Schwartz Reptile ABA 2016
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This document summarizes a presentation given at the ABA Spring 2016 National Legal Malpractice Conference on the "Reptile Theory" trial strategy. The Reptile Theory aims to activate the primal, instinctual part of jurors' brains by emphasizing danger, appealing to fear, and portraying the case as a matter of public safety. The summary discusses keys to a plaintiff verdict according to the Reptile Theory, including providing jurors with motive, sympathy, anger, a desire to send a message, and perception of social injustice. It also outlines strategies for applying the Reptile Theory in a legal malpractice case and techniques for combatting the Reptile Theory approach.
![THE SAFETY RULE
Closing Arguments:
But the rule is that a doctor to treat a patient carefully and skillfully.
And when it comes to a procedure like this, the most important rule is that you have
to dissect carefully.
And thats the standard thats going to make doctors as careful as possible and its
going to make the world safer.
The gold standard in diagnosing coronary artery disease is to do a catheterization and
angiogram.
So timely diagnosis and treatment saves lives. That was [the doctors] job here.
So one thing you heard in this case was an echocardiogram is the gold standard.
Everyone knows what that means: the gold standard, the best test for diagnosing aortic
stenosis and the degree of aortic stenosis.
Jeff's death was clearly preventable if only the hospital had followed its own plan of
care.
You put your trust in that doctor. You trust that doctor to be vigilant and you trust that
doctor to leave no stone unturned to look out for your safety.](https://image.slidesharecdn.com/f726c5dd-4496-41e5-99e1-a12518fc6dad-160502160642/85/Schwartz-Reptile-ABA-2016-11-320.jpg)
![US VS. THEM
Closing Arguments:
Youve been sitting here with me.
I do have an hour to talk to you and I have this nice screen here which I barely
know how to use, I am going to go through all the evidence that you heard in this
case.
You put your trust in that doctor. You trust that doctor to be vigilant and you
trust that doctor to leave no stone unturned to look out for your safety.
For instance, dont make your decision on what you think of me; fat, bald,
frumpy, clumsy, sinister looking, drooped one eye.
I'm feeling a little anxious. You may be feeling a little anxious.
[T]here are sort of two standards of care in this case. One is going to protect
patients and one is going to protect doctors.](https://image.slidesharecdn.com/f726c5dd-4496-41e5-99e1-a12518fc6dad-160502160642/85/Schwartz-Reptile-ABA-2016-20-320.jpg)
![THE CONSCIENCE OF THE COMMUNITY
Case 1 Closing Arguments:
[A]s the jury, youre the conscience of the community and you say whats right
and wrong.
This requirement for a doctor to be careful applies to all doctors and we need
to stand up for that idea. This time it was Karla, but it could be anyone with any
kind of doctor.
Case 2 Closing Arguments:
[I]ts more important because you are the conscience of the community.
You say whats right and whats wrong. You say whats acceptable care in this
community and whats going to be acceptable care in this community. And we
should be able to stand up in a case like this and say, this is not acceptable
medical care. And if you cant say it in a case like this, when can you say
confidently?
