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Filing # 198058283 E-Filed 05/10/2024 12:01:15 PM
99787-5
IN THE CIRCUIT COURT
IN AND FOR THE NINTH JUDICIAL CIRCUIT
FOR OSCEOLA COUNTY, FLORIDA
SHELLY HATMAKER, CIRCUIT CIVIL DIVISION
Plaintiff, CASE NO. 2021 CA 000552 ON
vs.
7-ELEVEN and ANNABELLE PENA,
Defendant.
____________________________/
DEFENDANT’S THIRD MOTION IN LIMINE
Defendant, 7-Eleven, by and through the undersigned attorneys, and pursuant to the Florida
Rules of Civil Procedure, hereby submit its Third Motion in Limine to preclude Plaintiff’s counsel
from making “Golden Rule” arguments or utilizing the “Reptile Strategy,” as discussed in greater
detail below.
INTRODUCTION
Defendant anticipates Plaintiff’s counsel will, in voir dire and throughout the course of the
trial, attempt to argue to the prospective jurors and jury that they have the power to improve the
safety of themselves, their family members and their community by rendering a verdict that will
reduce or eliminate dangerous conduct on the part of corporate entities. This trial tactic has been
published as a way to induce or appeal to the juror. It is referred to as the “Reptile Strategy”,
authored by David Ball and Don Keenan. Reptile: The 2009 Manual of the Plaintiff’s Revolution
(1st ed. 2009).
The psychological premise of the Reptile Strategy is that jurors, like all persons, have
brains consisting of various parts, one of which the authors refer to as the “Reptilian Complex.”
Id. The “Reptilian Complex,” also known as the reptilian brain, includes the brain stem and the
cerebellum, which control our basic life functions, such as breathing, hunger, and survival. Id.
According to the authors, the reptilian brain instinctively overpowers the cognitive and emotional
parts of the brain when those life functions become threatened. Id. at 17. The authors posit that
“[w]hen the Reptile sees a survival danger, even a small one, she protects her genes by impelling
the juror to protect herself and the community.” Id. at 17, 19 and 73. They suggest that reducing
danger in the community facilitates survival, which awakens the reptilian part of the brain in each
juror and overcomes his or her logic or emotion. Id. at 45.
The authors encourage plaintiff lawyers to appeal to a juror's own sense of self-preservation
in order to persuade and prevail. According to Mr. Ball and Mr. Keenan, appealing to a juror's self-
protective interests will reverberate and convince better than any other argument. Because the most
powerful thinking occurs when one is protecting one's life, a lawyer can communicate most
effectively by converting every issue into one of self-protection or its cousin—“community
safety.” By linking each argument in some way to a juror's sense of personal or community safety,
the Reptile Strategy gives jurors a compelling, subliminal reason to rule in favor of a plaintiff over
a defendant, despite what their logic and the evidence might tell them.
Mr. Ball and Mr. Keenan instruct plaintiff lawyers to “use the powerful Reptilian
imperative to use devastating events as a springboard from which to create safety.” Id. The authors
further instruct that “[e]very injury presents a hope for a safer future. Position the jurors as the
cultivators of that hope.” Id.
Accordingly, any mention, comment, reference, testimony, or argument regarding
“personal safety,” “safety rules,” or “community safety” should be precluded because they are akin
to Golden Rule arguments, which are expressly prohibited under Florida law. “Personal safety,”
“safety rules,” and “community safety” arguments should also be precluded because they violate
-2-
Florida’s Standard Jury Instructions and undermine Defendant’s Due Process right to an impartial
jury and fair trial. Finally, “personal safety,” “safety rules,” and “community safety” evidence
should be precluded pursuant to Florida Statutes § 90.401 and § 90.403 because it is irrelevant and
its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the
issues and misleading the jury.
