The Litigation Psychology Podcast - Episode 22

Introduction to Reptile

CSI - Courtroom Sciences Inc

In this episode of The Litigation Psychology Podcast, Dr. Bill Kanasky provides an introduction to the Reptile Theory and Reptile Attack. Dr. Kanasky shares background on where and how the Reptile Theory began, why its been so incredibly successful, and gives multiple examples of how witnesses fall for the Reptile tricks and traps. Also covered are how Reptile attacks can be avoided through advanced neuro-cognitive training. 





Podcast summary:

Dr. Bill Kanasky

Welcome to another edition of The Litigation Psychology Podcast brought to you by Courtroom Sciences, Courtroom Sciences.com. My name is Dr. Bill Kanasky and we're going to talk reptile today and this is really an intro to reptile. It baffles me that we're 10 years into this phenomenon and they have over $8 billion of settlements and verdicts and still even to this day, many defense counsel don't really understand what reptile is. They think they know what it is, but there's really a lot of misconceptions about what it is. Fortunately we accidentally got our hands on a lot of the reptile training material and have gone through it line by line, word by word, page by page, and have really broken this down in several articles and have debunked the theory and really redefined it for what it is. And those papers can be found on the Courtroom Sciences website.

Dr. Bill Kanasky

I think we have about five really solid reptile articles for you that breaks down the entire system and really tells you what it is, but also what it isn't. There's a lot of salesmanship going on here. And the way they sell it is really not what's going on. And that's the one of the main problems. Until you understand a problem, truly understand it, its really hard to defeat the problem. So I'd like to play an audio clip from some of the reptile marketing strategies that they have. So this was invented by Don Keenan, a very successful plaintiff attorney in Atlanta, Georgia, and his counterpart, Dr. David Ball, who is a jury consultant out of the Raleigh Durham area. And this clip is of Dr. David Ball selling what the reptile is. And this clip is one of the reasons why so many young plaintiff attorneys are signing up for this training. Because this seems, once you listen to this, it seems like you cannot lose if you follow this system. So let's play this clip and then let's break it down.

David Ball

Well, we have with reptilian advocacy is a way to get right to the reptilian brain in any situation where a decision has to be made and that decision can affect me - juror number 3's - well-being, security, safety. The reptilian brain takes over and the reptile never loses. It's been used heavily in marketing. It's been used heavily in politics. And when we started doing this, we thought maybe it will work in advocacy and it has succeeded way beyond anything we ever thought it would do. I mean that it's still staggering everyday to see what it does. Its taken cases that at one time would have been called soft tissue, minor injury, soft tissue cases that might have been $20,000 or $30,000, $40,000 cases and the verdicts are coming in at $200,000 and $300,000 with the same cases. Because when you get to that part of the brain; when you put on a trial as an opportunity for a juror to make their world better for themselves, what's in it for me - juror number 3 - when you get there, you got the jury, you've got the jury right there. And they appreciate it because they walk out having accomplished something not only for justice, not only for a person who's been hurt, but for themselves and their kids and their grandkids.

Dr. Bill Kanasky

Okay. So that's what you're dealing with here. And thankfully we can prove scientifically that 95% of what Dr. Ball just said is completely false. We've debunked this in our papers. There is no such thing as the reptile brain. That's a theory from the early 1970s about brain function that's completely obsolete. However, it's a pretty sexy sales pitch. It's a neuroscientific gift wrapping of sorts, but that's not what's going on here. But the one thing that David Ball said that's absolutely correct is that $50,000 cases are now being settled or verdicts are coming in at $250,000 or $300,000. He was absolutely correct. And that's really what's going on here. And the problem is that proportionally, it's gone off the charts. And so what you're seeing now is the $1 million case, they're now getting $20 million and then the $20 million case they're getting $70 million.

