Herpetology for the Transportation Lawyer: How to Identify and Combat Reptiles Rearing Their Ugly Heads in

Motor Carrier Litigation

Robert C. Black, Jr. Webster, Henry, Lyons, Bradwell, Cohan & Black P. C.

105 Tallapoosa Street P. O. Box 239 Montgomery, Alabama 36104

(334) 264-9472 Robert@websterhenry.com

Introduction “Members of the jury, we are gathered here today because the defendant chose to violate safety rules

and caused the death of Mrs. Jones. At the end of the trial, I will ask you to return a verdict for the plaintiff against the defendant. This is how you can send a message to the defendant and all the other people like him that here in Montgomery County, we won’t allow safety rules to be violated, needlessly putting all of us at risk.” If this opening statement sounds familiar, your opponent has adopted the Don Keenan reptilian approach to personal injury litigation. While the science behind “Reptile Theory” has been discredited, Reptile is an effective planning strategy and defendants must be able to recognize it and defeat it when it raises its ugly head.

Reptile Theory - Science Fiction that Works! In 2009, Atlanta-based attorney Don Keenan and North Carolina based jury consultant (and former

theater director) David Ball authored a book on trial strategy entitled Reptile: The 2009 Manual of the Plaintiff’s Revolution1. Thus, “Reptile Theory” was born. Since then, Ball and Keenan have promoted the book and the underlying strategy to plaintiffs’ lawyers across the country through their website, trial blog, seminars, DVD sets, and workshops2.

The Reptile Theory is based on the work of neuroscientist Paul MacLean, who theorized in the 1960s that there are three discrete parts of the brain reflecting the stages of evolution. (MacLean, 1949; Newman & Harris, 2009). The theory is based on getting to the “reptile” part of the brain, which contains the primitive and survival instincts that every person has. As a part of accessing the primitive brain, the theory suggests that upon sensing danger (hearing about an accident or injury) the jurors move into “survival mode.” The theory suggests that jurors, out of some natural protective instinct (to themselves and their community),

1 David Ball & Don Keenan, Reptile: The 2009 Manual of the Plaintiff’s Revolution (Balloon Press, 2009).

2 See, Rules of the Road, Winning Medical Malpractice Cases with the Rules of the Road Technique by Patrick Malone and Rick Friedman, ISBN 9781934833179; David Ball on Damages 3rd edition (2012), ISBN: 9781-934833-84-1. See also, www.reptilekeenanball.com for promotional material.

respond to the threat to their own safety and to the safety of others. The strategy, as defined by Keenan and Ball, is based on “scaring” the primitive part of jurors’ brains and utilizing (or manipulating, depending on your perspective) jurors’ fears. When a safety rule is broken, and jurors sense danger, in essence they experience a “reptilian” response to the case. The theory posits that this gut reaction leads to a tendency to give damages based on a violation of a broader perception of safety. Therefore, according to the theory, the jurors believe that awarding damages to a plaintiff will promote/enhance safety and decrease the danger to themselves and their community.

Ironically, the Reptile Theory advanced by Dr. MacLean has long since been revised and has been highly critiqued in neuropsychology scholarship.3 While the scientific theory behind the Reptile Theory has been largely discredited and/or ultimately shown to be invalid, the strategies and tactics they recommend have been shown to be incredibly effective. The Reptile Theory can be conceptualized as a planning strategy that gets plaintiffs’ attorneys to focus early in the case on crafting the themes that will be honed through deposition, voir dire, and, eventually, the opening statement. As a result, defense attorneys should take notice and should develop strategies to combat Reptile Theory strategy and tactics.

Reptile Theory is effective not because the plaintiffs’ lawyers have found a way to communicate directly to the jurors’ primitive reptile brains, but simply because the lawyers are recognizing that motivation exists and they can pick a very strong motivation to which to speak. Instead of applying the rational-legal model of jurors reasoning their way to a conclusion by applying the law to the facts and deducing to a verdict, the Reptile Theory strategy focuses plaintiffs’ counsel to speak to what would make the juror care about the verdict. The principle of motivated reasoning is that once jurors, or any other decision makers, know what decision they want to reach, then they'll have no problem coming up with reasons to support that conclusion. The decision comes first and the reasons are filled in later. So, once you identify the motivation and tie that motivation to your case, you are more than halfway there. If you take all of the junk science out of Ball and Keenan's book, the message is simple and effective: "Speak to the motivator. Make it an individual motivator, and make it an important motivator."

This motivator, and the center of any Reptile Theory case, is the idea that “safety” is important to jurors, and that there are “safety rules” involved in the case which must prevent danger. The plaintiffs lawyer should focus on one, maybe two, of these safety rules as the center of his case, which is referred to as “the Umbrella Rule”. According to Keenan and Ball, the Umbrella Rule has criteria that will determine whether the Umbrella Rule(s) pushed by plaintiffs counsel is an effective weapon or not: (1) The Safety/Umbrella Rule(s) must prevent danger; (2) the Safety/Umbrella Rule(s) must protect people in a wide variety of situations, not just the plaintiff’s position; (3) the Safety/Umbrella Rule(s) must be in clear English; (4) the Safety/Umbrella Rule(s) must explicitly say what the person must or must not do; (5) the Safety/Umbrella Rule(s) must be practical and easy for someone in the defendant’s position to have followed; and (6) most importantly, the Safety/Umbrella Rule(s) must be such that the defendant will either agree with or reveal him or herself as stupid, careless, or dishonest in disagreement

3 For discussions of weaknesses surrounding the Reptile Theory see Striedter, G. F. (2005) Principles of Brain

Evolution. Sinauer Associates; Patton, Paul (December 2008). “One World, Many Minds: Intelligence in the Animal Kingdom”. Scientific American. Retrieved 29 December 2008; Butler, A. B. and Hodos, W. Comparative Vertebrate Neuroanatomy: Evolution and Adaptation, Wiley; Smith CU., 2010, The triune brain in antiquity: Plato, Aristotle, Erasistratus. Journal of the History of the Neurosciences, 19:1-14.; and Ben Thomas “Revenge of the Lizard Brain,” Blog.ScientificAmerican.com, 9/7/12.

The Reptile Theory is effective because it focuses on the defendant’s failures in any threatening situation which has allegedly caused the plaintiff’s injury in any type of case, but most often, personal injury, product liability, medical malpractice and transportation cases. Reptile strategy attempts to shift 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. Less sympathy. Typically, plaintiff attorneys have focused on sympathy: getting jurors to feel sorry for the victim through a detailed description of the pain and suffering they experienced during the incident. The jury will hear from the witnesses who watched the accident unfold, the EMTs, the friend or relative (“before and after witness”); finally, they may see the “day in the life” video. However, it is axiomatic that the more the plaintiff attorney focuses on the plaintiff, the more the plaintiff will be scrutinized by jurors as to what they could have done to prevent the incident. Further, moving away from sympathy is important because sometimes the emotional discomfort caused by viewing graphic videos often creates distance between the plaintiff and the jurors rather than engendering empathy and compassion. Sometimes the vicarious experience of “giving someone money” doesn’t feel right if the juror him or herself has experienced difficulties; in fact the difficulties that jurors have experienced with job loss and the economy have made it less palatable to make large awards which will “make someone [the plaintiff] rich.” The emphasis on frivolous lawsuits over the last two decades has made it more difficult to generate sympathy from jurors in many cases. Reptile strategy draws attention away from the Plaintiff. Community safety. The Reptile Theory works because it takes the emphasis away from sympathy for the plaintiff and puts the focus on the failures of the defendant. And, importantly, it also works because it moves the emphasis from the individual to the community—jurors are not just protecting the safety of the individual plaintiff (again, there is resistance to making one person rich), they are protecting the community’s safety, a much nobler motivator. Just like in Maslow’s hierarchy (1943), the first two needs that must be met are physiological (food, water, sleep, excretion) and safety (security of body, employment, resources, the family, health, property). These needs must be satisfied before anyone is able to move to higher order needs like self-esteem or self-actualization. So, it makes sense that jurors would focus on their own and others’ safety as the plaintiff presents the “safety gone awry” case. People are indeed creatures who need to feel safe in our lives, and this motivator in Reptile Theory is very effective. Perceptions of companies. On the other hand, defendants have also traditionally used defenses based on misinterpretations of how jurors think. Defendants believe they must use the “good company story” to humanize their companies without realizing that this strategy has little persuasive value. Defendants tout that their companies are made up of people and are thus “human” and worthy of the same consideration as an individual. Of course the law says this also, but is just as unlikely to persuade. This is a hard fact to swallow for defense attorneys or their clients: companies are not people in the eyes of most jurors and will never be seen as being made up of human beings who are just like the people on the jury. A large company or corporation is considered just that; a business entity run by over-paid executives and distant boards. The “good company” type of appeal typically falls on deaf ears since jurors already have beliefs about what a company is all about—making money. Further, we know that jurors often think the defendant has done something wrong before the case starts because there is a “filtration” system at work in the court system. Jurors often believe that bad cases are settled or the judge grants a summary judgment motion; thus, the only cases left are those that actually have some merit. This kind of thinking is often underestimated by defendants in jury trials. Moreover, an attempt to make jurors feel threatened that a company may eliminate jobs or leave

the community if an award is made is more likely to anger jurors than engender good feelings about that company.

