By Dr. Ken Broda-Bahm:
The Reptile approach to courtroom persuasion aims to sell plaintiffs’ cases by invoking absolute duties for protection wrapped around a fear appeal that resonates with the jurors. Even with the Reptile’s ‘reboot’ version, the ‘Edge’ training appears to continue this emphasis. In a second part of an article in the CLM publication (“Avoiding the Tentacles of Danger – The reptile evolves, part II: decoding plaintiffs’ attorneys’ tactics“), Courtroom Sciences consultants Steve Wood and Bill Kanasky take a look at what remains consistent in the plaintiffs’ litigation approach. The authors make the good point that, through their policies and training, many employers have emphasized a totalizing safety culture (“safety is job #1,” “safety is everyone’s responsibility” etc.) that creates a powerful mental framework — something we call a ‘schema’ — that can induce witnesses to simply agree to many of the Reptile’s extreme safety questions.
While Wood and Kanasky focus much of this second article on their analysis of the psychological biases that this plaintiffs’ approach appeals to, they end the article with advice on responding to the Reptile in forms both old and new when it comes to preparing the company witness. That advice is to work with the witness to restructure that concept of duty. They say, “Properly training witnesses to withstand Edge attacks requires a sophisticated reconstruction of the original cognitive schema, followed by a rebuilding of a new adjusted schema built upon an understanding of the role of circumstance and judgment.” As far as how that is done, they conclude with, “The cognitive schema reconstruction process is no easy task and requires advanced training in neurocognitive science, communication science, personality theory, learning theory, and emotional control.” They say there are effective techniques, but do not tip their hand about what those techniques are. In this post, I will briefly explore the possibility that it may not be as complicated as they are making it out to be. Yes, witnesses should be asked in preparation to take a hard and realistic look at what “duty” means in context, but there are some simple levers of influence they might discover and deploy in order to avoid exaggerated and unrealistic safety obligations.
Ultimately, safety can’t be a dirty word, but neither can it be an infinite commitment. Jurors will expect witnesses in areas that bear on public safety — medicine, premises, transportation, products, etc. — to accept or even embrace responsibility for safety. But jurors can also be brought to understand that there are some inevitable limits on what can be guaranteed. The specific ways that a witness will meaningfully talk about a defendant’s duties are going to depend on the field and the specific circumstances. But there are a few broad concepts that can be applied across many situations in order to keep those duties fair and reasonable.
1. Aspirations – Yes; Absolutes – No
The workplace safety schema, the express or implied mottos that put “safety first,” might be phrased in absolute language, but in reality, they are targeted toward our aspirations. The fact is that we can hold to a principle of “no accidents” while at the same time understanding that there is a historical pattern that at least some accidents will happen. As a goal, we aspire to zero, but understand that the reality is most likely going to be greater than that.
Question: Without complete charting, the patient is in danger, correct?
Poor answer: Yes, that is true.
Better answer: We aim to include as much of the relevant information in the charting as is practical, and we do that because it benefits patient care.
2. Process – Yes; Results – No
Ultimately, safety comes down to behavior more than outcome. There are steps, checklists, policies, and other procedures we can follow, and to the best of our abilities, we follow those because doing so has the best chance of promoting safer outcomes. But it cannot be the outcomes that we guarantee. We can commit to the process, but still can’t necessarily guarantee the results.
Question: A safe driver would not have been involved in a collision like this, right?
Poor answer: Right.
Better answer: A safe driver could be careful, and could follow the law and the policies, but still be involved in a collision like this.
3. Factors Within Our Control – Yes; Factors Outside – No
In all circumstances, there is a zone of control. Factors inside that zone are what we can influence and direct, to at least some extent.Within our zone of responsibility, we take reasonable responsibility. But there are also factors outside that zone: There are things we do not and cannot control. The positive emphasis is that we control what we can control, but the reality is that we cannot take responsibility for what we cannot control.
Question: Your company is committed to the safe use of this product, correct?
Poor answer: Absolutely.
Better answer: The committee is committed to safe design, safe manufacture, and clear communications on safe usage, but ultimately we cannot control the product once it is in the consumer’s hands.
Of course, these answers are all orbiting around the concept of reasonable care, and the bonus is that it is generally a duty of reasonable care, and not a duty toward absolute safety, that is the applicable legal standard. At the same time, “reasonable” isn’t the best word for a jury, since we would all like our surgeon to be a bit more than “reasonable” in their care. It can be a bit of a delicate dance to flesh out the concepts of duty in a way that is both satisfying to jurors and realistic based on the facts. The task of working on a practical version of that standard is often a very important focus of your witness preparation.
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Other Posts on Reptile:
- Be Ready for a Reptile-Reboot
- Confront the Reptile in Jury Selection
- The Reptile Question: Give a Good Answer
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