Episode 170 - Examination Techniques, Part 3: The Reptile Method

This is the 10,000 Depositions Later podcast, episode 170. I'm Jim Guirity. Today's topic, examination methods, the ball and Keenan Reptile method. Hey everybody, thanks for joining us as always. I'm Jim Guirity, the host of this podcast, the author of the 10,000 Depositions Later book series and an active trial lawyer with now more than 20,000 depositions under my belt. This podcast and my practice guides are devoted to a single topic, depositions, and you won't find more thorough coverage, analysis, strategies and tactics anywhere in the world. All of our work is devoted to the science of taking and defending depositions for you, the practicing trial lawyer. Now we've been walking through in the last couple of episodes a series on cross examination methods. In episode 168 we covered the Posner Dodd technique, the chapter method, what they call looping in the tactic of adding one new fact per question. In episode 169 we walked through Irving Younger's 10 Commandments of cross examination. Both of these are general purpose systems. Now today we're looking at something a bit different. Today's topic is the Reptile system, developed by jury consultant David Ball and plaintiffs attorney Don Keenan, published in their 2009 book called Reptile, the 2009 Manual of the plaintiffs revolution. And unlike the methods we've looked at already, the Reptile system is not a general cross-examination framework as much as it is a technique to use when cross-examining a deponent. In that respect it's like a style of questioning, but still it's one you need to know about and recognize. The Reptile system is chiefly a plaintiff's side method built to trigger emotional reactions in jurors and it's become a bit controversial because its use has increased in depositions in personal injury, medical malpractice, products liability and increasingly commercial litigation and employment cases. And here's why it's important to know at least a little bit about it. The plaintiffs bar has invested heavily in Reptile training for over 15 years and some say that it dramatically changes the outcome in verdicts and settlements. So what's the core idea? Well the Reptile system rests on a simple formula. Start by asking deponents to agree on a general safety rule, a policy or procedure. Something that everyone can agree on. Then ask the witness to agree that violations of the policy could harm or hurt people. And finally press for admissions that this safety policy or procedure was violated in this case. That's it. So it's safety rule or policy plus danger equals this notion of a reptilian reaction. As in a reaction deep they say somewhere in the brain. The creators of this system argue that if you implicitly frame a defendant's conduct as a danger to community safety or to people's employment or economic welfare in general, you're more likely to trigger emotional reactions by the jury that favor the plaintiff. Now to be clear this examination technique doesn't require jurors to consciously think about a risk to them personally, to work through it intellectually, to sit there and consciously think, ah, I see, they've established a safety rule. Now they're showing a violation and I feel personally threatened. It's not designed to trigger that kind of overt reaction. In fact, the method, some say, works precisely because the response it triggers is emotional and automatic, not analytical. People just feel it. And that's people as in jurors or fact finders. They hear a corporate representative talk about basic principles or policies intended to protect or help people. They hear the representative admit the importance of honoring them. And then they hear the representative admit that the entity violated these basic principles of safety or protection. So the idea is that something in the jurors gut or brain will trigger an emotional feeling that you know what, this is wrong and somebody should pay for it. The subtlety of this is actually considered a feature of the method, not a weakness. Jurors don't need to consciously put themselves in the plaintiffs' shoes. They don't need to consciously think that they personally feel at risk. They just need to walk into the deliberation room with a sense that the defendant is the kind of actor who cuts corners, ignores its own rules, and puts people in danger or at risk. And that a defense verdict would be wrong. So again, it isn't a direct personal appeal to the jury to put itself in the shoes of the plaintiff. But it has that impact. The examination technique is intended to make the jury personally feel the consequences of the defendant's actions. Now think about it from the other direction if you're wondering how does this really work. When was the last time that you watched someone get caught violating a rule without consequence and didn't have some kind of emotional reaction? And the reaction doesn't require sophistication. It's just a basic human emotion or reaction. While the reptile technique just creates the testimonial conditions for that reaction to happen in a courtroom aimed at the defendant. And the supporters say the psychological effects that this method exploits, including the instinct to punish rule breakers for the sake of breaking a rule are very real. Now many say this technique is objectionable, the reptile system, because it's simply a disguised version of what most jurisdictions describe as an impermissible golden rule argument. As you probably know, a golden rule argument asks jurors to put themselves in the place of a plaintiff