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.
- 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.