Our jury system has been under assault from an ever-growing tidal wave of improper trial tactics that have no place in our court rooms, but have directly triggered the last decade’s cascade of nuclear verdicts.i These tactics began two decades ago, but mushroomed into prominence in 2009, when, in a remarkably successful marketing scheme in the form of a book, they were re-branded as the “Reptile Theory”.ii While the so called Reptile book (now selling on Amazon in paperback for $1,683.99) is not the only how-to or Bible for these tactics, its vivid imagery stands out forefront, making it the byname and catchall for this breed of improper tactics. In keeping with the plaintiff bar’s apparent rejection of mammalian trademarks, from this point onward we will refer to the entire swath of these improper tactics as the “Snake Attack Phenomenon” or “Snake Attacks” (except when specifically discussing a reptile-based item). We call it a phenomenon simply because of the remarkable fact that it should never have existed in the first place.
In a nutshell, the Snake Attack Phenomenon is this: enterprising members of the personal injury bar took a variety of tactics and themes designed to poison the sanctity of the jury box with improper and punitive considerations that Courts had long precluded from the courthouse – on the combined bases of relevancy and prejudice – and successfully re-marketed and re-branded many of them with a new pseudo-scientific label to provide them with an unwarranted patina of propriety. Even more importantly, this brilliant re-marketing phenomenon was formalized and undertaken in plain sight in a 2009 how-to bookletiii, along with subsequent seminars and pamphlets, published to (a) maintain the pretext of legitimacy, and (b) ensure that it would be available to, and utilized by, plaintiff attorneys nationwide.
*By formalizing this strategy, and explicitly encouraging its use to elicit sustained objections on the basis that sustained objections further the strategyiv, its proponents laid bare their true purpose – they had identified a flaw, a blind spot in the judicial system that they were determined to exploit, and if it was going to work it needed to be undertaken on a coordinated national level.
The Snake Attack is strategic, targeted, and, most importantly, intentional in seeking to get away with behavior traditionally labeled as misconduct with a gloss of deniability. It is unabashedly and explicitly intended to displace jurors from their roles as dispassionate, objective and unbiased factfinders rendering fair liability verdicts and fair compensation, and to inflame, prejudice and frighten jurors into a mindset of punishing defendants and sending messages to defendants and society using the tools of liability and outsized damages verdicts – while skirting the letter of the law prohibiting such conduct. This how-to program for breaking well-established rules to obtain specific outrageous results is the functional equivalent – using the criminal law context – of teaching prosecutors “How To Get Away With Brady Violations To Keep Bad People Off Our Streets”.
Nevertheless, due to a combination of factors discussed below, the Snake Attack was not immediately laughed at, looked down upon, rebuffed, chastised, and eliminated from our courts.v Instead, through the application of outdated judicial norms, our courts have essentially accepted that one can flout the spirit of the law freely, as long as some argument tethers you to the letter. In other words, the engineers behind these tactics were proven fundamentally correct: courts will not chastise, but reward, attorneys who press the edge between zealous advocacy and misconduct.
Unfortunately, this boundary-pushing has an erosive and corrosive effect. As the Snake attack has steadily grown in usage over the last decade to the point that it has become the ubiquitous accepted norm of tactics presided over by our judiciary, it is no longer even seen by many as boundary-pushing. This is shocking given that the tactics in question cannot seriously withstand the scrutiny of a proper relevancy and unfair prejudice objection. When objections are raised mid-trial, the judicial analysis is frequently either inadequate or consists of an exasperated overruled objection on the basis of “C’mon-counselor-I-hear-that-comment-all-the-time”, rather than a cogent dissection of the objected-to content under the microscope of relevance and prejudice. Even worse, this facile analysis utterly ignores the significantly more important barometer of intent.
Put simply, Snake Attack practitioners have successfully moved the bar of acceptable conduct to include tactics that were previously unthinkable. They have done this through concerted pressure on the courts. We consider that it is high time to push back, and hereby invite the reader to our dissection of the Snake Attack, so that the process of cleaning up our jury trials and restoring the sanctity of the jury can start immediately.
