ASKED & ANSWERED: Stephen Hnat on 'The Reptile Strategy'

By Steve Thorpe Legal News In recent years, a model of trial advocacy has emerged that includes manipulating jurors by fostering fear. Often called some variation of "The Reptile Strategy," it claims an attorney can win a trial by addressing, and scaring, the primitive part of jurors' brains--the part of the brain they share with reptiles. The oldest part of the brain is the "triune" brain and it is said to have the greatest influence on issues of safety and survival. Stephen Hnat has degrees in both psychology and in social work from the University of Michigan. One of the nation's most highly-regarded trial consultants, he has participated in numerous high profile trials such as the Jack Kevorkian and Jenny Jones cases. Hnat has assisted in trials, which have set record awards in seven states. His office is in downtown Detroit. Thorpe: Trial advocacy has always been both an art and a science. Is that balance slowly tilting toward the science side of the equation? Can you give us some examples of biological "buttons" that might get pushed in a reptile strategy? Hnat: We've made tremendous progress in the past two decades toward understanding the neurobiology of thinking and behavior; however there is no biological "magic bullet." Social scientists have begun to use research methods to assist with jury selection and trial strategy with success, but there is no theory that has proven to be predictive of juror behavior. There is no substitute for thorough preparation, jury selection and trial research and, ultimately, the skill and experience of the attorney. Reptile strategies are based in the assumption that basic biological drives, such as survival, determine human decisions. Examples of how this might be relevant would be a 1983 case involving the police, or a medical malpractice case. In those instances it is postulated that the need for police protection or effective medical treatment creates a natural bias for defendants that has to be exploited or neutralized. A defense attorney might emphasize the need for police to do their job protecting us without a fear of lawsuit. A plaintiff's attorney might emphasize the power an officer has over the lives of every citizen and the need to prevent abuses. Thorpe: Critics claim that "reptiling" is an attempt to resurrect "Golden Rule" arguments, which are often impermissible, to the courtroom. Jurors are not supposed to be asked to put themselves in the place of a party and make a judgment based on that transference. Do you believe it crosses that line? Hnat: An attorney using the "reptiling" method isn't directly appealing to the jury to put themselves in the plaintiff's situation. They are identifying and emphasizing aspects of the case that resonate with juror self-interests. This is something every effective trial attorney does implicitly. Thorpe: Another attorney wrote, "To equate men and women serving on a jury with reactive sub-mammals is both offensive and objectionable." All's fair in love and war, how about jury preparation? Is there something inherently offensive or unfair about this tactic? Hnat: I tend to agree that "reptile brain theory" does trivialize, if not grossly oversimplify human behavior. Worse than that, it can mislead an attorney. I don't believe that the concept is especially effective, so I can't agree that it affords an unfair advantage. Good research on jury selection and trial strategy does provide an advantage in trials, but these research methods are equally effective for both sides. Thorpe: In September, Tennessee attorney Minton Mayer authored an article called "Make Boots Out of That Lizard--Defense Strategies to Beat the Reptile." Is the reptile tactic vulnerable to effective countertactics? Hnat: This may be good marketing, but not good science or effective representation for plaintiffs or defendants. Thorpe: In their influential 2009 book, "Reptile: The Manual of The Plaintiff's Revolution," authors David Ball and Don Keenan say, "The Reptile built and invented the rest of the brain, and now runs it." Your original doctoral work at the University of Michigan was in psychobiology. Is Mr. Lizard really chairman of the board of the brain? Hnat: No, Mr. Lizard may be the oldest artifact of brain evolution, but not the most influential. Ball and Keenan conflate structure with function. There is an area of the brain labeled the "reptile brain" and it does control important autonomic functions including "flight or fight" responses. However, the research in cognitive neurobiology has consistently proven that areas of the brain that regulate emotion are far more influential in determining perceptions and behavioral responses. The brain is more like a seamless fabric in terms of function and far more dynamic than simple localized sub-cortical responses. Although their theory is dubious science, the concept does help attorneys focus on tailoring their arguments to jurors. Thorpe: In the future, will we see attorneys on both side of the courtroom use even more tools that utilize the biological aspects of persuasion? What might we see next? Hnat: If it does happen, it will not be in our lifetime. The biology of consciousness is far too complex for science to understand well enough to apply to the jury trial process, which involves dozens of human interactions at the same time. We can apply social science research methods to develop a model of how and why people perceive and respond to the facts of your case, but not with absolute certitude. Human beings are far too complex for certitude. I have seen several similar fads come and go in the last 18 years, and still ultimately it is the attorney who understands and prepares their case, their clients and themselves that are the most effective. Published: Fri, Jan 3, 2014

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