Legal Reserves

by James Rosenberg

  September 10, 2018, 8:30 a.m.

  Trial Day 1

  THE COURTROOM SHINED with the counsel tables cleared from the day before. The seats in the jury box had been freshly dusted and wiped down. The fluorescent lights, hung from the high ceiling, cast a blanket of light, illuminating the two immense portraits on the wall and made the judge’s bench appear to float above the witness stand next to it.

  Kathy Wolfson had arrived two hours earlier to make sure Jeri’s courtroom was ready for the trial, with no stray piece of paper or chair left askew. The court binder, holding every document filed in the case, sat waiting for the judge’s arrival.

  A short, stocky woman in her forties, Kathy enjoyed her job as the court’s tipstaff, doing whatever was necessary to assist Jeri, from getting her coffee to running through the courthouse to track down wayward court filings. Jeri retained Kathy who had worked for Judge Weksel in the same position. With two kids almost ready for high school, whose deadbeat father had disappeared three years earlier, Kathy was grateful for Jeri’s kindness in keeping her in her job when most new judges would have employed one of their friends or family.

  Kathy always enjoyed the first day with all of the new jurors confused about the process and looking to her for guidance. As the only buffer between the court and the jurors, Kathy often developed a strong bond with them as a trial wore on. In one previous murder case, Kathy watched the jury members deteriorate upon listening to gruesome witness accounts about how the accused had dismembered his victims and fed the remains to his dog. As the testimony was coming to a close after fifteen horrific days, Kathy presumed the jury was going to convict and ultimately impose the death penalty. But even with the unredeemable defendant, Kathy watched the jurors start to fall apart realizing they were going to sentence a man to die. Not being allowed to talk about the specifics of the case, Kathy took it upon herself to make the jurors’ lives as pleasant as possible and tried to say a few kind words to them each day. The jurors recognized she was trying to help them deal with the horrible task assigned to them and after their service ended, got together and bought her dinner at a local restaurant.

  At 8:30, Jeri arrived at her chambers and thanked Kathy for organizing the courtroom and getting everything ready for jury selection. With a stack of unsigned motions on her desk, Jeri hunkered down to execute the orders while waiting for the trial participants to arrive.

  “Hey Kathy, can you come here, please,” Jeri hollered through the open door. Seconds later Kathy appeared.

  “What time did we tell our litigants to show up this morning?” Jeri asked without looking up from the stack of papers. Before Kathy could answer, they heard the door open to the anteroom to the chambers, followed by the grinding sound of a heavy cart being rolled across the tile floor.

  “Right about now. I will get everyone situated in the courtroom and whenever you want I can call for the jury panel to be sent up.”

  “Before you do, I want to talk with counsel. So when they are set up, let me know and we can meet in here. Thanks.”

  Ten minutes later, Kathy notified Jeri the lawyers were waiting to confer with her and they followed closely behind into Jeri’s chambers. Jeri motioned for Mike and Stan to sit in the chairs to her left, and Jack and Ed took the seats to the right side of her desk.

  “Is everyone ready to pick a jury?” she asked after greeting them. The lawyers nodded and Jeri told them it would be a few minutes before the jurors were brought up from the holding room.

  “Are there any preliminary matters we should handle at this time?” Jeri asked. She sensed tension in the room, which was not unusual at the beginning of a trial, and hearing nothing from the parties, she tried to lighten the tone. “Mr. Rotmen,” she addressed Stan, “I have not seen you for a long time. How are you?”

  “Well, Your Honor,” Stan replied, utilizing the formalities of court, despite being forty years Jeri’s senior, “I have not had the opportunity to appear before you yet, so let me congratulate you on your election.”

  “Thanks so much. By the way, I heard you were in the hospital recently. I hope you are doing better.”

  “Absolutely, I am feeling much stronger.” Stan said as he sat up as straight as possible.

  Turning her attention to Jack’s side of the room, she glanced at Ed Wagner. “I don’t believe we’ve met. I am Judge Richards.” Jeri rose and reached over her desk. Wagner grabbed her hand and introduced himself. Gesturing to Jack he said, “This is Mr. Rogers’ case, I’m only here for the ride. Jack tells me you and he were classmates in law school−small world. He only has great things to say about you.”

  Jeri smiled and said, “Let’s see what he has to say after the trial is over. I apologize for the mess in my office.” The lawyers examined Jeri’s chambers, but didn’t see anything out of order. “I never realized the time demands there are on judges. I’m never able to straighten anything up here. I was going to do it last night, but I went to a dinner at the County Bar Association. They were honoring all of the young judges−pretty long evening with mediocre food. But I took this home.” Everyone laughed when Jeri held up a small statue of a rhinoceros. “I’m not sure exactly what this symbolizes, but it weights a ton.” She raised the statue up to her face. “I’d say at least ten pounds.”

