In Part 1 of this series, we gave a brief overview of the Reptile theory according to how it’s currently being taught and practiced in the field of personal-injury litigation. Here in Part 2, we’re going to talk about what the Reptile Theory is NOT.
You may be surprised to know that, in reality, the Reptile Theory is NOT a trial strategy. Or, more accurately, it’s not just a trial strategy–and it’s not just about juror manipulation. The Reptile Theory is really about the fight-or-flight response, which all humans possess. In proper settings, the fight-or-flight response protects us from harm and keeps us safe. Yet when improperly activated, the fight-or-flight response leads to emotional decision-making. And, as most of us know, emotional decision-making can have disastrous consequences.
The Science Behind It
When we experience any kind of fear trigger, our brains direct our bodily resources to prepare to fight or flee from the perceived threat. Our heart, lungs, and muscles are ready for action! At the same time, however, our higher cognitive reasoning is temporarily disabled until the threat has passed and safety is reestablished.
Because really, who needs to play a game of chess or contemplate quantum physics when walking down a dark alley at night? Anyone up for making a big investment decisions while being mugged? Yikes, a bear is outside your tent! Now what was your first grade teacher’s name? Of course, we all know that decisions involving strategy, reasoning, and recall require a cool head.
In addition, when we are in fight-or-flight mode, our ability to communicate and connect with others–especially the perceived “attacker”–is practically nullified. Here’s why: During a threat, the survival instinct causes us to withdrawal into ourselves, much like a turtle retreating into its shell. To keep us safe, our brains convince us that the “attacker”–and all similar people–are vastly different, distinct, and separate from ourselves. Thus, strong emotions such as fear and anger (let’s call them emotions of “separateness”) will overwhelm the deeper human characteristics that foster connection and communication, such as compassion, empathy, forgiveness, understanding, humor, and cooperation.
It would be convenient–and profitable–for plaintiffs everywhere if the defense bar continued to think of the Reptile Theory as merely applicable to jurors. The truth is, defense attorneys are getting “reptiled” in subtle ways every single day. Be honest, have you ever gotten all hot and bothered by a snarky email from opposing counsel? What did you do then? Fire back an equally snarky response? Passive aggressively withhold information requested? Draft a scathing motion to the court? Pick up the phone and give him a piece of your mind?
If you answered “yes” to any of these questions, you’re not alone. (And if you answered “no”…you’re lying.) In fact, this pattern of trigger/reaction/trigger/reaction can fairly characterize the entire field of personal-injury litigation for the past decade.
The problem is that emotional reactions to plaintiffs’ triggers often create more work and cost our clients more money. But remember, that’s exactly what the plaintiffs WANT! By making our clients spend more money on legal services, plaintiffs increase their ability to leverage (i.e., extort) unfairly high settlements, which is precisely the goal of the Reptile Theory. Thus, it’s often possible for a plaintiff to obtain a Reptile settlement without ever getting to a jury.
As defense attorneys, we have a duty to our clients to stay calm and eliminate emotional reactivity within our practices. By learning to tame our OWN reptile brains, we will better serve our clients and increase the instances of fair settlements throughout our industry.
For more information on The Reptile Theory….
Here, we have given a general overview on what the Reptile Theory is NOT…at least on the surface. In our upcoming articles, we will address what the Reptile Theory 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.