Reptilian Litigation: A Guide to the So-Called Plaintiff’s Revolution

WDC Journal Edition: Winter 2013
By: Timothy A. Weaver, Pretzel & Stouffer, Chartered

“Members of the jury, we are gathered here today because the defendant chose to violate safety rules and caused the death of Mrs. Jones. At the end of the trial I will ask you to return a verdict for the plaintiff and against the defendant. This is how you can send a message to the defendant and all the other people like him that here in Milwaukee County we won’t allow safety rules to be violated, needlessly putting all of us at risk.” If this opening statement sounds familiar, your opponent has adopted the Don Keenan reptilian approach to personal injury litigation. What is this so-called “Plaintiff’s Revolution” and how can we combat it?

The Reptile

Wisconsin and nearly all other jurisdictions bar efforts to have jurors put themselves in the position of the plaintiff and to feel his pain.[1] This is known as the prohibition against the Golden Rule. Don Keenan and David Ball wrote a book entitled, Reptile: The 2009 Manual of the Plaintiff’s Revolution,[2] in which they offer strategies to appeal to the primitive or reptilian brains of the jurors and to circumvent this prohibition.

Don Keenan is a plaintiff’s lawyer from Atlanta who was the youngest member (1987) and youngest president (1997) of the Inner Circle of Advocates. He boasts 145 verdicts/settlements over $1,000,000, eight over $10,000,000, and one over $100,000,000. David Ball, the self-described “most influential trial consultant” in America, was trained in engineering and professional theater direction and writing.[3]

Through their seminars, workshops, web site, and other books, they have helped spread the use of these techniques across the country. Their book begins with the “axiom”:

When the Reptile sees a survival danger, even a small one, she protects her genes by impelling the juror to protect himself and the community.[4]

Ball and Keenan explain that no life form is immortal so our existence presupposes the survival of our genes from one generation to the next. If our genes are threatened, the most primitive part of our brain will make us act to protect ourselves and our genes. Otherwise, the primitive brain sleeps or “fritters.” Ball and Keenan boldly assert that the plaintiff’s attorney must wake up the reptile in the jurors’ brains and perceive the events that caused injury as a threat to the jurors’ survival. “So in trial, your goal is to get the juror’s brain out of fritter mode and into survival mode. You do this by framing the case in terms of Reptilian survival.”[5]

The science behind this approach to trial work comes from Paul D. MacLean, a neuroscientist at Yale, who first posited the three-part or “triune” brain. In evolutionary terms, the R-complex is the oldest part of the human brain.[6] Neuroscientist Joseph E. LeDoux at New York University added that “consciousness is a small part of what the brain does, and it’s a slave to everything that works beneath it.”[7] Dr. MacLean called the R-complex the “Reptilian” brain because it is identical in function to the brains of reptiles. At that level, all human beings are nearly identical.[8]

Ball and Keenan portray the reptile in all of us as having simple needs: her genes must survive, spread, and prosper. The reptile is the source of all important desires: sex to continue our genes, success or importance so mates will want us for reproduction, and altruism so society will protect us. The reptile has no interest in justice unless it helps her genes survive. She has no anger, intelligence, fear, love, morality, or emotions—she invented those things to get us to do what she wants. [9]

The authors claim that tort reform has been effective in portraying the plaintiff’s bar as a menace to the local economy, the development of new products, the sustaining of a reasonable consumer price index, and available, quality healthcare.[10] By identifying these threats, tort reformers woke up the reptile and made her an ally of the defense. Keenan and Ball advocate that the plaintiff’s lawyer should likewise try to make the reptile an ally of the plaintiff by showing the jury the immediate danger of the kind of wrong the defendant committed and how compensation can diminish that danger in the community.

To determine whether the defendant’s act was negligent and thus represents a threat to the community, the jury needs to answer three questions:

1. How likely was the act or omission going to hurt SOMEONE?

The plaintiff needs to show that this was not a freak occurrence or accident and that there is a danger to the jurors if this kind of wrong is allowed to be repeated.

