Source of the following article Persuasive Litigator.
By Dr. Ken Broda-Bahm:
The Reptile approach to trying plaintiffs’ cases has been around for a decade. It is now expected that many of those seeking damages in products, medical liability, and other personal injury cases, will use a persuasive approach that attempts to awaken jurors’ reptilian fear response and instinct to protect the safety of themselves and their community. While the approach is not new, defendants continue to search for the best ways to respond. And one question in that search is whether defendants should become Reptiles themselves. Is this a case of “Fight fire with fire,” or is it more a case of “The master’s tools will never dismantle the master’s house”? One recent article sides with the first of those sayings. In the December issue of DRI’s For the Defense publication, a defense lawyer and two consultants (Motz, Kanasky & Loberg, 2018) advocate the “Reverse Reptile” as a technique for the defense in many cases. Looking at the article, it is not so much a reverse Reptile as much as it is a case of the same Reptile tactics simply being directed at new targets: co-defendants or the plaintiffs themselves. The foundation is still the “safety rule” and the simple chain of yes/no questions to get a witness there. As the authors summarize the defense message in a construction case, “Safe workers must do X, Y, and Z, and coincidentally, the plaintiff (or the co-defendant) violated X, Y, and Z on the day of the incident.”
The advocates of the “Reverse Reptile” do include some qualifiers, noting that the idea of tying plaintiffs and co-defendants to their own safety rules is not useful in all cases, but are generally limited to cases where there is a clear distribution of fault with some responsibility reasonably resting with other defendants and with the plaintiff. I would go farther, however, and caution that in most or nearly all cases, defendants should be very careful about embracing the language and the logic of the Reptile. I believe those serious reservations are warranted because of the many ways that a defendant’s use of Reptile tactics can backfire on the defendant, reinforcing some of the Reptile’s core principles and, ultimately, helping the other side. In this post, I will outline those ways it could boomerang.
‘Reverse Reptile’ Can Backfire
Because You’re Reinforcing the Plaintiff’s Frame
The watchword for the Reptile is “safety.” That differs from the more appropriate language that the law prefers: “reasonable care” or “the standard of care.” That’s not a minor difference. Safety is an absolute, an ideal, and in many cases, a practical impossibility. Plaintiffs prefer the idea of safety because it is intuitively understood by jurors, but also because it raises the bar and sets a standard that is more onerous than the law requires. A physician who is expected to “keep the patient safe” has a much higher level of responsibility than a physician who is merely expected to “exercise reasonable care in their treatment.” For that reason, any embrace of the language of safety, and any step that tells jurors that safety is the right lens, will end up helping the plaintiff. Attempting to trip up a co-defendant or the plaintiff on a safety rule question could provide a brief tactical win, but only at the cost of a broader strategic loss.
Because You’re Sacrificing Your Best Defense
The Reverse Reptile authors advise, “Defense counsel can lock a plaintiff, a co-defendant, or their experts into unfavorable testimony that will appear hypocritical to any audience.” Yes, but the problem is that your simultaneous use of and defense against the Reptile might also sound hypocritical. The problem the authors note is that even while thinking about using the Reptile to help your side, you’ll also be preparing your own witnesses to withstand the same Reptile tactics when they’re aimed in your direction. And the response from your own witnesses to many of the simplistic safety rule questions will be, “It’s not that simple.” So when questioning their witnesses, you don’t want to undercut that message by saying that it really is that simple after all. In several extended examples, the Reverse Reptile authors follow the pattern of Reptile adherents in assuming that unprepared witnesses will be easily cornered by a broad and simplistic statement and will answer with a clear “Yes” rather than responding with the best defense, which is to reject simplicity, answer in their own words, say “it depends,” and otherwise push back with realistic complexity.
