The Reptile vs. The Pig

Screenshots from a website promoting the “Reptile Theory” to trial lawyers.

A lot of people want to know how in the world a Texas lawyer convinced a North Carolina jury that a responsible, well-run hog farm is a legal nuisance, punishable with a (soon-to-be-reduced) $25 million verdict.

The answer may have nothing to do with pigs – and everything to do with reptiles.

Let me explain. It appears that the Joey Carter farm has been the victim of a legal strategy called the Reptile Theory – an approach that some trial lawyers believe enables them to tap into what they call a juror’s “reptile brain.” That’s the oldest part of our brains and it’s responsible for our most primitive survival instincts: safety and self-preservation.

According to the theory, when a lawyer presents jurors with a perceived threat, even a small one, their reptile brain awakens and overpowers the more advanced parts of the brain – including logic and reason – that make us human.

Its advocates credit it for producing massive jury awards.

This is no small matter. The Reptile Theory has been advanced, in particular, by a North Carolina-based jury consultant, David Ball, and a Georgia-based trial lawyer who have created a cottage industry around the theory, selling books, videos, tutorials and seminars devoted to teaching the trial strategy.

You can read all about it on a dedicated website that boasts of $8 billion in Reptile verdicts or settlements, and also at Ball’s website.

At his site, in a testimonial video, Ball extols the theory: “What we have with Reptilian advocacy is a way to get right to the Reptilian brain. …the Reptile brain takes over and the Reptile never loses. It’s been used heavily in marketing. It’s been used heavily in politics. And when we started doing this, we thought maybe it would work in advocacy. And it’s succeeded way beyond anything we ever thought it would do. It’s still staggering every day to see what it does.”

(Here’s a sample from Ball in 2011, when it was just catching on.)

Look back at the recent nuisance lawsuit against Murphy Brown at the Joey Carter farm and you can see elements of the Reptile Theory at work.

Here are its hallmarks:

 

  1. It’s not about the plaintiff

Reptile Theory: The trial doesn’t need to focus on the plaintiffs. Or their alleged injuries. Instead, it’s all about the defendant’s behavior.

Joey Carter case: During a trial that lasted a month, the two plaintiffs testified for maybe a couple of hours. And they said they occasionally get odor from a farm a quarter-mile away that they moved in next to. The Texas lawyer made the focus of the trial about Murphy Brown and its parent, Smithfield Foods – not the plaintiffs.

 

  1. Establish danger to community

Reptile Theory: Convince jurors that the defendant is a danger to the broader community – again, sidestepping the question of the alleged harm to the individual plaintiffs.

Joey Carter case: The Texas lawyer cited studies and called witnesses seeking to show that hog farms, generally, are a threat to the health of their neighbors. But neither of the plaintiffs in this case made any health claim whatsoever against the Carter farm and the studies are in dispute.

 

  1. Establish a ‘safety rule’

Reptile Theory: A safety rule is a universal principle of how people should behave. Reptile trial lawyers want the defense to agree to such “rules.” For example, in a malpractice case, who could disagree when asked about whether a doctor should not needlessly endanger a patient? The idea here is for the plaintiffs’ attorney to propose such general safety rules, then demonstrate to jurors how the defendant broke them and put the entire community at risk. This tactic awakens the “reptile brain” in the juror.

Joey Carter case: This is precisely how top Murphy Brown executives were questioned. The Texas lawyer used the “would you agree” line of questioning to establish his “safety rules.” The safety rules the Texas lawyer established had different – and lower – standards about the farm, including about odor, than the ultimate question before the jury. As a reminder, the actual law in these cases is about whether the Joey Carter farm is a nuisance, and whether it “substantially and unreasonably” interfered with the use and enjoyment of property by the neighbors. Importantly, no expert testimony was allowed about odor by the defense.

 

  1. The power to stop

Reptile Theory: Once “harm” and “rules” are established in a juror’s mind, the final phase of the Reptile strategy unfolds. It’s time to convince jurors that they are the only ones with the power to eliminate the perceived threat.

Attorney Joseph Baiocco summarizes this aspect: “Plaintiffs’ attorneys may very well spend little time discussing the actual facts … and instead focus on appealing to the jury’s sense of minimizing danger as a whole. For instance, during closing arguments counsel for plaintiffs focus on demonstrating how the defendants’ behavior can affect the community … and follow up with statements that implore the jury to protect society.”

Joey Carter case: In his closing argument, the Texas lawyer told the jurors that they were “more powerful” than the governor or the legislature and implored them to protect the community. What took place, if you believe the theory, is that the jury’s reptile brain told them that they – and they alone – had the power to stop this “threat” by awarding a large sum of money to the plaintiffs.

 

The Reptile, in summary

Attorneys R. Bryan Martin and Dina Cox summarize the Reptile well:

“The Reptile theory,” they write, “attempts to sell danger and safety – that the dangers identified in the lawsuit go well beyond the courtroom and into the jurors’ cities, neighborhoods and homes. To achieve this result, The Reptile attorney will attempt to expand the case beyond the facts at issue. The successful Reptile case is NOT about a single past event, but about many present and future risks. It is NOT about the harm which actually happened in the case, but about the total maximum harm that could have happened to the jurors themselves or to the public. In short, when the jurors decide the case, The Reptile attorney wants them afraid of and angry at the defendant, and to equate large verdicts with a means of fostering safety.”

People across eastern North Carolina are now asking: How in the world could someone conclude that living a quarter-mile from a hog farm is a nuisance that is worth $25 million in damages?

It’s a good question. At the Joey Carter farm trial, it simply does not appear that facts, reason and science mattered. The trial lawyers secured a decision based on fear, helped by what was allowed to be presented in the courtroom. The decision ignores logic and reason.

You could say the Reptile swallowed the pig.

Next stop: The Court of Appeals.

– Andy Curliss, CEO