January 5, 2015

Top Reptile (& Related) Posts

By Dr. Ken Broda-Bahm:

Reptile pic

I have had a long-term interest in the Reptile approach to plaintiffs’ trial persuasion. The perspective, articulated by David Ball and Don Keenan in several books and in seminars around the country, focuses on the advice to your case around the primitive (aka “reptilian”) need for security. My interest isn’t so much based on a belief that every foundation or implication for the theory is accurate, but on the fact that the approach has proven to be very popular and its results have been very convincing to its adherents. The Reptile might also be the closest thing the field of trial persuasion has to the kind of “Grand Theories” that animate other areas of psychology and communication. And from a practical perspective, having a discussion or debate about the Reptile can also help illuminate a number of other useful consideration related to legal persuasion for plaintiff, defense, or prosecution. This post pulls together my top 9 posts of or related to Reptile-style persuasion in trial.  

6a01156e439be2970c017c34ad5cb0970b-300wiRespond to the Reptile 

Before a recent presentation, I was chatting with a Texas medical malpractice defense attorney when she shared the following: 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.” Continue reading.

6a01156e439be2970c0192abdb911f970d-450wiTame the Reptile in Your MedMal Defense

Earlier this Spring, a courthouse in Jackson Mississippi was actually invaded by snakes. That story might have made some in the plaintiff’s bar smile a bit, since in their view, Reptiles have been invading American courtrooms across the country for a few years now. Reptile: The 2009 Manual of the Plaintiff’s Revolution by David Ball and Don Keenan, as well as associated books, DVDs and training seminars, have significantly influenced plaintiffs’ methods of trying cases, and the philosophy currently claims close to $5 billion in associated verdicts. Adherents believe that by framing legal claims as basic appeals to community and personal safety, they are able to wake up jurors’ reptilian minds and motivate verdicts in their favor. As I’ve written before, there is reason to believe the theory rests on a dubious foundation (the largely discredited belief in a reptilian brain governing the rest of our decision making), but that it works nonetheless (because it encourages persuaders to put motivation front and center). Continue reading.

6a01156e439be2970c019b035f4f36970d-300wiDefendants: Be the Mongoose

What does it take to beat a reptile? In most cases, a mongoose will do the job. As attention to the Reptile perspective on plaintiffs’ advocacy has been growing, an interest in the best modes of defending against it has finally started to catch up. The “Reptile,” of course refers to the David Ball and Don Kennan approach of reforming the plaintiffs’ trial strategy based on the belief that a “reptilian brain” will be motivated by appeals to personal safety and security, and these basic needs will drive the more advanced and cerebral regions of the mind. I’ve written about the approach on a few prior occasions (see ‘related posts’ section below) and also authored a piece for The Jury ExpertThe readership of those articles suggests that defendants are taking a new interest. The handbooks, articles and seminars, however, are not yet available to defendants at a level that comes even close to matching what the Reptile-Plaintiffs’ bar has to offer. Continue Reading.

6a01156e439be2970c019b01066f21970d-300wiDon’t Underestimate the Power of a Unifying Vision: A Return to the Reptile

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. Continue reading.

6a01156e439be2970c01b7c6e35c6e970b-300wiMind the Backlash: The Reptile’s Adventures in Scotland

British Prime Minister David Cameron is breathing easier after voters in Scotland rejected independence last week. For Great Britain, it will go down in history as one of the greatest modern political gambles. The vote was called at a time when fewer than one in three Scots favored independence. But in the weeks leading up to the election, that changed dramatically as the race became “too close to call” and Cameron’s future looked to be in doubt. Even though the unity position won by more than ten points, it did end up being a wee bit closer than Cameron might have expected. So what changed in the last two years? To those in the American litigation community familiar with the latest theory on plaintiff persuasion, I’d say what changed is this: The Reptile came to Scotland. The approach, based on the work of David Ball and Don Keenan (Reptile: The 2009 Manual of the Plaintiff’s Revolution), focuses on ways to address and motivate jurors based on their most primal needs for safety and security. But what does that have to do with British politics? It provides a handy lesson on how people might react to a fear-based persuasive appeal. Continue reading.

