·Beginning in 1952, neuroscientist Paul D. MacLean began developing the thesis that humans have a “triune” brain, a part of which consists of a “reptilian complex” that controls the instinctive behaviors involved in survival and reproduction of the species. David Ball and Don Keenan adapted it in their 2009 book Reptile, arguing that plaintiffs’ attorneys should appeal to the reptilian part of the brains of jurors. They suggest that, to be effective, the question has to do six things:
• Prevent danger (either a direct or general risk)
• Cover a variety of situations (not just the case at issue)
• Be in clear English (not legalese or other specialized jargon)
• Focus explicitly on “must” and “must not” (an absolute rule)
• Be practical and easy to follow (it should sound like common sense)
• And the defendant should agree (or look silly denying it)

That approach, they argued, should consist of appealing to jurors’ instinct to protect themselves, their families, and their community from the dangerous wrongdoing of defendants. Since the publication the defense bar has concentrated on how to prevent and object to use of this approach. They have focused primarily on prohibiting any the use of the word “rules” since that is the book’s recommended approach.. Here is an example of the use of “rules” in a recommended “Reptile” approach for opening statement:

PLAINTIFF OPENING STATEMENT OUTLINE

“Good morning”. (That’s all you say and move on)

1. IDENTIFY THE PRIMARY RULES (No more then three rules)

· A driver is required to watch the road and see what is to be seen. If the driver does not, even for an instant, and someone is hurt, the driver is responsible for the harm

· A manufacturer is never allowed to needlessly endanger the public. If they do and someone is hurt, they are responsible for the harm.

2. THE STORY

· Now let me tell you the story (use the word “story”)of what happened here. Let me take you back to November 14, 2009 (The last time you will use a date)

· Start with defendant. The case is not about your client. It is about what the defendant did. Leave your client out of the story until the story is about him being hurt. Jurors believe they are there to decide who did something wrong. The less you involve your client the less they will blame him. Don’t even use your client’s name “Dr. Harvey sees a patient.” An effective opening statement leaves the jury with nothing on their mind except what the defendant did.

· No advocacy. You are a video camera recording what was done and what was said. You are not a commentator at this point. Let the events speak for themselves and the jury draw their own conclusions from them. At this stage: Only what defendant did. No acts of omission (advocacy) Omit anything about what defendant thought or did. Omit any motive for doing it. Video cameras don’t record what people thought nor do they accuse or analyze or infer.

· Do not give them too much information. No useless medical terms. Cut to the chase. Less is more in making an openings statement.

· Keep it very simple in pure chronological sequence. Do not jump around

· Keep track of the time sequence with it at the start of the sentence. “On June 17th the doctor etc. Make it a habit to put the time at the start of the sentence. Do not give dates for the events that follow. Instead give time periods “six days later..”

· Present tense only.

· Simple short sentences. One fact per sentence

· Use the defendant’s name at the start of the sentence

· Use sensory input:

The driver gets out of the white truck
He hears sirens coming
He smells rubber burning
His eyes are burning

· Every sentence must be about what the defendant did that moves the story forward in time. Events only about what defendant did. Jurors remember events and acts and not detail information.

3. WHO WE ARE SUING AND WHY (The safety rules defendant violated)

· We are suing the John Edwards for three reasons.

(1) What the rule is and how it was violated

· How you know the rule was violated
· What is dangerous in general about violating that rule

(2) Who says the rule was a rule

· How experts will explain how the rule works

(3) How the rule protects people

· Explain how dangerous it is to violate that rule

(4) How did the defendant’s violation cause the harm?

· Explain what defendant did to violate the rule
· Explain how violating it caused the harm
· Explain how the experts know this

(5) What defendant should have done instead of violating the rule

· How defendant could have easily avoided the wrong. Make jurors feel they could have easily done the right thing.

(6) How doing that would have avoided the problem

Note: Now repeat same procedure for next rule

4. HOW DID DEFENDANT’S VIOLATION OF THE RULE CAUSE THE HARM

(1) Explain exactly how defendant violated the rule

(2) Explain again how you know this is what defendant did

(3) Explain how violating the rule caused the harm

· We asked Dr. Smith to look at what happened. He’ll explain etc.

(4) What should defendant have done instead of violating the rule?

(a) Specific the act that would have obeyed the rule
(b) Explain how your experts know this

(5) How would that have made a difference (only if the answer isn’t obvious common sense)

Note: Now repeat same procedure for next rule & then here’s the final reason we are suing

· Don’t say someone “failed to follow” Say the “violated” or “chose to violate”

· Never call your expert’s conclusion “an opinion.” It’s a conclusion and be brief but be complete. Not “Dr. Brown will tell you…” but “Dr. Brown will show you diagrams” etc.

