By Joey McCutchen & A. Tyler Hudgens
Note from Papa Don: As you know, one focus of the New Frontier is to spread the word that we own the law and our techniques are rock solid. This has three legs:
- Open seminars to include State Bar seminars with a Reptile©-Lite, now changed to Reptile© in Practice, content;
- Publication of articles in any forum that will publish them; and
- Creation of a hard bound book Essential of Tort Law with the Black-Letter law in States.
Last fall, three Arkansas stalwarts – Joey McCutchen, Jim Lyons and Paul Ford – agreed to host the first Reptile© in Practice seminar. Lots of hard work went into it, but they set the gold standard (as I knew they would) and they have set the Arkansas Trial Lawyer RECORD for a seminar. We all owe a debt to these three and the other speakers at this seminar. Here’s an update on how the event went:
The Arkansas Trial Lawyers Association (ATLA) hosted a CLE seminar on Jan. 29, “Black-Letter Law You Have Forgotten.” This CLE was billed as “Reptile©-Lite” and aimed to introduce Arkansas trial lawyers to the Reptile© while emphasizing that it is grounded in the black-letter law of the state. The excitement surrounding this seminar was evident in the turnout: 77 members of ATLA attended the event, making it one of the best-attended CLEs ever.
Defense lawyers are trying to beat down the Reptile© by convincing judges that it is inconsistent with the law. Through this seminar, ATLA aimed to pull back the curtain on this tactic and show that not only is the Reptile© consistent with the law, but the law is also on the Reptile’s side. As was emphasized over and over, “We own the black-letter law.”
Joey McCutchen emphasized at the beginning that the Reptile© is a symphony, not a buffet. He encouraged anyone who was interested in utilizing Reptile© tactics to come to one of the Keenan Ball College (KBC) courses to get the full immersion in the Reptile© paradigm, which is necessary to employ the Reptile© to its full potential. Joey noted that the purpose of this particular seminar was to introduce lawyers to the basics of the Reptile© so that they do not go into court with half-formed snippets and make bad case law, ruining it for the rest of us.
Gregg Luther spoke first on the topic of the black-letter law fundamentals that undergird the Reptile©. The centerpiece of black-letter law in torts is Palsgraf v. Long Island Railroad, and Palsgraf was likewise the centerpiece of Luther’s talk.
Palsgraf established the principle that foreseeability defines a defendant’s duty. Therefore, the plaintiff’s lawyer must establish that his client was a foreseeable victim. Arguing foreseeability allows us to spread the tentacles of danger. Gregg went on to show that a lot of Arkansas case law requires foreseeability to be proven as an element of negligence and that the Model Jury Instructions practically require us to spread the tentacles of danger as an element of proof.
Len Gabbay spoke after Gregg, covering Reptile© voir dire. Len emphasized the three rules of voir dire: 1) bonding, 2) rat killing, and 3) being genuine and real. Len spoke about using the passion question in order to bond with the jurors. When the jurors feel like they are bonding with you, they are more comfortable and more truthful. When jurors are more truthful, you can find your rats more easily. Len emphasized the need for trial lawyers to go off-code during voir dire so that the jurors will trust them. Voir dire is also the time to begin emphasizing to the jury their role as the conscience of the community, which tells each member of the jury that their collective verdict means something for the community as a whole – and not just our clients.
Mindy Bish covered winning a case in the opening. She emphasized the need to take the time to dump the “lawyer speak” and make an opening statement using simple words with short sentences, so everyone can understand it. Returning to the theme of foreseeability, Mindy starts her openings with a statistic showing just how foreseeable this type of harm is. She also uses safety rules to show the jurors how this kind of harm could be prevented. In this seminar, she discussed the seven rules to use in formulating these safety rules. She then took the group through the Ball opening format, step by step, to show what to do (and not to do) when formulating an opening.
Danny Ellis instructed the group on direct and cross examinations. Danny continued the theme of foreseeability in describing how to conduct direct examination. Reptile© lawyers must ask questions that go to foreseeability. When questioning experts, they must establish the maximum range of harm. Reptile© lawyers should also prove liability through the defendant when possible. On cross-examination, we have to be off-code and perfect. When it comes to defendant experts, we should either hijack or disqualify them.
Paul Ford covered closing arguments. Closing arguments, once again, show the necessity of being off-code. We must be subtle, not telling the jury what to do and not marshalling the evidence. We must gently remind the jury of what they have seen and heard. An important tool of Reptile© lawyers in Arkansas is Model Jury Instruction 104, which allows jurors to use their own personal observations and experiences in deliberation. Arkansas has great case law that emphasizes the role of the jury as the conscience of the community. We also have law that suggests that lawyers may walk right up to the line of the Golden Rule and that allows arguments telling the jury that they can send a message. Paul emphasized that empowering the jury is one of the most powerful things a Reptile© lawyer can do. Empowering the jury allows it to create a legacy in its community by saying that the defendant’s conduct will not be tolerated.
Judge Chip Welch rounded out the day with a presentation on ethical considerations when using the Reptile©. Judge Welch reminded us that lawyers must always obey the rules and law of the tribunal in good faith. He also reminded us that our rules of ethics prohibit us from alluding to any matter that is not supported by evidence, or voice any personal opinions as to culpability. As friendly as Arkansas black-letter law is to the Reptile©; however, those ethical considerations should be relatively easy for Reptile© lawyers to fulfill.
The survey taken among attendees after the seminar indicated it was a resounding success. Every speaker was given high marks for their presentations, and the CLE course received an 86.36 percent rating as “Excellent” and a 9.09 percent rating as good. Not one attendee marked the course as “Fair” or “Poor.”
Here is a sampling of the comments received about the course:
- “Cutting edge topic that was made accessible to average Arkansas attorneys…”
- “The speakers truly believe in the Reptile© and it comes across.”
- “Practical information that is useful, citations to Arkansas law.”
- “Speakers were great.”
- “This was incredibly well done…”
- “Loved learning how to apply technique. We always learn legal stuff but no application. This felt applicable.”
- “I do not ever give the highest rating, but this seminar was just that good.”
Some comments even suggested a bigger room in the future, to hold all of those woodpeckers who were interested in learning more. All in all, the Arkansas Reptile© seminar was a success. ATLA hopes that its experience in hosting this seminar can help trial lawyers in other states provide something similar and introduce more and more attorneys to the Reptile©.