“Would you describe yourself as a safe person?”
“One who follows the rules of the road and looks out for the safety of others?”
“Are safety rules important to our society?”
“Do you value the safety rules of your community?”
“On the day of the accident, is it safe to say that you violated the safety rules of the community and put others at risk of potential harm?”
The above are just samples of common questions asked by a Plaintiff’s attorney seeking to employ the widely known Reptile Theory during discovery and trial of a personal injury case. This rising theory and approach amongst Plaintiffs’ attorneys seeks to tap in to a jury’s primal senses of danger and encourage them to award higher damages in an effort to discourage “dangerous” behavior they perceive from the Defendant.
“Despite the misuse of neuropsychology, what Ball and Keenan get right is encouraging plaintiff attorneys to convey “the immediate danger of the kind of thing the defendant did, and how fair compensation can diminish that danger within the community.” In order to generate this sense of immediate danger within jurors they “urge plaintiff’s lawyers to frame a case so it appears that every defendant chose to violate a safety rule.” For Ball and Keenan, “every wrongful defendant act derives from a choice to violate a safety rule,” and thus the courtroom becomes a safety arena wherein damage awards enhance safety and decrease the danger posed by the defendant.” Ryan A. Malphurs, Ph.D. and Bill Kanasky Jr., Ph.D., Confronting the Plaintiff’s Reptile Revolution: Defusing Reptile Tactics with Advanced Witness Training, Litigation Psychology, 2014, available at www.courtroomsciences.com.
There are several ways to combat the implementation of this theory, but none will be effective if your defense counsel is not even aware of its use. This approach must be recognized and combated from the beginning of a personal injury case in order to successfully overcome its use at trial. As this approach is commonly developed through discovery prior to trial, it is often too late to pose a successful fight against this approach on the day trial begins. Defense counsel must notice when the Plaintiff begins to strike at his/her heels during discovery using this theory and must be prepared to strike back.
As a young associate, I have learned from the wealth of experienced trial attorneys at Luther-Anderson, PLLP how to recognize and combat the reptile theory in a personal injury case from the beginning in order to limit a Plaintiff’s attempts to increase damages based on vague ideals of safety that are irrelevant to the matter at hand. This theory will continue to grow in its use as will other theories or approaches as they develop. As defense counsel, we are committed to monitoring and guarding against these approaches in order to best serve our clients.
Ryan A. Malphurs, Ph.D. and Bill Kanasky Jr., Ph.D., Derailing the Reptile Safety Rule Attack: A Neurocognitive Analysis and Solution, Litigation Psychology, 2015, available at www.courtroomsciences.com.
Bill Kanasky Jr., Ph.D., Debunking and Redefining the Plaintiff Reptile Theory, For the Defense, April 2014.
Ryan A. Malphurs, Ph.D. and Bill Kanasky Jr., Ph.D., Confronting the Plaintiff’s Reptile Revolution: Defusing Reptile Tactics with Advanced Witness Training, Litigation Psychology, 2014, available at www.courtroomsciences.com.
By: Eliza L. Epps, Associate at Luther-Anderson, PLLP