The Ten Most Common & Objectionable Snake Attacks (aka “Hitting Below the Belt”)
What are Snake Attacks? They are any tool in the plaintiff attorney’s arsenal that motivates a juror to return a verdict based on improper considerations and contrary to their well-settled role. The juror’s role description always includes the descriptive terms “objective”, “dispassionate” and “fair”. Conversely, the role description always specifically excludes “passion”, “prejudice”, “anger”, “fear” and “subjectivity”.
Of course, “[t]he law, like boxing, prohibits hitting below the belt. The basic rule forbids an attorney to pander to the prejudice, passion or sympathy of the jury.” Martinez v. State, 238 Cal.App.4th 559, 566, 189 Cal.Rptr.3d 325 (2015). Remarkably, hitting below the belt is the defining goal of Snake Attacks. These attacks include:
(1) invocation of the “golden rule”;
(2) “send a message” or deterrence attacks;
(3) “failure to take responsibility” attacks and “HDTD” (aka “how-dare-they-defend”vi or “full justice” or “100% justice”) attacks on defendant;
(4) reptile attacks, or more specifically, references to nebulous “safety rules” and “isn’t safety good?” and “isn’t safer better?”,vii the jury’s ostensible role as the “conscience of the community”, and/or allusions to the risk of an accident similar to plaintiff’s occurring in the future or to the jurors or their loved ones, or to “full measure of justice” or “100% justice” attacks;viii
(5) “hired gun” or “dream team” attacks on defendant’s experts;
(6) “anti-corporate animus” attacks, or wealth or insurance-based attacks, postulating regarding defendant’s state of mind or motivations, including casting aspersions at defendant for seeking a “discount” or that defendant’s position seeks to “cheap out” on plaintiff’s recovery, or personal expressions of counsel’s personal emotional response or “disgust”, or that a defense is “insulting” or that the jury should be “insulted” or “disgusted” or “angered” or “saddened” by the defendant or its defenses;
(7) personal “vouching” for facts, testimony or witness credibility, “info-questions”, and speaking objections;
(8) improper “unit of time” or mathematical guides for fixing damages for pain and suffering;
(9) ad hominem attacks on opposing counsel; and
(10) “improper anchoring” and related vouching commentary for the anchor.
Without belaboring the point, none of the foregoing themes or comments can withstand a simple relevancy or unfair prejudice objection. Indeed, same is self-proving, as the continued pressing by an advocate of an irrelevant or inflammatory topic or question is necessarily undertaken by that advocate precisely because it is obviously prejudicial to their adversary’s cause. More importantly, since there is ample settled law excluding all of the foregoing misconduct from the courthouseix, a reader would be well within their rights to query why it has been growing pervasively worse in our jury trials, and why it is tolerated by our courts. The answer is not really all that complicated, and is familiar to anyone who follows politics: the unthinkable, when made commonplace, can become the accepted – especially if no one fights back.
Reasons Why Courts Have Failed To Eliminate And, In Fact, Have Facilitated Snake Attacks: Deferred Rulings And The Five Horsemen Of The Apocalypse
Our court system remains stuck in a rigid mindset that carries a number of outdated assumptions. One of them is that attorneys are automatically assumed – as officers of the court – to have a good-faith basis for their words and actions. A corollary to this is that trial and summation excesses carry with them a presumption of unintentionality, and are a product of an advocate’s passion and emotion toward the conclusion of their client’s case. Snake Attacks have only survived this long by taking unfair advantage of that presumption. Each Snake Attack attorney is awarded a fresh, clean slate by our judges, concealing the fact that the attorney is advancing a repeated, pre-planned and coordinated strategy designed to exploit weaknesses in the trial system. This is wrong.
