After being regularly exposed to reptile tactics for nearly 15 years, how are defense witnesses still being “reptiled” at deposition, resulting in costly nuclear settlements and crushing verdicts? The truth is that defense witnesses are still getting reptiled by well-trained plaintiffs’ attorneys because the defense bar never fully understood the reptile theory as a whole, much less the deposition-specific reptile attacks used against their witnesses.
Comments such as, “Reptile is just a regurgitation of the golden rule,” have been echoing throughout law firm hallways since 2009, with accompanying eye rolls. After billions of dollars of reptile settlements and verdicts, here is the bad news: Reptile tactics have not only been highly effective, but they have also evolved and are here to stay.
This article is the first in a two-part series that will examine the misunderstandings of reptile theory and expose the psychological principles plaintiffs’ attorneys use to achieve disproportionately high dollar settlements and trial verdicts.
Misunderstandings of Reptile Theory
It is well known that reptile theory has wreaked havoc on defendants in civil litigation since its debut in 2009 and has only grown since then. Shockingly, the reptile theory remains widely misunderstood by defense attorneys, the insurance industry, and corporate legal departments. Over the years, we have heard comments such as, “These tactics appeal to the primitive reptilian parts of jurors’ brains, enticing them to punish defendants,” “Plaintiffs’ attorneys are trying to scare jurors into a verdict,” “Reptile tactics force jurors into illogical fight-or-flight survival decisions,” and “The goal of reptile theory is to enrage jurors.” Behind closed doors, plaintiffs’ attorneys cheer at the defense bar’s misunderstanding of reptile theory because it allows them to continue their highly successful tactics with impunity.
Many on the defense side still lack the proper understanding of the reptile theory, even though it has been debunked and fully exposed over the last decade (see, for example, a pair of analyses that article co-author Bill Kanasky wrote in For the Defense: “Debunking and redefining the plaintiff reptile theory,” April 2014; and “Rehabilitating the defendant in the reptilian era: A neurocognitive approach,” January 2017, co-authored by Melissa Loberg).
The reptile code, which is just an intensive and aggressive plaintiff litigation strategy seductively packaged in neuroscientific gift wrapping, has been cracked. Yet, defendant witnesses still persistently agree with textbook reptile questions at depositions. This occurs because the witness’ brain has neurocognitive vulnerabilities that often go unaddressed by defense counsel, as they do not have formal training in neuropsychology.
Reptile theory is a tactical, laser-focused litigation strategy designed to take advantage of the slow, reactive, and arguably broken insurance defense approach to litigation. It has little to do with jurors’ brains and everything to do with outmaneuvering the defense at every phase of litigation to create strategic and economic leverage. The pseudo-scientific reptile sales pitch acted as a red herring to distract from its true intent, and the defense bar took the bait hook, line, and sinker. The term “reptile” itself is merely a brilliant marketing pitch to mediocre plaintiffs’ attorneys with an insatiable desire to obtain training to learn how to hit the litigation lottery. And reptile has been a successful movement within the plaintiff’s bar for nearly 15 consecutive years. The defense has defeated the reptile on many occasions, but the reptile has an overall win/loss ratio that is undeniably impressive.
Rebranding the Reptile Theory
After many years of success, one day, the reptile brand went “poof!” and disappeared. It vanished. The once ubiquitous and powerful reptile machine became mysteriously extinct overnight. There is no longer a reptile revolution website, no more reptile courses, and the only reptile books being sold are used ones on resale websites. Googling “reptile theory” will lead you to obsolete articles and many dead ends.
What in the world happened? Two things:
- Contentious litigation between original reptile members that led to a nasty business divorce. [See Sean K. Claggett & Assocs. v. Keenan, 2:21-cv-02237-GMN-DJA (D. Nev. Aug. 28, 2022)].
- A full post-divorce rebranding effort to rebuild and strengthen the original product.
Reptile has now been rebranded as the “Edge,” brought to you by the Keenan Trial Institute (KTI) and directed by original reptile co-founder Don Keenan. Examination of the KTI website (keenantrialinstitute.com) shows a university-like training system for plaintiffs’ attorneys, rich with courses at both “undergraduate” and “graduate” levels and plenty of books and other training resources (including a podcast that is open to the public.) It is essentially reptile, rebranded and on steroids, and will be referred to as the Edge throughout this article.
While the reptile label may be officially retired and out of service, reptile tactics are not extinct by a long shot. The reptile has evolved and continues to be used by many plaintiffs’ attorneys nationwide.
At deposition, the foundational reptile tactics are alive and well, and are now wrapped in a new concept: establishing a “Hit List.” KTI offers “Hit List Training,” a methodology whereby plaintiffs’ attorneys strategically create plans to elicit various admissions from defense witnesses to set up the foundation for effective opening statements and cross-examinations at trial.
