“This is a very important case, and by being a juror on a case like this, you’re taking on a pretty big role; you’re basically a guardian of the community. You’re the ones that get to be the decider about when things are wrong or when they’re right, or when some change needs to happen. In a civil case, you can send a message if you feel as though there’s been wrongful conduct and something needs to be done about it. With your verdict, you can make that choice. You can decide whether a product should have a warning or not, or whether people should be left in the dark about what choices they can make about products that they buy. Your decision could determine whether people live or die. And that can be a very big burden.”
If you’ve heard something like this at trial, you’ve probably heard it from a plaintiff attorney. Indeed, this was the introduction to a plaintiff counsel’s voir dire in a case where the jury later returned a verdict of over $100 million. Statements like these, which are meant to incite fear in jurors and motivate them to punish a defendant in order to protect their community, are a perfect example of what is known as the “reptile approach.”
What Is the Reptile Approach?
The reptile approach is a case presentation strategy developed by Don C. Keenan and David Ball, which offers plaintiff attorneys a framework for building cases in a way that taps into jurors’ implicit fears, and thereby helps the plaintiff prevail at trial and collect massive damage awards. Put briefly, the reptile approach encourages plaintiff attorneys to make jurors fear the defendant by demonstrating: 1) the defendant violated a “safety rule” – a basic rule of operating in society that is impossible not to acknowledge; 2) that the defendant’s behavior presents a threat to the entire community; and 3) that the only way to prevent harm to the community is to assess a large damage award against the defendant. (For a more in-depth look at the reptile approach, please see our previous blog on the reptile brain.)
How to Turn the Reptile Approach Against Plaintiffs
Although the reptile approach was developed explicitly to assist plaintiff attorneys, it can actually be used by the defense to turn the tables. Here’s how:
1) Leverage the Advantages That Plaintiffs Think You Have
One of the most notable things about the reptile approach is that it was developed to counter what its creators identify as an inherent disadvantage held by plaintiffs. According to Keenan and Ball, jurors automatically see plaintiff and plaintiff’s counsel as a “menace to their survival” because they’ve been convinced by tort reform activists that “lawsuits undermine the quality and availability of healthcare for jurors and their families; lawsuits ruin the local economy, costing people jobs; lawsuits drive prices up on just about everything; lawsuits suppress product development and innovation; and lawsuits endanger religion because plaintiff’s lawyers use the money they make to fund liberal, statist politicians who appoint liberal, statist judges who make rulings contrary to religious traditions and beliefs.” Thus, defense attorneys can use the reptile strategy in their favor by appealing to any of these fears the authors identify.
2) Damage the Plaintiff’s Credibility by Emphasizing Context
As defense cases tend to depend on context and nuance to a greater degree than plaintiff cases, there is an opportunity for the skillful defense attorney to paint the absence of context in the plaintiff case as evidence of deception. For example, in a recent trial that Litigation Insights provided consultation for, the defense attorney reminded jurors in his closing argument that he had warned them from the beginning that the plaintiffs would “take a number of documents out of context”; he then went on to review the many times he believed the plaintiffs had done just that. Pointing out the plaintiffs’ deceptions drove home his point that their credibility was highly questionable. Moreover, he enlarged these documents for the jurors and listed each instance on an easel, which encouraged jurors to write them down as well. In fact, the jurors in this case later asked for these specific exhibits during deliberations.
3) Ask Jurors to Defend Justice and Conscience
The reptile approach depends on making jurors feel like the defendant’s actions are a threat to the entire community. As such, plaintiff attorneys ask jurors to act as the “guardians of the community.” However, this tactic can be used by the defense, by instead calling upon jurors to be the defenders of the community’s conscience. This can be especially effective when there is a lot of negative media attention surrounding the defendant in a case; indeed, such coverage can even become an advantage. In one case with significant media attention that we worked on, the plaintiff attorney called on jurors to protect future generations by holding the defendant accountable. Our client, the lead attorney for the defendant, used this theme against the plaintiffs by arguing to jurors that the true courageous action was actually to “defy the media hype and do the right thing.” He concluded his closing: “It takes a courageous jury to return a verdict for a large corporation that might be unpopular with some. It’s difficult to not listen to the sentiments outside the courthouse that are pounding on the pavement saying, ‘This is what you should do.’ It takes a lot of courage to ignore that and do the right thing. And that’s what we’re asking you to do.” And the jury did just that – it did the right thing.
4) Help Jurors Identify with the Defense
It is true, if unsurprising, that a large corporation is often unpopular with jurors. Jurors naturally identify with plaintiffs. A plaintiff is a living, breathing person sitting at counsel table, while a corporate defendant is often a faceless company. But there are also ways to mitigate this plaintiff advantage and increase jurors’ identification with the defense. Most notably, defense counsel can subtly imply that jurors may one day find themselves on the side of the wrongfully accused, by using broad terms such as “property owners,” “business owners,” or “taxpayers,” and expressions like “being dragged into court.” This will put jurors in the place of the defendant and invoke the reptilian fear discussed by Keenan and Ball. Similarly, jurors who own a business or dream of owning one will find it easier to identify with a “business owner” than a “corporation.”
The expression “what’s good for the goose is good for the gander” is a metaphor that applies to geese and attorneys alike. Though the reptile approach is a strategy originally conceived for use by plaintiffs, there’s no reason its underlying principles can’t be implemented by your defense team as well.
By: John Wilinksi, M.A.