Southern District of Mississippi Rejects Reptile Theory Evidence
Reptile strategy has taken the plaintiffs’ bar by storm. The Reptile theory asserts that you can prevail at trial by speaking to, and scaring, the primitive part of jurors’ brains, the part of the brain they share with reptiles. The Reptile strategy purports to provide a blueprint to succeeding at trial by applying advanced neuroscientific techniques to pretrial discovery and trial.
The fundamental concept is that the reptile brain is conditioned to favor safety and survival. Therefore, if plaintiff’s’ counsel can reach the reptilian portion of the jurors’ brains, they can influence their decisions; the jurors will instinctively choose to protect their families and community from danger through their verdict. Thus, the focus of the plaintiff’s case is on the conduct of the defendant, not the injuries of the plaintiff. The jurors are not interested in plaintiff’s injury, even when severe, according to the theory. Rather, the only truly effective way to engage jurors is to demonstrate how the defendant’s conduct endangers the jurors and their families.
The gurus of Reptilian trial strategy are David Ball and Don Keenan, whose book, “Reptile: The 2009 Manual of the Plaintiff’s Revolution” purportedly gives its adherents a significant edge over the defense in jury trials. Several prominent lawyers on the plaintiff’s side have cited this book as the new bible of advocacy.
So, should plaintffs’ attorneys be able to use “reptile theory” at trial? That was the question addressed by the United States District Court for the Southern District of Mississippi in its recent opinion in Jackson v. Low Construction Group, LLC, 2021 WL 1030995 (S.D.Miss. 2021).
In Jackson, “[a] piece of equipment fell off Defendants’ truck and landed on Plaintiff’s vehicle.” After the plaintiff sued the defendants, they filed a motion in limine,
argu[ing] that the Court should exclude a number of topics related to a trial tactic called “Reptile Theory,” including references to “personal safety,” “community safety,” “conscience of the community,” “danger to the community,” and other arguments whose goal is to provoke the jury to render a decision based on their emotions and sense of self-preservation, rather than the evidence admitted at trial. In response, Plaintiff argues that Mississippi’s state courts have rejected such attempts to hamper litigants’ trial strategies, and that it would be improper for this Court to restrain Plaintiff’s counsel in this manner.
At least two federal judges in this state have excluded such “reptile theory” arguments. Woulard v. Greenwood Motor Lines, Inc., 2019 WL 3318467, at *2-*3 (S.D. Miss. Feb. 4, 2019); Grisham v. Longo, 2018 WL 4404069, at *1 (N.D. Miss. Sept. 14, 2018). Likewise, the Fifth Circuit has condemned “conscience of the community” arguments, and “all impassioned and prejudicial pleas intended to evoke a sense of community loyalty, duty, and expectation. Such appeals serve no proper purpose and carry the potential of substantial injustice when invoked against outsiders.”…Accordingly, the Court grants this aspect of Defendants’ motion in limine.
-CM