Dr. Bill Kanasky

So that is the one thing he is correct about regarding the reptile and that's really what's going on here. It's more of an economic philosophy. It's not a brain philosophy. All of that stuff he said about the brain. David Ball's not a psychologist. He's certainly not a neuropsychologist. Dr. Ball's got a PhD in in theater art. And a lot of people laugh at that, but he's an expert storyteller and that's how he trains plaintiff attorneys on how to give the better opening, how to connect with the jury. And he's really, really good at it. But the sales pitch, it's, you know, the reptile never loses. Well, here's the good news. We have been spearheading the charge to defeat it and we've defeated it just about every time we've gone up against it. And we've put that in our papers. The anti-reptile formula. I will go over that with you today. But here's another clip from Nick Rowley. Nick Rowley went through the reptile. He's very close with those folks. Nick went on a radio show a couple of years ago. Don't ask me how he got this spot, but he describes his philosophy of litigation and this is actually what's really going on with the reptile.

Nick Rowley

Corporations and the insurance industry had been eroding our constitutional rights, taking away our right to a jury trial, limiting a jury's ability to determine what damages are for individuals for years and years and years and putting propaganda out there into the world where people think that lawsuits are frivolous and it's just not so. Frivolous lawsuits don't make it to court. I've been practicing a long time. I've handled over a thousand cases. I've tried well over a hundred jury trials. I don't see frivolous cases. What I do see are frivolous defenses. Most oftentimes, 99 plus percent of the time frivolous defense is being pushed by insurance companies in the good name of the insured policy holders who are being sued because the insurance companies won't pay. And the juries never get to hear that it's an insurance company who's hiring the insurance defense lawyers who is hiring the experts and refusing to pay the medical bills and treat the injured people in their families fairly. That's what's going on here. That's why I formed this firm and that's why I do what I do.

Dr. Bill Kanasky

So that is really what you're going up against. What Nick Rowley just described. In fact, there's a whole chapter in the [reptile] book about this is a full frontal assault on the insurance defense industry and corporate America. And that's what they're really teaching these plaintiff attorneys when it comes down to it and it's working. They're taking full advantage of that. And I explained to you what you need to do to not get burned by their system. But let's start with the misinterpretations of the reptile theory. Because I hear this stuff every day and it's not true even 10 years later. The first one is plaintiff attorneys that do the reptile method, their goal is to scare the jury into awarding high damages. That is not even completely true at all. In fact, it's the opposite. They don't want to scare anybody.

Dr. Bill Kanasky

They want to empower jurors to give them the strength to write that big check at the end of deliberations. That has nothing to do with scaring the jurors at all. Another one is, well this is just Golden Rule 2.0; well, we've seen this for 50 years. This is just a Golden Rule tactic. Actually, no, it's not. There's an entire chapter in the reptile book addressing this issue about how it's not a Golden Rule and if you file a motion in limine saying it is, they pretty much give the formula on how to get around that with the judge. Another one is if we tell the judge and the jury about these fear tactics, the reptile, they will be offended and they will side with the defense automatically. No, most judges are completely oblivious to this topic, which is another head-scratcher and telling the judge about it may not get you very far and the jury has no earthly idea what you're talking about.

Dr. Bill Kanasky

So this tactic really would be ineffective. Another one is that, you know, this is a big sham. This is just not even real. There's no way this is really happening. Well, $8 billion later, and now it's in every state, every single state in the United States. This has spread like a disease and it's not a sham at all. It won't spread to my venue. Well, it already has. It already has. And yes, there are venues where you see more or less reptile, but it is coming to your venue. It's already there and you're going to have to be prepared to deal with this. And then finally, my favorite, I'll just file a motion in limine to ban this. Based on our statistics, you’ve got roughly a two or three in 10 chance of getting that motion in limine upheld because again, the bench is not up to speed on this.

Dr. Bill Kanasky

And a lot of the judges essentially say, you know what, rather than grant this motion I'm going to rule on this stuff throughout the trial. And so that's going to teach you - we'll talk about this at the end - you better learn how to object early and often cause that's gonna preserve your appeal. So where in the world did this come from? So, what happened was in the mid 2000s Ball and Keenan were working together and they were doing mock trials, they were doing focus groups and what they found out was while they were winning on liability in their jury research, they felt like the damages were going lower and lower and lower and that was really concerning them. So what they did was they did some extra mock trial and focus group research to figure out what in the world is going on, why are people awarding less money over and over and over again over this three to five year period.

