Spring is the time of year when we start hearing warnings about reptiles, particularly the  Western Rattlesnake, the most common venomous snake in California.  A somewhat different danger to defendants in lawsuits is the expanding use by plaintiffs’ attorneys of the “Reptile Theory,” a tactical strategy which uses psychology to persuade jurors to engage their primitive instincts of fear and protection when making decisions regarding liability/damages.

The strategy seeks to persuade jurors that a defendant’s conduct presents a threat to people (jurors) and society in general. The juror is encouraged to find liability and award a large verdict to protect the population as a whole.  Basically, it puts the power to protect people and to punish defendants into the hands of jurors.  Defendants are often presented as greedy individuals or companies that do not care about the concepts of safety, community or society.

The Reptile Theory can be engaged early in litigation.  Training employees and managers to be wary of the reptile method in discovery is a must, particularly for those employees responsible for making policy decisions. Defense experts can also be subjected to questions about safety and its importance to the community as a tactical ploy. Questions about what is “right” and “wrong” creates the perfect opportunity for the juror to embrace the power plaintiffs’ counsel has told them they have.  Protect my client!  Protect yourself!  Protect us all from this corporate greed! 

Often questions are presented to deponents that suggest that the only possible answer to the question that is being asked is that which has been proposed by the plaintiff’s counsel within the question itself.  Much like a snake, the Reptile Method is often slippery and may go unnoticed until it is too late to avoid the strike!

Successful use of the Reptile Method is evidenced by sizable jury verdicts. Some examples: In  2016, a slip and fall case against Lowe’s resulted in a $16.4 million dollar verdict, reduced to just over $13 million after the jury assessed 20% responsibility to the Plaintiff  for failing to see a warning cone.  In 2015, alleged traumatic brain injury and facial injuries against a trucking company resulted in a $17.3 million verdict.  In 2014, there were multiple cases with 7-figure verdicts in California for wrongful death associated with asbestos. Defendants included industrial products manufacturers and auto brakes suppliers, who oftentimes had little to no clear liability.

Typically, jurors in those cases were swayed by the arguments which emphasized the high profile of the national retailer, transportation company or manufacturer and their seeming indifference to safety, emphasized only by a failure to recognize the Reptile Method early in discovery and deposition testimony, and then later at trial. Post trial news conferences by successful reptile counsel are similar:  “This jury says, ‘Well if you hurt one of our community citizens, you will pay and you’re not going to get away with it.’”  This is the heart of the Reptile Method, and is dangerous if not recognized and combated early.

Answers to reptile questions are rarely black and white. Each fact pattern is different, and every damages scenario has to be dealt with on a case-by-case basis.  Often the response to a particular set of questions requires examination of the particular situation independently, and the given answer depends upon those unique circumstances.

Here is some good news:  Courts are no longer allowing this “Good versus Evil” approach.  Decisions are now made with the caveat the impassioned pleas of counsel for jurors to be guardians of the greater good are improper.  As one recent Appellate Court decision so aptly put it, “The law, like boxing, prohibits hitting below the belt. The basic rule forbids an attorney to pander to the prejudice, passion or sympathy of the jury.”

At trial and especially in voir dire, (questions during jury selection to identify potential bias),  prospective jurors must be informed early on that the power entrusted to them does not require them to become the gate keepers for society.  In combating the Reptile Method, the ultimate goal is that jurors will assess a case on its actual merits.

The partners at B&G have been at the forefront in combating the Reptile Method, beginning early in litigation and have presented on this issue of combating the Reptile Method on several occasions throughout Southern California.