A reptile attack can be lethal to your case
Over the last 10 years, the plaintiffs bar has secured over $8 billion in verdicts and settlements using the Reptile approach. In part 1 of our Anti-Reptile series, Bill Kanasky, Ph.D. explains what a Reptile attack is.
Although Reptile attacks can be used in a range of cases, these attacks follow a formula. In part 2 of our Anti-Reptile series, Bill Kanasky, Ph.D. gives an example of a Reptile attack.
The Reptile approach has grown due to its simplicity. In part 3 of our Anti-Reptile series, Bill Kanasky, Ph.D. describes why the Reptile approach has been so successful.
The Reptile approach can be combated, but it requires specific actions that must be taken by defense counsel early. In the final part of our Anti-Reptile series, Bill Kanasky, Ph.D. illustrates how a Reptile plaintiff attorney can be beat. You can also read our white paper on combating a Reptile attack.
What is a reptile attack?
A reptile attack is a
neurocognitive attack on a witness, typically during deposition, but also at
trial when a cross examiner is manipulating a witness to try to get them to
agree to, essentially, the reptile theory of questioning, which is an absolute agreement
to very general questions, which we call safety rule questions or danger rule
And there's a list of these questions that the witness is manipulated into agreeing to absolutely. Once they agree to those questions, then the questioner transitions into questions about case facts and the case facts will completely contradict the reptilian answers. And that's what creates a hypocrisy effect, and the witness is trapped and cannot get out of it. What we provide at Courtroom Sciences is a neurocognitive training program for the witness to not fall into that trap, which puts all the pressure back on the questioner. And oftentimes the questioner will give up and move on with their questioning.
What is an example of a reptile attack?
For example in healthcare, if a
reptile plaintiff attorney was deposing a physician, there'd be a list of
questions upfront. That would be things like, "Doctor, you'd agree with me
that ensuring patient safety at all times is your top priority as a
physician." A doctor that does not have our neurocognitive training is
automatically going to agree with that because that's how their brains are
wired. That's how these doctors are trained, but the word ‘safety’ in the
phrase ‘patient safety’ does not mean the same thing legally as it does
clinically. That's why they're making this cognitive error over and over.
Then the next list of questions are going to be, "Well, if you ever needlessly endangered one of your patients, you'd be violating the standard of care as a physician, right?" Now, they have to say yes because they've already agreed to the first reptile question, so there'll be a series of questions like that, which all link together. Then once the physician is locked into that position, the plaintiff attorney will go right to the case facts and say, "Well, you didn't order this test. You didn't order that test."
Why has the reptile approach been so successful?
It's been wildly successful for 10
years because of a lack of preparation on the defense end. The plaintiff's bar
has invested a lot of time, a lot of money into training plaintiff attorneys on
these special and highly-effective tactics. The defense bar has been very slow
to come around.
Now, thankfully, recently the defense bar has woken up and we have provided training to help the defense bar catch up to the plaintiff’s bar. But every time we see a really effective reptile attack, and then a reptile result at trial and you do the post mortem on that, you dissect what happened, 100% of the time, it's lack of awareness, lack of preparation, and then by the time the defense figures out they're being reptiled, it's way too late.
And that happens quite frequently. We're trying to cut down on that, but the outcome there is a terrible jury verdict, which is multi-millions of dollars. It's all over the newspapers. Or the defense is forced to settle the case and pay entirely too much money because they understand their checkmate. There's nowhere they can go with it. So it's really a lack of preparation early in the case. Another way to put this, if you go down by four touchdowns in the first quarter, it's really hard to catch up. It's the same thing with the reptile approach. If you don't figure out you're being reptiled early, by the time you figure it out, it's too late.
What can the defense do to combat a plaintiff reptile attack?
Several things can be done. In
fact, we've cracked the code on this. We figured out the formula on how to do
this. The first that needs to be done is you need to figure out you're going up
against a reptile attorney. I mean the defense has to do their homework early
in the case to essentially get a scouting report on plaintiff's counsel. Is
this a plaintiff's counsel that has practiced these reptile tactics before?
Number one. Number two, throw the first punch. Get in early. Help prepare these
witnesses, fact witnesses, corporate witnesses, people with most knowledge
witnesses and get them ready for the reptile deposition by putting them through
a scientific neurocognitive training program that will thwart all these reptile
Number three, doing jury research early in the case. You can't determine your exposure one year before trial. You can do this well before mediation and put on a jury research project such as a focus group or a mock trial to determine, "Okay, if my client's going to get a reptile attack, what are the likely damages here? What kind of chances do we have?" Getting that information early in the case gives the defense all of the leverage and power in the case. If you wait until discovery is over and you're right before trial, that's essentially how you get reptiled. You wait too long and it's not proactive. It's more reactive.
The Role of Cognitive Fatigue on Witness Performance