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The Fight Against Reptile Tactics

By Natalie Rozmus

Edited by Bella Tran, Colin Crawford, and Vedanth Ramabhadran.


Throughout the past few decades, American juries have subjected defendants to so-called “nuclear verdicts” in personal injury cases. A term referencing awards in excess of $10 million, such verdicts are becoming increasingly frequent in Texas. Indeed, plaintiff’s lawyers have honed specific techniques to elicit such awards, including so-called “reptile tactics,” meaning plaintiff’s attorneys appeal to the “reptilian” part of jurors’ minds to pit enraged jurors against the defendant. Angry jurors are then motivated to act not merely out of sympathy to the plaintiff but out of a primordial sense of self-preservation. They are made to believe that the defendant in front of them could potentially pose a threat to their own safety; therefore, punitive damages are exacerbated. “Reptile tactics” allow for the potential of motivated jurors, unconsciously, to ignore jury instructions regarding the actual standards for determining negligence, for example, and to impose liability and then damages simply out of their heightened anger. 

Such emotional appeals have proven quite successful in recent years. Texas has gained enough of a reputation as a “playground for personal injury attorneys” that various businesses have chosen to leave the state. This business flight continued until the Texas Legislature committed itself to passing tort legislation. Just last session (88R), the legislature addressed tort abuses by passing House Bill 19 (HB19), which its sponsors assured would prevent excessive verdicts against businesses. In relevant part, HB19 creates a state-wide business court division, ensuring specialized interpretation of all tort lawsuits. Support for HB19 was determined when legislators, among other things, observed significant disparities between the increasing number of tort lawsuits overall versus the increase in cases involving serious injuries. In the bill analysis of HB19, it is noted that “over the past 11 years, the number of motor vehicle lawsuits have increased by 118 percent… [while] the number of collisions involving a fatality, severe injury, or any injury at all have increased by single-digit percentages or have decreased.” [4] The proposed result of this written legislation is the protection of all types of businesses from “abuses” in the Texas justice system [4]. Other states similarly should follow Texas’ lead and adopt legislation akin to HB19 in an effort to balance the rights of tort victims—those who have experienced harm as a result of another person’s wrong or injurious actions—with the need to protect defendants against outlandish punitive damage verdicts.

The “reptile tactics” phenomenon is a particularly challenging area within tort reform because of its relative novelty. Not only is there scant legislation addressing the matter, there’s also a shortage of academic research on the topic. Therefore, there remains a litany of questions, answers to which are essential to understanding the actual impact of reptile tactics in the courtroom. Importantly, the legality of these tactics has been largely unresearched, resulting in contradicting court opinions. Accordingly, defense attorneys filing motions to preclude or later appealing the use of reptile tactics often are left wanting. A recent article in the Columbia Law Review analyzes “evidentiary contentions in tort law” that reptile tactics and other juror manipulation techniques engender[1]. The author notes that among the most significant challenges facing defendants confronting reptile tactics is that, while tort lawyers are readily familiar with the concept, appellate courts are far less so. Consequently, defendants face significant hurdles challenging the efficacy of reptile tactics on appeal.

Perhaps unsurprisingly, the lack of clear precedent has left courts wrestling with reptile tactics confused and their decisions often at odds with one another. Throughout the country, there are examples of courts both granting and denying motions seeking to prohibit or limit plaintiffs’ attorneys from using reptile tactics. For example, in a 2015 wrongful death suit, the court denied the defendant’s motion that sought to bar the plaintiff from “offering testimony concerning violations of guidelines or safety rules or any other ‘scare tactics’ in order to establish the standard of care.” See Hensely v. Methodist Healthcare Hosps. [2]. The unsuccessful defendant specifically referenced reptile theory and expressed concern regarding the potential for the plaintiff to unduly influence the outcome by making jurors afraid for their own safety. Conversely, in an earlier 2013 case, Fitzpatrick v. Wendy’s Old Fashioned Hamburgers of New York, Inc., the defendant successfully challenged the plaintiff’s counsel’s use of reptile tactics and obtained a mistrial. The court concluded that the plaintiff “improperly suggested that the jury decide the case as ‘the voice of the community’ to ‘send a message’ beyond the courtroom,” and sought “to arouse in the jury a sense of duty to safeguard the community” from generalized safety concerns [3]. These two cases are a mere sampling of numerous decisions over the last decade where the court confronted challenges to the viability of so-called reptile tactics. They reflect a continuing reality that, in some sense, the outcome of such challenges is a “jump ball” that is tipped this way or that depending upon the day and judge or panel.

Given the absence of clear precedent and the resulting challenges for well-intended jurists, it is necessary for state legislatures to step in and provide clarity. Plaintiffs are using, and defendants are simultaneously challenging the use of, reptile tactics at a rate faster than the courts can develop a consistent, common law response. Through legislation, elected representatives can bring clarity across entire jurisdictions and ensure that courts then apply like standards to like situations.

Following Texas’ passage of House Bill 19, the state began developing a reputation among tort lawyers as one of the more “defendant-friendly” jurisdictions [5]. This status stands in stark contrast to its prior reputation as a “playground” for personal injury attorneys. Whether Texas truly has become pro-defendant in tort cases or merely balanced the playing field through restrictions on reptile tactics is a matter for debate. However, research from other countries, particularly New Zealand, suggests a model that could serve as a blueprint for the United States. Decades ahead of the United States and Texas in regard to tort reform, New Zealand created a system to prevent abusive lawsuits which “enjoyed bipartisan support and passed quite easily.” Essentially, they implemented an already existing “no-fault worker’s compensation scheme” into the realm of personal injury [6]. This no-fault worker’s compensation scheme originally replaced tort law in workplace injury suits, and the proposed suggestion was to utilize the same model for personal injury. Incorporating New Zealand’s model may bring a refreshing air of bipartisan support to the United States state legislatures. 

Ultimately, legislative intervention in Texas made huge strides toward tort reform. The novelty of, and complexities surrounding “reptile tactics” necessitated that clarity arise via prospective rule making as opposed to the more arduous and at times conflicting path associated with precedent based adjudication. Texas’ willingness to seek a more comprehensive and modernized solution via statutorily-based principles and special business courts serves as an example for other American jurisdictions to consider. Whether or not others follow the specifics the Texas legislature outlined, legislative officials elsewhere should at list find encouragement that it certainly is possible to apply domestically principles of tort-reform long accepted internationally. 


 

[3] Fitzpatrick v. Wendy's Old Fashioned Hamburgers of New York, Inc., 96 Mass. App. Ct. 410 - Mass: Appeals Court 2019, https://scholar.google.com/scholar_case?case=15172523279348241482&q=Fitzpatrick+v.+Wendy%E2%80%99s+Old+Fashioned+Hamburgers+of+New+York+Inc&hl=en&as_sdt=6,44&as_vis=1

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