David Ball and Don Keenan
The Manual of the Plaintiff's Revolution
Balloon Press 2009
“I am not smart. I invented smart to compel you to do what I want.” — The Reptile
Any civil trial represents the culmination of many, many years of disciplined mental effort. Legal education generates learning, and the discovery process generates information.–Yet neither learning nor information can result in a verdict of liability. For that, you need a jury: and a jury operates, by design, on very different principles of decision-making. As Rebecca West wrote, “The whole point of a jury is that it is not learned … but chunks of laity, brought in for the special purpose of being unlearned.” Judges resolve the cases that can be decided by learning and logic. Attorneys settle out of court the ones that can be decided through gathering information.But in the end, when learned, reasonable people disagree, the case “goes to the jury” — and law professors lose interest.
It is here that David Ball and Don Keenan‘s research begins. What happens in the mind of a juror? What factors actually decide close cases? Beginning in 2006, they undertook extensive empirical study to find out. Evolution, neuroscience, and even psychoanalysis play into the answer. Darwin, Skinner, and Freud all had it right: conscious thought processes are not as important as we think they are (and of course, as the annals show, this is true of judges as well as jurors). n all humans, deliberative processes are subject to primal, unconscious factors that place survival and safety ahead of everything else.
This insight led Ball and Keenan to a metaphor and a method for litigators that have created a sensation in the plaintiffs’ bar: the Reptile. A creature of evolution, coiled deep in the human neurosystem, the Reptile compels jurors to heed certain kinds of arguments more than others. But the Reptile is not a base reflex: its values are also enthroned at the center of the American jury system. Ball and Keenan believe they have redeemed it from cooptation by the adherents of “tort reform.” In turn, they seek to harness it for plaintiffs: not only to win cases, but also to redress injustices of certain kinds.
The Reptile is roused when there is a menace to its own genetic prospects, and such a menace can be discerned in many different kinds of cases. To hear Ball tell it, all defendants that can be seen to threaten the well-being of the community are looking more and more, in recent years, like food for the Reptile.