Considerations for Insurers and Corporate Defendants As Jury Trials Resume: Reptile Theory Meets the Realities and Aftermath of Worldwide Pandemic

By Christian Stegmaier
Collins & Lacy, P.C.
Posted 2/24/21

At this point, you have read and heard about Reptile Theory many times over the last 10 years.  So, this article is not yet another primer on this strategy. You know the basics by now. Instead, this article takes the conversation further to consider how plaintiff’s lawyers may merge the psychological underpinnings that make Reptile Theory successful with the events of 2020 and 2021 to capitalize on the same as jury trials reconvene across the country.

Stated succinctly, Reptile Theory is a psychological tactic managed by plaintiff’s lawyers. More specifically, it is a trial strategy that seeks to make use of the primal, inherent, and often subconscious instincts or fears of jurors for purposes of obtaining substantial verdicts, including punitive damages awards.  It is for all intents and purposes an end run around “the Golden Rule” at trial–a “Golden Rule” argument asks jurors to place themselves in the position of a party and is generally considered an improper argument by counsel.

Rather than focusing on creating sympathy for the plaintiff, Reptile Theory emphasizes rules, procedures, and protocols and compares them with the alleged failures of the defendant to keep the plaintiff and the community, including the jurors, safe.  By homing in on the importance of rules and community safety, the plaintiff’s lawyer injects the jurors directly into the equation and places them in the position of community guardian (vs. an impartial arbiter of whether the defendant wrongly damaged the plaintiff in this one discrete matter).

Don Keenan, a trial lawyer, and David Ball, a jury consultant with a theatre background, articulated the Reptile Theory in their book Reptile: the 2009 Manual of the Plaintiff’s Revolution. Keenan and Ball claim that the strategy has resulted in billions in verdicts and settlements. Fast forward to 2020. Things have changed in the world around us–and arguably not for the good. Specifically,

• We are entering the 13th month of a worldwide pandemic, which continues to rage and affect just about every facet of life in this country. In short, folks are just plain worn out by the constant disruption to their lives created by COVID;

• We have just gone through arguably the most caustic and divisive political season in modern American history; and

• Many Americans are either unemployed or underemployed. Even for those who have maintained their employment, the economic picture remains uncertain. The situation remains very fluid. All of this is resulting in actual or prospective instability, which in turn has created an enormous amount of stress for millions of people.

Now add the pressure on our institutions to get back up and running to all the realities outlined above. This includes the court system, which in turn means jury trials. For jury trials to run, we need those same stressed out and economically pressed citizens to sit on a jury. For corporate defendants and their insurers, this is a less than an ideal time to be trying cases.

Like it or not, a trial is arguably nothing more than a play put on by lawyers who are also trying their best to be psychologists.  The “facts” of a case are what the jurors believe to be the facts. And their beliefs are shaped by emotion. And where you have jurors who are potentially emotionally fragile due to personal circumstances created by outside forces outside of their control, that can’t seem to be a good thing for well-insured corporate defendants hoping for a fair trial free of bias or undue outside influence.

Reptile Theory is generally injected into litigation at three different points: (1) the Rule 30(b)(6) corporate deposition; (2) voir dire; and (3) opening statements.  In study after study, where Reptile Theory has been viewed as successful, the end analysis typically shows the die was cast for a plaintiff’s outcome after these three stages. Where you will see the twist on Reptile Theory to incorporate the realities of these times will likely be in a plaintiff’s attorney’s focus on the disproportionate economic standing between the plaintiff and the corporate defendant.

Thematically, it will be David vs. Goliath, which counsel would have the jurors believe is a battle of Good vs. Evil, Right vs. Wrong, Light vs. Dark, etc.  Defense counsel and their client and insurer must be alert to the prospect of this argument and take the steps necessary to head it off at the pass.  Such steps will include:

• First and foremost, orchestrate an exhaustive effort at selecting the best jury possible. This means doing as much pre-trial research as possible about the panel to identify those jurors that may align with plaintiff’s anticipated messaging. Prospective jurors that have publicly articulated a disproportionate amount of alleged ill-effects from COVID, the lockdowns, the dip in the economy, etc. may not be the ideal juror for a civil defendant to seat. In addition to preemptory strikes, defense counsel must have the fortitude to move to strike for cause where such cause can be credibly articulated;

• Filing and arguing motions in limine that obviate or at least limit plaintiff’s counsel’s anticipated economic disparity argument–and any other argument that attempts to improperly and artificially leverage the events of 2020 and 2021–into the jury’s analysis;

• Carefully draft voir dire that susses out the existence of juror bias as it pertains to corporate defendants or a lack of partiality due to economic circumstance. As well, carefully inquire about jurors’ financial, emotional, and physical ability to participate in a jury trial during COVID times; and

• Humanize your client as best you can, especially if the client is a corporation.  Corporations are made up of people who possess the same stresses, concerns, and stories as jurors. Where applicable, tell those stories in your opening statements along with your typical presentation about the facts and liability and damages positions. Tell the jurors real things about your client, which will resonate with them.

Nothing is easy these days.  Just about everything is hard, including litigation and trial work. Be mindful of the realities of the world around us, be vigilant about the plaintiff’s attorney’s attempts to capitalize on current events to leverage them for a better outcome at trial, and do the best you can do to eliminate those arguments and obtain the most fair trial possible.

Christian Stegmaier is a shareholder of Collins & Lacy, PC and chair of the firm’s Retail & Hospitality practice group.  He represents national and regional retailers & hospitality operators doing business in South Carolina with a particular focus in alcohol liability, premises liability, third party assault, and food service claims.  Stegmaier welcomes you to contact him at cstegmaier@collinsandlacy.com or (803) 255-0454.