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. 

Many of the most talented trial lawyers I know have a passion for books, including books in areas outside the traditional area of trial advocacy.   I’ve met trial lawyers who loved southern fiction, and one who enjoyed Russian novels, and others who read biographies and history.  In an upcoming blog post, I hope to initiate a dialogue on great books that others have enjoyed and can recommend.

But today’s post is more practical.  Many good trial advocacy books have come out in the last few years. 

The following are some of my favorites:

• The book: David Ball’s Reptile
  • Why I recommend it:  It’s based on current research and offers a comprehensive method of approaching cases and combatting tort reform.
• The book: Judge Ralph Adam Fine’s How to Win Trial Manual
  • Why I recommend it:  Practical advice on trial tactics.  Takes issue with some of the conventional trial advocacy advice.  Good examples.
• The book:  Friedman and Malone’s Rules of the Road
  • Why I recommend it:  It’s focus on establishing clear rules that defendants must agree with, and using those rules in discovery and trial.
• The book:  Jim Perdue’s Winning With Stories. 
  • Why I recommend it:  Helps lawyers use stories to tap into universal experience and bring their cases to life. Good examples from trials.

There are a lot of good trial advocacy books out there, and I’d like to hear recommendations from any readers.