The Litigation Psychology Podcast - Episode 28

Reptile and the appellate process

CSI - Courtroom Sciences Inc

On this episode of The Litigation Psychology Podcast, Dr. Bill Kanasky is joined by attorneys Steve Fleischman and Rob Wright of Horvitz & Levy to discuss a topic that doesn't get much attention: Reptile Theory and its impact during the appellate process. Steve and Rob are experts on this topic and offer their insights on how reptile affects their work with clients and in court. 




Podcast summary:

Dr. Bill Kanasky

Welcome to another edition of The Litigation Psychology podcast. This is Dr, Bill Kanasky and this podcast is brought to you by Courtroom Sciences. We're going to talk more reptile again today. You can never get enough reptile considering what's going on out there in civil litigation. The reptile is alive and well. And an important topic that I don't think gets enough discussion is the whole appellate part of this because several of these nuclear verdicts if you get hit with, well you're certainly going to want to appeal it, then there's certain things that you have to do before, during, and after your trial. So, we have special guests today - appellate attorneys. Steve Fleischman is going to be joining us with his colleague Rob Wright from the law firm of Horvitz & Levy out on the West coast.

Dr. Bill Kanasky

And I think it's going to be a great discussion because most of the reptile talks fail to cover much of the appellate process. Steven and I have given a bunch of talks together and what I've learned is that you better have your ducks in a row or you could be faced with some trouble when you get to the appellate issue. Steven and Rob, thank you so much for joining this podcast. Can one of you take a moment and just give us the 30 second kind of commercial about your law firm and the types of cases you guys handle? Just to orient our audience.

Steven Fleischman 

Sure. So Horvitz and Levy was founded about 50 years ago by Ellis Horvitz and Barry Levy and we specialize almost exclusively in appeals in civil cases. I say almost because more and more we're being retained by clients to monitor trials and to assist trial counsel on record preservation issues and preserving issues for appeal. And reptile is certainly one of those areas we're retained to help trial counsel preserve the record on.

Dr. Bill Kanasky

Excellent. Just out of curiosity, what is it like to monitor a trial? And do you ever get any pushback from trial counsel? Cause I would think of somebody who's coming and watching me every day and breathing down my back. It may, that may impede my performance. Have you had any kind of a drama with any of those situations or has been pretty low-key?

Steven Fleischman 

The answer is yes, we have had some drama. Most of the time trial counsel are very appreciative. Huge resource issues come up during every trial, whether they're evidentiary issues or some other issues. We have people back in the office that are available to do the research. We get answers back quickly once in a while. Do we have a trial counsel, you know, sort of resent having someone look over their shoulder? Yeah, sure. That happens. But that is by far the minority. I'd say that happens less than one in 10 times.

Rob Wright

Yeah, I'd say that really is a minority because when I'm talking to trial counsel what I tell them upfront is ‘I don't know how to try a case. I don't know how to persuade the jury. That's not my role. I'm the appellate counsel. So my role is the law.’

Steven Fleischman 

Yeah. And, and sometimes we are there literally just to observe and prepare reports for the insurance companies. So the insurance company doesn't have to have someone there and you know, candidly if they'd rather, you know, would you rather have somebody there who's a resource for you or would you rather have the person there that's paying your bills watching you? And like I said, the vast majority of the time it works out well.

Dr. Bill Kanasky

Well that's outstanding. So, before we get started officially, I'm kind of dying to ask you both a personal question cause I'm kind of fascinated by this. How does one make the decision to go into appellate law? When did this click for both of you? Did you try something else and said, ‘Hey, I don't like this. I think I wanted to do appeals or was it kind of appeals from the start?’

Rob Wright

You know, when it really clicked for me, it was before I went to law school. So, I was interested in writing and I was interested in research and appellate law seemed really attractive even before I set foot in law school.

