From 2012 to 2019, the number of cases with verdicts over $1 million increased by 335% compared to the six years prior. Since 2010, the average size of a crash-related verdict has risen by 967%.
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 these trends, understanding reptile theory is crucial to their success.
In This eBook
So what is reptile theory, exactly? This eBook will seek to teach readers:
With this information, fleet professionals will be able to implement strategies that reduce liability before and after a crash, all while making real advancements to their on-the-ground safety.
#1: The Definition and Origins of Reptile Theory
Before fleet professionals can prepare to face reptile theory in court, they first need to understand what it is.
Reptile Theory, Defined
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.
The Origins of Reptile Theory
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. Notably, he suggested reptile theory could be helpful for plaintiff’s attorneys operating in civil trials.
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.
#2: How Reptile Theory Is Deployed Against Fleets
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. Against fleets, this strategy unfolds in three parts:
Generate Fear of the Defendant From the Beginning
The plaintiff’s attorney begins by shifting the focus of the trial from the facts of the incident and the individual impacted 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.
Notably, the purpose of this action is not only to move the jury to support their side but also to convince them that additional, punitive damages should be levied against the fleet, on top of the typical compensatory ones. In many circumstances, the goal of the plaintiff’s attorney is to convince the jury that they must act against the defendant fleet, lest they put the public at further risk.
Raise the Minimum Standard of Care
Next, the plaintiff’s attorney attempts 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,” often called the “reasonableness standard.” 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 or more strident 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 attempt to claim that a fleet without such a program should have implemented one and so does not live up to the highest safety standards.
In practice, this entails a plaintiff’s attorney using expert witnesses, regulations, policy handbooks, and more to argue that a fleet’s hiring, onboarding, training, or retention standards do not meet a rigorous definition of reasonable care. Importantly, they will use these resources to benchmark the defendant fleet against best practices exhibited by other fleets.
This can also include disparaging a fleet for failing to take seemingly tangential actions, such as failing to equip a vehicle with the latest technology. While some safety technology is not mandated, a plaintiff’s attorney can argue that choosing not to implement it was negligent.
Provide Evidence the Defendant Did Not Meet the Heightened Standard
The deposition is the foundation of this aspect of reptile theory. The plaintiff’s attorney asks members of the fleet questions in an attempt to establish that there was a “safety rule” in place to protect the community from the danger the fleet posed. They begin by asking a series of general safety questions, including:
These types of statements are difficult for the witness to deny without damaging their credibility. Next, the plaintiff’s attorney links the facts of the crash and the practices of the fleet to the “top priority” status a witness expressed. Example questions include:
- Immediately after a crash, the safest thing to do is secure the scene and notify authorities, right?
- If a driver had seen an increase in telematics alerts in recent months and weeks, that would be a sign of risk, correct?
- Documentation of a driver’s previous training must be thorough. Otherwise, the motoring public could be put in danger, right?
Finally, the plaintiff’s attorney then presents facts about the crash, driver, or fleet’s actions that do not align with the statements they had just made. These questions may look like this:
- You had received telematics alerts concerning this driver learning up to the crash but failed to take action on them, correct?
- Your actions exposed the motoring public to risk, right?
Using this strategy, an effective plaintiff’s attorney can instill a sense of threat in the jury, demonstrate that the fleet understands it must promote safety, and imply that they did not do everything they could to prevent the crash they are being sued over. With this method, even some of the safest fleets can fall victim to a Nuclear Verdict if they do not have more than reasonable safety practices.
#3: Proactive Strategies to Combat Reptile Theory
To combat reptile theory, fleets can go on the offense against the risk within their organization and show that they take safety seriously and always try to intervene before a crash occurs.
Strategies to Go On Offense Against Your Liability
Organize and Analyze Your Driver Data
Some of the most impactful evidence a plaintiff’s attorney can wield against a fleet is their driver data. By sifting through a fleet’s training, telematics, HR, or other data, they can find one or several oversights, misentered data, or omissions that could indicate shoddy or inconsistent safety practices. In response, fleets can employ technology that organizes and analyzes their driver data, giving them a clear picture of what their data is telling them and giving them the confidence to know they follow their internal best practices.
Standardize and Document Your Procedures
When a driver has a severe telematics alert or minor preventable incident, there should be a clear escalation process in place that a fleet follows to address that event. Similarly, it is essential that a fleet documents every step of the process and follows their procedures to the letter, or else a plaintiff’s attorney could use a fleet’s inconsistency against them. For this reason, it is also crucial that a fleet’s escalation process or other procedures are not overly complicated. This can help ensure they are followed every time.
Proactively Address Driver Risk
Under reptile theory, if a plaintiff’s attorney can potentially claim, “You knew this driver could have been at risk, but you didn’t intervene,” they will. The best defense is to deny them the ability to make that claim in the first place. When a driver displays behaviors that a plaintiff’s attorney could point to in court, safe fleets will assign a corrective action or otherwise intervene before a crash occurs.
Go Above and Beyond Compliance
There are few arguments more compelling than saying, “We did more than was required of us because we care about safety more than anyone else.”
Example: Under the FMCSA BASICs system, a fleet enters the intervention threshold for the crash indicator BASIC when they hit a percentile of 65%. Fleets can set a more strict policy to conduct an internal investigation, level set, and refocus on safety procedures based on the results of that investigation after a percentile increases by 10% or more.
Make Safety Everyone’s Priority
After a crash, every member of your fleet is on trial. Suppose a fleet runs a well-equipped and respected Safety department, but the actions of their Operations department do not perfectly reflect their safety policies. In that case, that fleet is at risk. Fleets can improve their safety culture and ensure that safety culture is documented and that those expectations are lived out in everyday practice to combat risk.