That is not to say that the defense lawyer should ignore the “good company story” altogether. A slightly different version of the “good company” story involves the fact that the company makes a well-known or reliable product, or provides important services. Seeing the important service offered by the truckers is usually not enough to keep the focus on the plaintiff and off the defendant. It is possible to have limited success with a reputation of leadership or innovation in safety matters (i.e., the first company to have an electronic logging system in all its power units, membership in prominent safety organizations, etc.), but that is different than the “we’re good people” story and cannot be offered directly. Furthermore, if it can, the company should tout its efforts, programs, and safety record.

Breaking your own rules. The Reptile Theory also fits with the jurors’ frequent assumptions that the defendant should do more to ensure public safety, even if more is not required of them. In fact, even if the defendant has met the required regulations (such as compliance with Federal Motor Carrier Safety Regulations (“FMCSR”), jurors often believe that the regulations are only the minimum that a company has to follow. Often the company may have more stringent practices than are required by the FMCSRs. It is particularly compelling when a plaintiff’s attorney can show that a company has violated its own safety rules or the industry standards which it helped to create. The jury appeal is particularly strong when someone at the company has failed to follow the manual or policy that it established as the final word on safe practice. A company, due to the perception of more resources, more knowledge and more control over its products and environments, is held to a higher standard of safety and responsibility than an individual. In a recent survey, 85% of those jury-eligible people polled said that corporations should be held to a level of responsibility that is somewhat more or much more than individuals (K&B/Persuasion Strategies national survey, 2015). This perception leads jurors to find fault when a company has violated its own policies, since, as a company, it is supposed to know to follow its own manual as well as the laws in that community, and is supposed to know about government regulations and industry standards. Attempts to prompt the theme of personal responsibility on the part of the plaintiff take a back seat to the obviousness of “breaking your own rules.” Attempting to blame the plaintiff in this context is a set up for the very anger and emotion that the defendant wants to avoid.

Rational motivation. The Reptile Theory works because it avoids doing what plaintiffs have traditionally done, and takes advantage of what defendants have failed to realize about how jurors think. Further, it works, not because it directly affects the fact finders’ primitive reptile brains, but simply because jurors are motivated to make decisions based on what they care about first (safety), and what is logical second (the plaintiff could have done more to secure his or her own safety). Instead of applying the rational-legal model of reasoning, jurors find their way to a conclusion in a different way (Broda-Bahm, 2010). The principle of motivated reasoning is that once jurors, or any other decision maker, know what decision they want to reach (like finding for a plaintiff or a defendant), they collect support for finding that way. Thus, hitting jurors early and hitting them hard with the motivation of protecting safety means that the primacy of that message is hard to ignore. The Reptile Theory focuses heavily on this concept: define the motivation (safety) and the rest will follow.

Thus, 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 trial, especially the opening statement. This process focuses on utilizing the 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 and powerful enough to “eliminate” that danger. This 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: (1) discovery with emphasis on deposition - especially Rule 30(b)(6) depositions of company personnel - as the key to getting admissions from the company; (2) voir dire to prime the jurors with the themes before the opening statement; and (3) the opening statement to capitalize on the groundwork set in each previous stage in steering jurors’ responses to the case.

Herpetology 101 - Learn to Spot a Reptile Early On The defense practitioner, as well as the client, should be vigilant for the common signs that a Reptile

may be hiding under a nearby rock. Signs of a Reptile Theory strategy case in the making generally include the following:

• Plaintiff’s counsel is seeking information that is ridiculously irrelevant (i.e., Plaintiff’s expert spends an inordinate amount of time at a site inspection reviewing signs, when the allegations have nothing to do with signage).

• Plaintiff’s counsel is focusing on information that is remotely relevant (i.e., the case is about a specific accident, but plaintiff’s focus is on broad notions of safety that seem relevant in only a vague and general sense).

• Plaintiff’s counsel is attempting to get the defendant to agree that the defendant must guarantee absolute safety (i.e., suggesting motor carriers must guarantee highway safety, rather than imposing standards of reasonableness).

• Plaintiff’s counsel is concentrating on concepts of potential harm as opposed to actual harm.

One pitfall for the defense is the trap of not recognizing a Reptile case by believing that, since the focus of plaintiff’s counsel seems to be so far off base, there is nothing to worry about. In fact, the above signs should be considered as dangerous as the sound of the rattle of a rattlesnake slithering nearby, and thoughtful defense tactics are needed to deal with the danger. Since the Reptile effect has been successful precisely because defendants were unaware and/or did not think that the plaintiff’s strategy was relevant, an alert defense team is a critical anti-Reptile strategy.

Reptile themes are often at work in depositions and discovery. Look for the following:

• Questions relating to general standards concerning policies or procedures in which the plaintiff tries to get the witness to agree that such policies and procedures must be followed for safety purposes.

• Questions seeking agreement that failure to follow policies and procedures can cause injury.

• Questions seeking confirmation that if failure to follow policies and procedures results in injury, then those not following the procedures are responsible for the injury.

• Reference to the defendant’s family or community as potential victims.

• Use of words such as “good health,” “mobility,” “endanger,” “safety, “policy”, “procedure,” “potential harm,” or “community safety” suggest a Reptile plan may be in use.

Get the client(s) involved in spotting and defending against the Reptile. The client can help spot a Reptile as it tries to slither its way into the case. The use of Reptile tactics is often very subtle. Even the best attorneys can be caught off guard. The best defense is a great team, and participation of clients and claims personnel is critical. Clients and claims handlers can review reports carefully for references to Reptile tactics. Get them to pay special attention to reports which indicate plaintiff’s counsel is pursuing discovery that seems highly irrelevant or off base. Clients and claims personnel can also assist by being open to nontraditional defense strategies to deal with Reptile tactics, some of which may require approval by claims handlers (i.e., allowing the hiring and use of non-employee corporate representatives for Rule 30(b)(6) depositions, as discussed below).

Herpetology 201: Combating the Reptile

Once the Reptile has been spotted slithering along in the

Defendant’s direction, The Defendant must prepare for and defend itself from the attack to come. The Defendant should start by creating its own anti-Reptile strategy.

Look for the Safety/Umbrella Rule Involved. As mentioned above, the Reptile program involves plaintiff’s counsel’s creation of a safety rule, which plaintiff will argue the defendant violated, leading to the injury at hand. In order to attack the Reptile effect effectively, it is important to get a handle on what the safety rule is.

Develop an Anti-Umbrella Rule. As mentioned above, the Umbrella Rule will cast a wide net. It is important to know what the Umbrella Rule is, so the defense can develop an anti-Umbrella Rule, such as “Truckers must drive reasonably under the circumstances.” Then develop evidence to support the anti-Umbrella Rule.

Develop Anti-Reptile Themes. One of the features of the Reptile strategy is that plaintiff’s position imposes on the defendant a wide duty to insure against injury, regardless of the circumstances. Anti-Reptile themes should be developed that emphasize the standard of care and the legitimacy and fairness of standards of care in the context involved.

Think of Returning Attention to the Plaintiff. The defense should be on the lookout for and then (at trial) pick out three to five key facts that become the focus of their presentation. These facts should tell jurors everything they need to know about the case and, at the same time, shift the focus of the discussion back on the plaintiff.

Start Driving The Reptile Back Into Its Lair During the Discovery Process

As stated previously, 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 trial. Therefore, the defense practitioner should be able to recognize and combat a Reptile Theory case early on in the discovery process.

Start Combating the Reptile in Written Discovery. In written discovery responses, raise objections to questions about situations other than the factual situation at issue, and compose responses to discovery that limit discovery to the claim at hand. Inject Anti-Reptile themes into the discovery responses, especially where requests for admissions are involved. While the discovery rules throughout the country and in the federal court systems are becoming more and more relaxed in favor of disclosure, counsel for the defendants should set a tone early that pulling at the heart strings of the jury is unacceptable and will be challenged at trial. Each case is different, but if there appears to be no reason for producing SafeStat or CSA information, do not simply turn it over. If certain portions of a handbook or safety manual are irrelevant to the specific issues contained in your case, seek to redact those portions so that unnecessary fodder is excluded from disclosure to plaintiffs’ counsel. Discovery responses can be drafted in such a way as to incorporate Defense Safety Rules and Umbrella Rules, and witnesses can be coached to incorporate Defense Safety Rules and Umbrella Rules with testimony that refocuses jurors away from plaintiff themes. Defense counsel can also strategize to incorporate themes in discovery responses and testimony that focus on the facts of the case and not on fears of events happening which are not at issue.

Know the Reptile Plaintiff’s Deposition Strategy. Most Reptile plaintiff attorneys agree that they 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. Further, witnesses are attacked at both an emotional and conceptual level, as well as a case specific level, which means that they are typically unprepared to defend themselves, the basis for their testimony, and their very self-esteem. Defendant witnesses (based on basic training from their attorneys) 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 or no answers, with no explanation or caveats provided until the witness is boxed into a corner from which he or she cannot escape. Not only is the Reptile strategy of aggressive questioning good practice on the part of plaintiff attorneys, but it also takes advantage of the failure to prepare witnesses for video depositions that set the tone of the case. During video depositions, the witness’ answers, and their potentially damning non-verbal behavior, are memorialized for the potential jury to see. While it is well known that the more “key” the witness is, the less time he or she will probably make him or herself available for proper preparation, it is a crucial part of the defense to the reptile process to spend adequate time in preparation for deposition.

The key to the plaintiff deposition strategy is exhibiting control over witnesses. The “safety rule” is central to this process, and the idea is to trap witnesses first into agreeing with general safety principles and danger avoidance/risk avoidance principles, then move into more specific safety rules and danger avoidance rules, and finally pinning witnesses down on specific safety rules or danger avoidance concepts that were broken by this particular witness or company. This strategy applies not only to the 30(b)(6) witnesses, but also to other fact witnesses and experts. Inconsistencies are key, and the more that inconsistencies within the

policies of the company or of the industry (e.g., standard of care, construction rules, gas line practices) can be identified, the more focus will be placed on those inconsistencies.