Deferred Rulings: Defendants around the country have in recent years begun successfully pre-objecting in pre-trial motions in limine to the intentional Snake Attack (or Reptile) misconduct that they know they will be confronting at trial.x Even though they cannot deny that such tactics or themes constitute irrelevant and unfairly prejudicial misconduct, responding plaintiff counsel invoke the “broad latitude” doctrine and argue that such objections are premature, overbroad, too vague and ill-defined, and should instead be handled on an “as-it-happens-basis” during trial. Surprisingly far too many courts agree, and remain inexplicably reluctant to instruct counsel to follow settled law of trial conduct or face consequences, and merely offer to rule contemporaneously. This is an outright win for the counsel utilizing Snake Attacks, as a trial court’s delayed/deferred decision is a ruling to allow the poison to enter the jury box. Don’t take our word for it; the Reptile how-to pamphlet specifically advocates for this and acknowledges that a sustained objection to a loaded Snake Attack question is a win for the plaintiff counsel who asks it.xi That does not, however, mean that such in limine motions are useless if denied, as they do serve to educate the court, and courts are in a better position to rule on subsequent contemporaneous objections.xii
The Five Horsemen of the Apocalypse: Defendants’ attempts at relief from Snake Attacks have been routinely defeated for more than a decade by the misapplication of what we call the “Five Horsemen of the Apocalypse”: the doctrines of harmless error, broad latitude, appellate preservation, curative charges, and, the fifth and latecoming Horseman, the Pandemic backlog (which renders courts less inclined to order new trials that will add to it).xiii These factors have undermined individualized efforts to combat Snake Attack misconduct. It is especially noteworthy that these doctrines (except for the backlog) were born of a far different and more genteel age of litigation, and are routinely misapplied in modern practice to forgive and overlook this particular misconduct.
What the courts fail to recognize is that this misconduct is strategic, repetitive and undeniably intentional, thereby rendering these doctrines a poor tool to restrain it. For example, courts routinely deny relief from this particular misconduct due to lack of sufficient preservation for appellate review. By doing so, the courts are affirmatively choosing to punish for a procedural omission (lack of an objection) while rewarding for – and perpetuating – the undeniably vastly greater crime of intentional attorney misconduct.xiv The rote elevation of form over substance could not be more stark – or more damaging to our institutions and society.
The same obtains for the sister doctrines of harmless error and broad latitude, as each in modern application ignores the undeniable intentionality of the misconduct that they routinely forgive.xv While, of course, improper summation comments are frequently found in all areas of the law, and emanate from both the plaintiffs’ and the defendants’ bar with too-frequent regularity, the Snake Attack misconduct is nevertheless a unique species. When counsel elects to pursue Snake Attack summation style, how can it be remotely fair or equitable for a court to apply harmless error analysis, which places the burden of proving harm or prejudice from an improper comment on the movant, when it is unmistakably obvious that the improper comment had no other (let alone legitimate) intent but to cause harm or prejudice?
Think for instance of a police shooting case in the Bronx where plaintiff counsel on summation tells the jury that through the verdict “you will speak for the community”, if the City “get[s] a pass, it will send the wrong message . . . to all the police officials”, “there will be no incentive to avoid shooting as a first resort” and to “think of a friend or family member pulled over, panicking, because an officer is intimidating, reaching for a document or something.” If these comments had been made by a prosecutor seeking a criminal conviction, the impropriety would be self-evident and a mistrial all but certain – yet the identical comments in a personal injury case were sanctified by the Court as being, at most, harmless error.xvi
Wouldn’t the sanctity of our jury system be better and more fairly upheld by placing the burden on the party uttering the improper comment to disprove a presumption of prejudice? The answer is obvious – of course it would. It would also make our system more efficient, reduce motion practice and appeals, and sanctify and declutter our courts. It will also make our system more accessible to those plaintiff litigants who properly refrain from Snake Attacks as a practice model.
The same obtains for curative charges, given that “if you throw a skunk into a jury box, you can’t instruct the jury not to smell it.” Dunn v. United States, 307 F.2d 883, 886 (5th Cir. 1962); see also Bagailuk v. Weiss, 110 A.D.2d 284 (3d Dep’t 1985). Modern empirical research shows that instructions to disregard an improper remark are of a doubtful utility at best.xvii Their utility is doubly doubtful where the intentional nature of the prejudicial remark is ignored by the court. Furthermore, many practitioners believe that the curative charge only works to increase the unfair prejudice by reminding and focusing the jury on a remark that may resonate with the lay jury on a visceral level but be completely improper for them to consider on a legal level.
For these reasons, the intentionality must be emphasized and documented in every instance if there is to be any chance of eliminating it from our jury system. But clearly, the long-overlooked key to both sets of reasons is intentionality.
