by Azarius Yanez
Does the act of self-preservation override the act to empathize and sympathize with others? From Batman, to Superman, to Spiderman, people are fascinated with heroes. People are fascinated with the notion that a person is willing to sacrifice his or her own well-being for the good of others. We praise people who are willing to endure pain for the common good. Human beings have the ability to empathize with people’s pain, struggles, and heartaches.[1] Yet, above all these fascinations and the praise of empathy, people are encumbered with the idea of self-preservation.[2]
According to the newest trends of trial tactics, people are more willing to render higher verdicts if they sense they are in danger, rather than if they are sympathizing with someone else’s pain.[3] Trial lawyers all around the United States have tapped into this “reptile theory.”[4] The reptile theory involves lawyers “persuading jurors by appealing to their ‘reptile brains,’ the ‘oldest’ part of the brain and the part responsible for primitive survival instincts.”[5]
The reptile theory originates from physiological studies. The theory is derived from the work of a neuroscientist, who claimed that the brain consists of three distinct parts that demarcate the stages of evolution.[6] The reptile brain, one of the three distinct evolutionary parts, is at the core of the human brain and is responsible for our survival mode.[7] Our ability to empathize and sympathize with others is a concept that we gathered later in the process of our evolution.[8] It is because empathy and sympathy stem from a later date, that we can override these emotions with a more primordial one.[9] The ability to empathize and sympathize builds upon the idea of feeling safe. We only begin to empathize when our basic life needs are met, such as food, shelter, and safety. If we do not feel safe, we cannot access the ability of higher thinking; we cannot achieve the rational, logical, and sympathetic parts of our brain if the more primordial part of our brain, instinctive survival skills, is being trigged.[10]
The fundamental concept of the reptile brain is that deep, at the person’s core, we are “conditioned to favor safety and survival.”[11] “The Reptile Theory can be conceptualized as a planning strategy that gets plaintiff attorneys to focus early in the case on crafting the themes that will be honed through deposition, voir dire, and eventually the opening.”[12] This concept of using the reptile theory in application means having the jury see the case through a lens of fear, not sympathy.[13] If an attorney is able to “reach the reptilian portion of the jurors’ brains, they can influence their decisions; the jurors will instinctually choose to protect their families and community from danger through their verdict.”[14]
The rise in higher plaintiff verdicts has been attributed to using this theory.[15] For example, when a plaintiff’s attorney can make jurors fear that a tobacco company may make a juror its next target, verdicts will be staggeringly higher. Most recently in Florida, a jury handed down a verdict of 23.6 billion dollars in a tobacco case.[16] Jurors awarded such a high verdict because they were concerned and fearful that the tobacco company concealed the effects of smoking cigarettes.[17] When people are scared for their lives, or feel personally susceptible to the attacks of others, they will do anything to save themselves, including rendering astonishingly high verdicts.[18] The reptile theory utilizes the juror’s desire to place blame on a defendant “large enough and powerful enough to ‘eliminate’ that danger.”[19] Therefore, it is more effective for a plaintiff’s attorney to focus on the conduct of a defendant, and the resulting endangerment, rather than a plaintiff’s injuries.[20] It should be the focus of the attorney to not evoke sympathy for the plaintiff, but instead anger the jury: “the idea is to make jurors believe the worst about a defendant . . . and its record of safety.”[21]
All in all, this “new reptile theory” is not a new phenomenon, but a trial strategy that has been more readily explored. The reptile theory is primitive in nature, however, it is being more readily explored because of the enormous and influential effects it can have on the verdict of a case. It has been shown to render higher verdicts and to convey clearer messages: “Reptile Theory and its psychological techniques are here to stay. Plaintiff attorneys who utilize them are often successful at directing jurors’ attention to specific safety rules and concepts that have been broken, and for which the jurors must blame the defendant.”[22] Perhaps, people are not most interested with the heroic, but instead are consumed by self-preservation. Attorneys have begun to tap into juror’s fears in order to receive higher verdicts for their clients. Whether good or bad, people fear, and people will fight if they believe their lives are one the line.
[1] Meghan Laslocky, This is Your Brain on Heartbreak, Greater Good, (Feb. 15, 2013), http://greatergood.berkeley.edu/article/item/this_is_your_brain_on_heartbreak.
[2] Williams Ruskin, Plaintiffs’ Bar Embraces Reptile Strategy and Defense Bar Responds, Environmental & Toxic Tort Defense Insight (Oct. 4, 2013), http://www.ettdefenseinsight.com/2013/10/plaintiffs-bar-embraces-reptile-strategy-and-defense-bar-responds/.
[3] Id.
[4] Id.
[5] John Wilinski & Christina Marinaks, The Reptile Brain Strategy: Why Lawyers Use It and How to Counter It, Litigation Insights: Blog (Mar. 3, 2016), http://www.litigationinsights.com/case-strategies/reptile-brain-strategy-lawyers-how-to-counter/.
[6] Ann Greely, A Brief Primer on the Reptile Theory of Trial Strategy: Plaintiff Psychology and the Defense Response, http://www.americanbar.org/content/dam/aba/events/lawyers_professional_liability/ls_lpl_2016spring_conf_reptile_theory.authcheckdam.pdf (last visited Jan. 2, 2017).
[7] Id.
[8] See id.
[9] See id.
[10] See id.
[11] Ruskin, supra note 2.
[12] Greely, supra note 6.
[13] Wilinski & Marinaks, supra note 5.
[14] Ruskin, supra note 2.
[15] Id.
[16] Francis Robles, Jury Awards $23.6 Billion in Florida Smoking Case, N.Y. Times (July 19, 2014), http://www.nytimes.com/2014/07/20/business/jury-awards-23-6-billion-in-florida-smoking-case.html?_r=0.
[17] See id.
[18] See Greely, supra note 6.
[19] Id.
[20] Id.
[21] Id.
[22] Id.