A Brief Primer on the Reptile Theory of Trial Strategy:

Plaintiff Psychology and the Defense Response

T
he typical plaintiff’s opening used
to begin with a sympathetic
explanation of the plaintiff’s
ordeal and injuries, and this
emotional plea was followed by a Day in
the Life tape making the jurors want to give
a damage award—right? Not anymore.
Plaintiff attorneys have discovered that
there is an approach that gets a better
reception than the traditional pull for
sympathy. The “Reptile Theory” (Ball and
Keenan, 2009) is here and is flourishing in
trial courts across the country. These
plaintiff techniques focus on the beginning to the end of a case—often with jurors by fostering fears that are broader
defendants’ behavior rather than the goal of getting a case to settle, but also than the confines of the case (an individual
attempting to engender sympathy for the with plenty of strategy for trial. The focus with a specific injury, for example) and are
plaintiff. The focus is on anger, and the is on three main sections of the process: not part of the case. The defense bar has
idea is to make jurors believe the worst the deposition as the key to getting come up with numerous ways to counter
about a defendant, typically a company, and admissions from the company; the voir dire this theory, the most common of which is
its record of safety. to prime the jurors with the themes before to dispel the physiological basis for its
the opening, and the opening to capitalize effectiveness. Defense attorneys believe
This sounds like a simple concept,
on the groundwork set in each previous that the “gut reaction” that is based on the
“Just get the jury mad,” and one that has
stage in steering jurors’ responses to the reptilian brain and its primitive responses
been around in trial advocacy for a long
case. to fear and pain is not a physiological
time. In fact, it may be a repackaging of old
reality. In addition to being critical of the
school trial wisdom, but it is also a carefully The Reptile Theory can be used to biological basis for jurors’ reactions,
crafted and creatively taught strategy that is focus on the defendant’s failures in any defense lawyers and jury psychologists
changing the way that plaintiffs, and the threatening situation which has allegedly have learned to prepare for and defend
defendants they face, are trying cases. This caused the plaintiff’s injury in any type of against these strategies in a variety of
theory is much more successful than case, but most often, personal injury, psychological ways, as well as through legal
previous plaintiff approaches, and product liability, medical malpractice and means. For example, attorneys have
according to the authors of the theory, Ball transportation cases. More recently, argued that many of the plays to the jurors’
and Keenan (2009), the Reptile Theory has commercial and banking cases have been own emotions violate the golden rule
become the defense bar’s new nemesis. the focus. The theory shifts the jury’s constraints of the law, and are not ethical.
thinking to a much broader concept of As such, the defense against the reptile
The Reptile Theory can be
injury, beyond the injury sustained by the movement is also alive and well.
conceptualized as a planning strategy that
plaintiff, to possible injury to the jurors
gets plaintiff attorneys to focus early in the
themselves or the public. The strategy, as The authors, Ball and Keenan, have
case on crafting the themes that will be
defined by the authors, is based on scaring written numerous books and articles, and
honed through deposition, voir dire, and
the primitive part of jurors’ brains and many other authors have discussed the
eventually the opening. This process
utilizing (or manipulating, depending on strengths and weaknesses of this theory,
focuses on utilizing the eventual juror’s
your perspective) jurors’ fears. The theory which makes summarizing all of the
desire to expose and punish the existence
posits that this gut reaction leads to a concepts beyond the scope of this article.