5. UNDERMINE DEFENSES (What is wrong with the defenses)

(1) Before deciding to come to trial, several things had to be determined. One of the things we had to determine was whether…..

(2) Explain the issue & why it’s important to the case For example, was there ice on the road? Etc.

(3) Explain what you did to determine the truth

(4) Explain what the result of your investigation means That’s how it was determined there was no ice, so we should come to court.

· Not causation but negligence

· Do not do this before you do the previous steps

· Do not say “you will hear the defense say…” Instead, you took the initiative before deciding to take the case to trial

6. COVER CAUSATION & DAMAGES (The previous delivery was about 75% of the opening)

(1) Explain why you are talking about harms and loses

Your verdict form will ask how much money you will allow in the verdict. To figure it out you can take into account only one thing: the harms and losses. Nothing else. Not sympathy.. So I need to show you those harms and losses and how severe they were. I am not doing that for your sympathy. You can feel it, but you cannot let it affect your verdict.

(2) Explain step by step how the negligence damaged – mechanism of harm

· Clinical, step by step. Not a medical course
· Simple line drawings
· domino effect as it happened

(3) Show how the damages impacted their life

· Put jurors in client’s shoes
· Be personal and specific

(4) Undermine defenses to injuries and damages

· Before coming to trial it had to be determined that… To find out… And here’s why that’s true….

· Support your conclusions – explain why they are correct
· Explain why the defenses violate a careful step by step approach

(a) Rule is you have to gather all available information
(b) Why this is a rule
(c) Who says it is a rule
(d) How violating this rule violates clinical and medical analysis
(e) How violating the rule results in incorrect conclusions
(f) How violating the rule in this case resulted in correct conclusions

(5) Detail the necessary fixes and helps. What your client has gone through and will go through

· All past and future care
· Make the life care plan a minimum life care plan
· What happens when the money runs out?
· Always understate
· Who gets the money: doctors etc

(6) Show what can and cannot be helped or fixed

(a) Show before vs after

I’m going to tell you what Bob was like before any of this happened….

· Based this argument on jury instruction
· Cover each item one by one & explain

7 WHAT CAN THE JURY DO ABOUT IT?

Everything I will show you in trial is for you to see what caused John’s harms and losses and how much money it will take to fix, help and make up for them. By the end of the case you will see why the evidence in this case makes this the kind of case where I will have to come back later and recommend an amount that seems really high right now, but which you’ll later understand is the proper amount for this kind of case

· The answer to the debate of whether to give a dollar amount is “yes.” Jurors want guidance. Do it before they hear your case. Anchor it in their mind…..

That amount is $_____________

8. AND SIT DOWN WITHOUT ANOTHER WORD

The problem is what do you do if the defense objects to the term “rules” for a variety of reasons and the judge agree, baring the use of “rules?” A basic response to the judge might be:

“”Your Honor, we are not attempting to argue the law in our opening statement. We are simply explaining the relevant industry standards and regulations that will be presented as evidence to show how the defendant’s actions fell below the required level of care. We will be presenting specific testimony from qualified witnesses to demonstrate how the defendant’s conduct violated these rules.”

If the use of “rules” is excluded by the judge I suggest you should approach this from the wisdom of Shakespeare: “ “That which we call a rose, by any other name would smell as sweet” – what you label something is important as you know. The title or language used to describe something can influence the way people think about it leading to positive or negative associations. For example “undocumented Immigrant” vs. “Illegal alien.” In this case the label “rule” can cause judges to object as improper instructing on the law. consider a change of framing of how you label the legal principles. Rather than “rules” one might refer to them as “legal principles” or “established legal principle of…” or “legal guidelines” or “legal standards” or “relevant standards of care” that your experts “will support and explain as legal requirements of safe conduct.”

In addition, the defense bar has been told to coach their witnesses not to agree to even the most basic truths of safety care and instead give non-responsive replies. For example if the question was:“You would agree with me, wouldn’t you doctor, that a physician should never needlessly endanger his patient, right?”  It has been recommended the answer should be something like this:

“I agree that minimizing patient risk is important, and that is balanced against the goals of achieving effective treatment and good outcomes. The way I strike that balance is going to be different based on each patient and each condition.”

This kind of evasive answer should be met with a change in the wording of the question by the adjective used and the simplicity of the question. The objections to the use of the word “rules” can be met by simply re framing to another word or phrase with the same meaning. The approach is generally valid and by re-framing can still be used even if the term “rules” is not allowed.