Prepare for the COVID Reptile by Dr. Ken Broda-Bahm
M
ight a fear-based strategy have greater purchase in the present pandemic climate? People are certainly feeling scared and vulnerable these days. Even as states begin to relax the coronavirus stay-at-home restrictions, the death toll continues to climb, and a solid majority of the American public is not at all eager to get back out there. According to current Pew Research polling, nearly seven in ten Americans say their greater concern is with governments lifting restrictions too quickly, rather than not quickly enough. I expect that even after experts begin saying it is relatively safe to reengage, there will still be a lot of residual fear and some habits that might’ve changed for good. I have been chronicling many of the expected attitude changes in the wake of this crisis, and an additional perspective to consider is one that trades on fear and vulnerability: the plaintiff’s “Reptile” approach of trying cases by focusing on a personally relevant danger posed by the defendant. In the context of the worldwide virus lockdown, there is a good chance that jurors might be primed for the kinds of fear appeals that the Reptile depends on. While jury trials don’t seem to be getting underway in the immediate future, once they do, we might expect the Reptile’s chances of success to be influenced by a persisting state of public fear. With a jury preconditioned to look for threats, the strategy might have special resonance in this context. In this post, I will take a look
12
Attorney Journals San Diego | Volume 202, 2020
at some recent research and commentary that could point in that direction. The Reptile in a COVID context might involve the plaintiff’s attorney drawing a literal or a figurative connection with the current situation, such that a stand against the defendant becomes a symbolic way of gaining more control or safety. It might include express or implied messages like this: • We face too many risks (to our lives, health, and autonomy) • The defendant is contributing to that risk at the worst possible time • Taking a stand against the defendant’s actions protects society by setting a limit to what we will tolerate There are a few attitudinal changes that bear on that message.
Less of a Pullback from Sympathy? I have long noticed that there are many jurors who really don’t want to be influenced by the pathos of the case. If there is a particularly tragic loss or injury at the center of the case, then that fact will make that juror less likely to support that case. In what I call the “sympathy rebound,” the sad facts serve as a cue to this juror that the case is based on emotion and not