6a01156e439be2970c017ee7cab364970d-300wiScare With Care

If you’ve seen the Pixar animations feature Monsters, Inc., you might remember the slogan of the company in the title: “We scare, because we care.” Plaintiffs’ attorneys, particularly those who are followers of the Reptile approach to persuasion, may well have the same slogan. Since the perspective focuses on the idea that our primitive or ‘reptile’ mind is motivated by threats to our own security, trial lawyers using that approach will base their case on the threat and insecurity stemming from a defendant’s conduct, and frame a plaintiff’s verdict as a solution to that fear. Arguing that the events at issue in a case pose a threat to jurors and their loved ones, they suggest that the only solution is to use the power of the verdict in order to check that behavior. So based on this outlook, fear is useful: It’s a human motivator that plays a role in getting jurors to see a case in personally relevant terms and plaintiffs will add that they aren’t the only ones playing to fears. Defendants, they’ll say, have also either explicitly or implicitly played to fears: fear of false claims, runaway verdicts, and greedy plaintiffs, for instance. Continue reading.

6a01156e439be2970c01b8d0792ce5970c-300wiExpect Fear to be Driven by Dread, Not Data

As of the press time for this post, panic over Ebola is rising in the United States. With the first U.S. diagnosis of a patient last week, and that patient’s passing shortly afterward, it seems that the media — both social and institutional — are dominated by fears of a wider outbreak. As new cases continue to reach the U.S., and deaths abroad near the 4,000 mark, there seems to be a widening disconnect between public reaction and the reassuring messages delivered by medical professionals in the developed world. According to a recent survey conducted by the Harvard School of Public Health, the U.S. public’s concern over a domestic Hollywood-style epidemic is fueled by many misconceptions about the disease. With the CDC and other experts on auto-repeat saying Ebola doesn’t spread easily like the cold or the flu, and emphasizing that an outbreak is unlikely in the United States, that message isn’t getting traction, in part, because it appears to be refuted by each new case and each new headline.

6a01156e439be2970c017ee8d86df2970d-300wiSpeak to the Brain’s Politics

Once more, over the cliff! Our lawmakers have had to make, or not make, some risky decisions lately. The “sequester,” a poison pill of across-the-board cuts designed to force a spending compromise, has just done what no one believed it would do when it was created in 2011: It’s gone into effect. That is widely expected to result in hundreds of thousands of layoffs, imperil effectiveness across federal programs, and potentially nudge our struggling economy back into recession. It’s a reason to be wary of artificial deadlines, and just the latest example of Democrats and Republicans appearing to be not just different parties, but different species unable to meaningfully communicate with each other. The two parties may share the same language, but they seem to have very different brains. And a recent study appears to actually show that: There are differences in the ways the reds and the blues use their gray matter, especially when making decisions associated with risk. Continue reading.

6a01156e439be2970c0148c66a4390970c-800wiThe Persuasion Strategy You Have to Fear…Is Fear Itself

Reacting to new evidence of support in the public as well as the U.S. military for allowing lesbians and gays to serve openly, those who support a continuation of a “Don’t Ask, Don’t Tell” policy continue to warn of a dangerous loss of troop cohesion and morale, as well as the potential loss of troop strength if the policy is repealed during wartime.  While proponents and opponents of change differ on the merits of these arguments, there is also a dimension to these warnings that students of persuasion would recognize as a classic fear appeal.  The practical question to ask, both generally and in the case of legal persuasion, is whether fear works.  A strategy of seeking to call to mind an audience’s fear is, of course, no stranger to litigation.  Plaintiffs imply, if they can, that a defendant unchecked by a strong verdict in this case will continue to harm others, including you and your loved ones.  And defendants also would like to benefit from the belief that continued encouragement of frivolous suits – like this one – will just add to the threatening trends that are increasing prices, raising insurance rates, and robbing consumers of choices. Continue reading.

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