The Reptile Strategy

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On rare occasions, PG provides a window into some lawyer stuff.

For a little background on this particular window, for decades, a group of lawyers often described as the plaintiffs tort bar – specializing in representing injured people in their claims against (usually) large and wealthy defendants or the large and wealthy liability insurance providers from whom the defendants have purchased liability insurance coverage of various types – have been developing and (sometimes) sharing strategies for increasing the size of jury awards for their clients.

Since big-time personal injury plaintiffs attorneys almost always represent an injured individual or group of injured individuals on a contingency-fee basis, increasing the size of jury awards is definitely viewed as a good thing in the plaintiffs tort bar.

A brief definition of contingency fees – In the US in most federal and state personal-injury litigation, in lieu of the injured person(s) paying a flat fee or hourly fee to an attorney who is seeking compensation for their injuries, the attorney will often undertake representation on a contingency fee basis.

The usual form of the contingency fee agreement between attorney and injured client is that the client is not required to pay the attorney (or law firm) anything to undertake representation of the client. The only way the attorney will be compensated is by receiving a percentage of the amount the client receives if the attorney succeeds in obtaining financial compensation for the client.

For example, if an attorney and client agree that the attorney will receive 33% of the amount the defendant (or the defendant’s insurance company) pays the client for his/her/their injuries, whether as a settlement or via a favorable verdict at trial, and, either under a settlement agreement or a verdict after a trial, the injured client obtains $100,000 in compensation, the attorney will receive $33,000 for his/her/their services and the client will receive the balance, $66,000.

If the attorney is unable to generate any money for the client, either through settlement negotiations or at trial, the attorney receives no fee.

Some jurisdictions inside and many jurisdictions outside the US do not permit a contingency fee agreement or regulate them in some manner, usually based upon the idea that the defendant’s attorney should not be financially motivated to generate a larger judgment against the defendant by financial benefits accruing to the attorney.

From the standpoint of an injured person without significant financial assets, without a contingency-fee arrangement, that person will be unable to afford to hire a competent attorney to assist her/him/them.

The key to the success of the contingency fee system is that many defendants purchase insurance to cover the types of claims which a policyholder will face if the policyholder injures someone. It is not unusual, for example, for a state to require that each driver must maintain insurance coverage in a specified amount to compensate someone injured in an auto accident in which the driver is at fault. (States with no-fault auto accident liability laws similarly require drivers and/or vehicles be insured.)

Such auto liability insurance policies are widely available. A bank or other financial institution financing the purchase of an automobile will usually require the owner of the car to purchase insurance coverage.

If claim is made that is covered by insurance, under most insurance policies, the insurance carrier will pay to defend the lawsuit. Usually, the insuror will select and pay defense counsel.

Generally speaking, only a relatively small group of attorneys is involved in very large litigation arising from the injury of one or more individuals (from the standpoint of the plaintiffs bar, the more the merrier). If a seriously-injured person goes to her/his/their family lawyer, that lawyer is likely to connect the client with an attorney who specializes in large personal injury matters, acting on behalf of injured people.

If an insurance carrier sees a major claim of any sort coming down the road, the company is likely to tap one of a relatively small number of well-established attorneys with a good track record of winning cases, either through a favorable verdict at trial or by minimizing the amount the insurance company is required to pay in damages.

The big-time plaintiffs attorneys and the big-time defense attorneys are in a perpetual running battle to come up with new strategies of persuasion to lead the members of a jury one way or another. Part of what you’ll see below is a peek into this trial strategy battle.

The Reptile Strategy was devised by David Ball, a trial consultant who “guides plaintiff’s civil cases and criminal defense cases across the country” and Don Keenan, an experienced personal injury attorney exclusively representing injured people.

From the website for Don Keenan’s law firm:

The Keenan Law Firm does not represent insurance companies, and each personal injury attorney in our firm is dedicated solely to the representation of the injured or deceased person.

The Keenan Law Firm has handled cases in over 47 states and 5 foreign countries. A significant amount of our cases come referred from lawyers all over the country. We gladly accept case referrals from other attorneys.

The Keenan Law Firm has received 378 verdicts and settlements over $1,000,000 including 14 over $10,000,000 and one over $100,000,000.

If you would like to purchase a copy of the Ball/Keenan title, Reptile: The 2009 Manual of the Plantiff’s Revolution by David Ball, Don Keenan, you can do so on Amazon for only $925.89 + $3.99 shipping + $67.13 estimated tax.

