Reptiles on the Prowl

Transcription

1 Reptiles on the Prowl Thomas, Thomas & Hafer LLP Thomas, Thomas & Hafer LLP is the largest defense civil litigation firm based in Central Pennsylvania. With its main office in Harrisburg, PA, the firm also has offices in Allentown, Pittsburgh, Philadelphia and Wilkes-Barre, Pennsylvania, as well as Baltimore, Maryland and Clinton, New Jersey, facilitating the firm's ability to provide services throughout Pennsylvania, Maryland, the District of Columbia, New Jersey and West Virginia. PENNSYLVANIA MARYLAND NEW JERSEY WASHINGTON, DC

2 Reptiles on the Prowl 1

3 Presented by: 2

4 3 Presented by: Louis C. Long, Esquire Thomas, Thomas & Hafer LLP 525 William Penn Place 37 th Floor, Suite 3750 Pittsburgh, PA (phone) (fax) Lou is a Reading, PA native and an experienced litigator, who is best known for his diverse appellate practice, in addition to handling insurance coverage and bad faith matters. With Thomas, Thomas & Hafer, his focus is on appellate litigation, insurance coverage & bad faith, and general liability defense litigation. Lou is licensed in PA and WV.

5 4 Reptiles on the Prowl Origins of the Reptile Theory How the Reptile Theory Works Adapting the Reptile to Bad Faith Fighting the Reptile

6 5 What is the Reptile theory? With its underpinnings regarding the primitive brain and various fear factors, the reptile theory fundamentally shifts the emphasis in lawsuits away from sympathy for the plaintiff and toward anger and punishment for a wrongdoer in order to vindicate the safety or similar interests of the community of which trial jurors are members.

7 6 What is the Reptile theory? The Reptile theory is a somewhat new strategy that plaintiff attorneys are using to obtain large jury verdicts at trial. It is called the reptile theory because reptiles go into attack mode when threatened or frightened (i.e., don t mess with an alligator and it won t mess with you).

8 Originators of the Reptile Theory 7

9 8 About the Authors David Ball studied science and engineering at Rensselaer Polytechnic Institute, and later attended Alfred University, the University of Maryland, Catholic University, and the University of Minnesota, from which he holds a Ph.D. in theater and communication. Now, he is a leading trial consultant and jury expert, and a best-selling trial advocacy author.

10 9 About the Authors Don Keenan is an Atlanta, Georgia-based trial lawyer and author. He is the founder of the Keenan Law Firm, which specializes in cases involving children, including injury, medical malpractice, and wrongful death. In more than 40 years of practice, Keenan and his firm have amassed over 300 million dollar verdicts, including 9 that exceeded ten million dollars, and one that eclipsed one hundred million dollars. Keenan and company use state-of-the-art courtroom technology, focus groups and mock juries, and innovative demonstrative evidence. The firm has a video production center, and has its own courtroom.

11 10 Neuroscience American physician and neuroscientist Paul D. MacLean originally formulated his model for the triune brain in the 1960s and propounded it at length in his 1990 book The Triune Brain in Evolution.

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13 12 Debunked but it works!

14 13 How the Reptile Works The Reptile approach generally develops and substantiates one primary theme through the use of a broad safety rule that the defendant allegedly violated and thereby caused the plaintiff s injury.

15 14 Characteristics of the Safety Rule The rule must prevent danger The rule must protect people in a wide variety of situations, not just the plaintiff The rule must be in clear English The rule must explicitly state what a person must or must not do

16 15 More Characteristics The rule must be practical and easy for someone in the defendant s position to have followed The rule must be one that the defendant will either agree with or be deemed stupid, careless, or dishonest.

17 16 In pleadings In discovery In voir dire In openings In testimony In closings In verdicts The Reptile Appears

18 17 The Reptile Theory Adapts to Bad Faith Rarely used in bad faith cases Easily adaptable to bad faith The rhetoric is already there Bad faith Good faith and fair dealing Unfair insurance practices Claims handling rules exist Bad faith is punishable by punitive damages

19 18 Examples of Reptile Themes in Bad Faith Cases Did the insurer unreasonably or without proper cause act or fail to act in manner that deprived the insured of the benefits f the policy? Did the claims representative follow insurance regulations, claims manuals, etc.? Did the claims representative have adequate and proper training or experience?

