Defeat the Reptile by Not Being Defensive | Jones, Skelton & Hochuli, P.L.C.


Cross-examination is form of like fencing. Simply as a fencer learns to be en garde to parry thrusts of an opponent’s foil, almost any witness can study to defeat “reptile” cross-examination. “Reptile” denotes an insincere, even dishonest, set of questions that plaintiffs attorneys use in opposition to unwary defendants. I don’t use the phrases “insincere” and “dishonest” evenly, and I don’t imply to impugn anybody’s character, however reptile questions are basically dishonest and as soon as individuals understand simply how dishonest they’re, they see the lure. With coaching, anyone can study to be en garde in opposition to reptile ways.

Reptile questions are supposedly about security. Reptile ways are speculated to work on juries by triggering supposedly primitive, thus reptilian, instincts in jurors to guard themselves and their communities from the form of hurt a defendant is alleged to have prompted. Perhaps they work that manner on juries, and perhaps they don’t.

Reptile ways undoubtedly work on defendants although. They work on defendants by making them take into consideration their very own moral sense. That’s the reason I stated reptile questions are “supposedly” about security. They don’t seem to be actually. Security may be what plaintiff counsel desires the jury to be enthusiastic about, however it’s not what the questions are about. The questions are concerning the defendant’s advantage. No matter reactions reptile questions set off in a jury, what they set off in defendants is the need to face up for their very own advantage.

That’s the reason reptile ways work so nicely on defendants. Whereas most individuals are glad to defend their very own advantage, defendants accused of a tort are sometimes dying to do it and have been doing it with family and friends ever for the reason that lawsuit was filed. Defendants, merely by advantage of being defendants, are mentally positioned to defend what they did and why they did it, and to insist that no matter they did, they had been being good and respectable individuals on the time. So, when a plaintiff lawyer asks for his or her private positions on issues of security, most defendants are desirous to testify that they’re completely in favor of security and market it of their day by day lives.

In fact, the entire thing is a lure. The concept is to have a defendant create a private security normal that no one can ever attain. As soon as that’s completed, it’s merely a matter of parading the defendant’s personal testimony about security in entrance of the jury and displaying the jury how egregiously the defendant fell in need of his personal normal. Sadly, any defendant is a subject skilled as regards to his personal advantage, so as soon as a defendant testifies about his lack of advantage, no different witness’s testimony can do a lot to counteract it.

In my expertise, it has by no means labored to attempt to cease purchasers from defending themselves on the stand. For one factor, typically they didn’t do what they’re accused of doing and the reality should be advised. However for an additional, it by no means appears to get very far making an attempt to get defendants to not be defensive. They only are.

What does appear to work is to coach purchasers to identify the dishonesty hidden within the typical line of reptile questions. Taking that method has yielded a fairly constant file of success in depositions for all kinds of tort circumstances.

First, I put my purchasers via a pattern run of reptile questions. I exploit the identical collection of questions, with minor variations, it doesn’t matter what the case is definitely about. I exploit the identical questions for 2 fundamental causes. One is that, at the very least in my expertise, plaintiffs’ attorneys use just about the identical questions it doesn’t matter what the case is about, so why change it up. The opposite purpose is that, as a result of throughout reptile questioning what’s on trial is the defendant’s advantage, the actual information don’t make numerous distinction so the questions could be a lot the identical.

My first query is at all times, “As a [the client’s role or job] you don’t need anybody to get damage due to your [related activity], do you?” Each blanks get crammed in with regardless of the shopper was supposedly doing, or accountable to be doing, on the time of the alleged tort. Numerous instances the exercise is one thing with an apparent connection to an alleged damage, like “driving,” or “mopping,” or “eradicating a kidney,” however the query works for much less apparent actions too, although often some creative license is required.

This primary query at all times will get the wanted reply, which is “No, I don’t need anybody to get damage.” Getting the suitable reply is one purpose to ask this query first. Most purchasers, understanding they’re in coaching, are already in search of a catch, and my methodology solely works when you get the shopper rolling in the suitable course. This query by no means fails as a result of there is just one proper reply and everybody is aware of it. Plus, I’ve seen plaintiffs’ counsel do the identical factor, and it labored for them too.

