Employment Lawyers and Claims Personnel Need to Be on the Lookout
The increased use of the “Reptile” program in civil litigation has created greater risk of exposure for the restaurant, retail and hospitality industries. While the program is traditionally thought of as a strategy applied only in personal injury cases, clever plaintiff attorneys from the employment bar are refashioning Reptile tools for use in employment cases, and savvy claims professionals and defense attorneys should be on the alert.
Origins of the Reptile Program
The Reptile program is a tactic used by plaintiff attorneys to maximize jury verdicts. Everyone involved with claims and litigation management should consider learning about the program in order to both recognize and counteract the tricky ploys used to maximize case value beyond reasonable measures. At its core, the Reptile program is a method designed to achieve high verdicts for plaintiffs through strategies taught in books, seminars and workshops. Plaintiffs’ counsel Don Keenan, and jury consultant David Ball, designed the program and published the first manual in 2010. In only a few years, the Reptile program claims to have produced verdicts and settlements of $4,893,053,841 (that’s almost $5 Billion Dollars!), including $5,132,927 reported in the week of December 2, 2013, alone.
Reptile Program Foundation
The foundation of the Reptile program is exploitation of an alleged violation of a “Safety Rule” by the defendant that creates a danger to people like those on the jury. In the typical personal injury slip and fall case, an example of a Safety Rule is “Store owners should comply with all rules and regulations with regards to proper warning signs to avoid slip and fall accidents.” Every Safety Rule then has a companion and over-arching “Umbrella Rule” designed to be as broad as possible in order to be relevant to all jurors. In the slip and fall example, a potential Umbrella Rule is “The defendant is not allowed to endanger customers while they are inside the defendant’s store or restaurant.” This Umbrella Rule is so broad that every jury will have a related personal experience, i.e., going inside stores and expecting to be safe.
The themes of the Safety Rules and Umbrella Rules are then repeatedly highlighted in written discovery, depositions and at trial to encourage jurors to make decisions about liability and damages that are not rational, and tend to increase verdict amounts when not properly counteracted by claims persons and defense counsel.
“Science” Behind the Program
Purportedly, the Reptile program takes advantage of the “triune brain” concept in which the brain is divided into:
According to the theory, jurors can be manipulated to award large verdicts if their “reptilian brain” is stimulated. The Reptile argument is that the greater the danger, the more firmly the reptile brain controls the juror because of the perception of danger. As a result, jurors will be more inclined to err on the side of rendering an overprotective verdict in favor of the plaintiff.
Recently, the purported scientific bases for the theories underpinning the Reptile program have come under fire in Scientific American and other publications for lacking factual support. Even as Scientific American disputes this concept as being proven theory, however, it does concede that the theory makes intuitive sense. When one views the “triune brain” theory in light of other works such as Maslow’s Hierarchy of Needs or Walter Cannon’s Fight or Flight response, one must concede that although the Reptile program may lack academic credence, to ignore it is to do so at one’s own peril. Litigators are recognizing that regardless of why the Reptile program works, the fact remains that use of the Reptile program appears to produce results.
Application to Employment Cases
Employment cases are easily adaptable to the Reptile program. In fact, virtually every type of employment case can be manipulated to trigger Reptile reactions. As an example, a Safety Rule in an employment discrimination case could be “Employment discrimination creates an emotionally and physically painful workplace environment.” The Umbrella Rule in this situation might be “Employers are not allowed to operate with work environments where employees are exposed to cruel and abusive behavior from co-workers and/or supervisors.” Similarly, in a wage and hour case, an example Safety Rule is “Failure to properly pay employees puts them at risk for disastrous financial consequences,” and a correlating Umbrella Rule is “Employers are not allowed to make mistakes that threaten to de-stabilize the personal lives of employees.” With these Safety Rules and Umbrella Rules that outline themes for the prosecution, plaintiff’s counsel is set to embark on a Reptile strategy in an employment case in efforts to maximize the jury verdict beyond the true value of the claim. The Reptile program has a wide variety of applications, including during discovery, jury selection, witness preparation, and throughout the course of a trial, so the defense team needs to be on constant alert.
Discover the Reptile!
