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.
Some Safe Rules for Safety Rules:
The safety rule question takes advantage of something that attorneys have said to their witnesses for generations: “Don’t fight the obvious.” That is still good advice, but the widespread success of the Reptile strategy requires a rethinking of what exactly is obvious.
Before sharing some examples, let me offer three good rules of thumb for handling the safety rule question.
One, Break Out of the Yes/No
The safety rule question works only if the witness accepts the question as a binary “yes or no” choice. If “yes,” then the witness has agreed to a rule that can then be mapped back onto the case facts. If “no,” then the witness sounds unsafe, cavalier, and in denial of the obvious. If, however, the witness responds in her own words instead of simply accepting or rejecting counsel’s words, there is an opportunity for a more precise and less harmful version. For example, interpreting the question, “Isn’t safety the top priority?” as “What would you say is the top priority?” yields a more nuanced answer, like “The top priority is to address the patient’s complaint in a way that maximizes effectiveness and minimizes risk.”
Two, Demand Precision
The safety rule question also takes advantage of the looseness of language. Words that have a pretty wide latitude of meaning — words like “safety” itself — sound more agreeable at the level of principle and are more applicable once they’re mapped back onto the case facts, in both cases because there is at least one potential meaning that fits. But it isn’t always the same meaning. For example, the general “threat” that would demand emergency medical intervention is not the same as the “threat” that in a case-specific context just demands continued monitoring. So, deponents have a right to ask for a definition, for specification, and for context. Be prepared for pushback (e.g., “Doctor, are you telling that jury that you don’t know what the word ‘safety’ means?”). So be prepared to explain that depending on the context, a broad term can convey many different meanings.
Three, Avoid Absolutes
For a safety rule to really work like a rule, it has to be pretty ironclad. “Always” and “never” work well for the plaintiff, while “generally,” “in some cases,” and “it depends” tend to work well for the defense. The plaintiff’s advantage is that absolutes are effective messages: easy for a jury to understand and apply. But the defendant’s advantage is that the more nuanced and conditional statements are more likely to be accurate. In medicine, for example, “it depends” is far more likely to be a true description than a cop-out. By pushing back against simplistic formulations with realistic degrees of complexity, witnesses are able to deny plaintiffs attorneys the easy starting point that they’re looking for.
Some Examples
The best answers will be case-by-case and informed by the facts of your case. But just to put the principles above into practice, here are a few examples:
Question: You would agree with me, wouldn’t you doctor, that a physician should never needlessly endanger his patient, right?
Answer: I agree that minimizing patient risk is always important, and that is balanced against the goals of achieving effective treatment and good outcomes.
Question: When there is a choice, a product designer should always select the safest option, right?
Answer: It depends. A product designer will always want a product that does the job, while limiting any risks to just those that are necessary for the effective operation of the product.
Question: When designing public spaces, is it fair to say that hidden dangers are to be absolutely avoided?
Answer: I am not clear on what you mean by “hidden dangers.” In all public spaces there are varying degrees of potential danger and varying degrees of public notice, so it would depend on what kind of situation you are talking about.
If the witness is thoughtful and persistent, these approaches can help to drag the safety rule question down out of the realm of the abstract and into the concrete circumstances. And the closer the questioning gets to the actual facts, the less tricky and ‘reptilian’ it becomes.
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Other Posts on Reptile and Safety:
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Image credit: 123rf.com, used under license