Reptile: Myths and Truths
The Reptile commenced in 2009 and has been the single most prolific trial advocacy template in the history of personal injury litigation. As such the opposition have done everything they can to discredit it and eliminate its use. Although DRI and other defense groups have promulgated, trained and implemented trial advocacy templates throughout the years the plaintiffs' bar has never attacked their advocacy template. Instead the defense and insurance companies have promoted lies, half-truths and distortions of what the Reptile trial advocacy template really is. They couldn't attack it as it exists. They have to lie,
use half-truths and distort it to be able to be successful.
Set forth below are just several Myths against the backdrop of Truths that we constantly see used by defense lawyers and insurance companies throughout the United States all coordinated by the DRI.
Myth
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The Reptile is based on illegal and unethical assumptions and foundation.
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That event never happened. Even the defense lawyer in the case has admitted that he never waved nor referenced the Reptile book in closing.
Truth
A defense lawyer once waved the Reptile book in front of a jury during closing argument which resulted in a defense verdict.
Myth
Myth
Use of the Reptile resulted in a motion for new trial in the Walstrom v. Laz et. al. in Boston, Massachusetts.
While the trial court did grant a motion for new trial the court specifically stated in the order as follows
Truth
There has not been one single appellate decision that has ruled the Reptile is improper.
Truth
Appellate courts have consistently ruled the Reptile as improper.
Myth
Myth 1
The Reptile is based on illegal and unethical assumptions and foundations.
Truth
Each and every element of the Reptile is fully and absolutely supported by Black Letter Law.
That event never happened. Even the defense lawyer in the case has admitted that he never waved nor referenced the Reptile book in closing.
Truth
A defense lawyer once waved the Reptile book in front of a jury during closing argument which resulted in a defense verdict.
Myth 2
Myth 3
In Wahlstrom v. Laz Parking Limited, LLC, et. al., a case tried in Boston, Massachusetts, the Court granted the Defendant’s Motion for New Trial because of the Plaintiff’s use of Reptile strategies.
While the trial court did grant a motion for new trial the court specifically stated in the order as:
Before addressing the specific issues, I will briefly comment on the complaint by the JPA Defendants that Plaintiff's counsel followed the "Reptile" playbook at trial. As defense counsel informed me in a pretrial Bench Memorandum, Plaintiff's counsel, Mr. Keenan, travels the country teaching seminars to plaintiffs' personal injury lawyers based on his book "Reptile: The 2009 Manual of the Plaintiff's Revolution". Mr. Keenan teaches that plaintiffs lawyers should appeal to the primitive, reptilian portions of jurors' brains, which will cause them to decide cases based on their subconscious desire to protect themselves and their loved ones from the danger posed by the allegedly negligent behavior of any defendant. The "Major Axiom" of the book, Mr. Keenan states at its outset, is this: "When the Reptile (apparently a reference to a primitive part of the juror's subconscious) sees a survival danger, even a small one, she protects her genes by impelling the juror to protect himself and the community." Id. at 8
I mention this argument at the outset because the new trial motion of the JPA Defendants is sprinkled with references to particularly inflammatory portions of Mr. Keenan's book, coupled with alleged examples of how Plaintiff's counsel allegedly put Mr. Keenan's Reptile theory into practice at this trial. Both before and at trial, I paid little attention to Mr. Keenan's philosophy, instead focusing on particular actions of Plaintiff's counsel without considering whether they were products of that philosophy. I will take that approach in this Memorandum of Decision as well, and will mention Reptile theory no more.
Source Citations
Truth
There has not been one single appellate decision that has ruled the Reptile is improper.
Truth
Appellate courts have consistently ruled the Reptile as improper.
Myth 4
While there has been an occasional trial court who improperly ruled out aspects of the Reptile, the frequency is less than 1 percent. The norm is trial courts summarily denying the Motion in limine and even some making fun of the ridiculousness of the motions. Reference: Aidini VS Costco Wholesale Corp.
Of note there is one trial court who granted a mistrial when the defense lawyer improperly used the Reptile. Reference: Thompson VS Playland International, Inc.
The Court ultimately sanctioned the Black Hat Defense lawyer $91,000 and on retrial the Plaintiff obtained a 10million compensatory verdict and a 10million punitive verdict
The Michigan Court of Appeals recently affirmed the use of a Reptile strategy but pointed out the “needless endangerment language” argued by the plaintiff was harmless. Read More HERE
Truth
There are many many trial court orders ruling out the Reptile.
Myth 5
There is not one principle of the Reptile that comes close to violating the golden rule. Consistently defense lawyers do not understand that the golden rule in many states does not apply to liability.
Read Baxter v Anderson the 2017 Order by a Federal Judge in the MD of Louisiana to understand the proper way to use the Golden Rule and comments on the favorable comments of the Reptile way of trying a case
Click here to read: Baxter v Anderson
Truth
The Reptile is all about violating the golden rule.
Myth 6
Myth 7
Truth
The Reptile is all about fear.
Nothing could be further from the truth. The foundation of tort law is based on the understanding of foreseeability, that what the defendant's actions were had known consequences. Jurors must know the foreseeability.
