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 I found an excellent opinion (sadly unpublished) from 2017 that explains the theory in greater detail.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
fedcivilprocedure 