Additionally, ask this query first as a result of it (benevolently) tips the shopper into pondering that attorneys are dummies in spite of everything and all of the questions can be this straightforward. That’s essential. Reptile questions work as a result of they appear absurdly straightforward to reply – a false impression that correct witness preparation will dispel, a process I discover simpler to perform if I lull the shopper into complacency myself.

Most significantly, ask this query first since you get your purchasers enthusiastic about their advantage. That’s what plaintiff counsel desires to occur and, for correct preparation and coaching, protection counsel wants to perform the identical factor.

After the primary query, I transfer to the principle physique of reptile questions. These are questions I’ve heard plaintiffs’ attorneys use in depositions myself, for essentially the most half: “Would you agree that it’s best to do every part you may to attenuate the danger of anybody getting damage due to your [the activity used in the first question]?” “Isn’t one among a [client role]’s biggest duties to guard security of [some suitable class of people, e.g., other drivers, co-workers, customers]?” “You’ll agree {that a} [client’s role] ought to make the protection of [that suitable class of people] the primary precedence, proper?” “Security is at all times the highest precedence, isn’t it?” “If security is the highest precedence, different concerns have to provide approach to security, proper?” “You agree it’s best to do every part attainable to advertise security?” “You at the very least agree that you’d by no means compromise security over budgetary issues?”

These questions is probably not excellent and you might have higher ones, however they’re fairly good. I’ve by no means had a shopper get via all of those questions with out agreeing to one thing. When a shopper hesitates, I do what I see plaintiff counsel doing to coax the wanted solutions, for instance re-phrasing a query to start with the phrases, “However you’ll at the very least agree,” and so on. It’s wonderful what you will get out of somebody when you current the query as a compromise place, whether or not or not it truly is a compromise. Once more, plaintiffs’ attorneys do it on a regular basis.

After getting all of the yeses I can, I inform purchasers they simply stepped right into a lure, and clarify what the lure is: that by answering within the affirmative, they painted themselves right into a nook so tight that it doesn’t matter what they did, they tousled. I then stroll them via the numerous astonishing issues that they simply agreed to, asking them to assume what it means to conform to do “every part attainable,” or to do something “at all times.” In the event that they agreed by no means to compromise security over budgetary issues, I’m prepared with examples of security units or practices that would cut back danger of damage however at stupendous prices. Vehicles that may go into area, private bodyguards, and armor for everyone are favourite examples. The examples are absurd, however absurdity is the purpose.

By this time, purchasers acknowledge {that a} trick has been performed. Clearly, you do not need to come back off such as you had been being imply, however I’ve by no means had a shopper take it that manner if I clarify that these trick questions are ones that I’ve truly seen used in opposition to my purchasers. That manner, I’m not dreaming up a bunch of devious questions, I’m letting them in on their opponent’s secret weapons. Typically, they see with out being advised that the trick questions have so much in frequent however I deal with two issues: the questions ask them to rank security, and the questions demand absolutes – the “at all times” and “every part” parts. Often, they’ve already figured that out for themselves.

However that is solely half the battle. Even purchasers who understand that one thing went mistaken don’t but perceive why one thing went mistaken, which implies they are going to probably miss the lure if the questions get worded otherwise. Equally importantly, at this level most purchasers usually are not but prepared to provide completely different solutions as a result of they nonetheless wish to stick up for their very own advantage and they don’t see something dishonest within the questions themselves. That comes within the second a part of the coaching, the place I am going to a second set of questions one thing like this. I begin off, “You drove to our assembly at present?” Normally they did but when not then I fall again to another current driving they’ve completed, no matter it might have been. Then, I ask, “I’m guessing you by no means exceeded a velocity of fifteen miles per hour?” They did, in fact, so I proceed, “Is that as a result of you’re a egocentric one that doesn’t care about anybody’s security, both yours or that of others?” Shoppers normally snigger, and typically usually are not positive whether or not to be offended.

I am going on, “However you’re conscious that ‘velocity kills,’ because the saying goes?” They’re conscious. I elaborate, “In reality, everybody is aware of that, proper? Interstate 10 between Phoenix and Tucson now has a velocity restrict of seventy miles per hour a lot of the best way and frequently we now have critical accidents on Interstate 10, accidents we may get rid of if we lowered the velocity restrict on the interstate to fifteen miles per hour, however we don’t do this, can we? Why don’t we do this?” The reply I give, if the shopper has not already stated it, is that we don’t decrease the velocity restrict on the interstate as a result of we wish to get to Tucson in two hours, not two days. After which I give the punchline, which in fact you’ve gotten seen coming: “So that you see, we don’t at all times put security first. We don’t make all concerns give approach to security at all times. We, as a group, stability security alongside different priorities, resembling profitability and even mere comfort.