The Post-Pandemic Extreme of Snake Attacks Confronting Us
Flush from their successes in the last decade attributable to Snake Attacks (see fn. i), the plaintiff bar has not been sitting still during the pandemic slowdown in our courts. To the contrary, they have been re-tooling and more extensively distributing their strategies to inject the Snake Attack poison at earlier phases of litigation than just summation, including during witness and party depositions, jury voir dire, and even opening statements. There have also been recent reports of Snake Attack “checklists” shared between various plaintiff firms to assist in the deposition and trial phases and ensure that these ever-so-valuable tactics are not overlooked or underutilized. In short, the re-opening of our courts will usher in an even darker day until and unless the Snake Attack is finally stopped in its tracks by attorneys forcefully arguing that these attacks cross the line and cannot be permitted.
The Path Forward
Our proposals for the path forward are simple and will work if undertaken by our courts. Defendants need to object relentlessly (before, during and after) and the courts need to take control of the trials before them, and demand that the attorneys before them honor strict adherence to the rules of decorum and relevance.xviii The courts need to additionally issue sanctions with teeth to discourage recurrence of Snake Attacks. Ordering a single mistrial and sanctioning a plaintiff counsel with his adversaries’ attorneys’ fees and costs arising from a several week trial, post-trial motions and appeals, will immediately tone down, if not eliminate, the cacophony of nonsense that currently pervades our courts.
Should this occur, we can all get back to good old-fashioned lawyering without the Snake Attacks, and have our duly sanctified juries return actual jury verdicts on liability and just and fair compensation that are not the product of improper misleading comments or unfair manipulation. The efficiencies to be gained include verdicts consistent with the underlying goal of the search for truth, necessitating less motion and appeal practice clogging up our courts, which will further help our courts in getting out from under the pandemic backlog.
Or we can all continue allowing a very clever marketing scheme to poison and ruin our jury and court system.
Initially published in the NYLJ
Endnotes:
i Research detailing the last decade’s nuclear verdicts (2010-present) in New York is set forth in an Excel spreadsheet that we have previously made available publicly in the NYLJ and multiple other forums and is now updated periodically on our firm’s and our prior firm’s website. See Timothy R. Capowski, Jonathan P. Shaub, “Improper Summation Anchoring Is Turning The New York Court System On Its Head And Contributing To The Demise Of New York State”, NYLJ (April 28, 2020). https://www.law.com/ newyorklawjournal/2020/04/28/improper-summationanchoring-is-turning-the-new-york-court-system-on-itshead-and-contributing-to-the-demise-of-new-york-state/(analyzing nuclear verdicts in New York from 2010-present and providing statistical research chart). Up-to-date copies will also be provided upon request. This research project was conceptualized and primarily undertaken and compiled by Tim Capowski. Special thanks are in order, however, for the hard work put in by our colleagues Jack Watkins, Jennifer Graw and Kharis Lund, and for the able assistance of former colleagues Jon Shaub and Katy Papa. Please note that our office is currently researching and finalizing a spreadsheet containing the summation remarks underlying each nuclear verdict (to the extent transcripts are available) that will also be made publicly available. If you have access to the transcripts of any of the nuclear verdicts listed, please feel free to forward to us to make our job easier.
ii See David Ball & Don Keenan, Reptile: The 2009 Manual Of The Plaintiff’s Revolution (2009) (currently listed on Amazon.com in paperback for $1,683.99) – https://www.amazon.com/David-Ball-Reptile-Plantiffs-Revolution/ dp/B00N4FOKZ4/ ref=monarch_sidesheet; David Ball & Don Keenan, Reptile In The Mist And Beyond (2013) (last listed on Amazon.com for $985.00 but currently unavailable) – https://www.amazon.com/REPTILEMistBeyond DavidBall/dp/0977442578/ref=sr_1_3? dchild=1&keywords=reptile+th eory+book&qid=1622037604&sr=8-3
iii id.
iv Plaintiff counsel are expressly taught by the book to start the process during voir dire (id. at pp. 102-108, 258, 67, 80, 95, 99, 121, 139, 158) and openings (id. at pp. 129-137 [entire chapter 11], 108-109) and to press for deferred rulings on the Snake Attacks as they occur, and that forcing defense counsel to object before the jury is part and parcel of the Reptile strategy, which specifically intends to draw objections on the theory that “[a] defense objection will imply there’s something to hide” (id. at p. 58).
