Book Review Of Reptile: The 2009 Manual Of The Plaintiff’s Revolution By David Ball And Don Keenan. Trial Reporter (Spring 2010).

BOOK REVIEW OF REPTILE: THE 2009 MANUAL OF THE PLAINTIFF’S REVOLUTION BY
DAVID BALL AND DON KEENAN

“Reptile” refers to the reptilian part of the brain that contains our survival mechanism.[1] The authors’[2] posit that the forces behind “tort deform” hijacked the Reptile by fraudulently portraying plaintiff’s lawyers as a menace to society. Their main proposition is that if you present your case so as to reach the Reptile, you can overcome the pernicious effects of “tort deform” and other biases that would otherwise keep a juror from rendering a just verdict. In short, the book is a roadmap for bringing the danger home for your jurors. To reach the Reptile, the authors suggest you focus on community safety. More specifically, that you “show the immediate danger of the kind of thing the defendant did – and how fair compensation can diminish that danger within the community.” To awaken the Reptile, Ball and Keenan believe jurors need answers to these three questions:

1. How likely was it that the act or omission would hurt someone?
2. How much harm could it have caused?
3. How much harm could it cause in other kinds of situations?

The answers to these questions demonstrate the level of danger in the defendant’s action or inaction, the precise information jurors need in order to decide issues of negligence. The book briefly discusses an extremely difficult products liability case involving a faulty device used in open heart surgery. The lawyer who won that case at trial did so in part because he showed his jurors that if the manufacturers of common medical devices routinely seen in medical settings violated the patient-safety rule that was violated in the case, patients in those hospitals and clinics could be killed.

The authors also argue that a juror’s Reptile won’t fight community dangers unless you can show how the dangers can be ameliorated. They suggest that if allowed by your jurisdiction, you argue that a proper, fair, or just verdict will prevent, lessen, or distance the danger. Alternatively, they suggest you explore whether “you can argue in closing the public policy underlying compensation and negligence laws – which includes public safety.”

As you would expect, the book discusses the psychology underlying jurors’ decision making. This psychology comes not just from the authors’[3] personal experiences, but from thousands of hours of focus groups and academic studies.

Ball and Keenan pay homage to Pat Malone’s and Rick Friedman’s Rules of the Road. They suggest the following equation: SAFETY RULE + DANGER = REPTILE, and caution that you “never separate a rule from the danger it was designed to prevent.” When a safety rule is too specific to activate the juror’s Reptile, it should be repositioned as a special case of a more general rule. For example, while a rule that coal-mining companies are forbidden from turning off the lights while workers are in the mine applies only to the Reptiles of miners, a savvy attorney can reposition this specific regulation as “A company must not needlessly endanger its employees” or “A company is never allowed to remove a necessary safety measure.” This connects the specific rule to everyone with a job at which safety is an issue.

The authors discuss the six characteristics that a safety rule must have for Reptilian purposes. They then explain how to deploy each rule. They contend that each case needs an “Umbrella Rule”, “the widest general rule the defendant violated – wide enough to compass every juror’s Reptile.” They explain how to take such rules and use them in cross-examination of defendants and their experts at depositions and trial. They then demonstrate how to work backwards in closing from the most specific rules (activating only a few juror’s Reptiles) to the most general (all juror’s Reptiles). The authors also discuss how the Reptilian approach works in cases in which the standard of care is at issue, and those in which it is not technically at issue.

There is an interesting chapter on what the authors call “Codes” (defined as the way in which the Reptile relates to something). For example, Clotaire Rapaille, a marketing expert, found that the American Code for good health is “mobility.” Agreeing with Rapaille, the authors have found that jurors will place greater value on a lack of mobility than on pain. According to the authors, the Code for injustice is “incompletion.” Thus, in a stipulated damages case, the authors write that “when the defense says at the last minute that they’re ‘meeting their responsibility’ by stipulating to liability, point out that the stipulation is a cynical maneuver that actually makes things worse.” The Code for trial is “opportunity.” To many jurors, “bad baby cases” are perceived as hopeless tragedies. Hence, they do not awaken the Reptile and too often result in deficient verdicts. If, however, the trial can be positioned as an opportunity to use the horror of the plaintiff’s baby’s death as a way to make the jurors’ offspring safer, the authors’ believe that a deficient verdict can be avoided.

