Dr. Ken Broda-Bahm writes a blog Your Trial Message which is directed to the defense bar. However, his insights are often accurate and helpful to understand. His focus recently has been on the concept of using the “Reptile” approach by plaintiff lawyers. In his April 9^th post recently, he wrote:

“The Reptile approach to courtroom persuasion aims to sell plaintiffs’ cases by invoking absolute duties for protection wrapped around a fear appeal that resonates with the jurors. Even with the Reptile’s ‘reboot’ version, the ‘Edge’ training appears to continue this emphasis. In a second part of an article in the CLM publication (“Avoiding the Tentacles of Danger – The reptile evolves, part II: decoding plaintiffs’ attorneys’ tactics“), Courtroom Sciences consultants Steve Wood and Bill Kanasky  take a look at what remains consistent in the plaintiffs’ litigation approach. The authors make the good point that, through their policies and training, many employers have emphasized a totalizing safety culture (“safety is job #1,” “safety is everyone’s responsibility” etc.) that creates a powerful  mental framework — something we call a ‘schema’ — that can induce witnesses to simply agree to many of the Reptile’s extreme safety questions”

Dr. Broda-Bahm goes on to suggest ways a witness can be taught to avoid agreeing with absolutes in questions posed by the plaintiff lawyer about safety duties. He gives three examples he recommends for a witness to respond when asked about safety duties of care. :

“1. Aspirations – Yes; Absolutes – No: The workplace safety schema, the express or implied mottos that put “safety first,” might be phrased in absolute language, but in reality, they are targeted toward our aspirations. The fact is that we can hold to a principle of “no accidents” while at the same time understanding that there is a historical pattern that at least some accidents will happen. As a goal, we aspire to zero, but understand that the reality is most likely going to be greater than that.

Question: Without complete charting, the patient is in danger, correct?

Poor answer: Yes, that is true.

Better answer: We aim to include as much of the relevant information in the charting as is practical, and we do that because it benefits patient care.”

Another example he offers was this:

“2. Process – Yes; Results – No. Ultimately, safety comes down to behavior more than outcome. There are steps, checklists, policies, and other procedures we can follow, and to the best of our abilities, we follow those because doing so has the best chance of promoting safer outcomes. But it cannot be the outcomes that we guarantee. We can commit to the process, but still can’t necessarily guarantee the results.

Question: A safe driver would not have been involved in a collision like this, right?

Poor answer: Right.

Better answer: A safe driver could be careful, and could follow the law and the policies, but still be involved in a collision like this.

A third example he offered was this:

“3. Factors Within Our Control – Yes; Factors Outside – No In all circumstances, there is a zone of control. Factors inside that zone are what we can influence and direct, to at least some extent. Within our zone of responsibility, we take reasonable responsibility. But there are also factors outside that zone: There are things we do not and cannot control. The positive emphasis is that we control what we can control, but the reality is that we cannot take responsibility  for what we cannot control.

Question: Your company is committed to the safe use of this product, correct?

Poor answer: Absolutely.

Better answer: The committee is committed to safe design, safe manufacture, and clear communications on safe usage, but ultimately we cannot control the product once it is in the consumer’s hands.

I would argue that a witness denying or evading an honest response to a fact the majority of the jurors believe is a gift to the cross examiner. Worse, evading the obvious answer dramatizes the dishonesty of the witness and their bias. Since a trial is bottomed on who and what is trustworthy, indications of dishonesty and evasion of the truth are significantly harmful to the side employing them in a trial. The examples of questions used by Dr. Ken Broda-Bahm to illustrate his points are not specific and precise examples of “Reptile” questions that leave no room for evasion. Even so, his recommended answers open the door to damaging cross examination.

Let’s examine the first example where the question was: “Without complete charting, the patient is in danger, correct?” The recommended answer was: We aim to include as much of the relevant information in the charting as is practical, and we do that because it benefits patient care.” There are a variety of ways to respond to that answer, including methods of requiring a direct response. One basic response might be:

Q. While you might aim to include relevant information, when you fail to include it, the patient is put in danger, isn’t that true?

Q. That’s why you are obligated to include relevant information to avoid putting the patient in danger,  true?

The second example involved this question: “A safe driver would not have been involved in a collision like this, right? The recommended answer was: A safe driver could be careful, and could follow the law and the policies, but still be involved in a collision like this.” To start with, this is a poorly worded question because it is not precise. However, the possible responses are these:

Q.  But you will agree that a  person who is driving safely will not be the cause of a collision like this?

Q. When we drive safely, we are not going to be responsible for a collision?

The third example involved this question: “Your company is committed to the safe use of this product, correct? The recommended answer was: “The committee is committed to safe design, safe manufacture, and clear communications on safe usage, but ultimately we cannot control the product once it is in the consumer’s hands. To begin with the answer is nonresponsive. Possible responses include:

Q. Let’s be clear. You do agree your company is committed to the safe use of this product, correct?

Q.  Safe use of this product is something your company is committed to, isn’t that true?

The question  should be framed in such a way that makes the answer is so obvious that any attempt to evade or deny it demonstrates a lack of credibility. When the jury knows what the answer ought to be, but the witness refuses to respond honestly, the witnesses loses their credibility.