The process can be friendly or aggressive, and is often both. There is an attempt by the plaintiff’s attorney to unnerve or create a sense of imbalance for the witness. This creation of imbalance takes place both with regard to the emotional content of the questioning, as well as the factual content. Vulnerability to the attacks is created by the false belief that the deposition is an attempt to get at the truth of the matter, rather than a “game;” that the attorney will play by reasonable communication rules; and by a lack of understanding of Reptile questioning. The plaintiff’s attorney’s job is to create an environment in which the witness will agree with what the plaintiff proposes. The witness’ compliance is often dependent on creating the right kind of emotional roller-coaster that will support the proper response. The ability of the attorney to detect what will work is key—is it best to be friendly to lull an unsuspecting witness to agree or to disclose too much? Or is an aggressive stance most likely to get a reaction? And combining both by switching from friendly to aggressive is a very common strategy. It is also best to gauge which of the two most common reactions the witness will display: 1) is the witness likely to withdraw from the questioning; or 2) become angry and aggressive in response? The evaluation of the witness’ style can take place during the process, but the extent to which the personality of the witness (and its potential interaction with the attorney’s personality and style) can be known in advance is an important consideration for success.

Humiliation and “shaming” are important secondary techniques. While common in many types of depositions, the emotional tenor of this process is highly important to achieving admissions and creating contradictions. Insulting and belittling the witness are key techniques. Witnesses are asked, “You want the jury to believe that?!” or “You have been working there for 10 years and you don’t know anything about the safety manual!?” These types of questions get witnesses to feel ashamed about their responses when they contradict general safety rules or specific rules involved in the case.

Individuals who have been conditioned to respond to questions about safety consistently in the affirmative (i.e., a safety director or safety manager of the defendant trucking company) are particularly vulnerable to having their ways of thinking and their conditioned responses challenged. The Reptile attorney’s questioning is intended to move from agreement with general safety and danger avoidance rules (confirming these rules) to more specific safety and danger avoidance concepts applicable to best practice in a particular field or industry. General questions suggest that: “[s]afety is always a top priority, right?” or “[a]ny level of danger is never appropriate, correct?” or “[r]educing risk is always a top priority, wouldn’t you agree?” The plaintiff’s lawyer will then attempt to tie the general agreement to more specific rules that were violated in the case by the individual or the company.

Perhaps the most dangerous questions are about those hypothetical “safety errors,” such as those that are characterized by, “[w]ouldn’t it have been safer if [Umbrella Rule based hypothetical fact pattern] had happened?” or “[t]he company could always do more to protect safety and prevent dangerous situations, right?” The inevitable answers to these questions fit neatly into jurors’ predispositions that accidents are always preventable, and companies can always do more to prevent incidents from occurring. These questions also bank on both witnesses’ (and jurors’) use of hindsight.

Cognitive dissonance experienced by the witness is essential to this process. Cognitive dissonance represents the psychological discomfort experienced when one is confronted with information or behavior that is in contradiction with their internal beliefs or attitudes. The more strongly held the belief or attitude, the

more intense is the experience of dissonance when confronted with the new contradictory information. When a witness whose professional life is based on safe practice is confronted with his or her own or someone else’s decision or behavior, which the plaintiff’s attorney suggests does not comport with safe practice, is it overwhelming. The struggles that most witnesses have with the deposition comes from this intense dissonance, particularly when they have “gone on the record” agreeing with very broad principles of ideal safety practices. When a witness advocates a safety rule in which they believe, but with which they do not always comply, this situation creates the maximum amount of dissonance, and psychological discomfort.

The Reptile process focuses on an admission of fault, which decreases the dissonance: “Wouldn’t you agree that if someone had violated that rule and an accident occurred, that person would be responsible for the accident?” When a witness admits fault he or she is really using the “withdrawal” technique and is hoping to simply be left alone after being psychologically beaten up. This reaction can also be seen in other withdrawal strategies, such as feigning lack of understanding of questions or asking the attorney to repeat the question over and over as a delay. The alternative of aggressively attacking the plaintiff’s attorney by denying the conclusions he is drawing is usually only a temporary fix and only serves to dig a deeper hole out of which the witness must crawl.

The three keys to success in defending a client in a Reptile deposition are: (1) preparation, (2) preparation, and (3) preparation. Defense responses to the Reptile questioning process primarily involve training and preparation. Breaking witnesses of the habit of agreeing with general safety questions, without reservation, involves literally reprogramming years of training. Educating witnesses about the pitfalls of answering every global question in the affirmative is a first step along with many practice sessions intended to (1) demonstrate how the safety trap is set and (2) to teach how to come up with alternative answers. The biggest hurdle in this process is that safety rules just seem so obvious that no one could disagree with them! Teaching witnesses to recognize a dangerous global safety question is job one. Convincing them they are not lying or betraying their professional identity and training when they offer an answer that provides a caveat is crucial to the process.

Next, witnesses need to be trained and prepared to think in terms of longer and more effective answers to yes or no questions. In some cases, witnesses can agree with safety questions, but many times they are better off offering caveats or parenthetical phrases such as “in many cases,” “to a great extent,” or “that is one of the things that is a priority at the company.” Of course there have to be logical reasons for these caveats. Recognizing and using caution when answering questions that involve phrases like “Wouldn’t you agree with me that…” or “Wouldn’t it be fair to say” is eye-opening for many witnesses. In many cases, the best strategy is to help witnesses think like politicians, who offer what is important or relevant when asked a difficult question. For example, a witness can say “Yes, that is sometimes true, but importantly, that was not necessary in this case.” Detecting trap questions and recognizing the appropriate timing for a better, more thorough explanation is a key to reprogramming witnesses. Defense witnesses also need to be on the lookout for emotional attacks and to learn to ignore them. Simply put, these attacks are often intended to make the witness respond from the “child” part of themselves, that part that was embarrassed or felt insecure in the face of chastising from a teacher or parent. Teaching witnesses that the attacks are unfounded (“You are not incompetent if you disagree with this attorney.”), training them that this attorney will never be a source of approval (“This attorney will NEVER agree with you”), and that the attacks are not personal, even if it sounds like they are (“It is his or her job to attack you in this adversarial context.”) are all very important in helping the witness remain solid in the face of personal attacks. In fact, many witnesses we have trained have felt an internal “smile” when they realized that the more the attorney attacked, the more he or she is probably

frustrated with answers that do not satisfy the deposition agenda.

Prepare defense witnesses, clients, and experts to differentiate the facts of the pending case from the Umbrella Rules and avoid discussion about situations other than the factual scenario at issue. Witnesses should be coached to handle overly broad questions. Witnesses should avoid agreeing with all generalizations. A good piece of advice is that the response to any kind of hypothetical question is “It depends” with follow-up testimony about the factors involved.

Who says you have to use a company employee as the company representative in a Rule 30(b)(6) deposition? The Rule 30(b)(6) deposition is full of peril. Unlike a deposition of an individual, a Rule 30(b)(6) deposition is noticed to the company itself, and designates specific topics on which the company must be prepared to answer questions. Because the company must prepare a witness (or witnesses) to testify on these certain topics that may encompass broad time frames, complicated processes, and the knowledge of many current and former employees, the potential pitfalls in preparing witnesses to testify are many.

One of the most important decisions the company and its counsel must make is who is to be produced to testify on which topic. The choices are many - almost limitless under the rule - and usually, the company selects the employee who is most knowledgeable about the case and the topic on which testimony is sought. Defense counsel may want to rethink that choice.

Rule 30(b)(6) of the Federal Rules of Civil Procedure4 states:

(6) Notice or Subpoena Directed to an Organization. In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules. (Emphasis added).

Presumably, counsel noticing a 30(b)(6) deposition has designated specific topics they want to explore, and feel that a prepared company representative is the fastest and/or least expensive way to obtain the information. This is a good bet when the company is large and written interrogatory answers don’t provide enough information about who knows what. But since the company is legally bound by the 30(b)(6) deponent’s testimony, it may be a good idea to select someone whose knowledge of case-relevant information is limited to his or her preparation for the 30(b)(6) topics on which he or she will testify.

Although there are certainly situations when it is desirable to produce a 30(b)(6) deponent with the most extensive knowledge of the case, it is not necessary, nor always desirable to do so. A witness with

4 Most states track the Federal Rule’s language.

knowledge, unprepared to testify on a particular issue, may easily fall prey to cunning questioning by an attorney employing surprise to obtain admissions from the company’s designated witness. When faced with unexpected questions, anyone can become confused, incorrectly recall events or timeframes, or otherwise give faulty testimony.

Why does it matter? After all, the noticing party can only inquire about the topics designated in their 30(b)(6) notice, right? Unfortunately, this is most likely not true. While some courts have held that the deposition notice establishes the outer boundaries of permissible topics for the 30(b)(6) examination, most courts have rejected this view, and interpret the requirement as defining a company’s minimum obligation regarding who it must produce for examination and what he or she must be able to answer. Under this broad, majority interpretation, once the minimum standard is met, the scope of the deposition is determined solely by relevance. In other words, as long as the opposing attorney’s question is “relevant” (a very loose requirement under the discovery rules), the 30(b)(6) deponent must answer, even if the question has nothing to do with the topics designated in the deposition notice.

