The Attorney's Office Tools Book Review
Reptile: R The 2009 Manual
of the Plaintiff's Revolution by David Ball & Don Keenen
Reviewed by Eric N. Stravitz
eptile refers to the reptilian part of the brain that contains our survival mechanism.1
posit that the forces behind “tort deform” hijacked
the Reptile by fraudulently portraying plaintiff ’s lawyers as a menace to society. Teir main proposition is that if you present your case so as to reach the Reptile, you can overcome the pernicious effects of “tort deform” and other biases that would otherwise keep a juror from rendering a just verdict. In short, the book is a roadmap for bringing the danger home for your jurors. To reach the Reptile, the authors suggest you focus on community safety. More specifically, that you “show the immediate danger of the kind of thing the defendant did – and how fair compensation can diminish that danger within the community.” To awaken the Reptile, Ball and Keenan believe jurors need answers to these three questions: 1. How likely was it that the act or omission would hurt someone?
2. How much harm could it have caused? 3. How much harm could it cause in other kinds of situations?
Te answers to these questions demonstrate the
level of danger in the defendant's action or inaction, the precise information jurors need in order to decide issues of negligence. Te book briefly discusses an extremely difficult products liability case involving a faulty device used in open heart surgery. Te lawyer who won that case at trial did so in part because he showed his jurors that if the manufacturers of common medical devices routinely seen in medical settings violated the patient-safety rule that was violated in the case, patients in those hospitals and clinics could be killed. Te authors also argue that a juror's Reptile won’t fight
community dangers unless you can show how the dangers can be ameliorated. Tey suggest that if allowed by your jurisdiction, you argue that a proper, fair, or just verdict will
prevent, lessen, or distance the danger. Alternatively, they 1 Yale Medical School physician and scientist Paul D. MacLean coined the phrase "Repillian brain" to refer to the "R-Complex," the oldest part of the brain.
2 David Ball is one of the foremost trial consultants in the United States and author of David Ball on Damages, the seminal book for Plaintiff ’s attorneys. Don Keenan is nationally acclaimed trial lawyer and a remarkable advocate for children.
60 Trial Reporter / Spring 2010 Te authors’ 2
suggest you explore whether “you can argue in closing the public policy underlying compensation and negligence laws – which includes public safety.” As you would expect, the book discusses the psychology
underlying jurors’ decision making. Tis psychology comes not just from the authors’3
thousands of hours of focus groups and academic studies. Ball and Keenan pay homage to Pat Malone’s and Rick
Friedman’s Rules of the Road. Tey suggest the following equation: SAFETY RULE + DANGER = REPTILE, and caution that you “never separate a rule from the danger it was designed to prevent.” When a safety rule is too specific to activate the juror’s Reptile, it should be repositioned as a special case of a more general rule. For example, while a rule that coal- mining companies are forbidden from turning off the lights while workers are in the mine applies only to the Reptiles of miners, a savvy attorney can reposition this specific regulation as “A company must not needlessly endanger its employees” or “A company is never allowed to remove a necessary safety measure.” Tis connects the specific rule to everyone with a job at which safety is an issue. Te authors discuss the six characteristics that a safety rule must have for Reptilian purposes. Tey then explain
3 Te cover of the book references its Research Team, which consists of authors and trial lawyers, James E. Fitzgerald and Gary C. Johnson.
personal experiences, but from
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