Confronting the Reptile In Virginia

An article by attorney Taylor D. Brewer, “Confronting the Reptile in Virginia”, was published in the Summer issue of the Virginia Association of Defense AttorneysJournal of Civil Litigation. Excerpts from the article are found below, and the full article may be downloaded here.

The basis of the Reptile Theory is that humans cannot help but act instinctively to protect themselves, their families, and their communities. If a snake feels threatened, the snake will act instinctively and try to protect itself either by retreating to a safe position or—if it cannot do that—by striking at the source of the peril. According to Reptile Theory, the plaintiff should make her case resonate not in the jurors’ “thinking brains” but in their more primitive, reactive “reptilian brains” by making them feel personally, although unconsciously, threatened by the defendant’s behavior. If the ploy is successful, the expected result is that the jurors will react as reptiles: by striking at the danger with a conviction or a large verdict.

The defense bar’s primary argument against the use of Reptile Theory is that it improperly shifts the focus away from the relevant legal standards and redirects the jurors’ focus to general safety rules and other principles that are irrelevant to the case. In many jurisdictions, including Virginia, lawyers cannot encourage jurors to decide verdicts based upon how they would feel if they were parties in the case. This notion has evolved into a general prohibition of the Golden Rule in courtroom argument, as “[t]he vice of a ‘golden rule’ argument is that it encourages a jury to depart from neutrality and to decide a case on the basis of personal interest and bias rather than on the evidence.”1

To skirt Supreme Court of Virginia precedent against the Golden Rule, plaintiffs’ counsel in Virginia have become more subtle when seeking to introduce Reptile Theory into their cases and into the courtroom. In contrast to the Golden Rule argument, the Reptile Attack is a more insidious appeal to the jurors’ emotions, relying upon subconscious effects of evidence of public danger and safety, and survival instinct. The Reptile lawyer need not directly ask jurors to place themselves in the shoes of the parties because the plaintiff’s arguments lead the jurors to “feel” that the defendant’s conduct represents a danger to them and imperils their survival and that of their families. The purpose behind the Reptile Attack is to incite the passion, prejudice, and sentiment of the jury based upon self-preservation and a “gut reaction” that a verdict for the defendant will harm the community.

Although Virginia courts have disfavored Golden Rule arguments for several decades, there are no published cases that address reptilian tactics. The plaintiffs’ bar continues to employ these tactics in a variety of cases throughout all stages of litigation. A Reptile Attack during the deposition of an expert or a corporate designee can improve the plaintiff’s position in pretrial settlement negotiations. Comments during voir dire that allude to tentacles of danger and public risk can poison jurors against the defendant at the outset of the case. Defense counsel must therefore always consider early and proactive intervention against reptilian tactics.

Read the rest of the article for ways to combat these tactics!

1  Miller v. Kenny, 180 Wn. App. 772, 782, 325 P.3d 278, 283(2014), 2014 Wash. App. LEXIS 1030, *1, 2014 WL 1672946 (Wash. Ct. App. 2013).

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