It turns out that insurance defense lawyers are putting at least some effort into finding new ways to try cases. They have a magazine, For the Defense, and an associated blog (sadly uncommented-on). Kathy Cochran, writing on the blog, takes note of David Ball and Don Keenan’s Reptile:

This book posits that jurors must be convinced that a verdict for the plaintiff will make the community safer because it will prevent the defendant or others similarly situated from harming the juror, his family, or someone close to him.

As defense lawyers, we need to recognize this for what it is. It is an attempt to resurrect Golden Rule arguments, which are usually impermmissible. Jurors are not to be asked to put themselves in the place of a party and make a judgment based on that virtual reality. Ball and Keene provide advice to their readers on how to circumvent this evidentiary rule. They provide numerous examples of tactics that will appeal to the “reptilian” brains of jurors, asking them to put themselves in the same position as the plaintiff – a position of jeopardy that calls upon survival instincts.

. . . .

I would suggest that defense lawyers obtain and read this treatise so as to recognize these “revolutionary” arguments. I invite anyone reading this blog to comment with ideas or case law that might undermine this new courtroom strategy.

One idea to undermine the “Reptile” courtroom strategy was demonstrated by two insurance defense lawyers in DeKalb County, Georgia last month. Trying a case against Don Keenan (one of the authors of Reptile), the defense lawyers (W. Winston Briggs and Matthew G. Moffett):

read from the book and referred to it during closing arguments.One of their PowerPoint slides read, “Let’s see if we can scare them/It could have been anyone killed out there … because it’s a public danger there … but if you give us $ that will somehow eliminate this danger/They call this their ‘reptile’ strategy.”

(Law.com)

[Update: Matthew Moffett writes:

In our GA trial, we never read to the jury from attorney Don Keenan’s reptile book.  In fact, we never had that book with us in the courtroom and never mentioned that Keenan wrote that book.

What we had with us at trial was another book edited by Keenan and containing a transcript of one of his sample closing arguments for a plaintiff.  We never told the jury Keenan edited that book nor did we display it to the jury.  Rather, we told the jury that Mr. Keenan might make an argument on damages like this (then we read the following from his closing argument transcript):  “there are eight quarterbacks that make more than $5,000,000 a year to carry a football” and “there are people that pay $5,000,000 for a racehorse or a painting.”  We told the jury that such arguments and comparisons had nothing to do with the case they were hearing.

While we did mention the strategy called reptile, we never talked about that book or that Keenan wrote it.

Thanks a lot, law.com!]

I wrote in Lizards Don’t Laugh about getting jurors out of their reptile brains and into their higher brains by revealing the surprises in the case and making the jurors laugh (laughter being the physiological signal that we are no longer being governed by our reptile brains). There I wrote:

First, the government’s Reptile Trial is a Things-That-Go-Bump-In-The-Night Trial. Things that go bump in the night can seem silly in the light of day, and the government’s perceived threat can seem silly to the mammalian brain.

I don’t, as a matter of principle, side with the insurance defense lawyers—like prosecutors, they’re representing institutions against humans—but I’m not shy about learning from them. What Briggs and Moffett demonstrated in DeKalb County was one way to shine light on the reptile trial: name it.

Waving Keenan’s book around in the trial is improper argument for a slew of reasons (outside the record, for a really big one), but the principle of putting a name on the adversary’s strategy—pulling back the curtain and naming the little man pulling the levers—is a sound one.

Our lizard brain evolved to deal with immediate threats, things that have to be dealt with right away—the crack of a twig in the night, glowing eyes in the dark, the wind of a stooping hawk. When we have enough information and leisure time put a name on the threat we take it out of the purview of the reptile brain and hand if off to be processed and dealt with by our higher brains, with their facilities of planning, critical thought, and compassion.

When we name the adversary’s strategy, we invite the jury to respond, in other words, as human beings.