Combating Plaintiffs' Reptilian Tactics in Commercial Vehicle, Premises Liability...
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Combating Plaintiffs' Reptilian Tactics in Commercial Vehicle, Premises Liability, Products Liability, and Med Mal Cases Responding to Reptile Techniques During Discovery, Deposition, Voir Dire, Opening Statement, Cross-Examination, and Closing Argument Today’s faculty features: 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 1. TUESDAY, AUGUST 4, 2020 Brian J. Pokrywka, Partner, Lewis Brisbois Bisgaard & Smith, Cincinnati David A. Senter, Jr., Shareholder, Young Moore and Henderson, Raleigh, N.C. Presenting a 90-minute encore presentation with live Q&A
Transcript of Combating Plaintiffs' Reptilian Tactics in Commercial Vehicle, Premises Liability...
Combating Plaintiffs' Reptilian Tactics in
Commercial Vehicle, Premises Liability,
Products Liability, and Med Mal CasesResponding to Reptile Techniques During Discovery, Deposition, Voir Dire, Opening Statement, Cross-Examination, and Closing Argument
Today’s faculty features:
1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific
The audio portion of the conference may be accessed via the telephone or by using your computer's
speakers. Please refer to the instructions emailed to registrants for additional information. If you
have any questions, please contact Customer Service at 1-800-926-7926 ext. 1.
TUESDAY, AUGUST 4, 2020
Brian J. Pokrywka, Partner, Lewis Brisbois Bisgaard & Smith, Cincinnati
David A. Senter, Jr., Shareholder, Young Moore and Henderson, Raleigh, N.C.
Presenting a 90-minute encore presentation with live Q&A
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Combating Plaintiffs’ Reptilian Tactics
Responding
to Reptile
Techniques
Brian Pokrywka
Lewis, Brisbois, Bisgaard & Smith
◼ Cincinnati, OH
David Senter
Young, Moore & Henderson
◼ Raleigh, NC
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The Book
“Overview: Learn how to make tort
reform’s impact on juries insignificant
by using the jurors’ most primitive
instincts of safety and self-
preservation.”
• David Ball: Jury Consultant
• Don Keenan: Plaintiff’s Attorney
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Happy 11 Year Anniversary
Published in 2009
Claims $10 Billion in settlements & verdicts
38 million reported last week alone
www.reptilekeenanball.com
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Entrepreneur's Delight
2009: Reptile Book
DVDs
Voir dire
Opening
Closing
Live & Online Seminars
2013: Reptile in the Mist and Beyond Book
2014: The Ball Method of Opening Statements DVD
Not limited by venue / geography
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Combating Plaintiffs' Reptilian Tactics in
Commercial Vehicle, Premises Liability, Products
Liability and Med Mal Cases
Reptile Theory
Safety rules exist
Safety rules have been broken
Defendant’s conduct poses danger to the community
Invokes juror fear & danger reactions
Large damages award can deter future danger to community
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“Science” Class11
“Science” Class
Reptile brain
Automatic and involuntary functions that are necessary for basic survival
Survival Mode
Emotion center
Overwhelms the logical part of the brain; focuses on primitive instincts:
Threats
Survival Response
Fight/Flight
Danger vs. Fear
• The science has since been debunked
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Why Successful?
Takes the emphasis off of the Plaintiff’s injuries
Refocuses on injury to “the community”
Hindsight bias
Community = jurors, their families, friends, etc.
More personal connection to the award
Only large damages award can ensure future community safety and deter danger
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Simplified Version
Safety: always a top priority
Danger: never appropriate (at any level)
Top priority: protecting the public/reducing danger
Company: can always do more
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Reptile Safety Rules Must:
Prevent a danger
Protect the public (not just pltf) in a wide variety of
situations
Plain English
Explicitly state what to do or not do
Practical and easy for the defendant to have followed
Defendant will agree with rule or run the risk of looking
careless or dishonest
***SAFETY RULE + DANGER***
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How to Spot a Reptile Early
Spoliation setup letter
Complaint
Motion to dismiss (federal court)
Plaintiff counsel’s reputation
Preservation / discovery requests
Safety Policies, Procedures , Handbooks
Preventability determination
Other prior incidents, violations, etc.
