BY KURT KASTORF
Most trial attorneys are familiar with reptile theory, an approach to trial that seeks to invoke the jurors’ primal instincts of safety and self-preservation. Defense counsel know the strategy as well, and many regularly file motions in limine in the lead up to trial to preclude its use. Regardless of whether you intend to employ reptile theory at your trial, you should oppose these motions, which unnecessarily limit your ability to present your case the way you deem best. This article explains how to craft an effective response.
BACKGROUND ON REPTILE THEORY
David Ball and Don Keenan popularized reptile strategies in their book, Reptile: The 2009 Manual of the Plaintiff’s Revolution. Ball and Keenan’s core concept is that the human brain is conditioned to favor safety and survival, and that a trial strategy built around the unsafe nature of defendants’ conduct will encourage the jury to instinctively choose to protect their families and their community, leading to large plaintiffs’ verdicts.
Trial attorneys quickly adopted the methodology, and just as rapidly, the defense bar responded. The first wave of motions in limine sought wholesale exclusion of reptile strategies. The courts generally met this approach with skepticism, explaining that the purpose of motions in limine is to exclude evidence, not tactics. Defendants have since refined their approach, and the better motions in limine seek to exclude various classes of evidence and arguments that trial attorneys use to effectively implement reptile theory. Many motions in limine now include a combination of both approaches.
All trial attorneys should oppose these motions. Regardless of whether you intend to deploy reptile theory or not, you should seek to prevent defense counsel from unnecessarily hampering implementation of your chosen trial strategy. Many motions in limine request overbroad relief that, if misinterpreted at trial, could lead to disruptive arguments about whether attorneys have violated a court order. It is worth fighting to reaffirm the notion that trial attorneys have broad discretion to choose the most persuasive manner to present their clients’ cases.
CRAFTING AN EFFECTIVE RESPONSE
Reptile theory motions in limine typically have two components. First is an overbroad request for general restrictions on how trial counsel present their case-in-chief. Second is a series of specific classes of evidence and argumentation that defense counsel seek to exclude. An effective response addresses both types of arguments.
To respond to the broader request, cite numerous examples in which courts have rejected reptile theory motions that seek a broad prospective order untethered to specific statements the other side will make.1 There, a Federal district court issued a straightforward opinion (replete with reptile puns), which explained that the purpose of motions in limine is to identify specific testimony and evidence that is off limits at trial, not to seek broad edicts on what litigation strategies opposing counsel may adopt. Make a similar point to the Court.
If all opposing counsel has done is request a general prohibition, your work is done. But savvier opposing counsel also include narrower requests in their motion aimed at excluding specific types of evidence and argument useful for deploying reptile-type arguments.
Golden Rule Arguments
One of the most popular approaches in Georgia is to recharacterize reptile strategies as attempts at improper golden rule arguments. To beat back this argument, it may be necessary to clarify for the court what is—and is not—permissible. In the classic “golden rule” argument, jurors are invited to place themselves in the victim’s place when assessing damages. Such arguments are impermissible because damages are judged according to the particular plaintiff’s circumstances, not based on the experience of individual jurors. The reasoning of the golden rule prohibition leaves a lot of arguments fair game. Importantly for reptile theory, it is permissible for attorneys to reference the conscience of the community, because appealing to the jurors’ desire to create a safe community is acceptable.2 In addition, the prohibition on golden rule arguments applies only to damages.3 Preserve credibility with the court by agreeing not to make true golden rule arguments, but object to motions in limine that purport to restrict your conduct in voir dire or when addressing liability.
Another defense approach is to seek a prohibition on “send a message” statements. But again, there are important caveats to the restriction on such arguments. Although asking a jury to send a message to the broader regulated community by awarding an oversized amount of punitive damages is impermissible, asking the jury to send a message to a particular defendant that it is responsible for the damage that it caused is acceptable.4 Your case may not even involve punitive damages, and regardless of whether it does, make sure you preserve the right to make targeted statements that the defendant should be held responsible for the consequences of its own misconduct.
