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How to Slay the Reptile Theory at Trial with an Effective Opening Statement

by ExcelasSeptember 30, 2016

Reptile Theory is ubiquitous, and it’s here to stay. With many plaintiffs’ attorneys now employing this theory in their trial strategy, defense attorneys must face the challenge of effectively defending against it.

Plaintiffs’ attorneys start using Reptile Theory before a trial even begins as a strategy that essentially primes jurors into becoming angry with the defendant and therefore siding with the plaintiff. In personal injury and medical malpractice cases, the Reptile Theory provides a plaintiff framework focusing on how the defendants failed to prevent the alleged injury. The theory is meant to evoke a gut reaction by “scaring the primitive part of jurors’ brains and utilizing (or manipulating, depending on your perspective) jurors’ fears,” according to psychologist and trial consultant Dr. Ann Greeley.


The Three-Pronged Approach to Slaying the Reptile  

As jury expert Bill Kanasky has described herehere and here, there are three points in the litigation process at which defense attorneys can take a stand to defeat the Reptile. Two such pivotal moments are at deposition and witness testimony, and voir dire. The third and final prime opportunity comes during the opening statement.

The opening statement is a defense attorney’s first opportunity to cohesively rebut the plaintiff’s theory of the case. And the most effective tactic for the defense is to present jurors with other sources of blame, says Kanasky. Thorough and detailed investigation will allow a defense attorney to present an opening statement that provides a colorful narrative of how the plaintiff was actually responsible for incurring the injury in question, for example, or plant doubt in the jurors’ minds by outlining an alternative causation for the plaintiff’s injury.  

Voir dire is generally a defense attorney’s first opportunity to come into contact with jurors and begin laying the foundation for the themes that are critical to the defense’s case. With strategic theme(s) already primed in the jurors’ minds, shrewd attorneys can now carry this tactic over to their opening statements, using these same themes to place a “cognitive lens” through which the jurors will view everything else that follows in the trial.


Putting the Approach into Practice

An example of this one-two punch for the defense is to introduce a theme during voir dire by asking jurors, “Who here feels that a patient has a responsibility to follow their doctor’s orders?” Then, at trial, the jurors are primed for the defense attorney to open their case by describing a pattern of patient non-compliance that ultimately led to the plaintiff’s alleged injury. This has the effect of both showing the plaintiff’s own fault in incurring the alleged injury, while simultaneously suggesting that the injury was caused by something or someone other than the defendant.  

Timing is Everything

Crafting an opening statement is crucial to effectively battling the Reptile. Timing is key when presenting the “cognitive lens” and telling the defense’s story (i.e., plaintiff culpability or alternative causation). In fact, the first three minutes of the opening are the most critical moments of the statement, according to Kanasky, due to the primacy effect (read more in the articles linked above). In other words, jurors perceive information shared in the first few minutes of the opening as more valuable and more meaningful than information shared later. That’s why defense attorneys should not waste the precious first moments of their openings by introducing themselves and their clients, thanking jurors for their time, or reminding jurors of their civic duties. Instead, the defense must be prepared to use those three minutes wisely by launching into a compelling theory of the case.

Create a Powerhouse Theme, and Stick to It

Taking a defensive stance during the opening statements is, perhaps, the biggest mistake the defense can make. Simply rebutting the plaintiff’s attorney’s opening statement allegations is not enough to slay the Reptile. Plaintiffs’ attorneys generally provide their own themes (i.e., the ideas of safety rules, violations, and danger that are central to the Reptile Theory) in their opening, and defense attorneys may feel compelled to refute the plaintiff’s points rather than presenting their own case. It is imperative that the defense suppress their instinct to rebut the plaintiff’s arguments, because the more the plaintiff’s themes are discussed, including during rebuttal, the more the jury focuses on them and sees them as central to the case.

Plant Doubt in the Jurors’ Minds with Alternate Explanations for the Plaintiff’s Injuries

The concept of causation matters more than you may have considered, according to Kanasky. The best way to determine causation is through medical record review.  Medical review is about so much more than which medications were administered, or which tests were ordered. Of course, any medical review will identify those things, but it should also bring to light all potential alternate contributors to an adverse outcome, whether it’s clinical diagnoses, past medical history, patient non-compliance, family involvement, etc.—details and information that only someone with a clinical background or experience will recognize as important.

A medical chronology is a valuable tool for understanding the entire timeline of a patient’s clinical course. But the defense must focus its topic chronology to zero in on the specific issues that are the real cause(s) of the plaintiff’s alleged injury. A topic chronology pulls out the most useful information from the larger chronology, putting all of the information that is most relevant to your defense strategy at your fingertips, in a more concise document than the overall chronology. For example, if the theme is one of plaintiff culpability (i.e., the plaintiff had a responsibility to follow the physician’s orders but failed to do so), you should have a chronology that focuses on the portions of the medical record where patient or resident instructions or care plans were delivered, and patient non-compliance is noted. Make the connections between the non-compliant behavior and its results. Use the evidence in the record to show that the defendant(s) met the standard of care, but the individual failed to follow through on his or her responsibilities.

The fact is, opening statements—and really, the entire defense of the case—are not about defending against the issues presented by the plaintiff’s attorney. On the contrary, their purpose is to present the defense’s own story: the real, factual account that is found in the medical record. Essentially, there will always be something else to point to, and it’s up to the defense to examine the medical record and find those facts. Then, make the findings the focus of the opening statement, beginning with the very first sentence.

Need a clinical eye to determine the underlying medical causes in your case? See how our medical chronologies and expertise can help you zero in on what matters most.

Defense Tactics | Litigation Trends

Comments (1) -

Jennifer Bennett
Jennifer BennettUnited States
12/7/2016 4:27:40 PM #

Very well written and well thought out article!


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