The Reptile Theory: Snakes Everywhere How Not to Lose Your Case During Deposition Cross-Examination

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1 The Reptile Theory: Snakes Everywhere How Not to Lose Your Case During Deposition Cross-Examination Introduction R. Bryan Martin Haight Brown & Bonesteel LLP Los Angeles, California Dina M. Cox Lewis Wagner, LLP Indianapolis, Indiana By now, most litigation defense attorneys are aware of The Reptile strategy that is being utilized by the plaintiff s bar all across the United States. It is nearly impossible to attend any defense bar conference or seminar without this topic being presented. It is everywhere in product/device liability, prescription drugs, medical malpractice, commercial trucking, premises liability and general tort actions. The Reptile theory attempts to sell danger and safety that the dangers identified in the lawsuit go well beyond the courtroom and into the jurors cities, neighborhoods and homes. To achieve this result, The Reptile attorney will attempt to expand the case beyond the facts at issue. The successful Reptile case is NOT about a single past event, but about many present and future risks. It is NOT about the harm which actually happened in the case, but about the total maximum harm that could have happened to the jurors themselves or to the public. In short, when the jurors decide the case, The Reptile attorney wants them afraid of and angry at the defendant, and to equate large verdicts with a means of fostering safety. The success and foundation of The Reptile theory is largely based upon the crossexamination of the Defendant s witness at deposition, 1 where The Reptile attorney first secures seemingly innocuous admissions from the defense witness relating to general safety rules, and then manipulates the defense witness into further admissions or inconsistent testimony about violations of those rules with respect to the facts of the case. The Reptile attorney attempts to ground his or her case not in the relevant legal standard, but in safety rules or commonsense principles jurors can immediately understand and apply to other contexts. The Reptile attempts to supplant or redefine the true legal standard or jury instruction with a much broader, more liberal definition of what might constitute liability (i.e., safety rules ) justifying a large verdict. Because cross-examination of the defense witness is the lynchpin of The Reptile case, preventing The Reptile from gaining leverage through damaging defense witness deposition testimony is critical. 1 The deposition can be of a defense fact witness or a corporate designee per a 30(B)(6) deposition notice. If the later, be sure to review and respond in writing to the 30(b)(6) notice to assert objections, make clear those topics on which a witness will be presented, and to identify topics that you consider off limits or lacking in specificity and on which no witness will be produced. At this time, consider asserting written objections to Reptilian subjects. 1

2 What The Reptile Does & Why It Works In a successful Reptilian deposition, Plaintiff s counsel presents a series of general safety or danger rule questions. The defense witness instinctively agrees to the questions because they support the witness s highly reinforced belief that safety is always paramount and danger should be avoided. 2 The witness then continues to agree to additional safety/danger rule questions that link the safety or danger to specific conduct at issue in the case. 3 In this way, the witness unknowingly becomes deeply entrenched in absolute, inflexible stances on safety principles that omit circumstances and judgment. The Reptile attorney then presents case facts to the defense witness in a way that creates extreme discomfort, because the facts do not align with the previous safety/danger agreements. 4 Plaintiff s attorney illuminates safety rules which the defense witness has previously agreed to over and over again that have been violated, thereby causing psychological distress for the defense witness, who fears looking hypocritical. 5 Questioning in this manner generates shame and threatens the witness s sense of integrity. 6 The emotionally battered defense witness then either admits negligence (flight) or tries to explain earlier answers (fight). 7 Either way, Plaintiff has secured damaging defense deposition testimony. If a defense witness can be properly trained to identify safety/danger rule questions and avoid absolute agreement, the powerful effect of this cross-examination technique can be neutralized. 8 Be forewarned: This is easier said than done. The nature of The Reptile s general safety/danger rules make them difficult for even the sophisticated witness to handle. They appear as commonsense principles that are difficult to quarrel with: You have an obligation to ensure safety, right? Safety is your top priority? 2 This technique plays upon the witness s confirmation bias, or strong tendency to accept information that confirms the witness s existing attitudes, and makes it feel burdensome to consider exceptions or alternative explanations. Bill Kanasky Jr. & Ryan A. Malphurs, Derailing the Reptile Safety Rule Attack: A Neurocognitive Analysis and Solution, Courtroom Sciences 2, available at 3 This technique takes advantage of anchoring bias, or the tendency to align oneself with previous agreements or admissions made. Id. It also plays off the momentum gained by the questioning attorney in securing yes and no answers to seemingly straight-forward questions. Id. 4 Id. (referring to the cognitive dissonance purposefully created by Reptilian cross-examination techniques). 5 Id. 6 Id. at 8. 7 Id. at 9. 8 Id. at 10. 2