Dr. Bill Kanasky

And here's what they found. This is right from the [reptile] book, ladies and gentlemen. Number one, what they found is that sympathy was no longer effective; completely ineffective. And the reason for this was because Gen X and Gen Y jurors started to saturate the jury pool at this point and that sympathy card was not working with them. In fact, Gen X and Gen Y jurors have no sympathy button at all. Zero. It is not in their blood stream. It's not in their DNA. And so they found out that the sympathy card just was not working anymore. And then secondly, what they found out was they thought that corporate America and the insurance defense industry pretty much poison the well. And they thought that, or they found actually that, juries were very uncomfortable to award high damages because they didn't want to hurt corporations. They didn't want to hurt the hospital or the local company in their community.

Dr. Bill Kanasky

And that was a real problem for Ball and Keenan and they figured out after these two key findings, well we have to start trying our cases different. We have to work them up different because we are kind of behind the 8-ball right now. And so they're what they call ‘the antidote to tort reform’. Toxicity is what they call it. And there are a couple of goals where number one, they wanted to not instill fear into the jury, but quite the opposite. They wanted to reduce fear. They wanted to reduce fear into empower the jury to what they call quote/unquote doing the right thing, which would be protecting the community safety, decreasing danger, and doing that by awarding excessive damages. So they're not trying to scare jurors or instill fear. They're gonna use fear; and I'll tell you who they're gonna use that with, but certainly not the jurors.

Dr. Bill Kanasky

The other interesting antidote here is they want to make it clear to jurors that being a juror in a civil lawsuit was just as important as a criminal lawsuit. And so if you ask anybody on the street, you know, what's the purpose of being a juror on a criminal lawsuit? Everybody says, well, you know, to protect the community. If you have an accused killer or an accused burglar, the role of the juror is to protect the community. But then when you ask the same question about civil litigation, jurors don't think of it that way. They don't think of it as protecting the community. So one of their main adjustments is in jury selection, opening statements, closings, is to sell this principle to the jury that civil litigation, if you're a juror in civil litigation, you have a huge role in protecting the community safety.

Dr. Bill Kanasky

And they figured out they had to educate the jurors that what the jurors’ goal was community safety -not the jury instructions, not the standard of care - but that community safety had to be really the top priority for the jurors. And they've been largely successful in doing that. And so they have two phases of attack. You have the discovery, we're going to talk about that a lot today. The discovery strategy, priority number one, destroy defense witnesses at deposition and videotape. We're going to talk about this a lot in this podcast and follow up podcasts about the techniques that they're using, the very manipulative reptile techniques to get witnesses to crash and burn on videotape. And then at mediation; there's an entire chapter on mediation. Trust me, plaintiff attorneys don't want to go to trial particularly, mediocre and younger plaintiff attorneys, they want to get easy money.

Dr. Bill Kanasky

They want to get out fast. And so if they come out with a full frontal assault against the witnesses, they figure that when they go into mediation, they're going to get their money because there's no way that the client, the defendant is going to want to try the case. Now finally, as a trial strategy, we'll talk about this in a different podcast, but they completely redid their voir dire strategy, completely rebuilt their opening statement strategy and then completely changed how they questioned witnesses at trial. But again, that's for another podcast. So how does the reptile theory use fear? Well, it has nothing to do with the jurors. Who does it have to do with? It has to do with you. It has to do with the defense attorney and the client and they have this term that they use in the reptile training materials called ‘head danger’.

Dr. Bill Kanasky

They want to create head danger and you've heard this before, ‘I want to have that person's head on a platter’ or you've heard this, you know, ‘when the boss finds out about this, heads are gonna roll’. In other words, they want to create tension between the defense counsel and the client, whether that be a corporate in-house counsel or a claims specialist to get them both scared to death to get them both fearful of, ‘Hey, we better settle this case or one of us is going to lose our job’ and it's been working. It's absolutely been working. Particularly when you see some of these emails flying around from plaintiff's counsel, essentially baiting these defense counsel and these clients saying, ‘Hey, if you take this to trial and you lose, you're going to be plastered all over the Wall Street Journal and USA Today and social media, but B, your boss is not going to be happy’.

