Episode #12 – Reptile attacks and COVID-19

This video episode of The Litigation Psychology Podcast, presented by Courtroom Sciences, Inc. (CSI), features Steve Fleischman, Partner at Horvitz & Levy, discussing with Dr. BIll Kanasky about the on-going threats of reptile attacks, how companies are creating exposure for themselves with their COVID-19 communications, and the challenges of juries and trials in the era of COVID-19.

Full Episode Transcript

[0:05] Bill:
welcome to another version of the litigation psychology podcast brought to you by courtroom sciences this one being done by video happy to have mr steve fleischman with us from southern california steve how you doing out there

[0:19] Steve:
you know we’re doing well the weather’s gorgeous i just wish we could return to normal things around here but everything’s good

[0:27] Bill:
yeah i think everybody wants wants the same thing we wanted to get you on the podcast to get some updates particularly with reptile tactics what you’re seeing on the appellate level and i think we need to jump right in and talk about what just happened in indiana can you maybe tell our audience about this major development that and word is spreading of this very quickly i believe it was mostly last week why don’t you fill us in on what’s going on there

[0:58] Steve:
sure the case is called mcnamara versus navarre right now only a west law citation is available it’s 2020 westlaw 1934175 now for years you’ve been preaching bill correctly that you can’t wait until trial and file a motion of limine and hope to keep reptile out of the out of the trial that’s just not a good strategy and i’ve agreed with you you’ve got to get involved up front in discovery before it happens these defense attorneys went one step further and they filed a motion for a protective order before depositions began and they said look judge we want to know what the ground rules are we think reptile questions are improper

now it’s an otherwise uneventful wrongful death case the defendant was driving a semi truck killed the decedent nothing spectacular about the case but defendant filed a motion for a protective order saying in our experience this plaintiff’s attorney will ask reptile questions specifically about alleged safety rules and we want a protective order to prevent plaintiff’s council from doing that in depositions i thought this was a great strategy to get up in front of the issue and know what the ground rules are going into deposition

[2:40] Bill:
steve let me interrupt you. Has this ever been done before? I’ve never heard of it

[2:44] Steve:
i’ve never heard of it and i want to take these when things get back to normal i want to take these defense attorneys out to dinner and and talk about it you know i was asked at a seminar a few years ago has this ever come up in discovery and i said i don’t know but to be honest i could see a lot of judges kind of punting on the issue saying let the depositions go forward and i was wrong i’m happy i’m happy to admit it at least one judge in indiana said this is wrong

now plaintiffs in their opposition how can i put this politely instead of addressing the merits decided to attack a well-known and very successful trial consultant you want to talk about that bill

[3:33] Bill:
yeah i got the email yes you sent the email to me with the attachment and i believe they dedicated a whole paragraph to me and my company and were pretty much blatantly inaccurate yeah it kind of ruffled my feathers a little bit but after talking to some folks i guess i’m more flattered if if anything

uh but yeah i guess the the defense cited my one of my main reptile anti-reptile articles in their motion and apparently it worked so i guess in the response to the court they tried to attack me attack the company

[4:16] Steve:
you know i’ve worked for two judges and i can tell you judges don’t like ad hominem attacks on people they particularly don’t like ad hominem attacks on people that aren’t before the court and can’t defend themselves and that tactic rarely works and it didn’t work here

so what the magistrate judge in indiana held which is a very interesting ruling is as it relates to so-called safety rules those are improper questions to a non-expert witness because they are hypothetical questions and hypothetical questions should be reserved for expert witnesses who have special expertise in the area that is a very interesting way to look at reptile

and i hope defense attorneys around the nation start pushing that that look these safety rules are completely made up by the plaintiff’s bar now it’s one thing if you have an actual statute or regulation that governs the defendant’s conduct then it may be appropriate to ask a proper non-expert witness does your company comply with rule a b or c if it’s actually based on something but these hypotheticals based on safety rules that don’t exist in real life i thought that was a very interesting holding

so the punch line is the magistrate judge granted the protective order and plaintiff’s council will not be able to get into reptile questions during depositions at least of non-experts

[6:03] Bill:
very interesting so does this trend catch on nationwide does everybody jump on this bandwagon

