Trend Spotlight

Plaintiff Reptile Theory: What is it?

And, how to plan strategic defense responses at any stage:
case management, defense, and trial
Why are plaintiffs lawyers injecting safety arguments into all aspects of litigation
strategy? In this fact sheet well unleash our own dragon on the Reptile Theory and
discuss responses to a popular tactical approach embraced by plaintiffs lawyers.
The approach is designed to win cases by appealing to a jurors primal instincts.
The Reptile Theory was developed by
plaintiff attorney, Don Keenan, and jury
consultant, Dr. David Ball, in 2009. It was
released as a detailed psychological trial
method and published under the title:
REPTILE: The 2009 Manual of the
Plaintiffs Revolution.
Since then, the theory has gained
increasing popularity with the plaintiffs
bar. Currently, proponents claim that use of
this strategy has resulted in nearly $6
billion in settlements. Seminars and CD
training sets are available to teach the
method, and more books, including
REPTILE in the Mist (Keenan and Ball,
2013) are available on specific aspects of
litigation preparation.
A psychological method
The Reptile Theory is designed to frame
issues and answers to arrive at a plaintifffriendly conclusion. The theory proposes
that 1) the reptile has a primitive brain
that houses survival instincts, 2) when the
reptile brain senses danger it goes into
survival mode to protect itself and the
community, 3) the courtroom is a public
forum to ensure safety, 4) damage awards
enhance safety and decrease danger, 5)
jurors (reptiles) are guardians of
community safety, and 6) safety rule +
danger = plaintiffs verdict. Thus, if base
reptilian safety instincts are awakened in
a jurors brain, decisions based on survival
instincts are triggered, resulting in a jury
verdict that protects jurors and society.

While the validity of the neurological

construct is an interesting debate, and the
claimed value of settlements based on
successful use of the tactic may be
questioned, the persuasiveness of the
method is real. As a result, its essential for
claims professionals and defense counsel
to understand the Reptile Theory tactics
and prepare counter strategies. Without a
clear view of how the theory is put into
action, the strength of the tactics can
continuously erode the defense, leading to
increased claim exposures.
Knowledge and preparation will be
powerful for advance case management,
deposition preparation, or trial. We expect
that these tactics will be used most often
in bodily injury cases stemming from auto
claims, premises accidents, medical
malpractice, and product liability cases.
Underwriters and their claims departments
should consider the value of familiarity
with the Reptile Theory, particularly for
these lines of business.
Safety questions and general defense
strategies
In its simplest form, the theory sets up
safety questions that relate to the case,
but appeal to broader safety concerns
which hint at personal risks to the decisionmaker (the juror). The reptile methodology
typically begins with a series of black and
white safety questions such as: Dont
you agree that you should take steps to
keep consumers safe?; Dont you agree
that safety is always a top priority?; Dont
you agree that safety is important to the

(implied reptiles) community? The

premise is to build agreement with safety
rules that seem thoughtlessly simple. To
disagree would appear careless or
unintelligent.
Effective responses to reptile strategies
deviate from the age-old defense advice to
answer questions: yes or no. Defense
witnesses need to be ready to distinguish
strict fact questions from questions leading
to safety rule traps. Witnesses also need to
be prepared to offer examples of how
actions can be situational, can involve a
multitude of considerations, and often
involve complex economic or timesensitive components.
A key defensive theme should be to show
that risk is everywhere and that risk is
normal and reasonable. For example, ask
yourself: Do you drive the highest safetyrated car? Why not? You perceive the risk
as low and there are other considerations
that are important. You do not feel that you
are compromising your own safety, your
familys, or your communitys safety.
While the safety questions presented by
plaintiffs represent a different scale of
interests, the foregoing example shows
that the highest levels of safety and risk
avoidance are often impractical and
unrealistic. A reptile tactic will be to
attempt to blow danger out of proportion
and make a risk larger, scarier, and more
threatening to a reptile-minded juror.
The theorys ultimate goal is to trap a
defense witness into agreeing that his/her

