Protecting and Defending Against the Reptile Theory Trial Strategy and the Increasing Cost of Lawsuits

The Reptile Theory Trial Strategy — a prominent plaintiff approach to litigation — generally aims to show that a defendant violated a safety rule that led to the plaintiff’s injury. In the case of schools, the rule is simple: Keep students safe. Regardless of the underlying cause of a student’s injury, harm itself is enough for many jurors to hold the school responsible.

As a litigation tactic, the Reptile Theory Trial Strategy has been widely successful. It is a key reason the number of “nuclear” verdicts (those exceeding $10 million) have steadily increased since 2009, when the theory was first posited by attorney Don Keenan and consultant David Ball. Often referred to as “social inflation,” the costs of increased litigation and larger compensatory damage awards are becoming the norm. For example, United Educators (UE) observed a 140% increase in the value of general liability claims from 2015 through 2019. During this period, the value of employers legal liability claims increased 210%.

In this report, institutions will learn strategies to counter the Reptile Theory Trial Strategy — both daily and in litigation.

• When Taylor Trial Consulting has conducted mock trials on cases involving UE’s insureds, about 80% to 90% of mock jurors have agreed that higher education institutions are responsible for students’ safety.
• Key witnesses must understand the Reptile Theory Trial Strategy, recognize questions designed to elicit the “reptile” response in jurors, and know how best to respond to those questions.
• Jurors are less motivated to find in favor of – or to award damages to – empowered and supported plaintiffs.