3 You would agree that your company, as a product manufacturer, must make products that are free from defects? Such safety/danger rules questions reinforce the witness s existing beliefs and attitudes about the importance of safety. And they often confirm years of training and corporate culture focused on safety. Asking the witness to disagree with these questions challenges the witness s own perception of themselves their self-identity and self-value. 9 How to Combat Reptilian Cross-Examination of Defense Witnesses If The Reptile attorney is able to secure rules admissions or unreasonable testimony from the witness during deposition, the game is over in most cases the witness will not be able to backtrack or explain away the harmful testimony at trial. It is thus imperative that defense witnesses be trained on how to respond to safety rule questions. It is not enough for the defense lawyer to simply review the traditional deposition rules with the witness (answer yes, no, or I don t know and do not volunteer). Indeed, the Reptilian cross-examination depends in part upon these deposition rules. Instead, the defense lawyer must educate the witness as to what The Reptile theory is and how and why it may be used. 10 The defense lawyer must help the witness understand why it is difficult to deal with the Reptilian questioning technique, so that the witness can focus on the true substance and motivation for the questions and not fall back on his or her instinctive responses. The defense lawyer must commit to meet with the witness as many times and as long as needed and to practice questions and answers until the witness is confident in dealing with Reptile questions. Conduct mock depositions with a cross-examining lawyer who is new to the witness. 11 The goal of the preparation sessions is to teach the defense witness how to detect a safety rule question, and how to deflect or properly answer such a question. Safety rule questions can be identified because they are most often broad, vague, generic questions about safety or danger; and, they frequently begin with buzz words or phrases such as: Is it fair to say Would you agree that In asking these questions, The Reptile attorney may assume a friendly posture. Deflecting or properly answering safety rule questions is more difficult than identifying them. To persistently deflect or properly answer a safety rule question, the witness must be both educated and motivated. Remember: the witness is being asked to undertake a very difficult 9 Kanasky & Malphurs, supra note 2, at Consider providing a copy of Kanasky & Malphurs article cited herein to the witness as homework. 11 Consider soliciting information about plaintiff s counsel s reputation; study deposition transcripts of depositions taken by that lawyer. Are they a certified Reptile speaker? 3

4 task. This is why it is important to provide the defense witness with a proper vantage point of the safety rule trap. Educating & Motivating the Defense Witness To educate and motivate the defense witness, reveal The Reptile theory for what it is: a manipulative tool. Inform the witness: Often, The Reptile question will distort the real legal standard of care. Using Reptile questions, Plaintiff is trying to manipulate you into agreeing to generic, over-broad safety rules because they hope this agreement will create pressure later in the deposition during questions about key issues in the case. Reptile questions are unfair, loaded, trick questions purposefully designed to set you up for later contradictions or unfair admissions. Reptile questions are more often than not too vague and non-specific to simply and honestly answer yes or no. Reptile questions fail to take into account that each and every individual and scenario has its own unique and variable facts and circumstances. Reptile questions are often deceptive because factors have been cherry-picked by Plaintiff s attorney and presented with just enough context to make the witness feel lured into providing an answer. When the witness is able to understand the true meaning and motivation for the Reptile questions, the honest and most accurate answer will almost always be, It depends Witnesses who are able to identify and deflect or properly answer safety rule questions are able to: o Throw The Reptile off her game. o Deprive The Reptile of sound bites. o Derail the momentum of damaging admissions The Reptile is attempting to build. o Eviscerate the foundation for The Reptile theory. 4