Steven Fleischman 

For me, after my first year of law school, I worked at the court of appeal in Los Angeles and I saw on Lawrence Tribe argue a case in the morning and then I saw the Rock Hudson AIDS case argued in the afternoon. And I said, you know, this could kind of be fun if I ever get the opportunity. And I tell people I tried six cases by myself, criminal cases, and I liked it so much, I wanted to be an appellate attorney.

Dr. Bill Kanasky

[laughs] Point taken, point taken. Well, let's jump into this reptile topic. I remember back in 2011, 2012 when we really started aggressively trying to understand this phenomenon, writing about it, speaking about it. And I was shocked at the time, and I'm sure you guys heard this same thing, there was a lot of doubt in reptile and I think a lot of veteran trial attorneys were like, ah, blah, blah, blah. This is never going to survive. This is just another fad. But that's not what's happened. It just totally survived. And Steve, I know you want to tell your Vegas story. I really want to start there, but I want to make it clear to the audience that there's been no downturn or any lack of reptile things happening out there. It's alive. It's well. I think it's continuing to grow and spread, particularly with all of their training opportunities. Just keeps multiplying. Steve, I'm assuming you agree that the reptile is alive and well and not going anywhere anytime soon.

Steven Fleischman

Absolutely true. It candidly does work just like anchoring works from the plaintiff's perspective and until judges start putting an end to it, it's gonna continue to work.

Dr. Bill Kanasky

And that's, I think that's a big problem cause I still, even today I still don't think a lot of judges even understand what in the world's going on. Some of them claim they've never even heard about it. I just don't know how that's possible.

Steven Fleischman 

I had a case, a judge, we filed a reptile motion. He ruled on it two years later, unrelated to that case. He emailed me, he said, Steve, I found one of your amicus briefs online. I've been asked to talk about this reptile theory. Can I use your brief? I said, sure, absolutely, your honor. Can I send you some other stuff? And one of the things I sent him was the motion in limine that had been filed in his case. And you know, he replied, LOL. He did not remember that the motion had been filed in his case.

Dr. Bill Kanasky

Oh my.

Steven Fleischman 

If you go to the website of, and Keenan who wrote the, you know the reptile manual? Yeah. They boast about 7.7 billion in reptile verdicts and settlements. Yeah. Billion with a B. So yeah, this is a huge issue.

Dr. Bill Kanasky

And they're like, they love to advertise. They love to advertise when they win.

Steven Fleischman 

Yes. The other part of the equation is for the longest time, and it may still be true, the organized plaintiff's bar denies publicly that reptile exists.

Dr. Bill Kanasky

It's insane. Absolutely insane.

Steven Fleischman 

Like the movie Fight Club, the first rule of fight club is you can't talk about fight club. The plaintiff's bar in official filings and the court of appeal in court, they don't know what reptile is, but they know all the arguments about why it's permissible.

Dr. Bill Kanasky

That's, yeah, it's kind of infuriating when you think about it when you're making objections at trial and they're like putting up their hands, your honor. I don't reptile, reptile schmeptile, I've never heard of this. I have no idea what they're talking about. It's pathetic, but it is what they're doing. Steve, tell your Vegas story.

Steven Fleischman 

So I was monitoring a personal injury trial in Las Vegas and it was very extended voir dire and the judge allowed the plaintiff to use, I believe it was a 375 question jury questionnaire that all the jurors filled out ahead of time, mailed it in and then everyone had a chance to review it. And conservatively, I'd say 25 to 33% of the questions on there were hardcore reptile issues. Do you believe defendants should conduct themselves in the safest manner possible? Do you understand as a juror you'd be the consciousness of the community? I mean, they weren't really vague about it. The trial judge denied the defense motion in limine and then we get to voir dire. And the first day of voir dire by plaintiff's counsel to the panel was pretty hardcore conditioning on reptile theories. Fast forward to the second day.

