Combating Reptile Tactics in Litigation
By: Beth C. Boggs — Boggs, Avellino, Lach & Boggs, LLC, St. Louis, Missouri | Submitted on behalf of the Trials PAC
Reptile: The 2009 Manual of the Plaintiff’s Revolution is a highly influential text for the modern plaintiff’s lawyer. Written by David Ball, a North Carolina jury consultant, and Don Keenan, an Atlanta plaintiffs’ lawyer, it describes a litigation strategy for plaintiffs that has come to be known as “the Reptile Theory” or “Reptile Tactics.” The strategy is designed to appeal to jurors’ fears and prejudices, so that that their decisions will be driven by their instincts and emotions. In a short span of time, the strategy it espouses has proliferated. Defense attorneys have also proposed various ways to counter its use. One straightforward method is to expose Reptile Tactics as basically Golden Rule arguments in new clothes, and bar their use through motions in limine.
The “scientific” core of Reptile Theory is that it there is a latent, “reptile” portion of the human brain. It is fearful and bent on survival. It stays dormant most of the time, thanks to evolution and the relative safety afforded by human civilization. However, it is ready to “awaken” to respond to perceived threats. Ergo, the goal of Reptile tactics is to provoke these fears in jurors, and to make the defendant the object of that fear. To that end, plaintiff’s counsel will attempt to paint defendant as a menace to the community, or perhaps even a threat to the jurors themselves. The jurors, as the defenders of community safety, must punish defendants who violate “safety rules,” in order to protect society and loved ones. The logical portion of the mind must be conscripted to act on behalf of the “reptile” portion’s desire for safety. Thus, plaintiffs counsel may argue that the jury has the power to improve the safety of their families and the community by rendering a verdict that punishes the defendant’s unsafe conduct.
The “science” behind Reptile Theory is the work of neuroscientist Paul MacLean. His hypothesis of a triune brain has been met with sharp criticism. Therefore, the Ball and Keenan’s explanation of the workings of the “reptile brain” should not be taken literally. However, the lack of legitimate scientific underpinnings does not mean that Reptile Theory can be simply ignored. To the contrary, many plaintiffs’ attorneys employing the strategy have enjoyed success.
The Reptile strategy often works through subtlety and suggestion, and it begins as early as depositions. The main focus is on the defendant’s unsafe behavior, not the plaintiff’s injuries. Questions that focus on “safety rules,” as opposed to the standard of care, can be a sign that a Reptile strategy is at work. A classic example involves medical malpractice. An attorney could seek to get the defendant doctor to admit that patient safety is the number one duty of a medical professional. However, this is not an accurate statement of the duty of care that a doctor owes. At trial, the strategy is at work any time the attorney is allowed to directly address the jury, such as during voir dire, opening statements, and closing arguments. The attorney can use these opportunities to attempt to persuade jurors that the Defendant’s behavior is threatening to the community, because it violates the safety rules that enable a peaceful society.
Motions in Limine
Defense attorneys face the challenge of finding ways to combat these tactics. Numerous commentators have suggested ways to do this in court, such as by appealing to jurors’ professionalism, creating a competing narrative, or showing the jurors how plaintiff’s counsel is attempting to manipulate them. Many of the methods are reactionary, hoping to undo the damage after it has already been done.
One way to be proactive is via motions in limine. Two key benefits of the motion in limine are (1) they can be made at any time, especially before trial, and (2) they resolve issues outside of the eyes and ears of the jury. A sustained objection may lead to a corrective instruction from the judge, but by that point plaintiff’s counsel may have already succeeded in influencing the jury. A successful motion in limine avoids this outcome by attempting to block certain tactics from being utilized in the first place.
The motion in limine can target any question or argument that suggests the jury utilize a standard of community safety or personal safety instead of the appropriate standard of care. In this regard, defense counsel can point out “safety rules” to protect the community at large are not a legal standard and are an irrelevant concoction brewed by plaintiffs attorneys. The duty of the jury is not to ensure the safety of the community at large, but rather, to determine whether the defendant breached the standard of care and caused harm to this particular plaintiff. The motion can also target any argument about potential harms that may occur in the future. Courts have held that it is inappropriate to suggest that a jury base its decision on the future impact of verdict on society.
