Commonly Called Reptilian Strategies for Discovery, Voir Dire, - - PowerPoint PPT Presentation

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Combating Plaintiff Tactics Commonly Called Reptilian

Strategies for Discovery, Voir Dire, Opening and Closing Argument, Direct and Cross-Exam

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific WEDNESDAY, SEPTEMBER 21, 2016

Paul E. Wojcicki, Shareholder, Segal McCambridge Singer & Mahoney, Chicago

• Dr. Ann T

. Greeley, Ph.D., Vice President, DecisionQuest, State College, Pa. Presenting a 90-Minute Encore Presentation of the Webinar with Live, Interactive Q&A

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5

Paul E. Wojcicki

Shareholder Segal McCambridge Singer & Mahoney, Ltd.

Ann T. Greeley. Ph.D.

Psychologist & Trial Consultant DecisionQuest

Co Combating mbating the the Rept eptile ile Th Theor eory

6

$6,3 ,372 72,695 ,695,5 ,578 78

in verdicts and settlements

Rep eptil tile e Th Theo eory y Trial ial St Strat ategy egy

(Attribution: Jimrules42 at en.wikipedia)

7

Rep eptil tile e Strat Strategy egy & Bo Book

• ks

8

What Some People Say…

• “An aggressive plaintiff strategy

that is packaged in neuroscientific wrapping…”

• “Manipulating jurors by fostering fear”
• “Techniques work because they focus
• n the defendant’s behavior rather

than sympathy for the plaintiff”

• “A theory that is as good as its results!”

9

Where the Reptile Lurks…

• Commercial vehicle accidents
• Medical Malpractice
• Premises liability
• Products liability
• Banking
• Commercial
• Patents/IP

10

Rep epti tile le The heor

• ry Ov

Over ervi view

11

Physiolog ysiological ical Ba Basi sis s For

• r Rep

epti tile le The heor

• ry*

y*

Reptile Brain: At core, primitive, survival Paleomammalian Complex: mid-brain, emotion, reproduction, parenting Neomammalian Complex: cerebral cortex, capable

• f language, logic, planning

* article on Reptile Psychology, Greeley, 2015

12

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

• nse

13

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

14

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.”

15

As Asse sess ss Ne Negl glig igence ence

i. i.e., ., Community nity Da Dang nger

1.

• 1. How likely

ly was s it that the act or omiss ssion

• n would hurt

so someone? 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

• n 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

• f negligence involved.

16

“Tentacles of Danger”

• Questions designed to show perilousness
• f defendant’s conduct.
• Answers should show that the “tentacles of

danger” extend throughout the community.

• Defendant poses a threat to YOU (jurors).

17

Lim Limita itations tions of

• f th

the e The heor

• ry

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

• nse
• 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

18

Rea easo sons ns It It W Works

• rks

19

Theory is Flawed…BUT BUT

• It takes emphasis off plaintiff

(sympathy backfires)

• Hindsight is key
• Ignores “just world” theory

20

Maslow’s Hierarchy:

• Safety
• Security
• Helping children

be secure

• For jurors themselves
• For Community/others

21

Ex Expl ploi

• its

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
• “Breaking own rules” is cardinal sin
• Tendency to protect Pl if being attacked

22

The heor

• ry

y Develop loped ed Throughout hroughout th the Li Liti tiga gation tion

• Requests to admit
• Deposition
• Voir Dire
• Openings
• Cross-exam
• Closings

23

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

24

De Depos posit ition ion Str Strat ategy egy

25

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?”

26

Sample ample Sce cenari arios

• s for
• r De

Depos

• sition

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***

27

Sample ample Sce cenari arios

• s for
• r De

Depos

• sition

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
• f products?

***Confidential***

28

Sample ample Sce cenari arios

• s for
• r De

Depos

• sition

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
• r 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***

29

Sample ample Sce cenari arios

• s for
• r De

Depos

• sition

ition (2)

• Have you ever settled a patent infringement case at

any time after the plaintiff files its complaint, but before a jury comes back with the ultimate decision

• f fact in that case?
• How many times?
• In your 25-year affiliation with your company how

many patent infringement lawsuits are you aware of that you were involved with as a defendant?

***Confidential***

30

Sa Sample ple sc scen enarios arios- (e (emotional

• tional at

atta tack) k)

• Q: Is she a bank employee?
• A: Yes she is.
• Q: It is her job to be well informed, right?
• A: Yes.
• Q: This man worked hard. He’s a good guy. And this

bank has come as close to ruining him as possible. I mean what did he do wrong to deserve this behavior?

• A: I have no knowledge on that.
• Q: But you are familiar with the statutes, correct?
• A: I don’t know the law as you do, but I am generally

familiar.

