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Filing # 190093306 E-Filed 01/19/2024 10:33:40 AM
IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT, IN AND
FOR OSCEOLA COUNTY, FLORIDA
ASBEL ALEXANDER LLERENA, CASE NO.: 2020 CA 002872 AN
Plaintiff,
v.
ADRIAN RODRIGUEZ CHAVEZ AND
GRANNY'S GARDEN II, INC.,
Defendants.
_______________________________/
DEFENDANTS’ MOTION IN LIMINE REGARDING
REPTILE THEORY AND ARGUMENT
COMES NOW Defendants, Adrian Rodriguez Chavez And Granny's Garden Ii, Inc.
by and through undersigned counsel, and pursuant to the Florida Rule of Civil Procedure
1.100, hereby moves for an Order restricting the Plaintiff from making any inquiry,
comment, or argument that jurors should base their verdict on damages in an amount
that the jury would charge to endure similar injuries, or that a verdict for the Plaintiff would
make the community safer, because it will prevent the Defendants or others similarly
situated from harming the juror, the juror’s family, someone close to the juror or
community. Defendants further requests an Order precluding reference to Plaintiff as a
“victim” or suggesting the jurors put themselves in place of Plaintiff by way of referring to
the jury as members of the Plaintiff’s community.
I. INTRODUCTION TO THE “REPTILE STRATEGY”
COLE, SCOTT & KISSANE, P.A.
TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX
CASE NO.: 2020 CA 002872 AN
There is a recent trend among plaintiff’s bar suggesting that plaintiff lawyers must
appeal to the juror’s own sense of self-protection to persuade and prevail at trial. This
strategy was codified in REPTILE; The 2009 Manual of the Plaintiff’s Revolution and the
theory self-described as “when the reptile sees a survival danger, even a small one, she
protects her genes by impelling the juror to protect himself and community. . . .” The
authors go on to conclude “The reptile prefers us [the plaintiff’s bar] for two reasons: First,
the reptile is about community (and thus her own) safety—which, in trial, is our exclusive
domain. The defense nearly never has a method to help community safety. The defense
mantra is virtually always, “give danger a pass.”
This plaintiff trial tactic is based upon the notion that appealing to a juror’s self-
protective instincts will reverberate and convince better than any other argument because
the most powerful thinking occurs when one is protecting one’s life. Thus, a trial lawyer
can communicate most effectively by converting every issue into one of self-protections,
or its cousin, community safety. By linking every argument in some way to a juror’s sense
of personal or community safety, the plaintiff’s lawyer increases his chances of prevailing.
Plaintiff lawyers are told to “use powerful Reptilian imperative” to use devastating events
as a springboard from which to create safety. They are further told to express to the jury
that every injury presents a hope for a safer future and to position the jurors are cultivator
of that hope.
To do so, the plaintiff creates a “Safety Rule” the defendant violated instead of a
standard of care defined by a Jury Instruction. By violating this made-up safety rule, the
defendant harmed the plaintiff, and by extension, could go on and harm the jury’s
community. Reptile advocates are taught to “[n]ever separate a rule from the danger it
2
COLE, SCOTT & KISSANE, P.A.
TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX
CASE NO.: 2020 CA 002872 AN
was designed to prevent. . . . Unlike inadvertence, a safety rule violation is something the
Reptile can prevent people from doing in the future.”
At the end of the day, the goal is for the plaintiff’s lawyer to convince the jury that
a verdict for the Plaintiff will make the community safer because it will prevent the
defendant or others similarly situated from harming the juror, his family, or someone close
to him. Reptile advocates are told, “In trial, ‘justice’ helps mainly when you show that
justice equates with safety for the juror’s Reptile.
To show this, you need not violate the Golden Rule restrictions. You will bring
jurors to figure out that community safety is enhanced by means of justice. You are not
asking jurors to sacrifice justice for the sake of safety. You instead show that justice
creates safety.” In the case at bar, it is anticipated that Plaintiffs’ counsel will attempt to
utilize this strategy to distract from real issues in this case. As will be shown, contrary to
the Reptile’s assertion that this method does not violate the Golden Rule, it is the same
wolf disguised in snake’s clothing.
To allow such comments, evidence, or argument would only result in an undue
consumption of this Court’s time, on matter which are prohibited by law, are irrelevant to
the issues in this case, and would be highly improper and prejudicial to Defendant.
II. TESTIMONY OR ARGUMENT REGARIDNG COMMUNITY SAFETY OR PLACING
ONESELF IN THE SHOES OF THE PLAINTIFFS IS IMPROPER AND SHOULD BE
EXCLUDED.
