Book Review: Reptile, By David Ball and Don C. Keenan
“In suits at common law, trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.” James Madison
“I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” Thomas Jefferson
“First thing we do, let’s kill all the lawyers.” You’ve heard this one before. It is the famous quote from Shakespeare’s Henry VI. Though it is reminiscent of the old joke about lawyers at the bottom of the sea, it was not a joke in the play. In fact, it was part of a scheme, hatched by Dick the Butcher, to enable the rebel Jack Cade to overthrow the king. The people that stood between the Jack the rebel and dominant, unchecked power were lawyers.
This tells us what we already know. Lawyers provide order and accountability in our society. Our jury system was designed to provide justice, deliver order, and insure safety. When wayward people or companies fail to follow the rules, endanger our well being, put profits over safety, and injure innocent people, the wrongdoers can and should be held accountable in a court of law.
But things these days have gone all wrong. The tort “reform” movement has tried, and to a large part it has succeeded, to kill all the lawyers. Our system is losing its power to hold people, corporations, hospitals, and insurance companies accountable for the harm they cause, whether negligently or purposefully. Today and in large numbers, judges, juries, and legislators are motivated by impulses and influences outside the evidence, having nothing to do with the facts of a given case.
Because the tort “reformers” have instilled fear in the hearts and minds of too many of our judges, juries, and legislators. The tort “reformers” have done a number on our culture, assaulting us with decades of propaganda, and well funded at that.
What are our judges, juries, and legislators afraid of? What drives the antagonism that causes us to cap damages on those whose harms and losses include quadriplegia, paraplegia, incapacitating brain injuries, amputation, blindness, and death, while people with less severe injuries like cuts and broken bones are entitled to full recovery? What causes the anger that propels judges and juries to reject evidence, roll their eyes at lawyers pleading their cases, and view the plaintiff and her attorney as lepers? Why do judges and juries tolerate defendants who perjure themselves, but punish a plaintiff whose recollection is incomplete?
The answer: that we must not allow trial lawyers to make money, maybe lots of it, while the economy and our health care system are left in shambles. The greedy trial bar grows fat and happy, while everyone else suffers.
Despite the lack of factual, reliable evidence to support this fear, it sells with force.
In the book, Reptile: The 2009 Manual of the Plaintiff’s Revolution, a must read for any plaintiff’s lawyer who devotes his or her life to the civil justice system, Don Keenan and David Ball explain that tort “reform” appeals to the reptilian brain in each of us. That each of us has a driving force in our brain that seeks survival at all costs. This reptilian part of the brain is the most ancient and enduring feature of our nervous system. It will guide our emotions and our ability to reason in order to secure survival. The brilliance of the tort “reform” propaganda has been its ability to appeal to the reptile. The reptile is awakened when access to health care and success of the economy are threatened, and if greedy trial lawyers are scapegoated as the cause of this threat, the reptile directs its fear and its energy in opposition to the trial bar. All emotional responses and logical justifications fall in line with what the reptile seeks. In turn, we get judges and juries who ignore evidence and accept rule breaking and who look away from negligent, and harmful conduct, and legislators who deliver tort “reform.”
But Keenan and Ball explain that the justice system, and a jury trial in particular, are where the reptile originally found safety, where the reptile could satisfy its urge for survival. The jury system was designed to provide a way to deliver justice, prevent injustice, and ensure safety and survival for the community. When the reptile realizes that each case, especially each tort case, has a direct impact on all of us, and that addressing safety issues on a case by case basis serves to provide order and protection for our society on a widespread basis, the reptile awakens again, but this time in favor of justice and based on the evidence in the courtroom as opposed to fear mongering and myth.
For the reptile, different identities and concepts have codes. The code for injustice is “incompleteness.” For any of us who have ever been part of a transgression, as either culprit or victim, the circle is incomplete until there is a sincere apology and a sincere effort to right the wrong. Failing to close the loop, failing to see the other shoe drop, will cause the problem to linger in our lives, probably forever:
Whether a person committed the injustice or was its victim, the gnawing feeling of its incompletion lingers, often for years, even for life…If the shoe has not dropped, we wait for it. If the injustice was severe enough, the waiting can be torture.
One major reason the civil justice system developed was to complete injustices — i.e., to drop the other shoe. Human beings want it to drop so badly that some mechanism for making it drop is built into most religions.
Reptile: The 2009 Manual of the Plaintiff’s Revolution, p. 83.
The reptile craves justice and it will not stop until it sees justice done. It is time the reptiles in all of us awaken from their slumber, and grow free from the paranoia that lawyers making money will ruin society. There is too much at stake. Our jury system was designed to protect us. Unless we direct our reptiles to engage in the system of justice, and empower ourselves and our fellow citizens to perform as jurors, we will destroy the most democratic and fair method ever created for delivering safety, restoring order, and completing justice.