Verdict - Spring 2018 - 26

> FEATURE

Defeating

Reptile Theory
Motions in limine

M
BY KURT KASTORF

ost trial attorneys are familiar with reptile theory, an approach to trial that seeks to
invoke the jurors' primal instincts of safety and self-preservation. Defense counsel know
the strategy as well, and many regularly file motions in limine in the lead up to trial to
preclude its use. Regardless of whether you intend to employ reptile theory at your trial,
you should oppose these motions, which unnecessarily limit your ability to present your
case the way you deem best. This article explains how to craft an effective response.

David Ball and Don Keenan popularized

trial, could lead to disruptive arguments

reptile strategies in their book, Reptile: The

about whether attorneys have violated a

2009 Manual of the Plaintiff's Revolution. Ball

court order. It is worth fighting to reaffirm

and Keenan's core concept is that the human

the notion that trial attorneys have broad

brain is conditioned to favor safety and sur-

discretion to choose the most persuasive

vival, and that a trial strategy built around the

manner to present their clients' cases.

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BACKGROUND ON REPTILE THEORY

unsafe nature of defendants' conduct will
encourage the jury to instinctively choose to

CRAFTING AN

protect their families and their community,

EFFECTIVE RESPONSE

leading to large plaintiffs' verdicts.

Reptile theory motions in limine typically

Trial attorneys quickly adopted the meth-

have two components. First is an overbroad

odology, and just as rapidly, the defense

request for general restrictions on how trial

bar responded. The first wave of motions

counsel present their case-in-chief. Second

in limine sought wholesale exclusion of

is a series of specific classes of evidence and

reptile strategies. The courts generally met

argumentation that defense counsel seek to

this approach with skepticism, explaining

exclude. An effective response addresses both

savvier opposing counsel also include nar-

that the purpose of motions in limine is to

types of arguments.

rower requests in their motion aimed at exclud-

exclude evidence, not tactics. Defendants

To respond to the broader request, cite

have since refined their approach, and the

numerous examples in which courts have

better motions in limine seek to exclude vari-

rejected reptile theory motions that seek a

ous classes of evidence and arguments that

broad prospective order untethered to specific

trial attorneys use to effectively implement

statements the other side will make. There,

One of the most popular approaches in

reptile theory. Many motions in limine now

a Federal district court issued a straightfor-

Georgia is to recharacterize reptile strategies

include a combination of both approaches.

ward opinion (replete with reptile puns), which

as attempts at improper golden rule arguments.

All trial attorneys should oppose these

explained that the purpose of motions in limine

To beat back this argument, it may be neces-

motions. Regardless of whether you intend to

is to identify specific testimony and evidence

sary to clarify for the court what is-and is

deploy reptile theory or not, you should seek

that is off limits at trial, not to seek broad edicts

not-permissible. In the classic "golden rule"

to prevent defense counsel from unnecessar-

on what litigation strategies opposing counsel

argument, jurors are invited to place them-

ily hampering implementation of your chosen

may adopt. Make a similar point to the Court.

selves in the victim's place when assessing

trial strategy. Many motions in limine request

If all opposing counsel has done is request

damages. Such arguments are impermissible

overbroad relief that, if misinterpreted at

a general prohibition, your work is done. But

because damages are judged according to the

26

Georgia Trial Lawyers Association

1

ing specific types of evidence and argument
useful for deploying reptile-type arguments.
GOLDEN RULE ARGUEMENTS


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Table of Contents for the Digital Edition of Verdict - Spring 2018

President’s Message
How I Obtained Justice: Sudden Emergency Doctrine
Thank You to Outgoing Verdict Chairman, Madeleine Simmons
Look Before You Leap: Conducting Jury Focus Groups Before Trial
Voir Dire In Low Speed, Soft Tissue Injury Cases
Defeating Reptile Theory Motions in Limine
Leading the Jury Down the Right Path: Framing Your Case During Voir Dire
Hernandez v. State: Empowering Jurors to Seek the Truth
Exploding Takata Airbags From Cover-Up To Accountability
Using Simple Technology to Pick a Better Jury
Case Updates: Who Really Loses When Medical Funding Becomes an Issue at Trial?
Professional Practice Pointers: Voir Dire, An interview with Cobb County State Court Judge Allison Barnes Salter
Dig In To Do Good: Making the World a Better Place
Welcome New GTLA Members!
Champion Members
Meet The Experts
Index to Advertisers/Advertiser.com
Verdict - Spring 2018 - Intro
Verdict - Spring 2018 - bellyband1
Verdict - Spring 2018 - bellyband2
Verdict - Spring 2018 - cover1
Verdict - Spring 2018 - cover2
Verdict - Spring 2018 - 3
Verdict - Spring 2018 - 4
Verdict - Spring 2018 - 5
Verdict - Spring 2018 - 6
Verdict - Spring 2018 - 7
Verdict - Spring 2018 - 8
Verdict - Spring 2018 - 9
Verdict - Spring 2018 - 10
Verdict - Spring 2018 - President’s Message
Verdict - Spring 2018 - How I Obtained Justice: Sudden Emergency Doctrine
Verdict - Spring 2018 - 13
Verdict - Spring 2018 - 14
Verdict - Spring 2018 - Thank You to Outgoing Verdict Chairman, Madeleine Simmons
Verdict - Spring 2018 - Look Before You Leap: Conducting Jury Focus Groups Before Trial
Verdict - Spring 2018 - 17
Verdict - Spring 2018 - 18
Verdict - Spring 2018 - 19
Verdict - Spring 2018 - 20
Verdict - Spring 2018 - Voir Dire In Low Speed, Soft Tissue Injury Cases
Verdict - Spring 2018 - 22
Verdict - Spring 2018 - 23
Verdict - Spring 2018 - 24
Verdict - Spring 2018 - 25
Verdict - Spring 2018 - Defeating Reptile Theory Motions in Limine
Verdict - Spring 2018 - 27
Verdict - Spring 2018 - 28
Verdict - Spring 2018 - Leading the Jury Down the Right Path: Framing Your Case During Voir Dire
Verdict - Spring 2018 - 30
Verdict - Spring 2018 - Hernandez v. State: Empowering Jurors to Seek the Truth
Verdict - Spring 2018 - 32
Verdict - Spring 2018 - 33
Verdict - Spring 2018 - Exploding Takata Airbags From Cover-Up To Accountability
Verdict - Spring 2018 - 35
Verdict - Spring 2018 - 36
Verdict - Spring 2018 - Using Simple Technology to Pick a Better Jury
Verdict - Spring 2018 - Case Updates: Who Really Loses When Medical Funding Becomes an Issue at Trial?
Verdict - Spring 2018 - 39
Verdict - Spring 2018 - Professional Practice Pointers: Voir Dire, An interview with Cobb County State Court Judge Allison Barnes Salter
Verdict - Spring 2018 - Dig In To Do Good: Making the World a Better Place
Verdict - Spring 2018 - 42
Verdict - Spring 2018 - Champion Members
Verdict - Spring 2018 - 44
Verdict - Spring 2018 - Meet The Experts
Verdict - Spring 2018 - Index to Advertisers/Advertiser.com
Verdict - Spring 2018 - cover3
Verdict - Spring 2018 - cover4
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