Claims handlers and defense attorneys have several options for combating the Reptile program. The most important issue to address is to realize the Reptile program is being used in a case. Quite often, claims professionals can be very helpful in identifying the Reptile program in use because the distance the professional has from a case provides a neutral focus. One of the most frustrating characteristics of the Reptile program is the difficulty in knowing the tactics are in use, since often the tactics lead defense counsel to conclude that plaintiff’s counsel is so far off base by focusing on broad Umbrella Rule issues that they believe a defense victory is certain. In fact, opinions of defense counsel that suggest plaintiff’s counsel is way off base because the focus of the prosecution is on issues that are completely irrelevant is often a strong indicator that the Reptile program is in use.
Much the way “no man is an island onto himself,” no litigation is conducted in a vacuum. Often small or mid-size companies do not have the luxury of a large general counsel’s office and there may be no coordination among insurance carriers’ various claims offices. The use of national coordinating counsel or the development of a specific panel of attorneys for the insured should be considered in lieu of the standard panel or house counsel the insurance carriers usually employ. By coordinating litigation efforts with one or a few firms, patterns may be more easily recognized, including when the Reptile program is being used in a case.
Change the Focus
Since the Reptile focus is to get the jurors to become obsessed with their own safety and the possibility that the defendant’s conduct threatens everyone’s safety, defense counsel needs to engage the jury so that they are utilizing more evolved brain functions. Because the mammalian brain, also called the limbic system, is responsible for feelings and moods, such as love and belonging as well as some safety needs, defense counsel needs to convince the jury that the defendant has confidence their basic safety needs are met by the defendant’s actions, policies and procedures, and the like (whatever applies to the facts involved). This will allow jurors to recognize and act within a social structure and think about the facts in a collective way, as opposed to individually. The eventual goal is to get the jurors to use their human or cortex brain, which allows them to apply rational thinking (and the law). This should reduce the reptile effect.
Identify the Safety Rule
The Reptile program involves plaintiff counsel’s creation of a Safety Rule, which plaintiff will argue the defendant violated, leading to the injury at hand. In order to attack the Reptile effect, it is important to identify the Safety Rule at issue. Once the rule is identified, consider developing a “Defense Safety Rule.” Examples of Defense Safety Rules in the employment examples above are, “Employers who take steps to prevent discrimination are acting responsibly” and “Employers who follow complex payroll rules in good faith are blameless.” These Defense Safety Rules can then be implemented with the counter tactics discussed below. Of course, Defense Safety Rules must be tailored to the specific defenses at issue in a particular case.
Fight Fire with Fire
Defense counsel should consider utilizing Defense Safety Rules and Umbrella Rules at all stages of the litigation in order to most effectively fight the Reptile strategy. For example, discovery responses can be drafted in such a way as to incorporate Defense Safety Rules and Umbrella Rules, and witnesses can be coached to incorporate Defense Safety Rules and Umbrella Rules with testimony that refocuses jurors away from plaintiff themes. Defense counsel can also strategize to incorporate themes in discovery responses and testimony that focus on the facts of the case and not on fears of events happening which are not at issue.
Develop Anti-Reptile Themes
One of the features of the Reptile strategy is that plaintiff’s position imposes on the defendant a wide duty to ensure against injury regardless of circumstances. Anti-Reptile themes should be developed that emphasize the standard of liability, and the legitimacy and fairness of such standards in the context involved. For example, discrimination cases often involve high levels of subjectivity about whether actions of others should be considered discriminatory, and whether such actions rise to the level of actionable discrimination. Anti-Reptile themes can stress the need to evaluate only the facts at hand and not fears about what could happen.
Written Discovery
In discovery responses, defense counsel should carefully raise objections to questions about situations other than the factual situation at issue, and compose responses to discovery that limit responses to the claim at hand. Defense counsel may also inject Anti-Reptile themes into the discovery responses, especially where requests for admissions are involved.
Depositions and Trial Testimony
Defense counsel can prepare defense witnesses, clients and experts to differentiate the facts of the pending case from Umbrella Rules and avoid discussion about situations other than the factual scenario at issue. Witnesses can be coached to handle overly broad questions. A good practice is to ensure all witnesses know that the response to any kind of hypothetical question is “It depends” with follow-up testimony about the factors involved. Witnesses should avoid agreeing with all generalizations. Generalizations and hypotheticals will almost always support Safety Rules and Umbrella Rules.
