Month: August 2020

What is “Reptile Theory?”

Before my last post was written I had never heard of “reptile theory.” I found an excellent opinion (sadly unpublished) from 2017 that explains the theory in greater detail.

Defendant Costco Wholesale Corporation seeks to stop plaintiff’s counsel from making various statements to the jury during the upcoming trial. Uncoiling Costco’s motion, it appears to ask that I order Aidini’s counsel not to: (1) make any venomous remarks that might incite the jurors’ “primal” instincts to protect their offspring (what Costco calls the “reptile theory” of advocacy),[1] (2) suggest that Costco is slinking from its responsibility by defending this case, and (3) comment on the witnesses’ credibility.

Aldini v. Costco Wholesale, Inc., 2:15-cv-505 (D. Nevada 2017)(Andrew Gordon, J.)

Once shed of its skin, Costco’s motion is little more than a request that I monitor Aidini’s counsel to ensure they stay within the strictures of the federal evidentiary and procedural rules. Of course, counsel must have an evidentiary or legal basis for any statements to the jury. And if some specific statements square with the evidence but also pose a risk of unfairly undermining the jury’s reason, I will balance those scales when the time comes.[2] But I will not issue a blanket pretrial ruling based on nothing more than Costco’s suspicion that there are snakes lurking in the grass.

As to Costco’s request that Aidini’s counsel be barred from suggesting that the company is slithering from its responsibilities by defending this case, I cannot say at this point that this would be improper argument. Of course, argument is reserved for closings, not to be made during opening statements. And Costco is free to point out in its closing that it is entitled to defend itself like any other party.

Costco next requests that I prohibit Aidini’s counsel from suggesting that Costco’s witnesses speak with forked tongues or otherwise questioning their credibility. Again, there is no basis to issue such a ban at this time. Aidini’s counsel agree they will make comments about credibility only if founded in the evidence—and they are allowed to do that.

Similarly, Costco’s arguments about the reptilian theory fail. Federal courts have hissed at motions based on this theory that seek a broad prospective order untethered to any specific statements the other side will make.[3] As Aidini points out, it may be permissible for him to argue that, under Nevada’s law of negligence, the jury should consider what a reasonable person in the community would do in Costco’s place.[4] But Aidini’s counsel is prohibited from making statements that would place the jury in Aidini’s skin, or would otherwise violate the Golden Rule or any other applicable restriction on counsel’s arguments.[5]

IT IS THEREFORE ORDERED that Costco’s motion in limine (ECF No. 48) is DENIED.

Comment: this opinion should be published. Protective Order Granted To Prevent “Reptile Theory” Questions

Protective Order Granted To Prevent “Reptile Theory” Questions

Before I read this case, Estate of McNamara v. Navar, No. 2-19-cv-109 (N.D. Ind. April 22, 2020) I had never heard of “reptile theory” questioning. Here the defendant in a trucking accident requested that the court issue a protective order to prevent such questioning in a fact deposition. The trial court issued the protective order:

The defendants claim that in past trucking-related-injury litigation cases with plaintiff’s counsel the deposition examination of defendant drivers has included “Reptile Theory” questioning. According to the defendants’ briefing, “Reptile Theory” as a litigation theory relies on two basic principles: (1) “[t]he Reptile is about community (and thus her own) safety[,]” and (2) “the courtroom is a safety arena.” See (DE 23, p. 4); David Ball & Don Keenan, REPTILE: THE 2009 MANUAL OF THE PLAINTIFF’S REVOLUTION, at 27 (1st ed. 2009). Reptiletrained attorneys thus look for ways to attempt to communicate to juries that “safety” is “the purpose of the civil justice system,” and that “fair compensation can diminish . . . danger within the community.” REPTILE: THE 2009 MANUAL OF THE PLAINTIFF’S REVOLUTION, at 29, 30. The defining purpose behind Reptile tactics, therefore, is to “give jurors [a] personal reason to want to see causation and dollar amount come out justly, because a defense verdict will further imperil them. Only a verdict your way can make them safer.” REPTILE: THE 2009 MANUAL OF THE PLAINTIFF’S REVOLUTION, at 39.

The defendants anticipate that plaintiff’s counsel will include significant questioning, including hypotheticals, regarding Navar’s knowledge of and the purpose underlying various purported “safety rules” for tractor-trailer operation. The defendants have argued that “Reptile Theory” questioning will create confusion around the defendants’ applicable duty of care by attempting to replace it with safety rules. Therefore, the defendants request that the court issue a protective order prohibiting plaintiff’s counsel from engaging in such questioning because it lacks any tangible connection to the scope of permissible discovery.

The plaintiff has indicated that “questions regarding safety . . . are certainly permissible questions during a discovery deposition,” and “questions along this line of safety could reasonably yield discoverable information.” (DE 24, p. 4). However, these conclusory assertions do not indicate what admissible evidence the plaintiff seeks to discover through this line of questioning. The plaintiff has not explained how questioning Navar about the purpose for alleged safety rules is relevant to the parties’ claims and/or defenses. Additionally, the plaintiff chose not to address the specifics included in the defendants’ motion, like how “Reptile Theory” questions or questions that plaintiff’s counsel previously asked in a trucking-related-injury deposition, e.g., “[i]f a commercial motor vehicle driver like yourself violated those rules [the Federal Motor Carrier Safety Regulations], that could endanger the public, correct,” will produce discoverable information.

Navar has not been designated as an expert by the defense. His testimony, as a lay witness, is limited to one that is rationally based on his perception, helpful to clearly understanding his testimony or to determining a fact in issue, and not based on scientific, technical, or other specialized knowledge. Federal Rule of Evidence 701. Accordingly, asking Navar about alleged “safety rules,” including generalized hypotheticals, would fall outside the scope of permissible discovery. The purpose of a deposition is to discover the facts. Hypothetical questions are designed to obtain opinions and are beyond the scope of the deposition of a lay witness.

The court granted the motion for a protective order pursuant to Rule 26(c)(1).