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The Lizard King

So I'm talking to my friend Paul the other day, and he tells me his son Scott, Thumbnail image for repitile-trial-strategy-jury-consultant.jpg
who's an attorney, has an interview with a firm in Virginia.  "I've got a lawyer friend in Maryland," he says, "and she told me to make sure Scott brushes up on the reptile theory of litigation, the firm he's interviewing with is big on that."

Huh?

I used to do personal injury, but I stopped about ten years ago because (1) I was tired of client's telling me that their being rear-ended at three miles an hour resulted in them experiencing on a daily basis heights of excruciating pain not normally found outside of Apache torture sessions, (2) I was tired of insurance companies telling me that they'd give me $2,500 as a settlement for my client's $3,200 in medical bills, or I could sue and spend $1,000 for a doctor's deposition, and (3) I was tired of having clients telling me they won't settle for anywhere close to that sum because they read how some guy in California got $3 million for stubbing his toe. So I missed out on the Reptile Theory, which has been all the rage among the plaintiff's personal injury bar since it was first trotted out around 2009.

What is the theory?  This article explains it:

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.

And my first thought was, it took until 2009 before any civil attorneys came up with that?  Hell, prosecutors have been doing that for decades. 

True, they usually don't go as far as the prosecutor in a child rape case a couple years back, whose closing argument featured a PowerPoint presentation which culminated with the silhouette of a man - in red, of course, lacking only horns - taking the silhouette of a little girl by the hand into the woods.  (The appellate court clucked about how inappropriate this was - ya think? - then chalked it off as harmless error.) 

But read that last line again - "demonstrate how the defendant's conduct endangers the jurors and their families" - and tell me the last time you saw any significant criminal trail where the prosecutor didn't do that.

Then it dawned on me:  why can't we do that, too?  If the nascent 2016 presidential race has taught us anything, it's that there are a lot of people pissed off at the government.  And fearful of it; one of the rare areas of agreement between most conservatives and most liberals is that we lock up too many people for too long, and there are way too many Federal crimes.  The NSA's gathering data on Americans' phone calls, and the recent revelation that AT&T had turned over to the NSA metadata on billions of emails, has done nothing to assuage concerns about Big Brother. 

That's not to suggest that turning the tables on the prosecution is going to be easy.  You're representing someone who's charged with doing some very bad things, and we all know that the presumption of innocence borders on a myth.  The jurors walk into the courtroom scared of your guy.

Still, there are some things you can do.  People are more wary of the police, and especially of paramilitary SWAT team raids; if you're dealing with one of those, explore with the officers in detail how inherently violent those are.  If your client was the victim of the Bullshit Traffic Stop of the Week™, stress the pretextual nature of the stop; getting the jurors to believe that a police officer could stop them on a whim can only help.  If your defense is "some other guy did it," stress that that other guy is still out there, possibly committing more murders/rapes/robberies.  And never refer to the other side as "the State"; it's always, "the government."  People react much more unfavorably to the latter term.

Of course, all this depends upon there being some validity to the theory, and there's a serious debate about whether the whole thing is just a pantsload.  There are a number of neurobiologists who believe that it grossly oversimplifies human behavior, and the science behind the theory is indeed very questionable.  As one critic notes,

To reduce the human being to a body organ, even the brain, disregards the value of the reflective mind - something no reptile possesses. From time immemorial we have used imagination and supporting evidence in narrative to persuade. A reptile hears no human story. It reacts as a coiling rattlesnake or a slithering lizard. To equate men and women serving on a jury with reactive sub-mammals is both offensive and objectionable.

Still, while the science may be bad, there are innumerable books and articles promoting the theory, and advising defense lawyers how to counter it.  It wouldn't hurt to do a little reading up on it - that's why God invented Google - to learn how you might use it to your advantage or deal with the State - er, government - when they resort to it.

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