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.