Reptile: The 2009 Manual of the Plaintiff’s Revolution, authored by Don Keenan and David Ball, was published in 2009. This book is offered exclusively to plaintiff’s lawyers and provides a strategy for plaintiff’s attorneys in most stages of litigation. The Reptile theory is derived from a model of the brain created by Paul Maclean, a neuroscientist. Maclean’s model is based on the concept that the three parts of the brain developed through evolution, and he coined the phrase “Triune Brain.” One of those three parts, the Reptilian Complex, is the oldest part of the brain. This is where Keenan and Ball begin the development of the Reptile Trial Strategy. According to Reptile, the reptilian brain controls our basic life functions, such as breathing, hunger and survival and instinctively overpowers the cognitive and emotional parts of the brain when those life functions become threatened. It thrives on evolution, and therefore maximizes “survival advantages” and minimizes “survival dangers.”
Utilizing the Reptile Trial Strategy requires presenting each case in a way that shifts each juror’s brain into survival mode and motivates each juror to decide a case in a way that will reduce or eliminate the danger, thereby protecting himself, his family, and the community. A verdict that enhances individual and community safety is the antidote to the defendant’s dangerous conduct, and jurors will take advantage of this opportunity to lessen the danger. The goal is to create a mindset for the jurors that causes each to decide a case based on the potential harms and losses that could have resulted from the defendant’s dangerous conduct and not based on the actual damages suffered by the plaintiff.
Three major questions in Reptile, which plaintiff’s counsel must answer for the jurors, are:
The formula provided is that to employ the reptile strategy: safety rule + danger = reptile. In other words, they try to prove that there was a safety rule in place. The safety rule was proper and reasonable. The defendant chose to violate the safety rule. Every wrongful defendant act derives from a choice to violate a safety rule.
The six characteristics that each safety rule must have to promote the reptile strategy is:
II. ERIN ANDREWS v. MARRIOTT INTERNATIONAL, INC., ET AL
Nationally known sports reporter Erin Andrews filed suit in the Circuit Court of Nashville, Davidson County, Tennessee in December of 2011 against Marriott International, Michael David Barrett (the Stalker), West End Hotel Partners LLC (hotel franchisee), and Windsor Capital Group (hotel management). She sought $75,000,000 in total damages. Marriott International was dismissed before the trial. The case went to trial in February of 2016. The jury returned a verdict in favor of Andrews with a total award of $55,000,000.00. The jury assigned 51% liability to Barrett. The two hotel companies were jointly responsible for 49% or $26 million.
The case stemmed from an incident at a Nashville Marriott hotel in 2008. Ms. Andrews, an ESPN reporter at the time, was in Nashville covering a college football game. Barrett was an insurance agent who targeted Andrews because she was “trending” on the internet for the purpose of taking videos of Andrews to sell to TMZ, a celebrity gossip site, and/or post on the internet for profit.
Barrett succeeded in this endeavor and captured approximately five minutes of film of Andrews, while she was nude, by placing a video camera in the peephole of her hotel room door. He tried to sell the video to TMZ, which refused, and he then posted the video on the internet. It spread from there. He pleaded guilty to stalking charges, was convicted and sentenced to 2.5 years. Plaintiff’s counsel effectively used the Reptile strategy in discovery, voir dire and at trial.
III. DEFENSES TO THE REPTILE STRATEGY
The counterpart presentation of this article will provide key points in developing a defense plan to the Reptile strategy beginning in discovery, including what to expect from plaintiff’s counsel and preparing defense witnesses for depositions, in limine motions, thoughts about “re-priming” a jury during voir dire, jury instructions, more witness preparation for trial and consideration of using reverse Reptile tactic in specific situations involving comparative fault.
See David C. Marshall, Lizards and Snakes in the Courtroom, For the Defense, April 2013 at 64-69, 74-75.
See David Ball & Don Keenan, Reptile: The 2009 Manual of the Plaintiff’s Revolution.
AUTHORS
David Eaton
David Eaton is a founding shareholder of the firm and practices in the Nashville, Tennessee office. He practices in Kentucky, Mississippi, North Carolina, and Tennessee and focuses in the areas of long-term care defense and general liability claims. As an advisor to health care providers, David has worked closely with nursing home staffs and personnel in the strategy and development of the defenses of cases prior to and through trials. David received a Bachelor of Arts degree in English from Nicholls State University in 1995 and a Doctor of Jurisprudence from Mississippi College School of Law in 2000.
Michael Phillips
Michael Phillips is a founding shareholder with Hagwood and Tipton and president of the firm’s Executive Committee. Michael oversees staff in both the Jackson, Mississippi, and Hillsborough, North Carolina, offices.A significant portion of Michael’s cases involves the defense of physicians, nurses, hospitals, nursing homes, assisted living facilities and other health care providers. He handles all phases of the litigation process – with a particular emphasis on trial – and has defended claims against nursing homes and assisted living facilities in Mississippi, Tennessee, Alabama and North Carolina. Michael also has extensive experience in the areas of complex defense litigation involving premises security/liability, insurance coverage and general insurance defense.
This article is part of our Conference Materials Library and has a PowerPoint counterpart that can be accessed in the Resource Libary.
HospitalityLawyer.com® provides numerous resources to all sponsors and attendees of The Hospitality Law Conference: Series 2.0 (Houston and Washington D.C.). If you have attended one of our conferences in the last 12 months you can access our Travel Risk Library, Conference Materials Library, ADA Risk Library, Electronic Journal, Rooms Chronicle and more, by creating an account. Our libraries are filled with white papers and presentations by industry leaders, hotel and restaurant experts, and hotel and restaurant lawyers. Click here to create an account or, if you already have an account, click here to login.
