Traditionally, personal injury attorneys would present evidence they believed would elicit sympathy in jury members, thereby leading to compensation for their clients. For defense attorneys, this meant gathering evidence that supported the facts of the case, thereby refuting a need for compensation in the end.
Unfortunately, this is no longer the case in courtrooms across the nation anymore, including here in New York. That's because personal injury attorneys have started using a new tactic, known in the legal community as the "Reptile Theory." Considered more effective than its counterpart, the "reptile" tactic is creating real problems for defense attorneys, especially in big-dollar cases like those against trucking companies.
How does the reptile theory work?
Instead of trying to elicit sympathy, which can be difficult if a jury cannot empathize with the plaintiff, the reptile theory tries to get jury members angry at the defendant. The evidence presented primarily tries to elicit fear by showcasing safety concerns, what the defendant allegedly did wrong and the threat the defendant - in most cases a company - poses to the public as a whole.
This theory relies heavily on psychology, which is not something most jury members will consider. They might not even realize that their decision to award compensation is based mostly on how much they want to punish the defendant and less on the actual facts of the case.
Recognizing and defending against this tactic
It's not enough to be able to recognize when the "Reptile Theory" is at work; defendants must also know how to defend against it as well. Defendants should first consider the information they are providing to the plaintiff, including policies and procedures used by the company, and testimony from the driver accused of being at fault.
Next, consider the offer of a settlement and the consequences of accepting. If you accept simply to save your reputation, you may find it will hurt you more in the long wrong. If you do not settle, know that a jury trial may be possible.
To properly defend against the "Reptile Theory," you need a lawyer with considerable experience and knowledge of the opposing side's tactics. Without legal help, you might find yourself falling prey to the reptile theory in the end.
Source: The American Bar Association, "A Brief Primer on the Reptile Theory of Trial Strategy: Plaintiff Psychology and the Defense Response," Ann T. Greeley, Ph.D., 2015