Reptiles and Rationality

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There has been an enormous amount of recent interest in an approach to trial advocacy that has come to be known as the "Reptile" theory.  This approach is spelled out in a book called Reptile The 2009 Manual of the Plaintiff’s Revolution by Don Keenan and David Ball.   

This method or theory of trial advocacy is intended to help plaintiff’s lawyers level the playing field in an age when jurors are increasingly affected by "tort reform" propaganda that portrays jury trials as lotteries and plaintiffs as people out for an unjustified quick buck.  

To counter this tort reform view, the reptile approach encourages plaintiff’s lawyers to focus on the dangers posed by the defendants’ conduct.  This focus on danger posed by the defendant, according to the book, excites the "reptilian" brain so that the instinct for survival influences the actions of jurors and the way they express their need for survival is a verdict against the danger – the defendant.  I can’t pretend to summarize the book in its entirety here, and this is only my own summary of the basics.   The book can be purchased at reptilekeenanball. 

Criticism of the Reptile Theory   Some criticisms of the reptile theory have been forcefully advanced by Stephanie West Allen, Diane Wyzga and Jeffrey Schwartz.  Their article and several rebuttals in The Jury Expert (published by the American Society of Trial Consultants) can be found here.  Their main criticism seems to be a normative one rather than one that criticizes the theory’s effectiveness in obtaining verdicts.  Their criticism is summarized this way by the authors:  "to equate men and women serving on juries as reactive sub-mammals is both offensive and objectionable."  Instead, the authors appeal to Atticus Finch as a model for lawyers, and urge lawyers to reject any "single story" and especially the single story of the reptile, since in their view it does not treat jurors as rational, autonomous beings. 

I have not yet decided what I think of these critcisms by Allen, Schwartz and Wyzga.  It does seem that the reptile ideas can be used in the service of a rational story that focuses on the real danger presented by a defendant rather than a simple by-pass of the rational mind.  So I’m not yet convinced that the criticisms are not at times attacks on a straw man.  But the provocative title of the Keenan and Ball book, as well as what I see as the lack of solid science behind the reptile theory, does invite thoughtful criticism, and that is certainly what Allen, Schwartz and Wyzga have provided.

I encourage all students of trial advocacy to read about this debate and I welcome comments about it. 

Truck Wreck on I-75

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I have not been posting new entries for several months.   The summer months flew by, but I had a great time with my family, and even got to enjoy an oil-free trip to the Gulf Coast.  

I plan to keep the blog more current from now on.  The blog is devoted to safety issues and trial advocacy.  These two topics are tied together because I see what I do as a trial lawyer as furthering the goal of making all of us a little more safe.  Our court system should be used to hold wrongdoers responsible and to make everyone act in a more responsible and safe way.

Safety was definitely on my mind last week as I purchased a new vehicle.  My overriding concern was to buy a vehicle that would protect my family if we were in a severe collision.  Since we live near I-75, a major highway,  with plenty of large truck traffic, I wanted a vehicle that would protect us if we were in a wreck at highway speeds. 

Unfortunately, this weekend I read of another serious wreck involving a large truck on I-75 in Dooly County.  You can read about the wreck in the article by Linda Morris in the Macon Telegraph.   Please use this link to read about safety ratings of vehicles by the Insurance Institute for Highway Safety.  You can read excellent articles about truck safety, and other topics on safety at the website for the Advocates for Highway and Auto Safety. 

Lawsuits or Medical Errors: What’s The Real Problem

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Medical Malpractice Payments Fall       Many special interests want to close the courthouse doors to Georgia citizens who suffer terrible injuries or death because of the negligence of healthcare personnel.  The special interests complain about "frivolous lawsuits" and the alleged "crisis" of medical malpractice lawsuits.  When you peek behind the surface, however, the truth is that we are suffering from a problem with people being killed or injured by medical errors rather than a problem with lawsuits.  For example, as this article by Chelsey Ledue shows, the number of payments related to malpractice claims fell in 2009, and the amount paid is at its lowest level since 1992.

The Real Problem:  Failure to Protect Patients    In 1999, the Institute of Medicine found that 44,000-98,000 people die every year due to preventable medical errors!  In 2004, the problem was worse, and according to the report by Health Grades, medical errors would be ranked as the 6th leading cause of death in the United States.   And in 2009, it is estimated by the Hearst Newspapers that approximately 200,000 people would die due to medical errors and hospital infections!  These are frightening statistics that don’t  get the attention they deserve.  

    Please take a moment to review the report by Public Citizen that shows the real problem is too many Americans die needlessly from medical errors.  Thus, we should focus on keeping patients safe and holding hospitals and medical personnel accountable when they needlessly harm patients.  The right to trial by jury is essential to hold wrongdoers accountable.  We should not allow special interests groups to take away this right.   

Medical Malpractice Caps in Georgia: Taking Away the Power of Georgia’s Juries

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Georgia’s Legislature and Limits on Juries’ Power

     In 2005, the Georgia legislature placed "caps" on the amount of non-economic damages that an injured Georgia citizen could obtain from juries in medical malpractice cases.  In some cases, that limit was as low as $350,000.  This law had the effect of taking power away from jurors in Georgia and giving the power to the special interests that like nothing less than ordinary citizens getting a fair day in court at the hands of 12 jurors.  

Mrs. Nestlehutt’s Injuries and Her Challenge of the Caps

   Mrs. Betty Nestlehutt, age 71, worked in a real estate business with her husband, and she sought some help from a plastic surgeon, who recommended a facelift and a laser resurfacing.  These procedures being performed together posed the risk of imparing the blood supply to the face.  Nonetheless, the procedures were performed and Mrs. Nestlehutt suffered impaired blood supply to her face and was left with large gaping wounds on her face.  The video below shows the damages to Mrs. Nestlehutt.

   The video below shows these damages and illustrates why the legislature’s arbitrary "one-size-fits-all" approach is manifestly unfair to people like Mrs. Nestlehutt.

 

WE THE PEOPLE from Georgia Justice on Vimeo.

The Sudden Acceleration Problem, and How to Protect Yourself From It

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What is Causing the "Sudden Acceleration" problem?

     The initial reports about the Toyota sudden acceleration problem focused on gas pedals and floor mats.  Now, in response to concerns that these "fixes" do not fix the problem, Congress is continuing to investigate.  According to an article by Joseph B. White and Kate Linebaugh in the Wall Street Journal, Toyota officials are continuing to investigate the cause of the problem.  So the short answer is that no one really seems to know the precise cause of the problem.  Even Toyota officials say they are continuing to investigate the problem.

What To Do If Your Vehicle Suddenly Accelerates

    So while the cause of this problem is being investigated, what should you do if you find yourself in a situation where your vehicle suddenly accelerates?  Generally, the advice is to put the car in neutral, put on the brakes, and turn off the engine.  A more detailed explanation can be found at the Consumer Reports blog on how to protect yourself in this situation.  A video of how to react can be found on YouTube as well.   Please take a moment to review these and practice reacting to a sudden acceleration in your vehicle.