Examples of Reptile Strategy During Voir Dire
The following questions are examples of the types of questions that could be asked during
voir dire that would fall within the gambit of Reptile Strategy:
Q: Aside and apart from money for damages, how do you feel
verdicts might affect community safety?
Q: Do you feel you are a person that could be asked to decide
some rules about community safety and to make those
decisions?
These are just a couple of the types of questions that should not be asked of the prospective
jurors during voir dire.
Examples of Reptile Strategy During Closing Argument
The following statements are examples of the types of arguments that could be made
during closing that would fall within the gambit of Reptile Strategy:
S: You chose to be here, and so now you are here to decide
what rules we are going to condone in this community for
safety and what rules we're going to apply to the
circumstances of this case.
S: A jury is an incredibly powerful thing. I believe it is the most
powerful group a person can belong to. For that reason, most
countries do not have them. Juries protect the community
and set the safety standards.
S: The defendant’s lack of understanding and caring about
community safety standards caused harm to the plaintiff.
-3-
The plaintiff never got to make those decisions. The decision
is up to you.
S: The defendant’s conduct continues to threaten everybody.
This type of conduct is a powder keg, okay. We have heard
from every expert that talked about the standard of care. This
is a community problem, a state problem, and a national
problem.
S: Now, your verdict is about the amount of money it will take
to help and make up for the losses and the harms caused by
the defendant. That is the first part of the verdict. The
second part is about deterring future negligence,
protecting other people that are similarly situated. That
too, is part of your job.
S: Money communicates the message of what you and this
community will tolerate or will not for safety.
These are just a few examples of the types of arguments that should not be made to
the jury during closing argument.
STANDARD OF REVIEW
Under Florida law, it is axiomatic that the purpose and efficacy of a motion in limine
is “to prevent the introduction of improper evidence, the mere mention of which at trial would be
prejudicial.” See Dailey v. Multicon Development, Inc., 417 So. 2d 1106 (Fla. 4th DCA 1982)
citing Adkins v. Seaboard Coast Line Railroad Company, 351 So. 2d 1088 (Fla. 2d DCA 1977).
The Florida Statutes define “relevant” evidence as “evidence tending to prove or disprove a
material fact.” Fla. Stat. § 90.401 (2005). Moreover, under Florida law, even 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.” Fla.
Stat. § 90.403.
MEMORANDUM OF LAW
I. Golden Rule Arguments Are Not Permitted Under Florida Law
-4-
A “Golden Rule” argument urges the jury to place themselves in a party's position to allow
recovery as they would want if they were the party. Under Florida law, an impermissible argument
strikes at that sensitive area of financial responsibility and hypothetically requests the jury to
consider how much they would wish to receive in a similar situation. Stewart v. Cook, 218 So. 2d
491 (Fla. 4th DCA 1969); Seaboard Coastline Railroad Co. v. Addison, 481 So. 2d 3 (Fla. 1st
DCA 1985), disapproved on other grounds, 502 So. 2d 1241 (Fla.1987). Such an argument is
improper because it encourages the jury to depart from neutrality and decide the case on the basis
of personal interest and bias, rather than on the evidence. Schreidell v. Shoter, 500 So. 2d 228
(Fla. 3d DCA 1986). See also Bullock v. Branch, 130 So. 2d 74 (Fla. 1st DCA 1961).
As the court in Schreidell emphasized, the impropriety of a “Golden Rule” argument
derives from the fact that it invites a juror to decide a case on the basis of personal interest and
bias, rather than on the evidence. 500 So. 2d at 233 (emphasis added). That is precisely the type
of interest and bias the Reptile Strategy invites. As its authors suggest, “[e]very injury presents
a hope for a safer future. Position the jurors as the cultivators of that hope.” Reptile at 45. If
Plaintiff’s counsel employs Reptile Strategy, a juror could be persuaded to rely upon the juror's
own sense of self-protection.
