Challenging use of “Reptile Theory” tactics at trial through motions in limine requires a case-specific approach

Attorneys experienced in defending against high-risk personal injury claims are (or should be) well-versed in the trial tactic known as “Reptile Theory.” “Reptile Theory” is a deposition and trial tactic based upon David Ball's and Don C. Keenan’s book, REPTILE: THE 2009 MANUAL OF THE PLAINTIFF'S REVOLUTION and adopted and advocated by plaintiff attorneys around the country. It is a strategy for obtaining large jury verdicts by causing jurors to perceive the defendant’s alleged conduct as a threat to their own personal safety and the safety of their families and community, rather than deciding the case based upon considering a specific dispute between the plaintiff and the defendant.

In a decision issued last week, the Massachusetts Supreme Court in Fitzpatrick v. Wendy’s Old Fashioned Hamburgers, Inc. reversed the trial court’s decision granting the defendant’s motion for mistrial after Plaintiff’s counsel used Reptile Theory tactics in closing argument. Apart from the procedural aspects of the trial court’s ruling, the case provides an interesting illustration of the use of the theory in a case involving an alleged tooth injury when the plaintiff bit into foreign object in a food item.

Reptile is arguably one of the most popular CLE and seminar topics among the defense bar. However, it is less clear how much practical experience state and federal judges have in dealing with this tactic, or how often they must address its use at trial. For example, a LexisNexis search revealed no reported Ohio appellate decisions that addressed Reptile Theory. Nonetheless, defense attorneys—especially those representing medical malpractice defendants or corporate defendants in personal injury litigation—are destined to encounter Reptile tactics at some point. Thus, in addition to preparing their witnesses to handle Reptile tactics in discovery, defense counsel must also consider what works and what doesn’t when it comes to challenging the use of Reptile tactics via motions in limine.

A motion must analogize Reptile Theory to “golden rule” or community consciousness arguments that are already subject to exclusion in the relevant jurisdiction.

Some defense Reptile motions in limine go to lengths to explain the alleged scientific underpinnings of the Reptile Theory—describing the “triune brain” model of Keenan and Ball in which primitive areas of the human brain are activated by use of Reptile tactics. In reality, the theory is based on a false scientific premise—humans do not have “reptile brains,” and they do not react like lizards upon the utterance of certain magic words in closing argument. Do not get bogged down in explaining pseudoscience.

What matters for a Reptile motion is to explain that it simply a re-packaging of “golden rule,” “community consciousness,” or “send a message” arguments that are prohibited in virtually every state and federal court in the country. These arguments are prohibited because they ask jurors to decide cases upon emotional reaction rather than objective evaluation of the actual evidence in the case.

A motion must explain the Reptile Theory in a non-technical way, illustrating the formulaic lines of questioning that are the cornerstone of the method.

Attorneys employ Reptile tactics by asking defense witnesses to agree to the validity of ill-defined, attorney-created “safety rules” that are so broad that most people unfamiliar with Reptile will agree with them. Reptile questions and arguments are quite formulaic, making them easily recognizable. The most common forms are, “Should a corporation ever needlessly endanger the public?” Other forms include, “should a company put profits over people,” “should safety be the highest priority for a corporation,” and others. A motion in limine to prohibit Reptile tactics should clearly illustrate these patterns for the court. The point should be made that these are not actual statutes, regulations, or common law standards of care.

Another common Reptile tactic is to suggest, via questions to defense witnesses, that a corporation must make the “safest choice possible” in all circumstance, regardless of the legal standard or care and regardless of the particular circumstances in the case. The goal is to inject hindsight bias into the case and suggest to jurors that they should find the defendant liable because, hypothetically, the defendant could have chosen a safer course of action at the time the decision was made (regardless of other unintended consequences of that “safest choice.”).

A motion must illustrate specific ways that the Reptile Theory has been employed in the case.

Some courts who deny motions in limine do so because they are reluctant to categorically prohibit a particular trial strategy before trial. Other judges who have denied Reptile motions have done so because they are unsure if they would be able to identify a Reptile question or tactic if it were to come up at trial. The court must understand the particular manner in which the reptile theory has already been employed in depositions with examples that are specific enough to the case that the court would be able to recognize the use of Reptile if it were to come up at trial. See, e.g., Walden v. Maryland Cas. Co., D.Mont. No. CV 13-222-M-DLC, 2018 U.S. Dist. LEXIS 208000, at *7 (Dec. 10, 2018) (“The Court will not categorically prohibit a form of trial strategy, particularly given the absence of any reason to believe that reptile theory is likely to rear its head here (or that the Court would be able to identify it if it did).”). Baxter v. Anderson, M.D.La. No. 16-142-JWD-RLB, 2018 U.S. Dist. LEXIS 328, at *14 (Jan. 2, 2018) (“Again, the Court cannot exclude in advance these types of arguments without hearing the specific context in which the arguments are made.”).

Thus, it is not enough to explain Reptile in the abstract—a motion must specifically illustrate how it has already been used in the case (typically in connection with a corporate representative’s deposition) and how it is likely to come up at trial.

A motion must demonstrate how the Reptile tactics will confuse and mislead the jury by improperly instructing them on non-existent and legally incorrect standards of care.

Jury instructions in negligence cases require jurors to consider the circumstances in which a defendant’s actions took place and to determine whether such actions were “reasonable” under all the circumstances. Reptile, in contrast, suggests to jurors they should find the defendant liable simply because the plaintiff was injured—i.e., the plaintiff’s injuries are proof per se that the defendant “needlessly endangered” the plaintiff by not making the “safest possible choice” under the circumstances. In essence, Reptile turns negligence cases into strict liability cases in a way that misleads jurors about the law. Point this out in the motion and tie the arguments back to the rules of evidence under which the motion is brought—typically Fed. Evid. R. 401/403 or their state-law equivalents.

To summarize, defense attorneys should not assume that trial judges share the same degree of familiarity with Reptile tactics. Motions in limine to preclude the use of Reptile tactics should be case-specific, describe the ways in which Reptile questioning has already been employed in the case and is likely to arise at trial, and explain how Reptile tactics are impermissible “Golden Rule” arguments likely to confuse and mislead jurors about the actual standards of care established by the jury instructions in the case.