2. How much harm COULD it have caused?[11]

The plaintiff should emphasize just how much harm could have occurred from this wrongful act.[12] This is especially important for small cases. “There are no small cases. Only small lawyers.”[13] The proper measure of the danger created by the defendant is the maximum harm the act could have caused, not merely what harm it did cause.[14]

3. How much harm could it have caused in OTHER KINDS OF SITUATIONS?[15]

The plaintiff should point out that this type of negligence could cause harm in a variety of situations, including situations that the jurors themselves might encounter, not just in the peculiar circumstance of the plaintiff.

The authors urge the plaintiff’s lawyer to use these questions to wake up the reptiles in the jury and frighten the jury so they will return a plaintiff’s verdict.[16] As to the measure of damages, Ball and Keenan press the themes of “harms and losses.”

The only two things you will be allowed to take into account are the harms and losses the defendant caused. So during trial, we’ll show you those harms and losses.[17]

The authors thus present a clever way to circumvent the prohibition against the Golden Rule argument and also to violate the Wisconsin law of damages.

Safety Rules

Rather than showing an appreciation for the complexities of product design and medical practice, the reptilian approach is to oversimplify the facts and portray risk-benefit analyses as safety rules. These rules must prevent the danger shown in the case, protect us in a wide variety of situations, be clear and practical, and be impossible to reject.[18] They are then broadened so that they prevent others from “needlessly endangering the community.”[19]

The authors advocate working from the most specific safety rule to the most general to wake up the reptile. For example, the “rule” of differential diagnosis in a birth trauma malpractice case will be described as applying to all doctor-patient encounters. That way, the juror who hates kids will see that it might apply to him in the ER! The plaintiff’s emphasis should be that the only allowable choice for the defendant to have made was the safest choice, not a reasonably prudent choice. The rule then becomes a theme transformed into a behavioral imperative for the jury.[20]

In opening statements, the plaintiff’s attorney will tell a story of what the defendant did wrong, and note that the lawyer is suing because the defendant chose to violate a safety rule. The plaintiff's attorney will state that the violation injured the plaintiff and could injure anyone in the community, and that such violations needlessly endanger the community.[21] Expert testimony will be framed in terms of violations of these safety rules.[22]

For example, the plaintiff in a missed-diagnosis case will claim that the defendant doctor violated the safety rule of a differential diagnosis requiring the physician to list all the conditions that the patient could have and then taking the steps necessary to rule out those conditions, focusing on the worst condition first. Another plaintiff will claim that the defendant manufacturer violated the safety rule of making brakes that allow a vehicle to stop in a safe distance.[23] These defendants are portrayed in court as trying to escape responsibility for having chosen to violate public safety rules, thereby further endangering the community (the reptile) and showing others that they too can get away with such violations.[24] We thus have the Golden Rule argument by the proverbial backdoor (endangering the community), a suggestion of willful and wanton behavior (choosing to violate a safety rule), and exemplary or punitive damages even when they are not allowed (by "sending a message" to others so that it does not happen again).

In a recent medical malpractice case this author tried to verdict, the plaintiff’s lawyer asked his expert, “Standard of care—those are medical safety rules, is that fair?” My objection was overruled. He then asked, “Can we agree that the standard of care is what a reasonably careful doctor would do—those are like safety rules?” The expert agreed. Later, the expert said that the rule requiring the physician to see patients in nursing homes 30 days and prepare progress notes for each visit “is there for safety reasons at a minimum.” The defendant was required to follow the rule “both because it’s a regulation for Medicare but [also] for patient safety.” Later he said, “Yeah, it still would have been a breach because the patient really required it, standard of care wise and safety wise, a lot sooner.” Progress notes are essential because there are “safety measures behind that. It’s a safe way to practice….” Coming in sooner to the nursing home would have been “practicing medicine safely and providing a standard of care approach.”

The peroration was:

Q: Does a reasonably careful internist follow the safety rules?

A: Oh, yeah.

Q: Did Dr. ***?

A: No, in the multiple ways that I have outlined he simply didn’t in this case.

