By Dr. Ken Broda-Bahm:
Plaintiffs' lawyers have changed. They're all talking about "safety" now, and that word is finding its way into every deposition: "What is the safe procedure?" or "What would've kept Mrs. Johnson safe?" They're all talking about safety and security instead of standard of care.
I replied, "Oh, that is the Reptile." She hadn't yet heard about the popular book by David Ball and Don Keenan, so I explained, it's a theory for trying plaintiffs' cases by portraying the defendant's conduct as a threat to jurors' own safety and the safety of others. By framing arguments in terms of our most biologically basic need for security, the theory goes, plaintiffs are able to successfully tap into jurors' primitive or "reptile" mind. And when the Reptile decides, our conscious mind and reason-giving ability follows. Based on that unifying concept, the perspective has taken the plaintiff's bar by storm, spinning off more books as well as frequent trainings. "Cases are not won by logic," they write, "you need to get the Reptile to tell the logical part of the juror’s brain to act on your behalf. To get the Reptile to do that, you have to offer safety."
Since its introduction in 2009, there has been only limited response from the defense bar, and some of these responses have taken on the theory on its own terms - terms that appear to rest on some questionable assumptions, particularly in light of a recent Scientific American piece. So this post offers a short defense manifesto, so to speak, recommending three steps for a defense response to this trend.
For defendants looking at the prospect of the other side increasing their effectiveness by appealing to the survival instincts of the reptile brain, here is what I'd suggest.
Step One: Strip Away the Brain Baggage
A central support for the Reptile approach is the "Triune Brain" theory, as Ball and Keenan acknowledge in the foreword to their book. The notion is based on the work of the neuroscientist Paul MacLean, who theorized in the 1960s that there are three discrete parts to the brain reflecting the stages of evolution: a reptilian complex at the core of the brain (primitive and survival-based), a paleomammalian complex located in the mid-brain (focused on emotion, reproduction, and parenting), and a neomammalian complex at the top (capable of language, logic, and planning). But it is that basic reptile level, the theory goes, that drives our behavior, and even when we think we are acting based on the language and the logic of our neomammalian brains (e.g., in deliberation), we are unknowingly responding to the commands of the reptilian brain. "The Reptile invented and built the rest of the brain," Ball and Keenan write, "and now she runs it."
This perspective on brain structure is an important part of what makes Ball and Keenan's perspective new. The message is that since the Reptile is in control of our thinking, our persuasion needs to tap into the only things that waken and motivate the Reptile: safety, security, a freedom from threats. That is what makes the approach unique and powerful at a level that goes beyond reason-giving and is essentially precognitive. So Ball and Keenan are offering plaintiffs' lawyers a kind of magic button to engage the most powerful persuader imaginable. Some defendants have taken note. Attorney Mark Bennett, for example, wrote in a blog post entitled "Lizards Don't Laugh," that civil defendants can try to a) make a stronger appeal to the reptile brain, or b) disengage the reptile brain, and engage the dog brain or the ape brain." He goes on to suggest that laughter, by creating incongruity and relief, gets the jury out of their reptile minds, creating the possibility for at least a "Simian Trial."
The problem with all of this is that the idea of the "reptile brain" is more figurative than literal. "The theory," as science writer Ben Thomas notes, "has proven outright insane in light of the latest scientific research." In a recent blog piece invited by Scientific American, Thomas highlights the so-called reptile brain as an example of the popularization of dubious science. "The Triune Brain idea holds a certain allegorical appeal: The primal lizard – a sort of ancestral trickster god – lurking within each of us," Thomas writes, "But today, writers and speakers are dredging up the corpse of this old theory, dressing it with some smart-sounding jargon, and parading it around as if it’s scientific fact." Looking at MacLean's "reptilian complex" referring to the bundle of nerves at the base of the brain called the basal ganglia, for example, Thomas notes that this was only called "reptilian" because biologists in the 1960s believed that the forebrains of birds and reptiles were made of basal ganglia. But it turns out they aren't. In addition, the idea that these sections of the brain could operate more or less independently like three brains, also hasn't held up in the face of modern neuroscience, because the brain tends to operate as a unified whole.
In light of Thomas' critique, Ball and Keenan's Reptile perspective stands out as illustrating scientific beliefs that persist more because they are useful than because they are valid. It persists and sticks not because there is strong evidence that it is true, but because it feels “complete” and has, as Stephen Colbert would put it, "Truthiness" independent of its truth. The idea that our persuasion is controlled by a reptile mind, as Thomas notes, "makes a weird kind of intuitive sense. We're bundles of instincts and inhibitions and desires that don't fit neatly together. It'd be comforting, in a way, if we could pin those conflicts on little lizard brains." But saying that persuasion isn't controlled by a reptilian underbelly is not the same as saying that our brains are logical, analytical, and predictable either. They're not. Instead of one neat and simple driver of decisions being found in the survivalist reptile, we need to continue to look at the more complicated picture of behavioral drivers that are nuanced, individual, and situational.
