Transportation professionals discuss the reality of the reptile theory
By Jim Foster
CLM’s Transportation Committee regularly gathers together a cross-section of the sharpest minds in the transportation community to discuss matters that affect the industry. In this edition, a field claims manager, a corporate vice president of claims and litigation, and two insurance defense attorneys discuss how to combat and prepare to defend against the reptile theory (bio's for respondents appear at the bottom).
Jim Foster: Have plaintiffs’ attorneys been using the reptile theory, which focuses on violation of safety rules and needlessly endangering the public, to drive up settlements and verdicts in trucking and commercial auto cases?
Leslie Leazer: The answer to this question is a resounding yes. Plaintiffs’ attorneys have successfully manufactured ways to distract the jurors from the relevant issues.
Lea Kapral: Yes. Unfortunately, counsel, rather than relying upon the facts of their cases and the injuries specific to their clients, are focusing on reptile theory characteristics in an effort to drive up case value and divert attention from the real issues.
Ted Schaer: We have seen occasional complaints that are being structured or use nomenclature straight from the reptile playbook.
Foster: Is the key to the defense of a reptile theory case a recognition by defense counsel and the claims professional of its use by plaintiffs’ attorneys? Is the reptile theory only used on catastrophic cases, or is it used by plaintiffs on smaller cases in an attempt to recover a significant award?
Kapral: Being aware is only the first step in combating the strategy. We are seeing the approach not only on large catastrophic cases, but also on smaller soft-tissue cases. Conducting an early and thorough investigation, asking questions, and securing evidence will help combat the approach, but most important is preparing the key deponents to be sure they recognize reptile-related questions and educating them on how to best frame their answers in order to not fall into a trap.
Schaer: Both defense counsel and the claims professional should be cognizant of when a case either lends itself to a reptile presentation or when plaintiffs’ counsel attempt to use some of the reptile tactics in the prosecution of the claim. The reptile approach lends itself to any size claim. However, we have seen its use primarily in large-loss cases with more sophisticated plaintiffs’ lawyers.
Leazer: I suppose it would be fair to say that we are less likely to prepare for something if we don’t know that it exists. So while I believe recognition is certainly an important factor in a good defense, I don’t know that I would characterize it as the “key” to the defense. That being said, the reptile theory is absolutely used on smaller cases as well as catastrophic cases so I recommend that we prepare for, investigate, and evaluate every case with the understanding that the reptile theory could potentially be utilized by the plaintiff.
Foster: Can you give an example of a situation in which you witnessed the reptile theory in action?
Schaer: I defended a motor carrier in a case where the plaintiff was a passenger in a car that was in an accident that left her car disabled and without lights in the middle of a highway at the end of a construction zone “cattle shoot.” Our driver did not see the car until the last moment as he travelled through the cattle shoot. He struck the plaintiff’s car, who was catastrophically injured inside the cabin. Our driver’s ECM showed that he was travelling 64 mph in a 55-mph construction zone at night on a holiday weekend. Plaintiff’s counsel attempted to use the reptile theory that a truck that speeds in a construction zone at night needlessly endangers all drivers on the road.
Kapral: Typically, the reptile theory is unleashed during the investigation and discovery phase of litigation in anticipation of pushing a more significant settlement number. We try a very small percentage of cases. By the time we reach trial, defense has been prepared through evidence, witness preparation prior to depositions, and motions. Being prepared with the truth, facts, and a simple theme keeps the jury’s attention and focus on the actual accident versus the story being told by plaintiffs’ counsel. By admitting when wrong yet pointing out we had nothing to do with the actual accident and keeping at the forefront the facts while sticking to that theme, we have been able to keep the jury focused, diminishing the reptile theory’s effectiveness.
Leazer: In all my years of attending trials, I have not seen a strong reptile theory attack in action during the trial. I have, however, seen it used frequently in discovery leading up to trials. The most memorable was a case in which every time we thought we had turned a corner, the plaintiff had a new theory and a new expert. I recall saying—often—to my counsel “Why are they allowed to keep making up things that aren’t even remotely true and without evidence to support this fiction?” It was truly as if they simply rewrote their own story about what happened, how it happened, and why it happened. As it turned out, our counsel was a genius (in my humble opinion) and we prevailed on almost all of our pre-trial motions to keep out the “fake news.” That being said, there wasn’t a fairytale ending and we paid a small premium to keep the case from going to trial. The good news is that the experience from that case has helped us in subsequent cases with similar reptile theory-based tactics.
Foster: Given a reptile theory attack, has the defense of cases now put more of an emphasis on the preparation of drivers, safety directors, and 30(b)(6) witnesses, since they are the faces of your companies?
Schaer: Absolutely true. We work very hard with our drivers, safety managers, and corporation designees to prepare them for depositions and to get them ready to answer the heightened standard of care questions that reptile theory-based tactics serve up.
Leazer: Without question, we are putting more of an emphasis on preparation of our drivers, safety directors, and 30(b)(6) witnesses than we did 10 years ago, but I’m not willing to give all the credit to the reptile theory. I might concede that it started a domino effect. The reptile theory brought big verdicts, and big verdicts brought great confidence to the plaintiffs’ attorneys. I have seen other tactics subsequent to the invention of the reptile theory approach that are also cause to put more emphasis on the items noted in this question.