]]>The general theme Plaintiff’s lawyers use in these cases is that the Defendant, in an effort to maximize profits, skimped on security measures that would have made the premises safe –i.e. crime free, risk free, covered in bubble wrap with no sharp edges or tripping hazards. To drive up the value of these cases and advance the argument the Defendant was ‘on notice’, Plaintiff’s lawyers rely on the crime statistics for the premises being sued as well as the surrounding community. Police call logs, news articles, social media postings, and the like are used to paint a picture that management was aware of the problem but disregarded the risk to its customers.
Once the groundwork has been laid for the ‘profits over people’ theme, the focus of the case shifts to deterrent measures –security guards, security lights, fences, other barriers, cameras, etc. From a defense perspective, the key is to focus on the word ‘deterrent’. More often than not, the criminal perpetrator, if identified and caught, will have an extensive criminal history. For such a person, the fear of going to prison is no deterrent. By focusing on the history of the criminal, you may be able to demonstrate that he/she has committed crimes despite the presence of ‘appropriate’ deterrent measures. Another factor to focus on is the deterrent measures used by other similarly situated businesses in the community. Again, experience tends to show that most businesses follow the same or similar security protocols.
Another effective tool in rebutting the deterrent argument is to place the local criminal justice system on trial in the civil case. What happens to the criminal Defendants charged with these crimes?Are the local judges tough or too lenient on crime? How effective/proactive is the DA in prosecuting these cases? In other words, do criminal Defendants have anything to fear? Unfortunately the answer is oftentimes ‘No’. Instead of relying on or fixing the system, Plaintiff’s lawyers would have the businesses in the community become fortresses impervious to the realties facing the average taxpayer in the community.
Defending businesses in high crime areas is a challenge. Very rarely does the opportunity to blame the victim arise. In addition to presenting positive evidence of the security measures implemented and associated costs, educating the jury as to the realties present in the community, including uncontrollable obstacles that exist when trying to provide a safe premises, can have a positive effect. At a minimum, it should result in a settlement well below policy limits, which is so often not the outcome in these cases.
Authors
David Eaton
David Eaton is a founding shareholder of the firm and practices in the Nashville, Tennessee office. He practices in Kentucky, Mississippi, North Carolina, and Tennessee and focuses in the areas of long-term care defense and general liability claims. As an advisor to health care providers, David has worked closely with nursing home staffs and personnel in the strategy and development of the defenses of cases prior to and through trials. David received a Bachelor of Arts degree in English from Nicholls State University in 1995 and a Doctor of Jurisprudence from Mississippi College School of Law in 2000.
Michael Phillips
Michael Phillips is a founding shareholder with Hagwood and Tipton and president of the firm’s Executive Committee. Michael oversees staff in both the Jackson, Mississippi, and Hillsborough, North Carolina, offices.A significant portion of Michael’s cases involves the defense of physicians, nurses, hospitals, nursing homes, assisted living facilities and other health care providers. He handles all phases of the litigation process – with a particular emphasis on trial – and has defended claims against nursing homes and assisted living facilities in Mississippi, Tennessee, Alabama and North Carolina. Michael also has extensive experience in the areas of complex defense litigation involving premises security/liability, insurance coverage and general insurance defense.
Social media evidence is important information to explore, especially considering most people (Plaintiffs) tend to have no filter when it comes to posting information about: relationships with their family, romantic interests, employers, prior medical history, who has done them wrong, friends, lawyers, meals, and the list goes on. People also like to share their personal opinions on just about anything – Nike, Chic-Fil-A, NFL protests, etc.
Social media information is potentially important as an admission against interest, assuming the information is relevant. Information a party or witness puts on the internet can potentially be used against them in cross-examination at trial or during discovery. Litigators have never had this type of ready access to so much of what a party or witness says, does or thinks.
Once suit is filed, you need to have a strategy for obtaining social media evidence and how you are going to use it. The first step is to perform an investigation. The second step is to use your discovery tools. The third step is to get the evidence admitted. And the fourth step is ethical considerations. Developing a good social media investigation strategy does more than just provide you with information. It helps you craft discovery requests that ask for specific information, a requirement that now exists in federal courts and that will soon exist in state courts. The specific information requests can help you compile the discovery, comply with discovery requirements, and help you drill down to obtain the facts you need in order to help your case.
Authors
David Eaton
David Eaton is a founding shareholder of the firm and practices in the Nashville, Tennessee office. He practices in Kentucky, Mississippi, North Carolina, and Tennessee and focuses in the areas of long-term care defense and general liability claims. As an advisor to health care providers, David has worked closely with nursing home staffs and personnel in the strategy and development of the defenses of cases prior to and through trials. David received a Bachelor of Arts degree in English from Nicholls State University in 1995 and a Doctor of Jurisprudence from Mississippi College School of Law in 2000.
Michael Phillips
Michael Phillips is a founding shareholder with Hagwood and Tipton and president of the firm’s Executive Committee. Michael oversees staff in both the Jackson, Mississippi, and Hillsborough, North Carolina, offices.A significant portion of Michael’s cases involves the defense of physicians, nurses, hospitals, nursing homes, assisted living facilities and other health care providers. He handles all phases of the litigation process – with a particular emphasis on trial – and has defended claims against nursing homes and assisted living facilities in Mississippi, Tennessee, Alabama and North Carolina. Michael also has extensive experience in the areas of complex defense litigation involving premises security/liability, insurance coverage and general insurance defense.