Whilst researching the drivers of social inflation, and in particular large awards in the US Courts, I came across the term ‘reptile theory’.
Having worked in insurance for a long time, I was surprised that I had not heard of this term before. I did some further digging and would like to share my findings with those who are unfamiliar with this concept.
What is reptile theory?
In 2009 a jury consultant, David Ball, and a plaintiff lawyer, Don Keenan, published a book called ‘Reptile: the 2009 Manual of the Plaintiff's Revolution’. This described how to influence jurors, and the term ‘reptile theory’ was coined, with the authors claiming $7.7 billion in verdicts and settlements from this tactic.
The approach advocated is to appeal to the oldest reptilian part of the brain, which is responsible for our primitive survival instinct. This includes the brainstem, cerebellum, and hypothalamus, similar to reptiles’ brains, and governs the most basic life functions, such as breathing, hunger and the instinct to ‘fight or flight’. This part of the brain takes over when survival is threatened and can overpower logic and reason.
The plaintiff lawyer encourages jurors to perceive the defendant’s alleged conduct as a threat to their own personal safety and the safety of their families and community, rather than deciding the case based upon considering the specific dispute between the plaintiff and the defendant.
Neuroscientists have subsequently pointed out that reptile theory is based on a false scientific premise, but the authors claim evidence of the success of their approach, even if the science behind it is a bit shaky.
Sidestepping the Golden Rule
Reptile theory evolved to sidestep the classic Golden Rule legal argument which asks jurors to place themselves in the shoes of another person. This is not allowed in court, because it encourages jurors to depart from being objective and decide the case based on subjective personal interests and emotions.
How does reptile theory work?
In summary, the reptile theory approach is to:
- Set up the rules for how something should be done safely to protect the public;
- Get the witness to say how terrible it would be for society if those rules weren’t followed;
- Demonstrate a breach of the rules, however minor a breach; and
- Instil fear in the jury to convince them that the defendant should be heavily punished, including punitive damages, as a warning to others.
There are numerous examples where reptile theory tactics have been used:
- A Florida attorney received a $2.6 million verdict for his client who was run over by a beach patrol truck while sunbathing;
- A New Mexico attorney settled a deadly car accident involving a truck for $2.5 million; and
- A South Carolina attorney received a record $50 million verdict for a motor vehicle death case.
The defence strikes back
Defence attorneys tend to operate differently from plaintiff attorneys. For one thing, plaintiff attorneys generally get a share of damages and are therefore incentivised to target big settlements through more aggressive tactics.
So how do defence attorneys fight the reptile theory tactics? Here are some suggestions:
- Spend more money earlier. Defence attorneys tend to be too slow to spend, and spend too little, on upfront litigation costs.
- Call out reptile theory tactics when you see them being used as a strategy: make sure the judge is aware of what is going on.
- If you can’t beat them, join them! Be more aggressive and creative, like plaintiff attorneys.
Conclusion
Hopefully my blog has brought your attention to a courtroom tactic that you were unaware of, and you have learnt something you didn’t know. I certainly did during my research.
The impact of reptile theory on awards may have lessened over recent years as the tactic is more widely recognised, but there are still plenty of other factors out there driving social inflation. That will have to be the subject of another blog!