Discovery shapes the way a case develops, and for defense counsel, early recognition of a plaintiff’s strategy can be critical. The Reptile Theory is one deliberate approach that may be introduced early and carried through the life of the case. Although often associated with trial, its foundation is usually laid well in advance, beginning with written discovery and continuing into depositions. Understanding how this approach shows up allows defense counsel to continue analyzing the case, protecting the record, and strategizing the defense.
The Reptile approach focuses on broad safety themes intended to appeal to a juror’s sense of community protection. The idea is to shift attention away from causation or individual fault and toward the potential danger posed by the defendant’s conduct if repeated. This often turns the case into a question of rule-breaking rather than a dispute about facts, injuries, or legal standards.
This approach may begin with requests for admission or interrogatories that build a narrative around general duties or public risk. The defense may receive questions such as, “Admit that drivers should maintain a proper lookout,” or, “Admit that failure to follow statute X, Y, or Z increases the risk of harm to others.” Document requests might seek safety manuals, prior incident reports, or internal communications that appear only marginally related to the facts of the case. When these items are viewed collectively, the goal becomes clearer. The plaintiff is laying a foundation that may be used to argue broader community risk, not just liability in the specific incident.
Depositions often follow a similar structure. The defense witness may be asked whether safety should always come first, whether companies should act to prevent foreseeable harm, or whether certain conduct would create danger for the public if repeated. These questions may sound reasonable. The problem is what follows. After obtaining agreement with a general principle, the attorney may ask the defendant to explain why their conduct did not meet that same standard. This contrast becomes a setup for later argument. In discovery depositions, it does not hurt to object to protect the record, particularly when the line of questioning moves from general duties into implied legal conclusions or overbroad hypotheticals.
The most effective defense to this approach begins with preparation. Recognizing the pattern early allows defense counsel to remain focused on the issues framed by the pleadings and the applicable law. Keeping responses rooted in fact and preserving the record where necessary provides a clearer structure for case analysis. Where appropriate, objections or motions may be necessary if the scope of discovery moves beyond the actual dispute.
Lawyers on both sides use strategy to advocate for their clients. But when the defense understands the broader structure of the approach, it becomes easier to stay grounded in the facts and maintain clarity throughout the discovery process.
Tommy Santel is a co-founding partner of Santel | Garner. Tommy is a former government prosecutor. He is a Tennessee Supreme Court Rule 31 General Civil Mediator and his practice areas include criminal defense and civil litigation.
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