Confront the Reptile in Jury Selection

Holland & Hart - Persuasion Strategies

Holland & Hart - Persuasion Strategies

The Reptile approach of trying plaintiffs’ cases by framing them in terms of personal safety is no longer a new idea. Plaintiffs’ attorneys are also less likely to treat that approach as a cure-all in every trial. But the Reptile’s themes and techniques are still there, having snaked their way into common practice. It is routine at this point for plaintiffs’ counsel to ask in voir dire about the attitudes of venire members toward safety and the rules that those in power should follow. It is normal for them to want to prime potential jurors on the idea that situations that pose a danger should not be tolerated, and when someone has the power to control these threats, they have an obligation to do so. Before jury selection is finished, they want this message to be heard, and ideally voiced, by potential jurors.

For their part, defendants should address these themes as well. They should not only sensitize potential jurors to the possibility that they will hear over-simplified appeals to safety, but also should prime venire members on the message that safety isn’t the only issue. Instead of just leaving the task of thwarting the Reptile to motions or to closing argument, it helps for defendants to bring it up as early as possible.  The should use the precious moments of voir dire to discuss the views of potential jurors and to connect their experiences to the issues of the case. In this post, I will discuss the defendant’s goals for an anti-Reptile voir dire and share a few ideas on questions to ask.

What to Expect from the Plaintiff’s Reptile Voir Dire

Voir dire is a key time for plaintiffs because it provides them with the unique opportunity to connect the jurors’ own experiences and views to the themes of the case. For Reptile-oriented plaintiffs, that means connecting those experiences to the themes of danger and safety. So plaintiffs will want several themes to emerge from voir dire:

  • Safety is important.
  • In the context of the case, safety (whether physical or otherwise) is a top concern.
  • Precautions have to be taken to promote safety.
  • Individuals or organizations who have power (like the defendant) have an obligation to take these precautions.
  • We expect professionals to follow rules that are designed to keep us safe.

With the right questioning, potential jurors will voice these themes on their own. To some extent, decisions to strike or challenge for cause could come from these questions (if a potential juror plays down risks or disagrees with an obligation to take precautions). For the most part, however, the questioning on these themes provides an opportunity to prime the future jury for the plaintiff’s message.

Ways to Confront the Reptile in the Defense Voir Dire

While some have suggested that defendants can use these Reptile themes, calling this a ‘Reverse Reptile’ that turns themes of “safety” and “rules” against the plaintiff or against co-defendants, I believe it will generally be the better course to increase the panel’s skepticism toward the simplicity and the singular focus of the Reptile message.

While questions should be customized to the case and the venue, here are a few samples for attorney-conducted voir dire that get at the Reptile approach generally:

You are going to hear one word a lot from the Plaintiff, and that word is “safety.” You already heard it quite a bit during jury selection. You are going to hear that my client is committed to safety, but you will also hear that, as just one member of a larger team, that includes the Plaintiff as well. Does anyone feel that a responsibility for something as big as safety can be focused on just one party? Ms. A, I noticed that you did not raise your hand. Why not? Why is it a shared responsibility?

As you hear from the Plaintiff, you might assume that the legal standard is, “Did [Defendant] do everything it conceivably could have done to protect the Plaintiff in all ways?” That is not the standard. The standard is “was [Defendant] reasonable?” Does anyone feel like that other standard has more appeal? In other words, should a company be expected to do everything possible, or should they do what is reasonable?

The Plaintiff’s attorney emphasized safety as the key principle in this case. And that’s fair, but safety is not the only principle at stake in this case. Another principle is accountability – the act of accepting responsibility for your own situation, your own choices, your own actions. Does anyone feel like they would want to focus on safety only, and not accountability?

Another principle may be that every situation is unique. While safety is important, we also try to balance safety with other goals, such as effective performance, or getting a good outcome. Even as safety is a vital part of the situation, who believes that safety is the only concern? 

When there’s a legal case in front of you, you can look at just the facts within the four corners of that case – just the parties, actions, and events that are specific to this injury. Or you could be tempted to take a broader view and look at the whole field, and the ‘message’, if any, that is to be sent by the verdict. Who feels like we should be looking at more than just the four corners of this case? If the judge tells you that it is only the circumstances of this case that you should be looking at, who would have trouble applying that instruction?

Who here believes the jury’s duty is to act as the “conscience of the community?” “Who feels if the jury finds the defendant was responsible for the injury, that the jury must then issue a verdict that ’sends a message’ to other prospective defendants?” Again, if a judge tells you that a jury is more limited than that, and is just deciding what the facts are in just this incident, who would have trouble with that instruction?

Naturally, the questioning will work best when it is tailored to some degree to what the Plaintiff’s counsel actually asked, and that is one of the advantages of going second. While some questions might highlight those who are aggressively buying into the Plaintiff’s framing, most jurors will probably agree with you, with the questions helping to replace or at least soften the Reptile focus.


Image credit:, used under license, edited by author

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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