Dr. Bill Kanasky

‘Let's not do anything stupid here. Settle the case, give me my money, and then everybody walks away happy again’. That's worked as well. And then secondly, again, a full frontal assault on the insurance defense system. They know what the system is and listen, no one wants to talk about this. We've said this in another podcast, but this is how it works. The insurance defense system is highly reactive and not proactive. Meaning they don't want to spend money on a problem until it becomes a problem. And that's really what the reptile system is, make enough of a mess so that by the time the defense figures it out, it's going to be too late. And we've all been through this before where an insurance company will not give you authority for that high level expert or extra expert or that focus group or that mock trial or that advanced witness training because they want to save money on the front end.

Dr. Bill Kanasky

And that's a claims person's job while the indemnity folks down the hall, they're the ones that are going to be in trouble if there's a big verdict. So they're taking advantage of this system between the claims and the indemnity folks and they've made quite a mess with this, but they're attacking the system. And again, I think that they've been largely successful in discovery. So how do you beat these guys? Well, let's go over the formula and how to beat them. Number one, what is their priority? Its destroying defense witnesses. So, what is the defense is top priority? It has to be training the witness to sustain a reptile attack, meaning your fact witnesses, your corporate reps, your PMKS - persons most knowledgeable - and particularly if you have a safety director in whatever industry you work with, those people are going to get reptiled to death.

Dr. Bill Kanasky

And if they fall for all the traps on videotape, you're going to be in very, very rough shape going forward. Thankfully me personally, along with my colleagues at Courtroom Sciences, we have invented and implemented an absolutely killer system that trains these witnesses from a cognitive, emotional standpoint to identify the reptile attack, to give the appropriate responses that will not allow them to get trapped and to really frustrate and anger the reptile plaintiff attorney. I really like that cause it's now happening all the time. But if your witness is not trained appropriately, they are no match for the reptile technique. Finally, the reptile folks, including the entire plaintiff attorney bar; they're doing mock trials and focus groups early in the case, not late. A late mock trial or focus group does not help you very much. Cause if you're a claims person or you're in-house counsel, you figure out, ‘wow, I've got a loser here. We're going to get hit for $30 to $50 million’, and it's three months before trial, what are you going to do?

Dr. Bill Kanasky

There's no time to make adjustments. But if it's two years before trial and you know you have a loser, well now we can do something about it. So our adversary, the reptile folks, they're doing their mock trials and focus groups to figure out, okay, which case is the winner? They find out which cases are the losers. So you know how to handle that file appropriately. So again, throw the first punch here because if you wait till the ninth round of a 12 round fight to start throwing punches, that scorecard is not going to be in your favor. And again, at trial. They've changed their voir dire, they’ve changed their openings, they've changed their cross examination of witnesses.

Dr. Bill Kanasky

But I want to really focus on discovering what they're doing in discovery because again, it's been really effective and it's important to understand, when do you have a reptile case? Well, you start seeing complaints, right? Complaints and interrogatories that have language like safety, danger, risk, harm, unnecessary risk, needlessly endangering. Those are two big buzz phrases, unnecessary risk, needlessly endanger. Those are things that tell you, ‘Hey, I have a reptile case’. Now it's not always going to be in the complaints. So you also have to do your homework. Talk to each other; see the defense bar doesn't talk to each other. How do I know I have a reptile attorney on the other side? Well, do your homework. Ask around. That's very, very important. Now let's go into an example of how this works. So I'm going to play you a very brief deposition clip of a very well prepared witness. Not well-trained, okay? They'd been well prepared on the substance of the case. They have not been trained from a neurocognitive standpoint to identify and deal with reptile questions. Now I want you to listen to these responses.

Plaintiff attorney & deponent

Pharmacy must fill prescriptions with the proper medication to prevent injury or death to the general public. Yes. Filling a prescription bottle with the wrong medication needlessly endangers customers. Yes. Filling a prescription with the wrong medication needlessly endangers the community and the members of the general public. Yes.

