![]() The Reptile Manual expressly instructs Reptile counsel to “Show that violating the rule is related to violations that endanger everyone, not just someone in your client’s situation …. Safety Rules also encompass more than plaintiff’s particular circumstances, and can lead to damages awards that are quasi-punitive in nature. If left unchecked by defense counsel and/or the court, Reptile counsel’s use of a Safety Rule can severely prejudice a defendant because the jury may confuse plaintiff’s Safety Rule for the appropriate standard of care and be more likely to find that the defendant breached its obligations. In the product liability context, examples of common “safety rules” are: (1) A manufacturer should never sell a product that needlessly endangers the end-user (2) Manufacturers should make the safest product that accomplishes a goal and (3) An end-user’s safety should be a manufacturer’s top priority. One primary Reptile strategy is to eschew the “reasonable person” negligence standard for an overly simplified “safety rule” that implies that companies must be “near perfect” and not create any risks. Counsels’ goal is to empower jurors to “send a message” to the “big, bad company” through large damages awards in order to protect themselves and loved ones. The theory is that doing so instills fear and activates the “reptilian” part of each juror’s brain, which activates their survival instincts and “fight or flight” response. ![]() In so doing, counsels’ goal is to take the emphasis off the individual plaintiff and highlight that the jurors and their community are threatened by the defendant-company’s “dangerous” behavior. Baiocco and Bernstein, “Fly with the Eagles: Defeat the Reptile,” The Transportation Lawyer (February 2015). ![]() ![]() Background and Use of ‘Reptile Theory’ ArgumentsĬounsel may use Reptile Theory arguments throughout litigation, from plaintiffs’ initial discovery demands through closing argument. Keenan and Ball, "Reptile: The 2009 Manual of the Plaintiff’s Revolution" (the Reptile Manual) This article discusses ways in which defense counsel can anticipate use of the Reptile Theory to diminish its effectiveness. Those who support the strategy claim that Plaintiffs have obtained over $7.7 billion in jury awards and settlements since 2009 using this strategy. Since approximately 2009, the plaintiffs’ bar has used a litigation strategy known as “Reptile Theory” to successfully win larger jury verdicts in New York and throughout the country. ![]()
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