Ball and Keenan recommend that the reptilian approach begin with the depositions of the defendants and their experts. Have them agree that what is required is the safest approach. The defendants must not needlessly endanger the public. If the defense witnesses agree, the plaintiff’s lawyer can use those answers effectively at trial with his own experts, in opening statements, in cross examination, and in closing. If the defense witnesses disagree, they will be portrayed as hypocritical, dishonest, or stupid.[25]

Combating the Reptile

The most important step defense counsel can take is to alert his witnesses to the semantic pitfalls of the reptilian approach to litigation. It is crucial that the defense witnesses not agree with the distortion and oversimplification inherent in the safety first, last, and always approach.[26] At deposition the plaintiff herself will not likely speak in those terms, but the depositions of defense witnesses may be built on that platform. For many years plaintiff’s lawyers have asked standard of care questions in malpractice cases without using the phrase or by disguising the concept. Some of the questions this author has collected over the years are as follows:

  • Must a doctor do everything he thinks he should do for the patient to meet the standard?
  • Must the doctor err on the side of safety in caring for his patient?
  • Should the nurse have acted as a patient advocate under those clinical circumstances?
  • Must the doctor take all reasonable steps necessary to protect the safety of the patient?
  • Would the better approach have been to ...?
  • Must the doctor take steps to rule out every condition in the differential diagnosis?
  • Would you have expected the defendant doctor to have known ... to have done ...?
  • Was it appropriate for the doctor to have done ...?

Keenan and Ball add questions to seek agreement with the following platitudes that portray a distortion of the practice of medicine:

  • Doctor’s job is to work with other doctors to get the best result.
  • Doctor’s job is to seek advice from other doctors.
  • Doctor’s job is to make the nurses feel secure in speaking up and going over the doctor’s head when necessary.
  • Doctor’s job is to keep up with applicable rules and protocols.
  • Doctor’s job is to be responsible for safety.[27]

How does defense counsel combat this? We start with Wisconsin Jury Instructions-Civil 1023, which defines standard of care. The first two paragraphs read as follows:

In treating [plaintiff’s] condition, _________was required to use the degree of care, skill, and judgment which reasonable _____________would exercise in the same or similar circumstances, having due regard for the state of medical science at the time plaintiff was treated. A doctor who fails to conform to this standard is negligent. The burden is on plaintiff to prove that defendant negligent.

A doctor is not negligent, however, for failing to use the highest degree of care, skill and judgment or solely because a bad result may have followed his care and treatment. The standard you must apply in determining if _______ was negligent is whether he failed to use the degree of care, skill, and judgment which reasonable ___________ would exercise given the state of medical knowledge at the time of the treatment in issue.[28]

Teach your defendant and the defense expert this standard, showing them the jury instruction and explaining that this, not safety first and always, is what the jury will be told. This understanding will fortify them in their resistance to distortion of the duty when they are cross examined.

What about the Keenan declaration, “If there’s more than one way to achieve the same benefit, a physician has to choose the one with the least risk”? Keenan also proclaims, “Because if there’s extra risk, that’s needless danger.” Finally, Keenan says, “The only allowable choice is the safest available choice.” Wisconsin Jury Instructions-Civil 1023 rebuts these distortions nicely:

If you find from the evidence that more than one method of treatment for the plaintiff’s condition was recognized as reasonable given the state of medical knowledge at that time, then the doctor was at liberty to select any of the recognized methods. A doctor was not negligent because he chose to use one of these recognized treatment methods rather than another recognized method if he used reasonable care, skill, and judgment in administering the method. [29]

How do we overcome the plaintiff’s theme of safety-rules? Standard of care is not a set of safety rules, as the jury instruction demonstrates. General statements or guidelines are not iron-clad rules and are not always fact applicable. Throughout the case emphasize that the defendant did not choose to violate a safety rule. He chose a reasonable course of action based on available information. There are no sure fixes or cures or interventions that can be used with the same result in each case. Therefore, these ideas proffered by the plaintiff’s expert are not safety rules but merely his argument for a plaintiff’s verdict based on hindsight.

At trial, the defense opening statement must demonstrate the complexity of the circumstances the defendant was in at the time of the alleged negligence and how the defendant made reasonable choices consistent with the reasonable person standard. Point out the hindsight bias the plaintiff’s version reveals. Ordinary care to avoid unreasonably dangerous products and reasonable care do not require the safest alternative. Otherwise, cars would have to be made like tanks on the outside with race car protections on the inside and would cost more than $500,000. Doctors would almost never operate.

