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2 Reptile Theory: What You Need to Know in 2016 Strategies for Counsel and Clients Thursday, January 28, 2016 Presented By: Richard E. Spicer Spicer Rudstrom, PLLC, Nashville, Tennessee Christian Stegmaier Collins & Lacy, PC, Columbia, South Carolina

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4 Reptile Strategy: A Primer The Plaintiff s Attorney s Traditional Approach Focus has been on engendering sympathy Day in the Life Videos, emotional testimony from family members, etc.

5 Reptile Strategy: A Primer The Plaintiff s Attorney s New Approach Focus has gone from attempting to elicit sympathy for the plaintiff to a fixation on the defendant s conduct and/or behavior. Plaintiff s counsel seeks to invest the jury in the outcome and make them care about the verdict. It s about community.

6 Reptile Strategy: A Primer The Plaintiff s Attorney s New Approach Principle of motivated reasoning. The focus or motivation via the Reptile Theory is on anger. The idea is to make jurors believe the worst about the defendant (typically a company) and its record (such as its safety record).

7 The Reptile Strategy: The Formula In the formula Ball and Keenan advocate, Safety Rule + Danger = Reptile Once the advocate is able to identify such a rule, and show the jury the danger to themselves and the community when it s violated, then they ve awakened those jurors reptile brains, motivating them to equate justice in this case with their own security.

8 Umbrella Rule - Every Reptile Case must have one. The widest general rule violated by the defendant and one to which every juror can identify or relate Example: A is not allowed to needlessly endanger the public. Case specific rules, the Reptile attorney will try to turn in to the law will stem from this, to awaken the reptile.

9 Reptile Strategy: Plaintiff s Strategies The Reptile Theory can be conceptualized as a planning strategy that gets plaintiffs attorneys to focus early in the case on crafting the themes. These themes are honed and enunciated through: (1) deposition; (2) voir dire; and (3) opening statements.

10 Reptile Strategy: Plaintiff s Strategies The focus is on three main sections of the process: The deposition as the key to getting admissions from the company; The voir dire to prime the jurors with the themes before the opening; and The opening to capitalize on the groundwork set in each previous stage in an effor to steer jurors responses to the case.

11 Reptile Strategy: Plaintiff s Strategies This process focuses on utilizing the juror s desire to expose and punish the existence of danger when it exists in the community around them and to place blame on a defendant large enough and powerful enough to eliminate that danger.

12 Psychology and the Defense Against The Reptile Strategy The trial lawyer is just a psychologist directing a Broadway play. Everything about trial, including discovery, is about psychology. The Reptile Theory is nothing more than manipulation of the jury using psychology. From the defense perspective, the Reptile Theory is attempting to manipulate jurors by fostering fears that are broader than the confines of the case (an individual with a specific injury, for example) and are not part of the case.

13 Psychology and the Defense Against The Reptile Strategy The Reptile Theory works (when unmatched or unresponded to) because it takes the emphasis off sympathy for the plaintiff and puts the focus on the failures of the defendant. It also works because it moves the emphasis from the individual to the community. Jurors are not just protecting the safety of the individual plaintiff; they are protecting the community s safety a much nobler motivation.

14 Damages They assert the proper measure of damages is the maximum harms and losses that a company or defendant could have possibly caused, not the actual damages in the particular case.

15 Combatting the Plaintiff s Story or Version Constructing the strong case narrative; - Focus on responsibility, innovation, fairness, evidence, science, and facts; Establishment of rules and standards: It cuts both ways; and Proper objections to Plaintiff s shenanigans (discoveryrelated motions, pre-trial motions in limine, and motions at trial). See Hensley v. Methodist Healthcare Hospitals, 2015 WL (W.D. Tenn. August 27, 2015); Pracht v. Saga Freight Logistics, LLC, 2015 WL (W.D.N.C. October 30, 2015); Palmer v. Virginia Orthopaedic, PC, 2015 WL (Va.Cir.Ct. June 19, 2016)

16 Combatting the Plaintiff s Story or Version Also, defense lawyers have learned to prepare for and defend against this strategy in a variety of psychological ways, as well as through legal means. Attorneys have argued that many of the plays to the jurors own emotions violate the Golden Rule constraints of the law and are not ethical.

17 The Golden Rule in disguise- and another motion in limine topic Instead of using the term you to the jury, the Reptile attorney will use the community the public the citizens of our city family and friends send a message.and more Be on the lookout and ready to call the Reptile attorney out!

