I am reading a book by David Ball and Don Keenan entitled "Reptile: The 2009 Manual of The Plaintiff's Revolution". The authors advise the plaintiffs' bar regarding trial and discovery tactics. Several prominent lawyers on the plaintiffs' side have cited this book as the new bible of advocacy. Defense lawyers would do well to become familiar with the concepts, now being taught in trial advocacy courses and at CLEs throughout the country.
The thesis of this book is that jurors, like all humankind, have reptilian brains - indeed, the oldest part of the brain is the "triune" brain or reptilian brain. "The conscious brain may get all the attention, but consciousness is a small part of what the brain does, and it's a slave to everthing that works beneath it." "When the Reptile sees a survival danger, even a small one, she protects her genes by impelling the juror to protect himself and the community." "The Reptile built and invented the rest of the brain, and now runs it."
The authors suggest that lawyers must appeal to the jurors' own sense of self-protection in order to persuade and prevail. Appealing to a juror's self-protective instincts will reverberate and convince better than any other argument. Because the most powerful thinking occurs when one is protecting one's life, a lawyer can communicate most effectively by converting every issue into one of self protection (or its cousin, community safety.) By linking every argument in some way to a juror's sense of personal or community safety, the plaintiffs increase their chance of prevailing. Plaintiffs lawyers are told to "use the powerful Reptilian imperative to use devastating events as a springboard from which to create safety." "Every injury presents a hope for a safer future. Position the jurors as the cultivators of that hope."
This book posits that jurors must be convinced that a verdict for the plaintiff will make the community safer because it will prevent the defendant or others similarly situated from harming the juror, his family, or someone close to him.
As defense lawyers, we need to recognize this for what it is. It is an attempt to resurrect Golden Rule arguments, which are usually impermmissible. Jurors are not to be asked to put themselves in the place of a party and make a judgment based on that virtual reality. Ball and Keene provide advice to their readers on how to circumvent this evidentiary rule. They provide numerous examples of tactics that will appeal to the "reptilian" brains of jurors, asking them to put themselves in the same position as the plaintiff - a position of jeopardy that calls upon survival instincts.
We will now see plaintiffs emphasizing 'safety rules' and trying to gain admissions from defense experts that such rules are important for the safety of the community. "Never separate a rule from the danger it was designed to prevent. ... The greater the danger, the more the Reptile [juror] cares."
I would suggest that defense lawyers obtain and read this treatise so as to recognize these "revolutionary" arguments. I invite anyone reading this blog to comment with ideas or case law that might undermine this new courtroom strategy.
Kathy Cochran
Wilson Smith Cochran Dickerson
Seattle, WA