By Dr. Ken Broda-Bahm
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).
While not exclusive to the field of medical malpractice, the Reptile and the earlier Rules of the Road work by Rick Friedman both focus strongly on coaching plaintiffs to win these and similar claims related to safety. For defendants generally, I think the theory is best approached by stripping away some of the brain lore used to market the approach, recognizing that without that the Reptile is still a formidable means of legal persuasion, and then finding parallel ways to appeal to jurors' basic motivations. In this post, I want to take a closer look at the perspective, focusing on one element that is a particular vulnerability to the theory in a medical context: the safety rule