of danger when it exists in the community
tendency to give damages based on a This article will, however, provide a brief
around them and to place blame on a
violation of a broader perception of safety. summary of the Reptile Theory’s proposed
defendant large enough and powerful
biological bases, as well as provide
enough to “eliminate” that danger. This is From the defense perspective, the observations about the practice of the
a strategic process – it takes place from the Reptile Theory is attempting to manipulate theory, why it works with jurors, and the

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basic stages of planning for and executing and to the safety of others. According to Defense perspective: First of all,
the processes involved in the theory and the theory, the jurors believe that awarding defense advocates believe that the
the methods for defending against the damages will enhance safety and decrease neuroanatomical assumptions involved in
techniques. danger. When a safety rule is broken, and the theory are wrong (Allen, Schwartz, and
jurors sense danger, in essence they Wyzga, 2010) and frankly this author
Reptile Theory Basics experience a Reptile response to the case. doesn’t disagree. Without going into a
college-level vertebrate physiology class,
The Reptile Theory itself got its name At the center of this theory is the idea suffice to say that Reptiles can’t experience
from the physiological underpinnings of that safety is important to jurors, and that fear, which is the linchpin of the reptile
the theory, which made it famous, but these there are safety rules involved in the case aspect of the theory (the reptile lacks a
theoretical underpinnings have created the which must prevent danger. These rules limbic system which is the emotional center
backdrop for its biggest critics. The theory have a variety of dimensions: they must of mammalian brain). Further, it has been
is based on the work of neuroscientist Paul protect people in a wide number of pointed out that Ball and Keenan are
MacLean, who theorized in the 1960s that situations, must be in clear English, the rule actually selling danger not fear. Fear is an
there are three discrete parts to the brain must say what the person must do, it has to emotion, whereas danger is a threat.
reflecting the stages of evolution. be easy to follow, must be agreed with and Defense advocates suggest that plaintiff
(MacLean, 1949; Newman & Harris, 2009). most importantly, not to agree with this attorneys are just suggesting threat (not real
rule is would be perceived as careless or danger) which cannot awaken the reptile in
The Reptile brain. The theory is based stupid. (Kanasky, 2014). a juror. (Kanasky, 2010).
on getting to the Reptile part of the brain
in the normal human (see diagram below). Ball and Keenan further suggest that Humans are not just flight or fight
The authors call it the “Triune Brain,” and there are two roads to information responders, they in fact process
this model suggests that there is a part processing. The low road involves the information. And, the fear responses that
called the reptile brain at the core. This part sensory thalamus, the amygdyla, which humans experience are not predictable, in
of the brain contains the primitive and involves “survival mode.” “Classic” part because higher level functions often
survival instincts that every person has. plaintiff jurors focus on this level of intervene in fear responses. Some authors
The Paleomammalian complex (limbic information, which is the simplest answer, have suggested that jurors recoil when
system) involves the mid-brain; emotion, perhaps the first answer that comes to disrespected or threatened (Allen,
reproduction, parenting. The them. Those jurors who respond with a Schwartz, and Wyzga, 2010). In reality, for
Neomammalian complex (neocortex) is startle response (perhaps seen as a hand example, fear can backfire if jurors believe
made up of the cerebral cortex; this part is covering the mouth, or shock at injuries), they are being treated like “reptiles” as in a
capable of language, logic, planning. DeKalb County, Georgia, courtroom in
2014. Representing a movie theater and a
security company accused of not doing
enough to prevent a fatal gang shooting in
the theater parking lot, defense attorneys
read from the book and referred to it
during closing arguments. One of their
PowerPoint slides read, “Let’s see if we can
scare them/It could have been anyone
killed out there … because it’s a public
danger there … but if you give us $ that will
somehow eliminate this danger/ They call
this their ‘Reptile’ strategy.” We do not
know for sure what factors went into their
decision, but after two weeks of testimony
and three-and-a-half hours of deliberation,
the jury found for the defense.

Some authors have suggested that the

“reptile brain” concept is really more
figurative than literal and that this is really
is a practical theory that is as good as its
results (Broda-Bahm, 2013). While the
biological theory behind the reptile theory
may have been discredited or ultimately
Plaintiff perspective. As a part of are responding from a pure reptile shown to be invalid (Kanasky and
accessing the primitive brain, the theory perspective. High road processing involves Malphurs, 2014), the tactics have been
suggests that upon sensing danger (hearing the sensory cortex and involves a rational show to be incredibly powerful. But why?
about an accident or injury) the jurors response to the evidence being presented.
move into “survival mode.” Jurors, as Those who use this type of processing are Why The Theory Works:
guardians of the community’s safety, “classic” defense jurors—detail-oriented, Misperceptions Of How Jurors Think
respond to the threat to their own safety thoughtful, patient and even skeptical.

