What is the Reptile Theory?

The Reptile Theory is a well-known strategic approach primarily used by plaintiffs’ counsel in civil cases.[i] This theory is usually used in auto v. auto, trucking v. auto, construction, premises liability, and mass tort cases, and it focuses on the defendant’s behavior. This tactic encourages jurors to punish safety violators, ultimately influencing the verdict outcome. So how does this tactic work to override common sense and logic?

First, plaintiffs’ counsel shows how the violator, usually a defendant corporation, is dangerous and poses a danger to our community, which makes the jurors angry. It puts the jurors in the plaintiff’s position, violating the Golden Rule.[ii] The jurors feel the plaintiff’s pain because the tactic taps into “the juror’s ‘reptilian’ region of the mind, which is biologically sensitive to danger.”[iii] Second, it empowers the jurors to correct the behavior and protect the community by awarding a large verdict. It makes jurors believe a larger verdict will deter future dangerous behavior.

Prepare to Slay the Serpent

Early preparation and education for your deponent are key to slaying the dragon. This is not the typical 101 deposition prep. Educate the deponent on plaintiffs’ tactics and the rationale behind them so they are able to spot a Reptile trap. Give them better answers; teach them how to tackle these questions.

Spot the Bait!

Identifying plaintiffs’ counsel’s tactics and Reptile strategies can be a key defense strategy. Review plaintiff’s complaint and or interrogatories for “safety” trigger words. These are hints the plaintiff’s counsel may go for the Reptile strategy:

• Safety violation(s)
• Needlessly endanger.
• Public Safety
• Describe all warnings.
• Community dangers
• Community harm
• Duty to protect
• Duty to follow all safety rules

When plaintiff’s counsel begins asking generalized safety questions…that’s where the trap often lies. Look out for questions which seem reasonable but ultimately shift the goalposts of the standard of care.

What Does It Sound Like?

Q: As a safety manager, you would agree safety is your priority correct?

A: Yes

Q: As a truck driver for X, following all safety rules of the road is your priority, right?

A: Yes

Q: You would agree you should never needlessly endanger the community, correct?

A: Yes

Q: If you see (a), (b), the safest thing to do would be (c), correct?

A: Yes

Q: You saw (a), (b), but failed to do (c), correct?

A: Correct.

Prep for The Reptile

Preparation is key. Let plaintiff’s counsel know you know their game. Reverse the reptile and object on the record, which will set the tone for motion work. If you spot the Reptilian approach early on, it may warrant a pre-deposition motion for protective order. Doing so will educate your judge on these plaintiffs’ tactics and set the tone for motions in limine.

Do not shy away from this tactic and hope you get a friendly plaintiff’s counsel who may forget to ask the hard questions. Face it head-on; anticipate plaintiff’s counsel’s lines of questions. Object on the record to reptile theory tactics.

How can you prepare? Roleplay with your deponent. Play plaintiff’s counsel’s character. Prepare your deponent to show them how easy it is to fall into that trap of agreeing to the safety questions and prepare them for how persistent plaintiff’s counsel may be. Your deponent will appreciate it. Instill confidence in your deponent. Educate them on how important they are and how important their testimony is to the case. Plaintiff’s counsel is relying on easy affirmative responses to their safety line of questions. When refuted, the “ensuing questions become impotent and ineffective.”[iv]

Responses can vary in reversing the reptile, but here are a few examples of generalized responses to plaintiffs generalized safety questions.

Q: As a safety manager, you would agree safety is your priority, correct?

Better Responses:

A:  I agree that safety is one of our many priorities.

A:  Generally, safety is a priority for all.

A:  That is a broad question, can you be more specific?

Q: As a truck driver for X, following all safety rules of the road is your priority, right?

Better Responses:

A:  That is one of our many priorities.

A:  There is always some element of risk when driving, so that question is too broad.

A: Safety is an important goal.

Q: You would agree you should never needlessly endanger the community, correct?

Better Responses:

A: What does needlessly endanger mean? That is too broad for me to answer.

A:  I agree that we should take reasonable precautions to protect the community.

A:  Endanger is very broad; can you be more specific about what you mean by endanger? Every situation is different.

Q: If you see (a), (b), the safest thing to do would be (c), correct?

Better Responses:

A:  Situations are different in each circumstance.

A:  Safety in what regard, can you be more specific?

A:  It depends on the full picture.

Q: You saw (a), (b), but failed to do (c), correct?

Better Responses:

A: Situations are different based on circumstances.

A: What do you mean by “failed”?

A: I disagree with how that is phrased.

Once your deponent understands the tactics and is better equipped to provide a response, they will have an opportunity to provide reasonable responses based on specific circumstances rather than be backed into a corner by agreeing about overbroad, unfair questions. The jurors are likely to understand and relate how certain events and circumstances can alter anticipated outcomes.

Lastly, protect the deponent from fatigue. Often, plaintiff’s counsel will fatigue the deponent intentionally to try to elicit agreeable responses. Ensure your deponent is well rested and take necessary breaks as needed. Help your deponent avoid exhaustion. If needed, suspend the deposition and reschedule. Help your deponent be at their very best.

Takeaways

Preparation is crucial in preparing to fight plaintiffs’ tactics, and dealing with the Reptile Theory is no exception. By anticipating plaintiff’s reptile tactics, the deponent will have an opportunity to provide helpful testimony about defendant’s reasonable safety practices. The well-prepared deponent will not fall into Reptile traps and accidentally shift the goalpost for the standard of care!

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Sources

[i] Thomas Reuters, “What attorneys need to know about Reptile Theory” Thomas Reuters (September 2022), https://legal.thomsonreuters.com/blog/what-attorneys-need-to-know-about-reptile-theory/

[ii] People v. Vance, 188 Cal. App. 4th 1182, 116 Cal. Rptr. 3d 98 (2010)(discussing California’s condemnation against “Golden Rule” arguments covers civil cases in which counsel asks jurors to put themselves in the plaintiff’s shoes and ask what compensation they would personally expect)

[iii] Thomas Reuters, “What attorneys need to know about Reptile Theory” Thomas Reuters (September 2022), https://legal.thomsonreuters.com/blog/what-attorneys-need-to-know-about-reptile-theory/

[iv] Bill Kansky Jr., Ph.D., Derailing the Reptile Safety Rule Attack: A Neurocognitive Analysis and Solution, Courtroom Sciences Inc., https://www.ncada.org/resources/CLE/AM18/Seminar%20Materials/II.%20BK%20-%20Derailing%20the%20Reptile%20Safety%20Rule%20Attack.pdf