and deliver the verdict they would want to receive. Golden rule arguments is safe to say are universally condemned in nearly every jurisdiction because they encourage the jury to depart from neutrality and to decide the case really on the basis of personal interest and bias rather than on the evidence. But that's exactly what some say the reptile method is intended to do to take the focus off actual harm to the plaintiff in the case and shift it to a focus on the defendant's alleged hypocrisy in having an important rule and disregarding it. Okay, so let's dig a little bit deeper into the three stages of the reptile system. Stage one, we'll call it the setup. So first, the examining lawyer establishes broad, seemingly self-evident, safety or workplace rules and gets the witness to agree. That's what you're going to see. Not legal standards of care from a jury instruction, you're just going to hear the examining lawyer bring up general principles framed so broadly that disagreeing with them might just seem unreasonable. So in a medical malpractice case, for example, it might sound like, "Well, you'd agree that a physician shouldn't needlessly endanger a patient, correct?" The witness is going to say, "Yes, every time because that kind of proposition just sounds like common sense." That's step one. Step two, the linking. Now the attorney connects those broad rules to specific conduct at issue in the case. Thus in a medical malpractice to stick with that, for example, the next set of questions might be. So you'd agree that a hospital must have enough nursing staff to keep patients safe, correct? In other words, the witness is now being walked from the abstract to the particular one leading question at a time. And then stage three, the gacha, as it's sometimes called, or the hypochrositrap. The attorney now presses for answers, demonstrating that the defendant's actual conduct, in this case, departed from the safety rules that the witness already endorsed as essential, those very broad rules. The witness has already testified that safety is paramount, that needless danger is unacceptable, and that the company's own policies or contracts agreements, whatever it is, required certain steps. Now the specific facts show that the defendant didn't follow its own rules intended for the protection of others. Money is using this method, sometimes work from a checklist, a checklist of admissions, to be gained about policies and rules meant to protect people, then organized around unfavorable case facts, inadequate conduct, and fault. question is designed to do. check a box. Now turning back to that golden rule issue, what about the golden rule? As I discussed a moment ago, golden rule prohibitions bar attorneys from asking jurors to imagine themselves in the plaintiffs position. Well, the reptile method is designed to achieve the same psychological result, many say, its critics say, through a different delivery mechanism. It leads jurors to feel that the defendant's pattern of conduct is just disrespectful to people in general, maybe to the community. And that includes the jurors. The thing about the reptile system that's a little different from golden rule arguments is that no single question is objectionable on its face. The violation, some alleged, with this method, is threaded into the fabric of the examination, which is really what can make it so difficult to challenge in real time, right? The creator of this method, on the other hand, says, well, there's no real link between this technique and the so-called golden rule. They say that flatly. But others note that a substantial portion of the book advocating this topic is devoted to claims that this isn't that. They spend a lot of time trying to swat down those arguments. And that raises some eyebrows in the eyes of some critics, essentially saying, well, if this isn't that, then why do you spend so much time denying it? Now, you'll find disagreement among courts, no surprise there, as to whether this is really a disguised golden rule argument or not. One court barred admission of a deposition examination using this technique, saying that, well, the questioning really invited the jury, like a golden rule argument, to decide liability based on whether it wanted safe or unsafe outcomes in general, rather than on the evidence. On the other hand, other courts have denied defense efforts to exclude reptile method examinations, often because the defense simply couldn't point to a single question that crossed the line. All right. Now, deploying the reptile, guidance for plaintiffs counsel, what's the key to deploying this system? Again, first, be sure to anchor every line of questioning in the defendant's own documents, policies, or industry standards. It only works if there can't be a real dispute about the applicable rules or policies. Second, build your violation list, the facts establishing clear violations by the defendant and craft every question to the depotent to gain a clear, simple admission. Next, keep each individual question facially legitimate. In other words, the methods of strength is that the allegedly prohibited inferences emerge from the pattern and not from any single moment or question that a judge can isolate. All right. Now, what to do if you're defending against the reptile technique or system? What if you're on the defense side? Well, listen to this. This is where preparation wins or loses a case when a plaintiffs counsel is using the reptile system. And here's an interesting fact. Standard deposition prep. In other words, answer only the question asked, keep