By Dr. Ken Broda-Bahm:
Take the Reptile seriously, but don't fear it. The en vogue strategic choice of the plaintiffs' bar, the idea that trial persuasion can be leveraged by careful and targeted attention to the fear impulse of the so-called "reptilian brain," (Keenan & Ball, 2009) is an idea that, regardless of its scientific foundation, carries a practical utility in encouraging advocates to focus on the central role of motivation. So in saying, "Don't fear the Reptile," what I am saying, in addition to giving a nod to one of the most cowbell-intensive songs in the classic rock canon, Blue Öyster Cult's "Don't Fear (the Reaper)," is that advocates on the receiving end of that strategy should not give in to fear, because fear is the strategy's stock in trade. The perspective popularized by trial consultant David Ball and Don Keenan is now much more than a book, but a "Reptile Revolution," that applies not just in medical cases but also in products, personal injury and other cases, and claims more than $6 billion in verdicts and settlements for its adherents. The perspective is now getting more attention from the defense side of the bar, and I am happy to note that the general point that, 'the theory may be scientifically unsound, but it works in practice anyway,’ which I believe made its first appearance in this blog, has now become one of the main defense talking points on the Reptile.
The focus of most commentary on the Reptile approach, however, has been on the strategy as a way to appeal to and leverage fear from the jurors. The idea is that if jurors feel that they are not just resolving a claim from an individual plaintiff, but are instead broadly addressing a widespread risk that affects them and their loved ones as well, then they will be more motivated to return a high verdict. But the fear that the Reptile approach seeks to leverage is not just focused on the jury box, it can be felt in the witness chair as well. Reptile adherents in deposition and trial cross-examination seek to leverage the fear that an unprepared witness might feel. The strategy is designed to create discomfort by asking about general principles, "safety rules," that can make witnesses believe that the easiest thing to do --- the safest thing to do -- is just to agree with the rule that plaintiff's counsel is offering. So they'll say, "Yes, a good doctor will never subject a patient to an unnecessary risk." If they don't agree, they're going to look unreasonable or uncaring. Later on, however, they'll realize that if they do agree, then they've admitted to a broad and vague principle that was not strictly met in this case. The questioner is trying to create that 'reptilian' feeling of fear, guilt, or shame. If the witness even has the unsafe feeling of cognitive dissonance (believing generally in a principle while knowing it doesn't apply in their own case), it can cause an unprepared witness to flee into the arms of Reptile, or more specifically, to make an adverse admission. To avoid that, the witness needs to be prepared. In this post, I will boil down a simple set of steps for getting the witness ready to face the Reptile without fear.