By Dr. Ken Broda Bahm:
Defendants in many areas of litigation are likely familiar at this point with the Reptile approach to trying plaintiffs’ cases. A central pillar of the strategy, and its namesake, is the idea that personally-relevant fear appeals can be wielded in order to awaken the primitive, or ‘reptile,’ regions of the brain, and that cognitive reset helps the plaintiff. I have written previously about the problems involved in taking this idea too literally: There is little to no evidence that a distinct and quasi-independent “Reptile Brain” actually exists and can take over the more logical parts of the brain. But still, in my view, the Reptile works because it speaks to motivation, or the question of what would make a juror want to side with the plaintiff.
Looking at some recent reporting, I believe there is an additional way of understanding how the Reptile strategy might work, and that is based in anger more than in fear. A recent article in The Boston Globe takes a look at the role of anger, not in a litigation context, but in a political context. The focus is actually on people who have “lost” relatives to anger-inducing political programs on talk radio, cable news, and online. As the article shares, there is a biological basis for anger to be seen as a highly-involving route, even an addictive route, to changing one’s viewpoint. As I read this, I noted that it squares with some of our own research and experience in reactions to cases. When the plaintiff is able to tap into anger against a defendant, they’re able to motivate a liability verdict and higher damages. That makes me think that anger plays more of a role than fear in getting jurors closer to the emotional override of the brain’s skeptical logic centers that the Reptile approach envisions. In this post, I’ll take a look at why that might be the case.
The Biological Basis: Anger Addiction
The Boston Globe article focuses on a documentary made by Jen Senko called, “The Brainwashing of My Dad,” that chronicles her father’s later-life personality transformation after becoming a regular consumer of venom-laced political programming from Fox and Rush Limbaugh. From that jumping-off point, the article explores the role of anger in driving viewpoints. At heart, the authors write, there is an attraction. “Anger’s ubiquity, its stickiness, indicates that we get something out of it.” And what we get, according to the neurologists they interview, is a rush of cortisol, dopamine, and other chemicals. “When we feel outrage, we’re responding to a potent cocktail of neurochemical reactions, physiological sensations, and conditioned responses. It’s a survival mechanism linked to our deepest, oldest brain system, the limbic system.”
That brain system is what the plaintiff true believers somewhat metaphorically call “the Reptile.” The amygdalae, a nerve center in the medial temporal lobe, regulates our stress response, and suppresses or redirects the functioning in the more logic-driven prefrontal cortex. Dr. Jean Kim, a psychiatrist for the US Department of Health and Human Services explains, “The nature of anger is that it shuts off your cortex, your logic center, your thinking — it’s literally overriding that center of your brain.”
“People get a literal rush from getting angry,” Kim continues, “It feels good. It feeds into your sense of self and you end up liking it.” Of course, we would not want to take this too far and personify “anger” as a kind of invading spirit, the way the Reptile proponents see “fear.” It is not necessarily a matter of fully short-circuiting rationality, or getting a primitive brain to wholly supplant the more modern brain. Critical thinking is still important in bringing an audience to the point of anger. But in getting people to that point, anger is attractive in a way that fear is not. Anger grabs our attention, conveys power and confidence, and makes us feel righteous.
The Practical Basis: Why Would Anger Work Well in Litigation?
Working as part of many trial teams, I’ve worked with some attorneys who are calm and conversational from start to finish of trial. But I’ve also worked with some others who, particularly as we move to closings, are working themselves up to a point of barely-restrained rage, which they hope the jury will pick up on and adopt as their own. The latter group is, more often than not, the side that is asking for money.
And our experience has been that anger works. It is contagious, and when the plaintiff is able to tap into anger over the defendant’s choices and actions, that pushes them toward a liability verdict and toward higher damages. While it’s less common, some defendants in some case circumstances are also able to locate a source of anger that can motivate jurors. Unfairness, contributory negligence, or the idea of a frivolous suit or an exaggerated damages request can motivate. More often, however, it is the plaintiff focusing on specific facts and decisions that spark anger.
For example, over the course of products liability mock trials during at least the past decade, we have focused on what drives jury decisions. More than the severity of injury and more than objective signs of negligence is deception. If the company lied, or hid, or misled about the product and its associated risks, then jurors will be highly motivated to find that company at fault and to seek out the higher range of damages. The company’s deception doesn’t add to fear so much as it adds to anger. If the company is seen as abusing its power and acting in bad faith, then jurors are motivated to punish that arrogance.
Results like this reinforce the notion that the truer route to a juror’s emotional response might be anger rather than fear. And if the Reptile really is an anger strategy rather than a fear strategy, then this carries a few implications for defendants:
- Identify and test the facts and arguments that are likely to serve as “anger triggers” in your case. Where could a reasonable fact-finder see impunity, dishonesty, or arrogance?
- Reframe these facts and arguments in the best light possible.
- Failing that, consider any “anger-defusing moves” you could take, such as acknowledging some kind of “lesson learned,” even if it is not a concession of liability.
- Think about what might make fact-finders angry about the other side, and how you can leverage that.
_____
Other Posts on the Reptile:
- Look Out for the Reptile Mediation
- Careful Defendants, the ‘Reverse Reptile’ Could Be a Boomerang
- The Plaintiff Is a Reptile, so Turn Your Witness into a Mongoose
______