Defense Techniques for Combating Plaintiff's Reptile Strategy

by Kevin M. Reynolds and Zachary J. Hermsen, Whitfield & Eddy, PLC, Des Moines, IA
(Defense Update - Vol. XX, No. 1, Winter 2018)

Have you seen the T-Rex “Sue” in the main foyer at the Field Museum of Natural History in Chicago?  At the Defense Research Institute (DRI) Annual Meeting this past October, the Thursday night reception was held there.  A different T-Rex has been on display over the past few weeks at the Des Moines Science Center.  Based on recent developments in courtrooms around the country, including Iowa, these exhibitions are appropriate.  

A troublesome development in the litigation arena is the appearance of green-skinned, slimy and cold-blooded lizards, also known as “Reptiles.”  These plaintiffs use tactics developed by successful personal injury attorneys David Ball and Don Keenan, who authored a book on the subject.  See “Reptile: the 2009 Manual of the Plaintiff’s Revolution” (hereinafter “Reptile”). Simply stated, the “Reptile” approach uses an emotional, “forget-the-law and don’t-bother-me-with-the-facts” approach to manipulate a lay person jury into returning an enormously huge verdict for Plaintiff.  It seeks jury nullification of the facts and law.  In many cases some truly astronomical jury verdicts have been seen, even in the Hawkeye State, heretofore that great bastion of conservatism.

This article is not going to analyze the pseudo-psychological underpinnings of the Reptile theory.  Whatever science (or junk science) supports it, its apparent effectiveness cannot be overestimated.  Instead, this article will try to identify plaintiff’s specific techniques and offer practice pointers on how defense lawyers can “fight fire with fire” and meet this challenge head-on.  

Real-life scenarios will be presented, with possible defense responses.  We do not claim to have the right answers; heck, we aren’t even sure we have the right questions.  But we do have significant scar tissue well-earned from trying several jury cases against aggressive and effective adversaries. We have given this issue some careful thought.  As much as anything, we would like to start and carry forward a defense discussion of this important and timely topic.

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