In this sense, the Reptile Strategy is nothing more than a veiled Golden Rule argument
because it asks jurors to decide a case on the potential harms and losses that could have occurred
within the “community,” including each juror and his or her family members.
Indeed, as evidenced by the following quotations taken from the Reptile Strategy book, the
trial strategy is to directly or indirectly invoke the underpinnings of the Golden Rule by asking
each juror to put themselves in the same position as a plaintiff—a position of jeopardy that calls
upon survival instincts:
-5-
When the Reptile sees a survival danger, even a small one, she
protects her genes by impelling the juror to protect himself and the
community.
…
It gives jurors personal reason to want to see causation and dollar
amount come out justly, because a defense verdict will further
imperil him. Only a verdict [for the plaintiff] can make them safer.
…
The juror's decision rests on the Reptilian question of which verdict
will make her safer.
...
Just remember that the Reptile does not get involved unless she sees
that the danger is to her, and can be meliorated.
...
The Reptile ignores tragedy because she can't do anything about it.
Instead, the trial...is an opportunity for jurors to use the horror of
[the plaintiff s case] as a way to make their offspring safer.
...
So as with all things Reptilian, you show that the safer decision for
the community (and thus the individual juror) is a fair verdict for
your client.
...
No Reptile can protect herself alone. She protects herself by
protecting the community. The concept of "No man is an island"
shows the Reptile that what's good for the community connects
directly to her, individually—and is good for her.
...
But the Reptile is not particularly concerned with your client. Our
research revealed a different picture: the Reptile is concerned with
the Reptile—meaning the individual juror— his world and family,
their survival, and little else.
...
A case framed in terms of community endangerment is Reptilian.
A hospital-acquired infection case turns Reptilian when jurors see
that the victim could have been anyone who walked through the
doors. "Anyone" means the community. “Community” includes
Juror #3 and her children.
...
Jurors will do what they can to keep their communities (i.e.
themselves) safe when they think their efforts will work.
David Ball and Don Keenan, Reptile: The 2009 Manual of the Plaintiff’s Revolution (1st ed. 2009)
at 17, 18, 39, 72, 73, 86, 99, 149, 170 (emphasis added).
-6-
Although Plaintiff’s counsel may not specifically ask jurors to put themselves in the shoes
of Plaintiff, presenting arguments regarding “personal safety” or “community safety” has the same
intent and mischief—that is to have jurors base their deliberations and verdict not on the evidence
of the case, but rather on the fear that they or other members of their family or community could
be injured and to have them view compensating Plaintiff as a means of diminishing that danger to
themselves and the community of which they are a part.
“Golden Rule” arguments are impermissible in Florida. Where, as here, arguments
regarding “personal safety” or “community safety” are veiled Golden Rule arguments, they too
should be prohibited.
I. Reptile Strategies Violate Florida’s Standard Jury Instructions
During the trial of this matter, this Honorable Court will read certain instructions to the
jury from the Florida Supreme Court’s Standard Jury Instructions, one of which will be based on
Section 700, which reads:
In reaching your verdict, do not let bias, sympathy, prejudice,
public opinion, or any other sentiment for or against any party to
influence your decision. Your verdict must be based on the evidence
that has been received and the law on which I have instructed you.
Florida Standard Jury Instructions – Civil Cases 700.
The jury’s verdict must be based upon the evidence. “Personal safety” and “community
safety” are irrelevant to the legal issue remaining in this case. As such, Plaintiff’s counsel should
be precluded from making any arguments or presenting evidence concerning “personal safety” or
“community safety.”
Moreover, as the above-referenced Jury Instruction makes clear, a juror may not base his
or her verdict on bias, sympathy, prejudice, public opinion, or any other sentiment. Those
instructions were written to help ensure that every litigant receives the fair and impartial trial
-7-
promised to them by the Constitution. Yet arguments of “personal safety” and “community
safety” are premised on eliciting fear or passion in jurors of future harm if a verdict is not entered
in favor of Plaintiff. Such arguments are a blatant appeal to the jury to abandon its duty to render
an impartial verdict predicated on the evidence and the law of the case, and instead, to be
influenced by fear or passion.
