Transforming Perception of the Company Strategies for Discovery, - - PowerPoint PPT Presentation

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Presenting a live 90-minute webinar with interactive Q&A

Combating Plaintiff Reptilian Tactics in Complex and High-Stakes Litigation: Transforming Perception of the Company

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 TUESDAY, MARCH 28, 2017

Jedidiah M. Bernstein, Hinshaw & Culbertson, New York Paul E. Wojcicki, Shareholder, Segal McCambridge Singer & Mahoney, Chicago

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Paul E. Wojcicki

Shareholder Segal McCambridge Singer & Mahoney, Ltd.

Co Comba mbating ting th the e Rep epti tile le Th Theor eory

Jedidiah M. Bernstein

Attorney Hinshaw & Culbertson LLP

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)

Rept ptile ile Str Strat ategy gy & Books

7

8

Word on the street…

• “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

The Reptile’s lair…

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

10

Be Be on

• n th

the e ale alert

• Theory developed throughout the litigation
• Requests to admit
• Deposition
• Voir Dire
• Openings
• Cross-exam
• Closings

Rep epti tile le The heor

• ry Ov

Over ervi view

11

12

The Reptile’s objective

• “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.”

13

The he Tri riun une Br Brai ain n The heor

• ry
• Dr. Paul MacLean

theorized that the human brain consists

• f three separate but

competing complexes:

• reptile
• early mammal
• modern primate.

14

The he Tri riun une Br Brai ain n The heor

• ry

According to MacLean

The primitive or “reptile” brain “is filled with ancestral memories,” and “controls muscles, balance and automatic functions, such as breathing and heartbeat.”

15

The he Tri riun une Br Brai ain n The heor

• ry

According to Keenan and Ball

• It’s not just individual survival that drives the

“Reptilian” brain, but survival of the whole human race.

• In the courtroom, “[w]hen the Reptile sees a

survival danger, even a small one, she protects her genes by impelling the juror to protect himself and the community.”

16

Tri riune une Br Brai ain n The heor

• ry
• Scientifically rejected …
• But …

17

… it works because it …

• Takes emphasis off plaintiff
• Refocuses jury on possible injury to “the

community”

• Examines “wrongful conduct” in hindsight
• Portrays defendant’s conduct as threat to

“the community,” that is, the jurors and their family and friends

18

How the theory works … in theory…

• Create a sense of danger to tap into the Repti

tile le Brain in

• This puts jurors in Sur

urvival al Mode e

• Show that the danger puts the whole community at risk
• Sur

urviv ival al of community safety is what matters

• Argue that a large damages award the only way to protect

the community

• Only through a large damages awards can jurors ensure community

safety and decrease danger

19

“Tentacles of Danger”

• Questions are designed to assess the

magnitude of defendant’s negligence and 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).

20

Case ase zeros eros in in on

• n 3 q

3 que uestions: tions:

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.

21

Bo Boil ilin ing g it it do down

• 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

22

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.

23

Sa Safety ty Rul ules es & Vio Violat lations ions

2.

• 2. A commercial vehicle operator must

follow all safety measures to protect the community.

24

Sa Safety ty Rul ules es & Vio Violat lations ions

3.

• 3. A commercial vehicle operator must

always maintain a safe distance between his vehicle and the one in front of him so as to be able to avoid a collision.

25

Sa Safety ty Rul ules es & Vio Violat lations ions

4.

• 4. A truck driver is a commercial

vehicle operator so he must always maintain a safe distance between his truck and the vehicle in front of him to protect the community from needless harm.

26

Sa Safety ty Rul ules es & Vio Violat lations ions

5.

• 5. That’s because a truck that follows

too closely needlessly endangers the community and a truck driver is never allowed to endanger the community needlessly.

27

The he Go Gold lden n Rul ule

• Asking a juror to place himself in the

shoes of the victim

• Impermissible on the issue of damages
• Some Courts have held it is permissible

relative to liability

• Unduly arouses jury sympathy
• Encourages jurors to make a decision

based on their personal interests

28

Cou

• urts

ts on

• n Rep

epti tile le The heor

• ry
• The Court granted motion in limine prohibiting

Golden Rule arguments. The Court denied motion in limine prohibiting Reptile Theory and chose to handle those objections on a case-by- case basis. Turner v. Salem, 2016 WL 4083225 (W.D.N.C. July 29, 2016).

• The Court granted a new trial where use of

Reptile Theory tactics was prejudicial and deprived Defendants of a fair trial. Wahlstrom v. LAZ Parking Ltd., LLC, 2016 WL 3919503 (Mass.

• Super. May 19, 2016).

Wri ritt tten en Dis Disco cover ery

29

30

Be Be on

• n th

the lo look

• kou
• ut
• Push back on discovery requests that

don’t address issues in the case

• Object
• Move for a protective order
• Introduce the court to the Reptile

De Depos posit ition ion Str Strat ategy egy

31

32

Pla laintif intiff f Str Strat ategy gy & Tac actic ics

Es Esta tablish blish Saf afety ety Rules les & & Vi Viola lati tions

• ns
• Being inconsistent with own policies or rules or actions
• Key:

: move from general to more specific questions about safety

Aggressiv ressive e Qu Questioning tioning

• Atta

tack k

• Humiliat

miliate

• Confuse

use

33

Def efensi ensive e Man Maneu euver ers

• 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

• It depends …” or “I don’t know” is

sometimes truly the best, most honest answer

34

De Defend nding ing Aga gain inst the “Reptile Deposition”

• Detect plaintiff’s use of the Reptile Theory

prior to the deposition based on “Red Flags” in the discovery demands and Notice of Deposition related to classic Reptile Theory arguments.

• Move for a protective order limiting the scope
• f the deposition

35

• Prepare the witness for a challenging

deposition

• The

e les ess he e says, the e bett etter er an and h d he i e is no not ther ere e to pr prove e the e de defen ense c e case

• Prime him to answer: “It depends”, “I don’t

know” and “I can’t recall”

• Ref

efer er to ap appl plic icab able e Saf afety ety Reg egul ulat ation ions s an and d Leg egal Standa dards ds

De Defen ending ding Aga gains inst the e “Reptile Deposition”

36

• Object to “Reptilian” questions based
• n:
• n:
• (1

(1) ) Se Seek eking ng an n exper ert t opinion nion from m a la lay- witness ness

• (2

(2) ) Improper

• per form

rm

• (3

(3) ) La Lack ck of foun undation ation

• (4

(4) ) Over erbread readth th

• Don’t let your guard down

De Defen endi ding ng Again inst t the he “Reptile Deposition”

Tri rial al

38

Pretr retrial ial Moti Motion

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

limine

• Share quotes from the book
• “Golden Rule” appendix
• Plaintiff’s Safety rules” are not the law

Voir

• ir Dir

Dire

39

40

Hint ints s for

• r Voi
• ir

r Dir ire

Op Open enings ings

41

42

Don’t play by plaintiff’s rules

• Put the case in context
• Introduce your story
• Test your story pre-trial

Tri rial al tes esti timo mony

43

44

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

45

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

Clos losing ing

46

47

Get Get Out ut in in Fron

• nt
• Let the the jury know what the plaintiff

is up to

• Turn the reptile on the plaintiff

(example)

• Reiterate jury your client’s story…
• Remind them why she acted as she did

48

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

Jedidiah M. Bernstein

Attorney Hinshaw & Culbertson LLP (212) 471-6243 jbernstein@hinshawlaw.com