Expert Analysis: Seaman and Webster Examine One of the Leading Drivers of Social Inflation—the "Reptile Theory" Adopted by Plaintiffs' Counsel
Scott Seaman, Hinshaw partner and Chicago-based co-chair of Hinshaw's Global Insurance Services Practice Group, and Diane Webster—partner-in-charge of Hinshaw's Chicago office—co-authored an Expert Analysis byline in Law360 Insurance Authority titled "Taming Plaintiffs' Thriving 'Reptile' Tactics: Why It's Time." In part one of their two part analysis, they discuss the “dangerous double barrel of price level and social inflation” that insurers and their corporate policyholders are confronting for the first time. The article considers the interplay between social inflation—the increase in costs of defending and resolving claims—price level inflation, and the reptile theory adopted by plaintiffs' counsel.
Seaman and Webster note that, while the science behind reptile theory is "debatable at best," it has proven to be a highly successful litigation strategy for plaintiffs. "[R]eptile theory is intended to appeal to jurors' fears and prejudices in order to have them render verdicts driven by their instincts and emotions rather than by logic and facts," they explain. They identify and address various social inflation drivers such as litigation funding, expansion of liability theories, and anti-corporate sentiment and explain how these factors interact with reptile tactics.
The authors explain why many jurors today are particularly susceptible to the reptile, and why many common defense themes are ineffective against reptile tactics. In part two, they will explore how to defeat reptile tactics.
"Taming Plaintiffs' Thriving 'Reptile' Tactics: Why It's Time" was published by Law360 Insurance Authority, July 19, 2022.