Furthermore, jurors are instructed not to be governed by public opinion. Yet, arguments of
“personal safety” and “community safety” invite the jurors to base their verdict on public policy
considerations. Any such strategy should not be countenanced by this Honorable Court.
II. Reptile Strategies Violate Defendant’s Right to Due Process and a Fair Trial
Under the due process clause of the Constitution of the United States and of the State of
Florida, each and every person is guaranteed a fair and impartial trial. Castellano v. Travelers Ins.
Co., 305 So. 2d 268 (Fla. 2d DCA 1974). This holds equally true for civil cases. Id. After all,
The ultimate goal of our court system to attain truth and justice
demands unremitting vigilance and dedication on the part of both
bench and bar to keep every improper influence out of all legal
proceedings.
City of Niceville v. Hardy, 160 So. 2d 535, 538 (Fla. 1st DCA 1964).
Reptile Strategy threatens the impartiality of the jury. As such, it undermines the
Constitutional guarantees of Defendant’s right to a fair and impartial trial.
What is more, Defendant’s liability, if any, would be limited to liability for the damages
that Plaintiff can prove based upon competent and substantial evidence. Jenkins v. Plaza 3000,
Inc., 134 So. 3d 1127 (Fla. 4th DCA 2014). “Competent, substantial evidence” is “‘such evidence
as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred’
or such evidence as is ‘sufficiently relevant and material that a reasonable mind would accept it as
-8-
adequate to support the conclusion reached.’” Heifetz v. Dep't of Bus. Regulation, 475 So. 2d 1277,
1281 (Fla. 1st DCA 1985) (quoting De Groot v. Sheffield, 95 So. 2d 912, 916 (Fla.1957)).
By contrast, Defendant cannot be held liable for hypothetical damages to “the community.”
Inviting the jury to consider how Defendant’s alleged conduct violated “personal safety” or
“community safety” would be tantamount to asking the jury to award damages for hypothetical
wrongs done to others who are not even party to these proceedings. This too would violate
Defendant’s right to due process.
IV. Arguments Based On “Personal Safety” and/or “Community Safety” Are
Irrelevant
Florida law defines “relevant” evidence as “evidence tending to prove or disprove a
material fact.” Fla. Stat. § 90.401 (2005). Arguments concerning “personal safety” and/or
“community safety” are not material to Plaintiff’s claims; however, even if such an issue is
relevant, under Florida law, it 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.” Fla. Stat. § 90.403.
For all of the reasons stated above, the obvious goal of Reptile Strategy is to create unfair
prejudice, confuse the issues and mislead the jurors into believing that their verdict will protect
themselves, their families and their communities from the threat of harm supposedly posed by
Defendant. These types of tactics should not be permitted.
CONCLUSION
The goal of the Reptile Strategy is to have a subliminal impact upon the minds of the
prospective jurors and jury that would create an inherent bias against Defendant. Such arguments
are tantamount to “Golden Rule” arguments, which are not permitted under Florida law. They also
violate Florida’s Standard Jury Instructions and undermine this Defendant’s rights to due process
-9-
and a fair trial. Moreover, arguments of “personal safety” and “community safety” are irrelevant
and, to the extent they may be relevant, should nonetheless be excluded because of the danger of
unfair prejudice, confusion of the issues and misleading the jury.
WE HEREBY CERTIFY that a copy hereof has been electronically served via Florida
ePortal to: Brandon M. Smith, Esquire, brandonmsmith@forthepeople.com,
egarcia@forthepeople.com, haleyjohn@forthepeople.com; on this 10th day of May, 2024.
/s/ Michael C. Tyson
Michael C. Tyson, Esquire
Florida Bar No. 865760
Kayla S. Manning, Esquire
Florida Bar No. 1048790
WICKER SMITH O'HARA MCCOY & FORD, P.A.