In the next chapter, “The Reptile as Law-Enforcer: Harms and Losses Only,” the authors tackle a common problem we encounter: jurors who do not follow the law when rendering a verdict (for example, “We can’t award that much money, it will raise our insurance rates.”). They suggest that we ask the Judge to instruct the jury as follows: “During deliberations, if a juror is not following the law I have just given to you, the rest of you must make sure I am told.” Additionally, they offer other suggestions to deal with this problem in voir dire, openings, examinations, and closings. Unfortunately, because we do not have lawyer voir dire in Maryland, we cannot take advantage of their voir dire suggestions. Despite this limitation, both this chapter and the next one, which discusses lawyer voir dire, are well worth reading.[4]

On opening statements, Ball and Keenan suggest that you begin with the a specific rule[5] that applies to your case embedded in the more general umbrella rule , and then explain the consequences of violating the rule. Next, they recommend you tell the story of your case clearly, simply, in present tense, and in chronological order. The opening statement is then bifurcated. You explain in “Part A” why you are suing by stating “the first violated rule and how you know the defendant knew and violated it.” Then, in “Part B” they suggest that for each rule violated, you explain what your expert is going to say about:

1. What makes the violated rule a rule?
2. In what other circumstances than this case can violation of the rule cause harm?
3. How much harm can violating this rule cause?

For example, the authors suggest that this approach could be used in a low speed collision case by having a high school drivers’ ed teacher testify as an expert witness about how frequently people are seriously injured in low speed collisions. They further suggest that a high school physics teacher can teach the jury “how a 12-mph force on a rear bumper will transfer almost undiminished into the driver’s neck and skull.” While I recognize that Maryland Circuit Courts apply Frye/Reed[6] to less restrictive effect on expert testimony than do Federal courts applying Daubert[7] , I’m not sure how a Maryland Judge would rule regarding the admissibility of such expert testimony. Lastly, regarding opening statements, the authors point out that the above approach can (and should) be easily married to that suggested in David Ball on Damages.

In the chapter on expert witnesses the authors discuss the importance of gathering all available information and getting it to our experts. The expert should explain at trial what experts must do step-by-step in order to reach a valid conclusion. Then the expert should take the jurors through each steps (s)he went through while examining the facts of the case. Your liability expert should show how the violation of the safety rule in your case can cause harm in other contexts. Lastly, the expert should show how the defense expert skipped steps in the process (s)he explained. When crossing a liability expert, try to get her to agree to the Rule(s) you have identified for your case, and why violating it is dangerous.

The authors highlight that “[y]our most important Reptilian task in closing is to show how the dangers represented by this case affect the community.” They think that our cases should boil down to a matter of community safety v. danger. They suggest that, where permitted, we cite public policy and legislative intent in closing argument. The remainder of the chapter is filled with important points about closing arguments that are too numerous to recount here.

As a trial lawyer who has been reluctant to bring the Bible into the courtroom, I found the chapter on “Scripture and the Reptile” fascinating reading.[8] Additional chapters cover case selection, mediation, client preparation, and deposing defense witnesses. The chapter on depositions is one of my favorites. It contains numerous suggestions that can be put to immediate use in our cases. Don Keenan’s closing argument in the “’Small’ Cases” chapter is masterful. Many of us have tried stipulated liability cases to juries; a chapter discusses strategies for these cases. The chapter on medical negligence cases should be required reading for all lawyers who handle them. The book also contains a useful bibliography called “Reading for Reptiles” and appendices containing golden rule law by venue and law regarding the use of community safety in trials.

While I strongly agree with the overall thrust of this book, I do not know if some of its suggested tactics would fly in Maryland. For example, the authors suggest you ask a defendant driver: “Do you drive as carefully at other times as you were driving when you hit John?” and then show how all of the potential answers to this question can help your case. I agree with their analysis of the potential benefits of any answer to that question, but I’m not sure a Maryland judge would, after a proper objection, allow the defendant to answer it.

Reptile is essential reading for a lawyer who represents Plaintiffs in personal injury cases. Its written in easy to understand prose (exactly the type that the authors would have you use when communicating with a jury). I intend to re-read portions of it intermittently and to incorporate its teachings into my next jury trial. That said, and this is scant criticism, it does not quite reach for me the same “Bible” status that I attribute to Rules of the Road or David Ball on Damages because I think it will be harder to apply its lessons to run-of-the-mill personal injury cases.

[1] Yale Medical School physician and scientist Paul D. MacLean coined the phrase “Repillian brain” to refer to the “R-Complex,” the oldest part of the brain.

[2] David Ball is one of the foremost trial consultants in the United States and author of David Ball on Damages, the seminal book for Plaintiff’s attorneys. Don Keenan is nationally acclaimed trial lawyer and a remarkable advocate for children.

[3] The cover of the book references its Research Team, which consists of authors and trial lawyers, James E. Fitzgerald and Gary C. Johnson.

[4] It is conceivable that a lawyer trying a case in Maryland could ask a few of their suggested voir dire questions while at the bench questioning an individual juror.

[5] For example: “A truck driver is required to check his brakes every 24 hours or he needlessly endangers the public. If he does not check his brakes and as a result hurts someone, the driver is responsible for the harm.”

[6] Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) and Reed v. State, 283 Md. 374, 391 A.2d 364 (1978).

[7] Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786 (1993).

[8] Our own Pat Malone and Bob Michael are cited in this chapter.