4/27/2016
Is the Reptile Real?

Is the Reptile Real?

Dissecting the facts surrounding the reptile theory of trial strategy.

By Teresa M. Beck

Since 2009, when jury consultant Don Keenan and well-known plaintiff’s attorney David Ball published their book Reptile: The 2009 Manual of the Plaintiff’s Revolution, defense attorneys have been learning about the “reptile strategy” and devising counterstrategies.

“The reptile theory asserts that you can prevail at trial by speaking to, and scaring, the primitive part of jurors’ brains, the part of the brain they share with reptiles,” says LexisNexis’ William Ruskin. “The fundamental concept is that the reptile brain is conditioned to favor safety and survival. Therefore, if plaintiff’s’ counsel can reach the reptilian portion of the jurors’ brains, they can influence their decisions; the jurors will instinctively choose to protect their families and community from danger through their verdict.”

An awareness of the reptile strategy has served many defense attorneys well. However, as Thomas M. O’Toole, Ph.D., consultant at Sound Jury Consulting, points out in his recent article, titled “Five Reasons Defense Attorneys Should Not Worry About the Reptile Strategy,” some on the defense side believe that there is no need to be too worried about plaintiff’s attorneys who are reptile practitioners.

Stories abound about lawyers and claims professionals who have been “reptiled,” meaning they were caught off-guard during litigation by the use of the reptile strategy on juries that unwittingly increased settlements or verdict values. A quick visit to Keenan and Ball’s reptile website shows that lawyers utilizing the strategy claim a staggering $6 billion in verdicts and settlements. Upon browsing through the product advertisements (e.g., “Reptile in the MIST,” a technique for maximizing the value of minor impact soft tissue injuries), defense attorneys likely will be cynical about whether the reptile is real. Is the hype just propaganda to sell books and seminars, or is it a legitimate strategy in litigation that must be addressed in order to avoid runaway verdicts?

In an effort to answer these questions, we’ll dissect a couple of reptile verdicts and assess whether the strategy is real or a figment of the imaginations of Keenan and Ball.

The Reptile May Be a Unicorn

In assessing random jury verdicts and media information reported on the reptile website, you’ll discover that the reptile may, at least some of the time, be a figment of the imagination. Take, for example, the case of a 10-year-old boy in Florida who was injured in the fitness room of an apartment complex after workers left the door ajar by propping it open with a bucket of spackling compound. The boy and a friend went into the fitness room, turned on a treadmill, and were throwing a large ball onto the treadmill. When the ball got stuck behind the device, the boy tried to retrieve it and was pulled under the treadmill. He suffered burns over four percent of his body, a degloving injury (where an extensive section of skin is completely torn off the underlying tissue, severing its blood supply) of his dominant right arm, and comminuted fractures (a break or splintering of the bone into more than two fragments) of the ulna and radius of the right arm.

The 10-year-old underwent open reduction and internal fixation of the fractures, skin grafting, and later removal of hardware. He claimed permanent nerve damage in the arm with numbness. For the future, he will require plastic surgery, further treatment for the neurological injuries, and special lotions for the rest of his life. The plaintiff claimed $388,000 in lost future earnings (how this number was determined is unclear given the boy’s age) and waived past medical expenses (a typical tactic used to prevent the jury from anchoring on too low of a figure when medical expenses are low).

There is much we do not know about this verdict, and it is always difficult to be a Monday morning quarterback for any litigated case. However, we do know enough to roughly estimate the verdict potential for a case like this. With pain and suffering of a young boy who is permanently injured for the rest of his life and special damages of around $400,000, a verdict in the neighborhood of $1 million to $1.2 million would not be surprising. And considering the future surgeries this young boy will have to undergo, as well as associated pain and suffering, a verdict of $2 million to $2.5 million also would be understandable.

When we hear that a verdict is a reptile verdict, we expect to see an outcome multiple times that of the expected verdict range—we expect to see serious verdict inflation. Here, however, the verdict was nearly $2.7 million. Admittedly, this is a large verdict, but did plaintiff’s counsel really hit it out of the ballpark? Reasonable minds can disagree.

In another example, a 49-year-old crane operator in Louisiana was injured when the cab of his crane came loose from the deck of the ship it was affixed to and fell 30 feet onto the deck. The crane operator, who was in the cab when it fell, was seriously injured, suffering a transverse process fracture of the L1 and a closed-head injury. In the investigation, Occupational Safety and Health Administration (OSHA) violations were found. The plaintiff claimed lost wages of about $295,000 and $1.7 million for future lost earnings. No medical expenses were provided, but the plaintiff was rendered permanently disabled from being able to perform his job.