The Court needs to recognize the above “Reptile Theory” for what it is—an attempt
to resurrect and introduce end around “Golden Rule” arguments, which are impermissible
3
COLE, SCOTT & KISSANE, P.A.
TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX
CASE NO.: 2020 CA 002872 AN
in Florida and have been for a very long time. The bottom line is that jurors must not be
asked to put themselves in the place of a party and make a judgment based upon that
virtual reality.
There is a long line of Florida cases prohibiting the “Golden Rule” argument. A
“Golden Rule” argument asks the jurors “to place themselves in the plaintiffs’ position and
urge[s] them to award an amount of money they would desire if they had been the
victims.” Coral Gables Hospital v. Zabala, 520 So. 2d 653 (Fla. 3d DCA 1988). “[A] golden
rule argument . . . is impermissible because it encourages the jurors to decide the case
on the basis of personal interest and bias rather than on the evidence.” Metropolitan Dade
County v. Zapata, 601 So. 2d 239, 241 (Fla. 3d DCA 1992). “Such arguments constitute
reversible error, if a contemporaneous objection is made, because they strike at the very
heart of our justice system.” SDG Dadeland Associates, Inc. v. Anthony, 979 So.2d 997,
1003 (Fla. 3d DCA 2008). “Even when an attorney does not explicitly ask the jurors how
much money they would wish to receive in the plaintiff’s position, comments may violate
the Golden Rule if they implicitly suggest that the jury place itself in the plaintiff's position.”
Id.
In Bocher v. Glass, 874 So.2d 701 (Fla. 1st DCA 2004), plaintiffs’ counsel told the
jury during closing argument that if a “magic button” were placed in front of Mrs. Williams
(naming one of the jurors) and $6 million were placed in front Mr. Brooks (naming another
juror), the plaintiffs would walk past the money and press the button to bring their son
back. The First District found this improper, observing: Although we recognize that the
“magic button” argument did not explicitly ask the jurors how much they would want to
receive had their own child died in an accident, we find it was nonetheless improper. The
4
COLE, SCOTT & KISSANE, P.A.
TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX
CASE NO.: 2020 CA 002872 AN
only conceivable purpose behind counsel’s argument was to suggest that jurors imagine
themselves in the place of Jeffrey’s parents. Counsel utilized jurors’ actual names, and
even set up the jury box as a prop for the “magic button” and the $6 million. “Golden Rule”
arguments are improper because they depend upon inflaming the passions of the jury
and inducing fear and self-interest. See Tremblay v. Santa Rosa County, 688 So. 2d 985
(Fla 1st DCA 1997).
The Plaintiffs should not be able to make “Golden Rule” arguments, including the
argument that a verdict in favor of Plaintiff(s) will make the jurors or their communities
safer. The idea behind this strategy is to play on the jury’s fear to distract from an
objective analysis of the relevant issues of the case. This strategy has been roundly
criticized as an effort to impermissibly manipulate the juror’s emotions in order to obtain
a verdict and damages amount that would be otherwise unascertainable had a jury
examined the fact objectively.
III. THE COURT SHOULD EXCLUDE – “GOLDEN RULE” ARGUMENTS PURSUANT
TO EVIDENCE CODE SECTION 403.
Even if this Court were to determine that suggesting that the jury place themselves
“in plaintiff’s place” or that a verdict in favor of Plaintiff would somehow make the
community safer was in some way relevant to issues in this case, which it is clearly not,
such evidence must be excluded pursuant to section 90.403, Fla. Stat. Section 90.403,
Fla. Stat., provides that relevant evidence is inadmissible if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of issues,
misleading the jury, or needless presentation of cumulative evidence.
5
COLE, SCOTT & KISSANE, P.A.
TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX
CASE NO.: 2020 CA 002872 AN
Not only is it inappropriate to ask the jury to assume the Plaintiff’s place, there is
no doubt that the only purpose for suggesting the jurors put themselves in Plaintiff’s
position, or issue a verdict to promote safety in the community, would be to inflame the
jury and appeal to their bias, prejudice, and emotion. In the same manner, referring to the
Plaintiff as a “victim” or words to that effect will also have no purpose but to prejudice the
Defendants. Such trial tactics are inappropriate, create undue and permanent prejudice,
and must be prohibited.
