How quickly can a witness lose a case in a deposition? I say under 1 minute. Does that sound extreme? Maybe, but I'll prove it. Read the following actual transcript of an exchange between a witness and a lawyer (and time yourself):
Q. Nurse, you would agree with me that patient safety is important right?
A. Yes
Q. In fact, as a nurse, you must always do the safest thing for your patients, right?
A. Yes
Q. Your policies are designed to ensure the safety of your patients, right?
A. Yes
Q. You follow all the guidelines to ensure patient safety, right?
A. Yes
Q. It’s policy that your methadone patients receive weekly counseling, right?
A. Yes
Q. Mr. “Jones” did not receive counseling during the first, second, and fourth weeks of March, 2020 did he?
A. No
Q. That’s a violation of your policy isn’t it?
A. Yes
Q. By continuing to dose “Mr. Jones” with methadone without providing him counseling wasn’t safe was it… by your own words, because it violated your own policy?
A. Correct
Q. That’s a breach in the standard of care isn’t it?
A. Yes
Q. That’s negligence, isn’t it?
A. Yes
GAME OVER
Are you convinced? Imagine for a moment you're a claims representative and you just received the above transcript from outside counsel. Imagine you are defense counsel and it's your witness who provided that testimony.
Here's what I imagine happens:
Claims Representative. Ask for authority to settle the case for more than expected. Experience frustration that a winnable case just turned unwinnable and very costly.
Defense Counsel. Wonder what happened and how you're going to explain this result to your client.
Both Claims Representative and Defense Counsel have difficult decisions to make, because the demand just increased. What would you do? Settle the case for more than the original demand? Go to trial despite the bad testimony? If you go to trial, do you have the witness change her testimony and get impeached on the witness stand? Or do you have her keep her testimony consistent with her deposition and try to explain it away somehow, or rehabilitate the testimony under your own questioning? None of these options are good.
The Q/A above is an example of what it looks like when a witness gets reptiled.
The origins and methods of the reptile strategy deserves its own blog post (maybe I'll write one soon). But for our purposes, let's focus on some key goals of a reptile deposition:
Get the defense witness to agree in deposition to certain safety rules that sound reasonable, but are simply made up by plaintiff's counsel, and far exceed the legal standard (e.g., negligence, standard of care, reasonable, etc.).
Get the witness to agree that these safety rules exist for the express purpose of protecting the community from injury or death.
Get the witness to admit that she/the company/or others in the company knowingly/intentionally violated the known safety rules (that she just admitted were designed to protect the community from injury or death).
Give the witness no choice (based on prior testimony) but to admit that these "violations" put people at risk of injury or death and prove the defendant was negligent or recklessness.
Use the bad testimony as leverage to increase the settlement demand, or to anger jurors at trial and inspire punishment verdicts.
Let's take a closer look at the questions at the beginning of this article:
Q. Nurse, you would agree with me that patient safety is important right?
Q. In fact, as a nurse, you must always do the safest thing for your patients, right?
Q. Your policies are designed to ensure the safety of your patients, right?
The proposition in blue is reasonable/true, and "yes" is the right answer. The propositions in red are unreasonable, but sound correct, and "yes" is the wrong answer. Ninety-nine point nine percent of untrained witnesses will say "yes" to the two questions in red and every other safety rule question plaintiff counsel proposes, especially when they are preceded with questions similar to the one in blue. When this happens, the witness is on what I call "the safety train," and is headed straight toward a cliff.
To survive a reptile deposition, witnesses need to stop the safety train before it gets out of the station, but how do they do that?
The remedy:
Before we discuss what can be done to defeat the reptile, it's important to note that any reptile training protocol must be done within the context of a larger witness training process that at a minimum encompasses: 1. how to communicate in an adversarial setting, 2. witness emotions, 3. handling opposing counsel's psychological gamesmanship, and 4. role (mis) understanding.
Nevertheless, there are a couple of things you can do in your current witness preparation protocol to help reduce the chances of your witness getting reptiled. Two of the most important are to teach witnesses:
This includes employing four types of answers and thinking strategies: context, qualifiers, specificity, and absolute disagreement. How this is done requires a good bit of detail, so stay tuned for part II in this series in which we will take a deeper dive into the four thinking and answering strategies.
For more on how to improve witness preparation, check out the following posts:
Jeff Dougherty, M.S.
President - Litigation IQ
713 392 8135