By Don Keenan
A frequent question asked at seminars is, “Can the Reptile© be applied to the judge?” The answer is, quite simply, of course. Judges are human and no different from anybody else regarding their inner motivations. I was recently asked this question by one of the lawyers at my firm and here was the reply:
FEAR OF REVERSAL
The simple truth is that judges are motivated by a fear of reversal. It is one of the most distasteful things that can happen to them. Therefore, it is essential to embed that fear into them during argument. How is that done? It is not done by threatening. If you tell a judge, “If you rule against me I’m going to take you up and get you reversed,” that will only trigger a resistance and the ruling against you will follow in nanoseconds.
The way to frame the issue is to be the judge’s friend. You can say something like, “Your Honor, my job is to see you don’t get reversed. I will present the facts and the law to you in such a way that you will be able to make a bulletproof ruling.” Subtly bringing up the “R” word and portraying your position as the one which will protect him can contribute to a successful ruling.
On occasion it may be obvious that a ruling against you will be reversible error. In this case, a good way to approach the judge is to say, “Your honor, I have great respect for you. You and I know something we did not know in law school: Certain rulings can be in the gray area; discretionary and irreversible. I want to help you and the last thing I want to see is you get reversed, so you deserve to know this is a clear – not a gray – area. I wouldn’t say this unless I know it is true that a ruling for the defense will lead to an automatic reversal. I wouldn’t say it if I didn’t mean it.”
If you remember one thing about the Reptile©, it is the Reptile© wants something to be simple and easy to understand right now. In contrast, the Reptile© is wary of complexity. If you can let the judge know the simple, easy thing to do right now is rule in your favor you have activated the Reptile©. A good example is a defendant’s motion for summary judgment. If you can go right to the place where there is a disputed factual issue and point that out you have shown the judge the simple and easy solution. If you can point out an appeals court (or even another trial judge) that has ruled your way, you make it simple and easy for the judge to follow what another has already done.
RULES ENFORCER
How do you deal with the very conservative, pro-business judge who seems to delight in turning personal injury plaintiffs out of court?
A powerful Reptilian way is to recognize judges view themselves as protectors of the community. Because of their desire to protect the community they are open to the same methods used for jurors. First, conservative judges tend to be very conscious of the importance of rules. When the defendant breaks rules, they agree, it is offensive to judges. If the importance of the rule can be accentuated by spreading the tentacles of danger in the usual ways (showing how bad the harm could have been from this activity, not just what happened here and, if appropriate, using analogies to show how breaking the rule is a threat to others as well) then the judge will be more receptive to your arguments. If the threat can be analogized to the judge personally, that is even better. But remember, subtlety rules the Reptile©.
A good way to help the judge “get it” is to say, “Your Honor, these rules were not enacted to protect only my client; they were enacted to protect everyone who might be traveling on the highway. The reason why this is the rule is because when this rule is broken horrific things happen. There is more carnage on the highways than in most wars.” Then, you can follow the lead of a principle established by Dale Carnegie, who said a salesman should think first of his customer and his needs – rather than his product: “Your Honor, I’m here to make your difficult job simple. I know what you need and I understand your concerns. In this case, simple rules were broken and we cannot tolerate rule breakers. Here the rule is clear and must be followed. If the defendant is given a pass even occasionally it is like playing Russian roulette with the citizens of this community.”
Be careful of using the word “dangerous” alone. We own the rule, but some “s*** happens” types see everything as dangerous. We should always precede danger with “preventable” or “anticipatable.” If the danger is anticipatable, it is simple for the judge to enforce the rule, which prevents the danger.
Pro-business judges are also often moved by arguments framed as a breach of contract rather than negligence. Almost any negligent act can be characterized in contract terms: “The driver has a contract with the community. The community gives him a license and lets him drive and his part of the bargain is to drive safely and not be a threat to the community.” Another example: “The doctor and the patient had a contract. The patient’s obligation was to pay the doctor and do what the doctor said to do. The doctor’s obligation was to practice according to the safety rules of his profession. The patient did his part. Did the doctor do his?” These arguments are effective with jurors and are Reptilian. A contract is a promise for a promise. Promises, when kept, keep us safe. On the other hand, bad things can happen when someone does not keep a promise.
REPTILE© NEEDS CONSISTENCY
It can be helpful to invoke the concept of consistency in the law. The Reptile© loves consistency and is threatened by uncertainty: “Your Honor, even if you or I may disagree personally with a law you know the importance of stare decisis. The appeals courts have ruled on this and the rulings are clear.” In the present economic climate you can also say, “We never had to worry about this until the recent decline in the economy, which has rendered our judicial system without necessary funds. Court staffs have been cut and vacancies are unfilled. The last thing we need to do is burden them with the time and expense of an unnecessary appeal.”
REPTILE© AND THE BENCH TRIAL
In keeping with the clear understanding that the judge fully brings his or her Reptile© into the courtroom, let me tell you how I used it in August in a bench trial in South Carolina. I won't go into the reasons for the trial, but it was a tractor-trailer/tractor-trailer collision. I represented a 40-year-old truck driver who had been sideswiped by another truck driver, which had left him disabled.
In opening statement, I stressed that the tractor-trailer safety rules not only protected my client, but everyone on the highway: The kids in the school bus, the Sunday school class of old ladies out for afternoon tea, the Afghan Vet back on leave and the Judge herself. Every citizen in this area frequently travels I-40, so the safety rules that were broken are intended to prevent harm to everyone.
In closing, I continued this same theme with a slight twist. I said:
"Your Honor, the community is fortunate that the vehicle sideswiped by the tractor-trailer defendant was a many-ton dump truck. If it would have been any other vehicle, it would have been slaughter and blood on the highway. If it was an automobile, a van or an SUV, that occupant would have clearly died or had significant brain damage and paralysis. The community is fortunate that the vehicle hit was a dump truck. But, as you heard from the evidence, my client was severely injured and left with a fusion, loss of memory and disabled."
Likewise, in closing I used the judge's Reptile© on damages:
“Your Honor, if you or I had a double cervical fusion and were required to be on pain medications throughout our day, I'm convinced that you would still come to work every day and continue your tradition of being a great Judge for the community. If I were disabled, perhaps in a wheelchair, I would still continue as a trial lawyer and perhaps my verdicts would increase.
“But a cervical fusion and pain medication to a man who dropped out of the eighth grade, did manual labor all his life and rose to a position of being a dump truck driver is now rendered unemployable.
“What does it mean for a man to be unemployable? Well, in this case it means a man who had worked hard to have a beautiful house for himself and his two children so that they all could have their own bedroom has been lost. Imagine the attack on his self-esteem and self-worth when he was forced to leave that beautiful house and now live in a two-bedroom trailer because he has no job.
“Where he once had the dignity of standing on his own two feet, feeling proud for putting a roof over his family's head and food on the table, he is now an invalid. Where he used to coach his son's little league team, he now walks with a cane and sits on the edge of the bleachers.
“You saw a measure of the man when he testified. The last thing this man wants in life is to be pitied and to be viewed by all as half a man.”
I then went on to talk about the numerical value of his loss of life, mental anguish, disparate depression, etc. I borrowed the "whole man" approach from the great Inner Circle Member Mo Levine, who taught us that we should look beyond the injury to see the impact on that person's life. The judge and I would still be able to work and have self-esteem, while my client no longer could.