By Patrick Sickels, CUSO Magazine
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There exists in the plaintiff litigation world a strategy occasionally referred to as the “edge,” the “hit list,” or more commonly as the “reptile” strategy. Paraphrasing the foundational principle of this strategy, plaintiffs are seeking to trigger a fear response in a juror by framing defendants as dangerous to the public, with the verdict being the only method to protect innocents, and by extension the jurors themselves.
This is very relevant to credit unions and credit union service organizations because privacy and data security lawsuits heavily rely on these tactics to receive favorable, large-dollar verdicts.
Background to the reptile strategy
In the late 2000s, David Ball and Don Keenan published Reptile: The 2009 Manual of the Plaintiff’s Revolution. The strategy borrowed a (since discredited) neuroscience theory that humans have a reptile brain that governs self-preservation underneath the rational and emotional layers.
Although the underlying science itself may have been disproven, the reptile strategy has proven highly effective in litigation. The structure is to create in the minds of the jurors a safety rule that has been violated by the defendant. The final framing is to suggest a monetary verdict favoring the plaintiffs is the only way to ensure the safety of the community.
Reptile strategy also has the advantage of clarity, where jurors are presented with “right versus wrong” or even “good versus evil” arguments. A verdict favoring the defendant is not just wrong but is immoral.
Building the perfect reptile
This strategy is developed in the early phases of litigation, through discovery such as depositions. The goal is to frame the issue at hand where denial of a question’s premise damages the defendant’s credibility, but where answering it affirmatively creates a standard that is impossible for the defendant to meet.
An example would be: “Is a credit union obligated to follow the federal regulations on data security? … And do you agree those regulations are imposed for the safety of the public?”
The goal of this question is to create a trap where a judgment call is turned into an absolute. GLBA regulations are transformed from a regulatory compliance framework into “safety rules” where any violation endangers the jurors. Unless these questions are objected to, nearly all defense witnesses will answer yes to these questions. At that point, the plaintiffs have already won a significant concession, since any potential violation is now a matter of public safety which affects the jurors.
Another powerful strategy is to use contract and policy language against the defendant, by finding absolute language. Trap words include statements such as “never,” “always,” “immediately,” and “highest,” which permit the plaintiff to argue a judgment call is in actuality an absolute standard.
In one pixel tracking case, the plaintiffs noted in their complaint that the defendant’s “privacy policy stated expressly that ‘we never provide advertisers or any other third parties any information that reveals a personal health condition or personal health information.’” The plaintiff went on to say that “sensitive personal information communicated … including health information relating to medical treatments and prescriptions, was disclosed to and intercepted by some of the largest advertising and social media companies in the country…”
Use of the word “never” in a public-facing policy opened the door for an argument framing the defendant as a hypocrite and dangerous to public safety. The plaintiffs ultimately won a monetary settlement award.
Use of reptile arguments
Plaintiffs using reptile strategies will ensure that it is designed to have maximum impact on a potential juror. The kinds of highly persuasive closing arguments will have elements designed to sway jurors away from legal arguments and instead towards abstract notions of morality.
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