In addition to a solid grasp of admissibility logic, trial attorneys must develop their own advocacy approach and style. In the personal injury world, the Reptile theory of advocacy is an oft-utilized approach that emphasizes community and personal safety. It proposes that safety concerns, housed in the reptilian portion of the human brain, are triggered by evidence and argument that a defendant’s conduct threatens that safety. It’s a powerful approach that has arguably led to substantial awards and sometimes nuclear verdicts. The Reptile theory is on the defense bar’s radar, and it has pushed back through pretrial motions in limine to exclude Reptile-related evidence. These arguments usually conflate the Reptile theory with the “Golden Rule”, the prohibition against arguing to jurors that they should put themselves in the shoes of the plaintiff.
I’ve seen Reptile theory and its variations in action, and I have no doubt about its persuasive power. My big question is whether courts will actually let plaintiffs’ attorneys use this theory. I’ve pulled cases from the past two years looking for recent trends. The record is mixed and somewhat favorable to defendants. Here are some examples of outcomes…
Cases allowing Reptile evidence/arguments: In R.V. v. Walmart, Inc., 2024 U.S. Dist. LEXIS 130057 (C.D. Cal. 2024) the court allowed use of the theory with the precaution that neither side could misstate the applicable law.
Cases prohibiting Reptile evidence/arguments: Griffin v. Pet Sense, LLC, 2024 U.S. Dist. LEXIS 67284 (E.D. Ark. 2024), Scardasis v. Wal-Mart Stores E., L.P., 2023 Fla. Cir. LEXIS 4411 (Fla. Circuit Court, Putnam County, 2023), Cranska v. UMIA Insurance, Inc., 2024 U.S. Dist. LEXIS 5565 (D. Mont. 2024) and Sudeith v. E & J Trailer Sales & Services, Inc., 2024 U.S. Dist. LEXIS 52756 (E.D. Ky. 2024). The Sudeith case stands for the proposition that use of the Reptile theory is unduly prejudicial if liability is already established.
Cases declining to rule in limine and deferring to trial: Tijerina v. Alaska Airlines, Inc., 2024 U.S. Dist. LEXIS 12952 (S.D. Cal. 2024), Martin v. Polaris, Inc., 2024 U.S. Dist. LEXIS 134785 (E.D. Tenn. 2024), Moribe v. American Water Heater Co., 2024 U.S. Dist. LEXIS 29801 (D. Hi. 2024), Columbus v. Clean Arbors Environmental Services, Inc., 2023 U.S. Dist. LEXIS 156861 (M.D. Ga. 2023), and Jolly v. As, 2024 U.S. Dist. LEXIS 149302 (M.D. Fla. 2024). The thrust of these decisions is that the court wanted to hear the evidence in context. The willingness of trial judges to allow Reptile evidence and arguments is very much a moving target. Plaintiffs’ attorneys cannot assume that they will be allowed to use the Reptile or its variations. The above is just a sampling of possible outcomes and lawyers on both sides must research whether their trial judge has any track record on this issue. Absent that, trial counsel should consider filing a motion in limine to address the issue as far as possible beforehand to plan around an adverse ruling.
