The Reptile Theory (Part 1) – Welcome to the Nuclear Age

Since 2009, “the Reptile” has been striking fear into the hearts of defense lawyers throughout the US …well, and everyone else in the transportation, medical, manufacturing, retail, and hospitality industries…and everyone else who employs people…or owns property…and all of their insurers.

So basically everyone who owns, runs, insures, defends, or manages risk for a business has been losing sleep over the Reptile since 2009. That’s a lot of sleepless nights!
“The Reptile,” of course, refers to the Reptile Theory, first presented by Don Keenan and David Ball in their book, Reptile: The 2009 Manual of the Plaintiff’’s Revolution. This theory, supposedly created in response to tort reform, provides a roadmap for plaintiff’s lawyers to obtain astronomically large damage awards in personal-injury jury trials. And it works. The Reptile Theory ushered in age of the “nuclear verdict.” Appropriately named for its size and potential for devastation, a nuclear verdict is more than an ultra-large jury verdict. The key characteristic of a nuclear verdict is its disproportionality, bearing little to no relationship to a plaintiff’’s actual damages.

This means that, yes, a $180 million verdict for a double fatality is nuclear, but also a $3.6 million verdict for a sprained ankle. According to Ball and Keenan’s own website, the Reptile Theory has been responsible for over $8 billion in verdicts and settlements since 2009, with millions more being reported each week. The validity of this amount can be confirmed, not only by the daily news reports of multi-million-dollar verdicts, but by the sheer number of seminars, conferences, and CLE courses hosted by a frantic defense bar in its attempt to disseminate anti-reptile tools and tactics. So what exactly IS the Reptile Theory? Before answering that question, let’s talk about why it so effective.

Why It Works

According to the underlying neuroscientific theory, the “reptilian” part of the brain is responsible for our survival instinct and controls the well-known flight-or-flight response. More importantly, because the reptilian brain is the filter through which all cognition occurs, it will not devote any resources to the other parts of the brain until safety is established or the threat eliminated. In other words, once the reptile brain has been triggered, humans are incapable of overriding that fear with more complex emotions, thoughts, or reasoning. Of course, whether or not this is actually how the brain works is up for debate and certainly not the subject of this article. However, the apparent success of the Reptile Theory to date seems to at least support the shape of this cognitive framework for use as an analytical tool. Because irrespective of the science, we do know one thing: the Reptile Theory continues to result in nuclear verdicts.

What It Is

The Reptile Theory is a collection of techniques and tactics which, if executed properly throughout the course of litigation and trial, will create a psychological response of fear in the jury and a corresponding desire to protect self, family, and community. And, of course, being stuck in the jury box, the jurors “flight” response is not available. Thus if fear is properly activated, the jurors will “fight” the perceived threat instead.

Prior to the Reptile Theory, however, creating this type of fear was challenging. Efforts to evoke strong emotions in the jurors by asking them to “put themselves in the shoes of the plaintiff” were prohibited by the long-standing Golden Rule. The Golden Rule disallows such arguments in order to reduce decisions made on bias, sympathy, and prejudice. Plus, an actual human defendant isn’t all that scary and so doesn’t elicit the requisite quantum of fear for a nuclear verdict. Unless we’re talking about axe murderers or serial killers, most jurors understand that a single negligent human doesn’t appear to pose much of a safety risk to the general public. What is scary, however, is a large, faceless, greedy “Company” that unapologetically prioritizes profit over safety.

Now we have Public Enemy Number One.

In practice, the Reptile Theory is actually just a mutant offshoot of the Golden Rule. However, instead of asking the jurors to place themselves in the shoes of the plaintiff, they are deputized as the protectors of the community—the last line of defense between the Company and community safety.

With their newly minted badges, they are presented evidence of various “safety rule” violations (regardless of whether these rules have any connection with the actual accident) and convinced that money is their greatest weapon of defense against this community danger. If the jurors’ brains can make the connection between the “safety rule” and the danger to the community, a nuclear verdict is likely to result. Or as Keenan and Ball say: “Safety Rule + Danger = Reptile.”

The Effects

The problem is that disproportionality of these nuclear verdicts is busting all traditional models for risk analysis and underwriting, and wreaking havoc on numerous industries as a result.

With the ever-increasing number of reptilian verdicts across the country, the defense industry has a duty to do more to protect the clients facing these risks. For many lawyers, however, this may mean undergoing an uncomfortable—but critical— paradigm shift.

Coming Up…

Here, we have given a general overview on what the Reptile Theory is…at least on the surface. In our upcoming articles, we will address what the Reptile Theory is not (and what it really is), as well as innovative yet simple tools for diffusing reptile risk and settling claims more quickly and effectively.

For more information about Murphy Legal or defending against the Reptile Theory, please reach out through our website or call us at (979) 690-0800.

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