As a claims adjuster, have you ever had a situation where a claim was clearly defensible, yet have the case turn on a single bad deposition? Defense counsel tells you your witness was fully prepared and went into the deposition confident that the truth would not only bolster but strengthen your case. Yet afterwards you learn the witness ended up making admissions creating significant issues and problems for your case. This is becoming all too common. It is likely that in this situation your witness fell prey to a relatively new tactic commonly known as "Reptile Brain".
Over the past several years a growing number of attorneys have employed a new tactic against defense witnesses with significant success. This strategy relies upon a dated medical theory as to how the brain reacts to fear stimulus and seeks to translate that into significant jury awards. The "2009: The Manual of the Plaintiff Revolution" was developed by an attorney, Don Keegan, and a jury consultant, Dr. David Bell. Their formula is simple: SAFETY RULE + DANGER = REPTILE. Kennan Ball Trial College claims multiple billions of dollars in awards and settlements have resulted from attorneys using this approach.
The origins of this approach are based upon work done in the early 1960's by Dr. Paul McLean and others who were attempting to explain the general function of various areas of the brain. Dr. McLean developed the 'Triune Brain' model for the structure of the brain he divided into three basic stages of development of the structure of the brain: the Reptilian Complex, the Paleomammalian Complex (Limbic) and the Neomammalian Complex (Neocortex).
It is on these basic neurological systems that the Reptile Brain approach was developed. It is also sometimes referred to as the Lizard Brain approach, clearly alluding to the fact that lizards only have the basic instinctual response abilities. Specifically, the plaintiff attorneys wish to focus the jury on those messages which would be processed at the lowest possible level, the reptilian brain, specifically intended to create fear, stress and fight or flight responses. This is done through creating a generalized notion that by allowing the defendant to disregard safety rules is placing them (the jury) and the public at large in immediate danger. In creating this feeling of danger, they seek to have the jury respond in a noncritical non-rational defensive reaction. As claim professionals, we are trained to think and respond rationally to the facts of a case. The Lizard Brain attack goes in the opposite direction, by targeting the lowest (non-rational) function of the brain.
How does this attack work? The Reptile Brain approach is dependent upon an overarching Safety Rule which must be applied to the given loss. This rule must be sufficiently broad to cover not only the subject loss but a broader segment of safety concerns to the general public. According to Keenen and Bell, there are six characteristics to the Safety Rule:
- It must prevent danger;
- It must protect a wider population than just the plaintiff;
- It must be stated in clear understandable language;
- It must explicitly state what a person must (or must not) do;
- It must be practical and easy for the jury to have followed; and
- It must be one that the defendant will agree to, or in failing to do so, reveal himself to be careless, dishonest or stupid.
As an example, in the case of a product liability claim, the Safety Rule must be very broad and general enough that deposition or trial witnesses have no choice but to agree to it. Questions such as:
- The safety of the user of your product must be your number one concern, wouldn't you agree?
- Your company has a duty to make sure its products are completely safe, correct?
- It would be wrong to unnecessarily put others in danger, correct?
- You would agree that design codes are in place to protect the public and ensure their safety, correct?
Once the witness has freely agreed to such a broad Safety Rule question then the questions begin to narrow down to more specific situations regarding the particular loss at hand. In one specific case where a worker at a foundry stepped into a trench of molten metal, the claim against the engineering company led to an admission that their design should have included guardrails, even though the area where the loss occurred had already existed and the defendant's contract specifically excluded that area from the design. Despite having no duty of design for this area, the plaintiff attorney lead the insured witness in to a series of damning admissions. Plaintiff counsel was able to get the defendant to agree that as engineers, safety is a required component of every design. (Lizard Brain = The Safety Rule) He then asked, regardless of who was responsible, would guards surrounding the hazard have created a safer area for the worker? As the engineer, you have a duty to make your design as safe as possible, correct? You would agree that no design should put workers at undue risk? The questions start of as general questions then focus more narrowly on the individual defendant. All of these questions were specifically intended to (and did) lead the witness to unintended admissions. If he had said no, he would have looked heartless and self-serving, but were unerringly designed to illicit the devastating admission they could have included guards which would have prevented the plaintiff from stepping into the molten metal. All this despite the fact that this was clearly not included in the scope of their work.
