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Bifurcation and the Reptile

Like the dinosaurs, the Reptile Theory seems to freely roam the earth for years and years.  Also like the dinosaurs, it is a favorite topic of articles and debate.  For the cave people who are scratching their heads grunting, “Huh? What?”, the Reptile Theory is a legal strategy popularized by David Ball and Don C. Keenan in “Reptile: The 2009 Manual of the Plaintiff’s Revolution.”  It is a how-to for obtaining large jury verdicts based on neurological principals based on the “reptilian brain” which triggers the primitive part of the mind and defies logic and instead encourages jurors to react to fear and the harm suffered by the plaintiffs.  The path to utilizing this theory focuses on demonstrating a threat to safety and well-being and has proven successful in trucking cases.  There are many different theories as to how the dinosaurs became extinct.  Likewise, individuals associated with the trucking industry have worked with diligence to overcome the Reptile Theory and its impact on nuclear verdicts.

The best way to neutralize the Reptile Theory is to 1) realize when it is being used; and 2) counteract its effect.  This can be done in a number of ways and has been studied at length by individuals in the trucking industry.  One of the most obvious examples of counteracting the Reptile theory is ensuring corporate representatives and experts are prepared for reptilian questioning.  For instance, corporate representatives need to be prepared to answer pointed questions about safety, profits over people, training, and threats to the motoring public.  Even more specifically, company representatives need to anticipate “soundbite questions” – those questions that everybody and their brother would answer “Yes” to: “Would you agree with me that a safe driver looks before making a lane change?” Duh.  However, if the simple answer is yes, without any further explanation, the plaintiff’s attorney now has a soundbite for the jury:

“Ladies and gentlemen of the jury, today, the evidence will show that this 80,000-pound cage of death that killed my client was driven by an unsafe driver.  In fact, you will hear from the very lips of the safety director that a safe driver looks before making a lane change.  That did not happen here.  Because he didn’t look back on his right side before changing lanes, my client is dead, unable to walk his daughter down the aisle.”

Other efforts to neutralize the reptile can occur in the litigation process itself.  For instance, the Texas state legislature passed a law, effective September 1, that requires a jury to find a trucking company or truck driver liable for a crash before exemplary or punitive damages can be sought in a civil case.    This new law allows defense counsel to request a two-phase trial.  For more information: https://www.ccjdigital.com/regulations/article/15066435/new-texas-law-aims-to-mitigate-nuclear-verdicts?utm_term=VersionB&utm_medium=email&utm_content=07-09-2021&utm_campaign=CM_NL_CCJ+Daily&utm_source=CM_NL_CCJ+Daily&ust_id=0e27c2262aa989666d582c7dd9a941f12de27ae4&oly_enc_id=5467B6070134G5Z.  Other states with bifurcation laws include Connecticut, South Carolina, Utah, Alaska, and Nebraska, though this list is not all-inclusive.  See, e.g., “Bifurcation of Civil Trials,” by John P. Rowley III and Richard G. Moore, 45 U. Rich. L. Rev. 1, Nov. 2010; McGuire Woods study, https://cdn.ymaws.com/www.vba.org/resource/resmgr/imported/7.pdf.

This is a similar practice that I have personally utilized while practicing in Arkansas based on Ark. R. Civ. P. 42, which allows the bifurcation of punitive damages claims from liability determinations.  Ark. R. Civ. P. 42(b)(2) provides “The jury shall first determine the liability of the defendant or defendants for compensatory damages, the amount of compensatory damages to be awarded, and, at the discretion of the circuit court, the liability of the defendant or defendants for punitive damages.  Should it be necessary, the jury will then determine in a separate proceeding, the liability of the defendant or defendants for punitive damages, if that issue was not decided previously, and the amount of punitive damages to be awarded.  Evidence of a defendant’s financial condition shall not be admitted in the first proceeding unless relevant to an issue other than the amount of punitive damages.”  Similar practice occurs in New York, and New jersey, as well as is permitted by Fed. R. Civ. P. 42.  See, e.g., “Bifurcation of Civil Trials,” by John P. Rowley III and Richard G. Moore, 45 U. Rich. L. Rev. 1, Nov. 2010.

In Virginia, in 1994 the legislature attempted to require bifurcation of punitive damages at the defendant’s request, however the effort failed.  In 2004, a Virginia Circuit Court denied a defendant insurance company’s request to bifurcate the issue of punitive damages.  See, e.g., “Bifurcation of Civil Trials,” by John P. Rowley III and Richard G. Moore, 45 U. Rich. L. Rev. 1, Nov. 2010, citing McLean v. Owens-Illinois, Inc., No. 31799V-04, 2004 WL 2813474, at 2 (Va. Cir. Ct. Aug. 25, 2004) (Newport News City).  Alternatively, Virginia judges have the discretion to bifurcate civil trials, pursuant to Allstate Insurance Co. v. Wade, 265 Va. 383, 393 (2003), (“a determination in a civil trial regarding the bifurcation of a jury’s consideration of issues is a matter for the trial court’s discretion.”)

If punitive damages have been pled, consider bifurcation as a strategy option to neutralize the reptile, or a punitive damage claim in general.

For questions, comments, or assistance with trucking litigation, please feel free to contact Amy Tracy (atracy@setlifflaw.com) at 804-377-1264 or Steve Setliff (ssetliff@setlifflaw.com) at 804-377-1261. 

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