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.