THE REPTILE THEORY OF LITIGATION: NOT JUST FOR PLAINTIFFS ANY MORE PART II

 

 In my last article on the reptile theory of litigation I gave a brief introduction regarding the method, and how it is expanding into many areas of litigation beyond the personal injury realm where it started.  Today, I will talk about the method in more detail and how to counter it. 

I. What’s the big deal? 

The reptile approach seeks to end-run longstanding rules on what is, and is not proper argument to a jury.  It is a clever attempt to get around the “Golden Rule” argument prohibition, which asks a jury to place themselves in plaintiff’s shoes. See Johnson v. Howard, 24 Fed.Appx. 480, 487 (6th Cir. 2001) (“Those circuits that have considered use of ‘Golden Rule’ arguments have ‘universally condemned’ them as improper because they invite decision based on bias and prejudice rather than consideration of facts.”); Whitehead v. Food Max of Miss., Inc., 163 F.3d 265, 278 (5th Cir. 1998) (“This court has forbidden plaintiff's counsel to explicitly request a jury to place themselves in the plaintiff's position”) (internal quotation marks and citation omitted). 

The reptile gets around the Golden Rule prohibition by use of subtle, carefully crafted questions. These questions lead a defense witness down a path leading to a point where the witness has no choice but to admit to an action that violates a safety or standard of care rule that the witness himself has admitted. Critically, this witness created standard of care “rule” far exceeds the “reasonable man” standard—which is the standard juries are supposed to apply. Thus, the reptile method works to corner a witness this way, forcing the witness to admit a violation of a higher standard, or to go back on his prior testimony, which makes him look silly at best, and dishonest at worst. Once a witness gets to this stage, the damage is done and cannot be undone. 

The technique goes on to force a witness to admit that the alleged breach, or violation of some invented duty, could have led to calamitous results. The fact that little or no harm actually occurred is not relevant to the reptile approach. Rather, the approach creates a fear in the juror that the actions could have eventually led to a situation which could have hurt the juror, his family or society.  

A. How the reptile works 

First, the reptile gets the opposing witness to admit to an industry or general “rule” which he must follow. The rule must related to a “danger”, must be clear and simple, must make clear what a person should do, must be practical and must be one that it is difficult to disagree with. Reptile, id, at PP 52-53. This is a slow and steady approach that can take a long time for the reptile to hatch. 

B. Possible consequences of violation of the rule 

Next, questions are posed that make it clear to a jury that defendant did not follow this rule, and then, importantly, that this failure could have put many at risk, not just plaintiff. The key is “could have happened”, not “did happen. This too can take a long time to get to, but once the reptile springs the trap, it is too late to fix the problem: after the witness has agreed to the “rule” (whether in tort, employment or commercial cases) a failure to meet the standard of their own rule, or an attempt to backtrack in testimony, makes the witness seem stupid, dishonest or greedy. And an attempt to play down the injuries can make a witness seem callous and unlikable. 

III. Application of the technique in commercial cases 

In non-tort cases, the danger may, or may not, be of a physical nature, but it must be a type of danger or risk with which a jury can identify.[1]. For example, in a commercial case, first the examiner identifies the rule: “You agree that a company should not needlessly hurt others.”  This is a simple rule that can be expanded or amended, as the case requires. A simple customization might be something like: “You agree that it is wrong to cheat anyone” or ask a series of questions like: 

Are you an ethical person? (the reptile could use “fair” or “honest” in place of or in addition to ethical)

Is X an ethical company?

Do you believe that it is important to be highly ethical in your treatment of others?

Do you agree that your company should never needlessly hurt anyone?

Do you agree that it is unethical to needlessly hurt or damage someone?

Do you agree that when companies disregard ethical duties, people can get hurt/ damaged?

The “rule” whether in tort, employment or commercial cases must be one that the defendant has to agree with or seem stupid, dishonest or greedy. Once the witness has agreed to the rule, questions are posed that make it clear to a jury that defendant did not meet this standard, and then, importantly, that this failure could have put many at risk, not just plaintiff. The key is “could have”, not “did”. In employment and commercial cases, a company’s failure to adhere to a high standard can be attacked on a reptile basis by showing that their actions:

• put companies at risk who rely on their promises;
• put jobs at risk since the actions could put companies out of business (see above);
• cut costs, making their product less safe, or less reliable (see above threats);
• put their on interets above that of the public;
• took shortcuts to save money or increase profits; or
• endangered a community or group in any way.

