Behrens and Silverman Examine How Reptile Trial Strategy Affects Mediation

In the March 2016 issue of the International Association of Defense Counsel's (IADC's) Civil Justice Response Committee Newsletter, Shook, Hardy & Bacon Public Policy Partners Mark Behrens and Cary Silverman examine the trial strategy espoused by David Ball and Don Keenan in Reptile: The 2009 Manual of the Plaintiff's Revolution, which "includes advice about how to put defendants and their insurers at a disadvantage in mediation."

The Reptile theory not only describes tactics designed to foster "fear and anger in jurors," but instructs plaintiffs' counsel to insist that “'the person attending the mediation will have—without the need to ask anyone up the ladder—the power to settle for the amount' specified by plaintiff’s counsel." Following this reasoning, the U.S. District Court for the Eastern District of Washington proposed a local rule in 2015 that would have required insurance carriers involved in a defense to attend mediation "with authority for settlement up to the amount last demanded by the plaintiff." The court amended the rule after defense counsel and insurers sought a more balanced approach that allows the insurer "to authorize settlement up to the amount the insurer has valued the case." Among other things, IADC argued that "insurers do not use plaintiff demands as a basis to value a case or authorize settlements, and that plaintiff demands often greatly exceed the actual value of a case."

"Plaintiffs’ lawyers may seek advantages at mediation similar to the initial proposed local rule in the Eastern District of Washington," conclude Behrens and Silverman. "Defense counsel should be on alert… The Eastern District of Washington experience demonstrates that unsound proposals can be defeated if the IADC and others educate the court about the problems raised by such proposals."