Although the use of motions in limine to attack Reptile tactics is not rare, there are few reported decisions. One of the few reported cases concerning a motion in limine against Reptile Theory is Hensley v. Methodist Healthcare Hospitals, 2015 WL 5076982 (W.D. Tenn. August 27, 2015). This case involved a healthcare liability suit arising from a decedent’s medical treatment. Id. at *1.
Defendants filed a motion in limine seeking an order prohibiting Plaintiffs from offering testimony concerning violations of guidelines or safety rules or other “scare tactics” in order to establish the standard of care. Id. at *4. Defendants referred to Reptile Theory in making their motion. Id. The court acknowledged that the Reptile Theory encourages plaintiffs to appeal to the passion and prejudice of the jury. Id. However, the court denied Defendants’ motion, because it failed to identify specific evidence that was sought to be excluded. Id. The court noted that it would be on guard against any attempt to appeal to the prejudice or sympathy of the jury. Id. Thus, even if the motion in limine was not granted, it may have succeeded in placing the court on guard against any of the plaintiff’s ploys.
Golden Rule Arguments
Hensley highlights the difficulty in asking the court to prohibit a nebulous concept like “Reptile Theory” without specifics. Despite the scarcity of reported decisions mentioning “Reptile Theory” explicitly, a motion in limine to limit plaintiff’s tactics could be more successful if couched in terms more familiar to the court. Golden Rule arguments are already well-known to judges. The court may be more receptive to motions in limine seeking to forbid any Golden Rule arguments, instead of banning “Reptile Theory” wholesale.
The classic Golden Rule argument asks jurors to place themselves in the shoes of another person. This is forbidden, because it encourages jurors to depart from objective neutrality and decide the case on the basis of subjective personal interests and emotions. Golden Rule arguments, when recognized as such, are universally condemned. They encourage the jury to depart from neutrality and decide the case on the basis of personal interests and bias. Lovett ex rel. Lovett v. Union Pacific R. Co., 201 F.3d 1074, 1083 (8th Cir. 2000). There are numerous examples of successful motions in limine prohibiting Golden Rule arguments, even though the cases do not mention Reptile Theory. See United States v. Salash, 2013 WL 4820927 (N.D. Ill. Sept. 10, 2013); Shannon v. Koehler, 2011 WL 10483363 (N.D. Iowa Sept. 16, 2011); Howard v. Cassity, 2015 WL 410611 (E.D. Mo. Jan. 29, 2015). Therefore, a motion in limine that is based on the well-established disapproval of Golden Rule arguments might have better chances of success than one explicitly seeking to forestall Reptile Theory, which might be too vague. 
Although proponents of Reptile Theory may deny it, the strategy is not so much “revolutionary” as it is merely a way to circumvent the prohibition on Golden Rule arguments. Counsel lays the groundwork by establishing the existence of certain safety rules. These are standards which are meant to protect the safety of members of the public. Then, the defendant is cast as a threat to the safety of the community. Ball and Keenan advocate that plaintiff ask the jury to consider how likely the defendant’s act or omission was to hurt someone and how much harm it possibly could have caused. The attorney also points out that the defendant’s behavior could cause harm in a variety of situations, including situations that the jurors themselves could encounter as members of society. The goal of the strategy is to instill fear in the jurors: the only way they can keep themselves, their families, and their community safe is to award the plaintiff a large verdict. They can ensure that this kind of wrong will not be repeated by punishing the violator of the safety rules. Thus, these appeals to “community standards” or “community conscience” invoke the same theme of personal bias found in Golden Rule arguments.
Perhaps the best evidence of the threat that motions in limine pose to a Reptile strategy comes from the very text of Reptile itself. The authors deny any relationship with Golden Rule arguments. However, the amount of pages Reptile dedicated to the topic indicates otherwise. Almost one-fifth of their book is devoted to countering accusations that Reptile tactics violate the Golden Rule prohibition. Appendix B-1 of the book includes the leading case holdings on “Golden Rule” from every state. Moreover, Ball and Keenan explain that Reptile tactics rely on convincing jurors to make their decision based on “personal reasons.” This is a telling admission and fodder for a motion in limine. It is precisely this sort of personal bias that the ban on Golden Rule arguments was designed to address. Therefore, if defense counsel can expose the fact that many Reptile tactics are merely backdoor Golden Rule arguments, the court can easily prohibit them.