From Lexology:

The Reptile theory asserts that you can prevail at trial by speaking to, and scaring, the primitive part of jurors’ brains, the part of the brain they share with reptiles.  The Reptile strategy purports to provide a blueprint to succeeding at trial by applying advanced neuroscientific techniques to pretrial discovery and trial.

The fundamental concept is that the reptile brain is conditioned to favor safety and survival. Therefore, if plaintiff’s’ counsel can reach the reptilian portion of the jurors’ brains, they can influence their decisions; the jurors will instinctively choose to protect their families and community from danger through their verdict.  Thus,  the focus of the plaintiff’s case is on the conduct of the defendant, not the injuries of the plaintiff. The jurors are not interested in plaintiff’s injury, even when severe, according to the theory. Rather, the only truly effective  way to engage jurors is to demonstrate how the defendant’s conduct endangers the jurors and their families.

Link to the rest at Lexology

From Gallivan White Boyd, an insurance defense law firm:

In 2009, David Ball and Don Keenan published a book called REPTILE: The 2009 Manual of the Plaintiff’s Revolution (“REPTILE”). The $95 book is billed as a manual that teaches Plaintiff’s attorneys how to reduce tort reform’s impact on juries by using the jurors’ primitive safety and self-preservation instincts. For those who have not read the book, it begins with the premise that insurance companies, big business, et cetera, have convinced prospective jurors via tort reform propaganda campaigns that jury verdicts impact the economy in their community – that jurors walk into the courtroom with the understanding that jury verdicts threaten their basic survival. Keenan and Ball explain that jurors will disregard the facts and law to do whatever it takes to survive, and that tort reform has taken control of those survival-oriented decision making parts of the brain.

At first glance, it seems that the reptile strategy is a gimmick designed to bilk plaintiff’s attorneys out of $95; however, those who have faced the reptile strategy know that it can be dangerous. In fact, Keenan and Ball’s website boasts that the reptile strategy has been responsible for over $6 billion in verdicts and settlements. This article examines pertinent aspects of the reptile strategy and suggests two potential ways that civil defense lawyers can use reptile tactics to their advantage.

. . . .

In REPTILE, Keenan and Ball begin by providing the scientific background of the reptile strategy.  They explain that Yale Medical School and National Institute of Mental Health physician and neuroscientist Paul D. Maclean developed a theory that the human brain can be divided into a three-part “triune” brain.  See REPTILE at 13; see also Jay E. Gould, Triune Brain Concept . . . .   The theory suggests the first part of the human brain that developed was the “proto-reptilian brain.”  This part of the brain controls “feeding, fighting, and reproduction-the so-called Four F’s.”  The photo-reptilian brain, or “reptile brain” as it is called in REPTILE, is associated with survival instincts and protecting one’s genes.  In REPTILE, Keenan and Ball suggest that this part of the brain will override all other brain functions to ensure the survival of the genes.  The triune brain theory suggests that humans evolved to develop a second part of the brain, the paleo mammalian brain or limbic system, which is responsible for emotion, learning, memory, and various other increased levels of brain function.  The third step in the brain evolutionary process was the neomammalian brain or neocortex, which enhanced stimulus analysis, and added abilities such as language, planning, foresight, and hindsight.  The reptile theory suggests that the reptile brain remains in control of the other two parts of the brain, and that human beings will always do what it takes to promote safety and eliminate danger, above all else.  The reptile theory at its core suggests that if the jurors’ reptile brains can be controlled, so can the outcome of the trial.

Keenan and Ball believe that tort reform efforts during the 1990’s took control of the reptile brains of jury pools. Reason being, the stronger one believes his or her community to be, the safer he or she feels. Tort reform allegedly persuaded potential jurors that large civil lawsuit verdicts endangered the financial stability of the community, thus plaintiffs became a dangerous threat in the minds of potential jurors. Jurors now enter the courtroom with their reptile brains programmed to eliminate the danger to the community by returning a defense verdict (or a small verdict), regardless of the facts presented to them.

. . . .

One of the goals of the reptile strategy is to direct the jury’s focus to the total harm that could have happened, rather than the harm which actually happened. The strategy involves establishing “safety rules” that protect the public from harm and then showing that the defendant violated those rules. In order to make the jury care about the safety rule, the jury must be convinced that the rule protects the community, and by extension, the juror. A proper safety rule is broad and easy to understand. According to Keenan and Ball:

Some safety-rule violations are too specific to endanger the juror’s reptile. ‘A coal mining company is not allowed to turn the lights off while workers are in the mine’ applies only to the Reptiles of miners. But it becomes useful when positioned as a special case of a more general rule, such as, ‘A company must not needlessly endanger its employees’ or ‘A company is never allowed to remove a necessary safety measure.’ That connects it to everyone’s job.

