by Ken Lopez
This is the fifth and final installment in a series of articles focused on how defense counsel can overcome the increasingly popular Reptile trial strategy. In parts one through four, I offered an introduction to the strategy, I shared ten ways to recognize when the strategy is being used against you, I explained why the strategy does not actually work in the way that its authors describe, and I explained that despite the bad science, the Reptile trial strategy still works.
In this post, I summarize how to overcome the strategy in both the pretrial and trial phases of a case. I rely heavily on the work of Jill Bechtold of Marks Gray and Steve Quattlebaum of Quattlebaum, Grooms & Tull. They were my co-presenters at a recent defense attorney-focused conference devoted to repelling the Reptile strategy.
One theme that clearly emerges from the 12 points below is that being a good defense lawyer is more important than ever. No longer is it enough simply to outlast your opponent. No longer is it enough to come up with a great theme and narrative just before trial. Because the Reptile strategy often begins with the complaint, a defense against it must start shortly thereafter -- or you will pay the price later.
- Spot the Reptile: It can appear as late as closing arguments, but more often than not, plaintiffs counsel will introduce the key themes as early as the complaint. See, 10 Ways to Spot the Reptile in Action.
- Read the Book: I hate to say this, but you probably should read it. It is Reptile: The 2009 Manual of the Plaintiff’s Revolution by David Ball and Don Keenan.
- Spot your Opponent on the Reptile Hall of Fame: https://edgeverdicts.com/ (paywall) Plaintiffs counsel with a record of using the Reptile strategy are listed here. Is one your opponent?
- Storytelling Will Prevail: As you go through your case intake process, begin looking for the elements and start developing your own narrative. If you build the right narrative, you stand a higher chance of winning your case at trial. See, The Litigator's Guide to Storytelling for Persuasion
- Understand Your Opponent's Narrative: Plaintiffs lawyers are often successful because they focus on narrative from the very beginning. You need to uncover that narrative and be ready to replace it with your own.
- Articulate Your Narrative from Day One. The sooner you build your own narrative, the better off you will be. Developing a narrative long before trial allows for testing of that narrative and it allows for it to be used throughout the discovery process. Keeping it a secret until trial is not a great tactic and is often an excuse for procrastination. See 25 Things In-House Counsel Should Insist Outside Litigation Counsel Do
- Prepare Your Witnesses: They will be badgered. Teach them how not to give in and to think of each answer they give as a potential video clip. Give them standard phrases that will play well – such as: I don't understand, it depends, or I don't have enough information. Use witness preparation techniques and consider outsourcing witness preparation to firms that understand the Reptile theory. See Witness Preparation: Hit or Myth?
- Use Motions in Limine to keep out evidence that is irrelevant and inflammatory. Also, use pre-trial motions to introduce and undermine the Reptile strategy.
- Object at Depositions: Use objections based on form, relevance, lack of foundation, mischaracterization of law, or seeking legal conclusions. Don't rely on standing objections as this will not be effective in fending off damaging testimony, nor do they help minimize the impact of video testimony.
- Help your Client Understand the Reptile Trial Strategy: Your client should understand the nature of the actual duties that are owed to the plaintiff and should be able to distinguish between those and the made-up community standards that are characteristic of the Reptile trial strategy. See The Top 14 Testimony Tips for Litigators and Expert Witnesses
- Test Plaintiffs’ Case in a Mock Trial, Using Reptile Techniques. See 12 Astute Tips for Meaningful Mock Trials
- Watch for Golden Rule Violations at Trial. The Reptile strategy gets close to crossing this line, and a less sophisticated plaintiffs lawyer may very well cross it --potentially resulting in a new trial.
Using these and other techniques, I am confident that a well-prepared defense attorney will be able to defeat the Reptile theory.
Other articles and resources related to Reptile trial strategy, jury persuasion and jury consulting from A2L Consulting:
- Repelling the Reptile Trial Strategy as Defense Counsel - Part 1
- Repelling the Reptile Trial Strategy as Defense Counsel - Part 2 - 10 Ways to Spot the Reptile in Action
- Repelling the Reptile Trial Strategy as Defense Counsel - Part 3 - Understanding the Bad Science
- Repelling the Reptile Trial Strategy as Defense Counsel - Part 4 - 7 Reasons the Tactic Still Works
- 3 Articles Discussing What Jurors Really Think About You
- 10 Things Every Mock Jury Ever Has Said
- 14 Differences Between a Theme and a Story in Litigation
- The Voir Dire Handbook — Complimentary Download
- 9 Things In-House Counsel Say About Outside Litigation Counsel
- 7 Reasons In-House Counsel Should Want a Mock Trial
- Planning For Courtroom Persuasion? Use a Two-Track Trial Strategy
- $300 Million of Litigation Consulting and Storytelling Validation
- Accepting Litigation Consulting is the New Hurdle for Litigators
- The Top 14 Testimony Tips for Litigators and Expert Witnesses
- 5 Ways to Maximize Persuasion During Opening Statements - Part 1
- 5 Ways to Maximize Persuasion During Opening Statements - Part 2
- Run a confidential conflicts check with A2L for mock trial consulting, jury selection consulting, litigation graphics consulting or hot-seat support in the courtroom by clicking here.