Motions in Limine and Jury Instructions
Two primary tactics for combating Reptile tactics involve motions in limine and jury instructions. First, the scope of the case should be restricted to the specific issues at hand to avoid the broad themes that reptilian tactics attempt to introduce. Second, if possible, address the issue head on and seek to instruct the jurors directly as to the plaintiff’s Reptile tactics so that they understand someone is attempting to manipulate their thought processes.
Produce Anti-Reptile Evidence
Defense counsel should also attempt to combat the tactic of putting the juror in the plaintiff’s shoes by showing jurors how the particular case is unique and the injury is the exception, not the rule. When one looks at the number of times a negative outcome is possible in a consumer setting or how many employees were subject to a particular employment practice with no complaints, a pattern may develop that shows there is actually no violation of the Safety Rule.
Although statistics can be useful to show the probability that the plaintiff’s injury was unique and the low likelihood the defendant’s act or omission (by violation of the Safety Rule) would hurt someone, defense counsel and expert witnesses need to make a clear delineation between the nature of the injury and probability. The infamous McDonald’s coffee case is a perfect example of how this strategy went awry as the defense attempted to argue the probability was insignificant, but the jury took this to mean that the defendant felt the plaintiff and her injuries were of little importance. Similarly, employment cases can go awry when the defense fails to acknowledge the importance of alleged injuries. As such, defense counsel should always properly acknowledge obvious injuries as part of any strategy.
What Claims Professionals Can Do
Use of Reptile strategy can be difficult to spot for defense counsel, and for good reason. In the past, plaintiff’s counsel who focused on facts remotely related to the case and who repeatedly pushed for discovery responses from the defense having to do with purely hypothetical situations would be considered an unworthy opponent. Moreover, the Reptile program is new and the defense bar is still learning about these developing strategies. As such, claims professionals can be on the lookout for litigation reports that hint at use of the Reptile program, and discuss Defense Safety Rules and Anti-Reptile strategies with defense counsel.
Good Risk Management
Since the best defense starts with a good offense, the development and implementation of good risk management programs can be used as the ultimate weapon against the Reptile strategy. One of the key elements any risk management program should have is a safety manual. The traditional safety manual is a collection of programs and management systems, with traceability to standards (like OSHA), assignment of accountabilities, training requirements, recordkeeping systems, etc. For employment issues, an employee handbook is critical. Although the safety manual and employee handbook are essential tools for management, employees should be provided with an illustrated booklet with chapters describing various hazards that might be in their workspace and what they are expected to do about them, as well as how to handle employment-related complaints. These booklets should serve as both training and reference tools, providing employees with tools to go back later to look things up they have forgotten.
Although having rules, policies and procedures in place is helpful, it does not ensure that every employee is going to follow every procedure every time. Since this is to be expected in almost every workplace, the defendant must be able to show continual communication, education, and enforcement of the polices, to include termination for violations. This will present a positive image of how an organization is attempting to continually keep employees and the general public safe, which is pure anti-Reptile material.
With regards to employment-related cases, any good human resources professional will tell you the importance of anti-discrimination and harassment policies coupled with properly implemented and followed grievance procedures. The value of these tools cannot be underestimated.
Throwing Out the “Bad Apple”
Even the best organizations have “Bad Apples” and in spite of the best policies, procedures and programs, these individuals will ultimately be involved in activities which will lead to claims that will be prime candidates for application of Reptile tactics. The ideal situation would be to weed out these violators before something happens. Retaining them could ultimately provide the smoking gun to plaintiff’s counsel. Post-incident terminations are often avoided in an attempt to prevent the employee from becoming a potential hostile witness, but risk and human resources managers should reconsider this practice since a record of terminating violators may be a good reptile defense.
Going Forward
Litigation teams who are aware of Reptile tactics and take proactive steps to counter the effects will get the best results. The most optimum results are achieved by the combined efforts of defense counsel and the claims handling team. Any hint of Reptile strategies should literally be treated as if something as dangerous as a venomous snake is nearby. Even better, the implementation of risk management strategies that factor in defensive reptile strategies could prevent such claims from ever developing. Good luck conquering the reptiles!
Clyde & Co. professionals discuss this year's key trends