Furthermore, section 90.402, Fla. Stat., provides that all relevant evidence is
admissible, except as provided by law. Relevant evidence is defined as evidence tending
to prove or disprove a material fact. See section 90.401, Fla. Stat. The case at bar is a
case of alleged negligence. Therefore, the only issues in front of the jury are standard of
care and causation, not hypothetical, non-existent community safety rules created by the
Plaintiff’s counsel. The suggestion, testimony, or argument that are the subject of this
motion in limine, noted above, are therefore not relevant to the determination of liability
or damages and must be excluded on this basis as well.
IV. REQUESTED RELIEF
For the foregoing reasons, the Defendants respectfully request that this Court
issue an Order precluding Plaintiff, their counsel, and all witnesses from making any
reference to, or presenting evidence, testimony, or argument that in any way suggests
that to find for the Plaintiff will make the community safer or prevent the Defendants or
others similarly situated from harming the juror, the juror’s family, or someone close to
6
COLE, SCOTT & KISSANE, P.A.
TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX
CASE NO.: 2020 CA 002872 AN
the juror. Defendants also respectfully requests an Order precluding reference to Plaintiff
as a victim or the suggestion that the jurors put themselves in the place of Plaintiff by way
of referring to the jury as members of the Plaintiff’s community.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 19th day of January, 2024, a true and correct
copy of the foregoing was filed with the Clerk of Osceola County by using the Florida
Courts e-Filing Portal, which will send an automatic e-mail message to the following
parties registered with the e-Filing Portal system: Melissa Alzate, Esq., Morgan &
Morgan, P.A., malzate@forthepeople.com; imerlos@forthepeople.com;
anajera@forthepeople.com, 198 Broadway Avenue, Kissimmee, FL 34741, (407) 452-
1597/(407) 452-1623 (F), Attorney for Plaintiff, Asbel Alexander Llerena.
COLE, SCOTT & KISSANE, P.A.
Counsel for Defendant ADRIAN RODRIGUEZ
CHAVEZ AND GRANNY'S GARDEN II, INC.
Tower Place, Suite 400
1900 Summit Tower Boulevard
Orlando, Florida 32810
Telephone (321) 972-0011
Facsimile (321) 972-0099
Primary e-mail: scott.shelton@csklegal.com
Secondary e-mail: gary.lewis@csklegal.com
Alternate e-mail:
sandra.mcintosh@csklegal.com
By: s/ Gary L. Lewis
SCOTT A. SHELTON
Florida Bar No.: 36486
GARY L. LEWIS
Florida Bar No.: 158887
7
COLE, SCOTT & KISSANE, P.A.
TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX
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Filing # 190093306 E-Filed 01/19/2024 10:33:40 AM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR OSCEOLA COUNTY, FLORIDA ASBEL ALEXANDER LLERENA, CASE NO.: 2020 CA 002872 AN Plaintiff, v. ADRIAN RODRIGUEZ CHAVEZ AND GRANNY'S GARDEN II, INC., Defendants. _______________________________/ DEFENDANTS’ MOTION IN LIMINE REGARDING REPTILE THEORY AND ARGUMENT COMES NOW Defendants, Adrian Rodriguez Chavez And Granny's Garden Ii, Inc. by and through undersigned counsel, and pursuant to the Florida Rule of Civil Procedure 1.100, hereby moves for an Order restricting the Plaintiff from making any inquiry, comment, or argument that jurors should base their verdict on damages in an amount that the jury would charge to endure similar injuries, or that a verdict for the Plaintiff would make the community safer, because it will prevent the Defendants or others similarly situated from harming the juror, the juror’s family, someone close to the juror or community. Defendants further requests an Order precluding reference to Plaintiff as a “victim” or suggesting the jurors put themselves in place of Plaintiff by way of referring to the jury as members of the Plaintiff’s community. I. INTRODUCTION TO THE “REPTILE STRATEGY” COLE, SCOTT & KISSANE, P.A. TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX CASE NO.: 2020 CA 002872 AN There is a recent trend among plaintiff’s bar suggesting that plaintiff lawyers must appeal to the juror’s own sense of self-protection to persuade and prevail at trial. This strategy was codified in REPTILE; The 2009 Manual of the Plaintiff’s Revolution and the theory self-described as “when the reptile sees a survival danger, even a small one, she protects her genes by impelling the juror to protect himself and community. . . .” The authors go on to conclude “The reptile prefers us [the plaintiff’s bar] for two reasons: First, the reptile is about community (and thus her own) safety—which, in trial, is our exclusive domain. The defense nearly never has a method to help community safety. The defense mantra is virtually always, “give danger a pass.” This plaintiff trial tactic is based upon the notion that appealing to a juror’s self- protective instincts will reverberate