Remember that the obligation is only to produce someone for examination who has been prepared to testify to the company’s knowledge of the matters stated in the notice. Keeping in mind that the law (and Rule 30(b)(6) itself) may differ from one jurisdiction to another, in most cases, the deposing party is free to ask questions outside the scope of the noticed topics. So, if deposing counsel chooses to ask questions outside the notice, he or she bears the risk that the deponent will not know the answers. If the designated deponent doesn’t know the answers to questions beyond the scope of the noticed topics, the problem is the noticing party’s.

In summary, producing a witness with the minimum level of knowledge may be the best way to ensure that the company meets its obligation under the rules while minimizing the risk of inadvertent disclosure of confidential, irrelevant or sensitive information. Someone with limited or no knowledge apart from the noticed topics is less likely to testify to anything that could later haunt you. You should work through the strategy and options when helping your client select the right deponent under the circumstances presented by your case.

Herpetology 301: Combating the Reptile at Trial The defendant has identified the Reptile plaintiff’s Safety/Umbrella

Rule involved. Defendant has developed its anti-umbrella rule. It has developed its anti-Reptile themes. Defendant’s client was prepared in discovery and depositions went fairly well. However, the Reptile plaintiff attorney re-read Keenan and Ball last week and feels that he/she can distract the jury’s attention from the true facts long enough to get a jury to award a seven-figure verdict. The case is going to trial.

Most attorneys approach the trial of their cases in this same way - by identifying what the court of last resort has to say about the relevant law, i.e., what must be proved for them to win in the eyes of the court, ordinarily by fulfilling all the “prongs” of the case law. The attorneys focus on every fact they can soak up to decide where each fits into their legal position, build preemptive defenses relating to any “bad” facts, and search for hidden facts to support alternative theories of their case. This is very important because it’s the

foundation of any case. But fulfilling all the “prongs” of the case law is not the only, or even the most important, part of presenting a case at trial.

One thing that many litigators tend to overlook is building a case to satisfy a jury (or judge in the event of a bench trial) in a “real-life,” non-legal sense. After all, trying a case in court is something like making an extended elevator pitch for the client, and the lawyer needs to make sure that the jury wants to hear it and that the jurors will be affected by the pitch in the way intended. Often, a litigator will spend too little time, or none at all, on what is needed to persuade the jury at trial. Most litigation teams tend to wait until the last minute before trial to really put their story together in a way that will be persuasive to jurors.

During the trial, jurors tend to find relatively few facts very interesting and “important” and they then base the entirety of their decisions in the jury room on those few facts. There is a well-known psychological phenomenon called “confirmation bias,” which is the tendency to interpret new evidence as confirmation of one’s existing beliefs or theories. Most jurors tend to decide the outcome of a case in the first five minutes of opening statements and then use facts that fit their version of the case as reasoning in deliberations (with the strongest, loudest, or pushiest jurors typically triumphing in these deliberations). Attorneys need to recognize this and to develop their trial story around the key facts onto which jurors will tend to latch.

Consider pretrial motions directed at the Reptile Theory. Motions in limine can be used to prevent extension of evidence beyond the pending case. A motion in limine prohibiting Reptile tactics should also be considered. Many courts are familiar with Reptile tactics and may assist in developing guidelines for trial that ensure over-generalizations do not take the jury off course. Counsel should also consider telling jurors that plaintiff’s counsel is using mind programming techniques to influence them, and counsel may encourage jurors to reject this manipulation and explain the concept of the “ape brain.5” Alternatively, jurors can be advised in more general terms that plaintiff’s counsel is asking them to make determinations based on feelings and not on rational conclusions about the case.

Focus the case on the plaintiff. A verdict is a product of what jurors choose to talk about in deliberations. Jurors will not spend hours of deliberation praising the focus of their discussion. Instead, the research indicates that they will criticize it and, over time, momentum against the focus of their discussion will develop. This momentum builds to agreement in leanings at which point jurors find a way to render the verdict they want to render (remember: motivation), often through a practice of reverse-engineering the verdict form. Defendants need to craft presentation strategies that place the focus on the plaintiff and his or her burden of proof without going on the attack. The focus on the plaintiff’s burden of proof is effective when the defense can cast doubt on the plaintiff, which is why key fact selection is so important. As mentioned previously, the defense should pick out three to five key facts that become the focus of the defense’s presentation. These facts should tell jurors everything they need to know about the case and, at the same time, shift the focus of the discussion back on the plaintiff.

Sometimes, the real dispute in the litigation is over damages, not liability. In some circumstances, a defendant’s insistence on fighting liability can send a message that the defendant “still doesn’t get it.” An

5 According to the Triune Brain Model, the neo-mammalian (“Ape Brain”) complex consists of the cerebral

neocortex, a structure found uniquely in higher mammals, specifically humans. MacLean regarded its addition as the most recent step in the evolution of the mammalian brain, conferring higher brain functions such as the ability for language, reason, abstraction, planning, and perception.

admission of liability may remove certain aspects of the case that generate fear and anger, and still allow you to turn the jurors’ focus back on the plaintiff by making it a case about what is a reasonable damage award for the plaintiff.

Identify a simple standard for deciding the case. We have all seen it - the “aha” moment when you actually see jurors expressions and body language change as they finally stumble onto something that helps them make sense of the otherwise complex issues in the case. Years of research on effective persuasion has revealed that people take the simplest path to a conclusion. Consequently, whichever side provides the easiest (and most satisfying – remember: motivation) path is likely to prevail. One strategy for accomplishing this is by boiling the entire case down to one or two questions for the jurors to decide. In other words, while the verdict form and jury instructions may contain or imply a long list of questions the jurors have to answer to reach a verdict, an effective case presentation says there are really only one or two issues that need to be determined in order to decide the case. The defense lawyer should provide a clear and simple route for jurors. Identify procedural hurdles the plaintiff must overcome. While Reptile Theory argues that logic is subservient to the reptile, this drastically understates the influence procedural hurdles can have during deliberations. For example, a well-armed defense lawyer who is prepared to speak effectively about the plaintiff’s unique burden of proof on each individual element of the claim can, at a minimum, make the path to a plaintiff verdict significantly more difficult during deliberations, which can prevent the plaintiff from ever gaining momentum in deliberations. In instances where a plaintiff advocate is not well equipped to respond to these procedural hurdles, he or she may be forced into inarticulate arguments that detract from his or her credibility. This can actually cause the momentum of deliberations to shift in favor of the defendant. There is a social phenomenon in deliberations: jurors do not like to be aligned with individuals who hold offensive beliefs or generally appear to lack competence when he or she passionately argues for the plaintiff. In short, it’s a simple “wear them down” strategy. Finally, the defense lawyer can use the procedural hurdles to demonstrate the plaintiff’s failure to meet his or her responsibility under each element of the claim and steer the group towards a defense verdict.

Eliminate or reduce the perceived threat of danger. While the research indicates that anger, not fear, exerts more influence on plaintiff damage awards (an angry jury is more motivated to act adversely to the party at who they are angry), the element of fear or threat should at least be addressed. At a minimum, fear can contribute to anger towards the defendant. Simple strategies for reducing the perception of a threat focus on the infrequency of adverse events (i.e., the company has a good safety rating or reputation; the driver had no previous accident, etc.) and the critical role the plaintiff’s choices played in causing the adverse event. This also constitutes prime opportunity for the incorporation of graphics. Often, the visual representation of the infrequency of adverse events is more impactful than the verbal presentation alone.

The Voir Dire Process Voir dire is an opportunity to expose and eliminate those jurors who would likely be biased against

your client. In this regard questioners use the opportunity to ask questions to which they really want answers. (“Do any of you have any connection to the parties in this case?”; “Does anyone here have strong feelings about or negative experiences with XYZ Trucking Company?”). Voir dire is also the first opportunity to expose the jurors to the themes of your case, which takes advantage of the concept of “priming”. While eliminating jurors with predispositions against your client is generally considered to be the most important goal of voir dire, plaintiff attorneys in Reptile mode use voir dire mainly for priming. In this regard, they ask questions that are intended to inculcate potential jurors with the themes of the case.

Know the format for voir dire in the venue and prepare accordingly. It is important to learn the type of voir dire that will be conducted by the judge. It is also important to know what types of questions will be allowed, and whether the court or counsel will be asking those questions. While a change of venue is more difficult to obtain in civil than in criminal cases, circumstances do exist that require moving the trial to another venue in order to provide the defendant with a fair and impartial jury. The reputation of the defendant transportation company in the community, or publicity attendant to the catastrophic nature of the accident, may be sufficient evidence of potential juror bias. Furthermore, while the court may not grant the motion for change of venue, it will become aware of the potential bias, and may give you a more favorable voir dire process and leeway on challenges.

Consider using written juror questionnaires, if permitted. It may be important to ask the court to use a written juror questionnaire to cover the sensitive issues in your case. Written questionnaires are very useful, as they have been shown to reveal juror biases that are not typically discovered during standard oral voir dire. Jurors are more truthful when writing their answers, and are more comfortable responding to a questionnaire than responding orally in front of a group of strangers in open court. Further, sensitive areas such as whether they, or members of their family, have ever been injured in an accident, fired by a corporation, and similar questions, are more easily covered in the privacy of writing.

It is important, however, to have oral follow-up to the questionnaire. Often the written answer needs further clarification.

If the court does not allow a written questionnaire (and many won’t), it may be necessary to ask for individual voir dire so that jurors can be questioned individually about such sensitive issues. Again, full and honest answers to personally difficult questions will not be given by jurors in open court.

