In Regalado v. Callaghan, No. INC1203669, a California Court of Appeal (Fourth Appellate District, Division One), for the first time in a published opinion, recently addressed the “Reptile Theory” which has been a hot topic and the subject of numerous legal seminars for both the plaintiff and defense bars in recent years.
The “Reptile Theory” is based on the book by David Ball and Don C. Keenan entitled, Reptile: The 2009 Manual of the Plaintiff’s Revolution. The theory is based on a concept by neuroscientist Paul MacLean that people are driven by the “reptilian” portion of their brains – that is, the portion that drives the survival instinct. The goal of the Reptilian plaintiff’s attorney is to have the jurors’ minds shift into the “reptilian” portion of the brain so they are compelled to protect themselves and the community. This is achieved by presenting a safe-safer-safest argument to the jury that circumvents the applicable standard of care and encourages the jury to agree that regardless of the circumstances, the defendant could have acted in a safer manner in protecting the community. In this way, the juror begins to see himself/herself as a protector of the community and is deflected from their task, which is to render an impartial judgment predicated solely on the evidence admitted at trial.
In Regalado, the defendant homeowner-builder hired a pool contractor to build a pool and spa with an underground vault to house the pool heater. Defendant subsequently hired another pool contractor to complete the job. The second pool contractor’s employee suffered injuries when he installed a propane-fueled pool heater. Plaintiff alleged that the homeowner failed to obtain proper permits and warn him of the dangers of installing a propane heater underground.
During closing argument, Plaintiff’s counsel told the jury that its decision would have an impact on the community and that the jurors would have to speak on behalf of all the citizens in Riverside County by determining what is safe and what is not safe. Regalado’s counsel further told the jury that the function of the courts is to keep the community safe and that the jury’s role was to “tell the wrongdoer, ‘If you do this stuff in our community, you are going to pay.’”
After a break and after Plaintiff’s counsel continued through a significant portion of his closing argument, Defendant’s counsel objected on grounds that these were impermissible Reptile arguments. The trial court found that the objection was untimely.
The Court of Appeal, citing another recent case noted that “the law, like boxing prohibits hitting below the belt…[and] forbids an attorney to pander to the prejudice, passion or sympathy of the jury.” The Court noted, however, that in order to preserve a claim of attorney misconduct for appeal, a timely and proper objection must have been made at trial; otherwise, the claim is forfeited. Additionally, the objecting attorney must either move for a mistrial or seek a curative admonition, unless an admonition would have been inadequate under the circumstances.
While the Court of Appeal viewed Plaintiff’s counsel’s comments as improper, they were so brief, that the Court did not find them to be prejudicial. The Court, however, did not reach that issue because Defendant’s counsel had failed to timely object to the statements and failed to request a curative admonition. The Court opined that there was nothing in the record that indicated that an objection and admonition would not have cured any prejudicial effect from those remarks.
As noted, the Regalado holding is the first published California Court of Appeal opinion to address the Reptile Theory. It emphasizes the importance of protecting the record by objecting early and vigorously to Reptile-type arguments and to either move for a mistrial or seek a curative admonition. And with the latter, there is an opportunity to educate the jury on the Plaintiff’s counsel’s misconduct and attempted jury manipulation, and on the importance of deciding a case on its merits as opposed to lower-brain survival instinct.
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