Aug 20 2021

MA Appellate Practice and Procedure Bulletin August 2021

Atticus Finch, Reptiles and The Diminishing Mistrial

             Who does not think of Atticus Finch with reverence and honor.  He reminds us of the best of what a lawyer could be; respect, honest, compassionate and service. It is grace under pressure—a belief in the honor and sanctity of both advocacy and the rule of law. As Atticus said “before I can live with other folks, I’ve got to live with myself. The one thing that doesn’t abide by majority rule is a person’s conscience.” And as his young daughter Scout so poignantly reflected:

It was times like these when I thought my father, who hated guns and had never been to any wars, was the bravest man who ever lived.

              Yet the pressures of litigation, its bustle and the fruits of victory can impair good judgment; prevent the weighing of broader implications even among all the good or best in us. The Reptile theory of advocacy is alive and well; and it is antithetical to the necessary Atticus in all of us.

              Reptile theory originated in the writings of neuro-physiologist Paul D. McLean of Yale University in the 1960s where he introduced what he called the “Triune” model of the brain suggesting that the human brain consists of three parts—reptilian complex (reptile brain), the paleomammalian complex (limbic system), and the neo-mammalian complex (neocortex). Under this theory, the reptilian complex or reptilian brain is the oldest part of the brain and consists of the stem and cerebellum and controls instinctive behaviors involved in aggression, dominance and territoriality. This theory was set out in a book by McClean in 1990 intended for specialists and titled “The Triune Brain in Evolution: Role in Paleocerebral Functions.” Of some note, is that McClean’s theory has been rejected by many modern neuroscientists.

              In 2009, David Ball and Don Keenan published a “Reptile: Manual of the Plaintiff’s Revolution” ostensibly applying the “Reptile Theory” in the context of litigation.  The idea behind the Reptile Theory in litigation is to pursue a strategy that will ultimately lead to engaging the jurors on a more fundamental level than an appeal to rational thought. It is employing tactics and posture that seek to have the jury in “survivor mode” through presentation of issues through a measure of fear and the need to protect the community at large; that a defense verdict could endanger others, the community at large, and contravene fundamental safety. The opening axiom of the book states the premise directly:

When the Reptile sees a survival danger, even a small one, she protects her genes by impelling the juror to protect himself and the community.

              Reptile tactics center on the idea of safety and is rooted in the belief that jurors can be readily motivated by fear and anger as opposed to just sympathy.  The fundamental aim is to shift the focus from the facts of the actual case to a broader concern of public safety in general. What defendant or witness would argue or quibble with such posturing as: “Do you agree that the federal regulations are imposed for the safety of the public?” “Are you obligated to follow the standard of care? Do you agree that the standard of care is important because it protects the safety of the individual? Did you follow patient safety rules?” Did you believe patient safety is a good thing? You want to keep customers safe, don’t you? If the focus can become a more general sense of public safety, then the focus is on the behavior of the defendant, and the jury can be motivated to return a large verdict to alter behavior which the jury perceives as a threat to the jurors individually or to the public at large. Indeed, in the large verdict cases involving such things as exploding gas tanks, failing air bags, and seat belt failures they provide the fodder for the power of jury perceived threat of harm to the public at large.

              In a recent trial in Worcester Superior Court involving a negligent supervision claim against an operator of a residential home program where one of the plaintiff resident’s pain medications was diverted by two supervisory staff members, the Reptilian theory was on full display. Despite motions in limine and extensive discussions as to the plaintiff’s effort to rely on generic company mission statements, resident human rights, and general regulations and other materials speaking of general rights to be free from “abuse, neglect, mistreatment, and loss of dignity,” plaintiff’s counsel despite specific rulings and discussion with the Court prior to trial, proceeded to present in opening statement that the case was about the violation of safety standards and rules; that there was a failure to protect the public including that defendant’s supervision failure posed a risk of potential “brain damage” to other residents, and that each violation of the safety standards and rules was “abuse, neglect, mistreatment, and the loss of dignity.” The trial judge was furious and while scolding counsel at side bar and informing that the request by the defense for a mistrial was “a close one” opted for a “curative instruction”—reinforming the jury that openings were not evidence. In the same case and in closing argument, among other infirmities, plaintiff’s counsel while suggesting an award of up to $3.5 million informed the jury that it had to compensate the resident for the violation of her “human rights.” In neither the opening nor closing statement was the rule of law—a reasonable person standard-- ever once mentioned or referenced—only the need to ensure safety, public protection, and the vindication of “human rights.”

              As to mistrials, they are not lightly granted; understandably so. Yet they have undergone an unwarranted dilution and are under pressure with the advent and use of Reptilian tactics. Most recently the Supreme Judicial Court affirmed a trial judge’s grant of a mistrial post-verdict due to Reptilian argument and presentation. Fitzpatrick v. Wendy’s Hamburgers Inc., 487 Mass. 507 (2021). Fitzpatrick involved a personal injury action on behalf of a woman who broke a tooth on a small fragment of bone in a Wendy’s hamburger. The trial judge reserved on a mistrial request made following plaintiff’s opening which was replete with Reptilian safety posturing eventually granting the mistrial after the verdict. The Appeals Court reversed holding the trial judge applied the wrong standard and that the standard for a new trial controlled. The Supreme Judicial Court, upon further review and in upholding the trial judge’s mistrial order, otherwise held that in all future cases trial judges could no longer reserve on motions for mistrial. In so doing, the Court declared that mistrials are drastic actions and should be granted rarely. It was concerned with counsel “rashly” making motions for mistrial and, as such, held that trial judges could no longer reserve on motions for mistrial and must address any issue post-verdict under a motion for new trial standard.

              The result is that Reptilian and other improper argument and posturing is encouraged as it can be undertaken with low risk of ramification. Such improper argument can hide behind the purported “lack of prejudice” rising to the level of a “miscarriage of justice” and based on “the survey of the entire case” and the court’s instructions. The concern as to a “rash” request for a mistrial trumps the impropriety itself.

              There is no room in advocacy for Reptilian tactics. Advocacy resides in the narrative; the narrative of the actual facts, the parties and circumstances and the applicable rule of law. It is not public safety, public protection, fear or emotion but a story for the reflective mind based on the actual evidence of the particular dispute. Reptilian advocacy disserves the truth and can eviscerate the rule of law. Once introduced the posture has been set and to rely on even curative instructions can be fraught with failure and ineffectiveness. Mistrials may be the only answer and trial judges must retain the courage to act. To fail to do so, impairs fairness and subverts the rule of law.

              I must return to Atticus. His closing is all narrative true to the facts and the rule of law. He does the case, his client, the system true honor while always a zealous advocate. You may recall his closing remark:

I’m no idealist to believe firmly in the integrity of our courts and in the jury system—that is no ideal to me, it is living, working reality. Gentlemen, a court is no better than each man of you sitting before me on this jury. A court is only as sound as its jury, and a jury is only as sound as the men who make it up. I am confident that you gentlemen will review without passion the evidence you have heard, come to a decision and restore this defendant to his family. In the name of God, do your duty.

You may also recall, of course, Reverend Sykes’ remark to Atticus’ daughter: “Miss Jean Louis, stand up your father is passin.’”

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