Arguing Class Actions is a monthly column by Adam J. Levitt for the National Law Journal.
Reprinted with permission from the December 4, 2023 edition of the National Law Journal. © 2023 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
This is the story of a decades-long skirmish between Reptile and Mongoose: not a recitation of one of Rudyard Kipling’s classic Jungle Book tales, but, rather, a story about lawyers—trial lawyers, specifically—and their continual quest to present their clients’ stories more effectively to judges and juries.
Trial lawyers certainly do not suffer from a shortage of advocacy methods, strategies, and techniques from which to draw. But one such method—”Reptile Theory”—has garnered particular attention over the past decade. Prominent trial consultant David Ball and noted attorney Don Keenan formulated and developed Reptile Theory in 2009. Their seminal book, Reptile: The Plaintiff’s Revolution, drew on scientific research into primal safety instincts arising from the ancient “reptilian” region of the human brain and promoted a technique in which well-crafted metaphors could be targeted to empower jurors to address corporate negligence and other unethical dangers that galvanize the “reptilian” mind.
Reptile Theory largely arose as a response to “tort reform” efforts beginning in the 1990s, which unfairly restricted plaintiffs’ legal recourse through both legislation and modification of juror attitudes toward lawsuits. In the face of these efforts by corporate America and its Congressional enablers to sour the American populace on their Seventh Amendment rights and to slam the door on meaningful compensation for valid claims, the goal and function of Reptile Theory was to stem and shift that tide by appealing to jurors’ innate sense of right and wrong. Indeed, Reptile Theory—by activating jurors’ innate protective tendencies when presented with evidence of real harm—provides an ethically grounded countermeasure to combat special interest lobbying and public propaganda, thereby restoring access to justice in courts across the United States.
In response to the success of Reptile Theory, the defense bar pushed back with its own creation—the “Mongoose Method.” The Mongoose Method derived its namesake from “Rikki-Tikki-Tavi,” a short story from Kipling’s Jungle Book collection, which follows the adventures of a young mongoose who, despite his diminutive size, confronts and defeats a venomous snake, protecting the human family that lives nearby. Kipling’s tale is not entirely fictitious: mongooses are immune to snake venom because they produce a unique protein that binds to snake venom and prevents it from entering the bloodstream. The Mongoose Method—similarly positioned as an antidote to Reptile Theory’s focus on venomous dangers—focused on cultivating uncertainty around those alleged dangers, and thereby capitalizing on the traditional defense strategies of increasing complexity, confusion, and ambiguity. In short, while Reptile Theory seeks to highlight facts that spur action against negligent actors, Mongoose Method aims to amplify ambiguity to inhibit and insulate alleged wrongdoers from jurors’ instinctive reactions to improper conduct.
Reclaiming Reptile’s Enlightening Intent
A few attorneys today, in an effort for a “quick fix,” have reduced Reptile Theory and Mongoose Method to a series of “magic words” or “magic questions” that, they contend, can be used to “win the case” or “manipulate a juror’s emotions.” In fact, other than teaching examples, neither Reptile Theory nor Mongoose Method truly promoted the use of any specific magic words or phrases. And, without a detailed understanding of the science, psychology, and intellectual underpinnings of each of these theories and approaches, the questioning styles and “magic words” espoused by some of their modern proponents become dangerous devices that can do more harm than good to their cause (or case).
Reptile Theory’s founders grounded their metaphors in science by showing that the ancient reptilian brain governs instinctive protective responses, while complex emotions like fear arise in the more evolved limbic system. As Ball and Keenan described, “Our method and purpose is to get jurors to decide on the entirely logical basis of what is just and safe, not what is emotionally moving. Jurors are often emotionally moved, and we always want jurors to ‘feel’ strongly that we should win. But the Reptile gets jurors to that point not on the basis of sentiment, but what is safe.”
Properly applied, then, Reptile Theory activates reasoned assessment of objective dangers through evidence, not distress. It focuses discernment outward to prevent demonstrable harm, mirroring how the mongoose, Rikki-Tikki-Tavi, defends his family by skillfully discerning and defeating venomous cobras—with careful strategy, not blind aggression.
When trial lawyers play on powerful emotions such as fear, without a true understanding of how those emotions might alter a juror’s perception or evaluation of a case, there is very little telling whether such a technique will help or harm their client’s case. We are all aware of the human responses to fear: fight, flight, or freeze. But are we equally aware of how a juror will respond to a perceived threat to which she is exposed in the courtroom? Who will a juror “fight” for while deliberating? To whose side will she “flee”? Or, will she simply “freeze”? Used recklessly, Reptile Theory and Mongoose Method could simply cause collateral damage, without achieving their intended goals.
Engaging Hearts and Minds
While strategic goals and methodologies are, indeed, essential, experience has revealed that they alone cannot guarantee victory in a trial. Consider a musical concert: the audience’s experience hinges less on the written sheet music and more on the performers’ skill and passion. This truth is evident to anyone who has attended a junior high school concert.
Yet, hearing the exact same music at a location like Carnegie Hall can elevate the experience to a transcendent level. The musician, the music, and the listener converge to create a neurologically resonant experience for everyone present. Reflecting on the importance of audience connection, John Steinbeck once wrote, “If a story is not about the hearer he [or she] will not listen. . . . A great lasting story is about everyone or it will not last. The strange and foreign is not interesting—only the deeply personal and familiar.”
Enlightened trial lawyers who have successfully used theories such as Reptile or Mongoose techniques have done so by integrating them into their case like a composer weaving a leitmotif into a symphony. These theories become recurring themes intimately linked to the case’s core narrative, not the narrative itself.
Before employing any technique, it is paramount that enlightened trial lawyers attune themselves to jurors’ subjective experiences. They should approach their task with empathy and compassion, eschewing contrived slogans or probing questions for witnesses. Genuine connection, not manipulation, is what truly resonates. Emotions may fluctuate during a lengthy trial, but authenticity consistently holds sway.
Realigning Metaphors with Justice
Napoleon Bonaparte’s foreign minister once advised, “you can do anything with bayonets except to sit on them.” Similarly, a trial lawyer can do many things with Reptile and Mongoose techniques. But, when those techniques are employed without an understanding of the science and psychological principles upon which they are based, a trial lawyer is just as likely to impale herself on the technique as she is to skewer her opponent.
The Reptile and Mongoose techniques, as originally envisioned, were effective because they each empowered jurors to act through narrative, and not because they turned jurors into reflexive, cold-blooded automatons. Jurors are not reptiles; they are humans. When properly applied, the empowering discernment of Reptile Theory and nuanced caution of Mongoose Method in advocacy can balance logic and passion in service of truth. By overcoming exaggerations and realigning with original enlightening intents focused on objective reason, both can assist jurors to provide justice. Our shared humanity—not our reptilian brain—calls us to moral advocacy through earning trust through wisdom of head and heart alike. Truths told with courage and compassion serve society best. Therein lies the path to justice.
Thank you to DiCello Levitt partner, Peter Soldato, and partner, Christopher Stombaugh, for contributing to this column.
Adam J. Levitt is a founding partner of DiCello Levitt, where he heads the firm’s class action and public client practice groups. He can be reached at [email protected]