combating reptile tactics in employment litigation

Combating Reptile Tactics in Employment

LitigationStrategies for Discovery, Voir Dire, Opening and Closing Argument, Direct and Cross-Exam

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WEDNESDAY, JULY 17, 2019

Presenting a live 90-minute webinar with interactive Q&A

Ken Broda-Bahm, Ph.D., Senior Litigation Consultant, Persuasion Strategies, Denver

Nicole Rhoades, Shareholder, Davis Rothwell Earle & Xóchihua, Portland, Ore.

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Dr. Ken Broda-Bahm

Combatting Reptile Tactics in Employment Litigation:

Strategies for Discovery, Voir Dire, Opening and Closing Argument,

Direct and Cross-Exam

July 17, 2019

Nicole Rhoades, Shareholder

Taming the Reptile

3. Why Does the Reptile Work?

4. How Should Defendants Respond

-- Generally?

1. What Is the Reptile?

2. How Do You Recognize the

Reptile?

5. How Should Defendants Respond

-- Voir Dire?

6. How Should Defendants Respond

-- Witnesses?

7. How Should Defendants Respond

-- Opening/Closing?

6

1. What Is the

Reptile?

7

What is the Reptile?

8

What is the Reptile?

Paul MacLean and the “Triune Brain”

9

The plaintiff’s bar is instructed to try everything

to get the reptile theory to the jury:

If you can’t get it in through the front door, knock

on the back door. If you can’t get through the

back door, then try one of the windows. If that

doesn’t work, try coming down the chimney. If

the place ain’t got a chimney, then dig

underground. Whatever it takes don’t give up

until you get it in.

The Keenan Edge, at 352-53.

10

How Effective is the Reptile Theory?

11

How Effective Is the Reptile Theory?

12

2. How Do

You Recognize

the Reptile?

13

How Do You Know You’re Being Reptiled?

1.

Language

of

“Security” or “Safety”

14

2.

“Community”

Not Just

Employee

How Do You Know You’re Being Reptiled?

15

3.

“Safety Rules”

Instead of

Legal Duties

How Do You Know You’re Being Reptiled?

16

The Basic Idea:

17

Plaintiff’s Focus Will Be Safety

•The Reptile plaintiff attorney has become an

expert at cleverly planting big-picture safety

questions that on the surface appear to be "no-

brainer" in nature. These questions focus on

the following big picture principles:

• Safety is always top priority

• Danger is never appropriate

• Protection is always top priority

• Reducing risk is always top priority

• Sooner is always better

• More is always better

18

“Umbrella Rule” or “Safety Rule”

“A _______________ is not allowed to

needlessly endanger the public.”

Reptile, the 2009 Manual of the Plaintiff’s Revolution,

David Ball and Don Keenan, at 55

19

Public Safety

The theory shifts the jury’s thinking to a much broader

concept of injury, beyond the injury sustained by the

plaintiff, to possible injury to the jurors themselves or

the public. The strategy, as defined by the authors, is

based on scaring the primitive part of jurors’ brains

and utilizing (or manipulating, depending on your

perspective) jurors’ fears. The theory posits that this

gut reaction leads to a tendency to give damages

based on a violation of a broader perception of safety.

According to the theory, the jurors believe that

awarding damages will enhance safety and decrease

danger.

20

Breaking Your Own Rules

The Reptile Theory also fits with the jurors'

frequent assumptions that the defendant should

do more to ensure customer, community, and

user safety. In fact, even if the defendant has

met the required regulations, jurors often believe

that the regulations are the minimum that the

defendant has to follow. It is particularly

compelling when a Plaintiff attorney can show

that a defendant has violated its own safety rules

or the industry standards which it helped to

create.

21

Themes in Employment Cases

• Having a work environment completely free of

discriminatory comments, jokes, bias, and harassment,

however minor, is the only way to protect employees.

• Employees are at the mercy of their employers.

• Employees have no control over their working

environments.

• Employers, i.e., “big business,” have all the control.

• Employers should always act to address every

discriminatory, biased, or harassing comment in the

workplace, no matter how small.

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•Employers have an ethical duty to look out for their employees.

•Employers should not make huge profits at their employees’ expense.

•Employers make it too difficult to report harassment or discrimination.

•Employees should not have a fear of retaliation when they make complaints.