20 19 More Reptile Themes in Bad Faith Cases Does the claims file adequately document the reasons for the claims decision? Did the insurer fully and fairly investigate the case? Did the insurer look for evidence supporting coverage? Did the insurer disclose all available benefits?

21 20 More Reptile Themes in Bad Faith Cases Did the insurer give the insured s interests the same regard as its own? Did the insurer communicate and explain coverage decisions promptly and honestly? Did the insurer fully pay covered claims? Did the insurer make a fair and reasonable offer?

22 21 Fighting the Reptile Recognition is key Legal defenses Preparation Have a defense theme

23 22 Reptile Pleadings Examples The insurer has a duty of good faith and fair dealing To act in good faith, the insurer must do... Aggressively use preliminary objections or motions to dismiss to clarify or narrow theories Avoid admissions

24 23 Reptile Discovery Common requests might include: Company handbooks or manuals Policies, procedures and protocols Document retention policies Audit results or market surveys Logs for prior claims of bad faith or regulatory complaints Other claims

25 24 Rationale for Reptile Discovery The purpose of acquiring this information is to establish broad rules the insurance company was supposed to follow. After the initial information is produced, the plaintiff s counsel will attempt to obtain an admission that a rule was violated. If plaintiff can establish that a rule existed and that the insurer violated the rule, then plaintiff has the necessary facts to use in arguments that are expected to motivate factfinder to protect the community.

26 25 Opposing Reptile Discovery Motions for protective order Objections Avoid admissions Qualify responses Develop and advance your theme

27 Reptile Depositions Prepare the witness Inform the about a Reptile approach Show how the Reptile approach manipulates the witness to agree with generic rules Watch for unfair, loaded, or trick questions Explain that there is no easy yes or no answer Avoid admissions Qualify the answer 26

28 Reptile Depositions Objections Lacks foundation Vague or ambiguous Misstates the legal standard Irrelevant Intentionally confusing or misleading Hypothetical Incomplete hypothetical Calls for an expert opinion Violates the golden rule 27

29 Reptile Voir Dire Even before a jury has been selected and the opening statements begin, plaintiffs attorneys using the Reptile Theory will aggressively target jurors they believe will litigate from the jury box and be willing to protect society from an unsafe defendant. Instead of the typical questions asked of jurors during voir dire, they will narrow their questions to further their Reptilian goals. 28

30 Reptile Voir Dire Examples of Reptilian voir dire questions: Do you believe that insurance companies have a duty to protect their insureds? Do you believe that a company with its own claims guidelines and standards and policies has an obligation to the general public to follow those standards and policies? 29

31 30 More Reptile Voir Dire Do you believe that an insurer with a history of unfair insurance practices is a danger to the general public? Are you a person who is willing to decide whether an insurance company acted in an unfair manner?

32 Reptile Voir Dire These sample questions illustrate the two goals plaintiffs attorneys seek to achieve during voir dire: (1) identify individuals who will protect the public from a dangerous defendant and (2) prime the eventual jury for the Reptilian theme the plaintiff will present throughout the trial. 31

33 Reptile Voir Dire Examples of defense voir dire in a Reptile case: Some of you may feel that your decision in this case should be based only on what actually took place and what damages the plaintiff actually suffered. On the other hand, some of you may feel that while it is important to consider what actually took place and what harm was actually suffered, it is equally important to evaluate and weigh the loss that could have occurred in this case or in a future case. Who feels that the potential harm and possibility of future harm must be considered in this case? 32

34 More Examples Who believes that the jury s role is to act as the conscience of the community? Who feels that if the jury finds the defendant acted in bad faith, that the jury must send a message to the rest of the insurance companies? 33

35 Reptile Evidence or Argument The Reptile approach will try to inflame the judge or jury by offering evidence regarding general rules designed to protect the community from predatory and unscrupulous insurance companies. 34

36 Motions in Limine Inflammatory Golden rule Improper to send a message Factfinder is not the conscience of the community Misstates legal standards for assessing bad faith 35

37 Rebuttal Evidence If the court allows the use of the Reptile theory, one possible approach is to offer rebuttal evidence from past, satisfied customers or insureds. An author has argued that presentation of reptile evidence opens the door to offer such rebuttal testimony. 36

38 56 Questions? Thanks for coming! Thomas, Thomas & Hafer LLP 525 William Penn Place 37 th Floor, Suite 3750 Pittsburgh, PA