In many malpractice cases, plaintiff’s attorneys have adopted a new strategy: the Reptilian Theory of Liability. In short, the “Reptile Theory” asserts that one can prevail at trial by speaking to, and scaring, the part of jurors’ brains they share with reptiles – the part that is conditioned to favor safety and survival.
How do they scare jurors’ brains? Under this theory, the plaintiff’s case focuses on the conduct of the defendant physician (as opposed to the injuries of the plaintiff) and how the defendant’s behavior endangers the jurors and the surrounding community. One way plaintiffs do this is by highlighting “safety rules” about protecting the community. They subliminally convince the jury that a verdict for the plaintiff will make the community, including the jurors and their families, safer.
These reptilian tactics have been very effective – allegedly responsible for over $4 billion in settlements and verdicts!
So, how can you beat the reptile? Mount a counter-attack in the courtroom. Ensure that your witnesses are well-prepared to combat plaintiffs’ scare tactics. Have them explain that all guidelines/policies or “rules” have to be interpreted in context. Shift the focus away from “dangers” to the community. Consider filing a Motion in Limine to preclude reference to “community standards” or “safety rules.” Reassure the part of jurors’ brains that is conditioned to favor safety and survival. Create your own, bigger Reptile Theory by explaining how the physician devotes his life to caring for people in the community. Make the reptile work for you!