Attorneys for 7-Eleven
390 N. Orange Ave., Suite 1000
Orlando, FL 32801
Phone: (407) 843-3939
Fax: (407) 649-8118
ORLcrtpleadings@wickersmith.com
- 10 -
Preview
Filing # 198058283 E-Filed 05/10/2024 12:01:15 PM 99787-5 IN THE CIRCUIT COURT IN AND FOR THE NINTH JUDICIAL CIRCUIT FOR OSCEOLA COUNTY, FLORIDA SHELLY HATMAKER, CIRCUIT CIVIL DIVISION Plaintiff, CASE NO. 2021 CA 000552 ON vs. 7-ELEVEN and ANNABELLE PENA, Defendant. ____________________________/ DEFENDANT’S THIRD MOTION IN LIMINE Defendant, 7-Eleven, by and through the undersigned attorneys, and pursuant to the Florida Rules of Civil Procedure, hereby submit its Third Motion in Limine to preclude Plaintiff’s counsel from making “Golden Rule” arguments or utilizing the “Reptile Strategy,” as discussed in greater detail below. INTRODUCTION Defendant anticipates Plaintiff’s counsel will, in voir dire and throughout the course of the trial, attempt to argue to the prospective jurors and jury that they have the power to improve the safety of themselves, their family members and their community by rendering a verdict that will reduce or eliminate dangerous conduct on the part of corporate entities. This trial tactic has been published as a way to induce or appeal to the juror. It is referred to as the “Reptile Strategy”, authored by David Ball and Don Keenan. Reptile: The 2009 Manual of the Plaintiff’s Revolution (1st ed. 2009). The psychological premise of the Reptile Strategy is that jurors, like all persons, have brains consisting of various parts, one of which the authors refer to as the “Reptilian Complex.” Id. The “Reptilian Complex,” also known as the reptilian brain, includes the brain stem and the cerebellum, which control our basic life functions, such as breathing, hunger, and survival. Id. According to the authors, the reptilian brain instinctively overpowers the cognitive and emotional parts of the brain when those life functions become threatened. Id. at 17. The authors posit that “[w]hen the Reptile sees a survival danger, even a small one, she protects her genes by impelling the juror to protect herself and the community.” Id. at 17, 19 and 73. They suggest that reducing danger in the community facilitates survival, which awakens the reptilian part of the brain in each juror and overcomes his or her logic or emotion. Id. at 45. The authors encourage plaintiff lawyers to appeal to a juror's own sense of self-preservation in order to persuade and prevail. According to Mr. Ball and Mr. Keenan, appealing to a juror's self- protective interests will reverberate and convince better than any other argument. Because the most powerful thinking occurs when one is protecting one's life, a lawyer can communicate most effectively by converting every issue into one of self-protection or its cousin—“community safety.” By linking each argument in some way to a juror's sense of personal or community safety, the Reptile Strategy gives jurors a compelling, subliminal reason to rule in favor of a plaintiff over a defendant, despite what their logic and the evidence might tell them. Mr. Ball and Mr. Keenan instruct plaintiff lawyers to “use the powerful Reptilian imperative to use devastating events as a springboard from which to create safety.” Id. The authors further instruct that “[e]very injury presents a hope for a safer future. Position the jurors as the cultivators of that hope.” Id. Accordingly, any mention, comment, reference, testimony, or argument regarding “personal safety,” “safety rules,” or “community safety” should be precluded because they are akin to Golden Rule arguments, which are expressly prohibited under Florida law. “Personal safety,” “safety rules,” and “community safety” arguments should also be precluded because they violate -2- Florida’s Standard Jury Instructions and undermine Defendant’s Due Process right to an impartial jury and fair trial. Finally, “personal safety,” “safety rules,” and “community safety” evidence should be precluded pursuant to Florida Statutes § 90.401 and § 90.403 because it is irrelevant and its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues and misleading the jury. Examples of Reptile Strategy During Voir Dire The following questions are examples of the types of questions that could be asked during voir dire that would fall within the gambit of Reptile Strategy: Q: Aside and