By Dr. Ken Broda Bahm:
What does it take to beat a reptile? In most cases, a mongoose will do the job. As attention to the Reptile perspective on plaintiffs’ advocacy has been growing, an interest in the best modes of defending against it has finally started to catch up. The “Reptile,” of course refers to the David Ball and Don Kennan approach of reforming the plaintiffs’ trial strategy based on the belief that a “reptilian brain” will be motivated by appeals to personal safety and security, and these basic needs will drive the more advanced and cerebral regions of the mind. I’ve written about the approach on a few prior occasions (see ‘related posts’ section below) and also authored a piece for The Jury Expert. The readership of those articles suggests that defendants are taking a new interest. The handbooks, articles and seminars, however, are not yet available to defendants at a level that comes even close to matching what the Reptile-Plaintiffs’ bar has to offer.
A reader, attorney James M. Lloyd of Santa Ana, recently wrote to ask if I knew of any “Mongoose seminars” for opposing the Reptile. So the credit for the genius name for this post must go to him. However, I couldn’t return the favor by recommending any seminars yet. But it did get me thinking and gave me the idea for a somewhat lighter-hearted post-holiday post. Mongooses are famously effective at attacking and defeating snakes — in both literature and real life. So what would a “Mongoose theory” in response to the Reptile look like?
For the moment, I will set aside the psychology on the Reptile brain and clarify that these thoughts on the Mongoose brain, as a counter, are purely metaphorical (I’d argue that so is the Reptile brain, but that is an argument for another place). Instead, for this post I want to focus only on the practical. Based on some research on ways mongooses fight reptiles (e.g., see this powerful National Geographic video), and aided by the power of analogy, let me share a few initial thoughts on what the Mongoose perspective might look like.
One, Be Fearless
As Rudyard Kipling wrote of the Jungle Book‘s Rikki-Tikki-Tavi, “It is the hardest thing in the world to frighten a mongoose,” and National Geographic agrees that this boldness is not merely fictional. Modern defendants need to take a lesson from that level of fearlessness. Plaintiff adherents to the Reptile perspective will act as though they have a magic bullet for winning cases. But in reality, they don’t. Appealing to fear and personal insecurity can work, but it can also fail or even lead to a backlash if the attempt is too heavy-handed. In addition, defendants have plenty of their own strong motivators to appeal to: personal responsibility, the limited nature of the law, and protection from the harms of frivolous suits. Numerically, it is still an uphill battle for plaintiffs in many civil arenas, like medical malpractice. All of that should give defendants a fair amount of confidence.
Mongoose defendants never settle out of fear of trial when they have a defensible case.
Two, Have Quick Reflexes
Another feature of the mongoose fighting style is speed. “The victory,” again according to Kipling, “is only a matter of quickness of eye and quickness of foot — snake’s blow against mongoose’s jump.” A reptile’s strike will often come with incredible speed, and so the mongoose needs to be as fast or faster. For the defendant, that speed of reaction means answering everything. I recently conducted a post-trial jury interview after a defense verdict in an energy case, and one of the jurors explained, “When the plaintiff would talk about something they had, you know, the defendant would just wipe it out really quick.” A prepared defendant will know the plaintiff’s best case — the arguments, the themes, and even the Reptile motivators — well in advance. Being able to anticipate and answer effectively is critical to a good defense. That is why role-playing the other side in a mock trial can be so valuable. And wherever possible, you should try to get there first, for example, by introducing plaintiff themes in voir dire. In opening statement as well, if the plaintiff has not covered it yet but you know it is coming based on the evidence, then cover it.
Mongoose defendants know what plaintiffs are thinking, so they can anticipate and react.
Three, Have a Thick Hide
When dealing with venomous snakes, it helps to have thick fur and skin: That makes it hard for snakes to get their venom in. What does it mean for the defendant? It means a few things. First, it means that attorneys and clients as well need to practice patience: sitting through plaintiff’s voir dire and opening statement, hearing all manner of horrors being attributed to you, all the while biding your time and knowing that you will have your chance. Second, it means not sweating the small stuff. While you must react to the important issues that can truly harm you, that does not mean chasing down every single stray fact or theme that the plaintiff offers. Knowing the difference, of course, is the key. That provides another benefit of testing both sides of the case in a mock trial.
Mongoose defendants are able to recognize and deflect the blows, and wait for their opportunity.
Four, Aim for the Head
For a small mongoose to succeed in defeating a much larger reptile, it needs to know where to strike. The mongoose avoids the coils, and instead, as Kipling’s Rikki-Tikki-Tavi said to himself when choosing how to strike the cobra, “It must be the head.” For the defendant, aiming for the head means striking at the most critical element of the case. When plaintiffs are following the Reptile recipe, or the earlier Rules of the Road approach, they will have one clear, simple, and predominant “Safety Rule” that wasn’t followed in this case. That rule — e.g., “a good doctor will not choose a more harmful procedure over a less harmful procedure” — will be one that is immediately understandable, as well as personally relevant to the juror. As we’ve written before, however, the reality is not generally so simple. When defendants can counter the safety rule and respond with a more accurate rule of their own, they’ve struck at the head of the Reptile.
Mongoose defendants aim at the most important and most vulnerable spots of a plaintiff’s case.
So this is my initial try at a few mongoose principles to answer the Reptile perspective. If this idea has any legs, then I am sure that these thoughts can be taken even further. For now, perhaps it is enough that defendants are starting to think about ways to defeat what has become a very compelling plaintiff’s idea. As plaintiff’s embrace the Reptile, defendants should learn a few moves from the Mongoose.
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Other Posts on The Reptile:
- Respond to the Reptile
- Tame the Reptile in Your MedMal Defense
- Don’t Underestimate the Power of a Unifying Vision: A Return to the Reptile
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Photo Credit: MizaPhoto, Flickr Creative Commons