The Reptile Theory (Part 3) – Which Came First: The Reptile or the Egg?

Previously, in Parts 1 and 2 of our Reptile series, we discussed what the Reptile Theory IS and what it is NOT. In this segment, we’re going “prehistoric”–back to the decades before the Reptile Theory was a thing. Back to a time when the nuclear verdicts of today were a mere twinkling in Ball & Keenan’s eyes. Also known as the 70’s, 80’s, and 90’s.

A Short History of Personal-Injury Litigation

You may be surprised to know that personal-injury litigation in America (as we think of it today) hasn’t actually been around that long. In fact, the first television advertisement for a personal-injury lawyer didn’t air until 1979. In those days, the world of modern personal-injury litigation was just beginning to take shape, and the “contingency fee” came on line as the primary method of compensation for plaintiffs’ attorneys. (“We don’t get paid unless you get paid!”) Under this model, the plaintiff’s attorney typically receives 33-45% of the plaintiff’s total recovery.

And indeed, the goal of the contingency fee was a noble one, and today it remains a critical way for average people to get legal representation that they couldn’t afford otherwise. However, as we also know, the contingency-fee model comes with some real problems. Enter the “frivolous lawsuit”–one where both plaintiff and attorney know there is no real injury but file a lawsuit anyway. You can also call it by its real name: fraud.

With economic incentive to engage in this type of fraud, plaintiffs learned to become more and more creative in finding ways to “legitimize” a fake claim for injuries, such as staging accidents, exaggerating or lying about the existence or extent of their injuries, or seeking unneeded medical treatment, just to name a few. Unfortunately, sometimes this even happens with the knowledge–or encouragement–of the attorney and medical providers involved.

But that’s really nothing new, right? Humans have been using deception for illicit gain since the dawn of time. It’s what happened in response to these frivolous claims that truly formed the primordial soup from which the Reptile evolved.

A Culture of Disrespect

Naturally, as the plaintiffs’ personal-injury bar was coming of age, the defense bar was simultaneously growing up, too. Yet in the quest for zealous advocacy, the atmosphere turned a bit…hostile. Insurance companies and defense attorneys began treating most claims as frivolous by default, which was naturally a real slap in the face to those who were truly injured. And once we started adding insult to injury, we ramped it up even more. The defense bar helped stigmatize plaintiffs’ lawyers as “ambulance chasers” (among less PG-rated names) and their clients as either greedy cohorts or unwitting pawns in their evil scheme.
Along with this culture of disrespect, the defense bar also started using the plaintiffs’ contingency-fee model to their tactical advantage. Knowing that the plaintiff’s attorney was working for free, it became common for the defense attorney to drag out a case believing that “starving them out” would equal a more favorable result for the client.

The Plaintiffs’ Bar Fights Back

Not surprisingly, the plaintiffs’ bar found new ways to fight back. First, they doubled down on marketing themselves as “tough” and “aggressive” and gave us an impressive array of billboards displaying scowling lawyers–a “fighter” persona that became important to show and maintain for their clients. Then, as we discussed in our last blog, they learned to use this fighter persona to poke, prod, and trigger the heck out of the defense bar–making them do a lot of extra legal work and costing the defendant more money. In other words, they figured out how to use the hourly billing model against us.

And all the while, the instances of frivolous and exaggerated claims continued to grow alongside legitimate claims. PI attorneys simply got smarter about papering up the medical damages because, hey, if the defense is going to drag their feet and play games, then recovery needs to be greater to justify the additional time. So what used to be isolated instances of attorney/doctor collusion evolved into a sophisticated network of lawyers, chiropractors, pain management doctors, medical imaging facilities, and surgeons all dedicated to creating the appearance of medical treatment and legitimate medical bills.

The Birth of the Reptile

But that still wasn’t enough. To get the really big bucks AND make the defense pay for decades of disrespect and gamesmanship, the lawsuit itself needed to focus on much bigger concepts: safety, community, and corporate responsibility. This is what Ball & Keenan discovered, and the Reptile Theory was born.

Which Came First?

As we’ve briefly shown here, the Reptile Theory didn’t evolve in a vacuum. It developed over time through a series of actions on BOTH sides of the personal-injury bar. Does it really matter who started it?

It’s up to us to finish it.

Love it or hate it, the Reptile Theory is now the dominant model for personal-injury litigation, and defense attorneys must be prepared to protect their clients from the extraordinary exposure it presents. But learning about the Reptile Theory and its nuances is only half the story. And our legal skills offer only partial protection, at best. It’s time for the defense bar to wake up, recognize our part in the evolution of this creature, and embrace new, outside-the-box solutions that will not only better serve our clients, but advance the entire legal profession.

Stay tuned for our ongoing Reptile series and methods for reducing Reptile risk. 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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