In an increasingly contentious legal climate, the use of ‘reptile theory’ by plaintiff attorneys has been a driving factor behind substantial jury verdicts. The procedure, though contentious, has proven effective in its primary goal – securing victory for the plaintiffs. Nevertheless, a closer examination of nuanced manoeuvring and strategic lawyering can reveal potential avenues to counteract this approach. Be Smarter Than a Lizard: Overcoming Reptile Theory in the Discovery Phase dives into this matter.
At its core, Reptile Theory is a strategy predominantly used by plaintiff attorneys to awaken a juror’s primal instinct to protect their community from harm. This is done by characterizing the defendant’s actions or inactions as dangerous or harmful to society. As a result, the aim becomes not just punishing the defendant for the case at hand, but also protecting the community by preventing future occurrences.
However, combating this strategic approach is possible. Studied and deliberate lawyering may circumvent the repercussions of reptile theory. Firms need to prioritize understanding what triggers this reptilian response among jurors and learn how to counteract it effectively. Surveying existing case law and understanding the local court’s experiences and temperament towards the reptile theory might be beneficial in this regard.
Law firms are advised to focus on strategic storytelling. Transformative, humanizing narratives about the defendant may succeed in countering the ‘dangerous community threat’ narrative employed by the plaintiff’s attorneys. Moreover, lawyers must understand the importance of the early stages of litigation, particularly the discovery phase. Carefully considering how to respond to discovery requests can minimize the chances of incendiary information falling into opposing counsel’s hands.
Despite the advantages this might unveil for plaintiff attorneys, the legal system’s inherent checks and balances provide the potential for a level playing field for legal professionals across all practice areas. Keen awareness, robust preparation and deep understanding of both sides’ motivations could ensure that law firms are always one step ahead, conceivably becoming smarter than the proverbial lizard.