“Reverse Reptile:” How Defense Counsel Are Turning the Tables 

Episode Notes

Transcript

Best’s Insurance Law Podcast

Reverse Reptile How Defense Counsel Are Turning the Tables

08/04/2020

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Intro:  This is the Best’s Insurance Law Podcast, brought to you by Best Recommended Insurance Attorneys.

John Czuba: Welcome to Best’s Insurance Law Podcast, the broadcast about timely and important legal issues affecting the insurance industry. I am John Czuba, Managing Editor of Best’s Insurance Professional Resources. We’re pleased to have with us today Dr. Bill Kanasky from expert service provider, Courtroom Sciences in Irving, Texas. Courtroom Science is partners with corporate legal departments and law firms throughout the entire litigation process from the moment a crisis occurs through discovery, trial preparation, jury selection and the trial itself.

What makes CSI unique is the focus on empirical research in scientific methodology in the evaluation of litigation risk and focus groups and mock trials, and in jury selection, all of which provides data and analysis to improve decision making and outcome.

Dr Bill Kanasky is the Senior Vice President of Litigation Psychology for Courtroom Sciences, and a nationally recognized expert, author, and speaker in the areas of advanced witness training and jury psychology, and civil litigation. He consults on more than 200 cases annually in the areas of defendant witness training, jury decision making process, and jury selection strategy. He earned his Ph.D in clinical and health psychology from the University of Florida. And Dr. Kanasky, thank you very much for joining us today.

Dr. Bill Kanasky:  Happy to be here.

John Czuba:  Today’s discussion is the reverse reptile and turning the tables on plaintiff’s counsel. And Dr. Kanasky, for our first question, can you tell our audience what is the reptile theory and how has it evolved since 2009?

Dr. Bill Kanasky:  The reptile theory has been here for over 10 years now, and really what it is basically, its foundation is the establishment of safety rules, what they call safety rules,

and then to show that a defendant violated those safety rules which the conclusion is, it puts the public and the community at large, at risk, puts them in danger. And so, what the plaintiff’s bar has nicely done is be able to develop those themes in their cases, has a very high appeal to a jury when you bring up things like community safety. And many defendants are really helpless against it without the right preparation.

So, about 11 years later, we’re still battling the reptile, and I guess the good news is that we’ve been defeating the reptile quite a bit, but what it’s really taken is a lot of preparation and work and effort on the front end of cases by the defense, because if that doesn’t happen, it’s really — the defense really has no chance against the reptile unless they start throwing punches very early in the fight.

John Czuba:  Dr. Kanasky, can you explain how reptile tactics lead to nuclear verdicts and settlements?

Dr. Bill Kanasky:  Yeah. Reptile tactics are one of the main causes of nuclear verdicts and settlements, and it’s probably more on the settlement side of it, because if you think about it, I mean 98% of cases settle, they never reach a courtroom. But what happens with the nuclear verdicts is that the plaintiff’s attorney who has essentially reptiled all the defense witnesses can now come in and give an opening statement essentially saying, “Listen, this company had safety rules that they are required to follow.” Their own witnesses, including their corporate representative have admitted not following the safety rules, and we have this very bad outcome, which is typically a death or a catastrophic injury, and that’s what gets jurors upset.

So, highly effective in the courtroom putting a lot of the focus on corporate conduct or lack thereof. I actually think the bigger problem is the nuclear settlement meaning you go through discovery. These tactics are highly effective with defense witnesses. So, the way the plaintiff attorney asks the questions regarding safety rules and placing the community at unnecessary risk, or needlessly endangering the community when the unprepared and untrained witness starts to agree with all of those questions, then they’re juxtaposed next to the case facts which pretty much contradict the roles they’ve just agreed to.

And so, what happens is defense goes into a mediation or a settlement negotiation, the plaintiff attorney has five or six or seven videos, deposition videos of key defense witnesses essentially being trapped and falling for all the reptile tactics, and the defense loses all of its leverage and negotiating power.

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And so, the only way to get rid of that case is essentially writing a check to the plaintiff’s attorney, a check that’s much bigger than the actual value of the case. And I think that’s happening a lot unfortunately, and again, it’s really the lack of preparation and the lack of aggressiveness by the defense and discovery that’s leading to these nuclear problems.

John Czuba:  Dr. Kanasky, can you explain what is the concept of the reverse reptile?

