January 2014 Bar Bulletin
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January 2014 Bar Bulletin

The Pros & Cons of the Reptile Approach

By Thomas M. O'Toole

 

Back in 2009, a former theater director named David Ball and a zealous plaintiff attorney named Don Keenan published a book called Reptile, describing it as "the 2009 Manual of the Plaintiff's Revolution." The book purports to unlock the secrets of the black box and unleash an army of well-equipped justice seekers (i.e., plaintiff attorneys) to carry the torch of our forefathers and protect the legal system from tort reformers who continue to dangerously infringe upon the safety of Americans by limiting legal remedies for victims around the country.

The essence of Reptile is this: Scare jurors into believing that if they fail to act, the acts of the defendant will endanger them or their community. The authors point to a primitive, instinctual component of the brain they call the "reptilian brain" and argue that it cannot resist the temptation of a good fear appeal. They further suggest that current neuro-economic research supports the claims they make in the book.

The book has gained a lot of popularity amongst both plaintiff and defense attorneys. Keenan and Ball have a website where they dub successful plaintiff attorneys "Reptile Allstars." Its influence has even extended to the King County Courthouse as I recently witnessed a defense attorney make a pretrial motion to preclude the plaintiff's attorney from engaging in "reptilian" tactics over the course of trial.

In light of the book's increasing popularity, this article analyzes and discusses the pros and cons of the strategies recommended by Keenan and Ball. Overall, Reptile regurgitates some sound principles of persuasion in the form of a metaphor, but falls short at times in execution.

I'll start by highlighting some of the theory's key weaknesses.

Anger, Not Fear, Drives Plaintiff Verdicts

This is one area where Reptile is fundamentally wrong in a dangerous way. Ball and Keenan suggest that the most effective plaintiff case theories are those that instill fear in jurors. Not only does this unnecessarily raise the bar for plaintiffs (fear is difficult to instill in a litigation setting), but it is an incomplete recommendation at best.

Jury verdicts are a product of one of two things: 1) a desire to compensate the plaintiff; or 2) a desire to punish the defendant. The latter is what leads to significant damages.


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