Plaintiff attorney & deponent

And the community is needlessly put in danger, correct? Yes. And you would agree that you must never needlessly endanger patients in the community by misfilling a prescription. That's a safety rule. Yes. Misfilling this patient’s prescriptions violated the standard of care, correct? Sure. Yes. They violated the safety rules.

Plaintiff attorney & deponent

They needlessly endangered this patient. Yes. And they needlessly endangered the general public

Dr. Bill Kanasky

Game. Set. Match. This witness got every single reptile question wrong. Boxed himself in and then admitted to breaching the standard of care. So now this is a pharmacist who's been in the industry for over 30 years. He's the corporate representative of a major pharmaceutical chain retail store that you see on every corner in America who spent three days being prepared for this deposition and absolutely gave away the farm. And without even putting up a fight cause he wasn't fully prepared to deal with the reptile assault. And it's very, very sad that that happened because in that particular case, they have a really good causation case. But it's on videotape. There's really nothing they can do. They're now stuck with that testimony and now they have zero leverage. So that case ended up settling for millions of dollars more than it was actually evaluated for because the witness was not adequately trained again, from a neurocognitive standpoint and just prepped on the file and that's what happened. Here's a surgeon, same thing, well prepared on the file, not really well prepared for reptile.

Plaintiff attorney & deponent

You would agree with me that you should never put a patient at unnecessary risk. I would agree with that. Okay. Standard of care and medical profession dictates that a patient's safety comes first, correct? Yes. You always want to put a patient safety first in any medical procedure. Yes. And you never want to put a patient at risk of any unnecessary bodily harm or risk, correct? Correct. If you can avoid it, right. If you can take reasonable means to avoid putting a patient at risk of serious injury or death, you should always do so, correct? Object to the form you can answer. Yes. And you would agree with me that in this particular procedure it was unnecessary to use general anesthesia. We didn't use general anesthesia. Okay. You would agree with me that it was unnecessary to use any form of moderate to deep sedation? No. You do not agree that that was unnecessary. There is general anesthesia. Okay. What did you use sir? IV sedation was the anesthesia employed with a local. Who was responsible for the patient's wellbeing and safety while she was unconscious without you in the room? Anesthesia. And that person's name would be? [retracted for privacy]

Plaintiff attorney & deponent

And you would agree with me that you put the patient at unnecessary risk by subjecting her to this unconscious sedation when it was wholly unnecessary in this procedure. Wholly unnecessary is a broad statement. She could have been very, very anxious and needed it just to simmer down just to become less agitated. You don't know that that's not the case here though. You're right; I don't know that for a fact. Right. And you would agree with me that there are other less invasive or less sedating ways to deal with that? Yes. Okay. So back to my original question, you agree with me that you deviated from the standard of care by placing her at unnecessary risk using unconscious sedation when it was unnecessary in the performance of this procedure? Yes. And you agree with me that those risks could have entirely been eliminated by the use of a simple local anesthetic to perform this procedure in a relatively pain free environment. Drastically reduced. Correct. I don't have any further questions.

Dr. Bill Kanasky

No further questions. Gee, I wonder why? And that's because the case is now over and it's completely unnecessary. And again, here’s another very intelligent, smart witness who got bombarded with reptile questions and fell for every one of them and then admits to deviating from the standard of care. It's really painful to watch and listen to. So, what's really going on here? Well, there is a science behind the reptile method and this is what Courtroom Sciences and myself personally have broken. That's really the sequencing of the questions. If you notice, the first several questions are what we call general safety rule questions or general danger rule questions, which come in the form of, you know, patient safety is always first, or consumer safety's always first and everybody just automatically says, ‘Oh, well yeah, of course’. That's actually not the case. Okay? And then the reverse, the danger rule, well, you want to avoid danger at all times and you want to decrease risk to your patients or your customers.