v Troublingly, we have spoken with experienced and recently retired judges who have no idea what Reptile tactics are, despite that they have been repeatedly used in front of them for over a decade.
vi The “how-dare-they-defend” and “refusal to accept responsibility” Snake Attacks are examples of a prototypical sales technique oft associated with former President Donald Trump known as “selling past the sale” or “thinking past the sale” that raises grave constitutional concerns (by denigrating defendant’s right to recourse to the courts to contest plaintiff’s claims). It is a variation of a psychological tactic dubbed by psychiatrist Jennifer Freyd “DARVO” – “deny, attack, reverse victim and offender.” A person accused, for example, of using a racial slur might say “I’m not a racist, it’s terrible people like you who make those kind of accusations, if anything, you’re the racist for accusing me of racism.” A famous example of DARVO in action was then-candidate Donald Trump eloquently responding to Hillary Clinton’s statement that he was Vladimir Putin’s “puppet” by saying “No puppet, no puppet, you’re the puppet.” In the context of “how dare they defend”, DARVO takes the form of accusing the defense of lying, then expressing disgust that the defense would say anything, and painting the very act of defense as an act of aggression. “I couldn’t believe it when they told you plaintiff exaggerated his injuries. The arrogance – the gall of it, to do that instead of taking responsibility. It’s big corporations like this that are ruining America by accusing hard-working men like my client of exaggerating their injuries.”
vii The familiar “priming” Reptile terms inevitably invoke commonsense lay notions intended to have the jury circumvent, enlarge or ignore the applicable and controlling legal duties, and include: “always”, “never”, “risk”, “danger”, “community”, “safety”, “public safety”, “needlessly endanger”; “safety is always the top priority”, “danger is never appropriate”, protection is always a top priority”, reducing risk is always a top priority”, “sooner is always better”, “more is always better”.
viii The oft-repeated attack that the jury needs to award “full justice”, “full measure of justice” or “100% justice” is a subversive theme and comment that must be precluded as well. This is the quintessential Reptile remark that is repeated throughout trial, and is always tethered to ensuring “safety”, plus defendant’s “failure to take full responsibility” and lack of “accountability”, which can only be ensured through “full liability” and a “substantial” damages award. The Reptile book specifically lays this out and directs plaintiff counsel to utilize “justice” as code representing all of these improper themes: “In trial, ‘justice’ helps mainly when you show that justice equates with safety for the juror’s Reptile. **** You will bring jurors to figure out that community safety is enhanced by means of justice. You are not asking jurors to sacrifice justice for the sake of safety. You instead show that justice creates safety.” See David Ball & Don Keenan, Reptile: The 2009 Manual Of The Plaintiff’s Revolution (2009), p. 19.
ix We are happy to provide string cites of case authorities chastening litigants and awarding relief from these tactics upon request, but we have also previously written extensively on the subject of these Snake Attacks, and provided helpful lists of case authorities for excluding same from the courtroom. See Timothy R. Capowski, Jonathan P. Shaub, Joseph J. Beglane, Jennifer A. Graw, “The Punitive “Failure To Take Responsibility” Trope Must Be Entirely Policed Out Of Tort Actions For Compensatory Damages”, N.Y.L.J (November 13, 2020), https://www.law.com/newyorklawjournal/2020/11/13/the-punitive-failure-to-take-responsibility-trope-must-beentirely-policed-out-of-tort-actions-for-compensatorydamages/. Timothy R. Capowski, John (Jack) Watkins, Jonathan Shaub, “Ahead to the Past (A Three-Part Series): The Evolution of New Rules of Engagement in the Age of Social Inflation and Nuclear Verdicts”, NYLJ (July 13, 20 and 27, 2020),
