A. Vince Colella
Recently, I was preparing for a personal injury jury trial for a client who suffered serious injuries when he fell through a step while descending a staircase in an apartment complex. In anticipation of trial, defense counsel filed its motions in limine, including a motion seeking to preclude the use of “Reptile” strategies and techniques. The defense likened these strategies to the “Golden Rule,” i.e., asking jurors to place themselves in the position of the plaintiff, uniformly precluded by courts as prejudicial and inadmissible. However, I had never read or studied the Reptilian method of trial advocacy. Thus, I was a bit perplexed by the notion that I should be enjoined from using a trial strategy that I knew nothing about.
In preparing a response, I learned through research that the Reptile Theory focuses on safety and security issues to subtly encourage jurors to envision themselves in the same situation as a plaintiff.
The method is based upon a neuroscientific theory developed in the 1960s called the “Triune Brain.” This theory explains how the brain responds to threats, challenges and change. In trial practice, the theory is believed to show that engaging the most primal part of a juror’s mind provokes the feeling that if a defendant’s actions are allowed to continue, then the community (and even the jury itself) may be in danger.
Before the Reptile Theory, blatant attempts to violate the Golden Rule when addressing a jury would almost inevitably lead to a mistrial. However, the Reptile Theory was touted by its creators, ex-theater director, David Ball, and plaintiff attorney, Don Kennan, to enable attorneys to sidestep the Golden Rule, while making a similar impression on jurors.
Recently, defense attorneys have been filing motions in limine to preclude the use of Reptilian techniques. However, these motions are usually denied because defense attorneys have a difficult time articulating what it is that they wish to exclude. Michigan courts have been relatively reticent in granting motions to exclude Reptile tactics because defense attorneys are unable to specifically explain how these tactics may inflame or improperly influence the jury. Prophylactically precluding Reptilian methods has been generally viewed as premature and speculative in nature. Opting instead to reserve the right to make the appropriate evidentiary rulings during trial. Prudently, Michigan courts seem to follow a trend of waiting to see if the plaintiff’s counsel runs afoul of the Golden Rule in an effort to appeal to juror’s subjective judgments about their own best interests and the best interests of the community at large. Most courts seem to be satisfied with the idea that jurors are presumed to follow their instructions, which are designed to cure most errors that occur at trial.
Interestingly, like any “proven” trial strategy, the Reptile Theory is certainly not a one-size fits all. Researchers have found that the strategy is predicated on the idea that humans are innately selfish. Subconsciously asking, “how does this affect me?” However, researchers have pointed out that humans have evolved from prehistoric mindsets and are more reliant on the parts of our brain that govern logic and reasoning (a distinction that separates us from all other species).
One of the strategies for countering the Reptile approach is to invoke the “rational” area of the juror’s brain to counterbalance a juror’s emotions. Reptilian tacticians strive to simplify a case in order to magnify or draw attention to the defendant’s “bad behavior.” However, critics of the method recognize that most cases are more complex than the plaintiff would have jurors believe. Rather than hide from complexities, defense attorneys are encouraged to rationally explain the case to jurors in the form of a story. Of course, it is not suggested that the defense chase every fact down the proverbial “rabbit hole,” but rather illustrate the areas in which the plaintiff embellished, downplayed or ran rough shod over the “facts” of the case. This is believed to re-focus the jury on the objective evidence and take the emphasis off the defendant’s actions and conduct.
Finally, the irony of the attacks on Reptile strategy are not lost on this writer. Sure, plaintiff attorneys strive to shift the focus of the case onto the choices, behavior and attitudes of the defendants — which may ignite an innate sense of self-protection in jurors. However, all too often, plaintiff attorneys face the challenges of outside influences that are either subtly introduced by the defense or embedded in the self-consciousness of the jurors. For example, the mention of insurance. While it is not permitted (and likely will result in a mistrial if introduced intentionally), the ability of an individual to pay a verdict of judgment remains a question in the minds of the jury. In other cases, jurors are subtly reminded of the effect a verdict will have on them personally, i.e., a verdict against a city or county for which they live may result in a rise in taxes. Allowing or fostering these misconceptions has always permeated jury trials and will continue to leave plaintiffs at a disadvantage — regardless of snakes, alligators or crocodile neuroscience.
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Vince Colella is a founding partner of Southfield-based personal injury and civil rights law firm Moss & Colella.