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 The Reptile Theory works, in this Perceptions of companies. On the Breaking your own rules. The Reptile
author’ mind, because of previous other hand, defendants have also Theory also fits with the jurors’ frequent
misinterpretations about how jurors’ think traditionally used defenses based on assumptions that the defendant should do
by both plaintiffs and defendants. misinterpretations of how jurors think. more to ensure customer or user’s safety,
Defendants believe they must use the even if more is not required of them. In
Less sympathy. As alluded to in the “good company story” to humanize their fact, even if the defendant has met the
introduction, plaintiff attorneys have companies without realizing that this required regulations, jurors often believe
typically focused on sympathy: getting strategy has little persuasive value. that the regulations are the minimum that a
jurors to feel sorry for the victim through a Defendants tout that their companies are company has to follow. It is particularly
detailed description of the pain and made up of people and are thus “human” compelling when a Plaintiff attorney can
suffering they experienced during the and worthy of the same consideration as an show that a company has violated its own
incident (described by EMTs or witnesses individual. Of course the law says this also, safety rules or the industry standards which
who watched the accident unfold) and but is just as unlikely to persuade. This is a it helped to create. The jury appeal is
amplified by a “Day in the Life” video or hard fact to swallow for defense attorneys particularly strong when someone at the
stories about their and their family’s or their clients: companies are not people company has failed to follow the manual or
suffering. We learned long ago that the in the eyes of most jurors and will never be policy that it established as the final word
more the plaintiff attorney focuses on the seen as being made up of human beings on safe practice. A company, due to the
plaintiff, the more the plaintiff will be who are just like the people on the jury. A perception of more resources, more
scrutinized by jurors as to what they could large company or corporation is considered knowledge and more control over its
have done to prevent the incident. Further, just that, a business entity run by over-paid products and environments, is held to a
moving away from sympathy is important executives and distant boards. The “good higher standard of safety and responsibility
because sometimes the emotional company” type of appeal typically falls on than an individual. In a recent survey, 85%
discomfort caused by viewing graphic deaf ears since jurors already have beliefs of those jury-eligible people polled said that
videos often creates distance between the about what a company is all about— corporations should be held to a level of
plaintiff and the jurors rather than making money. Further any attempt to responsibility that is somewhat more or
engendering empathy and compassion. make jurors feel threatened that a company much more than individuals
Sometimes the vicarious experience of may eliminate jobs or leave the community (K&B/Persuasion Strategies national
“giving someone money” doesn’t feel right if an award is made is more likely to anger survey, 2015). This perception leads
if the juror him or herself has experienced jurors than engender good feelings about jurors to find fault when it has violated its
difficulties; in fact the difficulties that that company. own policies, since a company it is
jurors have experienced with job loss and supposed to know to follow its own
the economy have made it less palatable to A slightly different version of the manual as well as the laws in that
make large awards which will “make “good company” story involves the fact community, and is supposed to know
someone [the plaintiff] rich.” The emphasis that the company makes a well-known or about government regulations and industry
on frivolous lawsuits over the last two reliable product, or provides important standards. Attempts to prompt the theme
decades has made it difficult to generate services. Seeing popular products is not of personal responsibility on the part of the
sympathy from jurors in many cases. enough to keep the focus on the plaintiff plaintiff take a back seat to the obviousness
and the product in this case. That being of “breaking your own rules.” Attempting
Community safety. The Reptile said, it is possible to have limited success to blame the plaintiff in this context is a set
Theory works because it takes the emphasis with a reputation of charitable work or up for the very anger and emotion that the
off sympathy for the plaintiff and puts the being available in a crisis (the theory is that defendant wants to avoid.
