Reptile and Deposition Strategies

Reverse the Reptile™.  The right to a fair trial is the fundamental cornerstone to the American Legal System and it is under attack. America is the only country that constitutionally guarantees a jury trial by the people for civil disputes. If this extraordinary experiment is to stand the test of time, we need to ensure trial tactics do not deprive all parties the right to a fair and impartial trial. Unfortunately, nuclear verdicts are on the rise. The plaintiff’s bar continues to employ a strategy known as the reptile approach to inflaming jurors. The idea is that jurors are more likely to award substantial damages to plaintiffs if they are emotionally charged in a way that puts them in the shoes of the plaintiff or makes them believe that they have to punish and protect themselves and their community with their verdict. This is the “reptilian, primal instinct.” Legislatures and courts have not done enough to contain or curtail these tactics. The result is devastating to our system of justice. Television advertising in the U.S. is estimated to have exceeded $1.2 billion dollars. Plaintiff lawyers continue to condition prospective jurors with award amounts and a proclivity to file civil lawsuits.

The reptile phenomenon has become even more concerning as it continues to manifest itself in larger settlements and verdicts. Absent legislation to curb this abuse, which seems unlikely, the solution is a complete overhaul on how businesses and insurers should identify reptile exposure and mitigate the risk. Our goal is to establish a recommended best practices industry-wide approach to counteracting the impact of reptile attacks and waging an effective counter-offensive in the pursuit of a fair and impartial trial and maintaining the integrity of our legal system. Many reptile discussion panels and seminars have only superficially addressed reptile responses at the deposition level. Nobody has addressed the primary need to change the way we operate as a business – by deploying an effective counter-offensive.

Our Reptile Practice Group is dedicated to assisting our attorneys and clients with three key components:

1. Early Identification of Reptile Risk. Every accident investigation requires a thorough analysis of reptile exposure. Dan Santaniello heads up the large exposure early risk assessment through rapid response and pre-suit investigation and evaluation strategies. He is available to do this on cases anywhere in the United States.

2. Deposition and Testimony Awareness of Reptile Strategies. Wars are being lost in the first battle – the deposition. Our goal is to assure clients and their employees are questioned ethically in deposition and are not unfairly questioned to skew answers and mislead the jury. We help our clients understand and recognize when plaintiff lawyers are improperly setting up reptile attacks. Robin Jackson-Bernhardt and Dan Santaniello have perfected two options for clients: Reptile Comprehensive and Reptile Lite. The Comprehensive approach involves three, and possibly four, sessions with the client. Reptile Lite involves one session. 

3. Reverse Reptile Trial Strategies.  Reverse Reptile Trial Strategies.  Reptile issues aren’t just limited to deposition. In our firm, each trial is analyzed by a reverse reptile strategy team to assure juries get a fair and impartial presentation of the evidence. We analyze opposing counsel’s jury selection and closing tactics and develop our own strategies to mute or neutralize improper reptile attacks. We develop a counter-offensive to engage and educate the jury on our client’s business story and efforts to maintain safe and effective policies and training.  In the end, we give our trial teams the best resources to accomplish. 

WHICH STRATEGY METHOD IS RIGHT FOR MY WITNESS?

Plaintiff Counsel are perfecting the reptile attack, and it is resulting in deposition concessions and sound bites that emotionally charge jurors to make verdict decisions based on anger and emotions. The best way to prevent a hijack of your witness is to outline the tactic so they are not caught off guard when the reptile strategies are employed. The witness’ confidence is crucial in answering the reptile questions and plaintiff counsel will intimidate even the most experienced professionals.

Our practice group offers services that will include 1, 2, or 3 Session Deposition Preparations with the witness and their assigned attorney. The witness’s level of expertise in deposition will help determine the amount of sessions that would be required to properly prepare them for the reptile deposition.

WHEN TO USE A VENDOR AND WHAT ARE THE OPTIONS?  

An outside vendor is always a good option on high exposure cases with reptile risk. We also offer five non-vendor options for clients:  1-Session, 2-Session, 3-Session, and 4-Session prep strategy, or a mini session Reptile-Lite.

1-Session Strategy: Session 1 is a 2-3 hour session. We will explain the big theme of the case to help the witness stay on track. Our dedicated team will get witnesses comfortable with being deposed, providing the facts of their testimony, helping them focus on remaining calm during aggressive questioning and asking for breaks if needed, retraining their automatic responses from “yes/no” responses, and helping them prepare to reframe questions and question the examining attorney to clarify ambiguous, overbroad questions. We’ll explain in layman’s terms what reptile is and what it will look like in deposition.