A good reptile safety rule has six characteristics:

1. it must prevent danger
2. it must protect people in a wide variety of situations
3. it must be clear and simple
4. it must explicitly state what one must or must not do (e.g. drivers must travel at a safe speed)
5. it must have been easy for the defendant to follow (e.g. it is easy for the defendant to follow the steps of differential diagnosis
6. the rule must be one that the defendant has to agree with – or seem stupid, careless, or dishonest

The end goal is to show that the defendant chose not to follow a safety rule, and thereby endangered the community, and by extension, the juror (or someone the juror cares about). In theory, the juror’s reptile brain will then take over and will render a large verdict against the defendant to prevent the defendant from endangering the community in the future.

. . . .

The commentary suggests that witnesses should respond to broad questions regarding “needlessly endangering the public” by explaining that there are just too many undefined variables to answer such a general question definitively.

. . . .

As noted above, the reptile tactic involves establishing arbitrary safety rules which allegedly protect the public and then showing that the defendant broke those rules, thereby endangering the public. A defendant employing the reptile strategy on an affirmative defense will establish a simple safety rule that protects the public, and then show that the Plaintiff violated that safety rule, which endangered the public. Consider the following hypothetical:

John Doe is operating a piece of industrial equipment when it explodes, burning Doe severely, but no one else is injured. John Doe files suit, and Doe’s experts and the defendant’s expert agree that the explosion was caused by a loose fuel valve. It is undisputed that the loose fuel valve would have been discovered if Doe would have inspected it prior to the shift, and that tightening the fuel valve would have prevented the explosion. Doe’s employer told him he was responsible for performing a pre-shift inspection, but he was never instructed by his employer to specifically check to see if the valve was loose during the inspection. Doe’s employer did tell him that he needed to be familiar with the owner’s manual, and a label affixed to equipment directed him to the owner’s manual for instructions on how to inspect the machine. The Plaintiff claims that he did skim over the manual, but that he did not read the instruction regarding inspection of the valve at issue. The Plaintiff’s human factors expert says that the warning is buried in the manual, it is not color-coded correctly, etc. so the manual did not adequately instruct the Plaintiff regarding the inspection of the valve.

Obviously, in the hypothetical above, the defendant will want to show that adequate warnings were provided and that the Plaintiff’s failure to read the manual carefully is the true cause of the explosion. A reptile defense lawyer will engage the reptile brain of the jury by showing that the Plaintiff’s actions not only caused his injuries, but his actions also caused needless danger. Employing the reptile strategy, the defense may establish a safety rule and a violation of the safety rule as follows:

• Mr. Doe, you would agree that it is never ok to needlessly endanger yourself or your co-workers?
• And your employer gives you safety information which tells you how to avoid needless danger to yourself and your coworkers?
• And the plant where you work has people from the community come in to look around every now and then – students, employees’ spouses, customers, etc.?
• And you are never allowed to needlessly endanger visitors to the plant?
• And the safety information your employer gives you is meant to protect visitors to the plant from danger as well, correct?
• And you know that if you ignore safety information provided by your employer, you could endanger yourself and your coworkers, and any visitors?
• So, you must not ignore that safety information?
• And if that safety information is in writing when you get it, you should read it?
• Part of the safety information that your company gives you when you are training tells you to inspect the equipment before your shift?
• Because it is important to make sure the equipment is working properly before you operate it?
• Because if the equipment is not working properly, you, your coworkers, or visitors could be endangered?
• And there was a label on the equipment that said to read the entire operator’s manual, correct?
• And the safety information your company gave you told you to read the entire operator’s manual for the equipment, correct?
• And you admit that you did not read the section of the owner’s manual that told you to inspect the fuel valve?

Link to the rest at Gallivan White Boyd

PG couldn’t find an online version of Jay E. Gould, Triune Brain Concept, that wasn’t behind a paywall, but did find a paper on Google Scholar that includes the following quote in its introduction:

Look in the mirror, and don’t be tempted to equate transient domination with either intrinsic superiority or prospects for extended survival.

Stephen Jay Gould (2011)