5 How to Answer Reptile Safety Rule Questions The witness must understand that the safety rule proposed by The Reptile attorney does NOT represent the correct legal standard (or standard of care) governing the case, and must be prepared to reject the use of the word rules in connection with the Reptile proposition. It is therefore important that the witness know the important standards, regulations, rules, procedures and law, including jury instructions, that apply to the case. This will empower the witness to admit to certain propositions where required, such as to correct legal statements and issues of duty, and to statement drawn from jury instructions, case law, regulations and internal company policies and procedures (including statements taken from the company s website or marketing materials/brochures). Additionally, the witness must be prepared on how to respond to the rules questions. First and foremost, the witness obviously must respond truthfully. Second, almost every Reptile question lacks one aspect: specificity. Thus, whenever possible, the witness should never give a yes or no response, but should instead note the impossibility of responding to such vague questions that often involve unlimited circumstances and variables. Third, where a response must be given to a Reptile question, the witness should remember to qualify, qualify, qualify. It is crucial to qualify (i.e., poison ) the answer during deposition cross-examination. Waiting for defense counsel s examination is too late do not give The Reptile attorney the sound bite he or she so desperately craves. Substantively, the witness should remember the words, it depends. Proper responses to Reptile questions are built on this foundation and include responses such as: it depends on the circumstances, not necessarily in every situation, not always, sometimes that can be true, but not all the time. In many cases, other proximate causes, including Plaintiff s comparative negligence, are responsible for the harm caused in the case, not the alleged community-threatening bad conduct of the defendant. Product misuse, modification, alteration and third party conduct are also often responsible for the alleged harm. The witness must also understand and be prepared to explain why it depends. 12 The witness must be able to articulate the circumstances under which the requested Reptile statement does not apply. For example, in response to most Reptile questions responses such as, there are just too many unidentified variables to answer such a general question definitively, or there are just too many possible fact scenarios to answer such a general abstract question with a definitive all-encompassing answer may force The Reptile attorney off script providing the witness the opportunity to explain why a general safety principle is not always applicable or practical. 12 It depends It depends on what? Help the witness prepare to describe some of the circumstances that are dependent, but with the caveat that is all I can think of off the top of my head as I sit here today. Brainstorm with the witness what factual scenarios and variables might exist to make The Reptile platitude untrue. This will give the witness confidence in his or her answers that he or she may initially fear are evasive. 5

6 Moreover, the witness should be prepared to explain the implications of following The Reptile attorney s often illogical suggestions. In most cases, it simply is not possible or justifiable for a defendant to do everything conceivably imaginable to provide every conceivable protection against danger. To do so could diminish resources, increase costs, destroy function and utility, and cause more detriment to society as a whole. For instance, while automobile manufacturers could significantly restrict the speed of automobiles to reduce the consequences of crash injuries, doing so would severely undercut the utility of the automobile by substantially increasing travel time and thereby limiting the geographic reach of automobile travel to the detriment of society in both business and personal life. The witness must be prepared to point out the absurdity of The Reptile proposition. Finally, it is important to remember that jurors do not decide cases in a vacuum. Every situation, event, incident and moment in time is different. The witness must be prepared with these realities in mind. Flipping The Reptile Script on Plaintiffs and Their Experts In addition to the above, the witness must be prepared, when appropriate, to attempt to switch the focus from the purported actions or inactions of the defendant to the actions or inactions of the Plaintiff. Safety, especially in a products liability case, is a two-way street, and cannot exist if product users do not take reasonable steps to protect themselves (and the community). For the Defense attorney, this means giving The Reptile Plaintiff attorney a taste of their own medicine. For instance, where Plaintiffs do not follow a manufacturer s warnings or instructions for use, or alter or misuse a product, not only are they endangering themselves, but they are potentially threatening and endangering the community at large. Securing admissions from Plaintiffs and their unsuspecting experts regarding such behavior can prove just as devastating to the Plaintiff s case as Reptile admissions from defense company representatives can be to the defense s case. Indeed, we have found from experience that Plaintiff attorneys are uncomfortably and unexpectedly put on the defensive and are quick to object to reverse Reptile questions posed to Plaintiffs and their experts regarding a Plaintiff s potentially community-threatening conduct in the case. We have also found that, while Plaintiff s attorneys may be prepared for Reptile crossexamination of company witnesses, in most instances they have not prepared their experts for such reverse Reptile tactics, resulting in either favorable admissions or unreasonable responses to the commonsense and innocuous defense Reptile propositions. Examples of reverse Reptile questions include: Would a reasonable and prudent product user review the operator s manual and other instructions from the manufacturer? Would a reasonable and prudent product user follow the instructions from the manufacturer? 6

7 Would you recommend that a product user use the product in a manner that violates the instructions from the manufacturer? If a product user were to use the product in violation of the instructions provided by the manufacturer, would you consider that misuse? Is using the product without reviewing the manufacturer s instructions not a direct violation of those very instructions? Is it reasonable for a person to use the product in such a manner [or under such conditions] that it results in Recap of How to Answer Reptile Safety Rule Questions Answer honestly, carefully, and thoughtfully. Note the impossibility of giving a definitive answer to such broad, vague or general questions. QUALIFY, QUALIFY, QUALIFY (i.e., poison, poison, poison the answer) Rarely will yes or no suffice, nor will it be accurate. Conclusion At its core, The Reptile depends upon witness preparation by the defense counsel being focused only on the facts of the case, and not on how to respond to the discussion of safety rules and principles. The key to defeating or neutralizing The Reptile is to prepare the deposition witness as if he or she is testifying at trial, and to prepare the witness on how to respond to proposed safety rules questions. The following sample safety rule questions and answers should provide a tool for witness preparation and training. 7

