In an article published in the September 2026 issue of DRI’s For The Defense, Mark J. Goldberg, a partner in Cosmich’s Jackson office, examines the use of “reptile theory” in civil litigation. The article offers defense counsel an alternative approach to countering reptile theory tactics that is rooted in common human experience, rational thought, and the legal standards jurors are ultimately charged with applying. Goldberg focuses his practice on toxic torts and products liability and has been a member of DRI since 2022.
A Different Approach for Defense Attorneys
Goldberg explains that while traditional measures such as motions in limine may help counter reptile theory tactics, their effectiveness can vary by venue. Instead, he encourages defense attorneys to supplement those strategies with themes that appeal to the jurors’ reason and deliberative judgment.
In the piece, Goldberg writes, “This article proposes basic concepts designed to get jury members to act like humans, not reptiles, and use the deliberative process to make thoughtful decisions based on the evidence and law presented at trial.”
Goldberg explores several universal concepts throughout the article that defense counsel can incorporate into trial strategy, including the realities that no one is perfect, plaintiffs can make mistakes, first impressions are not always accurate, and an injury does not necessarily establish legal liability. He connects these familiar human experiences to fundamental legal principles involving reasonableness, causation, comparative fault, mitigation of damages, and the applicable standard of care.
In discussing negligence, Goldberg emphasizes that the law generally does not demand perfection from defendants. Rather, the focus is on whether a person or company acted reasonably under the circumstances.
“Reasonableness—not perfection, not extraordinary care, not clairvoyance—is the cornerstone of this foundational tort,” Goldberg maintains.
Applying These Themes at Trial
Goldberg also provides practical suggestions for incorporating these themes throughout trial, from jury instructions and voir dire to closing arguments. The goal is to encourage jurors to resist reflexive or emotional decision-making and instead evaluate the conduct at issue against the standards that are actually imposed by law.
Ultimately, Goldberg encourages defense counsel to pair traditional responses to reptile theory with a broader appeal to the experiences and reasoning jurors bring with them into the courtroom.
“Don’t just play their game,” Goldberg urges. “Try a new playbook.”
Read the Full Article
This post highlights key points from Goldberg’s article, while the complete analysis offers far more detail. Read Goldberg’s article in full in the September 2026 issue of DRI’s For The Defense.