Timothy R. Capowski, Jonathan P. Shaub, “Improper Summation Anchoring Is Turning The New York Court System On Its Head And Contributing To The Demise Of New York State”, NYLJ (April 28, 2020). https://www.law.com/newyorklawjournal/2020/04/28/improper-summation-anchoring-is-turning-the-new-yorkcourt-system-on-its-head-and-contributing-to-the-demiseof-new-york-state/ (analyzing nuclear verdicts in New York from 2010-2020 and providing statistical research chart). Michael Hoenig, “Attorney Misconduct In Opening Statements”, https://www.herzfeld-rubin.com/blog/attorney-misconduct-in-opening-statements/
x Courts have begun more regularly precluding efforts to inject Snake Attacks as improper and irrelevant, having no probative value as weighed against the substantial danger of unfair prejudice, misleading the jury, confusing the issues, and as diverting the jury from its proper purpose. See Russell v. Dep’t of Corr. & Rehab., 72 Cal. App. 5th 916 (2021); Garth v. RAC Acceptance E., LLC, No. 1:19-CV-192-DMB-RP, 2021 WL 4860466 (N.D. Miss. Oct. 18, 2021); Retamosa v. Target Corp., No. CV 19-5797 DSF (JCX), 2021 WL 4499236 (C.D. Cal. May 4, 2021); Doe v. Bridges to Recovery, LLC, No. 2:20-CV-348-SVW, 2021 WL 4690830 (C.D. Cal. May 19, 2021); Jackson v. Low Constr. Grp., LLC, No. 2:19-CV-130-KS-MTP, 2021 WL 1030995 (S.D. Miss. Mar. 17, 2021); Est. of McNamara v. Navar, No. 2:19-CV-109, 2020 WL 1934175 (N.D. Ind. Apr. 22, 2020), reconsideration denied, No. 2:19-CV-109, 2020 WL 2214569 (N.D. Ind. May 7, 2020) McClain v. Torres, 2020 Colo. Dist. LEXIS 2492, at *1, and 2134 (Dist.Ct., La Plata Co. 2020); Goodreau v. Hines, 2020 Colo. Dist. LEXIS 2560, *1 (Dist.Ct., Denver Co. 2020); Martinez v. Catholic Health Initiatives Colo., 2020 Colo. Dist. LEXIS 2977, *1, and 2247 (Dist.Ct., Adams Co. 2020) (“finding that Plaintiff could not offer golden rule or reptile theory arguments at trial because such arguments would incorrectly instruct the jury as to its role in this case”); Cox v. Swift Transp. Co. of Arizona, 2019 US Dist LEXIS 132115, at *31 (N.D. Okla. Aug. 7, 2019); Williams v. Lawrence & Mem. Hosp., Inc., 2020 Conn. Super. LEXIS 491, *18 (Conn. Super. Ct. 2020) (precluding reptile theory efforts, holding that “[t] he strategy attempts to invoke a juror’s survival instinct and in so doing, create safety rules, invite the jury to use common sense to determine the standard of care, and instill a belief in the jurors that they are the ‘conscience of the community.’ All of these improperly state the law regarding a physician’s duty of care, and the prevailing standard of care.”); Biglow v. Eidenberg, 369 P.3d 341 (Kan. Ct. App. 2016); Boyer v. Knudsen, 2020 Colo. Dist. LEXIS 779, *2 (Dist. Ct. Denver Co. 2020) (precluding reptile theory arguments on basis that “[a]ppeals to emotion, fear, or personal safety are improper. Defendant has admitted liability. The only issue for the jury is to determine what, if any, damages are appropriate based on the evidence presented at trial.”); Wertheimer H., Inc. v. Ridley USA, Inc., 2020 U.S. Dist. LEXIS 34846, at *8 (D. Mont. 2020); Estate of Reaves v. Behari, 2019 Fla. Cir. LEXIS 9605, *1(Fla. Cir. Ct., 2019); Cox v Swift Transp. Co. of Arizona, 2019 U.S. Dist. LEXIS 132115, at *31 (N.D. Okla. Aug. 7, 2019) (“Plaintiffs are cautioned that any argument that asks the jurors to reach a verdict solely on their emotional response to the evidence will be prohibited, and plaintiffs’ arguments should be focused on the facts that are admissible at trial and the law applicable to their claims.”); McComb v. C G & B Enters., 2019 Nev. Dist. LEXIS 2157, at *2 (D. Nev. 2019); Brantley v. UPS Ground Frgt., Inc., 2019 U.S. Dist. LEXIS 234231, at *4 (E.D. Ark. July 3, 2019); Maher v. Locality Llc, 2019 Colo. Dist. LEXIS 410, at *13 (Dist.Ct., Larimer Co. May 17, 2019); Roman v. Msl Capital, LLC, 2019 U.S. Dist. LEXIS 64984, at *15 (C.D. Cal., 2019); Woulard v. Greenwood Motor Lines, Inc., 2019 U.S. Dist. LEXIS 131701, at *20 (S.D. Miss., Feb. 4, 2019); Navab v. Young Choi, 2018 Cal. Super. LEXIS 