Cutting the Reptile Off at the Knees with a Protective Order
April 16, 2019 By Jason C. Greaves
A troubling and growing trend in the plaintiff’s bar is the use of the Reptile Theory of litigation, espoused by David Ball and Don Keenan in their step-by-step guide, REPTILE: The 2009 Manual of the Plaintiff’s Revolution. The stated purpose of the Reptile is to spread “the tentacles of danger” to jurors by framing issues in terms of the maximum potential harm a defendant could have inflicted to the community, rather than the actual harm caused to the plaintiff.1 In practice, the Reptile Theory is a means of injecting impermissible Golden Rule arguments into trial and obtaining de facto punitive damages, even where not permitted by law. It can be devastating to the unprepared defendant, particularly in medical malpractice cases and commercial vehicle accidents.
While many defense attorneys will wait until a pre-trial motion in limine to thwart these tactics, at that stage it is likely too late. First, the outcome of a motion in limine is uncertain. Many judges—even those that are predisposed against Reptile tactics—will not make a broad, pre-trial ruling, forcing defense attorneys to spend inordinate time objecting and arguing at the bench. Even if all objections are sustained, the defense could look like it is hiding the ball and bullying the plaintiff. Second, the worst damage inflicted by a Reptile practitioner has already occurred at deposition.
Deposition is where your client is most vulnerable to Reptile tactics, and where even a well-prepared defendant can be tripped up by the sophisticated techniques developed by Ball and Keenan. Reptile practitioners start with broad, overgeneralized questions about “safety rules.” They lead the witness down an ever-narrowing path that becomes psychologically difficult to back out of, due to exploitations of confirmation bias, anchoring bias, cognitive dissonance, and the hypocrisy paradigm.2 Although Reptile questions have nothing to do with the standard of care or the facts of the case, most jurisdictions do not allow a witness to refuse to answer unless the question violates attorney-client privilege or is asked in bad faith. I believe the Reptile questions are asked in bad faith (with the exception of punitive damage cases), but refusing to answer runs the risk of incurring the wrath (and possible sanctions) of a judge who has not been properly briefed on the Reptile theory.
My preferred solution to this problem, and one with which I have had success, is to file a pre-deposition motion for protective order. In this way, you can educate the judge, in advance of deposition, why the Reptile lines of questioning are improper, harassing, and made in bad faith. With the protective order in place, the Reptile deposition becomes a standard deposition, focused on the facts of the case. This cuts the Reptile attorney off at the knees, since their entire strategy revolves around the potential rather than the actual harm caused by the defendant. Not only does the protective order avoid the risk of your client being manipulated into damaging admissions, it provides clarity for the landscape of the eventual trial and the value of the case.
1See Ball & Keenan, REPTILE: The 2009 Manual of the Plaintiff’s Revolution 58 (2009).
2See Kanasky & Malphurs, Derailing the Reptile Safety Rule Attack: A Neurocognitive Analysis and Solution, Courtroom Sciences Inc., at 5-10 (2014).