Defense Lawyers Complain About “Reptile” Plaintiffs

Medical Malpractice

The world of personal injury litigation is one of the most hotly contested areas of law and is a sore subject of political debate across the United States. There are some people who feel that the civil justice system is broken while others believe that the civil justice system, while imperfect, is still the best system that humanity has to resolve civil conflicts between people.

In 2009, authors Don Keenan and David Ball released a book entitled “Reptile” and dubbed it as “The 2009 Manual of the Plaintiff’s Revolution.” Afterward, insurance defense attorneys in many courtrooms filed motions to limit “Reptile” tactics.

So What Is The Reptile?

The “Reptile” is really nothing new except that authors Keenan and Ball just brought the issues that it raises back to the forefront of debate. The reptile strategy is nothing more than the art of persuasion in a courtroom. While a number of psychologists and other professionals have extensively studied the behavior of juries, the reptile strategy is really nothing more than common sense.

When people sitting on juries sympathize with the plaintiff, they tend to award money (and more of it). On the other hand, when those same people do not sympathize with the plaintiff, then they tend not to award money. The problem that insurance companies have with the “Reptile” is that it reminds plaintiff’s attorneys of this and what they really should be doing in a courtroom.

The jury instructions for closing arguments in every civil trial are the same. The Florida Standard Civil Jury Instruction on sympathy is:

In reaching your verdict, you are not to be swayed from the performance of your duty by prejudice, sympathy, or any other sentiment for or against any party. Your verdict must be based on the evidence that has been received and the law on which I have instructed you.

While it is great that such an instruction an exists in Florida (and virtually all jurisdictions), we are all human beings and we have emotions and feelings. As humans, we can’t help but follow those emotions and feelings even if we are told not to do so.

This is where we must see things for what they truly are. We need an example to make the point.
Let’s say that a hypothetical case involves a corporation that enters into contracts with people to wear purple shirts in exchange for money. Then, a person who entered into a contract to wear a purple shirt decides that they no longer want to wear purple shirts everyday and they stop doing it. Thereafter, the corporation sues that person for not wearing a purple shirt like they agreed to do and the case goes to trial.

In that trial, the evidence is crystal clear that there was an agreement to for the person to wear a purple shirt and the person decided against doing it after taking payment from the corporation. Based on the jury instruction given by the court, the jury should award for the corporation any financial damages that they can prove without any prejudice, sympathy, or other sentiment.

The problem with this scenario is that no one really cares about whether a corporation paid someone to wear a purple shirt, let alone all of the details that go with it. This is simply just not an issue that people are going to care about even if the “evidence” is there to support it.

On the other hand, as the “Reptile” points out, issues that strike fear, danger, or pose a risk to safety in the juror’s themselves are much more likely to get a positive response for the plaintiff in a court of law. This should come as no surprise at all.

Taking that same hypothetical above about the purple shirts and taking it farther, let’s say that the dye in these purple shirts is shown to cause serious skin rashes when it rubs off on people who wear them. Further, let’s say that the corporation knows this when it contracts with the people to wear these shirts but does not tell them.

Now what do you think about the person who decides that they no longer wants to wear the shirt? Take it one step further too-what if you were one of those people who contracted to wear those shirts and got a serious skin rash? How does that make you feel knowing that the corporation knew about it beforehand?
Of course it should make you mad and that’s why if you are a juror in that hypothetical case then you are going to want to punish the corporation for their conduct by awarding money to people who suffered skin rashes as a result of this transaction.

So there you have it. The “Reptile” is really a very simple idea that has been around for a very long time and there is nothing improper about it. The only people who want you to believe that there is something wrong with it are the ones who are profiting off of others.

Parallels To The “Golden Rule”

It is well established in every jurisdiction that lawyers are not allowed to use or mention the “Golden Rule”-that is to ask the jurors to decide the case if it was them in the plaintiff’s shoes. While I agree that lawyers should not be allowed to make these arguments to the jurors during the course of a trial, the “Golden Rule” is part of humanity (and humility) that is inescapable.

The “Golden Rule” as I learned it was to “treat others the way that you would like others to treat you.” Those words mean a lot to me and I try very hard to live my life by those words because I find a lot of value in them. I genuinely think the world would be a much better place if we all tried harder to live by those words.