Kapral: Yes, and, in fact, I have a great example of this. We defended a trucking case involving a fatality and plaintiffs’ counsel was setting up a reptile theory approach from the start. More focus was spent on our driver and the company than the damages of the case. Knowing what was coming, we recommended defense counsel conduct a mock deposition of our driver to help him understand what was coming and fully prepare him. A partner conducted the mock deposition and put the driver through reptile-related questions while really pressing him. Counsel did a phenomenal job and beat the driver up pretty well. (It was even videotaped for a little extra pressure.) By the time the deposition took place, the driver clearly understood what was coming and how to answer by bringing forth the facts and not falling into the trap. Plaintiffs’ counsel didn’t ask many of his questions because the driver was able to navigate and respond appropriately. He gave up the reptile approach.
Foster: Recognizing that you would never prepare a deponent for deposition on the morning that the deposition is set to proceed, how far in advance of the deposition would you expect the witness to be prepared, and on how many occasions? Has role playing or videotaping the witness been effective preparation tools? Has this front-end loading of preparation helped to reduce indemnity payments?
Leazer: I wish there was a magic answer to this question that worked every time, but I don’t think it’s quite that simple. Every case is different, so it’s our job to know them inside and out. We have to consider several factors, including the strengths and weaknesses of the case and the capability of the deponents. The value of the case might be another significant factor in decisions regarding deposition preparation. There are many tools and different means available, as noted previously, to assist with deposition preparation, and I am open to using the most appropriate methods when the value of the case demands it. Different techniques work with different deponents. I believe that witness preparation is extremely important to a successful outcome and is, absolutely, conducive to reducing indemnity payments.
Kapral: We have a responsibility to our policyholders to defend them, and that includes preparing them for litigation. Our approach is to ensure the party is prepared and as comfortable as possible. If that means spending more time to prepare them, then we spend the time and, ultimately, litigation dollars to do so. I believe the preparation begins when the file is received and investigations begin. It’s important to establish communication and trust and to keep policyholders apprised of what to expect as the process continues. A week prior with time for a possible revisit the day prior or morning of the deposition is warranted, depending on the case. While I don’t have a cost analysis to rely upon, I believe we have been successful in controlling indemnity losses with this approach. When our insured is prepared, the result is testimony that is comfortable, confident, and genuine.
Schaer: I generally meet with my folks two-to-three days before the actual deposition. We go over the accident facts, training, and hiring. We then commence a mock deposition in the afternoon for an hour or so. We videotape the preparation and then play back the good and the bad. We then meet on the day of the deposition for several hours and again drill down on the typical set-up questions for reptile themes and how to handle them. If I feel that the deponent needs more work, then I reschedule the deposition. However, that has not happened to me yet.
Foster: Have your trial tactics changed to defend against a reptile-based attack? Would you consider admitting liability in a case where you may have some liability defenses in order to keep out aggravating facts, including the violation of federal regulations and other safety standards?
Leazer: While there are circumstances other than a reptile-based attack that might prompt us to admit liability in a case where we may have some liability defenses, I do believe trial tactics have changed as a result of the nuclear verdicts we are seeing in reptile-related cases. It’s not uncommon that we stipulate to liability even without aggravating facts in the hope that we can simply avoid having plaintiffs’ attorneys try to make something out of nothing. Again, we have to make decisions on a case-by-case basis, but we do want to make good decisions and avoid taking unnecessary risks when the downside can be catastrophic.
Kapral: While each case differs, we have, after speaking with the insureds and getting their input as well as understanding the potential risks, adjusted our defense strategy to include stipulating to liability. Another defense tactic is to bring out the reptile-related issues before the judge and point out what plaintiffs’ counsel is trying to do. Judges are more aware of the approach and becoming less tolerant of the show. Trying to narrow the issues and work in a direction of resolution is best for all parties if you are truly trying to be reasonable and resolve a case based upon the facts and specific damages. Each case must be evaluated on its own merits, strengths, and weaknesses.
Schaer: Certainly, trial tactics have to change when you are confronting a reptilian prosecution, which include motions in limine, preparation of witnesses, legal challenges, and requests to the judge to limit arguments. If my facts make me liable, I would rather admit liability, keep out the harmful collateral hiring/training/retention, and focus on the damages.
Meet the Panel
Lea Kapral is a field claims manager at Acuity Insurance, where she oversees claims operations in Northern Ohio, Pennsylvania, Maine and Vermont. She serves as a co-chair of CLM’s Transportation Committee and has been a speaker and presenter at a number of transportation seminars, offering an industry perspective. She recently celebrated 20 years with Acuity.
Leslie Leazer is the vice president of claims and litigation for Knight-Swift Transportation and has handled commercial transportation matters for 21 years. She recently joined CLM’s Transportation Webinar Committee.
Theodore Schaer is shareholder at Zarwin Baum Devito Kaplan Schaer Toddy P.C., with offices in Philadelphia and New Jersey. He has routinely handled truck and bus claims over the past 25 years on behalf of transportation companies, insurance companies, and third-party administrators. He also directs the emergency response team for his firm.
James A. Foster is a partner at Chicago-based Cassiday Schade LLP. He leads an emergency response team for catastrophic transportation accidents and serves as co-chair of CLM’s Transportation Committee.