By Dr. Ken Broda-Bahm:
The Reptile (Ball & Keenan, 2009) is about as hot as a cold-blooded creature can get. The theory, focusing on trying plaintiffs' cases by aiming your appeals at the primitive drive for personal safety and security, seems to have struck a chord with plaintiffs' attorneys. With regular seminars, a growing family of books, and strong word-of-mouth endorsements, trial consultant David Ball and attorney Don Keenan are on their way to making the Reptile a standard plaintiff's approach for medical, personal injury, and products cases. Recently, I wrote a piece on responding to the Reptile approach for The Jury Expert ("Taming the Reptile: A Defendant's Response to the Plaintiff Revolution"), and based on the high number of hits that article has been getting, it seems the defense bar is taking a substantial interest as well. In that article I argue that, despite having questionable foundations in some pseudo-scientific beliefs about the brain, the notion of appealing to basic security and safety needs is likely to be effective anyway because it speaks to juror motivation, and because it encourages persuasion that is both nontechnical and personally relevant. Defendants, however, can respond by targeting their own favorable motivations, and by undercutting the simplicity the Reptile approach depends upon.
One point that I did not make in that article, but have been thinking about since, is the way the advocacy for the Reptile approach itself is a good example of its own principles in action. A common criticism of the Reptile perspective is that it puts some old persuasive ideas into a new package. I believe there's truth to that but, at the same time, you've got to admit, the packaging has been pretty effective. In the book and in what I've seen of the surrounding material, Ball and Keenan are preaching what they practice. They address the fundamental insecurity of plaintiffs facing tort reform and skeptical anti-plaintiff juries, and apply a broad metaphor and a simple unifying and protective theme that provides a rallying point for the plaintiff's bar. For this post, I want to look beyond the question of whether the Reptile has sound roots in science, beyond even the issue of its effectiveness in trial, and instead consider the selling of the Reptile approach as an example of effective persuasion in action.
I gave a seminar recently, and the panel also included a plaintiff’s attorney experienced in the Reptile approach. After I gave my spiel, similar to what I cover in the TJE article, he stood up and said that there is essentially no defense. “If the Reptile is done right,” he said, “Defendants simply lose.” This nearly religious level of commitment seems to be common in the plaintiffs' bar. "Reptile strategy has taken the plaintiffs' bar by storm," Epstein Green and William Ruskin wrote in a piece appearing last month for the Association of Corporate Counsel. Rather than just being seen as a strategy that may help your chances, the Reptile is promoted and embraced as the way to victory. "The Reptile always wins," Seattle lawyer Patrick Trudell blogged, quoting a line from the marketing guru Clotaire Rapaille.
The pace of trainings, as well as the continually increasing count of verdict value that adherents attribute to the approach - now nearly $5 billion - points to the widespread embrace. But perhaps the best indication of the expanding appeal comes from the notice the defense bar is now paying to the Reptile. When I first wrote about Ball and Keenan's work, I had trouble locating defense comments on it, but now they are everywhere (e.g., here, here, here, and here) and span the gamut from dismissing it as nothing new, to accepting it and responding on its own terms.
What may be most telling is that all the skepticism and criticism so far seems to come from the defense side. I could have missed it, but I’ve yet to read or speak to a plaintiff’s attorney who says, "Yes, I've read this and I don't buy it." Instead, those plaintiff-side litigators who talk about Reptile don't give anything other than an enthusiastic endorsement of the book and theory.
The Power of a Unifying Vision
That success in the short-term speaks to the persuasive power of the Reptile perspective. I think we can see three basic functions for the theory.
Theme. Broadly the notion that "the greater the danger, the more the Reptile cares" is an effective theme: Simple, visual, and memorable. Whether the evolutionary explanation of the role of the reptilian brain is accurate or not, the idea serves to bind together an array of information under a single short statement: exactly what a good trial theme is supposed to do.
Movement. There is a reason the subtitle for the book is the "Manual of the Plaintiff's Revolution." It is not intended to be a simple list of strategies, it is intended to be a mobilization, a rallying cry, and a call to action. In that setting, it may be helpful to view the approach as a kind of social movement, with plaintiffs' attorneys marching under a Reptile banner. What matters most is that they're in this together.
Confidence. To a persuader, confidence is a powerful weapon. If plaintiffs' attorneys feel that they have an approach that can get them past the hardened anti-plaintiff jurors steeped in a simplistic recall of the McDonald's hot coffee case, they will be more likely to invest in cases, more likely to take cases to trial and, to at least some extent, more likely to win. Confidence can be contagious.
History: (Ghost) Dances With Reptiles
If you know your American history, you’ve heard about the Ghost Dance Movement. In 1890, a religious fervor swept beleaguered Native American tribes of the plains, including the Souix and Paiute, who learned from a prophet that if they performed a particular mass ritual, the spirits of their ancestors would return, restore the old ways, and grant them protection from being killed in battle. What drove them to that belief was the fear, really the knowledge, that their way of life was coming to an end. But fighters who believe, even wishfully, that they cannot be killed in battle are something to be afraid of as well.
That hearkens back to my co-presenter who said that when it is done well, there is simply no defense against the Reptile approach. I’m never one to be afraid to stretch an analogy. So, to me, it isn’t a surprise that a plaintiffs' bar, facing fewer trials, strong anti-lawsuit attitudes, and tort reform would similarly embrace an apparently new belief if a prophet tells them it will essentially make them invulnerable.
But remember the flip side. The 1890 Ghost Dance Movement didn’t actually make Native American fighters immune to bullets, as the Wounded Knee Massacre at the end of that same year amply demonstrated. But it did provide a powerful unifying vision, at least for a time, and that by itself was pretty dangerous to their enemies.
So that, I think, is part of the lesson defendants should take. Many write-ups on the Reptile approach coming from the defense side have trivialized or mocked it, and I think that is a mistake. Even if the science is questionable, and even if there are practical limits to the effectiveness of a fear-based approach, the Reptile can still be very powerful as a theme and a unifying vision, bolstering what ends up being fundamentally sound advice to plaintiff attorneys.
Other Posts on Plaintiff's Persuasion:
- Never Underestimate a Pro Se Plaintiff
- Take Anti-Lawsuit Attitudes With a Grain of Salt
- Go for "Mad" Not "Sad" When You've Got the Burden: Listening to Juror B37
Photo Credit: Webbaliah, Flickr Creative Commons