Dr. Bill Kanasky

And everybody says yes to that. But what does safety really mean? What does danger really mean? These are largely undefined statements and the problem really is all of these industries, whether it be medicine, trucking, construction, products, regardless, all of the training that they get, particularly safety training, it's drilled into their head that safety first. Walk into any hospital; there'll be a banner somewhere in the lobby that says, we put patient safety first. Guess what? No you don't. You never have. You never will. Trucking company. I walked into a trucking company two weeks ago in their lobby, I see we put safety first with training our drivers and I'm thinking, no, you don't. It's something that's important, but it's not first because if it was, that truck would never leave the yard. If the patient's safety was first, you'd never prescribe medication, you'd never do surgery. Okay?

Dr. Bill Kanasky

A C-section is not safe. Okay? Cardiothoracic surgery is not safe. A lot of these medications have side effects that can be risky. Okay? But that's not how these people are trained. They're trained safety first, danger last. And that's where the reptile attorney is taking advantage of the employees training. And what that does is it gets an automatic agreement to that. And I'm going to tell you how to answer these questions here in a second, but the answer can't be yes, because now you're set up for disaster. And that's going to be followed by specific safety and danger rule questions, which lock a witness into an inflexible position. And these will tie conduct to outcome. And so the question will be, well, if you put patient's safety first, that pretty much, drastically improves the odds of a positive outcome, correct, Doctor? And he's gonna say yes.

Dr. Bill Kanasky

And if you violate safety rules and you expose your patients to unnecessary risks and dangers, well that's going to lead to a bad outcome now, isn't it? And that would be below the standard of care. And they're going to say yes. And the reason why is that they said yes to the general questions first and now they have to say yes to these follow-up questions. So now the witness is locked in. Okay, so now the specific fact questions come up and now it's okay, well let's talk about this case. Oh well, you didn't do this, you didn't do that. You could've done this fast. You could've done that fast. You could have taken, you could have made an alternative choice here. And the witness now has to say yes cause these are facts. So they'll go right to the facts of the case, right to your policies and procedures, right to exactly what happened in this case and pretty much show that, well, here are all the safety rules you agreed to and you violated the safety rules.

Dr. Bill Kanasky

And then as you just heard in the videos, then come the negligence causation, standard of care questions. And now the witness is forced to essentially admit that they breached the standard of care. So this is a highly neurocognitive manipulative attack that can only be prevented by rewiring the witness's brain. And that's what I do for a career. That's what we do at Courtroom Sciences. And we have a great system to do that and none of our witnesses get reptiled, but it's a pretty time intensive process to rewire their brain so that they don't get caught in these various traps. Now these plaintiff attorneys are getting a lot of training on how to do this. And so even if you just tell your witness, ‘Hey, don't say yes to these questions’, they're going to say yes to those questions because their brain is pre-wired to do so.

Dr. Bill Kanasky

So what are we going to do with the whole issue of safety? What are really the correct answers? Well, is safety the top priority? Is it always well, no, the answer is no. The answer is, well, ‘it's one of our many concerns. It's one of our many goals’. Right? And another way to answer these questions are ‘can you be more specific? You know, safety in what regard? What do you mean safe? What circumstance are we talking about’? And a lot of these follow-up questions can easily be answered with, ‘well you know what, that really depends on the circumstances. Not in all cases. We know sometimes but not, but not every time’. And it's really important that the witness be trained to do that. And so many witnesses are really not trained to do that.

Dr. Bill Kanasky

They may be told to do that, but they're not trained to do that. And that's something very different and it's hard cause you have a lot of people in their industries, they've been working in the industry for years and years and years. They have so much safety training, again, particularly in medicine, trucking, products, so that when this stuff comes up, they really struggle. They really struggle to say no to those questions. They really struggle to say, well it depends on the circumstance because their supervisors or their safety directors have pounded this into their brains day in and day out. And they feel bad for not saying yes. They really feel bad for not saying yes. And part of me doesn't blame them. Part of me does not blame them because again, they've been trained to do these things and I find it to be very sad.

