October 2, 2019

THIS ARTICLE ORIGINALLY APPEARED HERE IN VOL. 12 NO. 3 OF PRO TE: SOLUTIO.

If you have ever read The Jungle Book, a collection of stories by Rudyard Kipling, Rikki-Tikki-Tavi should sound familiar. Rikki-Tikki-Tavi follows the adventures of a brave young mongoose who, despite his size and position, valiantly conquers a venomous snake to protect his human family. Kipling’s tale is based in fact: Real-life mongooses are immune to snake venom and are known for their ability to attack snakes.

THE REPTILE ATTACKS

Even if you are not familiar with Rikki-Tikki-Tavi, as a litigator, you are certainly familiar with the infamous “Reptile theory.” The series of questions we refer to as Reptilian are now commonplace for plaintiff lawyers everywhere after becoming a nationwide phenomenon in 2009 when David Ball and Don Keenan published Reptile: The 2009 Manual of the Plaintiff’s Revolution. Following the theory, Reptile questioners start a deposition innocently enough, asking the company witness to acknowledge basic propositions of safety with which most everyone would agree. For example, plaintiff’s counsel will ask a general question about the importance of safety to consumers or ask the witness to agree that the company they work for should make safety a top priority.

The real Reptile is in the details—these questions are repeated in slightly different forms with slightly different language, all with the ultimate goal of equating the company’s ruler to the company’s legal duty. These sound bites are often used easily and effectively at trial by showing the company witness video depositions to the jury. The goal is a subtle, psychological pressure on jurors to find fault in the company’s conduct based on these alleged admissions on video, without regard to the evidence presented at trial.

HOW IT WORKS

On a subliminal level, the Reptile’s purpose is to make jurors feel as though the company’s conduct has put not only the plaintiff in danger but also the jurors themselves. Reptile questions are formulated carefully to appeal to the part of a juror’s brain that is inherently programmed to evaluate safety and respond in a defensive way: If anything threatens that sense of safety, the Reptile responds to keep itself safe. In trial, the Reptile is the juror, and the goal is to have the juror keep himself safe by “sending a message.” Jurors send a message by reaching a verdict that deters the defendant from behavior that not only threatened the plaintiff but also threatens the juror’s safety and well-being. When the Reptile theory is employed successfully, one little sound bite in a video deposition can do just that.

To avoid this viper pit, company witnesses are taught trigger words to look for and given tips to sidestep the reptiles. But that is not enough. There must be a strategy for company counsel and witnesses to use offensively: a mongoose. Seemingly harmless questions about safety should be rejoined with similar questions—like asking the witness if a patient should make safety and health their number one priority.

WHY UNLEASH THE MONGOOSE?

Or perhaps a better question: Why not? In a broad sense, a mongoose question is any question asked at a deposition that develops using evidence of the corporate defendant’s genuine concern for the safety and well-being of anyone using its product. The successful Mongoose question and answer make plaintiff’s counsel cringe when the video deposition is played at trial. Though unleashing the Mongoose may not be appropriate in every context, if the plaintiff engages in Reptilian conduct, asking countervailing Mongoose questions could prove quite effective. As trials become increasingly more dependent on presentation of key evidence by video deposition and as plaintiff lawyers embrace the Reptile theory, defense lawyers must understand the impact that this subtle, psychological approach can produce. Preparations must be made to counter that prejudice forcefully and effectively.

HOW TO BE A MONGOOSE

To unleash the Mongoose, you must prepare your witness for redirect questions that will be responsive to some of the more common Reptilian questions. This is more than just an aggressive redirect exam. This is a pointed, specific focus on key points, designed to dispute and neutralize Reptilian questions from plaintiff’s counsel. Just as the plaintiff starts out with soft, seemingly innocent Reptile questions, we can start out with soft, non-controversial Mongoose questions, too.

For example, the plaintiff’s attorney will often ask the witness to agree that the company has a duty to make a safe product. When questions like this are raised, we should be prepared to counter it. Here is an example: “You were asked if a product is unsafe if it causes injury. Can you tell the jury which medical devices are 100% risk-free?”

Some other examples:

• When your witness is asked about an alternative design that the company is working on, you might ask some of the following:
  • Does innovation help or hurt patients?
  • Which departments are involved in product development?
  • Do each of these departments have different perspectives?
  • When a company develops a new product, how many different perspectives do you want?
  • Do different people have different ideas?
  • How does that help with innovation?
• When your witness is asked if the company should have warned of all risks, you can ask some of the following:
  • Is it reasonable and feasible to warn doctors about each and every reported adverse event?
  • Is it possible to predict every potential risk for every person?
  • Can there be too many warnings on a label?
  • Could an overly strong warning cause a patient not to use a drug or device that could help them?

As a practice pointer, be prepared at the beginning of your redirect examination (so the jury will be sure to remember it) to relate back to the questions the witness was asked about a company’s duty to make a safe product. Then start with other Mongoose questions, depending on the nature of your case, such as:

• Doctor_______, what is your number one priority when you come to work every day? (Safety)
• What have you seen personally in the last 25 years about whether [insert company] values safety?
• How do you know this?

At first blush, one might think these types of questions will draw objections from plaintiff’s counsel. But if the trial judge rules that plaintiff’s Reptile questions are proper, then so too are the defendant’s Mongoose questions.

Taking the Mongoose a step farther, defense counsel may also find value in asking questions about the plaintiff’s own responsibilities, although questions like these carry risks. One benefit, though, of plaintiff-directed questions is that they may convince a plaintiff’s lawyer to abandon the Reptile theory. Too harsh a treatment of the plaintiff may be off-putting for jurors, but striking an effective balance in tone and approach is worth consideration. Examples of duty-oriented questions for the plaintiff include:

• Should a plaintiff never accept any potential risk, regardless of the potential for benefit?
• Does the plaintiff have a duty to take good care of himself/herself?
  • Exercise? Eat healthy? Not smoke?
• Does a plaintiff have a duty to minimize risks?
• Does a plaintiff have a duty to heed warnings and safety information?

The purpose of unleashing the Mongoose is to counter the questions our company witnesses face nearly every time they are deposed, questions designed to create a perceived danger that is very personal to them. When a Reptile is lurking, prepare your defense but also consider going on the offense. After all, as Kipling concluded, “It is the hardest thing in the world to frighten a mongoose.”

Finis