By Dr. Ken Broda-Bahm: Don't you think that, when faced with a choice between a safer option and a riskier option, one should take the safer option? Well, on face that seems pretty reasonable. Who wouldn't want the safer option, after all? The problem is that if you take that literally, then you've probably never climbed into an automobile, or eaten food that you didn't personally grow and prepare, or started up your computer, or...well, you get the idea. A simplistic formulation can seem plausible on face, but then fall apart once it is subject to just a little additional scrutiny. In the Reptile approach to plaintiffs' litigation, and its earlier Rules of the Road manifestation, that is what is called a "safety rule" question. Authors Don Keenan and David Ball build on Rick Friedman's technique, arguing that jurors have an easier time dealing with liability if it is packaged as an easily-understood rule to the effect that safety -- not just the plaintiff's safety, but everyone's safety -- is best protected if there is a clear and definite rule, typically beginning with "always," or "never"). Even when such rules are an oversimplification, the defense witness facing the stress of deposition testimony can take the bait and find that they've unwittingly agreed with the foundation of the plaintiff's strategy.
For that reason, I think it should now be a standard feature of most defense witness preparation sessions to train on how to answer the predictable safety rule questions that may be asked for any given case. While the Reptile approach is most associated with personal injury, medical negligence, and products liability cases, the logic of a safety rule question extends more generally to any case seeking compensation for a potentially generalizable harm. In all or nearly all cases, a witness could be asked to make a general commitment that is then linked to a specific behavior in the case. The form of the question plays upon a strong cognitive bias that we all have in favor of safety and in opposition to risk. And it can be compelling to a jury. In a medical negligence case, for example, it is a tall order to get a lay jury to look at an expert physician and say that physician missed the mark. If it is in the realm of medical judgment, those jurors won't be comfortable with that assessment. But if jurors believe that the doctor just failed to follow a simple common-sense rule that everyone acknowledges, even the doctor, then they'll have an easier time making that call. So the time to respond effectively is when the question is initially asked, and witnesses need to be prepped on the strategy for responding.