Defense lawyers who represent businesses in consumer-facing lawsuits are concerned with a new tactic increasingly used by plaintiffs’ attorneys to appeal to jurors’ emotions.
The “reptile theory” trial strategy is a departure from more traditional consumer attorney tactics, which were designed to evoke sympathy for plaintiffs. The new approach instead is designed to produce a strong emotion in jurors to protect community interests from the threat of businesses acting badly.
Plaintiffs’ attorneys who use the strategy claim there’s nothing nefarious about their tactics and that the strategy emphasizes tort law’s role in deterring inappropriate conduct that endangers citizens.
Mindy Bish, a Santa Clarita plaintiffs’ lawyer who spoke at a seminar about reptile strategies for the Consumer Attorneys Association of Los Angeles in April, said the idea is not a new one.
“It’s simply a return to what we used to do when tort law was first developed,” she said. “We’re empowering jurors to understand what their role in the community is.”
Defense attorneys, however, said the tactic violates the “golden rule” of trial advocacy: Lawyers cannot ask jurors to put themselves in the position of the plaintiff. Steven Fleischman, a partner at Horvitz & Levy in Encino, said appellate courts should offer some guidance on the topic.
“There needs to be an appellate decision to address the issue because there’s a lot of uncertainty in the trial courts,” Fleischman said. “It seems to me, by analogy to the golden rule, that this type of argument is improper.”
A lone, unpublished California appellate court decision broaches the issue and finds nothing explicitly wrong with the tactic. However, it is a nonbinding case and cannot be cited at the trial court level.
Bish said the real reason defense attorneys want to try and paint reptile strategies as out of bounds is because they are incredibly effective advocacy tools. She pointed to an April jury verdict against hardware giant Lowe’s Cos. Inc. in Las Vegas where a woman was awarded more than $16 million in a slip-and-fall case.
“We wouldn’t continue to use the strategy if the jury didn’t respond to it,” she said.
Trojan Tech
Piggybacking off the developing Silicon Beach tech community in Los Angeles, USC’s Gould School of Law has added a legal certificate program in entrepreneurship and technology law.
“Los Angeles has become one of the largest tech areas in the country, so this seemed only natural for us,” said USC Gould Dean Andrew Guzman in a statement. “Yahoo, YouTube and Google have opened offices here, and startups like Snapchat are now here.”
The program will be offered for the first time in the fall and will focus on issues faced by startups in the technology space. Courses offered will be heavy on transactional instruction, but the goal is to produce a holistic, hands-on curriculum that prepares law graduates to handle the myriad issues faced by young tech companies.
“Rather than traditional lectures from the podium, we push students to learn through doing, including individual and collaborative projects,” USC law professor Jonathan Barnett, who heads the school’s media, entertainment, and technology law program, said in a statement. “The idea is to mimic the experience of a junior associate right in the classroom.”
In addition to entrepreneurship and technology law, Gould offers certificate programs in business law as well as media and entertainment law.
Legal Landscape
WilmerHale added two high-profile partners to its downtown L.A. office this month. Christopher Rose joins the firm’s transactional practice group from White & Case’s downtown office. WilmerHale also poached intellectual property litigator Jason Choy from downtown’s Kirkland & Ellis. … Downtown’s Jenner & Block has brought on entertainment litigator Anthony Basich, who left Hogan Lovell’s Century City office. Basich joins Benjamin Mulcahy, who left the downtown office of Sheppard Mullin last month, in the firm’s content, media, and entertainment practice group. … Lewis Brisbois Bisgaard & Smith has nabbed two partners, Kara Pape and David Frishman, from Schaffer Lax McNaughton & Chen. Both firms are downtown. … Jim Byun has left his partnership position at West L.A.’s Kaufman Dolowich & Voluck to join Haight Brown & Bonesteel’s downtown office, where he is joining the firm’s risk management and insurance law practice group. … Kelley Drye & Warren has continued to expand its Century City office by poaching partners Michael Gallion, Kate Visosky, and David Van Pelt from Sheppard Mullin’s labor and employment practice group. … Sheppard Mullin has stemmed the tide of departures by adding Thomas Masenga to its downtown real estate practice. Masenga joins the firm from Seyfarth Shaw’s downtown office. … John Rosenfeld has joined Elkins Kalt Weintraub Reuben Gartside’s real estate practice group in Century City.
Staff reporter Henry Meier can be reached at [email protected] or (323) 549-5225, ext. 221.