focus on the failures of the defendant. a utility company is only as good as its
And, importantly, it also works because it response providing service in the most Rational motivation. The Reptile
moves the emphasis from the individual to recent ice storm or hurricane), but that is Theory works because it avoids doing what
the community—jurors are not just different than the “we’re good people” plaintiffs have traditionally done, and takes
protecting the safety of the individual story and cannot be offered directly. Thus, advantage of what defendants have failed
plaintiff (again there is resistance to making the “good company story” has limited to realize about how jurors think. Further,
one person rich), they are protecting the usefulness and may even turn some jurors it works, not because it directly affects the
community’s safety, a much nobler off. fact finders’ primitive reptile brains, but
motivation. Just like in Maslow’s hierarchy simply because jurors are motivated to
(1943), the first two needs that must be met Filtering cases. Further, we know that make decisions based on what they care
are physiological (food, water, sleep, jurors often think the defendant has done about first (safety), and what is logical
excretion) and safety (security of body, something wrong before the case starts second (the plaintiff could have done more
employment, resources, the family, health, because there is a “filtration” system at to secure his or her own safety). Instead
property). These needs must be satisfied work in the court system. Jurors often of applying the rational-legal model of
before anyone is able to move to higher believe that bad cases are settled or the reasoning, jurors find their way to a
order needs like self-esteem or self- judge grants a summary judgment motion; conclusion in a different way (Broda-
actualization. So it makes sense that jurors thus, the only cases left are those that Bahm,2010). The principle of motivated
would focus on their own and others’ actually have some merit. This kind of reasoning is that once jurors, or any other
safety as the plaintiff presents the “safety thinking is often underestimated by decision maker, know what decision they
gone awry” case. We are indeed creatures defendants in jury trials. want to reach, (like finding for a plaintiff or
who need to feel safe in our lives, and this a defendant), they collect support for
part of the theory is very effective. finding that way. Thus, hitting jurors early

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and hitting them hard with the motivation process proposed by a number of authors with the attorney’s personality and style)
of protecting safety means that the primacy (including this one) for educating and can be known in advance is an important
of that message is hard to ignore. The essentially reprogramming witnesses for consideration for success.
Reptile Theory focuses heavily on this success against this process follows.
concept: define the motivation (safety) and Humiliation and “shaming” are
the rest will follow. Plaintiff deposition process. The important secondary techniques. While
key to the plaintiff process is exhibiting common in many types of depositions, the
But how does the theory actually get control over witnesses. The “safety rule” is emotional tenor of this process is highly
implemented? The next section central to this process, and the idea is to important to achieving admissions and
summarizes briefly how the attorney can trap witnesses first into agreeing with creating contradictions. Insulting and
use the reptile strategy and defend against general safety principles and danger belittling the witness are key techniques.
it through the process of deposition, voir avoidance/risk avoidance principles, then Witnesses are asked, “You want the jury to
dire, and opening. move into more specific safety rules and believe that?!” or “You have been working
danger avoidance rules, and finally pinning there for 10 years and you don’t know
Depositions witnesses down on specific safety rules or anything about the safety manual!?” These
danger avoidance concepts that were types of questions get witnesses to feel
Introduction. Most authors agree that broken by this particular witness or ashamed about their responses when they
Reptile plaintiff attorneys need to get company (applies not only to 30(b)(6) contradict general safety rules or specific
damaging admissions or contradictions in witnesses, but also to other fact witnesses rules involved in the case.
