Reptile Series Part 3 – Harness The Reptile And Use it To Your Advantage

In our most recent Reptile posts, we introduced a simple, proposed strategy for defense lawyers to deal with the Reptile, and introduced step 1 of the process. The following is step 2 of the proposed plan:

  1. HARNESS THE REPTILE AND USE IT TO YOUR ADVANTAGE

As set forth in our prior posts, the effectiveness of the reptile strategy lies in its ability to simplify the message and convey it to jurors in a form that they can understand and care about. The defense bar tends to overcomplicate everything. Typically, defense lawyers feel the need to provide way too much detail. If the simple message is effective, why not simplify the message? I would argue that the reptile strategy can be used by defense lawyers to simplify the message and to make jurors care about the defense’s case.

This proposed strategy works best in situations where the defendant has asserted an affirmative defense such as contributory negligence or misuse of a product. The reptile strategy can be used to establish safety rules that the plaintiff must follow, and the consequences to the plaintiff and the public of not following those safety rules. For example, the defense counsel can establish that warnings and instructions are provided not only to protect the plaintiff, but members of the general public who may be in the vicinity of the plaintiff while the product is being used.

Consider the following line of questioning:

  • Plaintiff, you would agree that manufacturers provide warnings and instructions pertaining to the proper and safe use of their products?
  • And you would agree that a user of a product must read and follow the warnings and instructions provided by the manufacturer?
  • And one of the reasons you must read and follow safety instructions is so that you will protect yourself?
  • And when you use this product, there could be members of the public in the vicinity? And another reason you would of course want to follow the safety information provided by the manufacturer is to avoid endangering members of the public who may be in the vicinity?
  • So you would agree with me that when the user of a product fails to read and follow safety instructions, he could endanger not only himself, but members of the public who may be in the vicinity?

The line of questioning would then proceed through getting the plaintiff to agree that owner’s manuals and warning stickers are the type of safety information about which he was questioned earlier, and which he agreed must be read and followed. This strategy not only simplifies the information provided by the manufacturer by grouping it all into the category of safety information, but it establishes for the jury that the instructions are there to protect the plaintiff and members of the general public. Therefore, when the plaintiff fails to follow the safety information provided by the manufacturer, he endangers not only himself but members of the general public. The result is that the message is simplified, the consequences of the plaintiff’s conduct are of interest to jurors, and the reptile is harnessed.

Please feel free to reach out directly with any thoughts on this strategy, or leave thoughts in the comments section.

Reptile Series Part 2 – Don’t Give Them The Soundbite

In the most recent of our Reptile posts, we began a Reptile series that proposes a two-step plan for harnessing the Reptile instead of fearing it.  The following explains step 1.

  1. DON’T GIVE THEM THE SOUND BITE

Jury consultants and psychologists who have studied the reptile have debunked the scientific premise behind it. So why is the reptile so effective? My theory is that the reason the Reptile is so effective is because it simplifies what the plaintiff is required to prove and includes consequences of the defendant’s conduct about which jurors actually care. So the first step in this proposed method for dealing with the reptile is don’t let them simplify it. The reptile practitioner relies on simplified sound bites that can later be used to concisely breakdown what the defendant did wrong and how they did it.

The plaintiff’s attorney will attempt to establish through your witnesses various safety rules. For example, the classic reptile safety rule is the “umbrella rule,” which states that a reasonable [insert category of defendant] must never needlessly endanger the public. If your witness agrees, the plaintiff’s attorney gets his sound bite. If your witness disagrees, he looks nefarious and is led down a rabbit hole that will result in nothing more than your witness looking bad. So the solution is, don’t give them the sound bite.

The lawyer should object to these attempts to establish the safety rule. The witness should absolutely never give a yes or no answer to the safety rule questions. The witness should re-frame the question, ask for clarification, and again, should never give a yes or no answer only to the question. The witness should be instructed that no matter how many times the plaintiff’s attorney asks the safety rule sound bite question, a yes or no question should absolutely never be given. There is nothing improper about this, and the witness is always allowed to explain his or her answer. The witness should be instructed to calmly do this, and to not become combative with the plaintiff’s attorney. The plaintiff’s attorney will undoubtedly become combative, complain about the witness’s failure to answer with a yes or no, and hopefully, ultimately, move on from the line of questioning without having acquired the sound bite sought after.