Witnesses should know the case, be familiar with facts, and know their role – they are not there to argue and debate. We’ll help the witness understand the assignment and what they are not to do that will trip them up. The session will prepare them on how to recognize reptile safety questions and safety and danger issues involved if you violate them. This is where the attack will occur and where the witness needs to be prepped the most. We’ll practice reptilian questions with the client until they are comfortable with reptile questions.

2-Session Strategy: After Session 1, Session 2 (2-3 hour session) is all about the reptile. It will focus on recognizing when you’re being led into dead ends and giving up sound bites. Witnesses will be cross-examined “reptilian” style and become more comfortable with their role and how to express themselves and their answers in hostile situations. We will go over sample questions until the witness is comfortable.

3-Session Strategy: Session 3 (3 hours) is for high exposure cases involving wrongful death, severe bodily injury, amputation, moderate TBI or paraplegia. This session may be useful with any corporate representative deposition. It is a combination of Session 1 (2-3 hours), Session 2 (2-3 hours), and Session 3. Session 3 involves a mock deposition and going over the witnesses’ answers to that cross-examination. Our team will go over body language, cognitive fatigue, deposition anxiety, and witness specific issues. By the end of this session, the witness should feel at ease and more confident during their deposition. The witness should be able to identify reptile questions and articulate well thought-out responses.

4-Session Strategy: Session 4 is for a corporate representative deposition where the corporate representative needs an extra day of preparation due to the level of the case, the exposure of the case, and/or the amount of information that the representative must be knowledgeable of in order to be successful in a deposition. Session 4 also focuses on the corporation and relevant laws and regulations. This includes policies, procedures, manuals, handbooks, and other documents that are pertinent to the litigated issue. We will conduct the mock deposition with the corporate representative and conduct a cross-examination and interrogation of our witness and assess any lingering problem areas. At the end of the session, the witness should feel at ease and more confident during their deposition. The witness should be able to identify reptile questions and articulate well thought-out responses.

Inclusive Single-Day Plus: This option (2-4 hours) provides traditional deposition preparation by the handling attorney (not our reptile team) unless you authorize the use of the team. We can also combine the preparation and cross-examinations into a one-day prep that can usually be done in a 4-hour period.

Reptile-Lite: This is an add-on mini session (2 hours) for situations where the handling attorney plans to prep their own witness but wants the reptile team to prep their witness only on reptilian questions. This prep may be added on only on the last day of the handling attorney’s prep with their witness. The session will prepare the witness on how to recognize reptilian questions and respond to those questions during the deposition. We will go over sample questions until the witness is comfortable. We will start with general reptilian questions and then go into specific reptilian questions that match the case facts.

Meet the Team

Dan Santaniello, Esq., oversees the Practice Group. With more than 3 decades of trial experience, over a 100 jury trials, many on 7 and 8-figure exposures, Dan and his team are the perfect Reptilian Cross Examiner for a 2-Session prep strategy.  Dan also roundtables each case set for trial with an idea toward analyzing, neutralizing and implementing reverse Reptile strategies for trial.  

Robin Jackson-Bernhardt, Esq., has a bachelor's degree in psychology from University of Arkansas at Little Rock and a master's degree in clinical psychology from Troy University.  Robin has tried over 20 jury trials to verdict and 10 bench trials. Prior to joining the firm, Robin was in-house counsel for a national insurance company. Prior to practicing law, Robin was a clinical mental health therapist. Robin specialized in forensics psychology and cognitive behavioral psychology.  She has multiple certifications including forensic psychology, trauma and cognitive behavior.  Robin’s background in psychology provides a unique perspective on this team. Robin began her legal career as an Assisted Public Defender for the 9th Judicial Circuit, in Orange County. Robin was initially hired as a Mental Health Attorney and then transitioned to a trial attorney. As a Mental Health Attorney, Robin specialized in competency matters for juveniles, Baker Act defense, and Ryce Act defense. 

Janine Menendez-Aponte, Esq., is a former staff counsel trial lawyer with Allstate.  Janine oversees the firm’s Strategic Training program. All our lawyers receive training in reptile risk mitigation and this practice area.  Janine also moderates the pre-trial roundtables. 

In summary, our dedicated team is prepared to even the playing field on these tactics.  For further information on this practice group and options, please contact Dan, Robin or Janine.