Presenting a 90-Minute Encore Presentation of the Webinar with Live, Interactive Q&A Combating Plaintiff Tactics Commonly Called Reptilian Strategies for Discovery, Voir Dire, Opening and Closing Argument, Direct and Cross-Exam WEDNESDAY, SEPTEMBER 21, 2016 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Paul E. Wojcicki, Shareholder, Segal McCambridge Singer & Mahoney , Chicago Dr. Ann T . Greeley, Ph.D., Vice President, DecisionQuest , State College, Pa. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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Combating Co mbating the the Rept eptile ile Th Theor eory Paul E. Wojcicki Shareholder Segal McCambridge Singer & Mahoney, Ltd. Ann T. Greeley. Ph.D. Psychologist & Trial Consultant DecisionQuest 5
Rep eptil tile e Th Theo eory y Trial ial St Strat ategy egy $6,3 ,372 72,695 ,695,5 ,578 78 in verdicts and settlements 6 ( Attribution: Jimrules42 at en.wikipedia )
Rep eptil tile e Strat Strategy egy & Bo Book oks 7
What Some People Say… • “An aggressive plaintiff strategy that is packaged in neuroscientific wrapping…” • “ Manipulating jurors by fostering fear” • “Techniques work because they focus on the defendant’s behavior rather than sympathy for the plaintiff” • “A theory that is as good as its results!” 8
Where the Reptile Lurks… • Commercial vehicle accidents • Medical Malpractice • Premises liability • Products liability • Banking • Commercial • Patents/IP 9
Rep epti tile le The heor ory Ov Over ervi view 10
Physiolog ysiological ical Ba Basi sis s For or Rep epti tile le The heor ory* y* Reptile Brain: At core, primitive, survival Paleomammalian Complex: mid-brain, emotion, reproduction, parenting Neomammalian Complex: cerebral cortex, capable of language, logic, planning * article on Reptile Psychology, Greeley, 2015 11
Ball & Keenan’s Approach • Get jurors to react with the Rep eptile tile Bra rain in Instin inct: ct: The primitive subcortical region • Sensing danger, jurors move to Su Survival al Mode e • Ju Jurors s ar are e gua uardian ians s of community safety • Damages enhance safety and decrease danger (Broken) Safety rule + Danger = Rep eptile tile res espons onse 12
Ball & Keenan’s Approach • Aim to put juror in “Survival” Mode Defendant’s conduct is a danger to self, family, community • Casts a large plaintiff’s verdict as a Sur urviv ival al Tool Punish, deter, and diminish danger-producing conduct 13
The he Rep epti tile le in in Act ctio ion • “Push the fear button” • “… Primar mary y go goal in tr trial: al: To show the immediate danger of the kind of thing the defendant did – and how fair compensation can diminish the danger within the community.” 14
As Asse sess ss Ne Negl glig igence ence i.e., i. ., Community nity Da Dang nger 1. 1. How likely ly was s it that the act or omiss ssion on would hurt someone? so ne? Frequency 2. 2. How mu much h ha harm m could d it ha have e cause sed? d? Defendant has to exercise care based on maximum foreseeable harm. 3. 3. How much harm could d it cause se in other si situations ions? Show width and depth of the danger posed by the kind of negligence involved. 15
“Tentacles of Danger” • Questions designed to show perilousness of defendant’s conduct. • Answers should show that the “tentacles of danger” extend throughout the community. • Defendant poses a threat to YOU (jurors). 16
Lim Limita itations tions of of th the e The heor ory y Low road − Sensory thalamus => Amygdala => Survival • Classic Plaintiff Jurors: Simplest answer; first answer High gh road − ST => Senso sory y Cortex x =>Rational tional resp sponse onse • Classic Defense Jurors: Detail-oriented, thoughtful, patient, suspicious • Defense Says: Humans are not just flight or fight. They process information. Again, there is no real danger 17
Rea easo sons ns It It W Works orks 18
Theory is Flawed… BUT BUT • It takes emphasis off plaintiff (sympathy backfires) • Hindsight is key • Ignores “just world” theory 19
Maslow’s Hierarchy: • Safety • Security • Helping children be secure For jurors themselves For Community/others 20
Ex Expl ploi oits ts Defens nse e & Jurors’ Leanings Fi Fits with… • Sense that DF should/could “do more” to protect community • Assumption that company has done something wrong if already in court • Belief that regulations are the minimum • “ B reaking own rules” is cardinal sin • Tendency to protect Pl if being attacked 21
The heor ory y Develop loped ed Throughout hroughout th the Li Liti tiga gation tion • Requests to admit • Deposition • Voir Dire • Openings • Cross-exam • Closings 22
Bi Big g Pic icture ture Prin rinciples: ciples: Focus cus On On or A r Avoid? id? • Saf afety ty: : always a top priority • Da Danger: nger: never appropriate...at any level • Top p Priority: rity: reducing risk/protecting • Compa pany: y: can always do more 23
De Depos posit ition ion Str Strat ategy egy 24
Pla laintif intiff f De Depo position ition Str Strat ategy gy Vi Violat lation ion of Sa Safety ety Rul ules es • Being inconsistent with own policies or rules or actions • Key: move from general to more specific questions about safety Aggre ressiv ssive e Emoti motional nal tact ctics: cs: • Aggressio sion: Switching from friendly • Humil miliati iation: n: ”You want the jury to believe that!” • Confusio usion: n: “You mean you don’t know anything about the training program?”…“You are the head of the company?” 25
Sample ample Sce cenari arios os for or De Depos osition ition (Manufa anufactur cturer ers s -1) 1) • Do you believe that manufacturers have the duty to insure that they do not needlessly endanger the public? • Are you familiar with [insert govt standard]? • Are you familiar with the congressional findings that brought about [govt standard]? • Do you agree with these findings; or You would agree with those findings, wouldn’t you? ***Confidential*** 26
Sample ample Sce cenari arios os for or De Depos osition ition (2) • Do you agree that manufacturers are best able to make the biggest changes in the shortest period of time? • So you agree that manufacturers can accomplish more for safely with less effort more than any other body? • Do you agree that manufacturers have in their power the ability to design products that do not unreasonably danger the public? • Do you agree that manufacturers must ensure the safety of products? ***Confidential*** 27
Sample ample Sce cenari arios os for or De Depos osition ition (Pat aten ents ts 1) • Have you ever infringed a patent before? • Have you ever been accused of infringing a patent before? • How many times roughly do you recall that you have has been accused of infringing a patent? • Since 1995, you have been accused of infringing a patent or patents more than two times, correct? • Do you have a ballpark estimate of how many times you has been sued for patent infringement since 1995? ***Confidential*** 28
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