Dr. Bill Kanasky:  So, what we did — this is actually a funny story, and most stories start with “I was sitting at a bar”. So, I’m sitting at a bar with a defense attorney and he had come in very late on a case. He had parachuted on the case and he was very, very worried because his own defendant who was a truck driver had admitted liability, full liability in his deposition, which he did not defend because he wasn’t even involved in the case. And so, we’re at a bar talking, having some martinis, and he’s like, “I don’t know what to do. I don’t know what to do. I’m in big, big trouble.” And I said, “Well, who’s left to be deposed.” And he’s like, “Well, my co-defendant’s expert and they had been blaming us the whole time, our co-defendant.”

So, I said, “Well, let’s reptile our co-defendant. They’ve already blamed us for this accident which turned out to be a double amputation below the knee, which is a really catastrophic event.” And so, what we did was we designed a deposition script from the reptile theory to essentially turn the tables and actually reptile somebody else, and the witness fell — this hook, line, and sinker fell for all of our traps, and then when the case went to trial, rather than get 100% liability against us, we only got 40%. And our co-defendant got 50% and the plaintiff actually got 10%.

So, what we were able to do was to literally take the reptile attack and use it offensively. And this could happen if you have — you can use it in some situations where you have maybe a plaintiff who you would like to reptile because they were perhaps non-adherent to medical advice, or you have a plaintiff that maybe did not read instructions of a product or follow a product’s warning label, or maybe an empty chair defendant that you’re going after. But the fact of the matter is, the tactics work and there are often times where the defense can actually use the reptile to their advantage.

John Czuba:  What are the types of cases or circumstances in which defense counsel might deploy the reverse reptile?

Dr. Bill Kanasky:  I think the times that we’ve used it really effectively are when there’s culpability elsewhere besides the defendant. And so, again, you know, if you have a plaintiff

and again, depending on the case because this is not going to work in all cases and you can really tick off a jury. But you can go after a plaintiff, saying that they violated their own safety rules and put themselves in this position or again, if it’s a co-defendant that you adverse to, it could be a product liability case, could be a construction case, could be a trucking case. But any case where there’s culpability amongst multiple parties, and the blame game is going on, that would be the time to use this.

Now, if you have a case that’s maybe a birth entry case and you have a mom and a child, that’s probably not the type of case you’re going to want to do this in. But there’s several other areas that you can use it and very effectively.

John Czuba:  And how can insurance companies be best prepared for reptile attacks and litigation?

Dr. Bill Kanasky:  Well, what the insurance industries got to get through their head is that you have to fight aggression with aggression. And the nature of the reptile tactics, it’s very aggressive and very early in the case. And the insurance defense industry is notoriously known for being cheap and for being reactive instead of proactive. So, the number one way which corporate clients and insurance companies can defeat the reptile is to attack early and that means very aggressive preparation and training of witnesses for deposition, very aggressive questioning of plaintiff’s experts, and always essentially throwing the first punch. And that’s just something that’s very foreign to the insurance defense industry. As you know, insurance defense, the philosophy for decades has been you know, save money, save money, save money, and then if the case doesn’t sell, “Uh-oh, we’re going to trial now, it’s time to spend money.”

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Well, that’s exactly what the reptile folks have figured out and they’re taking full advantage of it and exploiting the insurance defense system. And they’re betting the farm that the defense will never be as aggressive as they will, therefore, they maintain most of the leverage in the case and that’s how you end up with your nuclear

Settlement and nuclear verdict.

How we defeat the reptile is very, very aggressive early intervention, then you have defense depositions that are highly effective, it really sucks the life out of the case, sucks the value out of the case. And then, essentially turns all the leverage back to the defense. Now, the problem with that, it’s going to cost money and it’s going to take time, and that’s really where the defense — the insurance defense industry and corporate defendants need to really look in the mirror, and you know, do you want to save a little bit of money up front but expose yourself to a multi-million dollar settlement or verdict? Or, do you want to spend a little bit and be more aggressive up front to protect yourselves, that’s really what the defense has to start doing, being much more aggressive, investing effort and time into

attacking early and not just waiting to get beat up by these reptile folks.

John Czuba:  Dr. Kanasky, thank you so much for joining us today.

Dr. Bill Kanasky:  My pleasure.

John Czuba:  You’ve just listened to Dr. Bill Kanasky from Courtroom Sciences in Irving, Texas. And special thanks to today’s producer, Frank Vowinkel. And thank you all for joining us for Best’s Insurance Law Podcast. To subscribe to this audio program, go to our web page, www.ambest.com/claimsresource. If you have any suggestions for your future topic regarding an insurance law case or issue, please email us at [email protected]. I’m John Czuba, and now this message.

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