apart from money for damages, how do you feel verdicts might affect community safety? Q: Do you feel you are a person that could be asked to decide some rules about community safety and to make those decisions? These are just a couple of the types of questions that should not be asked of the prospective jurors during voir dire. Examples of Reptile Strategy During Closing Argument The following statements are examples of the types of arguments that could be made during closing that would fall within the gambit of Reptile Strategy: S: You chose to be here, and so now you are here to decide what rules we are going to condone in this community for safety and what rules we're going to apply to the circumstances of this case. S: A jury is an incredibly powerful thing. I believe it is the most powerful group a person can belong to. For that reason, most countries do not have them. Juries protect the community and set the safety standards. S: The defendant’s lack of understanding and caring about community safety standards caused harm to the plaintiff. -3- The plaintiff never got to make those decisions. The decision is up to you. S: The defendant’s conduct continues to threaten everybody. This type of conduct is a powder keg, okay. We have heard from every expert that talked about the standard of care. This is a community problem, a state problem, and a national problem. S: Now, your verdict is about the amount of money it will take to help and make up for the losses and the harms caused by the defendant. That is the first part of the verdict. The second part is about deterring future negligence, protecting other people that are similarly situated. That too, is part of your job. S: Money communicates the message of what you and this community will tolerate or will not for safety. These are just a few examples of the types of arguments that should not be made to the jury during closing argument. STANDARD OF REVIEW Under Florida law, it is axiomatic that the purpose and efficacy of a motion in limine is “to prevent the introduction of improper evidence, the mere mention of which at trial would be prejudicial.” See Dailey v. Multicon Development, Inc., 417 So. 2d 1106 (Fla. 4th DCA 1982) citing Adkins v. Seaboard Coast Line Railroad Company, 351 So. 2d 1088 (Fla. 2d DCA 1977). The Florida Statutes define “relevant” evidence as “evidence tending to prove or disprove a material fact.” Fla. Stat. § 90.401 (2005). Moreover, under Florida law, even 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.” Fla. Stat. § 90.403. MEMORANDUM OF LAW I. Golden Rule Arguments Are Not Permitted Under Florida Law -4- A “Golden Rule” argument urges the jury to place themselves in a party's position to allow recovery as they would want if they were the party. Under Florida law, an impermissible argument strikes at that sensitive area of financial responsibility and hypothetically requests the jury to consider how much they would wish to receive in a similar situation. Stewart v. Cook, 218 So. 2d 491 (Fla. 4th DCA 1969); Seaboard Coastline Railroad Co. v. Addison, 481 So. 2d 3 (Fla. 1st DCA 1985), disapproved on other grounds, 502 So. 2d 1241 (Fla.1987). Such an argument is improper because it encourages the jury to depart from neutrality and decide the case on the basis of personal interest and bias, rather than on the evidence. Schreidell v. Shoter, 500 So. 2d 228 (Fla. 3d DCA 1986). See also Bullock v. Branch, 130 So. 2d 74 (Fla. 1st DCA 1961). As the court in Schreidell emphasized, the impropriety of a “Golden Rule” argument derives from the fact that it invites a juror to decide a case on the basis of personal interest and bias, rather than on the evidence. 500 So. 2d at 233 (emphasis added). That is precisely the type of interest and bias the Reptile Strategy invites. As its authors suggest, “[e]very injury presents a hope for a safer future. Position the jurors as the cultivators of that hope.” Reptile at 45. If Plaintiff’s counsel employs Reptile Strategy, a juror could be persuaded to rely upon the juror's own sense of self-protection. In this sense, the Reptile Strategy is nothing more than a veiled Golden Rule argument because it asks jurors to decide a case on the potential harms and losses that could have occurred within the “community,” including each juror and his or her family members. Indeed, as