By now we’ve all become acquainted with the Reptile Theory: a litigation strategy used by plaintiffs’ attorneys to obtain disproportionately large verdicts through various forms of psychological manipulation.
Naturally, most defense efforts focus on legal strategies for every phase of litigation and trial. And while it’s true that our legal skills are necessary to combat the reptile mind, this article proposes that we can defeat the reptile more effectively—and perhaps permanently—when we aim for its heart.
What is the reptile’s real motivation? If we limit the answer to “money” or “greed,” we’re missing the bigger picture—and an opportunity to convert a zealous opponent into a collaborative professional colleague. Believe it or not, most plaintiffs’ attorneys truly believe they’re the good guys, and that reptile strategies will produce better results for their clients and make the world a safer place. Over time, however, their once-Atticus-Finch-like ambitions have become distorted by a culture of disrespect, stoking their emotional motivation to maximize pain for their opponents.
To the plaintiffs’ bar, the reptile theory is more than a way to make money—it’s a crusade for respect, both for themselves and their clients. So why not try something radical? The book Crucial Conversations: Tools for Talking When the Stakes are High (Patterson, Grenny, McMillan, Switzler) presents key communication principles, which were developed over 25 years of research and 2,000 case studies. By incorporating these principles into our practices, we can resolve claims faster, negotiate fairer settlements, reduce future reptile risks, and better serve our clients.
A “crucial conversation” is any conversation in which:
1. opinions vary,
2. the stakes are high, and
3. emotions run strong.
As defense attorneys, crucial conversations come with the territory. A successful conversation is one in which true dialogue, or “the free flow of meaning,” occurs, resulting in mutual respect and a mutually agreeable solution. More often, however, high- pressure conversations produce stress in the body which the mind interprets as a “threat.” The perceived threat then activates our fight-or-flight response, increasing the chance that resulting decisions will be based on emotion instead of reason.
Although this survival response is a natural, the plaintiffs’ bar intentionally triggers this same response in jurors when employing reptile tactics. In fact, emotional decision-making is responsible for everything from nuclear verdicts to impulse purchases to bar fights. Emotions can produce some pretty bad decisions and, when it comes to communication.
When we remember that plaintiffs’ attorneys are humans with emotions just like everyone else, we can mount a comprehensive defense using more than just our law degrees. By learning to spot the signs of fight-or-flight triggers, i.e., “silence” or “violence,” in ourselves and opposing counsel, we can quickly identify when a conversation becomes “crucial.” Forms of “silence” include avoidance and withdrawal, but can also include subtle methods, such as using sarcasm to mask true meaning. Conversely, your opponent may exhibit “violence” tactics by trying to control the conversation, speaking in absolutes or hyperbole, using stereotypes to dismiss your opinions, or belittling, insulting, or threatening you in some way. If you recognize these signs, or suspect they might arise, Crucial Conversations can help you navigate with a few simple steps.
First, before any conversation with opposing counsel, get clear about your goals—for your client, for your relationship with opposing counsel, and for the conversation itself. Clear goals come from the heart (aka: the soul, the gut, the higher self, the inner voice, the super ego, etc.) which is wise, nonjudgmental, and kind. When properly consulted, the heart can help us rise above petty emotional triggers to provide perspective and remind us of our purpose—to protect the client.
Second, be respectful at all times. Sounds easy enough, but remember, respect has an outward and an inward component.
Outward respect means saying and doing things that demonstrate professional esteem for your opponent and real empathy for his client’s injuries. Even simple acknowledgements go a long way: “Jim, I’ve looked you up and I know you’re an excellent attorney and that you get great results for your clients.” Or in cases of liability, you may consider inviting a corporate representative to discuss remedial measures taken since the accident, which makes the plaintiff feel valued. In many jurisdictions this information is inadmissible anyway, so don’t be afraid to be forthcoming and sincere.