The strategy is then to confirm bias in the jury with regard to the Safety Rule. Anchor the jury on this bias through the repeating of admissions of the defendant and create psychological distress in the jury. Stressing the certainty of injury because the defendants failed to protect against a hazard they were well aware of or created. They negligently or worse, intentionally, failed to protect individuals and/or the public from such hazards. Thereby making the Safety Rule violation a danger to the public rather than just to the individual plaintiff. This then becomes a centerpiece of the plaintiff's closing arguments in trial. Repeatedly attacking the violation of the safety rule, stressing how the defendant admitted to endangering all the workers, not just the plaintiff, and making clear to the jury only they can remedy this situation by finding against the defense.
This is then folded right into the issue of damages. Claim professionals are trained to evaluate damages on the basis of what it takes to make the plaintiff whole. The Lizard Brain attack stresses to the jury that the only way to protect the community (and themselves) from such negligent activities, they (the jury) must award damages which are so significant that they prevent the defendant from engaging in such violations of the Safety Rule, and ensure that the defendant will never engage in such egregious activities again. They seek to empower the jury to be the protector of the public at large. Attorneys using Lizard Brain attacks will tell the jury that small awards have no impact on protecting the community. Only very large awards will cause the defendant to focus on the safety of the community rather than their own special interests. Thus, they seek to gain a crushing victory on a case in which the defendant otherwise had not responsibility.
Fortunately, there are ways for claims professionals and defense counsel to counter such tactics. The first and most important defense is to know this tactic exists and to recognize it when it is being employed. The claim professional should make sure that any witness who is going to be deposed on liability in the case is at least prepared by the defense attorney to recognize Safety Rule questions and is ready to properly respond in a way which does not allow the plaintiff attorney to create Reptile Brain responses for the jury.
The first step in defeating this tactic is for the witness to recognize that liability is not as simplistic as the plaintiff' s Safety Rule questions would make it seem. A question such as apparently innocent as "the safety of the general public is your number one responsibility would you not agree?" is actually a critically strategic question. The witness needs to be on the lookout for such questions. Their answer to such questions should be to point out that the question is both hypothetical and too simplistic to respond in any meaningful way. Thus, by forcing the attorney out of his role of creating a simplistic Safety Rule. Safety is not a simple matter, but rather is complex in its nature both in design and application. Allowing an attorney to reduce safety to a simplistic phrase is a disservice not only to the defendant but to the public in general. Also, be aware that simply blocking the first attempt will not stop the attorney from rewording the question numerous times. Questions like "shouldn't safety always be a concern?" or "the public should never be put in unnecessary risk, don't you agree?" Defense needs to make sure the witness is ready for this multiple question effort to create the Safety Rule.
Ultimately, it goes back to the issue of preparation and recognition. If the defense attorney and the witness are prepared for Reptile Brain set up questions and can continually redirect the plaintiff attorney back to the facts of the case and deflect generalized safety questions, the plaintiff attorney has little opportunity to create the type of reflexive responses in a jury that they are seeking to build.
Defense counsel should be prepared to plead motions to block the plaintiff attorney from raising in his case for damages, the protection of the general public rather than the plaintiff. That is the purview of punitive damages and assuming that punitive damages have not been pled then the plaintiff attorney should not be blocked making any such arguments.
Also, if the plaintiff has been successful in obtaining Safety Rule admissions from witnesses prior to trial, it may be necessary to explain to the jury specifically about the Reptile Brain tactic. Defense should point out to the jury that they are not reptiles, they are rational thinking individuals and should not be misled by such nefarious tactics. They should recognize these tactics for what they are, and attempt to lead the jury away from the facts and to react emotionally rather than intellectually.
Claims professionals need to be not only acquainted with this tactic but to have discussions with their defense counsel and be assured that counsel is also aware of this dangerous tactic. Litigation managers should strongly consider having joint seminars with claim professionals and their defense attorneys, so that there is a united effort to prevent opposing counsel from taking advantage of this methodology.
While some defense counsel are well versed in the Lizard Brain attack; at the end of the day, the best defense is the claims professional making sure that defense counsel recognizes and prepares witnesses prior to deposition in such a fashion as to deny the plaintiff attorney the opportunity to create the Lizard Brain tactic in the first place.