And I want you to seize this opportunity, do something important and right in this
case.](https://image.slidesharecdn.com/f726c5dd-4496-41e5-99e1-a12518fc6dad-160502160642/85/Schwartz-Reptile-ABA-2016-22-320.jpg)
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Schwartz Reptile ABA 2016
- 1. ABA Spring 2016 National Legal Malpractice Conference REPTILE BY THE TAIL: REALITY, RECOGNITION AND REACTION Edward P. Schwartz, Ph.D., M.S.L. Jury Consultant April 28, 2016
- 2. KEYS TO A PLAINTIFF VERDICT A jury needs to work harder to return a plaintiffs verdict than a defense verdict. As few as one juror needs to say no once to prevent the plaintiff from prevailing. As such, the plaintiff must provide the jury with: Motive Sympathy for the Plaintiff Anger towards the Defendant Desire to send a Message Perception of Social Injustice Self-interest Opportunity Jury Instructions Discretion/Ambiguity Compromise
- 3. KEYS TO A PLAINTIFF VERDICT A jury needs to work harder to return a plaintiffs verdict than a defense verdict. As few as one juror needs to say no once to prevent the plaintiff from prevailing. As such, the plaintiff must provide the jury with: Motive Sympathy for the Plaintiff Anger towards the Defendant Desire to send a Message Perception of Social Injustice Self-interest -- FEAR Opportunity Jury Instructions Discretion/Ambiguity Conscience of the Community Compromise
- 4. ORIGINS OF THE REPTILE THEORY OF TRIAL STRATEGY Reptile: The 2009 Manual of The Plaintiffs Revolution, by David Ball and Don Keenan. It is built upon research performed in the 1960s by neurologist Paul MacLean, positing a theory that the brain is comprised of three parts: the reptilian complex, the paleomammalian complex and the neomammalian complex. The reptilian complex includes the brain stem and the cerebellum, the oldest part of the brain, which thrives on survival. The reptilian brain maximizes survival advantages and attempts to minimize survival danger.
- 5. GENERAL LESSONS OF THE REPTILE THEORY Scare the jury so as to activate instinctual part of the brain Emphasize danger Make case about public safety Connect jurors to plaintiff Reinforce the importance and reliability of first instincts Downplay the value of logic and cognition Experts confuse things Facts obscure truth Redefine jurys role as protector of community
- 6. DEBUNKING THE REPTILE THEORY Reptile Brain controls immediate, autonomic fear reflexes. BOO! Lawyers cannot generally terrify jurors during trial. Processing responses to danger actually occurs in several parts of the brain, involving multiple levels of information processing. Terror management theory is probably a better explanation for why the REPTILE tactics work (Ernest Becker 1973). Nonetheless, the specific strategic recommendations of the Reptile Theory can be quite effective only for reasons other than those posited by the authors.
- 7. TAKING REPTILE STEPS Characterize alleged negligence as the violation of a safety rule Find your theme Structure depositions so as to get witnesses to link case to public safety Use voir dire to frame case for jurors Emphasize the role of the jury as the conscience of the community. Praise jurors for their good instincts and minimize value of details from trial This is an EASY CASE Situate plaintiff as one of us and defendant as one of them. Engage in burden shifting, especially in rebuttal. Script everything and leave nothing to chance Repetition repetition -- repetition
- 8. APPLYING REPTILE THEORY TO LEGAL MALPRACTICE We put our complete TRUST in our lawyers. A lawyers number one job is to protect our rights, property and money. These things are critical to our sense of security. A lawyers failure to safeguard our interests can be CATASTROPHIC. Therefore, allowing lawyers to get away with sloppiness, laziness or incompetence is dangerous to all of us. We are ALL deserving of top notch advocacy from our lawyers. Mistakes are NOT ACCEPTABLE.
- 9. THE SAFETY RULE The rule must be easy to articulate and follow. (bite sized) The rule must seem noncontroversial and universal. (public safety) Make the case a referendum on the defendants commitment to safety. Tie to role of the jury as conscience of the community Pander to zero risk fallacy jurors. Ratchet up standard of care to gold standard. Dare defense to conduct risk-benefit analysis.
- 10. THE LEGAL MALPRACTICE SAFETY RULE Tell the client everything. Meet all deadlines. Know all the applicable cases. Explain all risks and costs up front. Dont make promises you cant keep. Dont delegate important matters to subordinates. Be prepared.