testimony from key witnesses in order to and experts). Inconsistencies are key, and
force settlement early. The biggest reason the more inconsistencies within the policies Individuals who have been
for the success of this “focus on the of the company or of the industry (e.g., conditioned to respond to questions about
deposition” strategy is that most witnesses standard of care, construction rules, gas safety consistently in the affirmative
are poorly prepared to answer deposition line practices), the more focus that will be (construction, utilities, quality assurance
questions posed in the manner taught in placed on those inconsistencies. fields are examples of those who receive
the Reptile Theory books. Further, heavy safety training) are particularly
witnesses are attacked at both an emotional The process can be friendly or vulnerable to having their ways of thinking
and conceptual level, as well as a case aggressive, and is often both. There is an and their conditioned responses
specific level, which means that they are attempt by the attorney to unnerve or challenged. The Reptile attorney’s
typically unprepared to defend themselves, create a sense of imbalance for the witness. questioning is intended to move from
the basis for their testimony, and their very This creation of imbalance takes place both agreement with general safety and danger
self-esteem. with regard to the emotional content of the avoidance rules (confirming these rules) to
questioning, as well as the content. more specific safety and danger avoidance
Defendant witnesses (based on basic Vulnerability to the attacks is created by the concepts applicable to best practice in a
training from their attorneys) are often false belief that the deposition is an attempt particular field or with regard to a particular
lulled into believing that their best strategy to get at the truth of the matter, rather than product. General questions suggest that:
is just to “listen to the question, answer the a “game;” that the attorney will play by “Safety is always a top priority, right?”
question, and don’t volunteer anything reasonable communication rules; and by a “Any level of danger is never appropriate,
unnecessary.” This strategy leads to a lack of understanding of reptile correct?” “Reducing risk is always a top
series of yes and no answers, with no questioning. priority, wouldn’t you agree?” The plaintiff
explanation or caveats provided until the lawyer ties the general agreement to more
witness is boxed into a corner which he or The plaintiff attorney’s job is to specific rules that were violated in the case
she cannot escape. Not only is the Reptile create an environment in which the witness by the individual or the company.
strategy of aggressive questioning good will agree with what the plaintiff proposes.
practice on the part of plaintiff attorneys, it The witness’ compliance is often Perhaps the most dangerous questions
takes advantage of the failure to prepare dependent on creating the right kind of are about those hypothetical “safety
witnesses for video depositions that set the emotional roller-coaster that will support errors,” such as those that are characterized
tone of the case. During video depositions, the proper response. The ability of the by, “Wouldn’t it have been safer if X had
the witness’ answers, and typically their attorney to detect what will work is key—is happened?” or “The Company could
damning non-verbal behavior, are it best to be friendly to lull an unsuspecting always do more to protect safety and
memorialized for the potential jury to see. witness to agree or to disclose too much? prevent dangerous situations, right?” The
While it is well known that the more “key” Or is an aggressive stance most likely to get inevitable answers to these questions fit
the witness is, the less time he or she will a reaction? And combining both by neatly into jurors’ predispositions that
probably make him or herself available for switching from friendly to aggressive is a accidents are always preventable, and
proper preparation, it is a crucial part of the very common strategy. It is also best to companies can always do more to prevent
defense to the reptile process to spend gauge which of the two most common incidents from occurring. These questions
adequate time in preparation for reactions the witness will display: 1) is the also bank on both witnesses’ (and jurors’)
deposition. witness likely to withdraw from the use of hindsight, which is the tendency to
questioning or 2) become angry and believe that if something has happened it
The plaintiff’s questioning process, as aggressive in response. The evaluation of was probably predictable, just by virtue of
proposed by Ball and Keenan, and as the witness’ style can take place during the it happening.
interpreted by numerous authors, is process, but the extent that the personality
detailed below. The witness preparation of the witness (and its potential interaction

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 Cognitive dissonance experienced by questions intended to wear the witness what is important or relevant when asked a
the witness is essential to this process. down: difficult question. For example, a witness
Cognitive dissonance represents the can say, “Yes, that is sometimes true, but
psychological discomfort experienced “So, Mr. Jones this is the list of importantly, that was not necessary in this
when one is confronted with information protective equipment which the case.” Detecting trap questions and
or behavior that is in contradiction with workers were required to wear.” recognizing the appropriate timing for a
their internal beliefs or attitudes. The more “Yes. “
better, more thorough explanation is a key
strongly held the belief or attitude, the to reprogramming witnesses.
