Reptile Brains At Trial

If it were not bad enough to worry about the threat of malpractice litigation and potentially facing trial, since 2009, that anxiety has taken on enhanced significance and validation. Growing up in America, most of us were taught that our justice system was exemplary and uniquely protective for all citizens. We learned that fairness and equality in the courts promised favorable outcomes for law-abiding citizens. If ever involved in the court system, we could expect that truth would prevail and our interests would be protected. That is, until trial lawyers introduced the Reptile Brain.

Reptile Brain Theory derives from a model of the human brain developed by the neuroscientist Paul Maclean. He based his model on the concept that the human brain has three parts that developed over time through evolution. Maclean referred to his theory as the Triune Brain. The oldest of the three parts, the Reptilian Complex, is the oldest component of the brain, responsible for basic functions such as fear, the survival instinct, breathing, hunger, and fight-or-flight.

When basic survival is threatened, this part of the brain takes over and can dominate the other two. The second complex is the most recent in human development and allows us to socialize and communicate with one another. It also governs our higher, more sophisticated emotions. The third complex is mainly composed of the cerebral cortex, which regulates logic and higher reasoning, allowing us to understand math and science and solve complex problems.

What does this obscure model have to do with litigation and our involvement with it? The creation of The Reptile Trial Strategy (not unlike a Frankenstein's monster created by trial lawyers). Also known as Reptile Theory, this construct thrives on evolution, maximizing "survival advantages" and minimizing "survival dangers" in the minds of juries who are exposed to it. This strategy emerged in 2009 as the brainchild of a jury consultant and a plaintiffs' lawyer. Together, they are responsible for publishing the "Manual of the Plaintiffs' Revolution", an influential text providing strategies for trial attorneys in most stages of litigation. The purpose behind this publication was to instruct plaintiff's attorneys on how to shift jurors' brains into reptile "survival mode", motivating them to believe that their generous verdict against a defendant will eliminate personal danger, protect themselves, their families, and the community.1

The scientific core of Reptile Theory is that there is a latent, "reptilian" portion of the human brain that is fearful and committed to survival. It will "awaken" to perceived threats. Reptile tactics will stir jurors' fears and highlight the defendant as the object of that fear. Although the hypothetical "triune brain" lacks legitimate scientific support, plaintiffs' attorneys who employ the reptilian strategy have succeeded with it at trial.2

Eliminating "danger" is a central concept in reptilian strategy. It creates a mindset among jurors, leading them to decide a case based on potential harms and losses arising from a defendant's health provider's conduct. This is a lot to swallow, but a plaintiff's actual injury and how it occurred is set aside in favor of activating a juror's survival instincts, manipulating them to decide a case based on fear rather than logic.3

Again, danger and community safety are the focus points for jurors. The malpractice, for instance, is distilled down to "safety rules" and how doctors or midwives should act, e.g., a midwife must not needlessly endanger a patient. Plaintiffs "teach" a jury that general safety rules exist, the defendant(s) broke the rules, and in so doing put a whole community at risk. Showcasing danger and creating this thought process in jurors is meant to lead them to believe that breaking the rules can threaten entire communities. This approach intends to awaken a juror's reptile brain.

Jurors can be persuaded and manipulated by these strategies, and there is evidence from trial verdicts that they are unusually effective. Jurors become convinced that they are the only ones with the power to eliminate the danger that an unsafe doctor or midwife poses to the childbearing community. And one way jurors can demonstrate their power is by awarding large sums of money to injured plaintiffs. In punishing the defendant, jurors are deterring other bad actors who are out there breaking the rules and injuring mothers and babies.