Because You Could be Undercutting Your Motion in Limine
At least one arrow in the quiver against the Reptile is the potential for a motion in limine in order to limit the most overt elements of the plaintiff’s strategy to leverage community fear, embody ‘golden-rule’ thinking, and incite jurors to “send a message.” While most courts have been reluctant to grant broad motions excluding the use of the Reptile strategy (because the strategy itself is fairly broad), they have been more amenable to narrowly-tailored motions that identify particular techniques. So defense lawyers should be wary of practicing those same techniques. For example, appeals that specifically embrace the language of “safety” and “the community” have been limited by some courts. Even when a motion in limine does not succeed, many defendants still like to use them as a way of putting the judge on notice and providing a background for objections made in the course of trial. When, however, the defendant has tried to apply some of these same Reptile strategies, it gives the plaintiffs an opportunity to say, “Your honor, both sides are using this language…. It is just the nature of the case.”
Because a Little Knowledge Can Be a Dangerous Thing
Early in the article, the Reverse Reptile authors note, “What makes the Reptile approach so damaging is how simple and straightforward it is.” But questions that come off as simple are not always simple to construct or simple to practically apply. There is quite a bit of art and nuance to it. As they note, plaintiffs’ attorneys are paying thousands of dollars for literature and training programs — programs that exclude defense lawyers as a matter of policy. If a defense attorney has just seen some example of a Reptile strategy and read a few articles, they are not getting the same foundation. That creates the risk that a defense lawyer will take a stab at a question that ends up reinforcing the themes and strategy of a more prepared and more Reptile-savvy plaintiff.
Because Blame Can Backfire
The final problem is one that I am surprised the Reverse Reptile authors do not consider. When it comes from defendants, a strategy of passing the buck on blame can and often does backfire. Wherever possible, defendants should be aligned. As every good plaintiff knows: When the defendants are blaming each other, then you are more than halfway to your verdict. It might be psychologically satisfying to point a finger, especially when there is real blame to go around. But the message for jurors is that there definitely is liability and damages, and it is just a question of how much to award and allocate for each party. Blaming the plaintiff can similarly backfire. It reinforces the objective of finding fault, and for some defendants, like doctors, it can be viewed as inconstant with their roles: Doctors should help patients, not blame them. The problem with the Reverse Reptile is that, fundamentally, it isn’t defense. It is a parallel offense with a different target.
So What Do You Do?
The reason that the Reptile approach works for plaintiffs is not just the use of “safety-rule” questions, which actually predated the Reptile. Rather, the main strength of the perspective is that it speaks to motivation, answering the question, “Why would a juror want to find for your side?” Defendants can and should pose that same question. While they won’t necessarily be promoting community safety, and wouldn’t necessarily want to reinforce that as the litmus test, they likely are supporting other principles: fairness, personal responsibility, progress, etcetera. Looking at your own case, ask what principle you are fighting for and build that language into your own trial message and questioning strategies.
The Reptile also works for plaintiffs because it oversimplifies. So defendants for their part should push back with realistic levels of complexity. A true “reversal” on the Reptile means breaking the simplistic assumptions of “safe” or “unsafe,” and bringing in the full context of relative, context-dependent, and often voluntary levels of risk. For example, a physician is not simply opting for the “safe” and shunning the “unsafe,” she is trying to balance patient benefits against patient risks in order to create the best outcome possible in a given situation. Getting the jury to understand that is what truly reverses the reptile.
As far as adopting the Reptile as one’s own, there may be some cases where, for a defendant, turnabout is not just fair play, but strategic play as well. But in most cases, the best advice is to be cautious. The Reptile’s tools are not going to dismantle the Reptile’s den, and if both sides are using Reptile tactics, the chances are better than ever that this is thematically and strategically going to help the plaintiff.
Other Posts on Reptile:
- Be Craftier than the Snake: Observations from DRI’s 2018 ‘Reptile’ Seminar
- The Plaintiff Is a Reptile, so Turn Your Witness into a Mongoose
- Don’t Fear the Reptile
Motz, P., Kanasky, B., & Loberg, M. (2018). The ‘Reverse Reptile:’ Turning the Tables on Plaintiff’s Counsel. For the Defense. December, 2018.
Image credit: 123rf.com, used under license, edited.