A final defense tactic is to assert that references to safety and public danger necessarily require the jury to disregard the jury instructions. For example, in a medical malpractice case, the defense might assert that there are no “safety rules” in medicine, only standards of care. Here, nothing beats an appeal to common sense. Of course, medicine involves safety rules. Sharps are placed in special containers. Scalpels are stored in closed drawers. Drugs are held behind locked doors. Doctors wash their hands. Indeed, the very purpose of established standards of care is to protect the health and safety of patients. Defendants are entitled to a proper jury instruction on the standard of care, but they are not entitled to hamstring trial counsel by prohibiting them from speaking in terms of public health and safety, concepts at the very core of hospital care.
GETTING THE REMEDY RIGHT
Many lawyers’ first instinct is to request that overbroad motions in limine be denied outright. Consider, though, whether a better alternative is to ask the court to defer adjudication and to instruct defense counsel to object to specific testimony at trial. When the court denies a motion in limine, the objections set out in that motion are preserved on appeal.5 The result is that an overbroad motion works to the movant’s advantage, because even if it is denied, defense counsel can more easily argue on appeal that they have preserved their objections. Where possible, force defense counsel to make live objections. They might waive an important argument, and even if they do not, the objection will be a narrow one, applicable to the specific ruling made at trial.
Do not let defendants restrict your ability to present your clients’ cases in the manner you see fit. General objections to reptile theory should not be resolved in a motion in limine, and limited objections often do not comport with Georgia law. A strong response to a motion in limine preserves flexibility at trial and puts the onus on defense counsel to make specific, live objections to preserve issues for appeal. ●
ABOUT THE AUTHOR
Kurt Kastorf is an associate with The Summerville Firm out of Atlanta. He is an active member of GTLA and also a recent graduate of the 2017-2018 Leadership Education and Advanced Direction (LEAD) class. Kurt can be reached at firstname.lastname@example.org.
1 See, e.g., Adini v. Costco Wholesale Corp., 2017 U.S. Dist. LEXIS 55863 (Dist. Nev. 2017), as this is a good place to begin; then, Jackson v. Asplundh Constr. Corp., 2016 U.S. Dist. LEXIS 149145, 2016 WL 5941937, at *1 (E.D. Mo. Oct. 13, 2016) (declining to issue ruling on motion based on the “reptile theory”); Cameron v. Werner Enterprises, Inc., 2016 U.S. Dist. LEXIS 68711, 2016 WL 3030181, at *5 (S.D. Miss. May 25, 2016) (declining to issue ruling on motion based on reptilian theory because it was too “hypothetical”); Hensley v. Methodist Healthcare Hosps., 2015 U.S. Dist. LEXIS 113565, 2015 WL 5076982, at *4-5 (W.D. Tenn. Aug. 27, 2015) (denying “Reptile Theory” motion because “Defendants have again not identified the specific evidence that is sought to be excluded”);Bunch v. Pac. Cycle, Inc., 2015 U.S. Dist. LEXIS 187867, 2015 WL 11622952, at *2 (N.D. Ga. Apr. 27, 2015) (rejecting reptile theory motion because it was “overbroad”).
2 Hines v. State, 246 Ga. App. 835, 837 (2000).
3 Naimat v. Shelbyville Bottling Co, 240 Ga. App. 693, 697-98 (1999); see also Valdes v. Miami-Dade City., No. 12-22426-CIV, 2015 WL 7253045, at *12 (S.D. Fla. Nov. 17, 2015) (denying motion to exclude golden rule arguments; noting “prohibition against golden rule arguments applies only to damages in this Circuit” and there was no “indication that [the opposing party] would violate the golden rule as to damages”);
4 Stuckey v. N. Propane Gas Co., 874 F.2d 1563, 1575 (11th Cir. 1989) (finding no error where plaintiff’s counsel “made it clear that a ‘message should be sent,” because “he also made it clear that an award of only compensatory damages would suffice to send that message.”); see also Norfolk S. Ry. v. Jones, 219 Ga. App. 602, 607-08 (Ga. Ct. App. 1995) (characterizing statements such as “they’ve [Defendant] got to hear it from you” and “these people haven’t learned a lesson” as “an accurate characterization of the jury’s role in resolving a prime issue of liability.”).
5 See Andres v. Wilbanks, 265 Ga. 555 (1995).