Reptile Theory
What it is
A plaintiff's-bar litigation strategy, set out by David Ball and Don Keenan in 2009, that frames a case as a violation of community safety rules so that jurors are moved by a felt threat to themselves and their community rather than by sympathy for the plaintiff.
How it works
Real-world examples
- •Ball and Keenan's Reptile: The 2009 Manual of the Plaintiff's Revolution, and the seminars built on it, became a fixture of the plaintiff's trucking, medical-malpractice, and products bar within a few years of publication.
- •Deposition transcripts in trucking cases show the pattern: a corporate safety director is asked to agree that "a company must never put a driver on the road who is too tired to drive safely", an absolute no one can comfortably deny, which is then paired with logs showing the driver's hours.
- •Defense practice guides now devote chapters to counter-strategies, and pretrial orders in many jurisdictions bar counsel from arguing that jurors should act to protect themselves or their community, without the word "reptile" appearing in the order.
- •The safety-rules approach has been adapted beyond tort law, including employment and consumer cases, wherever a defendant's witness can be led to endorse an absolute standard.
Ethical guidelines
Proving that a defendant broke a real safety standard, and that the standard exists to prevent the harm that occurred, is ordinary negligence advocacy; asking jurors to see themselves as the next victims, or to use damages to police the community, is the golden-rule and passion appeal that courts exclude, however the argument is dressed.
- ●Arguing that a defendant violated a genuine standard of care, and that the standard exists to prevent exactly this harm, is legitimate advocacy grounded in the elements of negligence.
- ●Asking jurors to decide as potential victims, or to use the verdict to send a message to the community, falls within the golden-rule and passion-or-prejudice prohibitions that most US jurisdictions enforce; the neurological packaging does not change the rule.
- ●Witnesses may not be trapped into "safety rules" that misstate the actual standard of care; an absolute that no real practitioner follows is a misleading question, and the defense is entitled to establish the real rule.
- ●Educational; rules vary by jurisdiction; not legal advice.
How to defend against it
- ►Witnesses: when asked to agree with an absolute ("a doctor must never..."), answer with the real standard ("the standard is to weigh X against Y, and there are situations where...") and do not accept a rule stated without its exceptions.
- ►Opposing advocates: move in limine to bar arguments inviting jurors to consider their own safety or to send a message, prepare witnesses for the safety-rule sequence, and in closing move the frame from "danger to the community" back to "what happened to this plaintiff and whether a breach of this duty caused it".
- ►Jurors: notice when an argument shifts from the plaintiff's injury to your own safety; the instructions ask you to decide what happened and what the law requires, not to protect yourselves, and a felt threat is not evidence of causation.
- ►Jurors: separate the two questions the strategy blends, whether the defendant breached a duty and whether that breach caused this harm; a frightening rule violation that did not cause the injury is not a basis for liability.
From the Defense Playbook
Learn the short list of things a lawyer is not supposed to say to a jury (put yourself in the victim's place, take my word for it, send a message, the other side has to prove its innocence) so that, as a juror or an observer, you can notice them and set them aside. (Educational; the rules vary by jurisdiction.)
When you have to apply a rule to a person whose story moves you, give yourself the instruction judges give juries: acknowledge the feeling, then decide each required element on the evidence, in writing, and check the result by imagining the same facts with a different person. (Educational; not legal advice.)
Every playbook entry states how strong its evidence is and when not to use it. Browse the full playbook.
References
- Ball, D., & Keenan, D. (2009). Reptile: The 2009 Manual of the Plaintiff's Revolution. Balloon PressThe source text for the safety-rules strategy and its self-protection rationale.
- Cesario, J., Johnson, D. J., & Eisthen, H. L. (2020). Your brain is not an onion with a tiny reptile inside. Current Directions in Psychological Science, 29(3), 255-260Critique of the triune-brain model on which the "reptile" framing rests.
- MacLean, P. D. (1990). The Triune Brain in Evolution: Role in Paleocerebral Functions. Plenum PressOrigin of the triune-brain model that the strategy borrows.
- Mauet, T. A. (2017). Trial Techniques and Trials (10th ed.). Wolters KluwerThe golden-rule prohibition and limits on closing argument that courts apply to safety-rule appeals.