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how to deploy each rule. Tey contend that each case needs an “Umbrella Rule”, “the widest general rule the defendant violated – wide enough to compass every juror’s Reptile.” Tey explain how to take such rules and use them in cross- examination of defendants and their experts at depositions and trial. Tey then demonstrate how to work backwards in closing from the most specific rules (activating only a few juror's Reptiles) to the most general (all juror's Reptiles). Te authors also discuss how the Reptilian approach works in cases in which the standard of care is at issue, and those in which it is not technically at issue. Tere is an interesting chapter on what the authors call
“Codes” (defined as the way in which the Reptile relates to something). For example, Clotaire Rapaille, a marketing expert, found that the American Code for good health is “mobility.” Agreeing with Rapaille, the authors have found that jurors will place greater value on a lack of mobility than on pain. According to the authors, the Code for injustice is “incompletion.” Tus, in a stipulated damages case, the authors write that “when the defense says at the last minute that they’re ‘meeting their responsibility’ by stipulating to liability, point out that the stipulation is a cynical maneuver that actually makes things worse.” Te Code for trial is “opportunity.” To many jurors, “bad baby cases” are perceived as hopeless tragedies. Hence, they do not awaken the Reptile and too often result in deficient verdicts. If, however, the
trial can be positioned as an opportunity to use the horror of the plaintiff’s baby’s death as a way to make the jurors’ offspring safer, the authors’ believe that a deficient verdict can be avoided. In the next chapter, "Te Reptile as Law-Enforcer:
Harms and Losses Only," the authors tackle a common problem we encounter: jurors who do not follow the law when rendering a verdict (for example, “We can’t award that much money, it will raise our insurance rates.”). Tey suggest that we ask the Judge to instruct the jury as follows: “During deliberations, if a juror is not following the law I have just given to you, the rest of you must make sure I am told.” Additionally, they offer other suggestions to deal with this problem in voir dire, openings, examinations, and closings. Unfortunately, because we do not have lawyer voir dire in Maryland, we cannot take advantage of their voir dire suggestions. Despite this limitation, both this chapter and the next one, which discusses lawyer voir dire, are well worth reading.4 On opening statements, Ball and Keenan suggest that
you begin with the a specific rule that applies to your case embedded in the more general umbrella rule,5
explain the consequences of violating the rule. Next, they
4 It is conceivable that a lawyer trying a case in Maryland could ask a few of their suggested voir dire questions while at the bench questioning an individual juror.
5 For example: "A truck driver is required to check his brakes every 24 hours or he needlessly endangers the public. If he does not check his brakes and as a result hurts someone, the driver is responsible for the harm."
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Trial Reporter / Spring 2010 61 and then
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