Steven Fleischman 

And plaintiff's counsel in the morning asked the panel as a whole, does anyone feel their bias one way or another in favor or against one of the parties and a juror in the front row who thought he was the smartest guy in the room, raised his hand and said, yes, I feel that you are using reptile brain strategies and I don't like that. I like arguments based on reason rather than emotion. And so plaintiff's counsel said, you know, thank you for being candid. And he asked a few more questions and went to sidebar. And there was a sidebar in the judges’ chambers and part of this story is why never do anything off the record, but that juror was excused for cause. Later in the afternoon, defense counsel, his very last question of the day for the panel was, did anyone know what that guy was talking about when he said reptile?

Steven Fleischman 

And the whole venir went crazy. One person shouted out, no, but I'm gonna look it up tonight. And the other person said well, aren't you going to tell us? And defense counsel said, no, I wish I could, but I can't. Long story short, the next day we spent about four hours going over the video of that voir dire like it was the Zapruder film going back and forth. And the judge declared a mistrial and two months later awarded $81,000 in sanctions against the defense attorney for what transpired. In my opinion, in the 25 years or so I've been practicing law, that was one of the greatest injustices I had ever been a part of. Now, the good news is the Nevada Supreme Court on a writ set the sanctions aside, but even that was a two to one decision. The opinions on publish doesn't really mention reptile except in passing. But that's my Las Vegas story. Maybe jurors are beginning to figure it out.

Dr. Bill Kanasky

That’s pretty funny. So, Rob, this is a problem that's not going to go away anytime soon. So it'd be great to get your perspective from a legal standpoint and the legal arguments that particularly as defense counsel that you're going to have to consider not just at trial, but as you're entering into trial.

Rob Wright

Absolutely. And Steve's story made me think that, I guess is that saying about what goes on in Las Vegas stays there. But the reptile theory didn't stay there. It's broader. So yeah, so as appellate counsel, we tend to look a) for sort of authorities that are directly on point dealing with the reptile theory and Steve's going to talk about those some and then there aren't a lot of those. So we tend to reason by analogy and we look to cases dealing with more traditional sort of constraints on argument at trial and then see whether those fit the reptile theory. And I don't think the reptile theory needs a lot of introduction, particularly to your audience here. But basically the idea is that counsel at trial couched the defendant's conduct in terms of it being a threat to the community’s safety and a threat to the juror's own interests.

Rob Wright

And so we look for cases dealing with similar issues. One sort of line of cases deal with the Golden Rule argument and I suspect everyone knows the Golden Rule, but you know, do unto others as you want them to do unto you. And so how does that apply at trial? Well, that comes up at trial because under a Golden Rule argument, what counsel will do is ask the jurors to place themselves in the position of a party. So that's considered a Golden Rule argument. And there's a case from the DC circuit from 2013 called Caudle vs District of Columbia. And it says, a Golden Rule argument is universally condemned because it encourages the jury to depart from neutrality and to decide the case based on really personal interest. And so, sort of using my own words that what is happening with the Golden Rule argument is you're asking the jurors to become partisan advocates for the party rather than objective triers of fact. And I'm sure something that you've dealt with a lot, Bill, is jury selection, right? Yep. And in jury selection, you know, are we looking to get that biased, you know, self-interested juror onto the cases that the whole idea of jury voir dire.

Dr. Bill Kanasky

Well, we want to get the bad ones off; I know that, right?

Rob Wright

But, the idea of the legal system is you want the impartial objective juror. You want a juror who's not interested in the case. You don't want to have on the jury, you know, the, the sister of the plaintiff, for example. I had one judge say, when a plaintiff's attorney said the jury is supposed to be the consciousness of the community, the judge said no, they're supposed to be neutral, dispassionate triers of fact. Right? So, with both the Golden Rule and the reptile theory, what is happening is lawyers are trying to convert the jurors into interested unobjective sort of participants in the process. And sort of an interesting case that kind of points this out a little bit, still dealing with the Golden Rule situation, is in Collins vs Union Pacific. It’s a California Court of Appeal decision.

Rob Wright

And in that case, what the plaintiff's lawyer did was sort of make an argument to the jury, that in deciding damages, the jury should consider how much money you would have to offer in a newspaper ad for someone to take the plaintiff's place and have the plaintiff's injuries. And the Court of Appeal looked at that argument and said, that is impermissible argument. That's an impermissible Golden Rule argument because you're asking the jurors to become sort of unobjective to become interested, self interested in the case because you're asking the jurors to put themselves in the shoes of the plaintiff. And that's an impermissible argument.

Dr. Bill Kanasky

I was going to say, as I say, especially in jury selection you see them doing that and I've seen many defense counsel strenuously object and a lot of judges aren’t really being that helpful with these types of issues. And that's kind of disconcerting.

Rob Wright

Right. And so if you are arguing this to the court, you can look to authorities that address the Golden Rule argument and hold that the Golden Rule argument is impermissible and you can say we have the same problem with the reptile theory because the reptile theory, just like the Golden Rule argument is violating the idea that the jurors are supposed to impartially determine the case based on the evidence specific to the plaintiff.

Dr. Bill Kanasky

So is the way to deal with this more procedurally or are these things you can try to torpedo with, with motions in limine or is this something where you would have to kind of wait for something to happen and object in real time or both, I guess?

Steven Fleischman 

Yeah. I think where you need to start is long before trial. In fact, you need to start before the depositions. You need to prepare your witnesses before they ever undergo deposition because by the end of the deposition you could have lost the case if you haven't prepared your witnesses.

Dr. Bill Kanasky

That's correct. I do a lot of that.

Steven Fleischman 

Yeah. This is Steve. I absolutely agree. The problem with waiting for the motion in limine is it's too late by then in many respects. And as we'll get to trial, courts across the nation are all over the board in how they deal with reptile objections on motions in limine.

Dr. Bill Kanasky

And how is that possible? I guess the thing that strikes me is what you just said is that depending on your venue, I mean there's this zero consistency across the board for the same exact theory. It's all over the place. And I why do you think that is?

Steven Fleischman 

Well, I think on evidentiary motions in limine judges have different views and one view is I want to know what the legal issue is. I want to make the ruling now on the papers to streamline the trial and make sure everyone knows the ground rules. The other judicial view, and this includes reptile but includes lots of other things is, I want to hear the evidence. I want to see how this case unfolds and I'm willing to make that type of decision on the fly.

Steven Fleischman 

Reptile aside, there are just different views. Some judges really like motions in limine others don't they. They want to hear the evidence; they want to hear outcomes comes in. And that I think is the core reason why you get these different rulings across the country in addition to the fact that lots of judges still don't know what this is and judicial philosophy.

Dr. Bill Kanasky

Has there been any different, and I don't know the answer to this question, it's really never really come up in any of our talks, Steve. But do you handle this stuff differently if you're in state court versus federal court or is it pretty much the same formula?

Steven Fleischman 

I think it's largely the same formula. Federal judges, this is, I'm stereotyping, but by and large, federal judges are more likely to make decisive decisions on the paper than state court judges at least in California. That's my experience. They are willing, they are willing to make tough calls and proceed. Having said that, I have no reason to believe. I haven't seen any federal cases addressing reptile in any detail. So I can't address that. When we get to state appellate courts, every state appellate court to address reptile, to my knowledge has ruled that it's improper.

 

Rob Wright

One thing that you have to distinguish Bill is that it's perfectly fine to make sort of a passionate argument in closing argument. You expect the attorneys to do that. So sometimes I think if judges are allowing reptile argument in, it's because they think that, well, this is a passionate argument. Arguments don't have to be sterile. But they're not hearing perhaps from defense counsel that why this really is an impermissible argument; why it really is going beyond just the passionate argument. It's going to an argument that seeks to make the jurors partisans in the case.

Dr. Bill Kanasky

Yeah. And the other thing that they're doing, which is blatant, I mean, they're obviously blatantly trying to redefine the standard of care to something that's completely unattainable and what's not in the jury. And so that's why I always, I instruct defense counsel even in voir dire or even in opening statement depending on how aggressive to get is, you know, you tell the jury, you know, the word safety is not going to appear anywhere in the jury instructions; needlessly endanger or unnecessary risk; none of these phrases are actually in the jury instructions and try to get the jury to remember. You know, there is a set of rules you need to follow as jurors and it's called the jury instructions rather than just falling victim to this whole public health community. You know, what do they call them, the guardians of community safety is what they're calling them. It's really easy to suck a juror in that way.

Rob Wright

Absolutely. And it seems really easy to suck a witness into that trap during deposition as well.

Dr. Bill Kanasky

It happens far too often. The good thing is that we've developed a really good system to defeat the reptile maneuvers and tactics. But it does take, it takes more time with the witness. And I've seen very smart, good natured witnesses get destroyed very, very badly by reptile questioners because they're not really prepared for the psychological warfare involved. And that's really what it is. They're prepared on the case file, prepared on the documents, but until they have it really diagrammed out for them and you really have to show them the reptile playbook. And that's what I do. I draw it for on a whiteboard and then as that's up, I play, you know, Steve, you've seen my countless videos, play them the videos to show them, you know, how the sequencing of the questions work.

Dr. Bill Kanasky

The key words and phrases that you have to be looking for as the witness. Because if they don't go through that types of training, they will automatically agree with all the, you know, quote unquote safety rules. And then once you have a witness agreeing to all the safety rules they're in big, big trouble because now the attorney is going to go to the case facts and the case facts are going to essentially violate the safety rules. And that's how I see a lot of these cases going south in discovery. And then once that happens and you have that witness on videotape it's pretty tough to go to trial and win at that point. And so I think, you know, there's this the topic of nuclear verdicts everybody's talking about and now defense bar's in the panic. I personally think very quietly, there's a lot of nuclear settlements going on that we're not hearing about. What do you think about that?

Steven Fleischman 

Absolutely true. Numbers in LA on verdicts are going through the roof and that's translating into settlements.

Rob Wright  

That makes sense to me.

 

Steven Fleischman 

Yeah. I mean, as appellate lawyers when cases usually settle before we get involved, but the ones we are involved in, yeah, the numbers are only headed in one direction.

Dr. Bill Kanasky

It is a problem. We just wrote our new paper, which I think that you've read and we're trying to address the issue, but I think the defense bar and particularly the insurance defense industry is going to have to take a long look in the mirror on how they're doing things. Because I think that the plaintiff's bar certainly has the full court press going and they're pressing and pressing and pressing. And until the defense….Bob Tyson talks a lot about this in his new nuclear verdict book, and he's like, you know, we gotta fight back and you can't wait two years to start fighting. You've got to start fighting from the opening bell. And I'm hoping that that word kinda spreads to DRI and CLM and all these conferences that they have. But I would like to hear more attorneys, whether it be webcasts or podcasts or at live presentations just talk about the whole, philosophy of the defense bar and how it's kind of not working anymore. They're going to have to do something different. What do you think?

Steven Fleischman 

Yeah, I agree. And the other big part of that discussion has got to be anchoring. There's a new opinion out in California that, you know, we can talk about how to distinguish it, but it basically blesses anchoring in voir dire. And there’s one line in the opinion that I laugh at every time I read it says, well, yeah, it couldn't have really been prejudicial to the defense because the plaintiff asked for 200 million and only got 50 million. So obviously it wasn't an effective strategy. I mean, no matter how many times you read that it just makes less and less sense when you read it in context.

Dr. Bill Kanasky

It's a real head scratcher. But yeah, there's a lot of work to be done and I hope the defense bar really, you know, gets on its toes and starts really going on the attack. Steve, do you want to go through some of these appellate cases and kind of talk about kind of from an evolution where we were, where we are now and, and kind of where you think this is all going?

Steven Fleischman 

Sure. So, the good news is on the appellate level, I'm going to talk about five cases and all five have held that reptile is improper. To my knowledge, there was no appellate decision in the United States, which has held reptile is proper as an argument strategy. That's the good news. The bad news is in lots of these cases, courts have held that it's improper, but it was waived because defense counsel didn't preserve the record in the right way. So, the first case is called Regadollo. That's from the California Court of Appeal in 2016 and Regadollo. The plaintiff's attorney gave her a classic hardcore reptile closing argument. ‘You are the consciousness of the community. You decide what's right and what's wrong. Your purpose, the reason we have courtrooms is to keep the community safe.’

Dr. Bill Kanasky

Yeah, they laid it on heavy. I read that whole closing and boy they, they laid it on heavy.

Steven Fleischman 

And that went on without objection. And then at a break, defense counsel made a reptile objection and the judge said too late, overruled. So, it goes up on appeal and the Court of Appeal went out of its way to hold that this was improper when it really didn't have to. But the analysis I found that was interesting is the Court of Appeal; like Rob talked about, you know, Golden Rule arguments being improper. One argument that's improper for example is if you, a defense represents a governmental entity, it's improper to go to the jury and say, ladies and gentlemen, the jury, your tax dollars are better spent on school, police, fire departments rather than giving it to plaintiffs, to the plaintiff in this case. Yeah. Why? Why is that improper? Because it gives the jury an interest in the outcome of the case, in their capacity as a taxpayer, in their capacity as a member of the community that benefits from schools, police, fire departments.

Steven Fleischman 

And that's what the Court of Appeal held. It held that it's improper under that line of cases. But the Court of Appeal didn't grant a new trial because defense counsel waited too long to object and the Court thought, and I disagree with this part of the decision, but the Court thought that the comments were limited and were not prejudicial. So that was the first case out there and Regadollo is cited in every defense motion on reptile out in California anyway. And some trial judges get it and some of them are still reluctant. The second case that I wanted to talk about was is called Bryson. It's an unpublished decision from the Michigan Court of Appeal in 2018 but Michigan unpublished cases are citable. And if you're in another jurisdiction and wouldn't be binding in any event, but citable. And Bryson was a med mal case and plaintiff's counsel did the hardcore, you know, doctors should follow the safest course of procedures possible.

Steven Fleischman 

They must conduct themselves in the safest manner possible. And the Court of Appeal held that's error because that's the wrong legal standard. The question isn't for the jury to decide, the question isn't did the defendant act in the safest way possible? The issue was, did the defense act reasonably? And then the Court went on to do a harmless error analysis and found that it was harmless. So same sort of problem there. A more recent case is called Fitzpatrick vs Wendy's Old Fashioned Hamburgers from the Court of Appeal in Massachusetts. And this was a case where a plaintiff went to a Wendy's ordered a hamburger, bit into it and there was a piece of bone in the hamburger and caused the plaintiff’s to chip a tooth. And plaintiffs did again, hardcore a reptile strategy. You're the consciousness of the community. We have all these safety rules that are designed to protect the community. And the trial judge granted a mistrial holding explicitly that reptile was improper. And then there was a second trial, it was appealed and this appellate decision is following the second case. And the issue was, did the trial judge err in granting the first mistrial and the Court of Appeal in this case does not identify this specifically as being a reptile argument. It just talks about the issues generically.

Steven Fleischman 

But it says the us versus them, the community of big companies, all of those type of arguments were improper. Especially the argument about you as jurors when you're done with this case, you have to go back and think, were safety rules violated? Did you make the community less safe? That type of argument the Court held was improper. Procedurally, the Court thought the trial judge applied the wrong standard on the mistrial motion, so it remanded the case for a trial judge to reconsider the prejudice analysis. Lastly, those two cases out of Kansas, Castleberry versus DeBrot and Perez vs Ramon. Castleberry is from the Supreme Court. Castleberry does not identify this as a reptile argument per se, but it was, you know, it was very similar to Bryson.

Steven Fleischman 

It was a med mal case. The doctor's supposed to use the safest measures possible. You the jury on a consciousness of the community and the Court held that was improper without identifying it as reptile per se. Perez identifies it as a reptile argument, explains in great detail what the reptile theory is and then doesn't really address it other than to say there was no error because the issue wasn't preserved. And that to my knowledge is the state of the law on appellate decisions addressing reptile. I have read dozens and dozens of trial court decisions from around the United States and say with complete certainty, there is no consistency on how the courts rule on them. There's just sort of two points I want to make. One is, there's an interesting case out of Massachusetts called Walstrom. And Mr Keenan was the trial attorney in that case and the trial court granted a new trial on the grounds that Mr. Keenan's arguments were improper.

Steven Fleischman 

What's interesting about that case was defense counsel kept saying, this is Keenan, this is the reptile book. This is the playbook that he used. This was improper. And the trial judge said, look, I get all of that, but I don't care what he wrote in his reptile book. I'm just going to look at this: were these arguments proper? And the Court said they were improper. The one thing that comes out reading all of these decisions, and my one suggestion for trial counsel is, if there's any consistency among the cases that deny the defense motions in limine, it's this, a lot of judges just say, I don't know what you're talking about, or this is overbroad or you gotta tell me what you're asking about. And we recommend attaching deposition transcripts and identifying specific words, phrases, consciousness to the community safety rules, et cetera, and giving the judge a specific target so that at least you can address the judge's concern in that respect.

Dr. Bill Kanasky

Excellent. Well, about to wrap it up here. But I want to get Rob's kind of final thoughts to see kind of where he thinks; well, I guess the question is, is defense doing a good job and where is this, where in the world is this all going? Because I don't think anybody early on thought this problem would explode and multiply exponentially being the whole reptile issue. Rob, what are your thoughts on where this train is going.

Rob Wright

To your question, is the defense doing a good job? Three areas where the defense can improve. One early in the case preparing the witnesses when they're deposed, they know how to answer these reptile questions. And then with the motions in limine that Steve was just talking about you need to bring those motions in limine, you need to educate the judge. But as Steve was suggesting, you need to do more than just generally talk about reptile. You need to show why the plaintiff's counsel in this case is going to present impermissible arguments. So attach pages from the deposition transcripts, be specific, really, really show exactly why something bad is going to happen unless the judge rules. And then the third area where defense counsel can definitely do a better job: object, object, object. You've got to object. As Steve was mentioning in a lot of these cases, the Court of Appeal will say, yeah, that was impermissible reptile argument. But it wasn't preserved. And, even beyond just objecting in a lot of jurisdictions, you have to request an admonition, move for a mistrial. I won't go into all the fun appellate, nerdy concepts, but, you've got to preserve these issues.

Steven Fleischman 

And the one thing I would add to that is and Bill, I know you've written papers on this and given seminars on it, but if you're going to lose the motion in limine on reptile and the judge indicates that these types of arguments are permissible, how to use reverse reptile tactics against a plaintiff or against a co-defendant. That's a whole seminar in and of itself.

Dr. Bill Kanasky

Yes it is.

Steven Fleischman 

But you know, if courts aren't going to limit it, then I think defense counsel needs to learn how to use it to their advantage.

Dr. Bill Kanasky

Yeah, we could talk about that for a whole another 45 minutes. We probably will, I'll probably end up getting our friend Paul on the line to talk about reverse reptile because I do think in certain scenarios not only is it a smart thing to do, but you better do it otherwise you may not win. Rob and Steve, thank you so much for being on the podcast. I think this is a great topic and we'll keep in touch and hopefully the defense bar really steps up to the plate here and gets more aggressive and does the right thing here against the reptile folks.

Steven Fleischman 

Thanks Bill. Thanks for having us.

Dr. Bill Kanasky

All right, take care guys. Well, there you have it, the end of another Litigation Psychology podcast. Very good discussion there with Rob and Steve on the various appellate things going on with reptile. We'll make sure that we have them back on if we have some other rulings that come up, but until next time, this is Dr. Bill Kanasky on the Litigation Psychology podcast for Courtroom Sciences. We’ll see you next time. Thank you.