Strategies for Combatting Reptile Theory in Medical Malpractice Trials
The Reptile Theory is a litigation strategy intended to activate jurors’ survival instincts during trial and is designed to induce fear over logic and reason when hearing a case. Rather than focusing on the standard of care and whether the defendant was negligent, plaintiffs’ attorneys will focus on the defendant’s conduct and frame their behavior as a “danger to the community and public safety” that must be punished to deter others from acting similarly. This results in verdicts designed to punish the defendant, which is in direct contrast to the basis of our civil justice system to “make the plaintiff whole.”
The Reptile Theory aims to manipulate the minds of jurors by triggering their “fight or flight” instincts and oftentimes results in rewarding plaintiffs with significantly larger verdicts. By focusing on the emotional aspects of the case and being very intentional when asking their questions, plaintiffs’ attorneys shift the focus away from the logical analysis.
Plaintiffs begin developing their reptile strategy long before a trial gets underway. A key portion of this strategy occurs during the deposition phase of discovery by asking defendants to answer “yes” or “no” to questions without any additional commentary. These questions discuss the rules that are in place and attempt to portray the defendant as having violated one or more. Specifically, plaintiffs’ attorneys will establish general safety and danger rules, and the deponent will agree with them. Then the plaintiff will lead the defendant to connect the safety issues to the specific issue in the case and get the defendant’s inconsistency or omission on record. Once this occurs, the defendant has no choice but to settle with the plaintiff or go to trial and risk impeachment or a plaintiff jury verdict.
Defense attorneys can combat Reptile Theory by properly preparing their clients and witnesses for deposition. It is crucial that defendants understand the importance of answering more than just “yes” or “no” to ensure they are not trapped with these answers on the record. Defendants should be prepared to discuss the complexity of the diagnosis, the standard of care and the treatment rendered, which are all important to provide depth to the plaintiff’s safety argument. When defendants explain the rationale behind their decision-making, it aids in refuting the standard of care argument because it demonstrates that a reasonable medical provider would have acted similarly under the same or similar circumstances. If asked about patient safety, defendants should reiterate that what they did was reasonable under the circumstances.
Plaintiffs may also attempt to create a link between the action or failure to act and the final result. Specifically, a plaintiff may try to link the safety rules to the final outcome. It is crucial that defense attorneys prepare their witnesses with responses that differentiate their case from the generalization the plaintiff is asserting. By doing so, it allows the defendant to incorporate the appropriate circumstances, judgment and the standard of care into the response. However, it is important that the defendant does not overshare. There is a fine line between falling into the generalization and volunteering too much information.
The Reptile Theory does not respond well to complexity or nuance, so effective and frequent communication with the client is paramount. Clients who are able to explain the circumstances and reasoning behind their decision-making process will help to poke holes in the plaintiff’s argument. Being adequately prepared and articulating these complexities with confidence will add to their credibility, helping to bolster the defense at trial.
The defense can also guard against Reptile Theory by understanding the plaintiff’s theory of liability and establishing a defense at the outset of the case. The earlier the defenses are created, the easier it will be to defend against the plaintiff’s efforts. It is imperative to gain a strong understanding of the case’s strengths and weaknesses to implement effective strategies around potential exposure. Defendants can also object to all discovery requests and file appropriate pre-trial motions to ensure the standard of care is not being improperly portrayed and there is no irrelevant evidence regarding safety and danger that is meant to prejudice the jury.
Defending against Reptile Theory in medical malpractice cases requires a strategic, informed approach. With preparation, foresight and a well-constructed defense, defendants can mitigate the impact of this tactic and help neutralize the emotional influence it seeks to exploit.
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