more intense is the experience of “Well so you were in charge of
dissonance when confronted with the new them wearing this equipment.” As is obvious from the above
contradictory information. When a witness description, defense witnesses also need to
whose whole life is based on safe practice, “Well this is the list, but they be on the lookout for emotional attacks
ingrained through early training and didn’t necessarily wear it….” and to learn to ignore them. Simply put,
company indoctrination, is confronted these attacks are often intended to make
“Well, if you were the the witness respond from the “child” part
with their or someone else’s decision or
supervisor and you were there,
behavior, which the plaintiff attorney of themselves, that part that was
wasn’t it your job to make them wear
suggests does not comport with safe the equipment?” embarrassed or felt insecure in the face of
practice, is it overwhelming for him or her. chastising from a teacher or parent.
The struggles that most witnesses have “Yes, and I was negligent…” Teaching witnesses that the attacks are
with the deposition comes from this unfounded (“You are not incompetent if
intense dissonance, particularly when they The case is over at this point, and the you disagree with this attorney”), training
have “gone on the record” agreeing with company will have to settle. them that this attorney will never be a
very broad principle of ideal safety source of approval (“This attorney will
practices. When a witness advocates a Defense Response: Defense NEVER agree with you), and that the
safety rule that they believe in and it also responses to this questioning process attacks are not personal, even if it sounds
seems to be obvious, but with which they primarily involve training. Breaking like they are (“It is his or her job to attack
do not always comply, this situation creates witnesses of the habit of agreeing with you in this adversarial context”) are all very
the maximum amount of dissonance, or general safety questions, without important in helping the witness remain
psychological discomfort for the witness. reservation, involves literally solid in the face of personal attacks. In fact,
reprogramming years of training. many witnesses we have trained have felt
Lastly, this process focuses on an Educating witnesses about the pitfalls of an internal “smile” when they realized that
admission of fault which decreases the answering every global question in the the more the attorney attacked, the more he
dissonance. “Wouldn’t you agree that if affirmative is a first step, along with many or she is probably frustrated with answers
someone had violated that rule and an practice sessions intended to 1) that do not satisfy the deposition agenda.
accident occurred, that person would be demonstrate how the safety trap is set and
responsible for the accident?” When a 2) to teach how to come up with alternative Voir Dire
witness admits fault he or she is really using answers. The biggest hurdle in this process
the “withdrawal” technique and is hoping is that safety rules just seem so obvious that Plaintiff perspective. Importantly,
to simply be left alone after being no one could disagree with them! Teaching voir dire has multiple goals. It is an
psychologically beaten up. This reaction witnesses to recognize a dangerous global opportunity to expose and eliminate those
can also be seen in other withdrawal safety question is job one. Convincing jurors who would likely be biased against
strategies such as feigning lack of them they are not lying or betraying their your client. In this regard questioners use
understanding of questions or asking the professional identity and training when the opportunity to ask questions about
attorney to repeat the question over and they offer an answer that provides a caveat which they really want answers. (“Do any
over as a delay. The alternative of is crucial to the process. of you have any connection to the parties
aggressively attacking the plaintiff attorney in this case?” “Does anyone here have
by denying the conclusions he or she is Next, witnesses need to be trained to strong feelings about or negative
drawing is usually only a temporary fix and think in terms of longer and more effective experiences with Bank X?”). It is also a
only serves to dig a deeper hole out of answers to yes and no questions. In some first opportunity to expose the jurors to the
which the witness must crawl. cases, witnesses can agree with safety themes of your case, which takes advantage
questions, but many times they are better of the concept of priming. While we
The witness has been forced into a off offering caveats or parenthetical generally consider eliminating your worst
corner and only has two main choices. The phrases, such as “in many cases,” “to a jurors to be the most important goal of voir
choice to get out of the corner involves great extent,” or “that is one of the things dire (after all, this is a de-selection process
“backing up” by offering context to what that is a priority at the company.” Of and you want to get rid of those with
was previously offered, which course there have to be logical reasons for predispositions against your client),
automatically decreases credibility. The these caveats. Recognizing and using plaintiff attorneys in the Reptile mode use
second choice (if the plaintiff gets his or her caution when answering questions that voir dire mainly for priming. In this regard,
way) is to simply admit that the plaintiff involve phrases like, “Wouldn’t you agree they ask questions that are intended to
attorney is right and thus the company with me that…” or “Wouldn’t it be fair to inculcate the jurors with the themes of the
could have done more and could have been say” is eye opening for many witnesses. In case.
