By Dr. Ken Broda-Bahm:
The “Reptile” approach to trying civil cases by targeting a fear response has transitioned from being a novelty to being a mainstay in a little more than a decade. While the approach has not always been taken seriously by defendants, it has been the North Star for many on the plaintiff’s side of the courtroom. It has also served as a good focus for articles on practical persuasion in this blog. So it is somewhat surprising that the digital presence for this perspective (the well-known website hosted by Reptile authors David Ball and Don Keenan) has recently disappeared without a trace.
A new Claims and Litigation Management article, “The Reptile Evolves, pt. 1” by Courtroom Sciences consultants, Dr. Steve Wood and Dr. Bill Kanasky takes an interesting look at where the Reptile went and why, and most importantly on what seems to be replacing it. The article notes that the disappearance appears to have happened in the midst of some sort of legal dispute between authors and trainers on the Reptile Technique. They also note that heir apparent seems to be the Keenan Trial Institute’s “Edge” or “Hit List” approach, which includes a program of books, seminars and other training materials, as well as a weekly podcast, that, unlike other training material, is open to the public. As new details emerge on this reboot, it makes sense to focus on the ways defendants should account for this evolution. In this post, I will share two thoughts on what seems to remain the same.
Early tidbits on the “Edge” and “Hit List” approaches to a Reptile reboot point to a few important principles in responding.
The Strategy is Still Simplification
A jumping off point for the “Edge” still seems to be the notion that the “standard of care” is difficult for jurors to grasp, and a successful plaintiff should strive to offer jurors something else — a simpler, more accessible, and more concrete standard. So, we have a series of “wouldn’t you agree” style questions to develop admissions on rules relating to unfavorable case facts, irresponsible professional conduct and decision-making, and liability and causation. The idea is to get jurors to accept that promoting safety and avoiding danger — literal danger in medical, product, and personal injury cases, and potentially more figurative danger (vulnerability, exposure, insecurity) in other cases like contract or employment — is just a matter of following these rules. The rules themselves are statements like, “a responsible physician should avoid unnecessary harm,” that are tailored to the case and range from the general to the specific. They are boiled down into absolute stances that downplay the importance of circumstances and judgment, reinforcing the notion that safety comes down to a “cookbook” approach of following a series of “always do this” and “never do that” sorts of commands. Jurors are being offered a simple and black-and-white world where protection comes from knowing and adhering to basic and self-evident principles.
The Response is Still Sophistication
The problem with that simplification, however, is that it is nearly always too simple. In medical cases, the patient and the presentation matters. In products cases, the conditions of use and the purpose matters. In personal injury cases, the fine balance between protection and personal autonomy matters. The frames of “it depends” and “it’s not that simple” are nearly always part of the answer to the “safety rules” approach.
Sophistication from the Witness
Like the Reptile before it, the Edge approach focuses on the earliest stages of litigation. Wood and Kanasky write regarding the technique, “it is clear the key battleground in civil litigation is the deposition phase of discovery—it is the lynchpin to the formulation and future of the case.” That means that defendants need to stop pretending that depositions are simple and routine. They call for a sophisticated and prepared witness — one who knows when to expect the safety rule questions and who knows what to do with them. If plaintiffs are able to secure bad admissions at the deposition stage, that can be fatal to the case. It is no longer safe, if it ever was, to wait until the eve of trial to ensure that an important witness has a good strategic understanding of the case. Instead, that preparation needs to occur in the weeks before the deposition.
Sophistication from the Jury
Just as witnesses need to be prepared early on, jurors need to be as well. Plaintiffs following the Reptile or the Edge have the advantage of presenting jurors with a simple worldview, but defendants often have the better advantage of presenting them with an accurate one. In responding to a black-and-white safety-rules approach, the defense message in opening is often that there really is more to it than that. Yes, patients want to be safe and doctors want to practice safely, but both also want better outcomes — they have a problem that needs to be fixed, and fixing it often means some range of acceptable risk. Yes, product makers and users also don’t want injury, but they also want a useful product that does what it is supposed to do, and that means trusting users to take reasonable precautions. The earlier and the more comprehensively the defense can articulate these standards, the more they’ll be able to wean jurors off of a preference for simple rules.
The Reptile and its progeny are best thought of not as a single strategy, and certainly not as an automatic way to “awaken the Reptile brain.” Rather, they should be thought of as a perspective on courtroom rhetoric and audience adaptation made, not so much out of new ideas, but based on a re-packaging of some very old ideas. Current trends are likely to highlight new aspects to the “keep it simple and adapt” perspectives, but the fundamentals are likely to remain the same.
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Other Posts on the Reptile:
- Consider that the reptile might be rewriting the law
- Confront the Reptile in Jury Selection
- The Reptile Question: Give a Good Answer
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