evidenced by the following quotations taken from the Reptile Strategy book, the trial strategy is to directly or indirectly invoke the underpinnings of the Golden Rule by asking each juror to put themselves in the same position as a plaintiff—a position of jeopardy that calls upon survival instincts: -5- When the Reptile sees a survival danger, even a small one, she protects her genes by impelling the juror to protect himself and the community. … It gives jurors personal reason to want to see causation and dollar amount come out justly, because a defense verdict will further imperil him. Only a verdict [for the plaintiff] can make them safer. … The juror's decision rests on the Reptilian question of which verdict will make her safer. ... Just remember that the Reptile does not get involved unless she sees that the danger is to her, and can be meliorated. ... The Reptile ignores tragedy because she can't do anything about it. Instead, the trial...is an opportunity for jurors to use the horror of [the plaintiff s case] as a way to make their offspring safer. ... So as with all things Reptilian, you show that the safer decision for the community (and thus the individual juror) is a fair verdict for your client. ... No Reptile can protect herself alone. She protects herself by protecting the community. The concept of "No man is an island" shows the Reptile that what's good for the community connects directly to her, individually—and is good for her. ... But the Reptile is not particularly concerned with your client. Our research revealed a different picture: the Reptile is concerned with the Reptile—meaning the individual juror— his world and family, their survival, and little else. ... A case framed in terms of community endangerment is Reptilian. A hospital-acquired infection case turns Reptilian when jurors see that the victim could have been anyone who walked through the doors. "Anyone" means the community. “Community” includes Juror #3 and her children. ... Jurors will do what they can to keep their communities (i.e. themselves) safe when they think their efforts will work. David Ball and Don Keenan, Reptile: The 2009 Manual of the Plaintiff’s Revolution (1st ed. 2009) at 17, 18, 39, 72, 73, 86, 99, 149, 170 (emphasis added). -6- Although Plaintiff’s counsel may not specifically ask jurors to put themselves in the shoes of Plaintiff, presenting arguments regarding “personal safety” or “community safety” has the same intent and mischief—that is to have jurors base their deliberations and verdict not on the evidence of the case, but rather on the fear that they or other members of their family or community could be injured and to have them view compensating Plaintiff as a means of diminishing that danger to themselves and the community of which they are a part. “Golden Rule” arguments are impermissible in Florida. Where, as here, arguments regarding “personal safety” or “community safety” are veiled Golden Rule arguments, they too should be prohibited. I. Reptile Strategies Violate Florida’s Standard Jury Instructions During the trial of this matter, this Honorable Court will read certain instructions to the jury from the Florida Supreme Court’s Standard Jury Instructions, one of which will be based on Section 700, which reads: In reaching your verdict, do not let bias, sympathy, prejudice, public opinion, or any other sentiment for or against any party to influence your decision. Your verdict must be based on the evidence that has been received and the law on which I have instructed you. Florida Standard Jury Instructions – Civil Cases 700. The jury’s verdict must be based upon the evidence. “Personal safety” and “community safety” are irrelevant to the legal issue remaining in this case. As such, Plaintiff’s counsel should be precluded from making any arguments or presenting evidence concerning “personal safety” or “community safety.” Moreover, as the above-referenced Jury Instruction makes clear, a juror may not base his or her verdict on bias, sympathy, prejudice, public opinion, or any other sentiment. Those instructions were written to help ensure that every litigant receives the fair and impartial trial -7- promised to them by the Constitution. Yet arguments of “personal safety” and “community safety” are premised on eliciting fear or passion in jurors of future harm if a verdict