When deposing plaintiff’s expert, ask the witness to cite literature that characterizes the referenced guideline as a safety rule. She will not be able to do so. Use portions of the jury instructions to seek agreement with these statements of law. If she disagrees, consider a motion in limine to bar or limit the testimony. Alternatively, you may choose to rely on cross examination at trial with the expectation that her credibility will be damaged. Whether to file a motion to bar or rely on cross examination is a trial strategy issue beyond the purview of this article. One must assess all the players to decide: plaintiff’s lawyer, expert, and most important of all, the judge. The point is to address the issue during discovery as well as during trial.

In the product liability field, Keenan advocates asking the following questions:

  • Is a car-maker allowed to needlessly endanger the public? Even if the car-maker has met all federal regulations?
  • Is a car-maker allowed to hide a danger? Even if the car-maker has met all federal regulations?
  • Give us examples of how that can cause harm to people.
  • Give us an example of a car that met all federal regulations that still had something dangerous on it that should have been made safer.
  • Give us examples concerning other kinds of products for which violating safety-test results could cause harm to people.
  • Does a car manufacturer have to make safety more important than profit?[30]

Defense counsel could use Wisconsin Jury Instructions-Civil 3200 to demonstrate to defense witnesses and at trial to the judge and jury that the above-delineated questions distort product liability law in Wisconsin. Instruction 3200 states in pertinent part as follows:

The duty of the manufacturer or supplier of a product is to exercise ordinary care to ensure that the product will not create an unreasonable risk of injury or damage to the user or owner when used in its intended or foreseeable manner…. A manufacturer … is required to exercise ordinary care in the manufacture of its product in the following respects: (1) safe design of the product so that it will be fit for its intended or foreseeable purpose; (2) construction of the product so that the materials and workmanship furnished will render the product safe for its intended or foreseeable use; (3) adequate inspections and tests to determine the extent of defects both as to materials and workmanship; (4) adequate warnings of danger in the use of the product and adequate instructions as to the proper use of the product which is dangerous when used as intended.[31]

Wisconsin law thus recognizes that many products pose dangers to users and bystanders, but that those dangers do not prove the manufacturer negligent. Even cases relying upon strict liability in tort require proof that the product was “in a defective condition unreasonably dangerous.”[32] A product is said to be defective

when it is in a condition not contemplated by the ordinary user or consumer which is unreasonably dangerous to the ordinary user or consumer, and the defect arose out of design, manufacture, or inspection while the article was in the control of the manufacturer. A defective product is unreasonably dangerous to the ordinary user or consumer when it is dangerous to an extent beyond that which would be contemplated by the ordinary user (consumer) possessing the knowledge of the product’s characteristics which were common to the community. A product is not defective if it is safe for normal use.[33]

Once defense witnesses (client engineers and retained experts) understand how negligence and defective condition are defined, they can avoid agreeing with the distortions set forth in the Keenan list of questions. “Unreasonably dangerous” is a standard much different from the requirement that the manufacturer consider safety first, last, always, and above profit. Furthermore, it is likely that the product in question is sufficiently complex that the notion of a safety rule violation will be seen by the jury as inadequate for their task.

It will be easier for the plaintiff to talk about safety rules in automobile accident cases. Still, a safety law will not apply unless the court determines that: (1) the harm inflicted was the type the statute was designed to prevent; (2) the person injured was within the class of persons sought to be protected; and (3) there is some expression of the legislative intent that the statute become a basis for the imposition of civil liability.[34] If no traffic law was violated and the plaintiff is relying upon negligence, the plaintiff must prove that the defendant did “something or failed to do something that a reasonable person would recognize as creating an unreasonable risk of injury or damage to a person or property.”[35] There is a difference between unreasonable risk and any risk.

Finally, the Reptilian approach invites the jury to circumvent the law of damages. The authors maintain that the danger caused by the defendant’s act is measured by the maximum harm it could have caused. While this may seem like a breach of duty argument, it becomes a damages argument in the Reptilian approach. “The levels of all the harms and losses caused by the defendant are the only things jurors are allowed to use to decide money.”[36] Defense counsel should prepare a motion in limine based on Wis JI – Civil 1700: “[Y]ou should award as damages amounts which will fairly compensate” the plaintiff.[37] The standard is fairness, not “harms and losses.”[38] Another motion in limine could be used to prevent the “send a message” argument, which is a thinly disguised request for exemplary or punitive damages and which is inappropriate in a negligence case involving only compensatory damages.[39]

