Trial attorneys, particularly those representing plaintiffs, have effectively modified their litigation techniques over the years to be able to appeal to changing views of jury pools. One of the more recent of those approaches – initially on the medical malpractice front, but then involving dental malpractice cases – is the use of the Reptile Theory as a method of convincing jurors that doctors ought to be held liable, and for large sums of money, when treatment results are not ideal. The strategy is based upon emotion, playing on jurors’ fears, and not necessarily on the case merits, thereby leading them to reach (large) verdicts in favor of plaintiffs.

How did the Reptile Theory get its name? As the Theory goes, humans have a primitive portion of the brain which is focused on safety and survival; reptiles’ brains are similar in that regard. And there you have the name, because the litigation theory, as noted before, tries to work jurors so that they essentially view themselves as though they were the plaintiff, in the “unsafe” environment that led to the injury at issue. (Even though some members of the scientific community argue that the human-reptile brain comparison is not as presented by the Theory, the name has, nevertheless, stuck.)

How is the Theory put into use during litigation? In general, most trial litigators view depositions as the most important and significant part of the litigation. Just as during a courtroom trial, questions are posed to parties at deposition by the opposing lawyer, and the witness responds under oath, with those responses being transcribed, able to be used later on during trial; many attorneys would argue that the only difference between trial and deposition questioning is that witnesses tend to be far more prepared for trial than they are for their deposition. That is unfortunate, because the trial impact of a witness who was unprepared at deposition can be huge. So, savvy lawyers will put the difficult Theory questions to the defendant dentists during deposition, hope that they were not adequately prepared to offer answers that support their own cause, and lock in those potentially plaintiff-helpful answers forever more, able to be read back in full to the trial jury, hopefully swaying them in their clients’ favor.

What does the Reptile Theory look like in practice? Let’s take the all-too-common example of the extraction of a lower third molar, which results in a lingual nerve paresthesia. At the dentist’s deposition, the Reptilian lawyer asks the dentist, “Would you agree that protecting the safety of your patients must be your top priority?” “Of course it is.” “Would you agree that protecting nerves from injury during dental procedures is a way to keep your patients safe?” “Yes.” “In this case, would you agree with the oral surgeon who examined the plaintiff after you treated her, that there is paresthesia associated with the lingual nerve?” “I suppose so.” “And would you agree that paresthesia is an injury to the nerve, when it did not exist beforehand and came about as a result of the procedure you performed?” “I guess so.” “So, wouldn’t you agree that you failed to keep your patient safe, allowing the nerve immediately adjacent to your area of treatment to become injured?” The answer almost doesn’t matter, because jurors already know it in their own minds. There is no question that this technique, in the hands of a trained, experienced, and knowledgeable attorney, can be a powerful weapon.

So, for those who are sued for dental malpractice these days, both those dentists and their attorneys will best prepare for the defense of their cases by including – among a whole host of factors – ways to fend off the reptiles. And, yes, there are ways to fend them off.

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