responsible. Here is a sample sequence in many cases the best strategy is to help
an asbestos case after a long series of safety witnesses think like politicians, who offer

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 Priming is a technique used to violations caused the incident and defensive approach is one that has failed to
influence attention. Specifically, priming is lawsuits/damages are an appropriate keep up with the new Reptile strategy. The
an implicit memory effect in which response. Repetition is a form of priming Reptile opening “story” is one that is
exposure to a stimulus influences a which can make themes more believable. constructed with very specific themes of
response to a later stimulus. This means Jurors are often overwhelmed at the broken safety rules. The premise is that
that later experiences of the stimulus will be process of participating voir dire, and are jurors want to feel safe and will punish
processed more quickly by the brain. For listening intently to the themes so that they those who make them feel unsafe, and
example, if the word “sloppy” is used to can understand the nature of the case. albeit this is not the same thing as triggering
describe an investigation, that word tends Since the plaintiff conducts voir dire first, some kind of reptilian response, it is clear
to be automatically associated with the this first opportunity to set the stage occurs that jurors want to satisfy those basic
company’s behavior. In voir dire, when jurors are most impressionable. “Maslovian” needs. The idea that the
plaintiff’s counsel begins the priming world has been made unsafe for even just
process with the goal of exposing jurors to The defense perspective. Defense one person is a compelling argument for
the trigger words that will evoke themes of counsel can defuse plaintiff attorney many potential jurors, and if it is expanded
safety, danger, risk, etc., so that those priming efforts by indoctrinating jurors in to the community, the theme captures
themes will resonate with jurors during voir dire with opposing themes that can many other jurors. These very direct
their opening statement. offset the plaintiff’s counsel’s priming accusations are often met with what is
efforts. Focusing on following the law or perceived by jurors to be defense excuses,
Many of the questions plaintiff getting jurors to wait until all the evidence which reinforces their negative stereotypes
attorneys ask are not intended to get any is in are appropriate, but weak attempts to of company defendants.
form of response, but are rather questions inoculate jurors. Counter with some
with which no one will disagree. “Would information that surprises jurors, for Importantly, the organization of the
anyone disagree with the concept that example, asking them if they assume that Reptilian story is a vortex into which many
patient safety is a hospital’s most important just because they are in court that the defense attorneys are drawn. The most
goal?” “How many of you think that some defendant must have done something frequent mistake in response to a Reptile
companies put profit before safety?” wrong. This allows an opportunity to not opening statement is to immediately go on
“Would anyone disagree that this only expose those jurors who believe that the defensive and deny each of the
community deserves a safe hospital?” the defendant is already “guilty.” But allows plaintiff’s allegations. This knee-jerk
Importantly, the questions are worded so the defendant to emphasize that the response makes psychological sense since
that the answer will inevitably be to agree plaintiff’s injury may not have been caused the plaintiff has accused the defendant with
with the underlying premise of the by anything the defendant did or didn’t do. failures to follow its own safety procedures
question. Indeed, the attempt is made to Further defense counsel can also find ways during both voir dire and then opening.
structure many questions with “How many to inoculate against plaintiff themes, by The defendant wants to respond by
of you” when the attorney desires asking, “Would anyone disagree that a denying each allegation one-by-one.
