Snakes Under the House: How The Reptile Theory is Slithering Into Construction Defect Litigation and How to Combat It

Author: Elizabeth Terrill, Kathryn Besch

November 26, 2017 11:57am

Safety is a top priority at your company, right?”  This seeming harmless question is just one example of a set up for the reptile theory, a technique plaintiffs’ attorneys use to evoke juror anger in an effort to elicit higher verdicts.  The technique, which relies on triggering a sense of danger in jurors, has become so common, many attorneys fear the word “reptile.”  And, for good reason – the reptile can be a dangerous creature.

General Background:

“Reptile Theory” strategies were first formally discussed by attorney Don Keenan and jury consultant David Ball in their 2013 book, The Reptile in the Mist.  At the time of this article, their website boasts a total of $7.4 billion in reptile verdicts and settlements nationwide.  While the reptile is most widely known and utilized in the bodily injury arena, the theory applies to many practice areas.  Specifically, we have started seeing use of reptile theory in construction defect litigation in relation to defect allegations relating to life and safety.  Plaintiffs’ attorneys have started using reptile theory in construction defect to invoke juror anger and fear in an effort to drive up damage awards against design professionals, contractors, and subcontractors.

So What is the Reptile?

The reptile theory seeks to reduce jurors to their basest animal instincts by tapping into the sense of fear and need for survival.  Specifically, these tactics target the “reptile” brain, a primitive, subcortical region of the brain housing survival instincts.  The science behind the reptile theory relies on the most basic instinct shared between humans and animals: aversion to danger.  In effect, the reptile theory is designed to shift the jury’s focus from the law – or, more specifically, standard of care – to absolute safety at all costs and total absence of danger.  Moreover, it informally appoints jurors as guardians of community safety.

Reptile tactics start by getting a defense witness to agree with a very broad premise.  From this agreement, plaintiffs’ counsel will create a safety rule, then attempt to show the safety rule has been broken in the specific case.  These tactics promote the primary goal of the reptile: to make jurors feel an immediate danger arising from the kind of thing the defendant did.  The jurors will then be asked to diminish danger to the community by awarding damages.  The focus of the case becomes the conduct of the defendant rather than the injuries of the plaintiffs.  In construction defect litigation, we are seeing this applied to areas of construction and design where safety is a consideration, such as fire sprinklers, electrical, stairs, railings, etc.

Currently, negligence in construction defect cases is primarily established by showing a party “fell below the standard of care.”  Standard of care is determined by the community standards for a developer, design professional or subcontractor.  Parties may also look to applicable building codes and standards such as SB800.

When used effectively, the reptile theory can completely hijack the “standard of care,” convincing jurors no potential for harm is acceptable.  Specifically, even if a defendant was not legally required to take a certain action, he should have taken that additional step to protect the community.  For example, even if the plans called for a specific installation of a specific product and the generally accepted principles for that subcontractor permitted that installation, reptile theory may convince a jury that, if the subcontractor knew an alternative product was “safer” and would have prevented the harm complained of, he should have installed that alternative product.

The reptile theory violates prohibitions on using the “Golden Rule” and invokes principles of community harm, while taking advantage of 20/20 hindsight and changes in construction requirements (typically to become more stringent) over time.  Perhaps the most dangerous aspect of the reptile is how easily it can be disguised and offered into evidence in the form of unsuspecting testimony.  This can lead jurors to award large damages to punish the wrongdoer in order to enhance safety or minimize danger to the community.

However, the reptile is not invincible.  It is possible to limit testimony supporting the reptile, exclude reptile evidence, and keep the jury from falling prey to the reptile.  Read on for our strategies to slay the reptile.

Defense Strategies for Slaying the Reptile:

  1. First, You Must Spot the Reptile

Like a snake hiding in the grass, the reptile can be difficult to spot.  The key is to recognize signs before too much damage is done.  You can be sure plaintiffs’ counsel will implement reptile techniques at the earliest opportunity.  So, be on the lookout for the reptile in depositions.  You should listen for the creation of a “safety rule” in questions.  Be on guard for overly broad and all-encompassing questions referring to safety, risk, and community or eliciting agreement to “always” or “never” questions.  Object to reptile questions as appropriate — a few objections to consider are incomplete hypothetical, vague and over broad, calls for a legal conclusion, not reasonably calculated to the discovery of admissible evidence, and misstates applicable law (especially if counsel is trying to shift the standard of care).  The best defense to the reptile starts early!

  1. Prepare Your Witnesses for the Reptile

Slaying the reptile involves getting defense witnesses on board.  Show witnesses what the reptile looks like.  Many set up questions for the reptile theory sound reasonable at first.  Make sure witnesses avoid the trap of overbroad “yes” and “no” questions by being able to qualify when necessary and explain inherit risks in answering these questions without qualification.  This is even more important for “always” and “never” questions.  Remind witnesses to ask for clarification if they do not understand a question.  Teach witnesses to limit broad questions to specific facts and to view them from the perspective of when the work occurred.  For example, answers including “it depends on the circumstances” or “not always” acknowledge the general question may be true in some circumstances, but not necessarily all the time or in the facts of the case.  With respect to construction defect actions, appropriate answers may also include reference to reliance upon design or specifications of others.

  1. Use Risk-Benefit Analysis

A hidden danger of the reptile is subtly shifting the jury’s perception of the standard of care.  Plaintiffs’ counsel will use the reptile theory to suggest any decision other than the safest choice is negligent.  However, in construction, the concept of “what is safe” has changed significantly over time.  While safety is always a concern, there are other factors at play in various decisions that are made.  This is where the a risk benefit analysis is critical to defend against the reptile.  And, remember to never allow the jury to lose sight of the true standard of care!

  1. Bring Motions in Limine

One of the most effective weapons to keep the reptile from rearing its head in court is a motion in limine.  Many judges are familiar with the reptile theory, while some judges will need education to understand the reptile theory is a carefully disguised violation of the Golden Rule.  Regardless of your judge, keep the reptile away from the jury with a motion in limine to exclude all evidence and argument based on the reptile theory.  In California, reptile arguments can be excluded for impermissibly heightening the standard of care and asserting Golden Rule arguments.  The reptile’s standard for using “the safest possible choice” does not reflect the standard of care in negligence cases.  What others could do or could have done is irrelevant – the jury’s deliberation should be based on the evidence.    

  1. Spin It

The best defense strategies work on the reptile too.  Spin the reptile theory by taking responsibility for something.  Give a defense number early and often.  Propose your own rule to counter the reptile (e.g., directions exist for a reason and not following directions may result in getting hurt) and discuss community standards.  Use techniques to diffuse the jury’s anger to prevent a runaway verdict.

  1. Expose the Reptile

Finally, reveal the reptile for the snake oil it is.  Tell the jury plaintiffs’ counsel is using mind games to take advantage of them.  Explain the reptile theory is an attempt to use the primitive part of the jurors’ brains to detect danger to inappropriately allow bias and prejudice into the courtroom.  Show the jury the reptile and remind the jury of the controlling “standard of care.”  Nobody can be 100% safe 100% of the time.

Tyson & Mendes trains claims professionals nationwide on how to keep down damages, including how to identify and combat the Reptile Theory. If your team would benefit from an in-house training, please contact ClientRelations@tysonmendes.com.

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