In a sense, what Reptile proposes is nothing new. At its heart, it involves an appeal the jury to decide a case based on bias and emotion. What is new is that Reptile outlines a comprehensive and often subtle litigation strategy. Defense attorneys must be prepared to counter it at every stage of the litigation. Depending on the situation, this can involve creative thinking, including composing a competing narrative and preparing witnesses to avoid “safety first” pitfalls. All too often, confronting new challenges in the law involves applying tested methods to new situations. Here, the motion in limine is a good example. This familiar tool can be used proactively to keep the jury from being poisoned. While even a successful motion in limine alone is unlikely to completely thwart a Reptile strategy, it is a useful weapon in defense counsel’s arsenal.
Beth C. Boggs is the managing and founding partner of Boggs, Avellino, Lach & Boggs, LLC in St. Louis, Missouri. Her practice focuses on the defense of civil litigation matters, including premises liability claims, insurance coverage disputes, insurance fraud, transportation, employment, construction defect, and professional liability. She recently received the President’s Award from the Women Lawyers Association of St. Louis.
 In fact, reptiles lack limbic systems, meaning they do not actually feel fear in the same sense that mammals do. Those who utilize Reptile tactics sometimes argue this misses the point.
 Stephanie West Allen, J.D., Jeffrey M. Schwartz, M.D., and Diane Wyzga, R.N., J.D. Atticus Finch Would Not Approve: Why a Courtroom Full of Reptiles is a Bad Idea. The Jury Expert, Vol. 22, Iss. 3, May 2010.
 Ken Broda-Bahm, Ph.D. Taming the Reptile: A Defendant’s Response to the Plaintiff’s Revolution. The Jury Expert, Persuasion Strategies, November 5, 2013.
 Bill Kanasky, Ph.D. Invalid, Yet Potentially Effective: Debunking and Redefining the Plaintiff Reptile Theory. For the Defense, April 2014.
 Minton Mayer, Make Boots Out of That Lizard—Defense Strategies to Beat the Reptile, The Voice (Sept. 25, 2013). Available at www.ettdefenseinsight.com/wp-content/uploads/2014/06/3374_001.pdf. Accessed October 26, 2015.
 For an example of a successful motion in limine coupling Reptile Theory tactics with Golden Rule references, see Palmer v. Virginia Orthopaidic, P.C., No. CL140006655-00, 2015 WL 5311560 (Va. Cit. Ct. June 19, 2015).
 In Scott v. Huntsman Cancer Institute, et al., No. 110917738 (Salt Lake County, Utah 2015), defendants filed a motion in limine seeking to prevent plaintiffs’ counsel from using reptile tactics. The docket shows that the Court did not restrict comments about the standard of care, but any golden rule arguments were prohibited.
 Kathy Cochran. Reptiles in the Courtroom. Available at www.dritoday.org/post/Reptiles-in-the-Courtroom/aspx. Accessed October 22, 2015.
 Paul E. Wojcicki. “Reptile” – Revolutionary Breakthrough or Good Old-Fashioned Clever Lawyering? Accessible at www.smsm.com/blogs-litigationblog,Reptile-theory-or-clever-lawyering. Accessed October 29, 2015.
 Timothy A. Weaver. Reptilian Litigation: A Guide to the So-Called Plaintiff’s Revolution. Wisconsin Defense Counsel Journal, Winter 2013. Available at: www.wdc-online.org. Accessed October 26, 2015.
 Benjamin J. Howard and Neil Dymott. A Field Guide to Southern California Snakes: Identifying and Collecting Plaintiff’s Reptile Theory in the Wild. The Update: Winter 2014, San Diego Defense Lawyers. Available at www.sddl.org/downloads/sddlupdate/SDDL_Winter2014_WEB.pdf. Accessed October 23, 2015.