Reptile Theory – HospitalityLawyer.com

Reptile Theory: Using the Primitive Brain to Increase Plaintiff’s Verdicts

Michael Phillips — Sat, 16 Nov 2019 16:00:00 +0000

Jane Doe was the victim of a sexual assault while a guest at Marrilton Garden Inn & Courtyard Suites. She has filed a multi-million-dollar suit against Heavenly Hospitality Management, LLC d/b/a Marrilton Garden Inn & Courtyard Suites, Marrilton, Inc., (several subsidiaries of Marrilton, Inc.) and Gwen Causey (hotel manager).

Scenario: Jane Doe, a guest, checks into the hotel and is sexually assaulted by John Thug, a fellow guest. Through discovery, it is revealed that, due to a series of mishaps and internal breakdowns, staff inadvertently allowed J. Thug to discover the room number of Doe and gain access while Doe was asleep.

During check-in and while preparing Ms. Doe’s electronic key, the front desk clerk loudly announced the room number.Shortly after Ms. Doe checked in, and after hearing the clerk reveal her room number, J. Thug approached the same front desk clerk, and having no reservation, requested the room adjoining Doe’s room.

After checking into his room, Thug waited until he heard Doe leave her room. As he exited his room, he noticed a housekeeping cart was located at the end of the hall. He approached the housekeeper who was cleaning a room, indicated he just departed his room and forgot to take his key. The second mistake occurred when the housekeeper improperly granted Thug access to Doe’s room where he proceeded to disengage the lock on the door adjoining his room.

Before leaving Ms. Doe’s room, J. Thug noticed an open water bottle and spiked it with Rohypnol. After exiting Doe’s room, J. Thug patiently waited until she returned and believed her to be incapacitated. He then spent the next several hours repeatedly sexually assaulting her.

Jane Doe filed a negligence action against the hotel and has made a demand for $25,000,000 in compensatory damages and $100,000,000 in punitive damages.

Witnesses who were deposed:

Front desk clerk: utilizing the Reptile Theory, Doe’s attorney had this witness admit she had received no safety training, was not familiar with the hotel’s policies and procedures, and as a result, failed to avoid needlessly endangering Doe.
General Manager /named Defendant: Doe’s attorney skillfully utilized the Reptile Theory to have the Manager admit she failed to provide a safe premises for her guests.
Franchisee: his deposition was taken for the purpose of establishing the duty owed to the public in general and Doe in particular.
Disgruntled former employer/housekeeper: Her testimony, along with four other disgruntled former employees, was taken for the purpose of showing corporate was on notice of the safety issues and lack of appropriate training of key staff.

What is the Reptile Theory?

We like to believe we are run by logic and emotion. Sometimes we are. But when something we do or don’t do can affect – even a little – our safety or the propagation and safety of our genes, the Reptile takes over. If your cognitive or emotional brain resists, the Reptile turns it to her will. The greater the perceived danger to you or your offspring, the more firmly the Reptile controls you. From Reptile, Chapter 1, The Science.

Major axiom: When the Reptile sees a survival danger, she protects her genes by impelling the juror to protect himself and the community.

Manipulation at its best: as demonstrated in the deposition clips, witnesses who are unprepared, disinterested, or both, can be utilized by the Plaintiff’s attorneys to make all sorts of inflammatory admissions:

Yes we needlessly endangered our guests;
Yes our conduct was egregious;
Yes our behavior shocks the conscience;
Yes we violated our safety rules;
Yes corporate was recklessly indifferent to the safety of our guest.

Faced with the above admissions, the Reptile asks jurors the following:

How likely was it that the act or omission would hurt someone? Highly likely according to the Defendant’s own employees.
How much harm could it have caused? See Doe’s medical and psychiatric records.
How much harm could it cause in other kinds of situations? This question appeals to the community (i.e. send a message that this type of behavior is unacceptable).

In a nutshell, the Reptile Theory is a way to inject punitive type testimony into the compensatory phase of the trial.

This article is part of our Conference Materials Library and has a PowerPoint counterpart that can be accessed in the Resource Libary.

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A Discussion of the Reptile Trial Strategy Through The Lens of the Erin Andrews v. Marriott International Lawsuit

Hagwood & Tipton — Thu, 11 Jul 2019 23:00:08 +0000

I. WHAT IS THE REPTILE THEORY/STRATEGY?

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:

How likely was it that the act or omission would hurt someone?
How much harm could it have caused?
How much harm could it cause in other kinds of situations?

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:

It must prevent danger.
It must protect people in a wide variety of situations, not just someone in the plaintiff’s position.
It must be in clear English.
It must explicitly state what a person must or must not do.
It must be practical and easy for someone in the Defendant’s position to have followed.
It must be one that the defendant will either agree with or reveal him or herself as stupid, careless or dishonest for disagreeing with.

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.