By Dr. Ken Broda Bahm:
It has now been well over a decade since the “Reptile” emerged as a way of trying plaintiff’s cases. The approach — a mix of personalizing the case for jurors, reinforcing simple rules, and emphasizing safety as the top priority, all built on the foundation of a somewhat metaphorical appeal to protective features of our “reptile brains,” — is common in courtrooms and deposition rooms, and recognizable through questions like, “Wouldn’t you agree with me that a company should never needlessly endanger the public?” I think we now have the benefit of those years to say that the Reptile isn’t a fad that has passed, but is rather a set of terms and techniques that have quietly integrated themselves into standard courtroom practices for plaintiffs. That doesn’t mean that defense attorneys should be sanguine about it, especially if part of that quiet integration ends up being a fundamental rewrite of the standard of care as we know it.
That is thesis of recent article in the Columbia Law Review (Abraham, 2022) by Professor Kenneth Abraham of the University of Virginia School of Law. Writing as an expert on the evolution of tort law, Abraham notes that the Reptile approach has, in its fourteen years of use, largely escaped law review attention (only three citations found) and also largely escaped appellate review (again, only three appellate opinions that rule on merits of Reptile related approaches found). In the article, Professor Abraham argues that the reason for both is that the Reptile has quietly flown (or, to unmix the metaphor, “slithered”) under the radar by operating almost entirely within the legitimate discretion of trial judges. And those judges are likely to be in some ways allowing the plaintiff’s bar to substantially change the practical meaning of the standard of care. In this article, I’ll take a look at this opinion as well as at what defense attorneys ought to do about it.
The Negligence Gap
Professor Abraham notes that, at its core, the Reptile presents a battle over the meaning of negligence. By law, of course, avoiding negligence means taking the reasonable steps of ordinary care that would be taken by others in similar circumstances. In the universe the Reptile encourages, however, avoiding negligence means maximizing safety or protection from harm, and not just making reasonable efforts. Abraham quotes the Reptile’s founding text saying, “No prudent person or company chooses to expose anyone to unnecessary danger. So second-safest is always negligent.” That, by design, sets a much higher bar than the law, where “second safest” would almost never be negligent. To the extent that trial judges allow the language counseled by the Reptile approach, then, those judges are changing the law of the trial and not so subtly moving the goalposts.
The Tort Law Gap
Observing that trial courts often do rule on merits of defendants’ anti-reptile motions, Professor Abraham notes that this is still not building a body of responsive law because there are typically no written opinions. In addition, because the decisions on the kind of language to allow in openings, closings, and examinations are most often solidly within a trial judge’s discretion, there are generally no appeals either. The result in the absence of that written record, is that day-to-day decisions about allowing the Reptile into a case exist within a kind of “shadow” tort law that can go unnoticed. “There is a difference between the substance of the law as it is stated in appellate opinions, treatises, and law review articles,” the professor notes, “and the way things actually work in practice.”
The Implications for Parties
What this means is that the Reptile is likely to be determined case by case in a way that depends almost entirely on the habits and proclivities of the trial judge. So it is subject to your ability to persuade your individual judge. So if you are in the position of objecting to the Reptile, or wanting to set limits on the use of the Reptile, consider raising the issue before trial. There are some sample motions out there, and knowing your adversaries, you will want to be as specific and concrete about the questions and language you expect. Because the Reptile itself is somewhat amorphous, it is hard to try to preclude specific words and phrases as long as a clever plaintiff’s attorney can simply come up with alternatives. Drawing from Professor Abraham’s observations, one good master rule to consider asking the judge to enforce is this:
The court should not allow the Plaintiff or their witnesses to say or imply that the standard of care
is anything other than what the law says it is.
Ultimately, even if the trial court does give plaintiff’s counsel some liberty with language, the defense isn’t defenseless. The approach encourages attorneys to address jurors’ motivations, and while “safety” is one such motivator, there are others. In addition, jurors like to feel that they are following the rules and the facts, and not being swayed by emotion or fear. So the correct legal standards are not just the law, they’re also a powerful persuasive appeal.
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Other Posts on Reptile Persuasion:
- Confront the Reptile in Jury Selection
- The Reptile Question: Give a Good Answer
- Consider This Version of the Reptile: It’s Not Fear, It’s Anger
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Abraham, K. S. (2022). Shadow tort law: Lessons from the reptile. In Colum. L. Rev. Forum (Vol. 122, p. 110).