February 20, 2017

Don’t Fear the Reptile

By Dr. Ken Broda-Bahm: 

BOC-Reptile2

Take the Reptile seriously, but don’t fear it. The en vogue strategic choice of the plaintiffs’ bar, the idea that trial persuasion can be leveraged by careful and targeted attention to the fear impulse of the so-called “reptilian brain,” (Keenan & Ball, 2009) is an idea that, regardless of its scientific foundation, carries a practical utility in encouraging advocates to focus on the central role of motivationSo in saying, “Don’t fear the Reptile,” what I am saying, in addition to giving a nod to one of the most cowbell-intensive songs in the classic rock canon, Blue Öyster Cult’s “(Don’t Fear) the Reaper,” is that advocates on the receiving end of that strategy should not give in to fear, because fear is the strategy’s stock in trade. The perspective popularized by trial consultant David Ball and Don Keenan is now much more than a book, but a “Reptile Revolution,” that applies not just in medical cases but also in products, personal injury and other cases, and claims more than $6 billion in verdicts and settlements for its adherents. The perspective is now getting more attention from the defense side of the bar, and I am happy to note that the general point that, ‘the theory may be scientifically unsound, but it works in practice anyway,’ which I believe made its first appearance in this blog, has now become one of the main defense talking points on the Reptile.

The focus of most commentary on the Reptile approach, however, has been on the strategy as a way to appeal to and leverage fear from the jurors. The idea is that if jurors feel that they are not just resolving a claim from an individual plaintiff, but are instead broadly addressing a widespread risk that affects them and their loved ones as well, then they will be more motivated to return a high verdict. But the fear that the Reptile approach seeks to leverage is not just focused on the jury box, it can be felt in the witness chair as well. Reptile adherents in deposition and trial cross-examination seek to leverage the fear that an unprepared witness might feel. The strategy is designed to create discomfort by asking about general principles, “safety rules,” that can make witnesses believe that the easiest thing to do — the safest thing to do — is just to agree with the rule that plaintiff’s counsel is offering. So they’ll say, “Yes, a good doctor will never subject a patient to an unnecessary risk.” If they don’t agree, they’re going to look unreasonable or uncaring. Later on, however, they’ll realize that if they do agree, then they’ve admitted to a broad and vague principle that was not strictly met in this case. The questioner is trying to create that ‘reptilian’ feeling of fear, guilt, or shame. If the witness even has the unsafe feeling of cognitive dissonance (believing generally in a principle while knowing it doesn’t apply in their own case), it can cause an unprepared witness to flee into the arms of Reptile, or more specifically, to make an adverse admission. To avoid that, the witness needs to be prepared. In this post, I will boil down a simple set of steps for getting the witness ready to face the Reptile without fear.  

Three Things Your Witness Needs to Face the Reptile

It is not easy to sit in the witness chair, particularly if one is the target of the lawsuit, and news that the plaintiffs’ bar has a hot new strategy to tap into the unconscious motivations of jurors and witnesses can’t be making it any easier. But witnesses should not despair. What they should do instead is prepare. The rise of the Reptile should lead to a change in preparation style. I believe there are three things your witness needs if you want to protect against a Reptile-style examination in deposition or trial. 

One, Understanding

Attorneys, educate yourself, and then educate your witness. There are a fair number of articles and seminars out there, and most litigation consultants are becoming versed in the strategy and its defenses. But as you educate yourself, don’t treat it as just “lawyer stuff” or inside baseball. Instead, the witness should understand the strategy generally, and recognize the Reptile questions if and when they come. If the witness understands it, then that takes away some of the fear and the mystique. 

Here is a quick explanation you could give to a witness: 

There is a new strategy that many plaintiffs’ attorneys are latching onto, and the basic idea is that they try to win by tapping into the so-called “Reptilian Brain” in order to evoke a primitive fear response from the jury or from a witness. The goal with the witness is to ask ‘safety rule’ questions — very broad or simplistic questions about what is always safe or never safe. They can be effectively handled, but you need to know what to look for. Here are a few of the safety rule questions I’d expect in your case…

Two, A Method

Once you understand what the Reptile approach is, the next step is to have a method for answering those questions. There is some good advice out there. Bill Kanasky and Ryan Malphurs, for example, have written about what they call a neurocognitive approach that involves identifying and countering the cognitive biases involved in the method: confirmation bias, anchoring bias, and cognitive dissonance.

Ultimately, however, I don’t believe that the necessary response is that complex. Instead, as I’ve written before, safely handling safety rules includes applying and practicing three important rules:

1. Break out of the “yes/no” format. The question structure depends on a simple confirmation or denial, and if you answer in your own words or choose a different option (e.g., sometimes or it depends), then the strategy no longer works. 

2. Demand precision. Instead of taking the question on face and reacting to broad abstractions, like the word “safety” itself, call for greater clarity and don’t answer until you know exactly what is being asked about. 

3. Avoid absolutes. The question usually contains an “always” or “never” component, so a recognition that realities are often more complicated will undermine the main goals of the questioner. 

Three, Practice

The safety rules that will apply in your case are generally going to be very predictable. Once you have done some reading on the Reptile, you should be able to see your case through the lens that the Reptile plaintiffs’ attorney is seeing it through. Once you get the gist of what they are trying to do, draw up a list of the safety rule questions your witness could need to answer in this case. Attend or read other depositions so you know your opposing counsel’s approach and will be able to duplicate it. 

Then, schedule a practice session with your witness and spend some role-playing time working through the answers. Apply the methods you have worked on and prepare your witness to hold their own against plaintiff counsel’s predictable push back: “It is a simple question, can’t you answer yes or no?” The prepared witness should understand that it isn’t a simple question, and as the witness, they have a right and a responsibility to choose their own terms and not have words put into their mouths. 

So, let’s say you have a witness who is a little nervous. If you follow the steps above, you should be able to look her in the eye and say, “At this point, you understand what they are trying to do, and you have a method for handling these questions, we’ve practiced it, and you’ve done fine. So…come on, don’t fear the Reptile.”  

Ultimately, the trio of understanding, method, and practice should make for a more confident witness who can identify and respond to the Reptile techniques without giving in to fear. 

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Other Posts on the Reptile Strategy: 

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Image credit: Created by Pamela Miller, Persuasion Strategies, based on commentary fair use of Lynn Curlee’s cover art for the album “Agents of Fortune” by Blue Öyster Cult

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