The Beginning of the End for Reptile Theory in Crash Litigation

The Beginning of the End for Reptile Theory in Crash Litigation

For over a decade, the Reptile Theory continues to be a major cause in nuclear verdicts that cause commercial trucking insurance rates to increase every year.

Up to now, plaintiff lawyers have used the reptile theory to stir juries against the company instead of just the collision. Why?

Well, if they can convince the jury that the company is reckless, then the jury will award large amounts of money for mental anguish, pain, and suffering. The lawyers may also receive a much larger payment for their cut of the verdict.

In 2014, Werner Enterprises was charged to pay $90 million when the driver was found not at fault for the accident and it was determined that due to Werner policies, the driver should not have been on the road at the time of the accident given weather conditions.

In fact, today, many companies can spend hours of deposition over an accident that occurred, and not even one of those questions be about the accident itself, but about the company.

However, did you know that reptile theory arguments are prohibited in some jurisdictions? There is even a Texas state law making it harder for lawyers to use the reptile theory.

This just may be the beginning of the end of this corrupt tactic.

What is the Reptile Theory?

Reptile Theory is a tactic used by the plaintiff’s bar to paint a trucking company as a bad actor without necessarily focusing on the facts of the crash the trial is about.

Instead, they want to talk about safety records, company policies, and other employees, not the fact that their client walked away uninjured from the accident or caused the collision.

The theory, first introduced in Reptile: the 2009 Manual of the Plaintiff’s Revolution by David Ball and Don Keenan, started a movement that has evolved into seminars, retreats and law review articles aimed at understanding, exploiting and counteracting our “Reptile” brains.

“We like to believe we are run by logic and emotion. Sometimes we are. But when something we do or don’t do can affect – even a little – our safety or the propagation and safety of our genes, the Reptile takes over. If your cognitive or emotional brain resists, the Reptile turns it to her will. The greater the perceived danger to you or your offspring, the more firmly the Reptile controls you.”

The Reptile Theory focuses on safety and security issues to subtly encourage jurors to envision themselves in the same situation as a plaintiff.

The Reptile Theory allows plaintiffs’ attorneys to sidestep the Golden Rule, or where arguments had to rely on the evidence presented, while making a similar impression on jurors. The attorneys start by establishing safety rules, and then demonstrating how a defendant’s unreasonable actions violated the rules to put a plaintiff in danger.

Recognizing the Reptile Theory in practice

Attorneys who practice the Reptile Theory try to establish safety rules from the beginning or complaint-phase of a trial in the form of:

  • statutes
  • employee handbooks, or
  • industry safety standards

Then, during the discovery-phase, a plaintiff’s attorney attempts to box a defendant into admitting a violation of these rules, rather than focusing on the plaintiff’s injuries or how the accident occurred and often includes:

  • requests for industry standards
  • requests for internal operating procedures
  • any evidence of prior similar incidents

During the deposition-phase, attorneys may ask hypothetical questions to employees or corporate representatives that establish a rule with which no rational person would disagree, such as whether a person who causes damage should pay for it, forcing a defendant to agree to a standard of reasonableness.

For the trucking industry, a defendant may be boxed in these examples:

  • drivers with prior accidents being allowed to continue driving
  • drivers-in-training driving in severe weather conditions
  • truck inspections outside the recommended timeframes
  • cell phones in the cab of the rig being an inherent distraction
  • tread wear less than 100% being an inherent hazard that will contribute to an accident’s severity

In trial, an attorney presents these safety rules to the jury, with a focus on why the rules should have prevented the accident.

Closing arguments nudge jurors to conclude in their minds that these safety standards were intended to protect the larger public as well, and ultimately, the jurors themselves.

Laws Preventing Reptile Theory

Before 2021, there was no statutory authority on Reptile Theory and case law is so scarce that many states have no published opinions that specifically apply to Reptile Theory.

However, a new Texas law limits the Reptile Theory strategy in crash litigation and will apply to any personal injury or death lawsuit filed after August 31, 2021,involving a commercial vehicle.

With this law, Texas joins Montana, West Virginia, Louisiana, and Missouri in becoming the latest state in recent months to pass lawsuit abuse reforms.

The new law allows a defendant trucking company to request a two-phase trial:

  1. The first phase would be used to determine liability for the crash itself and the amount of compensatory damages awarded.
  2. The second phase, if deemed necessary, would be used to determine any negligence from the motor carrier, such as driver training or equipment problems, and the amount of exemplary damages awarded.

Simply, the law requires a jury to find a trucking company or truck driver liable for a crash in the first phase before exemplary damages can be sought in a civil case.

The standard for awarding punitive damages is high in Texas, so many defendants should be able to avoid Phase 2 of the trial because the plaintiff simply will not have enough evidence to warrant going through Phase 2.

If the trial judge allows the plaintiff to proceed to the second phase, the plaintiff may be allowed to present evidence about the company’s safety record and employment practices that are not related to the specific collision that is the subject of the lawsuit.

This information can be used as evidence that the defendant acted recklessly and should be punished for punitive damages.

How will the law affect the trucking insurance industry?

Eventually, the new law in Texas should have a positive impact on insurance rates the state. In fact, a provision in the law requires the Texas Department of Insurance to conduct a six-year study on the effect of the law on insurance rates.

However, since the new law “allows a defendant trucking company to request a two-phase trial”, it is important for defendants and insurers to encourage that qualified cases filed after August 31, 2021, use the new law.

If trial courts refuse to properly apply the law, defendants should take cases up on appeal.

For states that do not have any written opinions on Reptile Theory, such as New York, a defense counsel can rely on more general rules disallowing “inflammatory” and “prejudicial” remarks, or appeals to the jurors’ emotions and passions. 

Eventually, the law will catch up and provide more specific guidance on Reptile Theory.

If the law in Texas is shown to prove effective, expect other states to pass similar laws in the coming years.

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