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Quick Answer: What is Reptile Theory?

Est. 2 min read

While many factors have contributed to the rise of Nuclear Verdicts, the most prominent has been the spread of “reptile theory” as a strategy employed by the plaintiff’s bar. For fleets looking to shore up their liability in the wake of worrying trends, understanding reptile theory is crucial to their success.

Unfortunately, while there is much discussion of reptile theory in the trucking industry, few articles lay out a clear definition. So what is reptile theory, exactly?

The Formal Definition of Reptile Theory

At its base, “reptile theory” is a trial strategy that seeks to use the primal, inherent, and often subconscious instincts and fears of jurors against defendants. Rather than focusing on creating sympathy for the plaintiff (the claimant), the theory emphasizes the alleged failures of the defendant (the fleet) to keep the plaintiff and the community, including the jurors, safe.

Ultimately, the goal of reptile theory is to convince the jury that by assigning the defendant damages exceeding the actual harm caused, they will punish a bad actor for their negligent behavior and keep their community safe. This strategy is how a crash that results in, for example, $200,000 of harm to a plaintiff can lead to a $10+ million verdict.

Where Did Reptile Theory Come From?

In the 1960s, neuroscientist Paul MacLean introduced a theory of the mind that held that the brain could be divided into three regions, the oldest of which was responsible for human’s primal fears, urges, and bodily functions. He called it the “reptile brain.” Later, Psychologist Clotaire Rapaille developed the theory and applied it to a number of successful national marketing campaigns, including those of Nestle and Chrysler

Less than a decade later, Don Keenan, a trial lawyer, and David Ball, a jury consultant, published their book Reptile: the 2009 Manual of the Plaintiff’s Revolution and took the plaintiff’s bar by storm. In it, the two authors claimed the theory could be used against defendants who could have a potential impact on every single juror—healthcare providers, manufacturers, and anyone who transports goods on public roadways

Having specifically mentioned commercial motor carriers as applicable targets of reptile theory, the strategy rapidly began cropping up in crash-related trials across the country.

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