Establish a rapport with the jurors and actually talk to them during questioning. If counsel is allowed to question the jurors, it is important to do so in a way that creates a favorable rapport with them. Jury selection is the jurors’ introduction to the case, and it is their first opportunity to view and evaluate your counsel and opposing counsel. Any favorable impressions made during jury selection will lead the jurors to be more receptive to counsel’s presentation during trial.

There are several effective ways establish rapport and make a favorable impression on the jurors:

1) Be helpful. Explain the questioning procedure and the mechanics of what is going on. Jurors are unfamiliar with the process, and they are anxious about having been brought to court and the possibility of serving.

2) Be respectful, polite, and sincere. Voir dire is not a time for cross examination. Jurors will appreciate counsel’s professionalism, and will carry this impression with them into trial.

3) Be open Research has shown that self-disclosure is an important signal to other people that it is proper to reveal things about themselves. That is, if counsel tells the jurors some personal information, the jurors are more likely to tell counsel personal information about themselves. The best way is to discuss how long you have been practicing, why you are asking these questions, and why it is so important to counsel to hear the answers.

In some venues, counsel is permitted to obtain pledges from the jurors. Research shows that it does

have an impact on jurors when they are asked to promise that they will be open-minded, apply the proper burden of proof, and consider the evidence before reaching a verdict. This is effective for several reasons. One reason is that you are asking jurors to endorse statements upon which they have had no prior opinion. Since they have never thought about the burden of proof, if counsel can get them to agree to hold the plaintiff to a certain burden, the jurors will accept their own statement of endorsement as if it were their own long-held opinion. Also, people find it difficult to go back on a publicly made statement. They believe that others have heard them make this statement, and thus will judge them negatively if they later go back on their pledge.

Watch for “priming” and be prepared to prime yourself. During the questioning, it is also important to introduce the jurors to the case and prepare them for the key themes. Jurors do not recognize the adversarial nature of voir dire, and they have not yet developed the evaluative mindset they will use during trial.

Priming is an effective technique used to influence attention. Specifically, priming is an implicit memory effect in which exposure to a stimulus influences a response to a later stimulus. This means that later experiences of the stimulus will be processed more quickly by the brain. For example, if the word “sloppy” is used to describe an investigation, that word tends to be automatically associated with the company’s behavior. In voir dire, plaintiff’s counsel begins the priming process with the goal of exposing jurors to the trigger words that will evoke themes of safety, danger, risk, etc., so that those themes will resonate with jurors during their opening statement. Many of the questions plaintiffs’ attorneys ask are not intended to get any form of response, but are rather questions with which no one will disagree: “Would anyone disagree with the concept that insuring public safety on this nation’s highways is a trucking company’s most important goal?”; “How many of you think that some companies put profit before safety?”; “Would anyone disagree that this community deserves safe and responsible operating from commercial carriers?” Importantly, the questions are worded so that the answer will, inevitably, agree with the underlying premise of the question. Indeed, the attempt is made to structure many questions with “How many of you…?” when the attorney desires agreement rather than “Do any of you…?” which signals that there is one person would be alone in their disagreement. As in the witness examination process, no one would disagree that safety is important, and everyone would agree that avoiding harm is every organization’s ultimate goal.

Further, Reptile plaintiffs’ attorneys anticipate that some jurors might have issues with lawsuits or even believe that frivolous lawsuits abound. In “priming” the jury, they might ask, “Would anyone here disagree that if someone is injured by a trucker, that they have a right to sue that trucking company that hired that driver?” Most jurors will agree with this statement, since it makes the assumption of causation and the right to sue. If a juror does happen to disagree, then that juror’s biases are exposed and he or she can be eliminated, either through a cause or a peremptory strike. This same sort of questioning is used to eliminate jurors who are reluctant to award damages or have limits as to the extent of awards. In this way the attorney not only eliminates biased jurors, but also conditions those remaining that safety rules have been violated, the violations caused the incident, and that lawsuits and damages are an appropriate response. Repetition is a form of priming which can make themes more believable. Jurors are often overwhelmed at the process of participating voir dire, and are listening intently to the themes so that they can understand the nature of the case. Since the plaintiff conducts voir dire first, this opportunity to set the stage occurs when jurors are most impressionable.

Defense counsel can defuse plaintiffs’ attorney’s priming efforts by instilling in voir dire with opposing themes that can offset the plaintiff’s counsel’s priming efforts. Focusing on following the law or asking jurors to wait until all the evidence is in is an appropriate, but weak attempt to inoculate jurors.

Counter with some information that surprises jurors; for example, asking them if they assume that, just because they are in court, the defendant must have done something wrong. This allows an opportunity to not only expose those jurors who believe that the defendant is already “guilty,” but allows the defendant to emphasize that the plaintiff’s injury may not have been caused by anything the defendant did or didn’t do. Further, defense counsel can also find ways to inoculate against plaintiffs’ themes by asking “Would anyone disagree that a truck driver needs to analyze each traffic situation as best he can?” or “How many of you believe that sometimes things are just accidents, and not necessarily someone’s fault?”

Reptile tactics are not truly about survival instincts; the theory really focuses on utilizing negative predispositions about companies and positive leanings toward the underdog to view the case. “Priming” involves suggesting terms, definitions and language which are keys to interpreting the case in your favor. Will jurors interpret the case as one in which safety rules have been violated and the community is at risk, or, from a defense perspective, are there alternate explanations for the events in question?

Opening Statements Research indicates that, in most cases, jurors want to reach what they consider to be the “right”

verdict. They will strive to be sure that they are not making a mistake. As part of this process, the jurors recognize that they have not been given the whole story at trial, and they will fill in the gaps with information from their own lives and experiences. The plaintiff has traditionally relied on sympathy and emotion to drive verdicts and damages. The classic response to this strategy was to show how the defendant acted reasonably and to offer various defenses for their conduct. This primarily defensive approach has failed to keep up with the new Reptile strategy. The Reptile opening “story” is constructed with very specific themes of broken Safety Rules. The premise is that jurors want to feel safe and will punish those who make them feel unsafe. While this is not the same thing as triggering some kind of reptilian response, it is clear that jurors do want to satisfy those basic “Maslovian” needs. The idea that the world has been made unsafe for even just one person is a motivating argument for many potential jurors, and, if it is expanded to the community, the theme captures many other jurors. These very direct accusations are often met with what is perceived by jurors to be defense excuses, which reinforces their negative stereotypes of company defendants.

The organization of the Reptilian story is a trap into which many defense attorneys are drawn. The most frequent mistake in response to a Reptile opening statement is to immediately go on the defensive and deny each of the plaintiff’s allegations. This knee-jerk response makes psychological sense, since the plaintiff has accused the defendant with failures to follow its own safety procedures during both voir dire and the opening statement. The defendant wants to respond by denying each allegation one-by-one. However, this strategy is intended to “bait” defense counsel into fighting on the plaintiff’s turf and terms and be very successful for plaintiffs.

Defendants need to remember what doesn’t work. Most importantly, the repetition of the plaintiff claims and a response to each just repeats all of the plaintiff’s themes.

The defense attorney should take extra time to focus his opening on the most important part of the opening—the first five minutes.

Jurors do not want to be pandered to, so defense attorneys need to stop spending so much time thanking them for their jury service—jurors know that this is just a way to attempt to influence by flattery.

Jurors want to know specifics. Furthermore, the more time defense counsel spends focusing on his own client, the more jurors will focus on your client.6 Therefore, immediately giving jurors something besides you client to blame is imperative for derailing the Reptile attack. Defense counsel needs to arm jurors with the “real” story and provide the context of what happened so that he or she immediately puts the plaintiff, the situation and/or alternative causation on trial. When possible, defense counsel needs to counter themes about safety, with the sense that the plaintiff had more control and more or sufficient knowledge to deal with the situation in question. Some cases lend themselves better to this theory than others, of course, but in many cases the focus on the plaintiff failing to take what are considered to be reasonable and ordinary actions to protect himself or herself (driving at the posted speed limit, keeping a watch for traffic conditions, staying out of the truck’s blind spot, etc.) can help to counter what is a heavy burden on the defendant to protect the consumer or plaintiff from him or herself.

The beginning of an opening statement is the point at which jurors hear the reasons for why the defendant is not “guilty” (let’s face it, even in a civil case jurors use that word and mindset). Jurors figure out what the “right answer” is long before they even look at the verdict form. Defense attorneys need to remember that jurors want to know what they should care about and whether they are providing justice through their decision. The fact that the jury instructions come at the end of most trials7, and the judge may not have allowed for much discussion with the jury about the law, means that the impact of legal definitions and instructions is minimized. If the defendant hopes that definitions of legal terms will be factored into a decision, then discussions with the judge about the need for preliminary instructions and/or the ability to describe the terms needs to be ironed out, preferably before trial begins. Jurors care about how to decide who was “wrong” in this “argument” between plaintiff and defendant; in other words, who is to blame? Thus the defendant cannot ignore the need to rebut the plaintiff’s attacks. However, falling into the trap of focusing on the plaintiff’s Safety/Umbrella Rules during the opening statement is a sure way to play into the Reptile attorney’s framework. Defendants need to remember to offer an alternative explanation of the control and knowledge available to plaintiff, and, if legal definitions (e.g., standard of care) are to have any weight, those terms must be defined early and often.

