Recognizing and Combatting “Reptile Tactics” in Litigation, Part 2

In a high-stakes jury trial, reptile tactics are a psychological ambush designed to bypass logic and trigger a juror’s primal survival instincts. In Part One of this series, I addressed how reptile tactics taint the litigation process and how to recognize them. This article addresses strategies to combat those tactics and how courts have responded when challenges are raised.

The most effective defense against reptile tactics begins before the jury is ever seated. Recognition is the first step; challenge must follow swiftly.

Combatting Reptile Tactics at the Pleading Stage

New Jersey Court Rule 4:5-2 requires that “a pleading which sets forth a claim for relief, whether an original claim, counter-claim, cross-claim or third-party claim, shall contain a statement of the facts on which the claim is based, showing that the pleader is entitled to relief, and a demand for judgment for the relief to which the pleader claims entitlement.” 

Rule 4:5-7 provides that “[e]ach allegation of a pleading shall be simple, concise and direct, and no technical forms of pleading are required. All pleadings shall be liberally construed in the interest of justice.”

Rule 4:6-4(b) provides: “Impropriety of Pleading. On the court’s or a party’s motion, the court may either (1) dismiss any pleading that is, overall, scandalous, impertinent, or, considering the nature of the cause of action, abusive of the court or another person; or (2) strike any such part of a pleading or any part thereof that is immaterial or redundant. The order of dismissal shall comply with R. 4:37-2(a) and may expressly require, as a condition of the refiling of a pleading asserting a claim or defense based on the same transaction, the payment by the pleading party of attorney’s fees and costs incurred by the party who moved for dismissal.”

 At the pleading stage, defense counsel should be alert to complaints that rely heavily on rhetoric about public endangerment, community safety, or profit-over-safety narratives that are untethered from the actual elements of the claims asserted. Where such allegations are irrelevant to the legal theories at issue, motions to strike can narrow the battlefield early and deny plaintiffs’ counsel the pleading hook needed to justify broad, prejudicial discovery later.

Combatting Reptile Tactics During Discovery

Discovery must seek information “relevant to the subject matter involved in the pending action.”  Rule 4:10-2(a).  Relevant evidence is evidence “having a tendency in reason to prove or disprove any fact of consequence to the determination of the action.” N.J.R.E. 401. Discovery may be used to lead to facts supporting or opposing an asserted legal theory but may not be used to formulate a legal theory. Camden County Energy Recovery Associates v. New Jersey Dept. of Environmental Protection, 320 N.J. Super. 59, 64 (App. Div. 1999), aff’d, 170 N.J. 246 (2001). Unsupported discovery requests undermine the purpose of discovery.  “Fishing expeditions” are mot permitted.  Shanley & Fisher, P.C. v. Sisselman, 215 N.J. Super. 200 (App. Div. 1987); Farrington v. Peak Med. Ctrs., LLC, 2024 N.J. Super. Unpub. LEXIS 1772 (2024).

During discovery, reptile strategies often reveal themselves through overly broad document demands and interrogatories seeking company-wide safety policies, information regarding unrelated incidents, or historical safety violations. These requests are frequently aimed less at proving liability and more at building a narrative of systemic danger, laying the groundwork for the “pattern of conduct” framing that animates a reptile presentation at trial.  Careful objections and targeted motion practice can prevent discovery from becoming a vehicle for prejudice rather than proof.

Depositions present another critical battleground. Limiting reptile tactics during depositions is trickier in that during the deposition only objections to form, privilege, confidentiality or violation of a previous court order are permitted. Rule 4:14-3(c). Witnesses, particularly corporate representatives, must be prepared to respond to broad policy-based questions without being forced into rigid yes-or-no answers that oversimplify complex issues. A poorly prepared witness can be “locked out” of providing context, with testimony later being weaponized to build a reptile narrative before the jury.

Combatting Reptile Tactics At Trial

New Jersey Evidence Rules 401 and 402 address the admissibility of relevant evidence and provide a basis to exclude broad policy or safety evidence that is not relevant to the specific claims being tried. Even where marginal relevance exists, New Jersey Evidence Rule 403 supports exclusion where the danger of unfair prejudice substantially outweighs any probative value.

Motions in limine are an essential tool. Courts routinely exclude “golden rule” arguments, that is, asking the jurors to put themselves in the shoes of the plaintiff.  E.g., Botta v. Brunner, 26 N.J. 82 (1958); Geler v. Akawie, 358 N.J. Super. 437 (App. Div. 2003).  Reptile tactics are closely related: rather than asking jurors to imagine themselves as the injured plaintiff, they ask jurors to imagine themselves as potential future victims and to punish the defendant as a preventive measure. Reptile tactics should be challenged on similar grounds, with the same urgency.

How Courts Have Treated Challenges to Reptile Tactics

Courts hearing challenges to reptile tactics generally employ a very fact-sensitive inquiry.  Courts are generally reluctant to issue guardrail-type decisions to prevent parties from wandering into irrelevant policy-based inquiry but are more likely to bar specifically enumerated topics, where the prejudice is clear and the probative value limited.

Several courts have granted relief where inflammatory arguments crossed the line into impermissible territory. In Intramed, Inc. v. Guider, 93 So. 3d 503 (Fla. 4th Dist. 2012), closing arguments designed to encourage jurors to make defendants “take responsibility” and “punish” the defendant for forcing the plaintiff to litigate warranted a new trial. In Las Palmas Associates v. Las Palmas Center Associates, 1 Cal. Rptr. 2d 301, 315 (Cal. App. 1991), the court held that a motion to bar evidence of a defendant’s wealth, evidence capable of inducing factfinders to abandon objectivity, should have been brought in limine. In Klotz v. Sears & Roebuck Co., 267 F.2d 53 (7th Cir. 1959), appeals for jurors to “do unto others as you would have them do unto you” compelled reversal. And in Ivy v. Security Barge Lines, Inc., 585 F.2d 732 (5th Cir. 1978), golden rule arguments required a new trial.

Courts have also made clear that timely objection is essential to preserve the issue. Where golden rule or reptile-style arguments go unchallenged at trial, courts are reluctant to grant relief on appeal. Blevins v. Cessna, 728 F.2d 1576 (10th Cir. 1984); Rose v. Jaques, 597 S.E.2d 64, 76 (Va. 2004). By contrast, where trial courts have issued curative instructions, appellate courts have found those instructions adequate to address the harm. Forrestal v. Magendantz, 848 F.2d 303 (1st Cir. 1988). Not every appeal to community conscience rises to the level of reversible error, but when such arguments are specifically designed to inflame the jury, courts have not hesitated to act. United States v. Lester, 749 F.2d 1288 (9th Cir. 1984).

The common thread across these decisions is this: the more specifically the challenge is framed, and the earlier it is raised, the more likely a court is to grant meaningful relief.

Summary

The best defense against reptile tactics is to recognize and address them as early as possible.  They should be challenged at the pleading stage, during discovery and pre-trial. Challenges should be narrow and pointed.  At trial, appropriate objections must be raised as soon as reptile tactics appear, both to obtain curative rulings and preserve issues for appeal. It is only through recognition and timely challenge to reptile tactics can the paramount duty of ensuring a fair trial based on logic and reason be preserved.

Originally published in New Jersey Law Journal: Recognizing and Combating ‘Reptile Tactics’ in Litigation, Part 2