On the other hand, we know that there are a lot of people who clearly do not live by those words and take a “me first” approach to everything without regard for others. Aside from being selfish, it is important for people to realize that our society inherently depends on people doing the right thing automatically and without having to be asked.

You may have never thought about it like this, but a “free” society cannot exist without people who follow the Golden Rule (those who do what they are supposed to automatically because they want others to do the same). For instance, most of us will stop at a stop sign not just because it is the law but also because we want other people to do the same for us. If we changed the law so that people who drive expensive cars no longer have to stop at stop signs but everyone else has to, then the rule of law loses its legitimacy but more importantly the Golden Rule no longer applies and havoc would result.

This is why I suggest the “Reptile” involves more than just fear. Instead, the “Reptile” is also about equality.

Equality Might Trump All

Aside from awarding money to punish one party or another for bad conduct, a civil jury (if they have a good moral compass) should be able to get over any feelings that they have of jealousy or personal envy and award a person who has truly suffered at the hands of another enough money to make things “right,” as least as much as they can in their own consciences.

The reason that I say this about jury awards is because while there may be some element of fear involving cases of bad conduct, sometimes people are hurt just by accidents and those people still deserve compensation when their lives will never be the same.

Our legal system requires a finding of “negligence” in order for a jury to hold someone “liable” for an injury. This essentially means that the jury must find that someone did something wrong. Unfortunately, the reality is that accidents which no one foresaw do happen and people sometimes get very seriously hurt from them. Should there be no liability just because no one foresaw an injury happening?

This is where equality plays heavily into the thoughts and feelings of civil juries. Defendants and insurance companies will tell jurors in a courtroom that they should not have to pay unless they did something affirmatively wrong. Experienced trial attorneys will tell you that while they make these arguments in the courtrooms, they know that juries will try to make things equal if they sympathize with the plaintiff even if there isn’t clear evidence of wrongdoing.

This is where the “Reptile” comes back into play, but again, it is nothing new. Instead, the “Reptile” is just an awareness of the way people have always been.

I think that I can make our purple shirt hypothetical apply. Let’s say that the corporation had no idea that the dye used in these purple shirts would cause serious skin rashes and not even the manufacturer knew because it was a new color. Should no one be held responsible for all the people who suffered damages?

The obvious answer to this issue is that someone who have tested this material before entering into a financial transaction for people to wear it. This might mean that the corporation is responsible because they wanted everyone to wear purple shirts for some reason but never checked to see if there was a safe way to do it. On the other hand, it might mean that the manufacturer is responsible because they should have tested their product to see if it was safe before selling it. Either way, the basic concept here is that there was a way to prevent injuries even if no one thought of it, and because no one thought of safety, they are responsible for the injuries that occured.

Preventability Is The Hallmark To Every Tort Case

Perhaps much deeper than the “Reptile” is the concept right and wrong concept of preventability that people think about when holding someone else responsible for anything. We can almost always do something more to prevent something from happening, but how far should we go? That is the big question in many civil trials and is often a far bigger issue than whether a person “deserves” to be awarded damages in a courtroom.

You don’t need to have led a perfect life and never have done anything wrong in order to claim damages in a courtroom. Good and bad things happen to both good and bad people. Going back to our purple shirt hypothetical, a homeless person who has been arrested over 100 times should be given the same amount of money in a courtroom for a skin rash that an innocent child gets for the same skin rash because the injury should have been preventable. We are not supposed to judge that way although we are often influenced by factors that we shouldn’t.

This is the true purpose of the jury instruction on sympathy. The “Reptile” is just another way of thinking about these age-old concepts.  If you want to know more or have doubts, you should buy the book.

A Plaintiff’s Personal Injury Attorney Can Help You

If you have a situation where you need legal help for a personal injury or medical malpractice case, a personal injury attorney representing plaintiffs can help you with your claim. You should seek out an attorney who is conscientious and mindful rather than just about the money. While we as personal injury attorneys must make money to feed ourselves, pay our property taxes, pay our employees, and keep the lights on, the practice of law is ultimately about helping people with their problems. If you would like a free consultation regarding your issue, please contact us to discuss your case.


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October 04, 2017