Inward respect means dropping any negative stories you may be telling yourself about the motives and character of your opponent, the plaintiff, or the plaintiffs’ bar. These negative thought patterns will subconsciously undermine your goals by making you more likely to become emotionally triggered and making your outward respect seem inauthentic. With true respect, we disarm and de-motivate the reptile by showing some unexpected humanity, which even the most zealous reptile secretly craves.
Third, learn to watch for signs of “silence” or “violence” and take steps to reestablish safety. To do this, apologize and restore mutual purpose. Apologize for what? Besides actual liability, consider apologizing for anything that you—or your industry— may have done to signal disrespect in the past. It may sound like a tall order, but it only takes seconds. Example: “I’m sorry. I know you frequently have to deal with Black Acre Mutual and all the hoops they make you jump through. We’re not that company. I’m committed to being honest and not hiding the ball from you.”
After that, remind your opponent that your interests are actually aligned, not opposed. Remember, your ultimate goal is to protect your client’s interest by resolving the case as quickly—and as close to its true value—as possible. At the same time, a good plaintiffs’ attorney usually understands (at least on some level) that a quick resolution will be best for his own client and increase his effective hourly rate as well. By focusing on your mutual purpose, you can develop trust in an otherwise polarizing environment.
Fourth, S-T-A-T-E your position clearly to avoid creating unnecessary defensiveness.
- State your facts – Resist the temptation to lead with conclusions and theories.
- Tell your story – Confidently state the conclusion that you believe the facts show.
- Ask for others’ paths – Listen carefully to learn as much as possible about the plaintiff’s case.
- Talk tentatively – Increase safety and encourage honesty by not acting like a know-it-all.
- Encourage testing – Ask questions about alternative theories to fuel dialogue.
Consider the following conclusion-lead statement: “Jim, your client is obviously exhibiting drug seeking behavior.” This unsupported accusation will likely create emotional triggers because it demonstrates disrespect on at least three different levels: disrespect for the plainti” personally, disrespect for the validity of the plaintiff’s case, and disrespect for Jim’s ethics, intellect, and character.
Goodbye dialogue, hello reptile.
However, we’re more likely to avoid this outcome if we STATE our conclusions differently: “Jim, I noticed that your client has seen several doctors complaining of pain and has obtained similar prescription medications from multiple sources. I’m concerned that she may be exhibiting drug-seeking behavior. What are your thoughts on that?” Here, we presented our facts and conclusions in a way that is free of loaded accusations and emotional baggage. In doing so, we’re more likely to progress the dialogue and learn volumes about our opponent’s facts and strategy. In the end, the goal is to tell your story in such a way that your opponent can see your point of view, even if he doesn’t agree with it. Either way, we have narrowed the areas of possible disagreement and set the stage for collaboration in current and future cases.
The principles of Crucial Conversations can be applied in every stage of litigation, from the claims stage through trial, from minor-impact cases to catastrophic collisions. Productive dialogue based on heart-driven goals and mutual respect not only enables us to conduct better risk analysis but can reduce or eliminate our opponents’ emotional motivation to pursue the reptile theory against our clients. And if enough of us locate the heart of reptile, it just might go extinct.
Paul W. Murphy and Kelsey M. Taylor are the co-owners of Murphy Legal, a Texas-based commercial trucking defense firm. Murphy Legal handles claims throughout the State of Texas for wrongful death, catastrophic collisions, personal injury, premise liability, and business disputes, and advises clients on regulatory compliance and safety matters. Paul is a graduate of the South Texas College of Law and is Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization. In addition to the Trucking Industry Defense Association (TIDA), Paul is a member of the Transportation Lawyers Association (TLA), the Defense Research Institute (DRI), the Texas Trucking Association (TXTA), and the American Board of Trial Advocates (ABOTA). Kelsey graduated summa cum laude from Southern Methodist University Dedman School of Law and is a member of the DRI Trucking Law Committee, TXTA, and TLA. For more information about Murphy Legal, contact us today.