Dr. Bill Kanasky

And then the problem is like with the two videos and audios I just showed you, the witness really doesn't know they've screwed up. I actually think this is the most dangerous part. They actually think they're doing a good job. These witnesses think that they're actually answering these questions correctly when in reality they are losing the case and they just don't know it. So again, much of this can be prevented if they go through, again, a more of a neurocognitive training program, a training program that breaks down their thinking. And that's what I do. I'm a neuroclinical neuropsychologist. I break down witnesses from a cognitive, emotional standpoint. And that's the only way to get around this. So now I'm not going to leave you here scared to death. I'm going to play you a couple of clips where the witness went through the training, and they did the right thing. And so now you're going to hear two pretty vicious reptile attacks. And listen to how the witness handles it.

Plaintiff attorney & deponent

I mean, let me see if I can narrow it down a bit. Let's talk about foreign substances on the floor. Okay. Okay. You would agree a foreign substance on the floor may be a hazardous condition. It depends. Listen to my question. Do you agree that a foreign substance on the sales floor may represent a hazardous condition to customers and associates? Not necessarily. Okay. Are there occasions where a foreign substance on the floor may represent a hazard to customers? Maybe it depends. Are there examples where a foreign substance on the floor may represent a hazard to customers? It depends. Have you been told to say it depends to all my questions? No sir. But when you are a store manager and you know how many different realms there are to everything that you deal with on a daily basis, there's just so many different circumstances you could go through. Are you trying to be evasive to my questions?

Dr. Bill Kanasky

This is a true story. In this deposition she said it depends 49 times. 49. Let me repeat that one more time. She said it depends 49 times. Guess what her answers were during her mock deposition. They were all, yes, they were all, yes. But then she went through the neurocognitive training. She understood finally what was going on. Went through more mock depositions and was literally perfect at the end. And this is a true story. The plaintiff attorney, this is from Atlanta, Georgia, packed up his stuff after an hour and 45 minutes and left the deposition angry because he's going off of the script and he had to have yes and he didn't get his yeses and he moved on. Here's another one. This is from California. So you're gonna hear a lot of objections because that's how they have to do it in California. But this is a city engineer. And again, same safety rule questions. Listen to how the witness, the well-trained witness, that's been through the neurocognitive training, listen to how he handles it.

Plaintiff attorney & deponent

It's a very general question. So what is the overall purpose of having street signage? Vague and ambiguous. Lacks foundation calls for speculation. Incomplete hypothetical. I would say the overall purpose is to inform the user on the street of information they need to make a decision. Is that for purposes of public safety? Same objections. It could be. Okay. Is public safety the number one most important thing for this [city]? Lacks foundation calls for speculation, incomplete, hypothetical, vague and ambiguous. It's one consideration. What's more important than public safety? Same objections. We don't rank priorities with public safety. There are other considerations. Okay. Well I understand that. I'm asking you a different question now. So my question is for purpose of the pedestrian warning sign, is it to alert motorists of pedestrians? Ambiguous calls for speculation and hypothetical. I would use a different word. I would say make, make them aware of, okay.

Plaintiff attorney & deponent

Some of the purpose of the pedestrian warning sign is to make motorists aware of pedestrians. I would agree with that. Okay, so why would you remove that sign? Well, as I stated before, there was no significant pedestrian activity, so the sign was inappropriate. Okay. And ultimately the overall goal of that sign is to prevent vehicle collisions. Right? Lacks foundation calls for speculation. Incomplete. Hypothetical. Also calls for an expert conclusion. No, I disagree. So that pedestrian warning sign has nothing to do with attempting to prevent vehicle collisions? Same objections. It's also argumentative. I wouldn't, I wouldn't say that either. Okay. So does the pedestrian warning sign help at all to prevent vehicle versus pedestrian collisions? Lacks foundation calls for speculation. Incomplete hypothetical calls for an expert conclusion. I don't know that I could know the answer to that question. Well, you're the city engineer. So from the city engineer's standpoint, you don't know whether a pedestrian warning sign helps prevent vehicle versus pedestrian collisions.