This looks like a case where the verdict could easily reach $3 million, given nearly $2 million in lost earnings claims alone. However, the jury verdict for this case was just over $2.6 million. Thus, general damages were around $625,000. Potentially, this is a home run in Louisiana, where this case was tried. In other states, such as California, Arizona, and Nevada, a higher verdict would be expected, assuming liability.

Based on the Florida case and the Louisiana case, it is questionable whether these reported cases are representative of reptile verdicts or just run-of-the-mill verdicts with nothing really special going on. These two examples do not seem necessarily to be cases where defense counsel was reptiled.

The Reptile Sometimes Does Strike

The reptile strategy must be hugely successful at least some of the time to justify all of the hype. Here is a look at one case where the defense attorney later may have bemoaned its use.

In a case out of New York, a 78-year-old bartender was struck in a crosswalk by a vehicle that was being pursued by an unmarked police car. The driver of the vehicle being pursued claimed that he did not realize the unmarked police car was a law enforcement vehicle and he felt that his life was in danger from the vehicle. The police department claimed that the civilian vehicle struck the police car, the civilian vehicle was speeding, and the police car was only following the civilian vehicle and not in hot pursuit. The plaintiff claimed the incident was an improper police chase through city streets past schools and residences and that the chase was not necessary.

The elderly bartender was seriously injured and sustained fractures of the left nondominant elbow, comminuted fractures of the right fibula and tibia, a fracture of the pelvic sacrum, fractures of six ribs, and a liver laceration. Surgical procedures included external fixation devices applied to the elbow and leg, as well as open reduction and internal fixation devices for both the elbow and the leg. He also underwent implantation of a screw to stabilize his sacrum and was hospitalized for about four weeks followed by seven months of inpatient rehabilitation and physical therapy.

The plaintiff claimed permanent residual pain and limitations requiring the use of a cane, which prevented his resumption of work. Additionally, he claimed that he requires assistance to perform many of his everyday activities and is prevented from the resumption of previously enjoyed pastimes, such as golfing, due to residual effects. He and his wife had enjoyed dancing and playing table tennis, but he is not able to resume those activities. He will require additional physical therapy and may eventually require a professional aide.

This plaintiff sought recovery of $500,700 for past medical expenses, $3 million for future medical expenses, $112,000 for past lost earnings, $84,000 for future lost earnings, $10 million for past pain and suffering, and $10 million for future pain and suffering. His wife also sought recovery of $2 million for past loss of services and $3 million for future loss of services.

Here, the $20 million request for pain and suffering seems like a true reptile request for a reptile lawyer to make of the jury. Some may think that the reptile lawyer risks alienating the jury with such outrageous demands. And certainly for a 78-year-old man, these figures seem inflated and unlikely. With about $700,000 in medical specials, excluding $3 million for future medical expenses, a typical verdict would likely range from $1.5 million to $2 million. Assuming the jury bought the need for $3 million in future medical expenses, increasing special damages to almost $4 million, the range would be increased substantially to somewhere in the range of $6 million to $8 million, and maybe even $10 million if the plaintiff and his wife were likable.

After a two-week trial and a mere three hours of deliberation, the jury awarded just over $28 million—a whopper of a verdict for a 78-year-old man and his wife. The jury did not award everything the reptile lawyer requested, but clearly the jury bought the plaintiff’s story and fell prey to his counsel’s purported reptile strategy.

So Is the Reptile Real?

The bottom line perhaps is what you might expect—the reptile strategy is a product. Not only is it a product, but it is also a method for striking fear in the hearts of defense attorneys and claims professionals so that they will cave in to the pressure to pay more in settlement than what a case might be worth. It might, alternatively, catch them off guard at trial so that verdicts come in higher than they otherwise might.

Likely not every case reported as part of the $6 billion in reptile verdicts was a grand slam. That’s just good reptile marketing. While the reptile strategies may play out in some cases and lead to implausibly high verdicts, it is important for defense attorneys and claims professionals to be aware. After all is said and done, using the reptile strategy may just be good plaintiff’s lawyering, and that is always something of which defense lawyers and claims professionals should be aware and for which they should be prepared.

 



Teresa M. Beck is a partner with CLM Member Firm Lincoln Gustafson & Cercos. She can be reached at (619) 233-1150, tbeck@lgclawoffice.com, lgclawoffice.com.

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