Motions to compel
Notices of depositions contain overly broad topics
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The Reptile’s Language
“Safety”
“Rules”
“Rules of the road”
“Danger”
“All reasonable steps”
“Top priority”
“Needlessly endanger”
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Written Discovery
Narrow the scope
Object to overly broad and irrelevant demands
Redact irrelevant company information
Move for protective orders
Oppose Plaintiff's Motions to Compel and quote the
Reptile Manual
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Deposition Witness Preparation
Requires cognitive and communicative change
Explain the “safety rules theory” = higher damages
Listen to question being asked…
If you don’t understand, ask to rephrase
“Needlessly endanger” not common plain English
Knock the questioning attorney off his/her outline
No bobble head of yes answers
Pay careful attention to objections
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Deposition Preparation Cont’d
Other side looking for sound bites
Vague questions can have vague answers
Testifying for the company, not the entire industry
“It depends…”
“What ‘rules’ are you referring to…”
Maintain calm demeanor when other side gets
frustrated
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Deposition Preparation Cont’d
Aggressive questioning = aggressive defense
Objection!
Speculation
Incomplete hypothetical
Lack of foundation
Calls for expert opinion
Misstates standard of care
Asked and answered
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Witness Prep
Explain the “Reptile Theory” concepts and tactics
Practice common questions, e.g. whether the
company should follow a Safety Rule or breached
its standard of care
Short and credible responses such as "It depends on
... ", "I don't know", "I don't recall" and "In
compliance with [cite law or standards]”
Avoid “I did my best.” “I tried my hardest.”
Qualify answers
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Motions in Limine
Avoid omnibus, stock, & non-specific MIL
Easy for judge to punt until trial
Golden rule
Conscience of the community
Appeals to jurors’ safety/fear
References to “safety rules” are not the law
Court’s role to instruct the jury on the law
Rule 403
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Motions in Limine Cont’d
Improper elevation of standard of care
Reasonable; not the “safest possible”
Heavy trucks not held to higher standard
Testimony on improper legal conclusions
Defendant’s duty
Conduct characterized as negligent, reckless, consciously indifferent, etc.
“Send a message” (improper w/out punis)
“Take responsibility” argument improperly shifts burden of proof
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Non-Specific MILs = Easy Decision25
Defendants give the Court nothing objective to consider in deciding what language, phrases or evidence the Court should deem improper. Defendants complain about amorphous and ill-defined concepts rather than specific evidence which they believe Plaintiff will introduce or arguments which they believe Plaintiff might make. The Court is being asked to rule on abstract and generalized hypotheticals. In the absence of something more specific, the Court is unable and unwilling to grant their motion. Aidini v. Costco Wholesale Corp., No. 2:15-cv-00505-APG-GWF, 2017 U.S. Dist. Lexis 55863, at *3 (D. Nev. Apr. 12,
2017) (citing several cases denying broad and non- specific “reptile” motions for this reason)
Phillips v. Dull, No. 2:13-cv-00384-PMW, 2017 U.S. Dist. Lexis 90020, at *6–8 (D. Utah June 12, 2017) (denying motion without prejudice because “Defendants have not shown with sufficient particularity what Plaintiff’s counsel should be precluded from saying at trial”)
K.C. ex rel. Calaway v. Schucker, No. 2:02-cv-02715-STA, 2013 U.S. Dist. Lexis 119161, at *16–17 (W.D. Tenn. Aug. 22, 2013) (same)
Bunch v. Pac. Cycle, Inc., No. 4:13-cv-0036-HLM, 2015 U.S. Dist. Lexis 183890, at *6 (N.D. Ga. Apr. 27, 2015) (“[t]o the extent that Defendants seek to preclude Plaintiffs from engaging in the ‘Reptile’ tactics, this request is unnecessary and overly broad.”)
A Good Read - Mistrial26
Fitzpatrick v. Wendy's Old Fashioned Hamburgers of New York, Inc., 96 Mass. App. Ct. 410 (2019)
Counsel's repeated references to “we” and “us” impermissibly integrated the jurors with the plaintiff (and counsel) within a community of the “average customers.”
“Nor was counsel permitted to invoke future possibilities of harm, or that the jury through their verdict could protect the community from such dangers, or that a defendants' verdict would give the defendants a “pass” or “reward” them.”