31

Sa Sample ple sc scen enarios: arios:

• Q: I don’t know who Bank A thinks they are but they are

breaking the law with that—fair??

• A: The paperwork should have been released.
• Q: Breaking the law—can we talk in plain language?! Do I

have to pull out the statute that says you can get fined for that?!

• A: I would agree we should have released the paperwork.
• Q: This is heavy handed stuff! But you all sit back and bang

away at him and make him go through all this! Nobody comes clean over there! Do you have facts to show you didn’t break the law?!!!

• A: I have said ten times that I think we should have released

the paperwork.

32

Don’t Fall Into the Trap

• Prepare your witnesses
• Listening is key
• Prepare witnesses under real conditions
• Teach: No rule applies 100% of the time
• Every circumstance presents unique concerns

and considerations

• Adding or changing a fact in any given scenario

may drastically effect the outcome

• “It depends …” is sometimes truly the best, most

honest answer

33

Tri rial al

34

Pretr retrial ial

• “Throw the book” at plaintiff’s counsel
• Introduce Reptile Theory and book in motion in

limine

• Share quotes from the book
• “Golden Rule” appendix

35

Voir

• ir Dir

Dire

36

Pri riming! ming!

• Implicit memory effect in which PL

“prime” a stimulus and response

• Sel

electiv ective e att tten ention: tion: focus on safety

• Sample questions

37

Defense nse Stra Strateg egy: :

Count nter er wit ith St Strong ng In Inocu culati lation

• n
• Shift focus to alternat

ernate e th theo eories es

ex: personal responsibility

• Shift focus to lawsui

wsuits ts wi with thou

• ut

t me merit

• Do any of you believe every accident

can be prevented?

38

Hint ints s for

• r Voi
• ir

r Dir ire

39

Op Open enings ings

40

Pla laint intif iff f Ope peni nings ngs

• Openings follow same themes as

introduced in voir dire

• Opening focuses on primacy and

selective attention

• Themes come with details about how

rules were violated, defendant failed to follow own policies

• Focus is on the defendant not on pl

41

Def efense ense Ope peni nings ngs

• Recognize sympathy but don’t stop

there

• Counter themes with alternative

explanations

• Good defense openings don’t get

sucked into defending against PL themes or risk repeating the PL’s

• Humanize your corporate client

42

Tri rial al tes esti timo mony

43

Testim stimon

• ny

y

• Remember traps have been set during

deposition so key may be “clarifying” what one has already agreed to or said

• Witnesses must know how to tell story

in direct but not over-anticipate on cross

• Cross: Same tactics will apply though

will probably be less rude/attacking

44

Sa Safety ty Rul ules es & Vio Violat lations ions

1.

• 1. Um

Umbr brella ella Rul ule: e: A commercial vehicle

• perator is not allowed to needlessly

endanger the public.

45

Sa Safety ty Rul ules es & Vio Violat lations ions

2.

• 2. A commercial vehicle operator is

never permitted to disregard a safety measure.

46

Sa Safety ty Rul ules es & Vio Violat lations ions

3.

• 3. A commercial vehicle operator must

always maintain a sufficient distance between his vehicle and the one in front

• f him so as to be able to avoid a

collision.

47

Sa Safety ty Rul ules es & Vio Violat lations ions

4.

• 4. A truck driver is a commercial

vehicle operator so he must at all times maintain a distance between his truck and the vehicle traveling in front of him sufficient to prevent unnecessary harm to the public.

48

Sa Safety ty Rul ules es & Vio Violat lations ions

5.

• 5. That’s because a truck that follows

too closely needlessly endangers the public and no truck driver or other commercial vehicle operator is allowed to endanger the public needlessly.

49

Don’t Fall Into the Trap

• Prepare your witnesses (at depo stage!)
• Remember: No rule applies 100% of the

time

• Every circumstance presents unique

concerns and considerations

• Adding or changing a fact in any given

scenario may drastically effect the

• utcome
• “It depends …” is sometimes truly the

best, most honest answer

50

Get Get Out ut in in Fron

• nt
• Let the court and the jury know what

the plaintiff is up to

• Turn the reptile on the plaintiff

(example)

• Tell the jury your client’s story…
• Explain why she acted as she did
• Test your story pre-trial

51

Qu Ques estions tions or

• r Com
• mment

ments

Paul E. Wojcicki

Shareholder Segal McCambridge Singer & Mahoney, Ltd. (312) 645-7810 pwojcicki@smsm.com @PaulWojcickiEsq

Ann T. Greeley. Ph.D.

Psychologist & Trial Consultant DecisionQuest (814) 867-4080 agreeley@decisionquest.com