With Jeff Schwartz and Diane Wyzga, I have coauthored an article for the new edition of The Jury Expert. The article is titled "Atticus Finch Would Not Approve: Why a Courtroom Full of Reptiles Is a Bad Idea." You may read the article's Introduction here or, of course, at the article. (You will need to the read the whole article to fully understand the comments I make in this post.)
My motivation for being involved in writing the article was three-part.
First, I believe that a person has both the right and responsibility to deliberate and reflect when making decisions about his behavior, as well as about that of others. And I believe that the ability to deliberate and reflect is what makes us uniquely human. To the extent that the reptile technique attempts to disrupt a person's reflection and throw him into a state of reaction, it is, in my opinion, inhumane.
Second, I see all the anecdotal claims of the success of the reptile technique as unfounded. When I was still practicing law, I recall many pieces of advice being sold to trial lawyers by consultants. One that remains in my mind was given by a charismatic expert (nowadays would he'd likely be called a"coach") at the local bar association about the use of color. He said purple was a power color and wearing it would convey that power to the jury.
Soon the courtrooms were dotted with purple ties and scarves. Many lawyers thought the use of colored garments was effective. However, as with any of these gimmicks, one can never measure whether it is the gimmick or talisman that supports courtroom success, or the heightened sense of confidence that the lawyer feels because she believes in reptiles or in purple. Confidence is very persuasive whether it comes from the belief in a color, an animal, or a wand.
My third purpose follows from the fact I cannot agree with the consequentialist arguments made in defense of the reptile theory. But there are those who feel comfortable with the ends justifying the means. The choice to use the reptile is individual, of course. All along, I have thought the article might be useful for those who had been seduced into using the theory without thoroughly thinking about how its use aligns (or doesn't) with their deepest values. That alignment has already been discussed in the article in the section about the wisdom check. The article was meant to be for some a caution.
Most of the commenters and responders were thoughtful. Right now, it does not seem useful to answer them at the micro-level and write things such as, "I believe clients do not go to lawyers for justice but for advocacy in the justice system." The macro-level of discussion has much potential and could go on for a long time and because the topic so rich so I prefer to stay up there.
I will close for today by saying I was disappointed that the use in the article of Atticus Finch, archetype of a principled and honorable lawyer, was said by some to be a mistake because he lost. In an article looking at topics which included values inherent in a practice, I believe we could have included no better moral compass.
Image credit: The Independent.