Plaintiffs prefer the idea of safety because it is intuitively understood by jurors, but also because it raises the bar and sets a standard that is more onerous than the law requires. Safety is an absolute, an ideal, and in many cases, a practical impossibility. The watchword for the Reptile is “safety.” That differs from the more appropriate language that the law prefers: “reasonable care” or “the standard of care.” That’s not a minor difference. ‘Reverse Reptile’ Can Backfire Because You’re Reinforcing the Plaintiff’s Frame In this post, I will outline those ways it could boomerang. I believe those serious reservations are warranted because of the many ways that a defendant’s use of Reptile tactics can backfire on the defendant, reinforcing some of the Reptile’s core principles and, ultimately, helping the other side. I would go farther, however, and caution that in most or nearly all cases, defendants should be very careful about embracing the language and the logic of the Reptile. The advocates of the “Reverse Reptile” do include some qualifiers, noting that the idea of tying plaintiffs and co-defendants to their own safety rules is not useful in all cases, but are generally limited to cases where there is a clear distribution of fault with some responsibility reasonably resting with other defendants and with the plaintiff. As the authors summarize the defense message in a construction case, “Safe workers must do X, Y, and Z, and coincidentally, the plaintiff (or the co-defendant) violated X, Y, and Z on the day of the incident.” The foundation is still the “safety rule” and the simple chain of yes/no questions to get a witness there. Looking at the article, it is not so much a reverse Reptile as much as it is a case of the same Reptile tactics simply being directed at new targets: co-defendants or the plaintiffs themselves. In the December issue of DRI’s For the Defense publication, a defense lawyer and two consultants ( Motz, Kanasky & Loberg, 2018) advocate the “Reverse Reptile” as a technique for the defense in many cases. Is this a case of “Fight fire with fire,” or is it more a case of “The master’s tools will never dismantle the master’s house”? One recent article sides with the first of those sayings. And one question in that search is whether defendants should become Reptiles themselves. While the approach is not new, defendants continue to search for the best ways to respond. It is now expected that many of those seeking damages in products, medical liability, and other personal injury cases, will use a persuasive approach that attempts to awaken jurors’ reptilian fear response and instinct to protect the safety of themselves and their community. The Reptile approach to trying plaintiffs’ cases has been around for a decade.
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