[6:08] Steve:
god i hope so yeah i mean file your motions get the rulings from the court i hate to say it like this but you as a defense attorney you know you’re really no worse off filing the motion ordinarily you got to assume that this stuff is fair game in depositions if you follow the motion and you lose you’re no worse off than you were before if the judge reads this opinion from indiana and says you know what i think this guy in indiana is on to something i’m going to follow it huge issue eliminated from the case

[6:42] Bill:
that’s incredible and i believe you have an update on there’s a case up in boston correct

[6:48] Steve:
yeah there was a very interesting case in boston a plaintiff bit into a hamburger at a wendy’s restaurant and there was a piece of bone in it the case got tried twice first time there was a mistrial second time plaintiff won a small amount of money

so the case went up on appeal the citation is 136 northeast third 355 and the massachusetts intermediate appellate court held the mistrial after the first trial was properly granted because reptile questions about safety rules and consciousness of the community were improper

and last time you and i did one of these podcasts we talked about that case in great detail the update is this about three weeks ago the massachusetts supreme judicial court granted review in that case so the case remains citable but we’re going to see an opinion from the high court of the state and hope presumably it will address these reptile issues and whether they were proper or not so stay tuned

[8:00] Bill:
well i see a vicious battle on the horizon over these what is what are your thoughts on how covid 19 and this pandemic is gonna influence litigation particularly with the reptile tactics
you know one thing that’s deeply concerning to me is i get well at least up until last week and i still think i get them in my inbox between hilton and the rental car companies and the airlines my inbox fills up with emails telling me how my safety is this company’s top priority and i get them repeatedly and now you have companies putting this on their websites even in commercials

i think maybe the pr department’s not talking to the legal department have you seen these announcements and how they’re setting themselves up for potential disaster down the road

[8:59] Steve:
yeah i i have seen all of these announcements i i understand the pr pitch and i understand what’s going on but yeah this is left hand not talking to the right hand clearly their legal departments are not getting involved in these things from a risk management point of view i know in the past you’ve talked about trucking companies that you represent and sometimes you go on their websites and it’s all about safety safety safety and those things come back to bite you that that’s what i fear here

um you know the more important issue is in my mind is you know this has got to end at some point and how are we gonna get our courts back and operating you know with juries and a lot of smart people are are looking at this now i i don’t know what it’s going to be like you know i can’t see putting 12 jurors in a small room anymore to deliberate you’re going to have to think about ways to deal with that

[10:04] Bill:
yeah i’ve heard some attorneys hypothesize that maybe you know some like here in florida we have six person juries i believe it’s six person and indiana as well do you think that maybe for a temporary basis you may see 12 jury systems getting cut in half as a way to promote the better atmosphere

[10:30] Steve:
In California that would require a constitutional amendment or the stipulation of the parties i think there’s going to be a huge push by trial judges for number one stipulations to reduce the amount of jurors and number two i think there’s going to be a big push towards bench trials

um and i can see judges saying you know what i can give you a courtroom now with an experienced trial judge you can do your bench trial just like you’ve always done it or you’re going to have to wait a while if you’re going to want a 12 person jury the idea about stipulating the fewer number of jurors i think is a good one but like bench trials at least in california that’s going to take two to tango

[11:14] Bill:
well it’s gonna be very interesting to see how it develops on a state-by-state basis region-by-region basis i think it’s kind of up in the air now and anybody that tells you that they know what’s gonna happen i i don’t think i agree with them

[11:30] Steve:

but i do have good news in all of this

[11:32] Bill:
please

[11:34] Steve:
at least in california and the ninth circuit appellate courts are kind of up and operating the way things have always done the way things have always been with one exception you’re not able to show up at oral argument anymore look the judges in the eye and explain your position you’re having to do that by phone you’re having to do that by zoom

in the grand scheme of things that’s every everyone can live with that everyone would prefer the old system particularly the judges i think i think judges appellate judges like oral argument they like being able to look at attorneys and ask questions in certain cases

a lot of stuff’s routine i don’t think that changes but appellate courts are up and running however in order to have appeals you need to have trials and at some point i fear the appellate courts if trials don’t get going you know the the docket on appellate cases at some point will run out i think we’re a long way away from that there’s a lot of stuff in the pipeline but we’ll see

[12:46] Bill:
major log jam ahead I think so well steve thank you so much for being on the podcast

[12:52] Steve:
not a problem always happy to do it bill

[12:56] Bill:
keep in touch and we’ll see you next time