No justification to draw the jury into imagining a hypothetical future moment when they might think about their jury service and remember that “safety rules were violated and that you helped to make a wrong right. You made it right and you held them responsible and accountable.”
The Court granted a new trial where use of Reptile Theory tactics was prejudicial and deprived Defendants of a fair trial. Wahlstrom v. LAZ Parking Ltd. LLC, 2016 WL 3919503 (Mass. Super. May 19, 2016).
Golden Rule
Asking a juror to place himself in the shoes of the
victim
Impermissible on the issue of damages
Some Courts have held it is permissible relative to
liability
Unduly arouses jury sympathy
Encourages jurors to make a decision based on their
personal interests
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Send a Message28
Locke v. Swift Transp. Co. of Arizona, LLC, No. 5:18-
CV-00119-TBR, 2019 U.S. Dist. LEXIS 197579, at
*4 (W.D. Ky. Nov. 14, 2019)
Statements to the jury suggesting it should "send a
message" to Defendants could be highly prejudicial
Pleas for the jury to send a message often become an
"improper distraction from the jury's sworn duty to
reach a fair, honest and just verdict."
Improper appeal to passion /
prejudice
Reptile themes improper appeals to jurors’ passions and prejudices and as requests to render a verdict against the defendant on an improper basis of fear
Brooks v. Caterpillar Global Mining Am., No. 4:14-cv-00022-JHM, 2017 U.S. Dist. Lexis 125095, at *24–25 (W.D. Ky. Aug. 8, 2017) (“any argument by Plaintiffs' counsel that attempts to urge the jury to render a verdict against Defendant on the basis of fear for the safety of the community or fear for the safety of the jury and their families is inappropriate. Accordingly, Plaintiffs may not properly argue that the lawsuit was brought to ensure or promote community safety.”)
Biglow v. Eidenberg, No. 112,701, 2016 Kan. App. Unpub. Lexis 285, at *39–40 (Kan. Ct. App. Apr. 15, 2016) (per curiam)
Hopper v. Ruta, No. 12cv1767, 2013 Colo. Dist. Lexis 249, at *1 (Colo. Dist. Ct. Oct. 29, 2013)
Turner v. Salem, No. 3:14-cv-00289-DCK, 2016 U.S. Dist. Lexis 1022389, at *7 (W.D.N.C. July 29, 2016) (discouraging “reptile theory” arguments but reserving ruling for specific objections at trial).
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Other Strategies
Stipulate to liability
Knock out punitive damages claims—no sending a
message
Control the narrative throughout the case
Focus on plaintiff’s actions/inactions
Identify a key witness/issue for the jury to hang
their hats on
Deflect the alleged danger to the community
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Reverse Reptile: Flip the Script
Focus on actions/inactions of plaintiff
Secure admissions from plaintiff and plaintiff ’s
experts regarding plaintiff’s behavior
“As a licensed motorist, you’re familiar with the rules
of the road?”
“All licensed drivers must maintain a safe following
distance?”
“If a rule of the road is violated, it can have
dangerous consequences.”
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Voir Dire
Re-Prime the Jury
Do you believe that a top priority for a
manufacturer is to make useful products in an
efficient and safe manner?
Do you believe that life is complex and that every
circumstance is unique?
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Opening and Closing
Give context and tell Defendant's story
Maintain pre-trial evaluation
Acknowledge and address the bad facts
The rest is pltf-atty driven
Jurors skeptical of being told what to do
How the standard of care applies to these facts
Life is complex: there is no simple '"Safety Rule”
Jury’s role: decide whether Defendant is liable, and if so, give Plaintiff fair compensation for his/her injury
The juror's role is not to “fix society” or “send a message” to the company
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Opening and Closing Cont.
Counter reptile attempts by reference to your
state’s juror oath
Decide case on facts presented
Decide case without bias or prejudice
Refocus on what matters
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Don't Fall Into the Trap
Identify a reptile attorney early
Proactively attack Plaintiff's strategy from the outset
of litigation
Prepare your witnesses for a challenging deposition
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Combating Plaintiffs’ Reptilian Tactics
Responding
to Reptile
Techniques
Brian Pokrywka
Lewis, Brisbois, Bisgaard & Smith
◼ Cincinnati, OH
David Senter
Young, Moore & Henderson
◼ Raleigh, NC
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