LATEST IN TRIAL TECHNIQUES: THE REPTILE METHOD HAS SLITHERED INTO COMMERCIAL LITIGATION PART 1
Irene Bruce Hathaway
Attorney with extensive experience in complex commercial and tort litigation and investigations in medical/legal, product liability, fraud and commercial disputes.
What do reptiles have to do with business litigation? As it turns out, a lot.
The “Reptile” approach is a way of handling litigation which is a calculated to get jurors to react out of fear, rather than logic, when rendering a verdict. In other words, they want to scare the heck out of the jurors! And, so the theory goes, a scared juror is a generous juror (at least with verdict amounts).
The “Reptile” was invented by two plaintiff personal injury lawyers, as set forth in their book, Reptile: The 2009 Manual of the Plaintiff’s Revolution by David Ball and Don Kennan. The “scientific” idea behind their theory is that the primitive portion of the brain controlling decision-making will choose safety and survival subconsciously when threatened by a “danger” which is perceived in litigation. See David Ball & Don Keenan, Reptile: The 2009 Manual of the Plaintiff’s Revolution 17 (2009).
While Ball and Keenan started marketing this idea with several high-cost seminars only available to plaintiffs’ personal injury attorneys, they have now established a “college” for honing the reptilian skills directed to a wider base of attorneys. See https://keenanballcollege.com/. The authors claim that the technique has led to nearly $6.4 Billion in verdicts and settlements. (Keenan & Ball, Reptile <https://www.reptilekeenanball.com (accessed January 9, 2017.)
Now the method is being used in employment and commercial litigation as well. The training, and technique are known to some, but many attorneys, most judges-- and virtually all witnesses-- are dangerously unfamiliar with the method. Untrained anti--reptile attorneys have not been able to mount a consistent counter attack, or to obtain helpful juridical rulings in jurisdictions.
For commercial and employment litigants to put a halt to the use of this technique, it is important that everyone involved in litigation, or those who might be called to testify at deposition or at trial, learn how to recognize the technique and know how to handle it. They need not be like lambs being led to slaughter!
Next week in Part II I will talk about how to avoid the Reptile! Stay tuned.
CHECK BACK NEXT WEEK FOR PART II