- 11. THE SAFETY RULE Closing Arguments: But the rule is that a doctor to treat a patient carefully and skillfully. And when it comes to a procedure like this, the most important rule is that you have to dissect carefully. And thats the standard thats going to make doctors as careful as possible and its going to make the world safer. The gold standard in diagnosing coronary artery disease is to do a catheterization and angiogram. So timely diagnosis and treatment saves lives. That was [the doctors] job here. So one thing you heard in this case was an echocardiogram is the gold standard. Everyone knows what that means: the gold standard, the best test for diagnosing aortic stenosis and the degree of aortic stenosis. Jeff's death was clearly preventable if only the hospital had followed its own plan of care. You put your trust in that doctor. You trust that doctor to be vigilant and you trust that doctor to leave no stone unturned to look out for your safety.
- 12. PRIME THE JURORS DURING VOIR DIRE Ask jurors to affirm their commitment to public safety Ask about making safety a priority Ask jurors about circumstances where they felt unsafe Connect safety to the facts of the case Attempt to identify jurors who feel especially vulnerable Strike jurors who are analytical, independent and rules driven. Seek jurors who have a strong sense of community and belong to civic/religious/social organizations. Availability Heuristic: Jurors will think case is about safety.
- 13. VOIR DIRE FOCUS ON SAFETY Potential Voir Dire Questions: Dont you agree that safety should be the number one priority of any construction site/hospital/power plant? Do you agree that the main priority of any _______ is to insure the safety of the people who shop/work/visit there? Isnt it the responsibility of all of us to try to make our community a safer place? What kinds of steps have you taken to try to make your home/workplace/school a safer place? Do you feel less safe than you did even ten year ago? Dont you believe that a company should protect all customers/workers/patients, regardless of how rich they are?
- 14. THIS IS AN EASY CASE Allow jurors to economize on effort. Decisions made about broad themes Instinct and Personal Experience First impressions are correct Defense counsel then faced with prospect of complicating things Telling jurors their instincts are poor Imposing costs Foisting experts on them
- 15. THIS IS AN EASY CASE CASE 1 Closing Arguments: This is in the end, in the final analysis, a very simple case. This is a simple case. Your instinct when you heard just the basic facts just those two basic facts was the right instinct. Nothing youve hears in the evidence over the last three weeks should cause you to question that initial instinct. But as we do that, what I want to say -- and I don't really know what this phrase means, but I've heard it a lot: Don't forget to see the forest through the trees. I think it means don't get lost in the details and remember this is a simple case. Please dont think that because this is a simple case that your job is any less important. You were probably ready to decide this case a week ago or even more than a week ago but I know you're definitely ready to decide it right now.
- 16. THIS IS AN EASY CASE CASE 2 Closing Arguments: This is a simple, simple case. Its really a simple case in the final analysis. Dont forget to see the fact that this case is simple. This case was simple. And as we go through the evidence, just keep that in mind. But, because the case is simple dont think your job as a jury is any less important. In fact, in a simple case, its more important because you are the conscience of the community. And you were probably ready to decide this case a week ago. I got the sense from you about that but I know you are ready to decide it now. And as lawyers we follow all these little rabbit holes throughout the trial, and they really end up not mattering that much, maybe wasting time.
- 17. THIS IS AN EASY CASE CASE 3 Closing Arguments: Now, you know I've over-simplified this case, but not by much, right? Because this is a very simple case. Your instinct when you heard just the basic facts and you first saw the plan of care in the hospital's own record was the right instinct. And nothing you've heard over the last four weeks of evidence should cause you to question that.
- 18. USE YOUR COMMON SENSE Closing Arguments: Careful is one of those words that its hard to define but you know it when you see it and you know it when you dont see it. And they are hard to define in the abstract what it means to be careful, what it means to be skillful when you are treating a patient. But its one of those things you know it when you see it and you know it when you dont see it as a patient or as a person in the community. What does "carefully and skillfully" mean? They're words that are hard to define in the abstract, but you know it when you see it, and you know it when you don't see it. I would ask that you keep your eye on the ball in this case and use your common sense.