We would argue that without the sound bites to over simplify the concepts that the plaintiff needs to prove, the Reptile will fail. A reptilian practitioner without sound bite ammunition isn’t a reptile at all. Stay tuned for the next installment in which we explain step two of the proposed strategy.

Reptile Series, Part 1 – To Be Feared or Embraced by Defense Lawyers?

We have written numerous posts about the popular Reptile tactic, which has taken the plaintiff’s bar by storm. Practitioners of the reptile method boast alarming success. Meanwhile, the defense bar has been scrambling to identify the best way to deal with the reptile. Motions in limine are filed to keep out the reptile. Witnesses are prepared extensively on the sound bite questions on which the plaintiff’s attorney will attempt to obtain agreement. Defense lawyers instruct witnesses not to answer and move for protective orders to seek judicial intervention to keep out the Reptile. Is it possible that the defense bar is going about it all wrong? Is there really anything to fear? I would propose that instead of fearing the reptile, the defense bar should consider harnessing it and using it to its advantage. In that end, I would propose the following two-step strategy:

(1)       Don’t give them the sound bite;

(2)       Harness the Reptile and use it to your advantage.

These two parts will be explored in additional detail in upcoming posts.

Friday Links

Our favorite legal story of late: A woman called the police after a man continued to whistle Semisonic’s “Closing Time” after her requests that he refrain from doing so. You remember that song, right? It was inescapable on the radio back in the late 1990’s. But we fail to see how it requires the intervention of law enforcement. More on that here.

Don’t forget that new amendments to the federal rules of civil and appellate procedure took effect yesterday, December 1, 2016. Revisions were also made to the bankruptcy rules and the federal criminal rules, as well. You’d best investigate!

Our favorite legal tweet of the week applies to law as well as general business. Of course, it’s about email etiquette. Enjoy.

Virgin Australia Hit With New Coffee Lawsuit: No, This Isn’t Like Stella Liebeck

According to a report from Travel & Leisure, Virgin Australia has found itself on the wrong side of the newest hot coffee lawsuit. The suit, filed in Victoria, Australia, apparently arises out of an incident involving 16-year old Rhett Butler (not of Gone With the Wind fame) while on a Virgin flight from Los Angeles to Sydney in May 2015. Shortly after take-off on the 15-hour flight, Butler’s cup of coffee allegedly fell from his tray table onto his lap, causing burns to his thighs, groin, genitals, and midriff. The flight crew allegedly did not have enough bandages to treat the wounds, so the Butler family was “forced” to use their own. Moreover, the suit alleges that the flight crew only had two ice packs and stopped supplying Butler with water bottles to ensure they had enough for the first class passengers. According to the report, Virgin Australia has confirmed that the incident occurred but offered no further comment.

As is often the case, we assume that many media reports on this incident may jump to inapt comparisons to the infamous Stella Liebeck case. From what little we know about this case, it appears that the two are apples and oranges. What made the Liebeck case so very intriguing from a legal perspective was that Liebeck sought to and was successful in holding McDonald’s liable for serving an “unreasonably dangerous product.” In other words, the jury found McDonald’s liable for serving coffee that it deemed too hot (something about which we’ve written a time or two).  Here, at least according to the information contained in the reports, Butler seeks to hold Virgin Australia liable, not due to the temperature of the coffee, but due to the conditions that caused the spill.  Specifically, Butler alleges that the airplane’s tray table lacked a recess to hold a cup and was defective and pointing down towards the passenger.

We here at Abnormal Use are interested to see how this one plays out. Regardless of the future outcome, we hereby grant the suit a reprieve from our typical criticism of prior hot coffee litigation. And, that’s a good thing. Even for us, there are only so many times we can say, “coffee is meant to be served hot.”

Friday Links

We hope you’re enjoying the Thanksgiving holidays! But, in case you needed a Friday Links fix, we’ve got you covered.

Here’s a pretty interesting article about an overseas jury noticing a 29 second gap in closed circuit television camera footage -after- the case had been given to them. Apparently, neither the prosecution nor the defense lawyers had noticed the gap, causing a good bit of tumult when the members of the jury inquired about the issue during deliberations.

Beware: Facebook’s app may be draining your phone’s battery more than you might expect. Click here for a bit more information on that report.

Just a few weeks until Rogue One is released! Will you be skipping work a bit early that day to see it?