 

IV.  The  reptile at deposition 

Written pleadings and discovery may contain some possible traps for the unwary.  Careful reading of those documents for clues to the reptile theory in action is important. However, the , the most important part of the reptile approach comes in the deposition of the defendant’s corporate representative. This is when the approach calls for establishing safety rules in tort cases, and behavioral standards in employment and commercial cases which go beyond the reach of the facts and issues in the case at hand. Counsel, and deponents, can recognize the reptile approach in tort cases by use of the words the words “needlessly” or “unnecessarily” in connection with safety or company procedure rules. In commercial cases, the same words may be used to apply to actions indirectly related to a breach (for example, “you agree that you would never needlessly hurt another company, especially one you had a contract with” or “it would be wrong to unnecessarily take actions that hurt another company, or which could even put them out of business” or “when you agreed to use ‘best efforts’ in this contract you agreed to do everything you could to insure that the other company was not needlessly [or unnecessarily] damaged, right?” Or “you would agree with me that “not providing what you promise could needlessly endanger the other company, and its employees?” Remember, questions that use phrases like “needlessly” or “unnecessarily” endangering the “public” or “community” are applying the critical buzzwords. 

Users of the reptile theory try to get away from the specific facts of the case and try to make the issue less specific to the case and more applicable to society in general. To do this, the reptile uses broad hypotheticals during the depositions of not only corporate representatives but also expert witnesses, and most dangerously, fact witnesses. 

Since a hypothetical question is not based on a witnesses’ own perception, it is, by definition, an opinion. There are, of course, limitations on opinion testimony provided by lay witnesses. Thus, counsel should be prepared with an objection under MRE 701 or the Federal equivalent, FRE 701. See Lamson v. Martin (After Remand), 216 Mich. App. 452, 459; 549 N.W.2d 878 (1996)( “Any witness is qualified to testify as to his or her physical observations and opinions formed as a result of them.”); People v. McLaughlin, 258 Mich. App 635, 657; 672 N.W.2d 860 (2003) See also 2000 Comments to FRE 701 (“Rule 701 has been amended to eliminate the risk that the reliability requirements set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness clothing. Under the amendment, a witness' testimony must be scrutinized under the rules regulating expert opinion to the extent that the witness is providing testimony based on scientific, technical, or other specialized knowledge within the scope of Rule 702. See generally Asplundh Mfg. Div. v. Benton Harbor Eng'g, 57 F.3d 1190 (3d Cir. 1995)”). 

Usually, a corporate representative witness is a lay witness. Thus, when a hypothetical is posed to either a lay witness or a corporate representative, an immediate objection should be made. Depending on the circumstances, it may well be appropriate to instruct the witness not to answer. This is a well-founded objection, and courts recognize that: “the ability to answer a hypothetical question is the essential difference between expert and lay witnesses.” See United States v. Urena, 659 F.3d 903, 908 (9th Cir. 2011) (quoting United States v. Henderson, 409 F.3d 1293, 1300 (11th Cir. 2005)). 

When preparing witnesses for deposition in a case in which the reptile theory is in play, it is important that they understand that reptiles will attempt to get defense witnesses to admit in tort cases that a broad safety rule exists or that a certain act exposes people generally to unnecessary danger. Reptile, 209-224. In commercial cases, the same technique encourages witnesses to admit that general rules of conduct apply in the commercial world, and in their part of it. Thus, witnesses in both types of cases need to be prepared to respond to these questions. 

Witnesses need to be warned, however, that the better they do in avoiding reptile traps, the more aggressive the questioning is likely to become. Therefore it is important to expose them to this type of aggression in mock depositions. This preparation alerts defense witnesses to these attacks and insistence on certain responses. 

      In a tort case, a witness may be asked something like “You would agree with me that the failure to continually scan the roadway while driving needlessly endangers the public?” A similar question in a commercial case might be “You would agree with me that failing to deliver on time needlessly endangers the businesses and people up and down the supply chain who rely on timely delivery of your product”.  