24820, at *2 (Cal. Super. Ct. Nov. 7, 2018); J.B., 2018 U.S. Dist. LEXIS 19689, at *6-7; Perez v. Ramos, 429 P.3d 254 (Kan. Ct. App. 2018); Higbee v. Anesthesia Servs. Assocs., P.C., 2018 Mich. Cir. LEXIS 1648, at *1 (Mich.Cir.Ct. Sept. 26, 2018); Everett v. Oakland, 2018 Mich. Cir. LEXIS 2517, at *1 (Mich.Cir.Ct. Aug. 8, 2018); Ramirez v. Welch, 2018 Tex. App. LEXIS 6101, at *43 (Tex. Ct. App. Aug. 6, 2018) (rejecting plaintiff’s objection to defendant’s closing argument accusing his counsel of attempting to manipulate the jury through the reptile theory); Brooks v. Caterpillar Global Mining Am., 2017 U.S. Dist. LEXIS 125095, *24 (W.D. Ky. 2017) (granting defendant’s motion in limine to preclude plaintiff from introducing Reptile Theory at trial and to preclude plaintiff from asking the jury to act as the conscience of the community and “send a message” with its verdict); Tristan v. Bayada Home Health Care, Inc., 2017 Colo. Dist. LEXIS 28, at *2 (Dist.Ct., Denver Co. Feb. 1, 2017); Pracht v. Saga Frgt. Logistics, LLC, 2015 U.S. Dist. LEXIS 149775, at *4 (W.D.N.C. Oct. 30, 2015); Hopper v. Obergfell, 2013 Colo. Dist. LEXIS 249, at *1 (Dist.Ct., El Paso Co. Oct. 29, 2013).
xi See fn. iv.
However, one court would have none of this claptrap and granted the defendant’s motion to preclude in an altogether classic manner: “ ‘Golden Rule’ and ‘Reptile Complex’ theories aside, what Interstate is asking for in its motion in limine is an order precluding Aspen American from making comments or statements to the jury, explicit or implied, that are intended to appeal to the jury’s fear or emotion as outlined in Interstate’s memorandum. Such statements or comments are wholly inappropriate and improper and the Court will not tolerate them, whether they are called ‘Golden Rule’ arguments or ‘Reptilian Complex’ arguments or ‘Please Find in Our Favor Because Defendant is Mean’ arguments.” Aspen Am. Ins. Co. v. Interstate Warehousing, Inc., 1:14-CV-383, 2021 WL 3616161, at *17 (N.D. Ind. Aug. 14, 2021).
xii The Motion in Limine, 21 Fed. Prac. & Proc. Evid. § 5037.10 (2d ed.) (“the motion [in limine] furthers ‘growth and development’ of the law of evidence by allowing the parties to more thoroughly brief the law and the court to consider the arguments more thoroughly than would be possible in the heat of trial thus producing better rulings and a record for appeal that will permit better exploration and resolution of subtle points.”).
xiii See also https://www.law.com/newyorklawjournal/almID/1202778764118/Improper-Argument-at-Trial-Scrutinizing-Counsels-Conduct/?mcode=1380566174563&curindex=47&curpage=1
xiv For example, in Perez v. Live Nation, 193 A.D.3d 517 (1st Dep’t 2021), AD E-Courts Dkt. No.: 2020-03237, the defendant provided a lengthy written motion in limine preobjecting to the improper and inflammatory summation that it knew would be given by plaintiff’s counsel, and providing extensive supporting case precedent. Defendant even provided specific examples from an improper summation that the same plaintiff counsel had delivered in a similar damages-only trial involving analogous injuries. The trial court denied defendant’s motion to instruct the plaintiff to refrain from such misconduct and instead demanded contemporaneous objections. The plaintiff attorney proceeded to give the exact improper summation predicted, and the defense attorney failed to contemporaneously object. However, counsel for the defendant did so following the summation, and further submitted a written motion for a mistrial based on the summation misconduct. The trial court found the objections unpreserved by contemporaneous objection, and the First Department affirmed, even though the precise misconduct had been predicted and objected to in advance. The Court unfortunately ignored the fact that the misconduct in Perez was intentional. Thus, it decided to punish defendant for not objecting more, rather than to address plaintiff’s predicted intentional misconduct that generated a $102 million nuclear verdict and fostered years of post-trial motions and appeals.
