By the time a case reaches trial, the plaintiff attorney has already been busy laying the foundation for Reptile Theory arguments. Savvy defense attorneys must lay their own foundations by successfully training their witnesses to avoid reptile traps during deposition and testimony. But with the opening of trial comes voir dire—the next stage at which the defense can take aim against Reptile maneuvering.

HOW EXPOSING THE REPTILE WEAPONRY DIFFUSES IT

This may not seem like a typical stage to undermine the plaintiff attorney’s strategy. After all, examination of potential jurors hardly provides an opportunity to argue any salient facts of the case. What it does offer, however, is an opportunity to begin suggesting overall themes of the case that will be critical later on in the trial. Bill Kanasky, a national expert on jury psychology, refers to this as “priming,” a valuable technique that can—and will—be used by both sides. Fortunately for defense, applying the priming tactic during voir dire can result in huge gains against Reptile strategy.

Psychology Today defines priming as “a non-conscious form of human memory concerned with perceptual identification of words and objects. It refers to activating particular representations or associations in memory just before carrying out an action or task. For example, a person who sees the word ‘yellow’ will be slightly faster to recognize the word ‘banana’ in a word recognition exercise. This happens because yellow and banana are closely associated in memory.”

Put another way, priming occurs when a response to a stimulus depends on previous exposure to a related stimulus. It creates familiarity, and experiencing something—even just once—makes someone more likely to think of it again when a related idea is presented in the future. This is because our unconscious memories shape our future behavior and perceptions. In the courtroom, this effect can be used to influence jurors’ responses to concepts related to the case.

HOW PLAINTIFF ATTORNEYS USE PRIMING AT VOIR DIRE

The plaintiff attorney’s job during voir dire is to start priming jurors, warming them up to their selected themes. They begin exposing jurors to concepts like danger, safety, and risk—all the concepts that support Reptile Theory. Themes are repeated throughout questioning so jurors will be more likely to focus their attention on these ideas during opening statements and trial. The goal here is to ensure jurors will be less likely to take in new, especially conflicting, information from the defense.

HOW PRIMING CAN BE EMPLOYED AS A DEFENSE TACTIC

Fortunately, priming can also work for the defense at voir dire. This is an opportunity for the defense to be proactive, rather than reactive, in presenting its case. Rather than just asking questions to determine juror qualifications or trying to persuade jurors to focus on the law or science, defense attorneys can prime jurors to their own chosen concepts.

Kanasky offers the following example: A plaintiff attorney uses the question “Who here feels that physicians should always put safety as their top priority?” to prime jurors to the concept of “safety.” The defense can attempt to re-prime jurors by instead asking, “Who here feels that a physician’s real priority needs to be treating every patient as a unique individual?” In this case, the defense can strip away the plaintiff attorney’s “safety” priming, and instead prime jurors to focus on the concept of treating a unique patient, rather than strict adherence to general safety rules.

HOW TO CHOOSE PRIMING CONCEPTS AND MESSAGES

In a medical malpractice case, medical records can help defense attorneys decide what concepts or key themes to focus on in voire dire. A detailed Case Summary provides a concise, narrative-style review of the plaintiff’s medical history, encompassing all care providers and care settings. It should include an objective assessment of the case’s strengths and weaknesses and an evaluation of whether or not the standard of care was met.

With this information in hand, the defense will be able to identify the critical issues needed to develop their strategy in the courtroom. For defense attorneys who do not have medical expertise in-house to accomplish these tasks, it can be extremely valuable to outsource this task to an organization that does.

Ultimately, the idea and practice of priming jurors during voir dire is complex, but many resources are available. Thorough preparation is critical in deciding which case factors to focus on and which concepts to “prime” during voir dire. This is a singularly important opportunity to influence the jury to accept the concepts and terms upon which the defense is building its case. Defense attorneys’ strategy during voir dire will impact everything else the jury sees, hears, and thinks. Plaintiff attorneys are well aware of this, but the defense gets the last word—so they need to make it count.

Next, we discuss what makes an opening statement effective against Reptile Theory tactics.