To date, no shopper has did not see the sense of that. To drive the purpose dwelling, I modify the main focus to native driving, mentioning that frequently we see collisions with individuals getting damage that we may virtually get rid of if we lowered the velocity restrict in every single place to fifteen miles per hour. I ask why we don’t do this, which ends up in the one location the place we do: college crossing zones, an important alternative to point out how circumstances can change the stability between security and different priorities. The commonplace transition from a “regular” velocity restrict to a short interval at fifteen miles per hour, then again to “regular” is one thing all of us have seen, and helps purchasers understand that circumstances decide – and alter – how we prioritize security.

All this brings purchasers to the place I wished them to be: enthusiastic about security as one thing in stability with – even in pressure with – different issues and recognizing that to be the suitable manner to consider security. I’ve by no means had a shopper not get it after working via the site visitors examples. Even the occasional shopper who frankly admits to dashing, and thinks he has defeated the instance, is introduced up brief if I ask, “Do you velocity at school zones?” To date, no one has admitted to dashing at school zones. To date, everyone ultimately sees that, nonetheless they answered the trick “reptile” questions, in actuality they really follow security in pressure with different components as dictated by circumstances on the time.

I’ve by no means had a shopper who was not in a position, after getting via the velocity restrict interview, to mirror again on the reptile questions and comprehend the dishonesty of these questions. All of them see the insincerity of questions asking them to rank security within the summary. They see how the trick labored by setting them as much as brag about how virtuous they’re and make them really feel responsible in the event that they gave another reply. They see the lure and so they see how the lure works. Generally they get indignant on the duplicity of the questions. It’s a satisfying second.

Most purchasers then wish to know what to do with reptile questions. For my part, the much less purchasers say the higher as a result of, no matter reptile questions set off in jurors’ brains, in defendants’ brains they set off the need to defend their advantage. Thus, longer solutions inevitably wander into clarification, and clarification feeds the beast. Plaintiff counsel will ask the witness to clarify much more, or to provide examples, and can preserve teasing issues out in search of one thing to take advantage of. All of the whereas, the witness sounds, and is, increasingly defensive.

To keep away from that mess, I as a substitute drill purchasers on two inventory solutions designed to keep away from taking the bait. First, in response to any query that seeks to rank security or create some form of “at all times,” “every part” absolute, I train purchasers to reply, “Security is a part of every part I do.” And in response to follow-up questions making an attempt to articulate how security is a part of every part, to reply, “It is determined by the circumstances.” Every other follow-ups can usually be met by reverting again to a type of two solutions. These solutions keep away from rating security, which is what plaintiff counsel is desperately making an attempt to make him do. It may be extremely satisfying to observe a plaintiff lawyer slog via his total listing of reptile questions solely to be met, time and again, with “Security is a part of every part I do.” It’s like watching breakers hit the rocks. Nicely-trained defendants discover themselves having fun with the second as nicely, as they understand they’re truly in management. Plaintiff counsel will flail, making an attempt to consider methods to coax out an admission that ranks security primary, or agrees that security is “paramount,” no matter meaning. In case your shopper is nicely ready you may sit again, object to type, and wait till, exhausted, plaintiff counsel eventually strikes on.

Reptile questions appear to be they’re about security, however to defendants, they’re about whether or not they’re good and respectable individuals. That’s the reason they are often so efficient. To organize purchasers, first assist them acknowledge that reptile ways are a dishonest try and make them really feel like horrible individuals in the event that they resist rating security as their prime precedence. Expose that dishonesty by demonstrating that in actual life we take into consideration security in pressure with every part else, not as an absolute that no one can ever attain. Lastly, present purchasers with a extra trustworthy and ethically satisfying approach to get up for themselves with out making a false normal for their very own conduct.

Initially revealed within the Arizona Affiliation Of Protection Counsel’s Widespread Protection – Fall 2021 difficulty. Reprinted with permission.


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