xv Counsel engaging in summation misconduct invariably trot out the quote that “broad latitude” is afforded them during summation. However, the “broad latitude” referred to in the decisional law is a latitude of discussion of relevant evidence and reasonable inferences to be drawn therefrom. It is not, though it has been wrongly interpreted to be by many plaintiffs, a general “latitude” to discuss pretty much everything under the sun, that is to say, completely untethered. See Cherry Creek Nat’l Bank v. Fidelity & Casualty Co., 207 A.D. 787, 790-791 (4th Dep’t 1924); Selzer v. New York City Transit Authority, 100 A.D.3d 157 (1st Dep’t 2012).
xvi This summation is quoted from Lopez v. City of New York, AD1D Docket No. 2020-00966, NYSCEF Doc. No. 6, JR 880-881. The First Department ultimately affirmed the liability verdict based on broad latitude and harmless error principles. See 192 A.D.3d 634 (1st Dep’t 2021).
xvii See Teneille R. Brown, The Affective Blindness of Evidence Law, 89 DENV.U. L. REV. 47, 66 (2011), citing Lisa Eichhorn, Social Science Findings and the Jury’s Ability to Disregard Evidence Under the Federal Rules of Evidence, 52 L. & CONTEMP. PROBS. 341, 345 (1989); Roselle L. Wissler & Michael J. Saks, On the Inefficacy of Limiting Instructions: When Jurors Use Prior Conviction Evidence to Decide on Guilt, 9 L. & HUM. BEHAV. 37, 37 (1985); see also RICHARD A. POSNER, FRONTIERS OF LEGAL THEORY 384 (2001) (“Empirical evidence as well as common sense suggests that courts greatly exaggerate the efficacy of limiting instructions.”); Joel D. Lieberman & Jamie Arndt, Understanding the Limits of the Limiting Instructions: Social Psychological Explanations for the Failures of Instructions to Disregard Pretrial Publicity and Other Inadmissible Evidence, 6 PSYCH., PUB. POL’Y, & L. 677, 677 (2000); Deidre M. Smith, The Disordered and Discredited Plaintiff Psychiatric Evidence in Civil Litigation, 31 CARDOZO L. REV. 749, 819 (2010) (discussing how distinctions between appropriate and non-appropriate uses of evidence are likely to be “utterly meaningless in the minds of jurors” and emotionally arousing testimony may be particularly “immune to such limiting instructions”); Sarah Tanford & Michele Cox, The Effects of Impeachment Evidence and Limiting Instructions on Individual and Group Decision Making, 12 L. & HUM. BEHAV. 477, 477 (1988). Brown did also note a United Kingdom study to the contrary. Id. (citing Theodore Eisenberg & Valerie P. Hans, Taking a Stand on Taking the Stand: The Effect of a Prior Criminal Record on the Decision to Testify and on Trial Outcomes, 94 CORNELL. L. REV. 1353, 1358-59 (2009), citing a study by British researchers A.P. Scaly and W.R. Cornish in which mock jurors were able to take account of an instruction to disregard similar convictions as evidence of criminal propensity).
xviii “‘The judge who presides over a cause is not a mere umpire; he may not sit by and allow the grossest injustice to be perpetrated without interference. It is his duty in the executive control of the trial to see that counsel do not create an atmosphere which is surcharged with passion or prejudice and in which the fair and impartial administration of justice cannot be accomplished. It was the duty of the trial court to stop argument and require counsel to proceed in an orderly and lawyer-like manner.’” Pesek v Univ. Neurologists Assn., 87 Ohio St 3d 495, 501, 721 NE2d 1011, 1016-1017, 2000-Ohio-483 (2000) (citation omitted).