Step Two: Recognize that What is Left is Different, But Still Valuable
So what is the Reptile theory without the part about the reptile brain? It is a practical perspective that is as good as its results. Independent of the doubtful neuroscience, the ability to make one's case stronger by applying Ball and Keenan's advice is what matters. As the Los Angeles plaintiffs' attorney Sonia Perez Chaisson put it succinctly in The Jury Expert, “We care not at all about brain anatomy and solely about whether the Reptile works.”
And by all indications, it works. But it most likely works not because its adherents have found a way to communicate directly the fact finders' primitive reptile brains, but simply because attorneys are recognizing that motivation exists and picking a very strong motivation to speak to. Instead of applying the rational-legal model of jurors reasoning their way to a conclusion by applying the law to the facts and deducing to a verdict, the Reptile practice forces attorneys to speak to what would make jurors care about the verdict. The principle of motivated reasoning is that once jurors, or any other decision makers, know what decision they want to reach, then they'll have no problem coming up with reasons to support that conclusion. The decision comes first and the reasons are filled in later. So, once you identify the motivation and tie that motivation to your case, you are more than halfway there. If you excise all of the brain-speak from Ball and Keenan's book, I read them as saying, "Speak to the motivator. Make it an individual motivator, and make it an important motivator." Whether that motive is attributed to the brainstem or to the neocortex matters not a bit.
Step Three: Find Your Own Motivation
A central part of Ball and Keenan's argument is that the Reptile approach is a tool that helps one side, not the other. “The Reptile prefers us," meaning plaintiffs, "for two reasons: First, the Reptile is about community (and thus her own) safety – which, in trial, is our exclusive domain. The defense almost never has a way to help community safety. The defense mantra is virtually always, ‘Give danger a pass.’ Second, the courtroom is a safety arena," they write, "so when we pursue safety, we are doing what the courtroom was invented and maintained for." Defendants might quibble that the more limited purpose of the court is to resolve the claim before it, and not to broadly enhance society's safety with each verdict. But at the level of personal injury, product, and medical malpractice suits, Ball and Keenan do have a point in emphasizing that it is often easier for the plaintiff to invoke safety than the defendant, except in those cases where the defendant's own conduct is the more salient source of the danger.
But remember, the part of the theory that says, "safety is all that matters" is also the part that is based on the dubious "Triune Brain" theory. Security may be a very powerful human motivator, but once we're freed from the reptile analogy, it is far from the only human motivator. Smart defendants will tie their own case to a powerful principle that is at stake: responsibility, innovation, or fairness. It can even be a strong appeal to empower jurors to resist the pull of an emotive safety-based verdict, and instead base their decision on evidence, science, and facts. Even within the assumptions of the Reptile perspective, there is one source of insecurity that can be hung on a plaintiff's case: The idea of being manipulated can be very threatening. In one of Don Keenan's Georgia trials in 2010, for example, the insurance defense counsel called out the Reptile strategy by name, and previewed what Keenan was likely to do in closing. Just like any other strategy, it becomes less effective when it is known and named.
It is all but certain that plaintiffs' lawyers will continue to talk about safety. And there is good reason for that. Recall the unimaginably sad event this past Friday: Another mentally ill gunman with access to military-style weaponry, this time killing twenty children aged six and seven, along with seven adults. It is impossible to think about a tragedy like that without feeling an insecurity and a lack of safety surrounding your own loved ones, your own children. That is a powerful response, and this time it seems, it is powerful enough to be pushing aside the "now is not the time" line regarding discussions of this country's response to guns and mental illness. You don't need to invent a reptilian subculture of the mind in order to understand that motivation and to see that empathy sometimes takes the lead.
Other Posts on Motivation:
- No Blank Slate (Part 1): In Opening, Treat Your Jurors as Motivated Reasoners
- No Blank Slate (Part 2): In Closing, Treat Your Jurors as Instrumental Arguers
- No Blank Slate (Part 3): With Judges, Arbitrators, and Mediators, Don’t Assume They're Neutral
- Don't Discount a Motivated Minority
Ball, D. & Keenan, D. (2009). Reptile: The 2009 Manual of the Plaintiff’s Revolution. Balloon Press.
Thomas, B. (2012). Revenge of the Lizard Brain. Scientific American (Blog), September 7th: URL: http://blogs.scientificamerican.com/guest-blog/2012/09/07/revenge-of-the-lizard-brain/
Photo Credit: Chodhound, Flickr Creative Commons