Combating Plaintiff Reptilian Tactics in Complex Litigation: Discovery, Voir Dire, Direct and Cross-Exam

Transcription

1 Presenting a live 90-minute webinar with interactive Q&A Combating Plaintiff Reptilian Tactics in Complex Litigation: Discovery, Voir Dire, Direct and Cross-Exam TUESDAY, FEBRUARY 27, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Elizabeth Skane, Partner, Skane Wilcox, San Diego & Las Vegas Paul E. Wojcicki, Shareholder, Segal McCambridge Singer & Mahoney, Chicago The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 1.

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5 Combating the Reptile Theory Paul E. Wojcicki Shareholder Segal McCambridge Singer & Mahoney, Ltd. Elizabeth Skane Partner Skane Wilcox LLP

6 The Reptile Theory Ball & Keenan First published in 2009 Relies on invoking fear and danger reactions in juries Defendant s conduct poses danger to the juror, family and community Safety and societal rules have been broken 6

7 The Reptile Controversy Some say: Revolutionary scientific theory Others scoff: Restatement of the Golden Rule argument 7

8 The Reptile revolution 8

9 The Reptile s Goal our primary goal in trial: To show the immediate danger of the kind of thing the defendant did and how fair compensation can diminish the danger within the community. Safety rule plus Danger = reptile 9

10 No Harm is Acceptable All risk can result in catastrophic results Defendants must eliminate all risk and follow safety rules The community suffers, because the danger is imminent and ubiquitous If the community is at risk the juror and family are at risk Damages are irrelevant. 10

11 Generation X and Millenials 11

12 How do they do it? Safety is always a top priority Danger is never appropriate. Protection is always a top priority. Reducing risk is always a top priority Sooner is always better. More is always better. 12

13 Physiology of The Reptile Theory Focuses on the subcortical part of the brain Brain stem, amygdala which they claim responds/reacts to threats and fear. Invokes fight/flight response Reactions are involuntary, automatic, not reasoned Fact is that this is bad science because no cognition in brain stem 13

14 Physiology of The Reptile Theory Reptile theory seeks to tap into primitive un-evolved basic instincts Reptile brain senses danger or fear Reptile goes into survival mode and seeks a place of safety Courtroom is a safe place Damages increase safety, decrease danger Jurors are the guardians of the community. 14

15 Effective Reptile Tactics Attacking Witnesses Deposition and Trial Safety Rule Attack ( Word Game ) Emotional Attack/Cognitive Dissonance ( Head Game ) 15

16 The Science of Manipulation (i.e., Cross-Examination) Question 1: Factual/Easy = Agree (general safety rule question) Question 2: Factual/Easy = Agree (general safety rule question) Question 3: Factual/Easy = Agree (general danger rule question) Question 4: Factual/Easy = Agree (general danger rule question) Question 5: Factual/Easy = Agree (specific safety rule question) Question 6: Factual/Easy = Agree (specific danger rule question) Question 7: Reptile Question (Safety Rule/Hypothetical) Question 8: Case Specific Fact Question 9: Case Specific Fact Question 10: Case Specific Negligence/Causation ($$$) 16

17 The Science of Manipulation Question 1: You would agree with me that as a property manager, safety of your tenants is always a top priority? (SAFETY IS ALWAYS TOP PRIORITY) Question 2: You would agree that a property manager should never needlessly endanger their tenants? (DANGER IS NEVER APPROPRIATE) Question 3: You would agree that you always do everything you can to ensure the safety of your tenants and your community? (MORE IS BETTER) Question 4: You would agree that as part of your effort to protect your community you try to ensure that you do everything you can to provide security? Question 5: You would agree that the provision of onsite security officers is one way to ensure your community is safe? Question 6: You would agree that as a property manager you have a responsibility to keep gangs out of your community? Question 7: You would agree that provision of security in your community would have helped keep gang violence out of your community? Question 8: Case Specific Fact. But you did not provide security, did you? Question 9: Case Specific Fact. You did in fact know of gang activity in your community? Question 10: Case Specific Negligence/Causation ($$$) You would agree that had you provided security your community would have been protected against gang violence? 17

18 Priming Plaintiffs use the same words over and over again: Always Never Risk Danger Community Public safety Needlessly endanger 18

19 Hijacking of standard of care Reptile argues that counsel should use the umbrella rule to trump the standard of care that would ordinarily govern defendants conduct. The professional must select the safest way. If she selects the second safest then she is not prudent because she is allowing unnecessary danger. Regardless of the legal standard of choosing among acceptable alternatives the reptile must adopt the safest choice available. Pg

20 Hijacking of standard of care The reptile is not fooled by defense standard of care claims. Jurors are, but not reptiles. When there are two or more ways to achieve the same result the reptile allows-demands only one level of care: the safest. Justice is an excuse.. A feel good rationale.. For people to protect themselves and their families. Pg. 44 The valid measure is the maximum harm the act could have caused. How much harm it could have caused in other situations? 20

21 Examples 21

22 Verdict was 38 million 22

23 Second example 23

24 Walter Matt Doe vs. LA School District 24

25 Walter Matt Doe vs. LA School District 25

26 Verdict 6.9 million against school district 26

27 The Emotional Attack Emotional Threats Aggression Humiliation Confusion Low Road Processing 27

28 The Role of Threats and Survival Responses Attorney Threat Aggression Survival Response (low road cognition) Fight or Flight Humiliation Defensiveness Confusion Help/Teach 28

29 The Solution: Forcing Cognition SIMON SAYS Cognitive Momentum The Brain: - Cognitive efficiency - Wired for problem-solving - Listening/Thinking - 100% vs. 50% 29

30 Systematic Desensitization Systematic desensitization 30

31 Strategies for Charming the Reptile Do not admit open ended safety questions force counsel to be specific about facts of this accident Define safety No absolute agreement Safety rule attack answers 1. depends on the circumstances 2. every situation is different 3. not always true I don t understand what you mean by needlessly endanger can you be more specific That is a broad question 31

32 General Safety Rule Attack Answers Patient safety is your top clinical priority, correct? You have an obligation to ensure patient safety, right? Option 1: General Agreement (not absolute) o o Answer: Safety is certainly an important goal, yes. Answer: In general, yes. Option 2: Request Specificity o o Answer: Safety in what regard? Can you please be more specific? Answer: In what clinical circumstance are your referring to? 32

33 Specific Safety Rule Attack Answers If a patient s status changes, the safest thing to do is call a physician immediately, right? If a patient is having chest pain and shortness of breath, the safest thing to do is to send them to the ER immediately, correct? If a patient s oxygen saturation drops to 82%, and you are on-call, the safest thing to do to protect the well-being of the patient is to come to the hospital ASAP, right? Answers: o It depends on the patient s specific circumstances. o It depends on full clinical picture. o Not necessarily, as every patient situation is different. o That is not always true. o I would not agree with the way you stated that. o That is not how I was trained. 33

34 General Danger Rule Attack Answers It would be wrong to needlessly endanger a patient, right? You would agree that exposing a patient to an unnecessary risk is dangerous, correct? You always have a duty decrease risk to your patient, right? Answers: o o o o I don t understand what you mean by needlessly endanger. That is a confusing question; can you define needlessly endanger? I don t understand what you mean by unnecessary risk; can you please be more specific? That is a very broad question, what specific clinical circumstance are you referring to? 34

35 Specific Danger Rule Attack Answers Documentation in the medical chart must be thorough, otherwise a patient could be put in danger, right? You would agree with me that when a Troponin value is elevated, that the patient is in imminent danger, correct? Doctor, when you order a test or labs, you d agree with me that you should review the results immediately, because any delay would put the patient at risk, right? Answers: o It depends on the patient s specific circumstances. o It depends on full clinical picture. o Not necessarily, as every patient situation is different. o That is not always true. o I would not agree with the way you stated that. o That is not how I was trained. 35

36 Effective Witness Testimony Q: You would agree that it s an important safety rule regarding food service that food carts be operated safely and cautiously? A: Safety is one of our goals, sure. Q. It would also be an important safety rule that folks operating those food carts in the hall to keep a proper lookout for anybody in the hallway, correct? A: And equally important for people in the hallway to keep a proper lookout for the cart. Q: And you would agree that if someone operating a food cart didn t keep such a careful lookout and as a result hit someone, then they would have violated an important safety rule? A: It depends on the circumstances. 36

37 Beating the emotional attack 37

38 Effective Reptile Tactics: Voir Dire, Opening and Closing Priming Priming for terms, language and definitions results in those stimuli being processed more quickly by jurors throughout the trial. Always Never Needlessly endanger Safety Community Public Must Unnecessary risk 38

39 Primacy in the Courtroom Brain: Early = Important Openings/Witness Testimony Example Intelligent, industrious, impulsive, critical, stubborn, envious vs. Envious, stubborn, critical, impulsive, industrious, intelligent 39

40 Strategies for Countering the Reptile: Do your homework: Recognize a reptile claim: is it a case that lends itself to a safety rule? Research reptilian counsel Look for similar cases handled by counsel Obtain previous pretrial and trial information Do deposition training. Mock trials and focus groups using reptiles 40

41 Strategies for Countering the Reptile Motions in Limine Voir Dire: 1) do your own priming juror commitment to fairness, relevant evidence. 2) juror commitment to not being frightened or reacting to danger Opening statement continue voir dire theme using primacy effect and prime the jury with your key terms. Closing argument - Refer to fairness and emotion jury instructions this is the law Challenge jury to use their reason, fairness, logic, not base instincts Don t fall for the cynical attempt to get you to ignore the law and your duty 41

42 McCaffrey vs SDPD Stipulated liability case: The Reptile does not relax just because someone says I did it! The Reptile has several other nonnegotiable requirements before she goes back to sleep. pg

43 McCaffrey vs. SDPD Fact of admitted negligence is a foundation for the reptilian approach: Punish the defendant so they don t do it again. That is the foundation of our community. You don t just admit fault you make it right. It is called repentance. 43

44 McCaffrey vs SDPD 44

45 Striking Fear into the Community 45

46 Response 46

47 Community 47

48 Community 48

49 49

50 Response 50

51 Response 51

52 Repentance? Baloney. 52

53 Voir Dire Themes 53

54 Voir Dire Theme 54

55 McCaffrey vs SDPD Your clients mental image of what happened exacerbates suffering. Defendant is minimizing suffering. Repentance: only way is full compensation. Harm upon harm: all harms and losses that is the rule! From Chapter 8: The reptile as the law enforcer: harms and losses only. 55

56 All harms and losses. 56

57 Response 57

58 Response 58

59 McCaffrey vs. SDPD Argue to jury that liability still comes in because of prejudicial inferences. That information is always linked to Reptilian safety concerns. Pg

60 Response 60

61 McCaffrey vs SDPD Last minute stipulation is a legal maneuver because defense claims they are accepting responsibility. (hypocrisy). Litigation stress increases damages. ( I admit I did it but you will have to haul me into court to get me to do anything about it. pg

62 Motion in Limines 62

63 McCaffrey vs. SDPD Keep a sharp eye out for other dirty legal tactics. Pg 237. How did it feel to learn that you had a private investigator videotaping you and your children? 63

64 They are the dirty ones. 64

65 Sneakiness. 65

66 Super sneaky. 66

67 This is pure PRIMING. Mini Opening 67

68 Super duper sneaky. 68

69 Super duper sneaky. 69

70 More Sneakiness 70

71 Redemption. 71

72 72

73 Evolving from the Reptile to the Primate THANK YOU Paul E. Wojcicki Elizabeth Skane 73