Effective Defense against Reptilian Theory: A New Trend of the Plaintiff’s Bar to Maximize Injury Awards

Posted on April 15, 2016

By: Merielle Enriquez

There has been a recent trend in the Plaintiff's Bar to utilize what is colloquially known as "Reptile Theory" to maximize injury awards. The strategy is based on a book by David Ball and Don Keenan entitled "Reptile: The 2009 Manual of the Plaintiff's Revolution." The thesis of the book is the reptile's primary instinct of self-preservation. The theory is that a juror's impulse of self-preservation will override logic based on the evidence presented. The book advises Plaintiff attorneys to convert every issue into one of self-protection, which helps to compel the jurors to make their rulings due to a misguided sense of fear for themselves, despite what the evidence has presented. This tactic also influences the jurors to award large verdicts.

An example of this can be found in the context of a motor vehicle case, where a Plaintiff attorney will cross-examine the Defendant driver and ask: "Name three things you would have done differently to avoid the accident" (with an anticipated response by the Defendant that they "would have paid more attention," "drive slower," etc.). Another example is in the context of a product liability case, where a Plaintiff attorney will cross-examine a defendant manufacturer and ask: "What is the worst thing that could happen if a manufacturer fails to design safe products?" (with the anticipated response by the manufacturer that "someone would be injured" or "someone could lose a life.")

Issues of liability and damages must be based on the evidence, rather than prejudicial fears of self-preservation. In many instances, reptilian tactics are pretexts for Plaintiff's counsel to impermissibly invoke the Golden Rule and/or make appeals to the community conscience. In order to effectively defend against such tactics at trial, defense counsel must be trained to recognize such tactics and take measures to prevent such tactics by way of a Motion in Limine, or otherwise.

In Nevada, Golden Rule arguments are prohibited pursuant to Lioce v. Cohen, 124 Nev. 1 (2008). In Lioce, the Nevada Supreme Court stated that attorneys cannot make a Golden Rule argument, which is an argument asking the jurors to place themselves in the position of the Plaintiff. Although Plaintiff attorneys may not explicitly ask jurors to put themselves in the shoes of the Plaintiff under the Reptilian Theory, defense counsel must be aware of such disguised Golden Rule arguments and make the appropriate objections in Court.

Defense counsel must also be ready to argue that reptile tactics should be precluded on the basis of relevancy. Arguments related to generalities regarding personal or community safety are irrelevant and should be excluded. Jurors should only consider the evidence and circumstances presented to them, not hypotheticals regarding "the safest possible environment" as advocated by the Reptilian Theory.

Lastly, defense counsel must be prepared to advocate that such Reptilian testimony is more prejudicial than probative pursuant to NRS 48.035(1). Reptilian tactics tend to inflame the jury and the argument should be made that such testimony would be inflammatory and prejudicial.