•Employers should never penalizeemployees who make complaints.

Themes in Employment Cases

23

•Employers should never attempt to protect a

supervisor about whom a complaint is made.

•Employers look for ways to fire or otherwise

penalize complaining employees.

•Employees are in the best position to know

what happened.

•Employees should get the benefit of the

doubt when there is a question about

something.

Themes in Employment Cases

24

3. Why Does the

Reptile Work?

25

Why Does It Work: Brain Science?

MacLean’s ‘Reptile Brain’ “has proven outright insane in light

of the latest scientific research.”

“Today, writers and speakers are dredging up the corpse of

this old theory, dressing it with some smart-sounding jargon,

and parading it around as if it’s scientific fact.”

• Ben Thomas, Scientific American (September, 2012):

Just One Problem…

26

Why Does It Work: Brain Science?

Threat Response is More Complex

27

Motivation

28

Motivation

Useful Science Rather than Valid Science

29

Motivation

Motivated Reasoning

30

Why it Works

Jurors will almost always act out of self interest. If

jurors believe that punishing the defendant with a

big monetary award to the plaintiff will make them,

their family, or their community safer they will

almost always take the bait. This is a huge shift in

the normal plea for fair compensation for the

plaintiff. Ultimately it is a way to maximize overall

damages and convince jurors that punishment will

make everyone safer, even when punitive

damages are not in your case.

31

The Reptile Theory Promoted Punitive

Awards

The Reptile Theory can be conceptualized as a

planning strategy that gets plaintiff attorneys to

focus early in the case on crafting the themes

that will be honed through deposition, voir dire,

and eventually the opening. This process

focuses on utilizing the eventual jurors’ desire to

expose and punish the existence of danger when

it exists in the community around them and to

place blame on a defendant large enough and

powerful enough to “eliminate” that danger.

32

How It Works

The Reptile Theory is a strategic process. It takes

place from the beginning to the end of a case—

often with the goal of getting a case to settle, but

also with plenty of strategy for trial. The focus is

on three main sections of the process: the

deposition as the key to getting admissions from

the company or entity; voir dire to prime jurors

with the themes before the opening, and the

opening to capitalize on the groundwork set in

each previous stage in steering jurors’ responses

to the case.

33

4.

How Should

Defense Respond

to the Reptile?

At All Reptile Phases

34

Suggestions for Combating

Reptile Theory

• Prepare your witnesses

• Develop and deploy a controlling idea

• Focus the case on the plaintiff

• Identify a simple standard for deciding the

case

• Identify procedural hurdles the plaintiff must

overcome

35

• Eliminate or reduce the perceived threat

of danger

• Create structure to undermine the need

for a referendum

• Prepare a motion in limine and educate

the judge

• Consider an admission of liability in

extraordinary cases

Suggestions for Combating

Reptile Theory

36

Legal Motions

37

Motion in Limine

38

Legal Defenses

Regalado v. Callaghan

Brooks v. Caterpillar Global Mining Am

Biglow v. Eidenberg

Wahlstrom v. LAZ Parking Ltd., LLC

Hopper v. Ruta

39

Call Out the Strategy

Let’s see if we can scare them…

It could have been anyone killed out there…

Because it’s a public danger there….

But if you give us $ that will somehow eliminate this danger…

They call this their “Reptile” strategy.

40

How Can Defendants Tap In?

41

How Can Defendants Tap In?

The Authors’ Reasoning:

It’s Ours not Yours!

“The Reptile prefers us [plaintiffs] for two

reasons: First, the Reptile is about

community (and thus her own) safety –

which, in trial, is our exclusive domain.

The defense almost never has a way to

help community safety. The defense

mantra is virtually always, ‘Give danger a

pass.’ Second, the courtroom is a safety

arena, so when we pursue safety, we are

doing what the courtroom was invented

and maintained for.”

42

The “Reverse Reptile”?

43

The “Reverse Reptile”?

44

So What Can Defendants Do?

Safety is Not the Only Motivator

45

How Can Defendants Tap In?

Motivations Lead, Reasons Follow

Motivations

46

What Matters?

47

How Can Defendants Tap In?

2-Stage Model

Identify

(& Shape)

Motivation

48

The Persuasive Route

Q: What

Motivates in

Defense’s

Favor?

