Don Charles Keenan, of The Keenan Law Firm, Atlanta. (Photo: Rebecca Breyer/ALM) Don Charles Keenan, of The Keenan Law Firm, Atlanta. (Photo: Rebecca Breyer/ALM)

After more than a decade of training lawyers in the art of persuading jurors that tortfeasors' actions are more than isolated incidents, and instead reflect systemic failures that pose a threat to the public at large, attorney Don Keenan—co-progenitor of the "Reptile theory" of plaintiff's advocacy—shrugs aside accusations that his techniques are unscrupulous and trample the rules of evidence.

But the principal of Atlanta's Keenan Law Firm cheerfully agrees with defense lawyers that his techniques have helped spur the wave of "nuclear verdicts" that began several years ago. 

"I think their observation that the paradigm shifted about 10 yeas ago, the very time we came out with the Reptile, is accurate," said the co-author, with litigation strategist David Ball, of "Reptile: The 2009 Manual of the Plaintiff's Revolution."

The theory relies on appealing to jurors' "reptilian brain"—the portion of the human brain that evolved first and where survival instincts kick in whenever a threat is perceived.

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By convincing a jury that their verdict can help alleviate a threat to the public, plaintiffs attorneys are able to leverage that fear to overcome appeals to logic and reason offered up by defense lawyers.  

"It's undeniable that the verdicts have gone through the roof," said Keenan. "But in my humble opinion, the roof was too short for a number of years."

"For example, I tried obstetric-neonatal cases for a number of years," he said. "They had big life-care plans—forget the pain and suffering, mental anguish, loss of income. You could get an eight-figure verdict with just a life-care plan. I never thought they were adequate.

"Now we're getting all the damages," said Keenan. "The cases haven't gotten any better; the lawyers have gotten far better at being able to persuade the jury what justice in this country is all about."

 

Defense lawyers, initially caught flat-footed by the new strategy, have fought back by urging trial judges to bar Reptile-centered arguments and evidence, such as questions about safety or health standards not directly related to the incident at hand, with varying degrees of success. 

"There has been an avalanche of attack on every single aspect of the Reptile. They call it evil mind-control," said Keenan. "Plenty of trial judges have been bamboozled into making anti-Reptile rulings, in fact we've got a whole website of these orders and how they turned out. We've been tracking it like Davy Crockett," Keenan said.  

"Yet there hasn't been any appellate decision that eroded any of it," he said. "Every bit of this is grounded on rock solid, black letter law."

Keenan said it took him decades to figure out that the way he and the rest of the plaintiffs bar were trying cases was largely off target. 

"For the first 30 years of my career I tried the case as an event: you took the baby's leg off, the truck driver was speeding … the law has never said it's about the event. It's about foreseeability: whether the defendant knew or should have known there was a high degree of danger," he said. 

"The paradigm shift was: 'Don't try your case as an event'; that shortsights the case. You try the case as a systemic failure: The truck driver didn't parachute out of the sky. Somebody trained him, somebody hired him."

"Foreseeability is the backbone of tort law," said Keenan. "It was initially held as being a pro-defense doctrine: 'We're not going to be held liable for something that was unforeseeable.'"

There has been a "cataclysmic shift," he said. "Defense lawyers are now are now saying policies and procedures being introduced is like some grand Chinese conspiracy."

The "vehicle" that powers the success of the technique is "the simplicity of it all," he said. 

"If you say 'if the danger is foreseeable,  it's preventable,' 10% of the Bubbas out there will say, 'That's right.' Whether you're a pharmaceutical company, an apartment complex, a hospital, the question is, 'where did the system fail?'"

"That turns it, frankly, into a community case, because if Bubba's sitting there and you've convinced Bubba that the hospital system failed, Bubba's going to say, 'If I don't fix this, its going to happen again.' You can't tell a jury to defy their common sense."

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