Nuclear Verdicts: Juror Biases, Trends, & Strategies for Combating the Reptile

Extreme verdicts are popping up all over the country in various types of cases. One of the key drivers of these “nuclear” verdicts is the proliferation and overwhelming success of plaintiff strategies based in the Reptile Theory. Generally, the reptile approach seeks to focus on a particular safety rule / policy which if not followed, equates to danger for the plaintiff, jurors, their loved ones, and the community in which the defendant operates. If a given defendant violates said rule/policy which, if not followed, the tactic is intended to evoke fear and anxiety in jurors and persuade them to protect their community and send a message to the defendant through a large verdict. The tactic puts jurors at risk for burden shifting, leading with emotion, and in some cases, taking a punitive tone in their assessment of damages, even where no punitive claim exists. Some claim that over $6 billion in verdicts and settlements can be credited to the Reptile Theory since its introduction in 2009.

This presentation will provide practical tips for combating the reptile approach, preventing or containing jurors’ fear and anger, and mitigating damages. The strategies discussed include conditioning the venire and de-selecting high-risk jurors, leading with compassion, taking responsibility, humanizing the defendant, preparing the storytellers, resetting expectations, providing a damages counter figure/low anchor, and focusing on the positive.