If you have ever read The Jungle Book, a collection of stories by Rudyard Kipling, Rikki-Tikki-Tavi should sound familiar. Rikki-Tikki-Tavi follows the adventures of a brave young mongoose who, despite his size and position, valiantly conquers a venomous snake to protect his human family. Kipling's tale is based in fact: Real-life mongooses are immune to snake venom and are known for their ability to attack snakes.

The Reptile Attacks

Even if you are not familiar with Rikki-Tikki-Tavi, as a litigator, you are certainly familiar with the infamous "Reptile theory." The series of questions we refer to as Reptilian are now commonplace for plaintiff lawyers everywhere after becoming a nationwide phenomenon in 2009 when David Ball and Don Keenan published Reptile: The 2009 Manual of the Plaintiff's Revolution. Following the theory, Reptile questioners start a deposition innocently enough, asking the company witness to acknowledge basic propositions of safety with which most everyone would agree. For example, plaintiff's counsel will ask a general question about the importance of safety to consumers or ask the witness to agree that the company they work for should make safety a top priority.

The real Reptile is in the details—these questions are repeated in slightly different forms with slightly different language, all with the ultimate goal of equating the company's ruler to the company's legal duty. These sound bites are often used easily and effectively at trial by showing the company witness video depositions to the jury. The goal is a subtle, psychological pressure on jurors to find fault in the company's conduct based on these alleged admissions on video, without regard to the evidence presented at trial.

How It Works

On a subliminal level, the Reptile's purpose is to make jurors feel as though the company's conduct has put not only the plaintiff in danger but also the jurors themselves. Reptile questions are formulated carefully to appeal to the part of a juror's brain that is inherently programmed to evaluate safety and respond in a defensive way: If anything threatens that sense of safety, the Reptile responds to keep itself safe. In trial, the Reptile is the juror, and the goal is to have the juror keep himself safe by "sending a message." Jurors send a message by reaching a verdict that deters the defendant from behavior that not only threatened the plaintiff but also threatens the juror's safety and well-being. When the Reptile theory is employed successfully, one little sound bite in a video deposition can do just that.

To avoid this viper pit, company witnesses are taught trigger words to look for and given tips to sidestep the reptiles. But that is not enough. There must be a strategy for company counsel and witnesses to use offensively: a mongoose. Seemingly harmless questions about safety should be rejoined with similar questions—like asking the witness if a patient should make safety and health their number one priority.

Why Unleash the Mongoose?

Or perhaps a better question: Why not? In a broad sense, a mongoose question is any question asked at a deposition that develops using evidence of the corporate defendant's genuine concern for the safety and well-being of anyone using its product. The successful Mongoose question and answer make plaintiff's counsel cringe when the video deposition is played at trial. Though unleashing the Mongoose may not be appropriate in every context, if the plaintiff engages in Reptilian conduct, asking countervailing Mongoose questions could prove quite effective. As trials become increasingly more dependent on presentation of key evidence by video deposition and as plaintiff lawyers embrace the Reptile theory, defense lawyers must understand the impact that this subtle, psychological approach can produce. Preparations must be made to counter that prejudice forcefully and effectively.

How to Be a Mongoose

To unleash the Mongoose, you must prepare your witness for redirect questions that will be responsive to some of the more common Reptilian questions. This is more than just an aggressive redirect exam. This is a pointed, specific focus on key points, designed to dispute and neutralize Reptilian questions from plaintiff's counsel. Just as the plaintiff starts out with soft, seemingly innocent Reptile questions, we can start out with soft, non-controversial Mongoose questions, too.

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