Plaintiff attorney & deponent

Same objections. That is a general statement and I can't make a statement so general because each accident needs to be evaluated on a case by case basis. Okay. So again, I'm asking you about that sign. So the pedestrian warning sign, does it help prevent vehicle versus pedestrian collisions? Lacks foundation calls for speculation, incomplete hypothetical calls for an expert opinion. I would say not necessarily. Okay. So if you qualify it as not necessarily, that means it could help prevent vehicle collisions. Right. Same objections. Each accident needs to be evaluated on a case by case basis. I am not going to make general statements like that. I'm not asking you about individual vehicle collisions. I'm asking you about the sign and why you put a sign somewhere or you don't have a sign somewhere. Okay. I'm just asking right now about signage. So again, the pedestrian warning sign helps prevent vehicle versus pedestrian collisions. Yes. Same objections. I disagree. Okay.

Dr. Bill Kanasky

And so the attorney gives up. So as you can see, a lot of redundancy, but our witness was trained to handle this and this witness, I worked with this witness for two days and it was very difficult because of all of his safety training, but he was quite perfect during that day. There's no such thing as a perfect deposition, but that one was pretty darn close. But again, it was the level of training that he received that was all neurocognitive based. It wasn't legal training. Now, yes, he got a lot of preparation, preparation on the file, on the documents, on the policies and procedures. But there was really no, until I got there, really no neurocognitive training to help this witness out. But he took it in and then by the time he got to deposition, he just saved his client a lot of money.

Dr. Bill Kanasky

So that was a very smart investment by the client to protect themselves economically from the reptile attack. Now this case going forward, plaintiff attorney has nothing, got nothing from that deposition and nothing from that. And that's the goal of the deposition. It's not to win. You can't win the deposition, but you want the plaintiff attorney to walk out with nothing. And as you can tell, they're going from a script and when they don't get yeses, the entire deposition breaks down. And so this witness was well trained and did very well. Now I do want to talk about trial because at trial, when this stuff happens, you had better object because if you don't, the first is Regalado I think was the name of the case, which went up on appeals in California and the appellate court. Their opinion was, yes, all of this is completely inappropriate.

Dr. Bill Kanasky

However, you did not object contemporaneously when this was going on. Therefore the verdict stands. And that's pretty sad because defense attorneys are trained well, ‘I don't want to object a lot because then the jury is going to think that I am weak or that I'm scared’. Well, I don't think there's any evidence of that. As a jury psychologist, I've never found evidence of that. But B, what the appellate court said was you have to object contemporaneously with the reptile maneuvers. Otherwise your appeal’s not going to go very well. But guess what's going to happen when you object? Most of the time,

Movie clip

Your honor, I object. And why is that Mr. Reed? Because it's devastating to my case. Overruled. Good call.

Dr. Bill Kanasky

So it's kind of funny, but that's really probably what's going to happen. But it doesn't matter. You need to put in a solid objection. Get on the record. And this is from Steve Fleischman from Los Angeles, probably the number one appellate reptile attorney in the nation. Get that objection on the record so you can fight another day. But again, don't be surprised that your judge does not cooperate, but that's really not the point.

Movie clip

That is a lucid, intelligent, well thought out. Objection. Overruled.

Dr. Bill Kanasky

It's going to happen. Don't get bent out of shape, but that's just the way it goes in this industry and with most judges, hopefully your judge, hopefully the bench will figure out what's going on. But it's been almost 11 years and I don't think that they have; I've heard a couple of stories where the judges have figured it out. They've granted motions, they have sustained objections, but it's really few and far between. So, we're approaching the 45 minute mark. Let's close up this podcast. I hope you found this to be useful. I will come back and do additional podcasts on how to handle a rehabilitation with a witness in a reptile case. How to handle trial testimony, how to have handled opening statement, what is the reptile opening statement, what do you need to be doing to offset the reptile opening statement? I got news for, it's very different than you think. And then most importantly, which again, this does not get a lot of attention. The reptile voir dire. What are they doing in voir dire? What adjustments do you need to make in voir dire to outmaneuver plaintiff's counsel? Ladies and gentlemen, thank you very much. Dr. Bill Kanasky here, Courtroom Sciences.com. We will see you next time on the Litigation Psychology Podcast.