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actions were negligent, the action could

have led to much greater damage (or
resulted in many more victims), and that
such action represents an unacceptable
danger to the reptile and his/her
community.
Specific techniques and responses
An illuminating exercise is to review Ball
and Keenans recommendations for a
plaintiffs deposition preparation. Keenan
and Ball propose that the plaintiff develop
five to seven Major Truths about the
case. One of the Truths will be that the
plaintiff did what he was supposed to do
and acted 100% reasonably regarding his
own actions as they relate to the case.
The plaintiff is also to state that he
trusted the defendants actions. The
plaintiff is to fall back on the Truths when
asked challenging questions.
In contrast, for the defense, Ball and
Keenan recommend attacks which focus
on gaining agreement with safety rules
and repetition that violation of safety rules
is bad. They also suggest questions which
attempt to demonstrate that a defendant
didnt care about safety, didnt care about
the plaintiff, and wasnt sufficiently
knowledgeable, or that the defendant was
inconsistent, untruthful, or did not do his
job.
While many of these recommendations
are classic witness preparation and crossexamination techniques, Ball and Keenan
have built a micro-industry marketing
these methods in compelling playbooks,
seminars, and videos. Responses that will
bolster the defense will include full
knowledge of these tactics and the
implementation of neutralizing counter
tactics.

complexity of a situation will broaden the

case beyond the Reptile Theorys
emphasis on simple safety rules and
violations.
Defendants will also be well-served to
highlight unusual facts, characteristics, or
unique circumstances in order to make a
case more difficult to generalize as a
threat to the reptile (jurors) individual
environment. Lastly, the defense should
focus on establishing credibility in a field,
industry, or occupation as a counter to
strategies that imply poor/negligent
performance.
Alternate defense tactics
Considering the effectiveness of the
Reptile Theory, one commentator has
gone as far as recommending advanced
cognitive witness training in order to
achieve proper focus, and desensitization
to pre-programmed agreement with
safety is good, danger is bad
questions.* This viewpoint also advocates
that sometimes and it depends
answers gives jurors perspective
allowing the defense to explain actions in
real contexts. Investment in witness
preparation at all stages is essential.

Alternate defense recommendations

include deliberately highlighting use of
the Reptile Theory to the judge or jurors.
Individual jurors may be suitably offended
by the notion that theyre being
manipulated with a strategy that assumes
they make decisions with the brain of a
reptile. Alternately, a judge may be tipped
off to use of the theory through motion
practice.
Conclusion
A plaintiffs reptile attack is a probability,
not a possibility. Claims professionals and
their defense counsel need to be
acquainted with this popular theory in
order to wage effective counter efforts.
Without such preparation, you, your
witnesses, and counsel may be caught
completely off guard. And, whether you
agree or disagree with the purported
science of the Reptile Theory, a lack of
preparedness may leave you with a bite
that feels very real.
For more information, contact your
Swiss Re Claims Representative.
*Kanasky, Bill, Debunking and Redefining the Plaintiff
Reptile Theory, For the Defense, April 2014.

Additional defensive recommendations

include researching prohibitions on
Golden Rule arguments. Golden Rule
arguments arent allowed in many
jurisdictions, and can result in reversible
error. A Golden Rule argument asks jurors
to put themselves in the plaintiffs shoes.
The impropriety is that jurors are being
asked to deviate from their juror role and
decide how they would like to be
compensated if they were the plaintiff. Its
easy to see how the Reptile Theory can
spark Golden Rule objections.

References:
Broda-Bahm, Dr. Ken, Respond to the Reptile,
Persuasive Litigator, December 17, 2012.
Howard, Ben, Neill Dymott: A Field Guide to Southern
California Snakes: Identifying and Catching Plaintffs
Reptile Theory in the World, verdict, Volume 3, 2013.
Marshall, David C., Lizards and Snakes in the
Courtroom, For the Defense, April 2013.
Rincon, Carlos and Todd Silberman, Coaxing the
Reptile Back under the Motor Carrier Rock:

Accordingly, defense responses should

focus on the 5 Cs: Care, Competence,
Context, Complexity, and Credibility.
Defense efforts will benefit from
humanization of defense witnesses and
empathy with personal aspects for the
plaintiff. An individual defendant will need
to establish competence in his position
and be able to describe the context and
circumstances to support a conclusion of
reasonable behavior. Addressing the

However, to avoid Golden Rule objections,

the theory poses slightly more general
questions, such as: Would anyone feel
unsafe about this behavior? Use of the
word anyone is intended to translate to:
Would you feel unsafe? Some courts will
agree that the re-phrasing isnt sufficient
to withstand a Golden Rule objection.

Countering the Plaintiffs Reptile Theory to Inciting

Survival Instincts in Jurors towards Large Verdicts.
Federation of Defense & Corporate Counsel, Winter
2013 Meeting.
Ruskin, Bill, Plaintiffs Bar Embraces Reptile Strategy
and Defense Bar Responds, DRI Today, post
10/9/2013.

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