Conclusion

The plaintiff’s bar is not enamored of the reasonable person standard and therefore substitutes the notion of safety first, last, and always. The questions suggested by Ball and Keenan show intentional use of improper form and foundation, so object! Prepare defense witnesses to hear the descriptive words “needless” and “needlessly” when they are asked questions about “needless danger” and “needlessly exposing.” Make sure they understand the relevant definitions of negligence. Have the plaintiff’s experts accept at least portions of the jury instructions that are helpful to the defense. Show that the circumstances were complex, rendering the notion of safety rules inapplicable to the case and ineffective in court. Prepare motions in limine to alert the trial judge to these tactics. Even if the motions are denied, the judge will understand your objections during trial and be more likely to sustain them. Remember, a reptile is merely an animal that crawls on its belly.


[1] Rodriguez v. Slattery, 54 Wis. 2d 165, 194 N.W.2d 817 (1972); Larson v. Hanson, 207 Wis. 485, 242 N.W. 184 (1932); Kellogg v. Viola, 73 Wis. 2d 96, 242 N.W.2d 251 (1975); see generally Ted M. Warshafsky and Frank T. Crivello, II, 11 Trial Handbook for Wisconsin Lawyers, § 34:07, at 339(Wisconsin Practice Series, Thomson/West 2005); see also ILLINOIS: Leggett v. Kumar, 570 N.E.2d 1249 (Ill. App. 2d Dist. 1991); Chakos v. Ill. State Toll Hwy. Auth., 169 Ill. App. 3d 1018 (Ill. App. 1st Dist. 1988); Copeland v. Johnson, 211 N.E.2d 3887 (Ill. App. 2d Dist. 1965); IOWA: Russell v. Chicago, Rock Island & Pac. RR, 86 N.W.2d 843 (Iowa 1957); MINNESOTA: Mueller v. Sigmond, 486 N.W.2d 841 (Minn. App. 1992); Omlid v. Lee, 391 N.W.2d 62 (Minn. App. 1986).

[2] David Ball and Donald Keenan, Reptile: The 2009 Manual of the Plaintiff’s Revolution (Balloon Press 2009).

[3] Id., back cover.

[4] Id. at 17. Throughout the book the authors refer to the reptile as “she.”

[5] Id. at 18.

[6] Id. at 13.

[7] Id. (citing Jonah Lehrer, How We Decide, at 23 (Houghton Mifflin Harcourt 2009)).

[8] Id. at 13.

[9] Id. at 21-22.

[10] Id. at 25-26.

[11] Id. at 30-31.

[12] Id. at 31-33.

[13] Id. at 225-32.

[14] Id. at 33, 225-27.

[15] Id. at 30-31.

[16] Id. at 31-35.

[17] Id. at 108.

[18] Id. at 52-53.

[19] Id. at 55.

[20] Id. 55-66; see also Don Keenan, The Keenan Edge, at 99-113 (Balloon Press 2012).

[21] Ball and Keenan, Reptile, at 129-38.

[22] Id. at 139-44.

[23] Id. 56-66.

[24] Id. at 55.

[25] Id. at 143-44, 209-24.

[26] Id. at 214.

[27] Id. at 224.

[28] WIS JI-Civil 1023 (emphasis added).

[29] Id. (emphasis added).

[30] Ball and Keenan, Reptile, at 209-10 (emphasis added).

[31] WIS JI-Civil 3200 (emphasis added).

[32] Id.

[33] WIS JI-Civil 3260 (emphasis added).

[34] Tatur v. Solsrud, 174 Wis. 2d 735, 743, 498 N.W.2d 232 (1993); Antwaun A. v. Heritage Mut. Ins. Co., 228 Wis. 2d 44, 64-65, 596 N.W.2d 456 (1999) (cited in WIS JI-Civil 1005).

[35] WIS JI-Civil 1005.

[36] Ball and Keenan, Reptile, at 33, 110 (emphasis added).

[37] (Emphasis added).

[38] WIS JI-Civil 1700.

[39] Wis JI-Civil 1707.1 (“The purpose of punitive damages is to punish the wrongdoer or deter the wrongdoer and others from engaging in similar conduct in the future.”) (emphasis added).