and convince better than any other argument because the most powerful thinking occurs when one is protecting one’s life. Thus, a trial lawyer can communicate most effectively by converting every issue into one of self-protections, or its cousin, community safety. By linking every argument in some way to a juror’s sense of personal or community safety, the plaintiff’s lawyer increases his chances of prevailing. Plaintiff lawyers are told to “use powerful Reptilian imperative” to use devastating events as a springboard from which to create safety. They are further told to express to the jury that every injury presents a hope for a safer future and to position the jurors are cultivator of that hope. To do so, the plaintiff creates a “Safety Rule” the defendant violated instead of a standard of care defined by a Jury Instruction. By violating this made-up safety rule, the defendant harmed the plaintiff, and by extension, could go on and harm the jury’s community. Reptile advocates are taught to “[n]ever separate a rule from the danger it 2 COLE, SCOTT & KISSANE, P.A. TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX CASE NO.: 2020 CA 002872 AN was designed to prevent. . . . Unlike inadvertence, a safety rule violation is something the Reptile can prevent people from doing in the future.” At the end of the day, the goal is for the plaintiff’s lawyer to convince the jury that a verdict for the Plaintiff will make the community safer because it will prevent the defendant or others similarly situated from harming the juror, his family, or someone close to him. Reptile advocates are told, “In trial, ‘justice’ helps mainly when you show that justice equates with safety for the juror’s Reptile. To show this, you need not violate the Golden Rule restrictions. You will bring jurors to figure out that community safety is enhanced by means of justice. You are not asking jurors to sacrifice justice for the sake of safety. You instead show that justice creates safety.” In the case at bar, it is anticipated that Plaintiffs’ counsel will attempt to utilize this strategy to distract from real issues in this case. As will be shown, contrary to the Reptile’s assertion that this method does not violate the Golden Rule, it is the same wolf disguised in snake’s clothing. To allow such comments, evidence, or argument would only result in an undue consumption of this Court’s time, on matter which are prohibited by law, are irrelevant to the issues in this case, and would be highly improper and prejudicial to Defendant. II. TESTIMONY OR ARGUMENT REGARIDNG COMMUNITY SAFETY OR PLACING ONESELF IN THE SHOES OF THE PLAINTIFFS IS IMPROPER AND SHOULD BE EXCLUDED. The Court needs to recognize the above “Reptile Theory” for what it is—an attempt to resurrect and introduce end around “Golden Rule” arguments, which are impermissible 3 COLE, SCOTT & KISSANE, P.A. TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX CASE NO.: 2020 CA 002872 AN in Florida and have been for a very long time. The bottom line is that jurors must not be asked to put themselves in the place of a party and make a judgment based upon that virtual reality. There is a long line of Florida cases prohibiting the “Golden Rule” argument. A “Golden Rule” argument asks the jurors “to place themselves in the plaintiffs’ position and urge[s] them to award an amount of money they would desire if they had been the victims.” Coral Gables Hospital v. Zabala, 520 So. 2d 653 (Fla. 3d DCA 1988). “[A] golden rule argument . . . is impermissible because it encourages the jurors to decide the case on the basis of personal interest and bias rather than on the evidence.” Metropolitan Dade County v. Zapata, 601 So. 2d 239, 241 (Fla. 3d DCA 1992). “Such arguments constitute reversible error, if a contemporaneous objection is made, because they strike at the very heart of our justice system.” SDG Dadeland Associates, Inc. v. Anthony, 979 So.2d 997, 1003 (Fla. 3d DCA 2008). “Even when an attorney does not explicitly ask the jurors how much money they would wish to receive in the plaintiff’s position, comments may violate the Golden Rule if they implicitly suggest that the jury place itself in the plaintiff's position.” Id. In Bocher v. Glass, 874 So.2d 701 (Fla. 1st DCA 2004), plaintiffs’ counsel told the jury during closing argument that if a “magic button” were placed in front of Mrs. Williams (naming one of the jurors) and $6 million were placed in front Mr. Brooks (naming another juror), the plaintiffs would walk past the money and press the button to bring their son back. The First District found this improper, observing: Although we recognize that the “magic button” argument did not explicitly ask the jurors how much they would want to receive had their own child died in an accident, we find it was nonetheless improper. The 4 COLE, SCOTT & KISSANE, P.A. TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX CASE NO.: 2020 CA 002872 AN only conceivable purpose behind counsel’s argument was to suggest that jurors imagine themselves in the place of Jeffrey’s parents. Counsel utilized jurors’ actual names, and even set up the jury box as a prop for the “magic button” and the $6 million. “Golden Rule” arguments are improper because they depend upon inflaming the passions of the jury and inducing fear and self-interest. See Tremblay v. Santa Rosa County, 688 So. 2d 985 (Fla 1st DCA 1997). The Plaintiffs should not be able to make “Golden Rule” arguments, including the argument that a verdict in favor of Plaintiff(s) will make the jurors or their communities safer. The idea behind this strategy is to play on the jury’s fear to distract from an objective analysis of the relevant issues of the case. This strategy has been roundly criticized as an effort to impermissibly manipulate the juror’s emotions in order to obtain a verdict and damages amount that would be otherwise unascertainable had a jury examined the fact objectively. III. THE COURT SHOULD EXCLUDE – “GOLDEN RULE” ARGUMENTS PURSUANT TO EVIDENCE CODE SECTION 403. Even if this Court were to determine that suggesting that the jury place themselves “in plaintiff’s place” or that a verdict in favor of Plaintiff would somehow make the community safer was in some way relevant to issues in this case, which it is clearly not, such evidence must be excluded pursuant to section 90.403, Fla. Stat. Section 90.403, Fla. Stat., provides that relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence. 5 COLE, SCOTT & KISSANE, P.A. TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX CASE NO.: 2020 CA 002872 AN Not only is it inappropriate to ask the jury to assume the Plaintiff’s place, there is no doubt that the only purpose for suggesting the jurors put themselves in Plaintiff’s position, or issue a verdict to promote safety in the community, would be to inflame the jury and appeal to their bias, prejudice, and emotion. In the same manner, referring to the Plaintiff as a “victim” or words to that effect will also have no purpose but to prejudice the Defendants. Such trial tactics are inappropriate, create undue and permanent prejudice, and must be prohibited. Furthermore, section 90.402, Fla. Stat., provides that all relevant evidence is admissible, except as provided by law. Relevant evidence is defined as evidence tending to prove or disprove a material fact. See section 90.401, Fla. Stat. The case at bar is a case of alleged negligence. Therefore, the only issues in front of the jury are standard of care and causation, not hypothetical, non-existent community safety rules created by the Plaintiff’s counsel. The suggestion, testimony, or argument that are the subject of this motion in limine, noted above, are therefore not relevant to the determination of liability or damages and must be excluded on this basis as well. IV. REQUESTED RELIEF For the foregoing reasons, the Defendants respectfully request that this Court issue an Order precluding Plaintiff, their counsel, and all witnesses from making any reference to, or presenting evidence, testimony, or argument that in any way suggests that to find for the Plaintiff will make the community safer or prevent the Defendants or others similarly situated from harming the juror, the juror’s family, or someone close to 6 COLE, SCOTT & KISSANE, P.A. TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX CASE NO.: 2020 CA 002872 AN the juror. Defendants also respectfully requests an Order precluding reference to Plaintiff as a victim or the suggestion that the jurors put themselves in the place of Plaintiff by way of referring to the jury as members of the Plaintiff’s community. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 19th day of January, 2024, a true and correct copy of the foregoing was filed with the Clerk of Osceola County by using the Florida Courts e-Filing Portal, which will send an automatic e-mail message to the following parties registered with the e-Filing Portal system: Melissa Alzate, Esq., Morgan & Morgan, P.A., malzate@forthepeople.com; imerlos@forthepeople.com; anajera@forthepeople.com, 198 Broadway Avenue, Kissimmee, FL 34741, (407) 452- 1597/(407) 452-1623 (F), Attorney for Plaintiff, Asbel Alexander Llerena. COLE, SCOTT & KISSANE, P.A. Counsel for Defendant ADRIAN RODRIGUEZ CHAVEZ AND GRANNY'S GARDEN II, INC. Tower Place, Suite 400 1900 Summit Tower Boulevard Orlando, Florida 32810 Telephone (321) 972-0011 Facsimile (321) 972-0099 Primary e-mail: scott.shelton@csklegal.com Secondary e-mail: gary.lewis@csklegal.com Alternate e-mail: sandra.mcintosh@csklegal.com By: s/ Gary L. Lewis SCOTT A. SHELTON Florida Bar No.: 36486 GARY L. LEWIS Florida Bar No.: 158887 7 COLE, SCOTT & KISSANE, P.A. TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX