Presenting a live 90-minute webinar with interactive Q&A Insurance Defense Litigation: Defending Against the Reptile Theory Utilized by Plaintiffs Preparing Deponents and Witnesses, Conducting Voir Dire, Opening and Closing Arguments, and Direct and Cross-Exam TUESDAY, NOVEMBER 7, 2017 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Jedidiah M. Bernsteinn, Hinshaw & Culbertson , New York Noelle M. Natoli, Partner, Foley & Mansfield , Los Angeles 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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INSURANCE DEFENSE LITIGATION: DEFENDING AGAINST THE REPTILE THEORY UTILIZED BY PLAINTIFFS PREPARING DEPONENTS AND WITNESSES, CONDUCTING VOIR DIRE, OPENING AND CLOSING ARGUMENTS, AND DIRECT AND CROSS-EXAM Noelle M. Natoli Jedidiah M. Bernstein Foley & Mansfield, PLLP Hinshaw & Culbertson Los Angeles, California New York, New York nnatoli@foleymansfield.com jbernstein@hinshawlaw.com 213-283-2100 5
The Reptile Theory 6
What is the Reptile Theory? • The Reptile Theory is widely used by the plaintiffs bar to assert that you can prevail at trial by speaking Neocortex Speech Logic Higher Thinking to, and scaring the primitive parts Limbic of jurors’ brains, the part of the Emotions brain they share with reptiles. Reptilian • The fundamental concept is that Brain Instinct the reptile brain is conditioned to Survival favor safety and survival. • Note: Limbic activates sympathy/empathy 7
How Does It Work? • Focus: not on plaintiff’s case, but how defendant’s conduct endangers the jurors and their families. • Safety rule violation + Intense & Immediate Danger = Reptile (low level cognition) • Easier to understand: Imminent danger + intensity = Reptile 8
Difference of Intensity/Immediacy • Bill Kanasky, Jr., Ph.D. — 3 scenarios: • 1. You hear reports of a recent robbery in your neighborhood. • 2. You hear an intruder enter your house. • 3. You walk around a corner and someone jumps out at you, causing you to jump. Only 3 is immediate and intense. 9
General Principles • Mindset is different — not a fact witness • Already know the answers • Goals are different: Fuel the perception of inconsistency by the witness – safety rule violation or – emotional response (aggression, humiliation, and confusion) 10
Combating Reptile • Suggested Danger + Logic = Planning • Avoid sound bites • Tell the truth/be honest • Answer vague questions with vague answers 11
Courts on Reptile Theory - Favorable • MA: Deprived Defendants of a fair trial. Wahlstrom v. LAZ Parking Ltd., 2016 WL 3919503 (Mass. Super. May 19, 2016). • KY: “ Send a message” or “conscience of the community” arguments distract the jury. Brooks v. Caterpillar Global Mining Am., 2017 U.S. Dist. LEXIS 125095, *25 (W.D. Ky. Aug. 8, 2017). • KS: Can mislead the jury regarding the applicable duty of care. Biglow v. Eidenberg, 369 P.3d 341, 2016 WL 1545777 (Kan. Ct. App. Apr. 15, 2016). • CO: Barred common Reptile phrases. Hopper v. Ruta , Colo. Dist. LEXIS 249 (Dist. Ct. of Colorado, October 23, 2013). 12
Courts on Reptile Theory - Unfavorable • NC: Handled Reptile objections on a case-by- case basis. Turner v. Salem, 2016 WL 4083225 (W.D.N.C. July 29, 2016). • MD: Reference to “community safety standards [is] fundamental to the underpinnings of tort law. ” Bostick v. State Farm Mut. Auto. Ins. Co., 2017 U.S. Dist. LEXIS 113897, *6 (M.D. Fla. July 21, 2017). 13
How to Spot a Reptile Early – Plaintiff’s Counsel Demands: • Safety Policies, Procedures and Protocols, Handbooks • Prior unrelated accidents • Overly broad and irrelevant information – Multiple Motions to Compel – Notices of Depositions contain overly broad topics Be aware of these indicators, detect Reptile tactics early and then adapt your defense strategy. 14
Deposition Questioning of Safety/Rules • Accept or reject plaintiffs’ attorneys language 15
OUTLINE OF QUESTIONING • You would agree that the law requires “X”? • You would agree that a company that fails to comply with “X” can cause harm or even death to the public? • You would agree that your company also requires “Y”? • You would agree that the reason your company requires “Y” is in part in compliance with state and federal law? 16
OUTLINE OF QUESTIONING • Look at “Z” please, your driver’s log for the date in question. • You would agree that “Z” does not comply with “X”, correct? • You would agree that “Z” does not comply with “Y”, correct? 17
OUTLINE OF QUESTIONING • So, looking at Z, your company failed to comply with “X” and “Y”? • You would agree that your failure to comply with “X” and “Y” could have caused harm to the general public? • You would agree that your failure to comply with “X” and “Y” actually caused injury to Plaintiff? 18
Prep your PMK to force the How, What, When or Why Questions • I don’t understand the question; • You told me not to guess; • I am the PMK for Company X; • Not necessarily • Not always • Sometimes that is true, but not all the time 19
Prep your PMK to force the How, What, When or Why Questions • It can be in certain situations • I have not encountered a situation like that; • What I can tell you is…; • It depends… 20
Example 1 • Q: Was she trained that the knowledge of the fundamental principles of the policy would help her successfully apply, interpret, and explain the company’s policies to the drivers underneath her? • A: Yes • REPTILE ANSWER. • BETTER ANSWER: What I can tell you is that all of our employees are provided the policies and trained on them. 21
Example 2 Q: Was she trained that employee dissatisfaction can oftentimes be traced to the failure of staff to understand the company’s policies and reasons behind them? A: Yes REPTILE ANSWER BETTER ANSWER: It can be in certain situations or I have not encountered such a situation . 22
Example 3 Harder — assume answer to 2 was Yes, now we get pelted with more questions: Q: And that the polices were expected to steer a supervisor’s initiative and judgment into the correct channels? A: Yes Q: And that they would be used as the Safety Director’s guide to action? A: Yes 23
Example 3 Q: And that policies and procedures are formulated to bring structure and cohesiveness to the individual departments and collectively as a company? A: Yes Q: And that there should be policies for all actions taken by the drivers during the course and scope of their employment? A: Yes 24
Example 3 Q: And you don’t have a policy as to how a driver is to record his time when he is off duty but sleeping in the truck? A: Correct AND THERE’S YOUR ZINGER!!! 25
Example 3 Q: And that the polices were expected to steer a supervisor’s initiative and judgment into the correct channels? A: Yes Better Answer: Not necessarily. We hire supervisors who already have the requisite background, education and training to do their jobs. Q: And that they would be used as the Safety Director’s guide to action? A: Yes Better Answer: It depends on the circumstances. 26
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