8 Sample Reptile Deposition Questions & Sample Effective Responses 1. Does [company] agree that product manufacturers must make products that are free from defects? [Note: applicable objections to all of the following Reptile questions would include, but not be limited to: lacks foundation, misstates the applicable legal standard, vague, ambiguous, calls for a legal conclusion, incomplete hypothetical, argumentative. Additional potential objections are set forth at the end of this section.] a. That depends on how you define defect, but generally speaking that may be true. But keep in mind some products are dangerous by design, like guns. b. I would agree that product manufacturers must act reasonably in making products that have no hidden and dangerous defective conditions. 2. Does [company] agree that if a manufacturer makes a product that has a defect and someone is injured because of that defect, then the manufacturer is responsible for the harms and losses caused? a. It depends on the facts, and you haven t given me any specifics to enable me to answer such a generic question. b. It depends on the circumstances, but it is also fair to generalize that consumers have responsibility for how they use products. 3. Does [company] agree that manufacturers must make their products so they operate the way the manufacturer represents they will operate? a. There are too many unidentified variables to answer such a general question. 4. Does [company] agree that if a product does not operate the way in which it is represented and a person is injured as a result, then the manufacturer is responsible for the harm caused to that person? a. It depends on the facts of the incident, which you haven t given me. b. There are too many possible fact scenarios to answer such an abstract question. c. The answer to such a broad question would depend on the facts, such as how the injured person was using the product and whether she was using it safely or correctly. 8

9 5. Does [company] agree that an authorized dealer must follow the product manufacturer s policies or recommendations when selling, servicing, or repairing a product? a. Sometimes that can be true, but not all the time. 6. Does [company] agree that if an authorized dealer fails to follow the product manufacturer s policies, procedures, or recommendations and that failure causes injury to a customer, then the dealer is responsible for the harms and losses caused? a. It would depend on the facts. 7. Do you agree that a manufacturer assumes the responsibility for the safety of consumers using its products? a. It depends on the circumstances, but it is also fair to generalize that consumers have responsibility for how and when they use products. 8. Do you agree that part of that responsibility includes providing products that are as safe as they can be for the reasonable use of those products by the consumers that use them? a. As safe as they can be? It depends; safety must be balanced with many other factors, like the purpose of the product, its intended use, function, and utility, and also its availability. b. It is such a broad and general question making it impossible to provide a definitive response. 9. Do you agree that a manufacturer should adequately warn the public of known dangers associated with its product? a. Sometimes that can be true, but not all the time. b. It depends on what type of danger you re talking about; some dangers are so obvious and understood that no warning is necessary Do you agree that it is the duty of a manufacturer to design, formulate and manufacture a safe product for customers? a. I understand a product manufacturer s duty to be defined by law, and I m not sure your question accurately captures the law. 13 Such a question and answer highlights the importance of making sure the corporate witness and defense experts are on the same page and that their testimony is consistent, especially as it relates to product design and warnings, and the engineering decisions/judgments factored into the product design and warnings. 9

10 b. I understand a product manufacturer s duty is to comply with the law and the duty prescribed by law. 11. Do you agree that after a product hits market, certain adverse events become known? a. Sometimes adverse events occur, and sometimes they are reported, but not always. 12. Do you agree that it is the duty of the manufacturer to adequately warn of adverse events? a. The answer to that very broad question depends on the type of the adverse event, whether it is reported, whether it is likely to recur, and a whole host of factors that are not included in your question. 13. Do you agree that, once a manufacturer becomes aware of adverse events related to its product, a company should proactively try to reduce these adverse events from happening? a. That is a very broad question that is difficult to answer because the answer would depend on the particular facts and circumstances associated with the adverse event at issue. b. Sometimes that might be the appropriate reaction, but not in every situation. 14. Do you agree that a manufacturer has a duty to continue to seek ways to improve the efficacy and safety of its products? a. When you use the word duty, it sounds like a legal term to me, and I m not a lawyer. I know a product manufacturer s duty is defined by the law, and I am not sure your question captures all the parameters of a manufacturer s legal duty. b. The answer to that abstract question would really depend on the product in question, the way it is used, evolving technology and science just so many factors that it is impossible to answer your question definitively. 15. Do you agree that if a manufacturer makes a product that is defective and someone is injured because of that defect, then the manufacturer is responsible for the injuries/losses caused? a. It really depends on the facts and circumstances of the event, including whether the injured person was using the product appropriately. 10

