Crushing Serpents: Understanding Reptile Arguments in Litigation

August 12, 2026 0
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There exists in the plaintiff litigation world a strategy occasionally referred to as the “edge,” the “hit list,” or more commonly as the “reptile” strategy. Paraphrasing the foundational principle of this strategy, plaintiffs are seeking to trigger a fear response in a juror by framing defendants as dangerous to the public, with the verdict being the only method to protect innocents, and by extension the jurors themselves.

This is very relevant to credit unions and credit union service organizations because privacy and data security lawsuits heavily rely on these tactics to receive favorable, large-dollar verdicts.

Background to the reptile strategy

In the late 2000s, David Ball and Don Keenan published Reptile: The 2009 Manual of the Plaintiff’s Revolution. The strategy borrowed a (since discredited) neuroscience theory that humans have a reptile brain that governs self-preservation underneath the rational and emotional layers.

Although the underlying science itself may have been disproven, the reptile strategy has proven highly effective in litigation. The structure is to create in the minds of the jurors a safety rule that has been violated by the defendant. The final framing is to suggest a monetary verdict favoring the plaintiffs is the only way to ensure the safety of the community.

Reptile strategy also has the advantage of clarity, where jurors are presented with “right versus wrong” or even “good versus evil” arguments.  A verdict favoring the defendant is not just wrong but is immoral.

Building the perfect reptile

This strategy is developed in the early phases of litigation, through discovery such as depositions. The goal is to frame the issue at hand where denial of a question’s premise damages the defendant’s credibility, but where answering it affirmatively creates a standard that is impossible for the defendant to meet.

An example would be: “Is a credit union obligated to follow the federal regulations on data security? … And do you agree those regulations are imposed for the safety of the public?”

The goal of this question is to create a trap where a judgment call is turned into an absolute. GLBA regulations are transformed from a regulatory compliance framework into “safety rules” where any violation endangers the jurors. Unless these questions are objected to, nearly all defense witnesses will answer yes to these questions. At that point, the plaintiffs have already won a significant concession, since any potential violation is now a matter of public safety which affects the jurors.

Another powerful strategy is to use contract and policy language against the defendant, by finding absolute language. Trap words include statements such as “never,” “always,” “immediately,” and “highest,” which permit the plaintiff to argue a judgment call is in actuality an absolute standard.

In one pixel tracking case, the plaintiffs noted in their complaint that the defendant’s “privacy policy stated expressly that ‘we never provide advertisers or any other third parties any information that reveals a personal health condition or personal health information.’” The plaintiff went on to say that “sensitive personal information communicated … including health information relating to medical treatments and prescriptions, was disclosed to and intercepted by some of the largest advertising and social media companies in the country…”

Use of the word “never” in a public-facing policy opened the door for an argument framing the defendant as a hypocrite and dangerous to public safety. The plaintiffs ultimately won a monetary settlement award.

Use of reptile arguments

Plaintiffs using reptile strategies will ensure that it is designed to have maximum impact on a potential juror. The kinds of highly persuasive closing arguments will have elements designed to sway jurors away from legal arguments and instead towards abstract notions of morality.  In a hypothetical data security case, these arguments might sound similar to the following:

  • A credit union entrusted with financial data must keep it safe. (This is designed to move away from the commercially reasonable standard of data security).
  • Data security rules are important to our community. (Frames the argument into a moral standard rather than a legal one).
  • What the members didn’t know, but the credit union did, was the existence of vulnerabilities in this system. (Frames the defendant as morally weak).

The argument is no longer whether a commercially reasonable security standard was violated; instead, the argument is now an argument of right versus wrong.

The slippery reptile

Boiled to the essence, reptile arguments are just another form of demagoguery, which is not supposed to have a place in court proceedings.  For the unprepared, however, these can be very sly and insidious because they appear on the surface to be fact-based and possibly not even contestable.  In a real-life food product liability case, the plaintiff made the following closing arguments to the jury:

  1. “But you know what, when [the defendant] sells all those burgers, they are more than happy to take our money. We pay for the burger. It goes to them. But when a burger hurts somebody, no responsibility. No accountability. Shame on them, honestly—shame on them.”
  2. “Are these important rules in our community? Are we going to enforce them? Are you going to enforce them? If the rules that we talked about here, the safety rules, if those are important, you need to speak to that and your verdict needs to speak to that. Your verdict will speak volumes echoing outside of this Courthouse. If the rules are not important, if it’s okay for them to serve burgers with bone and someone gets hurt once in a while, and if they get injured, too bad for them. Then you know what? Give these guys a pass. Give them a pass. I don’t think you can. I don’t think you can give them a pass.”
  3. “And this may be the kind of case that triggers something for you a month from now or a year from now. You might be eating a burger. Maybe you’ll read an article that someone else got hurt by a food product. Or you’ll be telling your wife or your husband about the case. That somebody ate a burger, and they did not expect to get hurt. And that safety rules were violated and that you helped to make a wrong right. You made it right, and you held them responsible and accountable.”

These closing arguments have nothing to do with whether or not the defendant violated a standard. These arguments, made in a court of law, are entirely designed to emotionally sway the jury by framing the company as morally irresponsible, and the jury’s verdict is essential in combating injustice.

Not only do such arguments, if unchallenged, make juries much more likely to find against the defendant, but the arguments are also likely to substantially increase the dollar amount paid to the plaintiff.

Effective counter strategies

Experienced counsel can help train witnesses to see these arguments and prepare defenses that stick to the actual questions being presented.  These will appear in the early stages of litigation, and especially in discovery.

Be aware and wary of phrases such as “violation of public safety,” “danger to the community,” “unnecessarily/needlessly endangering the public,” and “systemic problems.” Work with counsel to train and be aware of how to answer these accusations. A counter to a reptile question might look like this:

Q: The credit union’s security rules must have been violated if data was leaked, correct?

A: No. Our rules are in place to help prevent incidents.

This answer emphasizes the rule exists to prevent incidents and is not a guarantee.  The defense might even be able to turn this into a strategic defense by introducing facts that become evidence of reasonableness, such as regular vulnerability patching. This standard-of-care argument is much harder to weaponize.

The other defense is to scrub from policies, marketing materials, and contracts every categorical absolutist claim, such as “we never provide third parties with your information without permission.” This language is extremely easy for plaintiffs to exploit. Using words such as “never” or “always” sets a standard that is impossible for nearly every organization to meet, and where a single failure can be used to frame the defendant as a hypocrite and liar.

Additional resources

Protecting an organization from reptile arguments is critical to the way modern litigation plays out in the discovery process and in the courtroom. Below are some additional resources for researching and understanding how these arguments are made and countered:

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