By Dr. Ken Broda Bahm:
“You would agree with me, wouldn’t you doctor, that a physician should never needlessly endanger his patient, right?”
That is a recommended question, probably the main recommended question to plaintiff attorneys who are applying the Reptile approach to persuasion. At first, it sounds like the answer would be an easy “Yes,” or even an “Of course.” But on further examination, there are a number of problems with that concession. It oversimplifies patient care. It leaves out a doctor’s main objective (which is not just to avoid additional danger, but to obtain a good medical outcome). Worst of all, it implicitly replaces the legal “standard of care” (doing what a reasonable physician would do under similar circumstances) with the much higher bar of avoiding danger. Bottom line, it provides a test that makes it easier for a plaintiff to win.
In medical liability cases, as well as a variety of other case types, witnesses need a good way to answer that question. I have found that, for most witnesses who are likely to face simplified and strategic questions like this, it helps to know what is coming, why the plaintiff’s counsel is asking it that way, and what can be done to answer it well. Different lawyers will recommend different approaches. For my part, however, I think that a pause, some careful thought, and the application of three general principles can help smart witnesses answer the question effectively. In this post, I will share those principles and provide an example of a response that is both strategic and accurate.
The Lure of the Safety Rule Question
The question at the head of this post, or a version like it, has an appeal that is by design. It tends to work because it sounds simple and correct. I have asked this kind of question at conferences attended by smart and sophisticated professionals, and I’ve seen around 70 percent of the audience raise their hands to a “Yes” response. But the question is crafted to carry that kind of surface appeal.
The originators of the Reptile approach have argued that, to be effective, the question has to do six things:
- Prevent danger (either a direct or general risk)
- Cover a variety of situations (not just the case at issue)
- Be in clear English (not legalese or other specialized jargon)
- Focus explicitly on “must” and “must not” (an absolute rule)
- Be practical and easy to follow (it should sound like common sense)
- And the defendant should agree (or look silly denying it)
When the question lives up to all six of those principles, plaintiffs have the ability to set the defendant up for a concession that might help to simplify the case and frame the defendant’s conduct as a violation of a black-and-white rule.
Less Effective Responses
Some lawyers want to take the formal route of denying the validity of the question: “My client isn’t going to answer that, next question…,” perhaps combined with a motion in limine arguing that this tactic and other Reptile tactics are improper.
Other attorneys will encourage their witness to fight the terms of the question: “I am not sure what you mean”; “The question is too vague”; “I don’t know what you mean by ‘safety’ or ‘needless.'”
Even though these kinds of responses can be understandable, to a jury the answer will likely end up sounding obtuse or evasive. Even if it is imprecise, there is a common sense meaning to the question that jurors will recognize, and it is never good to look like you’re trying to dodge the question.
The More Effective Answer
Answering questions in this Reptile format takes some thought and some practice. I believe that there are three general principles witnesses need to adhere to in crafting answers to these questions:
Break out of the “Yes/No”
The Reptile question only works if you take the plaintiff’s attorney’s words on their face. If you answer in your own words, you have a lot more control. Instead of answering “Yes” or “No” to “A physician should never needlessly endanger her patient,” It is better to open it up and phrase it as though you are answering the question, “How do you manage risk to your patients?”
Demand Precision
The Reptile question only works because it wraps itself in very broad terms like “safety” or “necessity.” Instead of uncritically adopting those terms, replace them with your own terms that better reflect your field. For example, if doctors are more likely to talk about “managing risk” rather than about guaranteeing “safety,” then use that phrase instead.
Avoid Absolutes
Finally, the Reptile question only works when it is an all-or-nothing proposition. The use of terms like always or never is key to the plaintiff’s objective of pulling the decision out of the realm of subjective judgment and into the realm of being a clear and simple rule. Where there is a rational basis to say not necessarily or it depends, then that should be part of your answer.
To return to the Reptile question:
“You would agree with me, wouldn’t you doctor, that a physician should never needlessly endanger his patient, right?”
The better answer is something like this:
“I agree that minimizing patient risk is important, and that is balanced against the goals of achieving effective treatment and good outcomes. The way I strike that balance is going to be different based on each patient and each condition.”
This answer breaks out of the “Yes” or “No,” adds the more precise concepts of effective treatment and balance, and rejects the always/never assumption built into the question. Of course, that level of sophistication won’t always come to mind automatically. That is why witnesses should take a thoughtful pause before answering, and why they should practice in advance with these kinds of questions. But a smart witness, one who takes responsibility for her or his own language, can do it.
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Other Posts on the Reptile: