Episode #13 – Reptile, Covid-19 and juries

This video episode of The Litigation Psychology Podcast, presented by Courtroom Sciences, Inc. (CSI), features Holly Howanitz, Partner at Wicker Smith, discussing how Reptile is still thriving, what jury panels might look like in the era of Coronavirus, and the challenges of plaintiff’s bar advertising.

Full Episode Transcript

Bill (0:04)
alright welcome to the litigation psychology podcast brought to you by courtroom sciences and we have a very special guest Holly Howanitz. Holly how are you

Holly (0:12)
I’m doing great how are you doing today

Bill (0:14)
uh it is 91 degrees in sunny my kids are in the pool behind me making all kinds of noise so I apologize up front but because they’re making me nuts I’m sure yours are as well with the pandemic how are things in Jacksonville

Holly (0:29)
also 91 degrees today very sunny outside we’ve got a pretty active homeschooling project going on building a diorama which is outside of my skill set

Bill (0:41)
I can’t do 5th grade math I have I have failed the fifth grade I have a PhD and I have failed the fifth grade so if that makes you feel any better they don’t even do long division anymore it’s crazy but Holly thank you so much for being on our podcast we’re doing several of these I hope you’re enjoying the rainforest backdrop here and so we really have five questions for you and the first one which always gets everybody off guard because no one’s expecting it is what in the world made you want to be a trial attorney I was gonna be a physical therapist athletic trainer physician lawyer then psychologist and now this what was your kind of career path

Holly (1:27)
so believe it or not I wanted to be a trial attorney since I was five my first you know time that I ever said I wanted to be a trial lawyer was when I became addicted to the show Matlock in the 1980s I used to sit there and watch it and I wanted to be you know protecting innocent clients from going to jail of course once I went to law school I realized I wanted nothing to do with criminal law but I was always very good at negotiating my punishment as a child and yeah I loved lawyer TV shows so that’s what I wanted to be

Bill (2:01)
excellent excellent so you and I have talked a back channel about because so well so many trials have been postponed discovery seems to be moving forward with these virtual depositions and what I want to ask you was about your experience with the virtual that because if you’re not sitting next to your client physically and then you have the technology can you maybe run us through your experience with these depositions virtually and maybe the pros and the cons and the do’s and the don’ts of what you’ve been through

Holly (2:35)
so I’ve done probably 15 zoom depositions during the time that we’ve been quarantined and also a number of zoom mediations overall mine have been pretty successful as far as defending a deposition there are a few challenges because you’re right you can’t kick your client under the table and yeah there’s not the body language where you can just kind of like touch his or her arm when they need to stop talking however there’s additional things to consider such as you know what if your client isn’t that adept at technology and so in addition to having the anxiety of being a witness now they’ve got the anxiety as to whether they can even dial in correctly so we’ve tried to you know have them test the links and do some I guess mock zooming just to make sure the technology works for them and then I’ve scheduled them to a little bit of extra telephonic prep time and so far knock on wood you know nobody has said anything devastatingly bad in their depositions that I have defended you know as far as taking depositions it’s interesting because I’ve done a quite a few treating physician doctor depositions and some of the doctors have actually been worse defendants for realizing that I can actually see you on Zoom being in your house makes it where the witness is taking the deposition less seriously and I’ve seen that on some of the ones that I’ve been taking

Bill (3:53)
Good stuff tell us a little bit about wicker Smith and because I mean you’re a pretty good-sized firm and you’re pretty spread out what types of cases are you guys handling these days

Holly (4:02)
so we are a full-service defense firm we do almost a hundred percent litigation we do anything from medical malpractice defense to transportation defense we represent some large companies and then we do a fair amount of work for insurance companies and we also do professional liability for architects and engineers and we even have the pleasure of representing other lawyers when they get sued

Bill (4:30)
Those are my favorite because by the way who’s the worst type of witness a lawyer

Holly (4:35)
Yeah the lawyers when they’re being deposed I always tell them you know if you could just take the advice that you would give yourself that’s easier said than done

Bill (4:44)
stop being a lawyer all right now Holly this is a completely unfair question and I don’t even know the answer to this and there’s been a couple of my blog posts floating around and one article from a competitor which I really didn’t buy because no one really knows what is your prediction on how covid 19 is gonna affect jury behavior I’ve heard a lot of people say well you know what truck drivers and physicians and health care professionals you know juries are gonna love them going forward I think to an extent that may be true but you know jurors are so you know what have you done for me lately kind of where do you see this thing going unless it’s just going to stay the same

Holly (5:17)
so I think it’s very hard to predict and that is a completely unfair question but one of th things that affects the juries from you know we see that we call them the nuclear verdicts is a lot of large plaintiffs firms for you know the past five years have just been bombing them with advertisements about how bad the insurance companies are and how bad large corporations are but in this case I think the insurance companies may actually get a little bit of positive publicity I don’t know if you saw where a lot of the large Auto carriers cut premiums because there were less drivers on the roads they refunded premiums so I think that actually is an opportunity for the jurors to see you know hey if there’s less claims I won’t have to pay as much money in premium so that maybe one piece of advertising that affects them now as far as you know I like I have some food delivery cases that I’ve been defending since before the pandemic so the question is are they going to treat my company the same as before I hope so but I don’t know but I do think they’re largely affected by advertising so perhaps this is an opportunity for defense to spin it a little bit where these companies actually do nice things when they are spending less money on claims

Bill (6:33)
another excellent point so reptile theory so we are 11 years into this and it is not slowing down have you seen again what I’ve seen is the reptile methodology is really multiplying I don’t really see a solid competitor out there how much of the reptile theory are you seeing in Florida and what are you advising your clients to do to protect themselves from it

Holly (6:59)
so that’s something I think you and I have talked about this so you know that’s something that you have to get ahead of it and prepare your client in deposition and obviously if you were representing a large corporate client you know they’re going to be a target you can tell the attorneys have been to seminars because they are more effective than others but obviously you know being a victim of the reptile theory starts mostly in like a corporate representative deposition you have to give them the questions in advance and not fall into that trap from a deposition standpoint and you know it’s one of those things where a boilerplate motion and limine doesn’t work in Florida generally speaking on reptile they have to identify some specific behavior that the plaintiff’s counsel has done and then I typically will file a motion in limine with a different title I don’t like to use the word reptile I like to identify the specific behaviors that I’m trying to preclude and I’ve had more success with that strategy

Bill (7:56)
I mean at this point because I mean this is whole thing start in 2009 with reptile its 2020 if a defense attorney allows their witness to get reptiled they should just be disbarred at this point I mean right I mean come on

Holly (8:09)
well I wouldn’t go that far because sometimes you can have the best preparation especially with your witness and you get into the depositions and it’s opposite day and you know you kind of want to do what you can if it’s a zoom deposition it’s even harder you know you can lead the horse to water but you can’t make them drink so the defense attorney in this situation with the reptile theory may have tried to do the appropriate prep now if they didn’t try and they completely ignored it then you know this has been out there for long enough where everybody should be aware of it

Bill (8:39)
so on your cases and again maybe Florida’s different I know every state is different is a Anti reptile motion limine pretty much standard practice at this point when going to trial

Holly (8:46)
well a lot of firms will do them and we have one drafted but again I find at least with the judges in my area they generally in Jacksonville boilerplate motions and limine they’re not case-specific or just denied so you have to come up with something that makes it case-specific and we have to either anticipate or identify something that the plaintiff’s counsel has done in this case or another case I tend to keep closing argument transcripts of some attorneys and if there’s a particular damage model for example or a particular behavior that I see that attorney using over and over again I’ll identify that and say you know I anticipate that mr. X is gonna do this because he has done this in these other cases and you know here’s the case law that says he shouldn’t do that

Bill (9:31)
got it okay final question Holly Noles, Gators, Hurricanes, Golden Knights or other

Holly (9:40)
I would say maybe other none of the above I went to a Division three college without a football team so

Bill (9:50)
Wait but you live in Florida you gotta when I moved to Florida I was told, I’m from Pennsylvaia, I was told like you are going to pick a Florida team and I kind of picked the Hurricanes on that football Saturday who knows where that’s going who are you pulling for

Holly (10:02)
you know I guess being in Jacksonville I’d probably get bullied into pushing for the Gators cuz it’s what 60% of the season ticket holders live here so probably the most popular choice and the safest choice is here in Jacksonville

Bill (10:20)
Hey safety is the top priority

Holly (10:21)
absolutely but I wouldn’t say yes it’s overly broad and I need a more specific question

Bill (10:28)
objection sustained. Holly thanks so much for being on the podcast talk to you soon