Happy Thanksgiving!

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We here at Abnormal Use and Gallivan, White, & Boyd, P.A. hope that you and your family have a happy and eventful Thanksgiving. But not too eventful! Kick back and enjoy the time off! Let the billable work wait until Monday (or, if you simply must return to your desk and duties, until Friday). Although we usually present a comic book cover on holidays such as this, we direct your attention today to our official Thanksgiving card above. We hope you enjoy it, and we will see you in turn after the holidays. Don’t forget to watch some football!

Thanksgiving in 1810 and 2016

Here we are again on the Monday before Thanksgiving. Accordingly, it’s time that we once again direct you to our 2010 Thanksgiving post entitled “Thanksgiving in 1810, 1910, and 2010.” Back then, in our early blogging days, we somehow unearthed a century old magazine article in which the writer, a resident of 1910, looked back 100 years and marveled at the incredible social and technological change that occurred in the previous ten decades. That writer also looked forward to 2010 and briefly speculated how we, as citizens of the 21st century, might look back at those who lived in his era 100 years before. That article struck such a chord with us, and it’s become a Turkey Day tradition for us. So, today, we remind you of it once again and direct you back to it 106 years after its publication. (That neat illustration above – and many others like it – comes directly from the 106 year old article.). Have a look, and let us know what you think.

Friday Links

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We have some news here at Abnormal Use and Gallivan, White, & Boyd, P.A.  We’re very proud of our partners, John E. Cuttino, John T. Lay, Jr., and H. Mills Gallivan, who are currently serving as presidents of DRI, IADC, and FDCC, respectively. All three sitting defense bar presidents, all at one firm. We’re very proud of them, and we wish them the very  best!

Go. See. Arrival. At. The. Theatre. We here at Abnormal Use can’t recommend it enough.

We’re fans of Jeff Richardson, who runs the iPhone J.D. blog. Well, if you updated your iPhone software recently, you might have noticed an annoying new way in which the iPhone’s email organizes your electronic correspondence. Well, if you want to restore your iPhone’s email software to the old way, read Jeff’s article here.

12 Steps Toward Fulfillment in the Practice of Law (Step 12)

Step 12 – Pace Yourself for a Marathon.

We have now reached the final step in Judge Carl Horn’s 12 Step program for lawyers.  If you have followed steps 1-11, then you are on your way to Step 12: Pacing Yourself for a Marathon. Following the previous steps suggested by Judge Horn will lead to our last goal of a sustainable pace.  In order to pace ourselves for the marathon, we should make it clear that quality of life matters and that while we intend to work hard and pursue excellence professionally, we are not going to sacrifice important relationships and other essential elements of a healthy, balanced life. Professor Dershowitz reminds us that striving for professional excellence is a good and worthy goal.  In sharp and important contrast, trying to achieve perfection is not. Dershowitz observes that “every book, painting, symphony, or speech could be improved. The search for perfection is illusory and has no end.”

Judge Horn closes his 12 step chapter with this encouragement: “Except for the extraordinarily well disciplined, and perhaps the most saintly, these are challenges and issues with which we can expect to struggle for the rest of our lives. But, thankfully, they are not impossible struggles, and if we diligently take these ‘steps’ we can realistically expect to move closer to our goal: finding balanced success and fulfillment in the practice of law.”

Judge Horn then concludes his book with a charge to the jury:

Now, members of the jury, the evidence is in, and it is your turn to deliberate. You have been introduced to the experiences of your fellow lawyers, some happy and some not so happy, and have seen what many are doing to find fulfillment in the practice of law. Members of the jury, it is solely up to you to address the issues that have been raised.   Please retire to your own personal and professional “jury rooms” and do your best to reach a unanimous verdict. When you complete your deliberations, you will not be discharged from further service.   Much to the contrary, your service on this jury is for life, or at least as long as you labor in the law. May you find the “wherewithal” to keep any commitments you have made and may we all be busy and happy engaging in what the law is essentially all about:  doing justice.

We hope you have enjoyed our weekly series on 12 Steps Toward Fulfillment in the Practice of Law. Judge Carl Horn wrote this as part of his book, Lawyer Life: Finding a Life and a Higher calling in the Practice of Law, published by the ABA in 2003. Horn’s focus was on the individual choices lawyers can make in their personal and professional lives for better satisfaction in our profession.