Reptile Strategy in Healthcare Litigation: Opening Statements

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Delivering an effective opening statement is the last part of the three-pronged approach to overcoming the Reptile Theory. Previously, we wrote about how to properly prepare defense witnesses and priming the jury in voire dire.

The opening statement is a defense attorney’s first opportunity to cohesively rebut the plaintiff’s theory behind the case. And the most effective tactic for the defense is to present jurors with other sources of blame, says Bill Kanasky, author of The Primacy and Recency Effect: The Secret Weapons of Opening Statements.

During voir dire, the defense begins priming the jurors with strategic themes critical to their case. Shrewd attorneys carry this tactic over to their opening statements, using these same themes to place a “cognitive lens” through which the jurors will view everything else that follows in the trial.

An example of this one-two punch for the defense is to introduce a theme during voir dire by asking jurors, “Who here feels that a patient has a responsibility to follow their doctor’s orders?” The jurors are then primed for the defense attorney to open their case at trial by describing a pattern of patient non-compliance that ultimately led to the plaintiff’s alleged injury. This has the effect of both showing the plaintiff’s own fault in incurring the alleged injury, while simultaneously suggesting that the injury was caused by something or someone other than the defendant.

START OFF STRONG

Timing is a crucial when presenting the “cognitive lens” and telling the defense’s story (i.e., plaintiff culpability or alternative causation) in the opening statement. In fact, the first three minutes of the opening are the most critical moments of the statement, according to Kanasky, due to the primacy effect.

In other words, jurors perceive information shared in the first few minutes of the opening as more valuable and more meaningful than information shared later. That’s why defense attorneys should not waste the precious first moments of their openings by introducing themselves and their clients, thanking jurors for their time, or reminding jurors of their civic duties. Instead, the defense must use those three minutes wisely by launching into a compelling theory of the case.

DELIVER AN OFFENSIVE, NOT DEFENSIVE THEME

Taking a defensive stance during the opening statements is, perhaps, the biggest mistake the defense can make. Simply rebutting the plaintiff’s attorney’s opening statement allegations is not enough to slay the reptile. Plaintiffs’ attorneys generally provide their own themes (i.e., the ideas of safety rules, violations, and danger that are central to the Reptile Theory) in their opening, and defense attorneys must suppress their instinct to rebut the plaintiff’s arguments. The more the plaintiff’s themes are discussed, including during rebuttal, the more the jury focuses on them and sees them as central to the case.

PLANT DOUBT WITH ALTERNATIVE EXPLANATIONS

As Kanasky suggests, the defense should start introducing the concept of alternative causation immediately. Opening statements—and really, the entire defense of the case—are not about defending against the issues presented by the plaintiff’s attorney. On the contrary, their purpose is to present a colorful narrative of how the plaintiff was actually responsible for incurring the injury in question or plant doubt in the jurors’ minds by outlining an alternative causation for the plaintiff’s injury.

The most effective way to do this is by using the real, factual account of what happened, found in the medical record.

Any medical review will identify things like which medications were administered or tests ordered, but it should also bring to light all potential alternate contributors to an adverse outcome. Whether it’s clinical diagnoses, past medical history, patient non-compliance, family involvement, etc.— these are details and information that someone with a clinical background or experience will recognize as important.

A Medical Chronology is a valuable tool for understanding the entire timeline of a patient’s clinical course. But the defense must focus its chronology on specific issues that are the real cause(s) of the plaintiff’s alleged injury. A topic chronology extracts the most useful information from the larger chronology, putting all of the information that is most relevant to your defense strategy at your fingertips, in a more concise document than the overall chronology.

For example, if the theme is one of plaintiff culpability (i.e., the plaintiff had a responsibility to follow the physician’s orders but failed to do so), your chronology will focus on the portions of the medical record where patient or resident instructions or care plans were delivered, and patient non-compliance is noted. This allows you to make the connections between the non-compliant behavior and its results and use the evidence in the record to show that the defendant(s) met the standard of care, but the individual failed to follow through on his or her responsibilities.

Hopefully, this series has shed some light on how healthcare defense attorneys can recognize and respond to the Reptile Theory approach. Excelas provides a range of services that our clients use to formulate their strategies early in case preparation. Contact Us to talk to someone about your particular challenge and how we can help.

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