Source of the following article Persuasive Litigator.
By Dr. Ken Broda-Bahm:
Let’s consider the life cycle of the Reptile — not the slithering, cold-blooded animal, but the strategic approach to arguing plaintiffs’ cases advocated by David Ball and Don Keenan. That perspective, trying to win by appealing to the fear response of the “reptile brain,” is thought of as a trial strategy. Defense attorneys who’ve dealt with it before, however, know that the Reptile lays its eggs in discovery. It does so by securing strategic responses during the deposition of the defendant and other defense witnesses. The goal is not just to leverage those commitments during trial, but also to degrade the witness’s deposition, ideally yielding a worse performance and thereby making the case more ripe for a settlement that is favorable to the plaintiff.
Based on this use of the Reptile, there is a need to prepare for that approach, making sure witnesses understand both the form and the purpose of the questioning style, and are ready to fight back by answering well. They need to understand what a “safety-rule” question sounds like, so that when they hear a simple question asking them to commit to some kind of ‘black-or-white’ principle, they will know to give it some thought before providing the “Yes” that might seem obvious at first blush. In medical cases where the Reptile is most at home, for example, they might hear, “You would agree with me, wouldn’t you doctor, that a physician should never needlessly endanger his patient, right?” Before your witness responds, “Of course,” they need to consider that, if interpreted literally, medicine includes a great deal of what might be considered “needless” or a “danger.” They need to recognize “That’s the Reptile,” and that to answer it, they’re going to need to be a bit of a mongoose.
I’ve previously shared my thoughts on “the Mongoose” in the form of advice to defendants countering the Reptile approach. The previous post addressed defendants generally, but this one is particular to witnesses. Applying four principles, a bit fancifully derived from that greatest of all mongoose stories, Rikki-Tikki-Tavi from Rudyard Kipling’s The Jungle Book, I identify four traits that make a mongoose a close match for a reptile, and also apply by analogy to witnesses facing the Reptile perspective.
A Mongoose Witness Is Fearless
Your witness already feels like she is going into combat. Adding in the Reptile, a new, mysterious, and aggressive approach on the plaintiff’s part, just raises the stakes. Her preparation needs to focus on reducing and managing that potential fear. A useful antidote is knowledge. A simple explanation — “Here is what they’re going to try to do and why…” — can go a long way toward taking the surprise out of the strategy. Add in some samples delivered through some practice Q & A, and your witness should be desensitized enough to react analytically and not based on fear.
A Mongoose Witness Has Quick Reflexes
Once they know and recognize the strategy, witnesses need the ability to quickly recognize its signature question setups and adapt. The signs to look for are questions phrased as a statement of principle, in very simple and nontechnical terms, based on an absolute (“always” or “never”), and set up so that a witness who takes it on face value with either agree or look silly disagreeing. The response is to not take it on face value and to question its often-oversimplified construction. That requires thinking on your feet. But thinking quickly doesn’t mean answering quickly. Indeed, the best reflex is often to take your time and think. That thought is often a precondition to coming up with an intelligent caveat or a “not necessarily,” or a reformation to make the answer more specific and more medically appropriate.
A Mongoose Witness Has a Thick Hide
The Reptile preys on emotions, so a prepared witness keeps his emotions in check. That means not just the emotions resulting from feelings of sympathy or from the shock of the underlying event, but also the emotions stemming from counsel’s ability to press buttons, add pressure, and imply insults. The force of accusation behind the lawsuit itself carries an emotional punch. The Reptile tries to exploit these emotions by offering what seems to be a safe harbor of agreement on a simple matter of principle. The response to these emotions is understanding and practice. It is still essential to demonstrate a caring attitude, and it is okay to feel bad when something bad happens. But the prepared witness needs to be able to answer and to analyze without stress and passion.
A Mongoose Witness Avoids the Coils and Aims for the Head
The simplified safety rule has emotional appeal because it appears to offer common sense. Agreeing with the attorney is appealing because it seems to avoid the conflict. If, however, witnesses are sucked into the hypotheticals and the simplified safety rules, that is the route by which they’re ensnared or constricted. Those are the coils of the Reptile. The head, in contrast, is the idea that there is a simplified rule in the first place. In medical cases, the head is always the idea that medical realities can be boiled down to simplified cookbook instructions of “Always do this” and “Never do that.” Medical reality is more complex and driven by circumstance.
Take the example used above, “You would agree with me, wouldn’t you doctor, that a physician should never needlessly endanger his patient, right?” Instead of simple agreement, the better answer would be something like this: “I agree that minimizing patient risk is always important, and that is balanced against the goals of achieving effective treatment and good outcomes.”
That answer strikes at the head, and that’s a good example of a mongoose tactic. But animal analogies aside, it isn’t combat. The end result should look substantially more civil and restrained than an actual cage fight between a snake and a mongoose. But, there are high stakes, and witnesses facing a Reptile-oriented plaintiff are facing an aggressive strategy. Given the prevalence of the strategy, the time has come for witnesses, especially those in medical, personal injury, and products cases, to be trained in how to respond.
Other Posts on Countering the Reptile:
Image credit: 123rf.com, used under license, edited