Reptile Theory in Healthcare Litigation: Deposition and Witness Testimony

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With more than $7.7 billion (and counting) in verdicts and settlements for the plaintiff since 2009, it may seem like the Reptile Theory, explained in the first post of this series, is scientifically sound—but it isn’t. Jury expert Bill Kanasky discredits the science behind the strategy in his publication, “Debunking and Redefining the Plaintiff Reptile Theory,” where he provides effective tactics to combat the Reptile approach at three stages of trial: deposition and witness testimony, voir dire, and opening statements.

Let’s start with deposition and witness testimony.

Witnesses can make or break a case long before a defense attorney ever steps foot in the courtroom. This is because plaintiff attorneys won’t save their questioning methods for trial; they’ll put them into play starting with pre-trial depositions. When Reptile Theory is used, the earliest questions a witness will encounter will revolve around the establishment of —and a defendant’s accidental agreement to—generalized “safety rules.”

The questions will seem simple and will be based on principles which, at first glance, would be reasonable to agree with, such as “Safety is always a top priority,” “Sooner is always better,” or “Danger is never appropriate.” Once the witness agrees with these foundational principles, plaintiff attorneys move on to more case-specific questions.

Kanasky provides this example: “Would you agree that if you see A, B, and C symptoms, then the standard of care requires you to order tests X and Y?” Such questions lead witnesses down a path where a series of testimonial missteps result in the witness implicating the defendant in wrongdoing, with no real way to rectify the damage that has been done.

HOW TO ARM WITNESSES WITH PROPER DEFENSE MECHANISMS

According to Kanasky, defense witnesses are usually the only parties at trial who will have their survival instincts triggered, especially if they get trapped in a Reptile line of questioning for which they were not thoroughly prepared. This preparation must happen in the earliest stages of the litigation cycle, prior to their first deposition.

Witnesses must be trained to recognize and avoid Reptile traps, and know what Reptile questions might sound like in any form. They must learn how to reject safety rules, respond to them effectively, and practice those responses until they become second nature. This requires a significant investment of time.

Accurate information is also critical to the defense. Understanding the narrative of the medical record and having a complete list of caregivers and their record of involvement with the plaintiff will bring much efficiency to the earliest days of case preparation. A tool like a Provider of Care report can help the defense gather a list of potential witnesses, while a Medical Chronology will provide a crystal-clear understanding of the patient’s condition and clarify why one course of action was chosen over another—something witnesses must be able to eloquently explain during questioning.

In our next post on Reptile Theory, Reptile Theory in Healthcare Litigation: Voire Dire, we will cover how defense attorneys can counteract the priming efforts of the plaintiff’s counsel during the questioning of potential jurors.

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