11 16. Do you agree that a manufacturer should communicate what it knows to the public about the products it places into the market? a. It depends on what type of product knowledge you are talking about. I can think of a lot of knowledge concerning a product that would not be relevant to the public or to users, or might even confuse or overwhelm them to the point they might use the product incorrectly. 17. Is a manufacturer allowed to needlessly endanger the public? Even if the manufacturer has met all applicable standards and regulations? a. I don t understand what you mean by needlessly endanger. b. That is a confusing question; can you define needlessly endanger? c. That s a very broad question, what specific circumstances are you referring to? 18. Is a manufacturer allowed to hide a danger? Even if the manufacturer has met all applicable standards and regulations? a. I don t know what you mean by hide and danger, what particular circumstances are you referring to? 19. Is a manufacturer allowed to ignore a known danger it its product? Even if the manufacturer has met all applicable standards and regulations? a. It depends on what you mean by a known danger, what particular circumstances are you referring to? b. It would depend on the nature of the danger and a whole lot of factors you haven t given to me in your very vague question. 20. Do you believe [company] is a good company? An ethical company? a. All the people with whom I work strive to make the company an ethical one. b. Corporate integrity and high ethical standards are certainly goals we strive to achieve, among many others. 21. Do you believe products manufactured by [company] should be safe? a. It depends on what you mean by safe in the very broad sense of your question. b. Products manufactured by [company] should be reasonably safe when they are used according to their instructions for use, generally speaking. 11

12 22. Do you believe products manufactured by [company] are safe? a. I believe products manufactured by [company] are as reasonably safe as the science, technology and law permit and require. b. It depends on what you mean by safe in the very broad sense of your question. 23. But a product is not safe it if causes injury is it? a. I do not agree with that. b. That is not necessarily true. It depends upon the circumstances of the case and how the product was used and under what conditions (time, speed, etc.) 24. Does [company] believe in safety? a. Safety is certainly an important goal, yes b. We strive for safety, of course 25. Do you agree that if [company] violates any public-safety rules, it is responsible for any harm caused by that violation? a. I do not know what you mean by public-safety rules. b. It depends upon the circumstances and conditions. c. That could be true some of the times, but that is not happened here. 26. Should [company] have to make safety more important than profit? [This question calls for an argumentative objection, among others.] a. That is such a broad and general question. b. Safety is and should be an important goal, and of course earning enough money to remain in business is an important goal as well. 27. Do you agree that if [company] can make the product that it is selling to consumers safer, it should? a. That is such a broad and general question. b. The question incorrectly assumes it can and should be done. Here, the product was designed and manufactured after extensive testing and safety research 12

13 resulting in a safe product for its expected and reasonably foreseeable uses and misuses. c. It depends, sometimes there are products that cannot be made completely safe, because they would not work, like a knife, so it depends. 28. Is it ever proper for a company to refrain from making warning changes because it is concerned that a change would have a negative impact on sales? a. That is too broad of a question for me to accurately answer. b. I think it depends on the type of warning you re talking about and the type of impact you are trying to describe. 29. Do you have an opinion, as a mother/father/provider [not corporate representative], as to whether customers have a right to know about the risks associated with a product? a. Any opinion I might express would depend on the facts and circumstances, such as the type of risk you re referring to. 30. As a mother/father/provider, wouldn t you want to know the scope of what [company] knew in terms of life-threatening risks associated with the product? a. It would depend on the nature and type of risk, and whether and how I might be planning to use the product, what type of product, -- there are just too many facts and circumstances that would affect my answer. 31. If a product had the potential to cause serious injuries or death, wouldn t you like to know before giving or recommending it to your child/spouse/family member? a. It would depend on the specific facts and circumstances. b. It would depend on the full picture. 32. As a parent, wouldn t you want to know everything you can about a product before giving or recommending it to your child/spouse/family member? a. I would not agree with the way you have stated that. 33. As a parent, do you rely on product manufacturers to provide all safety information relating to a product so you can make an informed decision? a. I rely on some information provided by product manufacturers, as well as my own common sense and experience. 13

