Rein in the "Reptile" at Trial: Strategies for More Effective Motions In Limine

December 2017

For the Defense

“Reptile” has become shorthand for a trial strategy used by plaintiffs’ counsel for framing issues, evidence, and arguments to focus jurors on the danger that a defendant’s violation of a safety rule poses not merely to the random plaintiff, but also to the community at large and to jurors themselves. The goal of this “community-safety campaign” is to trigger an emotional, self-interested reaction whereby, even in a small-damages case, jurors reach a plaintiff’s “verdict on a scale that protects the public.” David Ball & Don Keenan, Reptile: The 2009 Manual of the Plaintiff’s Revolution (2009).

The building blocks of a “reptile” strategy in a commercial vehicle case are consistent and familiar. At depositions of a defendant driver and a company’s representative or safety director, plaintiff’s counsel asks whether a driver or a company is ever allowed “needlessly to endanger the public,” seeks agreement to a series of “safety rules,” and tries to establish that a violation of any safety rule is intentional, endangers others, and carries a foreseeable risk of likely injury. Plaintiff’s counsel also seeks to establish in the defendants’ depositions that what happened to the plaintiff just as easily could have happened to any member of the community. By deposition questions to the defendants or by the opinion of a retained expert, plaintiff’s counsel presents the driver as a “professional driver” with more training required than the average driver, who operates a “more dangerous” vehicle that can “cause more harm,” and who therefore must be “more careful.” A combination of questions to the defendants and opinions of the plaintiff’s expert are designed to suggest a “safest possible” standard of care, emphasizing “safer” or “safest” alternatives to the defendant driver’s actions. The plaintiff’s expert identifies a long list of “violations” of actual and purported rules and opines that one or more defendants acted “negligently,” “recklessly,” or with “gross negligence” or “conscious indifference.” At trial, plaintiff’s counsel suggests that trial is necessary only because the defendants have failed to “take responsibility.” Appealing to jurors as the “voice” of the community, plaintiff’s counsel asks them to “speak” or “announce” with their verdict what is not acceptable or safe.

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“Rein in the 'Reptile' at Trial: Strategies for More Effective Motions In Limine,” by Elaine M. Stoll and Brian J. Pokrywka* was published in the December 2017 edition of For the Defense, a DRI publication. Reprinted with permission.

* Mr. Pokrywka is an attorney in the Cincinnati office of Montgomery Rennie & Jonson LPA.