HOW DEFENSE COUNSEL CAN PREPARE THEIR WITNESS TO SLAY THE REPTILE AT DEPOSITION
The following is a compilation of five short Linkedin posts addressing and explaining the intricacies of the Reptile Deposition.
DEP PREP #1 LOOK AT THE CAMERA! When a witness is videotaped for deposition (whether live or virtually), they must face the camera the whole time, if they face the questioning attorney, or their own attorney rather than the camera and the video is shown at trial they will look more evasive and less credible (see my post on credibility being a proxy for truthfulness in our justice system in comments)
DEP PREP #2 WHAT IS A REPTILE CASE? SHOULD MY WITNESS BE PREPARED? If you have a reptile case you must prepare your corporate designee and fact witnesses not to commit to overgeneralizations or illusory standards of care. They must be prepared to reframe questions and question the examining attorney to clarify ambiguous, overbroad questions. History: The Reptile Theory’s origins can be found in a book written by a plaintiff attorney and trial consultant in 2009. Premise: If a plaintiff attorney can tap into the primitive part of the brain of the juror they can arouse anger which will cause jurors to award higher verdicts. How were cases presented before 2009? Arousal of juror SYMPATHY: Focus on the PLAINTIFF. Post-2009 Arousal of juror anger: Focus on the DEFENDANT. REPTILE THEORY: 1) DEFENDANT VIOLATED A SAFETY RULE 2) THE VIOLATION CAUSED A DANGER TO THE (JUROR’S) COMMUNITY 3) CALL TO ACTION: “SEND A MONETARY MESSAGE THIS DEFENDANT CANNOT CAUSE A DANGER TO YOUR COMMUNITY. If your witness is deposed without proper prep, leverage is lost and the case value will increase. If you get to trial, you now have more than a reptile. You have lamb who has been set up for slaughter at trial.
DEP PREP #3 HOW DO I KNOW IF I HAVE A REPTILE CASE? HINT: I’LL TAKE WHAT ARE “REPTILE ROGS” FOR $1000 ALEX? Look at the pleadings and interrogatories Do you see these words or phrases? 1) “Violation of safety rule/s” 2) “Violation of public safety” 3) “Caused danger to the community” 4) “Unnecessarily endangering the public” 5) “Conscience of the community” 6) “Needlessly endanger” 7) “Describe each and every warning.” 8) “Prior accidents/incidents” 9) “Systemic problems” If you see any of the above, your witness must be prepared to answer reptilian deposition questions, which goes beyond “yes” “no” and “I don’t know.” If your witness is not prepared, leverage is lost and your case value will increase.
DEP PREP #4 WALK OUT OF THAT DEP IN SOME LIZARD SKIN SHOES. LET’S SLAY THE REPTILE TOGETHER! Reptile questions attempt to set your witness up to respond to overbroad generalizations. The questions start general then narrow. HYPO: Alleged sexual assault at a hotel. Hotel sued by plaintiff. Q: As a hotel owner, would you agree safety of your guests is a top priority? Q: You would agree that you always do everything you can to ensure the safety of your guests? Q: You would agree that it is never appropriate for a hotel guest to be put in danger? Q: You would agree you should never needlessly endanger your guests? Q: Preventing dangerous incidents is the most important part of your job isn’t it? Q: You would agree to protect your guests you have a responsibility to keep sexual predators out? Q: You would agree that provision of security guards in your hotel would have helped keep sexual predators out of it? Q: But you did not provide security guards in your hotel, did you? Q: You would agree that had you provided security guards your guest would have been protected against sexual assault?
DEP PREP #5 RESPONDING TO THE REPTILE: “YES” AND “NO” NOT ENOUGH
In DEP PREP #4 I showed you how reptile questions seek to establish an ILLUSORY SAFETY STANDARD. Flubbing those first safety questions will damage your case.
A witness needs to be prepared to exert control in their responses;
Should NOT commit to an absolute answer; and
Emphasize a REASONABLENESS STANDARD. The REPTILE WANTS TO IMPOSE ITS OWN STANDARD.
Q: As a hotel owner, would you agree safety of your guests is a top priority?
A: “Guest safety is one of our many priorities.”
A: “Generally, guest safety is an important priority.”
A: “That is a broad question, can you be more specific?”
Q: You would agree you should never endanger your guests?
A: “Minimizing risk to hotel guests is important”
A: "I agree that we should take reasonable precaution in protecting our guests.”
A: “What do you mean by needlessly endanger, can you be more specific?”
A: “There is always some element of danger when running a hotel, so that question is too broad to answer.”
A: “Endanger is very broad, can you clarify what you mean by endanger? Every situation is different.”
A: “I think the real question is how we reduce and minimize the risk.”
REPTILE CASES ARE MOST COMMON IN NEGLIGENCE CASES AS THE REPTILE SEEKS TO INCREASE THE STANDARD OF CARE. YOU WILL MOST COMMONLY FIND THE REPTILE IN CASES INVOLVING:
Trucking and auto;
However, the reptile has found new a new habitat in the employment arena.
LOOK FOR THIS PARADIGM, A REPTILE IS LURKING: A violent third-party act on an insured premises (like the example above).
YOU CAN ALSO TURN REPTILE CASES AGAINST THE PLAINTIFF WHEN THERE IS CONTRIBUTORY OR COMPARATIVE NEGLIGENCE. USE THE SCRIPT FOR THEIR DEPOSITION:
“Would you agree motorcyclists should prioritize their safety while trying to pass a truck on a highway?”
IF YOUR CASE HAS SENSITIVE FACTS like my hypothetical sexual assault case, you need to make a strategic decision as whether or how to use the reverse reptile, just as you would for cross-examination of a sympathetic witness.