14 34. Would you as a user of a product expect the manufacturer to hold back or not disclose any safety information relating to a product? a. I would not agree with the way you have stated that. b. How much and what information to disclose depends on the full picture. c. Too much information can be overwhelming, and can dilute the really important information, so it depends. 35. Would you be surprised if you were using a product that had a risk of death or severe injury and that risk wasn t disclosed by the manufacturer? a. It would depend on the full picture. 36. Do you believe everyone at [company] is responsible for safety? a. That is an overbroad question. b. I would not agree with the way you have phrased that. 37. Do you, as [insert job title], hold yourself accountable for the safety of users of [company] products? a. I m not sure what you mean by hold myself accountable but I regard consumer safety as an important goal. 38. Does a manufacturer have a duty to furnish to end users a product that is free from hazards that are likely to cause death or serious physical harm? 14 a. I understand a manufacturer s duty to be defined by law, and I m not sure your question accurately captures the law. 14 Questions were actual questions posed by a Plaintiff s attorney to a defense corporate witness during a deposition defended by one of the author s partners. The questions were posed in the form of a PowerPoint slide shown to the witness on a computer screen. The Plaintiff s attorney intended to show the witness each question and have the witness answer in only one of three ways: I agree, I disagree or I cannot answer the question. After making the appropriate objections on the record, the defense attorney actually instructed the witness not to answer the questions as they did not accurately reflect the correct legal standard. Following a motion to compel, the court ordered the defense witness to answer the questions, but required the questions to be put into written interrogatories and responded to as such. Thus, the witness was able to answer The Reptile questions in writing with the assistance of counsel in such a manner as to completely poison the responses. Obviously, the viability of such an approach depends upon a number of factors such as the jurisdiction, the judge and the client s willingness to be subject to monetary sanctions in the event of an adverse outcome. 14

15 b. I understand a manufacturer s duty is to comply with the law and the duty prescribed by law. c. When you use the word duty, it sounds like a legal term to me, and I m not a lawyer. I know a product manufacturer s duty is defined by the law, and I don t think that your question captures all the parameters of a manufacturer s legal duty. 39. Is any risk of serious injury or death unreasonable if there is a means to reduce or eliminate the risk? a. I wouldn t agree with the broad way you have stated that. b. It depends on the full picture. 40. Should a manufacturer know about the potential hazards caused by the design of its products? a. Potential hazards should be investigated, but it is not possible to discover all of them in every circumstance. 41. Should a product engineer be held accountable if his or her action or inaction, with regard to the design of a product, causes harm to someone? a. It would depend on the full picture. b. Sometimes that would be true, but not always. It would depend on the facts and circumstances of the accident. 42. Does a company that designs a product and places it into the stream of commerce have an obligation not to take any action or take any inaction that may result in harm to someone from the reasonable and foreseeable use of the work product? a. That is a long, loaded question that I m not sure I am in a position to answer because it is very vague and confusing. Additional Sample Responses to Reptile Questions 1. There are too many possible fact scenarios to give a definitive answer to such an abstract question. 2. There are too many unidentified variables to answer such a general question. 3. It depends. 4. It depends on the full picture. 5. It depends on the facts, and you haven t given me enough specifics to enable me to answer such a generic question. 6. It s a balancing act. 15

16 7. Not necessarily in every situation. 8. Not necessarily, as every situation is different. 9. Not always. 10. Sometimes that can be true, but not all the time. 11. Yes, that is sometimes true, but that is not what happened in this case. 12. In general, that could be true. 13. In what circumstances are you referring? 14. That is a very broad question, what specific circumstances are you referring to? 15. I don t agree with that statement the way you have phrased it. 16. That s too loaded of a question for me to answer. Potential Objections To Reptilian Questions Lacks foundation Vague, ambiguous Calls for a legal conclusion Misstates the applicable legal standard Irrelevant Intentionally confusing and misleading Mischaracterizes the facts and law Calls for inappropriate, inadmissible and irrelevant lay opinion testimony Argumentative Badgering Oppressive Intended to harass, embarrass and humiliate Violates ban on Golden Rule arguments Supplants legal standard with company s internal standard Incomplete hypothetical Invites jury to disregard oath & key instructions Reptilian Present belief/opinion regarding past factual scenario attorney-client privilege? Where the question asks the witness to state a present belief or opinion about a past factual scenario, it may invade the attorney-client privilege because the witness s answer could be based on information and analysis gained through multiple meetings and discussions with defense counsel. 16