CONFRONTING THE “REPTILE” STRATEGY WITH A CLASSICAL HUMAN PERSPECTIVE

In the 1960s, neuroscientist Paul MacLean posited a model of the human brain consisting of three parts: the reptilian, the paleo-mammalian, and the neo-mammalian. The “r-complex,” or the reptilian element, which includes the brain stem and the cerebellum, is the oldest part of the brain, and the newest hook for plaintiff attorneys in their efforts to maximize jury damage awards. David Ball and Don Keenan have become widely known for their 2009 book, Reptile: The 2009 Manual of the Plaintiff’s Revolution. Although the science at its base may be wrong, it is hard to argue against the success of the reptile strategy, as it is increasingly common and, at its core, is a simple and powerful rhetorical strategy. Rather than debating the merits of the science behind the reptile brain, my purpose is simply to identify a few key strategies to deal with the plaintiffs’ use of the appeal to a jurors’ sense of community safety.

The reptile strategy has more to do with classical persuasion than evolutionary biology. It is an appeal to strong human values: safety and community. Persuasion is about values, and values drive decision-making. Persuasion is about elevating the presence of particular values in an audience’s mind, motivating the audience toward certain feelings, specific decisions, and particular actions. So, rather than the reptile brain being the “buy in” to important human values that drive the decision-making, it is simply an audience involvement device, and as some critics have pointed out, a back-door use of the “Golden Rule” argument in the courtroom. The strategy is based on motivated rationality, a concept Tsongas has framed as a key element of jury strategy for years, and which we have discussed in previous blogs, articles, and CLE presentations, as well as used in litigation and trials.

The reptile strategy often begins in discovery and depositions where the plaintiff frames the case as being about safety, and violations of the principles of safety. The solution is having your witnesses take a more active and aggressive approach in deposition answers. Too often the conventional wisdom of, “Just answer the question” results in the witness simply confirming, denying, or stating they “don’t recall.” So the plaintiff lawyer is controlling the testimony and developing the language and themes of the case. Witnesses need to understand how to articulate not only their actions, but the reasons behind their choices, and their attitude.

The reptile strategy manifests itself clearly in opening statements. Objections, even if sustained, may not be enough to combat this strategy. I recently watched an impressive plaintiff attorney repeatedly smile at the judge, nod his head and say, “Thank you, your honor” as the defense’s objections were repeatedly sustained. Jurors, especially at this point of a trial, have no idea what the judge’s rulings mean, and this “Jedi mind trick” implies to the jury that the judge’s ruling supports the plaintiff. The defense needs to alert the court before hand not only of particular words and issues, but also about the “linguistic-direction” or implication of sentences. Words and rhetorical form direct decision-making. So, for example, “We [read: the plaintiffs and the jury] are here to do justice based on the conduct of the defendants” is a sentence that calls for punitive damages, as the focus is on conduct, not the plaintiff’s real damages. In addition, the defense needs to understand that decision-making is based on values, so a strong counter-narrative must be developed that elevates other values over those the plaintiff suggests. This is critical as a reframing process.

Control deliberations by enhancing the role of form and process in small group decision-making. This is a key psychological need that is too often unmet for jurors. Former colleagues of mine, Leah Sprain and John Gastil, conducted an impressive study of jurors’ deliberations, published in 2013. Gastil, in my view, is the foremost academic expert on small group deliberation. A central finding, for our strategy purposes, is the understanding that jurors were often frustrated because no one established a set of deliberation guidelines or procedures for them.

Tsongas has long been advancing the importance of “process graphics” in opening, and particularly in closing, to teach jurors how they should deliberate; the process and procedure they should use to determine the legal questions. We have applied this concept to numerous cases and the results have been impressive. This strategy, to go back to one of the most classic of rhetorical concepts, is a contemporary application of Aristotelian principles of logos, pathos, and ethos: Logos in the sense that the trial attorney is providing a logical process for small group decision-making; ethos in the sense that he or she is demonstrating a command and control of the law and evidence, how they relate, and offering assistance — a “road map” to deliberations; pathos in the sense of establishing the importance of the value of the right process of deliberation, which establishes jurors emotional commitment to the thoughtful and careful process of deliberation itself, a key recommendation coming from Sprain and Gastil’s work.

So, although we may have some “reptile” in our brains, we are human now. Speech, cooperation (and thumbs) have allowed us to become the dominant species on the planet. The import of language, values, persuasion, and rhetorical strategy are the cores of both the reptile strategy and the mammalian antidote for it. So, from the initial development of litigation strategy to the refinement of closing arguments, there are particular strategies for dealing with the reptile brain in any litigation situation, and we, as always, are here to help find, as Aristotle suggested, the available means of persuasion in [your] situation.”

David Ball and Don Keenan, Reptile: The 2009 Manual of the Plaintiff’s Revolution, Balloon Press, 2009.

Leah Sprain and John Gastil, “What Does It Mean to Deliberate? An Interpretive Account of Jurors’ Expressed Deliberative Rules and Premises,” Communication Quarterly, Vol. 61, No. 2, April-June 2013, pp. 151-171.