Daniel I. Small, The Daily Record Newswire
With any fad or trend, the question is not just whether you believe or follow it, but, more important, what can you learn from it? So it is with the recent debate in litigation between the Reptile and the Mongoose.
The accuracy and science have been widely criticized and debunked. However, understanding the concepts can help all litigators to prepare their cases and their witnesses. Welcome to the zoo.
In the last 10 years, several plaintiffs' lawyers and consultants have created a cottage industry of seminars and writing, touting the Reptile litigation strategy. In oversimplified form, the theory starts with the premise that the "reptilian" part of our brain is focused on survival. To take advantage of it, lawyers should frame their case around safety: Shift the jurors into survival mode, in which they seek to protect themselves and their communities.
The basic formula is: "Safety Rule & Danger = Reptile." (Ball and Keenan, "Reptile" (Balloon Press, 2009)). The science is questionable at best, but the strategy issues are worth considering.
At the heart of the strategy is: (1) developing broad and absolute safety rules that the jury will identify with; (2) getting the other side to admit or agree to those rules; and (3) showing that the other side violated those safety rules, which could put anyone in danger.
It starts with general rules (for example, "a ____ is not allowed to needlessly endanger the public"), and then works down to rules that, though still broad, are more case-focused (for example, "All truck drivers are required to pay attention at all times to protect people from getting hurt," or "Violating the staffing minimums needlessly endangers residents").
The goal is to create "safety" rules that the other party has violated, thereby endangering the community. Only a big verdict can protect the people at large.
The key is to get admissions from the other side - usually in depositions, initially - supporting these broad rules. To the unprepared witness, it is easy to fall prey to the Reptile: Broad safety rules sound good and are easy to agree to. Once a witness - especially a party - has agreed to such broad rules, any violation of rules becomes starkly highlighted. Then the witness is trapped by his own naïve agreement to impossibly absolute rules.
Absolutes are dangerous distortions in all walks of life. For example, one popular view of the physician's oath is, "First do no harm." But it's a myth: Those words do not appear anywhere in the Hippocratic Oath.
Nor could they. The emergency room doctor gives a painful yank on a dislocated shoulder to reset it; the surgeon cuts through healthy skin to get at the problem underneath; the oncologist prescribes drugs with terrible side effects to try to keep cancer at bay.
Medicine, like all professions, is about balancing tough decisions. If it was easy, we wouldn't need skilled and caring physicians.
One response to the Reptile approach is the legal argument. By framing the case as one of personal safety for the jury, the Reptile becomes the "Golden Rule" argument, which has been widely rejected.
As the 1st Circuit stated, this type of argument improperly "encourages the jury to depart from neutrality and to decide the case on the basis of personal interest and bias, rather than on the evidence." Forrestal v. Magendantz, 848 F. 2d 303, 309 (1st Cir. 1988).
A number of writers also have discussed how to respond factually to the Reptile. One experienced Nashville attorney, Minton Mayer, has written several helpful articles.
Dr. Ken Broda-Bahn, a litigation consultant, has added in his writing a competing animal analogy: the Mongoose. He suggests that opposing lawyers and witnesses must be like the mongoose, a tough little animal that routinely kills poisonous snakes and other reptiles.
Rudyard Kipling popularized a mongoose he named Rikki-Tikki-Tavi in "The Jungle Book." His description is worth noting:
1) "It's the hardest thing in the world to frighten a mongoose."
The Reptile theory is a popular fad, but not a magic wand. Witnesses should not be intimidated by the theory itself, the broad safety rules, or the righteous indignation with which they may be put forth.
Our Rule No. 4 is to "Be Relentlessly Polite," yet also be "Relentlessly Positive." There is nothing righteous about "rules" that either ignore or distort reality.
2) "The point of attack must be the head."
For a mongoose to kill a deadly cobra, it must not dance around the edges, but go directly at the head. So it is for witnesses. Recall Rule No. 1, which says to slow down, give yourself time to think. The faster the volley of Q&A goes, the easier it is to fall into a trap. Slow down and really listen to the question:
- Does it make sense in the real world?
- Are things that simple?
- What would it actually depend on, or be subject to?
- What would a real world rule look like?
Rule No. 3 includes that part of the witness's oath that deals with "the whole truth." If we slow down and think carefully, we realize that we have to put real world limits and qualifiers on unreal rules.
3) "The victory is only a matter of quickness of eye and quickness of foot."
The quick response comes naturally to the mongoose. For a witness, it takes preparation: understanding the case, the issues and the rules (Reptile and real) well enough to be able to anticipate the questions.
The witness must practice enough, in what we've previously described as the essential step of a mock deposition, to be able to respond effectively and confidently. As Kipling further explains, it is "the snake's blow against the mongoose's jump."
The reality is that there's little new under the sun. Kipling's descriptions of the mongoose are helpful. By focusing on gaining improper admissions from witnesses, the Reptile theory should focus opposing counsel on the importance of preparing witnesses thoroughly and properly.
Absolutes are easy; real life takes work. Jurors and other lay people would rather see things in black and white. Witnesses need to understand the challenge before them - to incorporate shades of grey - and the need to prepare for it.
Ask 10 people on the street what the "standard of care" is and you'll likely get 10 different answers - but all of them will be more absolute than "reasonable care under the circumstances." Yet those five simple words, or similar definitions, take into account a wide range of real-world considerations, including: What is reasonable? What are the circumstances? How do we balance all the competing factors?
Reptile v. Mongoose may be a new title, but it doesn't introduce new concepts. In many areas of litigation, one goal has long been to broaden the case beyond its narrow facts: to the community, the profession, the law, or any other wider perspective.
A key challenge in any witness preparation is to bring the focus back to the real world, as it relates to the profession, the law and the case. The proponents of the Reptile theory claim that it has led to billions of dollars in verdicts. Whatever the actual results or the actual science, you can prepare your witnesses to tame the beast. But it takes hard work.
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Daniel I. Small is a partner in the Boston and Miami offices of Holland & Knight. A former federal prosecutor, he is the author of the American Bar Association's "Preparing Witnesses" (4th Edition, 2014). He can be contacted at dan.small@hklaw.com.
Published: Thu, Apr 30, 2015