Remember the importance of themes. In the opening, and throughout the case, counsel must give the jurors the information they need to help them reach the “right” verdict. This involves giving them a story of the case that is consistent with the jurors’ own life experiences, but prevents them from bringing into their reasoning extrajudicial experiences that are inconsistent with the client’s positions. Psychological research has shown that presenting the case using key themes is the best way to persuade jurors to your client’s position. People learn through organizing complex events into simple concepts. Most major trials are quite complex for the average juror. Thus, it is important to present a few key issues on which the jurors can focus, and around which to organize all the testimony they will hear. If the jurors accept a few key concepts, they will attempt to fit all further information they receive at trial into those concepts. If the information they receive fits into that key concept, it will be accepted. If the information does not fit, and the defendant should have developed themes inconsistent with plaintiff’s case, the information will be rejected.

In coming up with and arguing its theme, the defendant should avoid the mistake of relying on a legal defense and overlooking the psychological and emotional reactions jurors will have to the fact pattern of the case. Lawyers think differently than do jurors. This is due, in part, to their training and to their immersion in

6 Remember that the plaintiff used to fall in this trap and in Reptile Theory he has now learned to place the focus on the defendant.

7 If possible, discuss or, at least, mention the jury instructions in the opening statement.

the case issues. Although one might think that the point of a trial is the legal defense, jurors more commonly respond to psychological and emotional issues. This is particularly true in cases with catastrophic injuries, and cases involving issues that are relevant to the jurors’ lives, such as motor vehicle accidents.

Evidence and Witnesses The three keys to success in presenting a witness at trial in a Reptile case are: (1) preparation, (2)

preparation, and (3) preparation. It is important to prepare witnesses for a credible presentation to the jury. Jurors do not “know” the witnesses other than through the brief time they are on the stand, and they will evaluate the credibility of witnesses based upon verbal and nonverbal communication. Jurors know that lawyers prepare witnesses; therefore, when a witness is not well prepared, jurors interpret this as a weakness on the part of his or her testimony, and an indication that the witness is not to be believed. The solution is extensive preparation in order to develop strong and polished testimony.

Expert witnesses are evaluated as much on their experience as on their credentials. Jurors do not have the ability to identify whether an engineering expert with a Ph.D. from one university is more knowledgeable than an engineering expert with a Ph.D. from another university. Therefore, the jurors rely on the experience of the witness; they will believe the expert who has had more actual experience working with the issues involved in the accident. As such, when qualifying an expert, it is important to put emphasis on experience, as well as academic credentials.

A common mistake made by corporate defendants is to choose experts who are seen as experts by the corporation but not by the jurors. It is important to use an expert who will present his or her testimony in a manner that is persuasive to the jury, and not to select that expert simply because he or she has worked with the corporation and is known to management.

Carefully choose, create and use demonstrative aids and graphic evidence. The pace of trials is slow for juries; they become bored even during exciting trials. What appears to be a hectic pace for counsel is still slow for the juror who must sit impassively waiting for something to happen. A major value of graphic evidence and demonstrative aids are that they break the cycle of boredom for the jury, and anything that gets the jurors’ attention is valuable. Further, many concepts are far more easily presented in a visual, rather than oral, manner. This is particularly true in vehicle accident cases, where spatial relationships and complex engineering concepts must be presented to the jury. Comprehension, and thus learning and persuasion, is increased through visually presenting these materials.

There are two major problems with presenting graphic evidence: (1) Lack of clarity. What is presented visually to the jury is frequently unclear. This is worse than the jurors simply not understanding; when the presentation is unclear, jurors can undergo a negative reaction in which they believe the lack of clarity is due to a weakness in the case; and (2) Conveying the wrong information. This results when the graphic presents information that is detrimental to the case. Because jurors are bored, and because they want to do a good job in reaching their verdict, they will consider your demonstrative aids from many perspectives. It is possible that jurors will focus on a piece of information in a manner that conveys the wrong impression for your case. Care must be taken that the graphic evidence is developed and presented in such a way that precludes conveying the wrong information to the jurors.

To effectively use graphic evidence it is important to prepare “road signs” for the jurors so that they

are ready to receive the visual information. You must explain to them what is coming, without explaining it in such detail that they are no longer interested in the “picture” when you present it to them.

Because jurors retain visual evidence longer than oral evidence, it is important to refer back to your graphics as you proceed through the case. The graphics can be used as anchors or milestones for the case that will be easily recalled by the jurors.

While it is standard courtroom procedure to use court boards (blow-ups of diagrams and documents), overheads, and slides, perhaps the most effective visual medium of presentation to jurors is through computer-generated projections. The projection screen can be used to present not only film of accident scenes, but sophisticated computer simulations of the accident. This is particularly important in catastrophic motor vehicle accidents, where jurors may find it difficult to understand the spatial relationships and engineering necessary to defend your case. Computer-generated animations that have clear and dramatic explanations of accidents that can be presented in this fashion. Supported by engineering testimony, animations are acceptable in all courts, and are invaluable in explaining the facts to the jury. Contrary to some opinions, jurors do not see computer animations as emphasizing the size and power of the defendant. Rather, jurors now expect computers in the courtroom. In this day and age, even in the most backwoods of venues, Jurors spend inordinate hours watching television, looking up Grumpy Cat videos, watching all manner of madness on YouTube and yes, surfing for porn, and they are comfortable receiving information from a television screen.

It is okay and maybe even advisable to defend, at least to some extent, damages in a Reptile case. Large damage awards frequently result from catastrophic injury cases. This is partly due to the nature of the injuries, and partly due to negative juror reaction to defendant motor transport companies who are not well received by juries. Several major errors are typically made by the defendants in these types of cases.

One error is the failure to present a strong enough damage defense. A common reason for this is the fear that the jury will react negatively to attacking the damages of a badly injured person. Another fear is that a strong damages defense will validate the fact that there are damages. Regardless of these, the research shows that a strong damages defense should be presented. The failure to present such a defense can result only in the jury believing that the plaintiff’s damage figures are accurate. Jurors determine damages based on “anchor” points. That is, they anchor their deliberations around the figure they have been given. It is important to give them a lower figure so that they now have a high and low anchor point. It is possible to attack an injured plaintiff’s dollar figures in a credible and professional manner. However, care must be taken to be sensitive to the injuries, and to not appear to be attacking the plaintiff, but only the bases for the numbers. Similarly, by attacking the plaintiff’s damage figures, the defense can raise credibility issues about the plaintiff’s case that will also apply to the plaintiff’s claims regarding the facts. That is, the defense’s position should be that they are not liable because plaintiff has the facts wrong, and thus there are no damages, and this is further supported by the fact that the plaintiff has misrepresented the damage figures to the jury as well.

Closing Arguments As the case reaches closing arguments, the defendant should be on guard as the Reptile lawyer flicks

his or her forked tongue that one last time, in closing argument. The defendant should be prepared in advance as the Reptile makes its last move.

Combating the Reptile in closing argument may require motion practice in advance of opening. Every jurisdiction recognizes some version of the golden rule, which disallows any argument asking jurors to put themselves in the shoes of a party. The prohibition is premised on a view that such arguments are designed to destroy juror impartiality and encourage jurors to decide a case based on personal interest and bias. Reptile Theory is often viewed as a “veiled” golden rule argument because it seeks to have jurors decide a case not on the actual damages sustained by the plaintiff but rather on the potential harms and losses that could have occurred within the community, which includes each juror and his or her family members.

In some jurisdictions, a lawyer is barred from urging the jury to “send a message” to the defendant, or to “act as the conscience of the community” in closing argument. Since this is exactly what the Reptile strategy is based on, there may be a basis for exclusion/preclusion of Reptile tactics on this basis, as well.

Consider taking the Reptile Theory head on and call the plaintiff out in it. If efforts to exclude or limit Reptilian trial tactics are unsuccessful, it may be possible to dilute the effectiveness of the Reptile strategy by explaining it to the jury. Humans are not just flight or fight responders as the Reptile Theory suggests - they in fact process information. And, the fear responses that humans experience are not predictable, in part because higher level functions often intervene in fear responses. Some authors have suggested that jurors recoil when disrespected or threatened. In reality, fear can backfire if jurors believe they are being treated like “reptiles” as in a DeKalb County, Georgia, courtroom in 2014. Representing a movie theater and a security company accused of not doing enough to prevent a fatal gang shooting in the theater parking lot, the defense attorney read directly from Keenan and Ball’s book and referred to it during closing arguments. One of the defense PowerPoint slides read:

“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.”

While it is not certain exactly what factors went into the jury’s decision, after two weeks of testimony and three-and-a-half hours of deliberation, the jury found for the defense.

Defense counsel my want to be more subtle in calling Plaintiff out for using Reptile Theory. It may be “appropriate” to compliment the plaintiff’s attorney in closing and praise his or her ability and zeal, using this as an opportunity to explain to the jury the psychology of the Reptile strategy and why they should not get too carried away by it.

Share Information on Reptile Tactics Many defense lawyers are actively monitoring the development of Reptile tactics so we can properly

defend litigation against our clients and fight the effect of these prejudicial tactics. You can help. Send in your Reptile-based motions and briefs to TLA and TIDA. Join committees in your practice area and share information on the Reptile tactics you encounter to help raise awareness and prevent these tactics from spreading their venom in our cases.

Conclusion Catastrophic motor vehicle accidents are obviously difficult cases to defend. Jury psychology

provides insights into how jurors perceive these cases, and how their attitudes and beliefs affect their verdicts. “Reptile Theory” and its psychological techniques are here to stay, and Defendants need to stop bashing the “Reptile” part of the theory, recognize that Reptile is an effective planning strategy and concentrate more about how and why the theory works with jurors and how to defeat it. Defendants should recognize that Plaintiff attorneys who utilize Reptile strategies effectively are often successful at directing jurors’ attention to specific safety rules and concepts that have been broken, and for which the jurors must blame the defendant. It is important to recognize and combat Reptile strategy in discovery (especially Rule 30(b)(6) depositions of company personnel), voir dire and trial starting with opening statements. The Defendant must also consider the impact of witnesses, the use of demonstrative aids and graphic evidence, and the strategy of closing arguments from the perspective of the psychology of jurors in order to provide the most persuasive defense to the Reptile.