it short. Is exactly what the reptile method is designed to exploit? Short, yes, answers to broad safety questions are the fuel that this method runs on. So you've got to have a different approach. If this is what you see or anticipate, and that comes in preparation, and it also comes when you start to hear the keywords and the style of examination in your deposition, you'll spot it early. The telltale signs in a reptile method examination are words like needlessly, unnecessarily, or broad appeals to safety, fairness, and community trust before any case specific facts are introduced. The phrasing frequently starts with those terms. And those are going to be your red flags. If your witness is being asked to agree with abstract principles about safety or professional duty in the opening minutes of a deposition, the reptile method has likely started. So train your witnesses to listen to the question and to refrain if possible from a simple yes or no answer if the nature of the question permits a more detailed response. This is the single most important defensive technique for this system. And it really, as I said, it runs counter to your traditional instincts when preparing witnesses. But when facing safety rule or broad policy questions, the witness should be prepared to provide a complete sentence response that adds context, not simple yes or no. Even if the answer is substantively affirmative, the witness may wish to restate the proposition in their own words and introduce qualifiers. Now, what do I mean by that? Well, for example, instead of simply yes to the question or the declarative statement, safety is always a top priority, correct? Well, the witness might respond safety is one of several goals. We strive to improve patient's health. And that's what we accomplished here by dot dot dot and then pivoting to the facts. If pressed for a yes or no answer, the witness may respond, well, it depends on the clinical circumstances. Or I don't think I can answer that yes or no and then give a more complete answer. Now, here's another very effective defensive technique to this system. And that's reframing safety as reasonable as the reptiles core move, so to speak, is substituting broad rigid safety rules for the actual legal standard of the case. And your witness needs to understand the difference. The legal question is typically whether a defendant acted reasonably under the circumstances, not whether they eliminated all risk. And so you'll want to train your witnesses if appropriate to describe their actions in terms of risk management, not complete risk elimination, which is nearly impossible and also to resist hindsight bias. Every decision everyone makes involves some degree of risk. And so the question is whether the response was reasonable given what was known and the circumstances at the time, right? Next, fight each stage specifically in the setup stage when the examining lawyers using this system asking about the broad principles. Train your witnesses to avoid absolutes. In other words, they might say, well, minimizing patient risk is one priority we strive to achieve among others or ask for specificity. Well, safety is a broad term. Can you be more precise? In the second more fact specific stage, work with your witnesses to prepare responses that incorporate circumstances, judgment in the standard of care. They might respond, well, not necessarily every situation is different. In this case, the circumstances called for this approach because dot dot dot, right? Avoiding absolutes in the third step where the examining lawyer using this method presses for admission that a policy was violated. Well, the witness may wish to explain truthfully how their actions lined up with the applicable standard of care and reference case specific facts that refute that broad negligence narrative. And if you're defending, note that many of the broad questions on which this technique depends may be objectionable on grounds of, for example, relevance, speculation, vagueness, overbreath, foundation, and argumentative. Also remember that as with many issues that surface in depositions, the best defense is a good prep session or three. Discuss this technique with your deponence and help them spot this method in action. Run them through a simulated reptile sequence before the real deposition. Because as with most situations, the time to learn about this technique is obviously not when opposing council is already 20 questions deep into the setup stage. The reptile method is a targeted litigation weapon built around a specific psychological insight, which is that jurors who feel personally threatened will often return larger plaintiffs verdicts. So whether you're on the plaintiff side looking to deploy it or on the defense side looking to neutralize it, you need to understand how the three stage sequence works and where it's vulnerable. All right. In the next episode, we'll wrap up our series on examination techniques with the read technique, an examination approach or method typically used by law enforcement. But one with elements that you'll undoubtedly recognize from your deposition practice. All right. Thanks for listening everybody and don't forget to check out the book on which this podcast is based 10,000 depositions later, the premier litigation guide for superior deposition practice subtitled a user's guide and handbook for deposition tips tactics and strategies for civil administrative and arbitrative litigation. Now it's fourth edition at 600 pages available everywhere you get your books. All right we'll talk to you again soon.