The Hit List admissions are designed to come from three areas:
- Unfavorable case facts.
- Inadequate professional conduct or decision-making relative to industry standards (hypotheticals).
- Liability and causation of harm (fault).
Plaintiff counsel’s primary objective is obtaining key “yes” answers to statements in these categories, as this will set the case up for an unbalanced settlement or catastrophic verdict.
Plaintiffs’ attorney Brent Crumpton stated on an episode of KTI’s podcast, “Fridays with Keenan’s Cutting Edge,” that “Hit List training is a game changer; it allows you to end the case before the defense ever understand what happened.” Another KTI podcast guest expressed, “If the defense depositions are not taken appropriately, it is a recipe for disaster at trial.” Therefore, it is clear the key battleground in civil litigation is the deposition phase of discovery—it is the lynchpin to the formulation and future of the case. The days of cleaning up deposition testimony at trial are over.
Edge Tactics During Deposition
While colossal verdicts against defendants are indeed scary, they are statistically rare when considering that few cases go to trial. Importantly, the Edge methodology works at trial with jurors if, and only if, Edge tactics have been deployed effectively during the deposition phase. Thus, this article will focus on the foundational Edge tactics used at deposition, as this is an area where defendants face persistent vulnerability and often surrender strategic and economic leverage to plaintiffs.
It should be noted that the following discussion regarding the Edge tactics is our interpretation of the Edge process based upon our experience and studying hundreds of deposition transcripts. We are not intending this discussion to be a recitation of the Edge materials. KTI takes great care to protect its “special sauce” to ensure that its information does not fall into the hands of the “Black Hats” (their term for what they perceive as unscrupulous defense attorneys who will do anything for their client).
Here is the Edge cross-examination plan at deposition:
- Plaintiff’s counsel presents defendant witnesses with a series of general safety or danger rule questions.
- The witnesses instinctually agree to the safety or danger rule questions because it supports their highly reinforced belief that safety is always paramount, and danger should always be avoided.
- The witnesses then continue to agree to additional safety or danger rule questions that link safety or danger to specific conduct, as it aligns with their previous agreement to the general safety or danger rules.
- The witnesses begin, unknowingly and inadvertently, entrenching themselves deeply into an absolute, inflexible stance that omits circumstances and judgment.
- Plaintiff’s counsel then presents case facts to the witnesses that create internal discomfort, as these facts do not align with the previous safety or danger rule agreements.
- Plaintiff’s counsel then illuminates that the safety or danger rules, which have been repeatedly agreed to under oath, have been violated and that harm has been done as a result.
- The defendant witnesses regrettably admit to negligence or causing harm, as the perception of hypocrisy has been deeply instilled.
- The emotionally battered witnesses admit if they had followed the safety or danger rules, harm would have certainly been prevented.
In short, the Edge deposition tactics are specifically designed to bait defense witnesses into an inescapable hypocrisy trap. According to Keenan and David Ball’s “Reptile: The 2009 Manual of the Plaintiff’s Revolution,” this hypocrisy trap is perilous for the defendant because, “Once the Reptile suspects significant hypocrisy, she swings into combat mode. She makes our emotions vomitorially (sic) repulsed. And she makes us cheer when the hypocrite is brought down. She offers us a ton of Dopamine when we help demolish the hypocrite – i.e., she makes us feel very, very good.” Exposing the defendant’s hypocrisy is so important that Ball and Keenan devoted a whole chapter (Chapter 9) to the topic in their book.
The Edge attorney uses four primary “rule” questions to lure unsuspecting defendant witnesses into agreeing to their “Hit List” questions. The four questions are classified as:
- General safety rules (broad safety promotion).
- General danger rules (broad danger/risk avoidance).
- Specific safety rules (safe conduct, decisions, and interpretations).
- Specific danger rules (dangerous/risky conduct, decisions, and interpretations).
Manipulating defendant witnesses into agreeing with these four types of questions is the lynchpin of the Edge cross-examination methodology, as the agreement creates intense psychological pressure during subsequent questioning of key case issues. Absent this psychological pressure, the Edge attorney’s odds of success drop exponentially. Therefore, the Edge attack requires painstaking effort to both construct and order the questions in a manner that fully capitalizes on the natural biases and flaws of witnesses’ brains.
The Edge attack during deposition is specifically designed to exploit the defendant witnesses’ cognitive and emotional vulnerabilities. As such, traditional witness preparation techniques are not sufficient for the psychological warfare that witnesses endure during Edge-style questioning. A neurocognitively-based training system and counter-attack strategy is required if defendant witnesses are to defeat the Edge attorney during deposition.
Part two of this article will expose the step-by-step psychological attack orchestrated by Edge attorneys, identify and analyze the cognitive breakdowns that lead to witness failures, and provide neurocognitive interventions to prevent witness failures.