      Assuming you make an objection but allow the witness to answer, an informed, prepared witness should be prepared to respond: 

“While I do not agree with your characterization of ’needlessly endangers” to answer your question, I am trained to make every effort to continually scan the road when possible and did so prior to the accident.” 

In the commercial case, the answer should be something like: 

“While I do not agree with your characterization of “needlessly endangers” others, I do agree that we strive to meet the time constraints in our contracts.”  

This response qualifies the witness’s answer and limits the use of the question, rendering it meaningless. However, the reptile is relentless and subtle, and therefore both counsel and the witness need to be on guard throughout the deposition, since the reptile usually returns, over and over again, to the same type of question. A tired or annoyed witness can sometimes get sloppy, especially after a long day of questioning. The witness should be warned that the most dangerous time in a deposition is right before lunch, and right after the attorney says “I think I am almost done, I have just a few more questions.” 

      There are many tools which can be used to defeat the reptile.  We will talk about those more in Part III.  However, to really appreciate the use of various counter measures, it’s helpful to review some reptile questions: 

SAMPLE QUESTIONS IN TORT CASES FROM THE REPTILE MANUAL   

Q:       Mr. Accountant, a professional, such as a doctor, or a lawyer, or an accountant, is not allowed to needlessly endanger the person who hired him, correct?

A:       I can only talk about accountants. 

[But jurors now know it applies to everyone.] 

Q:       And you can talk about accountants with authority.

A:       Yes. 

Q:       So an accountant is not allowed to needlessly endanger a client’s interests.

A:       (Waffle waffle waffle, but soon): Correct. 

Q:       Tell us why not. .... 

Or in a taxi wreck: 

Q:       A company is not allowed to needlessly endanger the public?

A:       I have a taxi company; I can’t answer for other kinds. 

Q:       Okay, then is a taxi company allowed to needlessly endanger the public?

 Etc.

 And eventually: 

Q:       How often does your taxi company expose the public to needless danger? 

A defense objection will imply there’s something to hide. 

(Id. at p. 56).

SAMPLE QUESTIONS IN COMMERCIAL CASES ESTABLISHING THE RULE 

Q.      Mr. Corporate Executive, you agree that a company should not needlessly hurt other people or businesses?

A.      Well, that is rather broad. 

Q.      So you believe that it is appropriate for a company to needlessly hurt other people and their businesses in some situations?

A.       No, that is not what I said.

Q.      But you believe that is it is sometimes okay for a business to needlessly hurt other people and their businesses?

A.      Well, it depends. 

Q.       Would it be appropriate to needlessly hurt other people and their businesses if it meant more money for your company?

A.      Well, er, no. 

Q.       So you agree with me that your company should never put profit above the interests of others, correct?

A.       ???? 

Q.       Mr. Executive do you understand that Mr. Smith believes that you breached the contract with him by failing to use your best efforts to meet your promises?

A.       I understand that is what he is claiming. 

Q.       Do you agree that a company, just like a person must keep its word?

A.       Yes. 

Q.       If a company doesn’t keep its word others who relied on them can be seriously hurt, right?

A.       Well, no, not if they prepare properly. 

Q.       So, you believe that everyone should assume that a company is going to break its word, and it’s their fault if they aren’t prepared for that?

A.      No, I didn’t say that. 

Q.      So you agree that a company must keep its word, even if it is (separate questions): ( Expensive) (Difficult) (Time consuming)?

A.      Yes. 

Q.       And when a company is making decisions about how to keep its word, it can sometimes do things in more than one way, correct?

A.      Correct. 

Q.      Sometimes the choices are riskier than others?

A.       Riskier? 

Q.      Some choices may more expensive?

A.       Yes. 

Q.      Some may be more difficult?

A.      Yes. 

Q.      And some may be more time consuming?

A.      Yes. 

Q.      But, even if a company has to do something difficult, or time consuming, or really expensive, it must do so to avoid needlessly hurting other people and businesses, correct?

A.      {here witness may see trap and try to backtrack, but will look cheap, or greedy}

 

STAY TUNED FOR PART III—TOOLS TO DEFEAT THE REPTILE

 

 

 

 

[1] A prime target of reptile theory is a commercial contract in which there is a “best efforts” clause.