agreement rather than “Do any of you,” doctor needs to look at each patient as an However, this strategy is intended to “bait”
which signals that that one person would individual?” or “How many of you believe defense counsel into fighting on the
be alone in their disagreement. Similar to that sometimes things are just accidents, plaintiff’s battleground and is very
the witness examination process, no one and not necessarily someone’s fault?” successful for plaintiffs.
would disagree that safety is important, and
everyone would agree that avoiding harm is Reptile tactics are not really about Defense perspective. Defendants
every organization’s ultimate goal. survival instincts; the theory really focuses need to remember what doesn’t work.
on utilizing negative predispositions about Most importantly, the repetition of all the
Further, plaintiff attorneys anticipate companies and positive leanings toward the things the plaintiff claims and a response to
that some jurors might have issues with underdog to view the case. Priming each just repeats all of the plaintiff’s
lawsuits or even believe that frivolous involves suggesting terms, definitions and themes. But let’s start with some other
lawsuits abound. In furtherance of their language which are keys to interpreting the basics about the most important part of the
goal of priming the jury, they might ask, case in your favor. Will jurors interpret the opening—the first five minutes.
“Would anyone here disagree that if case as one in which safety rules have been
someone is injured by a product, that they violated and the community is at risk, or, Jurors do not want to be pandered to,
have a right to sue that company that from a defense perspective, are there so defense attorneys (as well as their
makes that product?” Most jurors will alternate explanations for the events in plaintiff counterparts) need to stop
agree with this statement since it makes the question? spending so much time thanking them for
assumption of causation and the right to their jury service—jurors know that this is
sue. If someone does happen to disagree, Opening Statement just a way to attempt to influence by
then the juror’s biases are exposed and they flattery. We also know that offering that
can be eliminated either through a cause or Plaintiff perspective. As was noted at the defendant is a good company, whether
a peremptory strike. This same sort of the beginning of this paper, the plaintiff has it is made up of human beings, or that it
questioning is used to eliminate jurors who traditionally relied on sympathy and makes good products, does not clear the
are reluctant to award damages or have emotion to drive verdicts and damages. defendant of responsibility in the instant
limits as to the extent of awards. In this The classic defense response to such a case. Jurors want to know specifics. We
way the attorney not only eliminates biased strategy was to show how the defendant also know that the more time you spend
jurors, but also conditions those remaining acted reasonably and to offer various focusing on your own client (remember
that safety rules have been violated, the defenses for their conduct. This primarily that the plaintiff used to fall in this trap and

6
has now learned to focus on the plaintiff’s safety rules during opening is a References
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sufficient knowledge to deal with the blame the defendant. Defendants need to
situation in question. Some cases lend stop bashing the “Reptile” part of the Kanasky, Jr. B. & Malphurs, R., “Derailing
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others, of course, but in many cases the that the theory works with jurors. The Neurocognitive Analysis and Solution,”
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Dr. Ann Greeley has been a
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The beginning of an opening
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the reasons for why the defendant might 1,000 civil and criminal cases in more than
Witness Training,” Georgia Defense Lawyer’s
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in a civil case). Jurors figure out what is the throughout the country. In her practice,
“right answer” long before they even look Dr. Greeley has conducted extensive pre- Maslow, A.H. (1943). A theory of human
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what they should care about, and whether surveys, witness preparation, jury selection
and post-trial interviews in venues in most Marshall, D., “Lizards and Snakes in the
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decision. The fact that the jury instructions of the 50 states and territories, including
Alaska, Puerto Rico and Guam. needs to know about the Emerging Plaintiff’s
come at the end of most trials, and the Reptile Strategy,” For the Defense, February,
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means that the impact of legal definitions property, product liability, antitrust, Newman, J. D. & Harris, J. C. (2009).
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not at the end. juries, provides her with the expertise and
resources to make a difference to a winning
Jurors care about how to make the trial team.
decision about who was wrong in this
“argument” between plaintiff and
defendant, in other words, who is to blame,
so the defendant cannot ignore the need to
rebut the plaintiff’s attacks. However,
falling into the trap of focusing on the