- Pressey v. Children’s Hosp. Colorado, No. 2013CV72, 2015 WL 1583852 (Colo. Dist. Ct. 2015)(trial court was “handicapped because of its unfamiliarity with the Reptile Strategy” and denied a motion to exclude Reptile tactics, plaintiff obtained $17.8 million jury award against hospital).
For those states that do not have any written opinions on Reptile Theory in particular, such as New York, defense counsel can rely on more general rules proscribing “inflammatory” and “prejudicial” remarks, or appeals to the jurors’ emotions and passions. Bagailuk v. Weiss, 110 A.D.2d 284, 287 (3d Dept 1985)(“plaintiffs’ counsel’s grasping for the minds of the jury through these inflammatory, prejudicial and erroneous comments so contaminated the trial at a critical stage as to deny defendant’s right to a fair trial. We conclude that the errors were fundamental and require a new trial in the interest of justice and the exercise of discretion”); see also, Rivera v. Bronx-Lebanon Hosp. Center, 70 A.D.2d 794, 796 (1st Dept. 1979); Rodriguez v. Cato, 63 A.D.2d 922 (1st Dept. 1978).
In federal court, the defendant can move to preclude Reptile Tactics under FRCP 403, which is titled “Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons.” Additionally, although “courts usually permit reasonable latitude in counsel’s final arguments to the jury … advocacy is circumscribed both by an attorney’s own professional responsibility and the court’s obligation to provide the parties a fair trial.” Edwards v. Sears, Roebuck & Co., 512 F.2d 276, 283 (5th Cir. 1975). “Obviously, awards influenced by passion and prejudice are the antithesis of a fair trial.” Whitehead v. Food Max of Miss., Inc., 163 F.3d 265, 276 (5th Cir. 1998). “A new trial … is the appropriate remedy when a jury award results from passion and prejudice.” Id. at 275 (citing Caldarera v. Eastern Airlines, Inc., 705 F.2d 778, 782 (5th Cir. 1983)); Solorio v. Atchison, T. & S. F. Ry. Co., 224 F.2d 544, 547 (10th Cir. 1955)(“abusive and inflammatory argument is improper. And strong appeals in the course of argument to sympathy, or appeals to passion, racial, religious, social, class, or business prejudice lie beyond the permissive range of propriety).
Eventually the law will catch up and provide more specific guidance on Reptile Theory. In the meantime, defense counsel can combine what law there is with the more general principles described above, and with case law on the “Golden Rule,” in support of a motion in limine at the trial stage. By this method, defense counsel can attempt to convince a judge at trial to exclude any questions and/or answers premised on Reptile Theory before it taints or inflames a jury.