- 19. US VS THEM (TMT) Plaintiffs counsel as ordinary folk. Experts characterized as elites, necessary evil Group plaintiff with jurors Get close to the jury Liberally swap pronouns so as to insert jurors into the case Hit the golden rule as hard as possible.
- 20. US VS. THEM Closing Arguments: Youve been sitting here with me. I do have an hour to talk to you and I have this nice screen here which I barely know how to use, I am going to go through all the evidence that you heard in this case. You put your trust in that doctor. You trust that doctor to be vigilant and you trust that doctor to leave no stone unturned to look out for your safety. For instance, dont make your decision on what you think of me; fat, bald, frumpy, clumsy, sinister looking, drooped one eye. I'm feeling a little anxious. You may be feeling a little anxious. [T]here are sort of two standards of care in this case. One is going to protect patients and one is going to protect doctors.
- 21. THE CONSCIENCE OF THE COMMUNITY Pander to the jury by elevating them Give permission to substitute their judgment for those of experts, lawyers or judge Emphasize the importance of the case Imply failure for not standing up for what is right Hit the golden rule as hard as possible.
- 22. THE CONSCIENCE OF THE COMMUNITY Case 1 Closing Arguments: [A]s the jury, youre the conscience of the community and you say whats right and wrong. This requirement for a doctor to be careful applies to all doctors and we need to stand up for that idea. This time it was Karla, but it could be anyone with any kind of doctor. Case 2 Closing Arguments: [I]ts more important because you are the conscience of the community. You say whats right and whats wrong. You say whats acceptable care in this community and whats going to be acceptable care in this community. And we should be able to stand up in a case like this and say, this is not acceptable medical care. And if you cant say it in a case like this, when can you say confidently? And I want you to seize this opportunity, do something important and right in this case.
- 23. THE CONSCIENCE OF THE COMMUNITY Case 3 Closing Arguments: But, please, because this case is simple, don't think your job as a jury is any less important because it's actually more important in a simple case. You're the conscience of the community as you sit as the jury. You say what's right and what's wrong. You say what's acceptable care in this community. And we should be able to stand up in a case like this with this kind of evidence and say confidently this is not careful and skillful medical treatment. And I want you to seize this opportunity to do something important and right in this case, and I'd ask you to respect that with your verdict.
- 24. THE VULNERABLE REPTILE The Reptile Theory is a recipe book Therefore it is predictable Opposing Counsel is invested in the technique Limited ability to adjust on the fly No Plan B Plaintiff has to show his hand first The key is to recognize a Reptile Opponent in time to do something about it.
- 25. COMBATTING THE REPTILE STRATEGY 1. Prepare your deponents a) Interrupt the rhythm of opposing counsel b) Qualify all answers (briefly) c) Ask counsel to rephrase questions d) Dont get flustered 2. Voir Dire: Pick a competing theme and reinforce it in your own voir dire questions. a) Causation. b) Personal responsibility. c) Uncertainty. d) Commitment to rule of law 3. Opening Statements: Call your opponent out. a) Introduce the jury to the REPTILE Theory. Tell them what to expect. b) Outline the voir dire strategy they just experienced. c) Counter-prime.
- 26. COMBATTING THE REPTILE STRATEGY 4. Remind the jury of their actual responsibilities. a) Endangering the public is handled in criminal court. b) Violations of safety regulations are handled through administrative law. c) There is a place for addressing such issues. This isnt it. d) Safety rules appear nowhere in jury instructions or verdict form. 5. When does the jury act as the conscience of the community? a) Protection against an overzealous prosecutor. b) Protect citizens from the tyranny of the state. c) Protect individuals from mob justice. d) Not in a simple civil case where one party is trying to collect money from another. 6. Provide a competing narrative that is NOT reactionary to that of the plaintiff. a) Jurors prefer to have someone to blame, some theory of responsibility. b) Provide what they need to find one. c) Humanize the defendant reverse golden rule. 7. Know the Rules!