By Dr. Ken Broda-Bahm:
On the defense side of the bar, attention has been exploding over plaintiffs' Reptile approach. If you Google "Reptile" and "Litigation," you'll see a profusion of articles. But so far, at least, the strategy of leveraging the perceptions of "safety" and "danger" has been the subject of attention from a subset of defense lawyers: those who deal with death and injury focused on the human body, including personal injury, medical malpractice, workplace safety, and products liability. For litigators who don't generally defend these kinds of cases, the plaintiff bar's strategic focus on "the reptilian brain," can seem like something from an entirely different world. In my experience, attorneys who are more likely to defend cases involving contracts, construction, energy, employment, intellectual property or other cases that involve damages that are distinct from death and injury, often haven't even heard of the Reptile.
But my view is that this is likely to change. There is good reason to believe the Reptile approach is already making inroads outside the core medical and injury cases where it started. Even though there are good criticisms out there of the theory's scientific basis and tension with the rules of evidence, the approach has benefitted from excellent marketing and has shown itself to be a highly-practical and effective approach for many trial lawyers. If defense attorneys in other areas of litigation want to avoid being caught unaware, as medical, products, and P.I., attorneys were a few years ago, then they would be wise to learn some of the basics of what the Reptile is and how it is best countered. I see two reasons to believe the Reptile will act like an invasive species. First, it can spread because the perception of a “threat” can be generalized, allowing the entire approach to operate in a more abstract way in cases that don't involve physical threats. Second, it can spread because some of the techniques it teaches are simply good techniques, and one can face aspects of a Reptile technique even from litigators who aren’t living by the full Reptile theory. While there are many great resources, including some articles in Persuasive Litigator, on how to generally respond to the Reptile, I will look at a few types of litigation where the Reptile can find a new home.
Contract and Commercial Litigation
Commercial litigator Irene Bruce Hathaway wrote that the Reptile's emphasis on "Safety Rule" can be applied to contract cases. She shares some examples that the company witness, for example, might be asked:
“You agree that you would never needlessly hurt another company, especially one you had a contract with” or “it would be wrong to unnecessarily take actions that hurt another company, or which could even put them out of business” or “when you agreed to use ‘best efforts’ in this contract you agreed to do everything you could to insure that the other company was not needlessly [or unnecessarily] damaged, right?”
One way of thinking about it is to look at the basic reason we enter contracts: to manage and reduce uncertainty, risk, and danger. In that framework, each of the parties to a commercial agreement can be seen as owing a kind of duty to the other control for the possible negative consequences of commerce. Break that duty, and you're potentially a danger to everyone who depends on secure agreements.
One thing that is unique about employment cases is that most of your jurors will come to your case seeing themselves as experts on employment. After all, most of them have jobs. And why do we have jobs? Mostly, for security. So cases about employment are in a very basic way cases about security. A company either protects that security by treating people well and by having good, fair, and accountable policies, or the company threatens that security, through retaliation, discrimination, or wrongful termination. Several employment lawyers, like Alex Craigie, have noted that connection and blogged on the Reptile. Kyle White notes potential questions that fall in line with a Reptile approach: "You would agree with me that a company must not endanger its employees, correct?" Beyond addressing physical danger, similar questions could effectively address the factors that promote or undermine the security of the relationship between employer and employee.
The principle of security also applies to our sources of fuel. In a way, we already employ the language of "threat" and "danger," when we talk about our "energy security." In addition, the specter of climate change has added another layer of potential danger when we think about energy, and the potential for oil, gas, or coal companies to threaten jurors or their loved ones can easily become part of the narrative in these cases. Fossil fuels are also popularly perceived as underlying reasons for wars in the Middle East. So those are some reasons to associate energy companies with reduced security. On the flip side, however, people are also motivated by fuel prices, since that can have a more immediate effect on economic security and standard of living.
Intellectual Property Litigation
As a final litigation type to discuss in this post, intellectual property might be seen as the greatest stretch for applying the Reptile perspective. And I admit, I haven't (yet) heard of an intellectual property case that employed the Reptile model. However, I think it is important to keep in mind that the main ingredient in the Reptile approach is the motivation to defend something that is under threat. And in trademark, copyright, and patent cases, there is definitely something that is under threat: innovation, freedom, fair competition, all of that could be threatened by one party or the other. As we have written before, some jurors oppose the very idea of intellectual property, in part because it is seen as threatening the marketplace competition that would give us a better quality of life.
The bottom line factor that makes the Reptile applicable beyond its home base is the reality that we are motivated to protect things other than just our physical security. Thinking back to Maslow's hierarchy of needs that you may have learned in Psychology 101, you'll recall that basic needs for survival and safety form the foundation, but as you move up you get into motivators like esteem and achievement of potential. Any motivation that can tap in anywhere on that ladder is a motivation that can follow the Reptile approach.
Other Posts on Reptile:
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