RESOURCES

Arthur H. Patterson, Ph.D., The Psychology of Jury Verdicts in Catastrophic Motor Vehicle Accidents Truck Accident Litigation, ABA, Second Edition, 2006.

Ken Broda-Bahm, Ph.D., Taming the Reptile, THE JURY EXPERT, Volume 25, Issue 5 (November, 2013).

Ryan Malphurs, Ph.D., and Bill Kanasky, Jr., Ph.D., Confronting the Plaintiff’s Reptile Revolution: Defusing Reptile tactics with Advanced Witness Training, available at www.courtroom sciences.com (2014)

Teresa M. Beck, Esq., How to Tell If You Are Getting “Reptiled” Prior to Trial, DRI TODAY, September 24, 2013.

Timothy J. Weaver, Esq., Reptilian Litigation, A Guide to the So-Called Plaintiff’s Revolution, WISCONSIN DEFENSE COUNSEL JOURNAL, Winter 2013.

David Marshall, Esq., Lizards and Snakes in The Courtroom, FOR THE DEFENSE, DRI, April, 2013.

VOIR DIRE QUESTIONS INTRODUCTION/PRELIMINARY MATTERS

1. Introduction of myself... (a) Introduce co-counsel (Keri Simms and your local counsel, __________). Tell the jury where they live.

(b) Introduce my clients (______________ Johnson and _________ Trucking Company). Tell the jury where they live (__________, Alabama).

(c) [Explain that] we are going to talk about you, because you really are the most important part of this case. We are going to talk about: (1) your jury/litigation experiences; (2) your relevant life experiences; (3) your attitudes toward certain things that are relevant to this case.

(d) I have learned, from past experience, that jurors were grateful that they were asked about issues and evidence that was going to be introduced because that information allowed them to evaluate, in their own mind, whether they could be fair and objective jurors in this case. I learned that jurors preferred not finding out too late that the case would bring up certain personal or maybe even painful connections that they could not get out of their thoughts.

(e) So with that being said, during this voir dire process, I want you to really talk to me: it’s not just a Q&A; if anyone has a question or a comment, please speak up.

RELATIONSHIP TO PLAINTIFF OR PLAINTIFF’S COUNSEL

2. I don’t think I need to ask this since Mr. Brown is from Georgia, but just to be sure: (a) Are any of you related by blood or marriage to the plaintiff, Mr. __________ Brown, who

lives in __________ Georgia? If so, how are you related to Mr. Brown? (b) Ok, well, do any of you by chance know Mr. Brown? If so, how do you know

Mr. Brown? 3. Do any of you know ____________________, the attorney from the law firm of

_____________________________, in Birmingham, who have been hired to represent the Plaintiff, Mr. Brown? If so, please explain.

4. Do any of you know any employee of the law firm of _________________________? The names

of the lawyers in that firm are: [__________________________________]. If so, please explain.

5. Has either _______________ or any member of the law firm of ____________________, from Birmingham ever represented any of you or someone you know in a legal matter? If so, please explain.

6. The following persons may be called to testify as witnesses in this case: (a) [Go through Plaintiff’s witness List];

(b) [Go through Defendant’s witness list];

(c) [Have Plaintiff's counsel give the actual names of any other persons listed on the Plaintiff's witness list such as the "representative from ______", the "representative of _______", the "representative of _____" as listed on his witness list.

(d) Do any of you know any of those persons? If so, please stand, state your name, and explain.

7. Are any of you now or have any of you ever been a patient of a Dr. __________________ or anyone at a place called ______________________ Care in ______________, Georgia?

8. Are any of you now or have any of you ever been a patient of Dr. James Cruse or anyone at __________________ Care in __________, Georgia?

9. Are any of you now or have any of you ever been a patient of a Dr. ____________ or anyone at a place called ___________Wellness in _____________, Georgia?

10. Are any of you now or have any of you ever been a patient of Dr. ___________________ or anyone at __________________________Wellness in __________, Georgia?

RE: JURY/LITIGATION EXPERIENCE, ETC.

11. Have any of you ever been called to testify in court as a witness? If so, please stand, state your name and explain.

12. How many of you have ever served on a civil jury prior to this time? If so, describe this case and the verdicts reached.

13. Have any of you or a member of your family ever been a Plaintiff in a lawsuit? If so, please explain.

14. This case is about an motor vehicle accident. Have any of you ever filed a lawsuit against another for injuries to you or damage to your vehicle arising out of a motor vehicle accident? If so, please explain.

(a) Even if no lawsuit was filed, have any of you ever submitted a claim against another for injuries to you or for damages to your vehicle arising out of a an accident? Is so, please explain.

15. Have any of you ever filed a lawsuit against another for injuries to you or damage to your automobile arising out of an auto accident? Is so, please explain.

(a) Even if no lawsuit was filed, have any of you ever submitted a claim against another for

injuries to you or for damages to your car arising out of a an auto accident? If so, please explain.

16. Let the jurors know that, unlike a regular conversation, the lawyers will be constrained by the rules of evidence during the trial. Let them know that although they might be curious about certain background information, relationships, or what other people said, the rules of evidence will prohibit us from talking about them during trial. “For example, let's say that one of the witnesses spoke with Bill Smith about the case, and Bill Smith said something interesting and important about the case. In a regular conversation, you'd want to know what Bill Smith said, wouldn't you? But in a courtroom, we can't rely on hearsay evidence to prove a case, because it prevents the other party from cross-examining the person who made the statement. For all we know, Bill Smith could be making the whole thing up. So the rules of evidence say only certain types of evidence are admissible. Both myself and [opposing counsel] may only present evidence that is admissible according to the rules of evidence. In a situation like the telephone call, you'd only hear that the witness spoke with Bill Smith. You wouldn't be able to hear what Bill Smith said.” Then ask the jurors questions about that limitation, and if they would promise not to guess at what Smith would have said, etc.

RE: RELEVANT LIFE EXPERIENCES

17. This case is about an automobile accident. Have you or any member of your family ever been injured in a car accident? If so, please explain.

18. This case concerns a motor vehicle accident which occurred at about 3:45 p.m. on ___day, ___________, 201__, on ___________ right there at the _________ Road Exit. Some of you may remember seeing it on the news. It was the wreck where _____________________ and traffic was backed up for many hours. A young lady was killed. Do any of you know anything at all about that accident? If so, please stand, state your name and explain what you know about that accident.

19. As I just stated, this accident occurred on _______ right there at the __________ Road Exit. How many of you are familiar with that area? How many of you are familiar with how that road, that intersection looks? Can you see that area that in your minds? Is anyone not familiar with that place?

20. Oh, I need to ask you about some other people. There were a couple other people sued by Mr. Brown. They have settled with Mr. Brown and will not be party participants in this trial. They will be called as witnesses, however.

(a) One is Mr. ____________. He used to live here and was employed as a cameraman for TV- ______ here in town. Are any of you related by blood or marriage to _____________? If so, how are you related to Mr. ________________?

(b) Ok, well, do any of you by chance know _______________? If so, how do you know Mr. ______________?

(c) The other is Ms. _______________. She lives in Tallassee and she works for _______________. Are any of you related by blood or marriage to Ms.

______________________? If so, how are you related to Ms. ____________?

(d) Ok, well, do any of you by chance know Ms. ____________? If so, how do you know Ms. ____________?

21. Have any of you or any member of your family ever been injured or, Heaven forbid, killed in an automobile accident? If so, please stand and state the following: (a) your name;

(b) when and where the accident occurred;

(c) the nature of the injuries you received as a result of that accident, and whether you have fully recovered from those injuries; and

(d) whether you made a claim or filed a lawsuit as a result of that accident, and if so, the disposition of that claim or lawsuit. If so, please come forward at this time (or please stand and state your name).

22. How many of you have ever driven a truck, an eighteen wheeler, a Coke truck, a dump truck, a school bus, something like that.

23. How many of you have ever been trained to drive a truck or eighteen wheeler - either in a truck driving school or on the job?

(a) [Go into specifics with positive responses].

(b) How many of you have a Commercial Driver’s Licence (CDL)?

24. You may not have realized this, but the United States economy depends on trucks to deliver nearly 70 percent of all freight transported annually in the U.S. So, that means a lot of people work directly or indirectly in the trucking industry. How many of you have ever worked in a job where you had to deal with or work with a trucking company?

(a) [Go into specifics with positive responses].

25. How many of you have ever worked in a job or field where you had to deal with some law called the Federal Motor Carrier Safety Regulations (FMCSRs)?

(a) [Go into specifics with positive responses].

26. How many of you have ever worked in a job where you had to deal with “Commercial Motor Vehicles” or 18-wheelers, trucks, truck drivers, in any way?

(a) [Go into specifics with positive responses].

27. Have you or have any of your relatives now or in the past worked for:

(a) lawyers;

(b) judges;

(c) police/law enforcement;

(d) a court or in a courthouse. If so, please state that person's name and his or her relation to you. [Go into specifics with positive responses]. 28. Do you or any members of your family or close friends have any legal experience? Does anybody you know work in the legal field?

