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The Plaintiff’s Attorney’s Playbook: Learn the 3 Steps of Reptile Theory

Est. 3 min read

For fleets looking to shore up their liability in the wake of rising Nuclear Verdicts, understanding reptile theory is crucial to their success. Below are three actions a plaintiff’s attorney uses to employ reptile theory against a fleet:

#1: Generate Fear of the Defendant From the Beginning

Plaintiff’s attorneys begin a trial by shifting the focus of the trial from the facts of the incident and the plaintiff to the community as a whole. For example, they may introduce testimony or statistics asserting the impact truck crashes have on the general population. This gives jurors the impression they are protecting the community’s safety, including their own and their loved ones’

By playing into the reptile brain’s base fears, the hope is that the jurors’ gut instincts will override their more logical, less emotional brain to protect themselves and the public.

#2: Raise the Minimum Standard of Care

Next, the plaintiff’s attorney will attempt to raise the “minimum standard of care” expected of a fleet to prevent a crash. Typically, this standard is “what a reasonable fleet would have done to prevent a crash.” However, because “reasonable” has a fairly broad definition, the plaintiff’s attorney will attempt to provide testimony and evidence that “reasonable” has a much stricter definition than most fleet professionals would understand it to have.

Example: While not every fleet has implemented a continuous, year-round coaching program, many of the safest fleets have. As a result, plaintiff’s attorneys can claim that a fleet without such a program should have implemented one and so does not live up to the highest safety standards.

#3: Provide Evidence the Defendant Did Not Meet the Heightened Standard

Once the plaintiff’s attorney has shifted the focus of jurors toward their own safety and raised the minimum standard of care, they will try to establish that a fleet has not met the newly-raised standard of care. While doing this, they will also try to provide testimony and documentation that prevents a jury from gaining sympathy for the fleet. 

How does this work in practice? The plaintiff’s attorney asks members of the fleet questions in an attempt to establish that the fleet violated a “safety rule” that was put in place to protect the community from the danger the fleet posed. For examples of these questions, read our full eBook “Reptile Theory: A History and 5 Ways to Win at Trial.”

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