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 TUESDAY, MARCH 28, 2017 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Jedidiah M. Bernstein, Hinshaw & Culbertson , New York 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 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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Co Comba mbating ting th the e Rep epti tile le Th Theor eory Paul E. Wojcicki Jedidiah M. Bernstein Shareholder Attorney Segal McCambridge Singer & Mahoney, Ltd. Hinshaw & Culbertson LLP
Rep eptil tile e Th Theo eory y Trial ial St Strat ategy egy $6,3 ,372 72,695 ,695,5 ,578 78 in verdicts and settlements 6 ( Attribution: Jimrules42 at en.wikipedia )
Rept ptile ile Str Strat ategy gy & Books 7
Word on the street… • “An aggressive plaintiff strategy that is packaged in neuroscientific wrapping…” • “ Manipulating jurors by fostering fear” • “Techniques work because they focus on the defendant’s behavior rather than sympathy for the plaintiff” • “A theory that is as good as its results!” 8
The Reptile’s lair… • Trucking accidents • Medical Malpractice • Premises liability • Products liability • Banking • Commercial • Patents/IP 9
Be Be on on th the e ale alert • Theory developed throughout the litigation Requests to admit Deposition Voir Dire Openings Cross-exam Closings 10
Rep epti tile le The heor ory Ov Over ervi view 11
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.” 12
The he Tri riun une Br Brai ain n The heor ory • Dr. Paul MacLean theorized that the human brain consists of three separate but competing complexes: reptile early mammal modern primate. 13
The he Tri riun une Br Brai ain n The heor ory 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. ” 14
The he Tri riun une Br Brai ain n The heor ory 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. ” 15
Tri riune une Br Brai ain n The heor ory • Scientifically rejected … • But … 16
… 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 17
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 18
“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). 19
Case ase zeros eros in in on on 3 q 3 que uestions: tions: 1. How likely 1. ly was s it that the act or omiss ssion on would hurt so someone? ne? Frequency 2. How mu 2. much h ha harm m could d it ha have e cause sed? d? Defendant has to exercise care based on 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 of negligence involved. 20
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 21
Safety Sa ty Rul ules es & Vio Violat lations ions 1. 1. Um Umbr brella ella Rul ule: e: A commercial vehicle operator is not allowed to needlessly endanger the public. 22
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. 23
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. 24
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. 25
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. 26
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 27
Cou ourts ts on on Rep epti tile le The heor ory • 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). 28
Wri ritt tten en Dis Disco cover ery 29
Be Be on on th the lo look okou out • 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 30
De Depos posit ition ion Str Strat ategy egy 31
Pla laintif intiff f Str Strat ategy gy & Tac actic ics Esta Es tablish blish Saf afety ety Rules les & & Vi Viola lati tions ons • 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 use • Confuse 32
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