18 Combatting the Plaintiff s Story or Version The idea of being manipulated can be very threatening. In one of Don Keenan s Georgia trials in 2010, for example, defense counsel called out the Reptile Strategy by name and previewed what Keenan was likely to do in closing. Just like any other strategy, it becomes less effective when it is known and named.

19 Keeping the Case from Going Off the Rails Reptile-esque questions will be found in the following lines of inquiries at deposition: Deposition questions about safety standards and importance Deposition questions about industry standards and norms Deposition questions about awareness of risk or danger Deposition questions about costs

20 Keeping the Case from Going Off the Rails Strategies for getting things right include: Thorough preparation of all employee witnesses; Selecting the right/best Rule 30(b)(6) deponent or deponents (and not just the most convenient or accessible); Understandable (i.e., non-legalese) explanation to witnesses of Plaintiff s prospective Reptile Theory strategies; and Mock depositions (where appropriate and necessary).

21 If at all possible, be aggressive defending depositions of company witnesses: Is this a Rule 30(b)(6) witness? If not, try to make that clear on the record upon the first questions about company policy and procedure. Routine employees should not be construed as testifying to company policy and procedure in any binding way. If it is, be extremely diligent in holding Plaintiff s counsel tightly to the 30(b)(6) deposition notice. They will try to deviate and stray for surprise. Are follow-up questions of your own client rep necessary?

22 Old style deposition prep can be harmful: Yes- and No- type answers can be helpful to Reptile attorneys. Have the witness ready to (1) recognize when the Reptile questions are starting; and (2) how to deal with the questions. Put answers in context. Qualifications by the witness and explaining answers during the deposition can derail the Reptile attorney s process. Good deposition flow and rhythm is good for the Reptile attorney. They have no Key Narrative for the Reptile Theory if they do not get defense witnesses to summarily Agree with their terms, rules and definitions.

23 Extreme deposition problems Know the rules on advising a witness not to answer the question. Know the rules on stopping a deposition in its tracks. Do deposition breaks help the Reptile Attorney? Probably so, gives them time to regroup and try again.

24 Spoliation arguments by the Reptile Attorney Increased emphasis on missing video, unsaved video, incomplete video Increased emphasis on missing documents, incomplete investigations etc. Trying to further persuade the jury not to trust the defendant. What are they hiding?

25 They will use your company rules, incident reports, policy and procedures against you. Be prepared for trick questions on these. Company policy is not usually the law. They will focus on accident reporting guidelines and investigation- were they followed? Motions in limine will likely be required.

26 Be on the lookout during the written discovery stage as well: Are all the documents they request really discoverable? Do they pass even the most liberal relevancy standard? If they overly concentrate on fighting hard for every policy, rule and procedure, odds are they are setting up for a Reptile deposition. Consider fighting particularly hard at the written discovery stage to (1) flush out the Reptile Theory and (2) to start educating the judge. Request for Admissions- Do not let them pin you down if at all possible.

27 A young dog s behavior and reactions are not always predictable. TRUE TRUE FALSE FALSE Tom Edwards

28 The owner of a dog has a duty to keep that dog under reasonable control at all times. TRUE FALSE Tom Edwards

29 When in public places, dogs must be on a leash. TRUE FALSE Tom Edwards

30 Even if you consider your dog safe, you must have it on a leash when in public places. TRUE FALSE Tom Edwards

31 Dogs must be socialized with children in order for them to be safe when around children. TRUE FALSE Tom Edwards

32 Bad Ethics? There are instances of extreme Reptile Attorneys being reported to the BPR for unethical behavior. In motions in limine, plant the ethics seed with counsel and the court for further determent. Is the trickery shown on the preceding dog bite- related slides even ethical?

33 The Notion of Anchoring Strategy employed by Reptile plaintiffs in the early stages, particularly during voir dire. Typically involves substantial numbers relating to plaintiff s valuation of the case, especially as it pertains to non-economic damages. Mechanism to gauge a prospective venire member s amenability to awarding a large verdict. Defendants should not be shy about establishing counter-anchors at the same stages.

34 In addition to addressing these by motions in limine, also consider all possible objections at trial, and be ready. Golden Rule Other similar incidents Sending a message Boiling it down to community safety Be ready to invoke rule of completeness, interrupting the Reptile attorney.

35 Thank you. Richard E. Spicer Spicer Rudstrom, PLLC Nashville, Tennessee direct: (615) Christian Stegmaier Collins & Lacy, PC Columbia, South Carolina direct: (803)

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