is not entered in favor of Plaintiff. Such arguments are a blatant appeal to the jury to abandon its duty to render an impartial verdict predicated on the evidence and the law of the case, and instead, to be influenced by fear or passion. Furthermore, jurors are instructed not to be governed by public opinion. Yet, arguments of “personal safety” and “community safety” invite the jurors to base their verdict on public policy considerations. Any such strategy should not be countenanced by this Honorable Court. II. Reptile Strategies Violate Defendant’s Right to Due Process and a Fair Trial Under the due process clause of the Constitution of the United States and of the State of Florida, each and every person is guaranteed a fair and impartial trial. Castellano v. Travelers Ins. Co., 305 So. 2d 268 (Fla. 2d DCA 1974). This holds equally true for civil cases. Id. After all, The ultimate goal of our court system to attain truth and justice demands unremitting vigilance and dedication on the part of both bench and bar to keep every improper influence out of all legal proceedings. City of Niceville v. Hardy, 160 So. 2d 535, 538 (Fla. 1st DCA 1964). Reptile Strategy threatens the impartiality of the jury. As such, it undermines the Constitutional guarantees of Defendant’s right to a fair and impartial trial. What is more, Defendant’s liability, if any, would be limited to liability for the damages that Plaintiff can prove based upon competent and substantial evidence. Jenkins v. Plaza 3000, Inc., 134 So. 3d 1127 (Fla. 4th DCA 2014). “Competent, substantial evidence” is “‘such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred’ or such evidence as is ‘sufficiently relevant and material that a reasonable mind would accept it as -8- adequate to support the conclusion reached.’” Heifetz v. Dep't of Bus. Regulation, 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985) (quoting De Groot v. Sheffield, 95 So. 2d 912, 916 (Fla.1957)). By contrast, Defendant cannot be held liable for hypothetical damages to “the community.” Inviting the jury to consider how Defendant’s alleged conduct violated “personal safety” or “community safety” would be tantamount to asking the jury to award damages for hypothetical wrongs done to others who are not even party to these proceedings. This too would violate Defendant’s right to due process. IV. Arguments Based On “Personal Safety” and/or “Community Safety” Are Irrelevant Florida law defines “relevant” evidence as “evidence tending to prove or disprove a material fact.” Fla. Stat. § 90.401 (2005). Arguments concerning “personal safety” and/or “community safety” are not material to Plaintiff’s claims; however, even if such an issue is relevant, under Florida law, it 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.” Fla. Stat. § 90.403. For all of the reasons stated above, the obvious goal of Reptile Strategy is to create unfair prejudice, confuse the issues and mislead the jurors into believing that their verdict will protect themselves, their families and their communities from the threat of harm supposedly posed by Defendant. These types of tactics should not be permitted. CONCLUSION The goal of the Reptile Strategy is to have a subliminal impact upon the minds of the prospective jurors and jury that would create an inherent bias against Defendant. Such arguments are tantamount to “Golden Rule” arguments, which are not permitted under Florida law. They also violate Florida’s Standard Jury Instructions and undermine this Defendant’s rights to due process -9- and a fair trial. Moreover, arguments of “personal safety” and “community safety” are irrelevant and, to the extent they may be relevant, should nonetheless be excluded because of the danger of unfair prejudice, confusion of the issues and misleading the jury. WE HEREBY CERTIFY that a copy hereof has been electronically served via Florida ePortal to: Brandon M. Smith, Esquire, brandonmsmith@forthepeople.com, egarcia@forthepeople.com, haleyjohn@forthepeople.com; on this 10th day of May, 2024. /s/ Michael C. Tyson Michael C. Tyson, Esquire Florida Bar No. 865760 Kayla S. Manning, Esquire Florida Bar No. 1048790 WICKER SMITH O'HARA MCCOY & FORD, P.A. Attorneys for 7-Eleven 390 N. Orange Ave., Suite 1000 Orlando, FL 32801 Phone: (407) 843-3939 Fax: (407) 649-8118 ORLcrtpleadings@wickersmith.com - 10 -