August 2015

In what is believed to be one of the largest verdicts for a sexual assault victim in Massachusetts history, Kira Wahlstrom*, now 41 years old, was awarded $6.6 million dollars as a result of a parking garage owner’s negligence.  The jury found that JPA I Management Co. Inc., which owned the Radisson Hotel and its parking garage, where the rape occurred, and JPA IV Management Co. Inc., which operated them, failed to provide adequate security and warnings. Ms. Wahlstrom was the second women brutally attacked in a two week span in 2009 by the same individual inside the parking garage which is located in Boston, MA.  Ms. Wahlstrom maintained that she was never informed a rape had occurred in the same parking garage less than two weeks prior to her rape, and that JPA did not take preventative measures to prevent the incident. Wahlstrom alleged that the hotel should have warned customers and posted extra garage security.  The jury agreed, awarding Ms. Wahlstrom $4 million dollars.  An additional $2.6 million was added to the verdict pursuant to Massachusetts’ pre-judgment interest statute.

One member of Ms. Wahlstrom’s trial team was attorney Don Keenan of the Keenan Law Firm, who is a well-known plaintiff’s attorney and co-author of “Reptile: The 2009 Manual of the Plaintiff’s Revolution.”  Keenan’s methods are commonly referred to as the “Reptile Theory,” which at its core is used by plaintiffs to frame a case so it appears the defendant chose to violate a safety rule and that the same defendant should not be allowed to needlessly endanger the public.  Reptile Theory proclaims that you can prevail at trial by speaking to, and even scaring the primitive and instinctual part of jurors’ brains.  The Reptile Theory may be a newer approach, but it is not without success – Keenan’s website boasts that plaintiffs have recovered more than $6 billion dollars in verdicts and settlements as a result of utilizing this theory. The Reptile Theory purports to provide a blueprint to succeeding at trial by applying advanced neuro-scientific techniques to pretrial discovery, jury selection and trial.  Plaintiffs state that the Reptile Theory is a strategy calculated to manipulate jurors to fear for the safety of themselves, their families, and their communities, and to play upon that fear to encourage jurors to punish defendants for their perceived unsafe and dangerous conduct in order for the jurors to protect themselves and their families.

There is little doubt that Reptile methods played a key role in the verdict amount. Keenan’s and Wahlstrom’s post-trial comments highlight the Reptile Theory and the impact it could have on plaintiff’s receiving large verdicts:

 

“It’s a national problem, a wake-up call to all of us: parking garages are not as safe as we think…This is not a ma and pa parking garage — there are 700 spaces. If anybody should have the resources to keep customers safe, it should be this company, and they didn’t.” – Don Keenan

 

“It was about helping people and maybe changing the way that people run their parking garages and the way they treat rape victims and, hopefully, more men and women will speak out when things like this happen.”

“We need to have better parking garage security, whether it be cameras or one person on every floor. They need to do something so that people are safe when they go there” -Wahlstrom

 

There are many legitimate criticisms of the purported science behind the Reptile Theory. That is, however, beside the point.  The bottom line is that the strategy is very effective as the framework of a plaintiff’s case, and the methods utilized by Reptile plaintiff counsel can lead to extremely damaging testimony by unprepared defense witnesses and experts both at deposition and trial. Furthermore, the methods are highly effective in voir dire, and also in influencing a jury in the opening/closing statement statements of trials. The verdict in the Wahlstrom matter, undoubtedly one of the highest for a sexual assault victim in Massachusetts history, highlights that defense counsel must be proactive in preparing their clients and case for the Reptile.

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At MG&M, we have worked closely with jury consultants, litigation psychologists and respected co-defense counsel in developing methods for combatting the Reptile. This includes witness preparation; motions in limine to preclude or limit the use of Reptile at trial; enhanced voir dire methods designed to counteract the Reptile during the first interactions with the jurors; and opening/closing statement strategy.  The defense of companies against the Reptile starts early, and spotting the Reptile Theory and its themes is imperative to a favorable outcome. Even your first witness in discovery needs to be prepared to face it. By way of one example, many of the questions posted by a Reptile plaintiff’s counsel at a deposition appear to be innocuous general safety questions that, on their face, are difficult with which to disagree. In fact, a defendant may be eager to agree with these questions posed by plaintiff’s counsel in an effort to demonstrate they are safety conscious and concerned about public safety.  These questions are, however, anything but innocuous.  Instead they are a carefully crafted set-up by plaintiff’s counsel to box defendants into a corner before they turn to case-specific questions.

Plaintiff’s counsel across the country certainly took notice of another Reptile victory this week, which resulted in a verdict significantly in excess of historical values in Massachusetts. And it is certain that they will continue to enhance and refine their amphibian ways. The question for defense counsel and their clients is, will you be ready to face it?

*Consistent with the approach taken by the Associated Press, we do not usually identify people who say they are victims of sexual abuse, but Ms. Wahlstrom has spoken publicly often about her case.

As previously reported, following the 2012 and 2013 American Bar Association’s amendments to its Model Rules of Professional Conduct, many jurisdictions began to reexamine their own rules.  Massachusetts followed suit, and on July 1, 2015, the Supreme Judicial Court (SJC) adopted several revisions to the Massachusetts Rules of Professional Conduct (Mass. R. Prof. C.) recommended by its Standing Advisory Committee.  This blog post is the second in a series designed to inform practitioners of several important changes to the Massachusetts rules.

 

The Duty to Remain Current on Latest Technologies

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Before an attorney can accept a matter, he or she has to comply with the competency standards found in Mass. R. Prof. C. 1.1.  According to said Rule, competent representation requires “the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.”

 

In response to the rapidly changing technologies impacting the practice of law, the SJC adopted Comment 8 to Rule 1.1, which states:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology . . . (emphasis supplied).

With the rise of e-discovery, this Comment is particularly appropriate.  The State Bar of California Standing Ethics Committee on Professional Responsibility and Conduct in its Formal Opinion No. 2015-193, noted that “[I]n today’s technological world almost every litigation matter potentially involves [e-discovery],” and failing to have a “basic understanding of, and facility with, issues relating to e-discovery” can eliminate an attorney’s competency for a case.

 

We expect Massachusetts to follow the guidance provided by California’s Committee, and interpret the new Comment to allow an attorney who is not competent in this regard to nonetheless perform legal services competently by: 1) associating with or consulting technical consultants or competent counsel; or 2) acquiring sufficient learning and skill before performance is required.  Lawyers must decline the matter when they cannot meet these two provisos, and when they do not, Comment 8 gives the Board of Bar Overseers an additional tool to sanction lawyers who mishandle e-discovery by producing confidential or privileged information, or by failing to locate and produce electronically-stored discoverable data.

 

Comment 8 should not, however, be viewed solely in the e-discovery prism.  The headlines scream about the latest hacking attacks and disclosures of personal information.  Failing to maintain proper firewalls and other security features, notwithstanding a lack of bad faith conduct, may also viewed as a disciplinary rule violation.  Given that the use of computers and e-mail are unavoidable, lawyers should follow the same guidance applied to e-discovery.  That is, engage technical consultants or acquire sufficient learning and skill.  It may cost a few dollars, but it’s worth it, particularly in light of the potential the risks associated with Comment 8 to Mass. R. Prof. C. Rule 1.1.

 

For more information on the revised rules visit:

 

http://www.mass.gov/courts/docs/sjc/docs/rules/a-sjc-order-rules-of-professional-conduct-adopted-march-2015.pdf