Once again, the goal of reptile theory is to awaken fear in jurors, primarily to make a defendant midwife an object of fear. Plaintiffs' counsel needs to present a defendant doctor or midwife as a menace to the community, or even a personal threat to the jurors themselves. Jurors must be made to feel that they are the defenders of community safety, and they must punish defendants who violate safety rules. Instead of focusing on the standard of care or a plaintiff's injury, jurors are urged to focus on their collective need to protect society and their loved ones .4

Again, reptile theory has proved effective in delivering generous verdicts to plaintiffs. The defense bar struggles to disrupt this juror mind game by developing strategies of their own. This may sound reasonable, but these counterattempts may constitute another form of witness manipulation and disrupt juror reasoning. Plaintiff and Defense attorneys are competing for jurors' minds, as they always have. But in countering the reptile strategy, the defense is concocting its own deceptive techniques. While plaintiffs' counsel is focusing on rule-breaking and community peril to influence a witness's testimony, the defense is applying countermeasures similar to the antics of the reptilian theory, only in reverse. Now, both sides are shifting the focus of the trial away from the standard of care and human suffering toward influencing witnesses' testimony and the jury's minds.

Finally, reptile theory claims that a juror 's perceived threat to their own safety prompts them to render large verdicts against a defendant. Suppose defense attorneys fail to file motions to eliminate reptile tactics. In that case, plaintiffs' attorneys can evade the "Golden Rule", which forbids attorneys from requesting jurors to contemplate claims based on how they would choose to be treated. Although proponents of reptile theory would deny it, the strategy is really a way to avoid the prohibition on Golden Rule arguments. The trial attorney establishes the existence of safety rules and standards that protect the public while characterizing the doctor or midwife as a threat to community safety.

Reptile questioning usually follows this format: 1) Establish absolute safety and danger rules and get the witness to agree with them. "You agree that exposing a patient to unnecessary risk is dangerous, correct?" 2) Link the danger and safety rules to the specific conduct at issue in the case. " You agree that midwives must confer with physicians when the patient's condition deteriorates from normal, correct?" 3) elicit answers from the witness showing a departure from a previously agreed-upon safety or danger rule. "So you agree that failing to contact a physician when the monitor tracing became ominous endangered the plaintiff and violated a safety rule, correct?"5

Examples of reptile questions:

Q.: Would you agree that safety is integral in the care provided by midwives?

A.: Yes.

Q.: Do you agree that a midwife cannot allow needless danger to a patient under her care?

A.: Yes.

Q.: The reason for this is a patient's safety and physical well-being, correct?

A.: Yes.

Q.: A prime responsibility of a midwife is the safety of her patient, true?

A. Yes.

The above questions do not involve specific facts or the appropriate care. The reptile attorney is getting the witness to agree to a series of common-sense questions that establish general safety rules. After repeated "yes" answers, the witness would appear foolish or dishonest if she then disagreed with a question that connects a specific violation claimed in the case to the general rules she had previously agreed to.

Q.: "You would agree that the midwife broke the safety rules when she allowed a dangerous fetal monitor tracing to persist and failed to turn off the Pitocin, correct?"

If she answers yes or no, the defendant midwife/doctor/hospital will probably end up writing a large check.

1. A Discussion of the Reptile Trial Strategy Through the Lens of the Erin Andrews v. Marriott International Lawsuit. David M. Eaton and Michael E. Phillips; Phillips, Hagwood, and Tipton PC.

2. Combating Reptile Tactics In Litigation. Beth C. Boggs - Boggs, Avellino, Lach & Boggs, LLC. National Association of Minority and Women Owned Law Firms. St. Louis, MO.

3. The Reptile Brain Strategy: Why Lawyers Use It and How to Counter It. IMS Legal Strategies/ Consulting and Expert Services

4. Litigation Insights. What Is The Reptile Brain . John Wilinsky, M.A. - Christina Marinakis, J.D., Psy.D - Director of Jury Research.

5. Understanding Reptile Theory in Medical Malpractice: Tactics & Defense Strategies. Richard Margulies, Esq. Burns White - Attorneys At Law.

http://www.midwivesontrial.com

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Reptile Brains At Trial

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