1. Protecting Values: Quality Service, Reliability, Competition, Unencumbered by Frivolous Suits

2. Not Being Played:Sound Policy, Law, Logic – Not Emotion.

3. The Individual Claim: The Unique Situation

49

5. How Should

Defense

Respond to the

Reptile – Voir

Dire?

50

To Prime Jurors for Safety

Voir Dire

Reptile Plaintiffs Want…

Do Your Own Priming

So You Should…

51

Counter Simplicity

An employer should always take the

safest route…

Or

An employer needs to make sure

the customer is satisfied.

52

Don’t Overestimate the Power of Agreement

Wouldn’t you agree…

How many of you think….

Acquiescence Bias

Social Desirability

53

6.

How Should

Defense Respond

to the Reptile

– Witness

Examination?

54

To Commit to Safety Rule

Witness Examination

Reptile Plaintiff Wants…

Avoid Over-Simplifying

Instead Witnesses Must…

55

The Witness Can Thwart the Safety Rule

1. Prevent Danger

2. Cover a Variety of Situations

3. Be in Clear English

4. Focus Explicitly on “Must” and “Must Not”

5. Practical and Easy to Follow

6. Defendant Agrees or Looks Silly Denying

The ‘Safety Rule’ must…

56

1.Break out of the

“Yes/No”

2.Demand Precision

3.Avoid Absolutes

The Witness Can Thwart the Safety Rule

57

Q: “You would agree with me, that a

employer should never needlessly

increase job stress, right?”

A: “I agree that minimizing worker stress

is always important, and that is balanced

against the goal of achieving a good

outcome for customers.

The Witness Can Thwart the Safety Rule

58

Depositions

• Reptile plaintiff attorneys need to get damaging admissions or contradictions in testimony from key witnesses in order to force settlement early. The biggest reason for the success of this “focus on the deposition” strategy is that most witnesses are poorly prepared to answer deposition questions posed in the manner taught in the Reptile Theory books.

• Defense witnesses are often lulled into believing that their best strategy is just to "listen to the question, answer the question, and don't volunteer anything unnecessary." This strategy leads to a series of yes and no answers, with no explanation or caveats provided until the witness is boxed into a corner which he or she cannot escape.

59

Demonstration: Witness Examination

60

7.

How Should

Defense Respond

to the Reptile

– Openings and

Closings?

61

Embrace Safety

62

Potential Counter-Themes

• Employer X does a lot of good for the general

public.

• It hurts the community (and honest people) when

people make false claims of discrimination, bias,

and harassment.

• The costs of doing business, and in turn the costs

of goods and services, go up when people make

phony complaints.

• Employers must not settle phony complaints,

because innocent other employees (those

accused) can get hurt.

• Unfortunately, there are dishonest employees who

try to take advantage of their employers at the

expense of everyone else.

63

Potential Counter-Themes

• The general public will suffer if employers pay or

overpay on complaints made to them.

• It is important for employers to investigate each

complaint to determine if it is valid, and to not act

if there is no evidence to support a complaint.

• Employers are not meant to be a guaranteed

slot machine or free ATM machine and give out

cash to anyone who makes a complaint.

• Employees have an obligation to read the

Employee Handbook and ask questions if

anything is confusing.

• It is wrong for employers to look for loopholes or

act unethically, and the same is true for

employees.

64

• Employers and employees should be held to the same

standards of ethics and honest conduct.

• Employees must make complaints in a timely manner, as soon

as they are aware of a problem.

• Employers don’t want to not act on valid complaints, but if they

make a mistake they will work with the employee to fix it.

• Employers are made up on honest people who want the

business to succeed, and want their employees to be happy

and productive.

• Lawsuits are supposed to be about fixing discriminatory,

biased, or harassing situations. Lawsuits are not necessarily

about firing the offending party when training and an apology

are all that is needed to fix the situation

Potential Counter-Themes

65

Questions?

66

Dr. Ken Broda-Bahm

kbrodabahm@persuasionstrategies.com

Combatting Reptile Tactics in Employment Litigation:

Strategies for Discovery, Voir Dire, Opening and Closing Argument,

Direct and Cross-Exam

July 17, 2019

Nicole Rhoades, Shareholder

nrhoades@davisrothwell.com

67