- Tsongas Litigation Consulting
HOW DEFENDANTS CAN COMBAT THE ‘REPTILE STRATEGY’ (AND ITS ILK)
This article by Tsongas Consultant Theodore O. Prosise, Ph.D. and Peter Ehrlichman, Esq. originally appeared on the Inside Counsel website on October 9, 2015. You can access the original here. Additionally, if your firm is interested, Tsongas conducts seminars and CLEs on this and related topics.
Defense teams are confronted with numerous challenges at trial from the start. The plaintiff molds initial impressions, shaping the conceptual and moral message(s), affording the means to influence the jurors’ emotional/rational decision-making framework.
Recently, the Reptile Strategy has gained popularity among plaintiffs, credited by its authors with producing billions in jury verdicts (reptilekeenanball.com). It applies the “safety” principle, framing the conduct of the defendant as a threat to community safety, allegedly tapping into a primitive part of the human brain, producing a risk avoidance response in jurors.
Often plaintiffs appeal to critical values within the jurors’ core psychology, tapping jurors’ motivation to do something good with their verdict. In case defendants believe this phenomenon is limited to personal injury cases, experience reveals elements of this rhetorical strategy is being applied to many case types where motive is framed as “accountability” and “justice.” The plaintiffs’ “call to action” asks the jury to right a wrong, correct an injustice, or resolve a problem, tugging at the jurors’ almost irresistible desire to arrive at a psychologically satisfying verdict.
Lest defendants despair and race to settle their cases on unreasonable terms, there is a silver lining to consider. This article addresses how to combat this plaintiff “call to action” and the challenge that defendants face from the very start of trial. To combat the appeal to right a social wrong, the defense can elevate an even more important value in jurors’ minds: deliberative norms as a process to achieve the right and just verdict. The defense’s closing can provide a “verdict map™,” articulating the deliberative norms as guideposts to the path which will fulfill the jurors’ a psychological need to understand what is expected of them. This positions jurors to follow the guideposts, which can be used to impose a structure on the entire group decision-making process.
Juror Decision Making
In complex cases involving commercial, intellectual property, breach of contract, bad faith, product liability, and wrongful death subjects, to name a few, the plaintiff may have the advantage of presenting a simpler story and case structure, whereas the defense is confronted with having to present a more complicated, detailed case, hoping their messages are carried into and used in deliberations. Since people oft prefer simple and clear, the defense is asking much more of jurors.
Motivational rationality is a common and powerful phenomenon where the conclusions direct the reasoning, rather than the other way around. Jurors often form initial views, and this can be a risk for defendants. But views can change throughout trial, and some jurors work to suspend rigid opinion formation until the closings or even into deliberations.
“Misinformation” (those initial, first impressions of a case) is “sticky” and difficult to overcome. Because flipping initial impressions/feelings requires greater cognitive effort and motivation, jurors that are cognitively sophisticated and/or well-educated are more open to changing their mind and views through trial. Lewandowsky’s 2012 Psychological Science in the Public Interest.
Trial advocacy is about a two-step process of persuasion and the role of deliberation is critical. A trial advocate has to persuade jurors, then jurors need to grab the reins, defend their views and persuade others. So closing argument should empower them, focusing the presentation on organizational and deliberative processes and offering rhetorical and visual road maps as guideposts in their deliberation.
Fulfilling Jurors’ Needs
Sprain and Gastil’s extensive 2012 study of juror decision-making in Communication Quarterly provides insight into juror behavior, finding that jurors take their task seriously. However, they express frustration that they were not provided “deliberative norms” to guide their discussion. The judge reads instructions, lawyers make arguments, but how deliberation should proceed is often ignored; jurors are left struggling with the task.
The defense closing argument that arms jurors to see the process as the means to achieve that goal will be more successful. Providing jurors with ”verdict maps™” satisfies their important psychological need to do what is right and just. It is about taking the opportunity to position certain jurors to influence the structure and “rules” of the group decision-making – and thus, the outcome.
There are myriad forms in which the “deliberative process” can be applied in closing argument. Some forms can be applied generally, with simple modification. Others may be quite unique, born from mock juror feedback and/or executed by the trial team based on how the evidence has come in and the court’s application of the law.
One universal theme should be the obligation jurors undertook when swearing the oath of service, elevating the value of what they are about to do as a group over the particulars of the themes, emotions, and the plaintiff’s call to action. Id. In a sense, it is a competing call to action by and for the defense.
The “verdict map”™ can guide the “directionality” of the deliberative process. A step-by-step graphic of each question, a few key instructions, and several anchoring pieces of evidence can allow jurors to impose calm order on deliberations. This helps combat the “reptile” or the general plaintiff “call to action.”
To counter the presumption shift and “low bar” of proof implied by plaintiff’s counsel (e.g., the “scale” metaphor used to portray to a jury that only a feather of evidence is needed to meet the burden and tip the scale in their client’s favor), a “burden of proof process” graphic is recommended to emphasize the actual hurdles and degree of proof that must be overcome (showing the starting point of “0” on each claim.)
The “classification of evidence process” graphic can be used to provide categories or “buckets” as a simple way to organize pieces of evidence in meaningful ways. This can help combat the plaintiff’s simple story and arm defense jurors. For example, organizing evidence into “What We Know,” “What We Are Not/Cannot Be Sure Of,” “What Can Be Dismissed as Impossible or Highly Unlikely,” is just a simple tool offering order to the deliberation that could otherwise be chaos. It provides an organizational tool for key jurors to reference by highlighting the best defense evidence, characterizing it topically, and assigning relevance of evidence to verdict form questions.
There are two critical things trial lawyers want in deliberations. They want armed jurors, able to understand and articulate their key points, evidence, and themes. Second, they want jurors to be motivated; to feel they have a principled stake in their views and discussion. The control of process in deliberation is a critical opportunity for the defense to balance a number of the plaintiff’s natural advantages and their “reptile” or similar call to action strategies.
Here is a case for rethinking a basic approach to closing argument, including encouragement of trial teams to frame evidence and the law through a value framework of sound and careful process. Defendants need to provide coherent and welcomed visual and rhetorical “verdict maps™”, as guides to deliberative norms which jurors can impose on their discussion.