28. How many of you have ever filed a workers’ compensation claim?

29. As I mentioned, this accident occurred on ________ right there at ______________ Road Exit. Let me explain: ____________ was in lane one from the concrete barrier. __________________ erratically swerved to miss a piece of tire that separated from another vehicle (driven by _______________) and collided with the truck driven by ___________Johnson. After colliding with Johnson, ___________________ lost full control of his vehicle, collided with the concrete barrier, ricocheted back into lane 1, 2 and 3, finally coming to rest after striking the same concrete barrier a 2nd/final time. __________________ was traveling in lane 2 from the concrete barrier. After _______________ collided with him, __________ Johnson lost control, side swiping _______________ Brown’s truck, then continued forward and collided with another car. Johnson finally overturned moving towards lane 1 while spilling the loaded lumber from his attached trailer. Johnson finally came to rest overturned in the median, straddling lanes 1 and 2. _______________ Brown was traveling in lane 3 from the concrete barrier. After Johnson collided with him, Brown then applied his brakes heavily, coming to final rest while straddling lanes 2 and 3 after sliding a distance. [Taken From Police Report]. (a) Well, with that being said, how many of you have been in a situation when you have been driving along ans suddenly, through no fault of your own, a car say, to your left, suddenly comes over into your lane and either hit or almost hit you?

(b) _____________________

(c) Well, do you consider yourself a bad driver because that happened?

30. Have any of you ever been in a situation where you are “mistaken” about something? But I don’t mean just that . . .

(a) I mean you really believe you are right, you really, strongly believe you saw it that way or heard it that way, so much so that you would swear on it . . .

(b) But then you find out for some reason, physical evidence, something, that you were must have been mistaken, that you did hear it or see it the wrong way . . .

(c) How many of you have ever had that happen to you, or how many of you have had to be the one to break the news to the one that is mistaken?

31. How many of you ________________?

(a) __________?

(c) Okay, now, how many of you have been in a situation where you are driving that way and

somebody cuts in front of you and now you’re not x-many car lengths back?

(c) Okay, now, how many of you have been in a situation where you are driving that way and somebody cuts in front of you and now you’re not x-many car lengths back, and then the car in front of you suddenly hits its brakes in front you?

RE: BIAS AGAINST DEFENDANTS

32. Now, __________________ Enterprises is a business, but it is made up of many people just like me and you - just like __________________ Johnson and _________ [corporater representative]. Judge _________ is going to tell you that a business like _____________Enterprises is just like an individual person in the eyes of the law, and he is going to tell you that they are to be treated just like individual people as you decide this case. Now, is there anyone who cannot treat __________________ Enterprises just like it is an individual person, just like it was by themselves when deciding this case?

33. My client, _______________________ Enterprises, is a trucking company. It owns and operates commercial motor vehicles, or trucks. Now, in my experiences as a lawyer I have found out for some reason the American public has a thing, a bad feeling about truck drivers. I will not be surprised - I expect - that the Plaintiff’s lawyers try to exploit that bias during this case. Therefore, I have to ask this very important question - how many of you just don’t like or have any kind of bad or negative feelings about truck drivers or companies that operate 18-wheel trucks (“commercial motor vehicles”)?

(a). Well, let me ask it this way - how many of you feel that because we’re representing a truck driver and a “trucking company” are we starting out a little behind, does Mr. Brown and his lawyer start out with a little bit of an edge? Please know it is perfectly okay if you feel that way, I just need to know it now.

(b). If this trial were a race, would we be starting out a step or two behind Mr. Brown and his lawyer?

34. As I just explained to you, one of my clients, ___________________ Enterprises, owns and operates some trucks. And now you have heard some other stuff from the Plaintiff’s lawyer. So, let me just ask it this way: right now on a scale of 1 to 7, with 1 being very negative and 7 being very positive, how many of you would say that right now you have feelings 1, 2 or 3 for ________________ Enterprises?

35. I expect that at the end of this case Judge ___________ will tell you the law to follow in this case, and I expect that she will tell you that the law is that a truck driver is held to the same degree of care as someone driving a passenger car. There is no special or higher standard of care for truck drivers. Is there anyone who feels that they just can’t apply that same standard of care to both _____________ Johnson and Mr. Brown equally?

36. How many of you have ever been in a situation where you had a “close call” with a truck? (a) Do you think that influenced your thinking about trucks, truck drivers?

37. Do each of you understand that you as a jury must decide this case solely on the evidence presented during the trial and must render a verdict based on the Court's instructions on the applicable law?

38. How many of you had a bad experience with a truck or truck driver? A close call, something that gave you a bad impression trucks and truck drivers. Tell me about it.

39. How many of you had a good experience with a truck or truck driver - help me out here, guys (Laugh, look desperate)? You know, where a tuck driver helped you with a flat tire, gave you a lift, etc. Tell me about it.

40. Would anyone disagree that a truck driver needs to analyze each traffic situation as best he can?

41. Is there any member of the jury venire that feels that sympathy for the Plaintiff may cause you to resolve any benefit of the doubt in favor of the Plaintiff and against my client?

RE: ATTITUDES ON DAMAGES

42. Let me start off by saying that there is nothing wrong withy wanting to award money in the right

cases. In fact, that is what our civil system allows. However, I need to know what your feelings are with regard to damages and compensation. For example, let me start off by asking: who here feels that people who go to court typically don’t get enough compensation? (If you are successful in getting a juror to admit to high damages tendencies, praise thaty juror for his/her honesty. )

43. How many of you believe that a person should receive money in a lawsuit even if no one was at fault in causing those injuries?

44. Let me talk to you about something called proximate cause. It’s an important part of this case.

(a) The proximate cause of an injury is that cause which in the natural and probable sequence of events, and without the intervention of any new or independent cause, produces the injury and without which such injury would not have occurred.

(b) Is there anyone here who does not understand that?

(c) If the evidence shows that the plaintiff's injuries were the proximate result of the subject accident but not the result of any negligence on behalf of the Defendant, do you understand that your verdict in this case must be in favor of the Defendant.

45. Let me talk about sympathy. It’s natural for all of us to have sympathy. However, as Judge _______ will tell you, no part your verdict, no part at all, can be based on any amount sympathy or emotion - you have to judge this case based on facts in evidence and the law that Judge __________ gives you. That is your job here today. (a) Is there any member of the jury venire who feels that sympathy for the Plaintiff, Mr. Brown, may cause you to resolve any benefit of the doubt in favor of the Plaintiff and against _______________________ Johnson and _____________________ Enterprises?

46. Now, this is another of those really important questions:

(a) The Defendants deny they were negligent and the other things Mr. Brown says. In addition, the Defendants say that Mr. Brown's own negligence was at least partially the cause of his harm because we say he was driving in excess of the speed limit and failed to ____________________. This is called contributory negligence, and it is a complete defense to Mr. Brown's claim. That means if you find Mr. Brown even a little at fault in this accident you have to award for the Defendants.

(b) Is there anyone here who does not understand that?

(c) Is there anyone who feels that they just couldn’t apply that law and vote in favor of ___________________ Johnson and award Mr. Brown nothing if it’s shown that Mr. Brown was at least partially at fault in this accident?

47. How many of you feel that you could not look Mr. Brown or his lawyer in the eye if you did not award them substantial amount of money?

ATTITUDES ABOUT LAWSUITS, ETC.

48. Is there any member of the jury venire who has the feeling that just because the Plaintiff, Mr. Brown filed a personal injury lawsuit that she is automatically entitled to a recovery of large sum of money?

49. Is there any member of this jury venire who is dissatisfied with the court system and feels that this is not an appropriate way to solve a dispute? 50. From what you have seen read or heard, how many you think that in recent years:

A. The number of lawsuits is too high?

B. The number of lawsuits is just about right?

C. The number of lawsuits is too low?

51. Will you be able to return a verdict in favor of the Defendants if you find that the Plaintiff has not proved certain facts that the law requires him to prove?

52. Do you understand that this is the way our American Justice System works, that People who sue are not supposed to win just because something bad or even awful has happened to him? OTHER

53. Do each of you understand that you as the jury must decide this case solely on the evidence presented during this trial and must render a verdict based on the court's instructions on the applicable law?

54. Is there any member of the jury venire who is dissatisfied with the court system and feels that it is not an appropriate way to settle disputes?

55. Do any of you have any seeing or hearing problems such that it would be difficult to see exhibits or hear testimony?

56. Do any of you have any physical conditions that you feel would affect your ability to sit as a juror in this case?

57. Is there any member of the jury venire who feels that you should not serve on a jury in this case for any reason?

58. Is there anyone here who has such strong feelings against trucks or truck drivers that they feel that they cannot sit in a jury and fairly judge based on the evidence and law given by Judge ________?

59. Do each of you understand that your responses are important because we want to insure that those who serve on the jury have not been exposed to the case or individuals connected to the case; and we also want to insure that no juror has any past experiences or associations that might make it difficult for that person to sit as a juror in this case?

WINDING UP

60. You have heard the questions that have been asked. Understand that we are not questioning whether any of you will try to be fair. We know you will try. Rather, we are simply seeking to identify life experiences you might have had that wold give you some opinions or biases about aspects of this particular case that might be difficult for you to shake off.

(A) Every lawyer who has ever done what I am doing now worries that he has not asked the right questions of the jurors and has left unknown something he should have discovered. We all fear finishing up this process and leaving one or more jurors thinking, “boy, if those guys had only been smart enough, they would have discovered this fact about me that they should have known.”

(B) What I would like for you folks to do is tell me whether we have left you in that state of mind. Is there something about your background that you know, having been through this process, that we should ask you about or should know about.