  She passed the trophy around and the lawyers got a chuckle from the heft of the rhino, and after it went full circle Jeri placed it back on the bookcase above Mike’s head.

  “Jury’s ready to go,” Kathy informed them, sticking her head in the office.

  “Excellent, let’s go pick a jury.”

  Chapter 46

  September 10, 2018, 9:30 a.m.

  Trial Day 1

  FORTY PROSPECTIVE JURORS filed into the courtroom and as instructed took seats in the back of the room by their assigned number. The lawyers seated at their respective counsel tables turned discretely, trying to size up the panel without appearing as though they were over−scrutinizing any individual.

  Each prospective juror had filled out a questionnaire earlier in the morning during their introductory session. The court’s staff provided the lawyers with copies and told them they had thirty minutes to review the questionnaires before jury selection would begin.

  Mike and Stan sat at the plaintiff’s counsel table and quickly reviewed their notes for the type of juror they were looking for and to make a preliminary determination as to whether any of the prospective jurors fit their criteria. Stan reminded Mike they were looking for outliers−any individual who they thought would be tremendous on their jury and, equally important, any who they would likely strike because they fit the profile of a juror who would sympathize with the department store’s case.

  At the table next to Mike and Stan, Jack Rogers and Ed Wagner were performing different functions. Jack reviewed the questionnaires and furiously took notes. Ed gazed around the courtroom, looking at the jurors, attempting to make fleeting eye contact. On his sheet of paper, he made notes about two of the jurors whom he would strike given they did not return his gaze.

  Mike and Jack were sitting less than seven feet apart, yet they still refused to acknowledge each other. Jack leaned over his yellow pad, his back turned slightly towards Mike, so he didn’t have to make eye contact.

  At precisely ten, Kathy instructed everyone to rise and Jeri marched to her bench. She welcomed the jurors, thanked them for their service and moved immediately into the jury selection phase. She gave a brief explanation of the case, read them a list of prospective witnesses and experts each side provided to the court and asked if anyone could not serve for any reason. An unkempt, balding middle-aged man dressed in a torn grey t-shirt and jeans stood and raised his hand. Jeri commanded the man to approach the bench and was joined there by the attorneys and the court reporter.

  Jeri asked the man to identify himself and the reason why he believed he could not serve. After fidgeting with his jeans,
the man stated, “My name is Michael Young. I own my own business and I can’t afford to take off time from work, and if I miss work my family will suffer.”

  Jeri examined Mr. Young quizzically. “Sir, do you have other employees who can cover for you?”

  “Sure, but they don’t know the business like I do.”

  “Will your company still be able to serve its customers?”

  “I guess, but I think I should be watching them. Plus, I don’t think I like people suing each other.”

  Exasperation flashed across Jeri’s face. “Sir, are you a fair person?”

  “Sure.”

  “Can you listen to the evidence and decide the case fairly and impartially?”

  “I suppose.”

  “Mr. Young, I believe if you are selected, you would make a fine juror. Please make sure your business has the proper coverage. This trial should take less than a week.”

  Mr. Young timidly walked back to his seat and as he did, Jeri commented, “Being asked to serve on a jury is the second highest form of service one can give to their country. I would think long and hard about making up excuses why you don’t want to be on this jury and rather think of reasons why you want to serve. All of you will be missing time from work and the court understands the inconvenience this can cause you and your family. Please understand it is appreciated and respected. Also, remember the thousands of people before you who served as jurors without complaint or excuse.” Hearing Jeri’s speech as a rebuke, Mr. Young slunk down in his seat.

  One by one, Jeri called each jury to the bench to respond to her basic questions and to specific inquiries of the attorneys, exploring whether any of the jurors held potential biases they could not put aside, and to discover information the lawyers might use to strike them from the panel.

  One juror, whose family had immigrated to the United States ten years previously from Haiti, answered Jeri’s initial questions, demonstrating a possible dislike for corporations. When allowed to question the young woman, Jack probed further, attempting to establish that she was biased. “Are you saying you will hear the evidence more favorably to the woman bringing the lawsuit than you would for my client, the department store?” The wide-eyed woman snapped, “Yes, you are right. I don’t like companies like the one you are working for.”

  Jack instantly turned to Jeri and moved to dismiss the juror for cause. Unable to come up with a valid reason to oppose the motion, Mike shrugged his shoulders. Jeri turned back to the woman and said to her, “Thank you for your service, you are dismissed from this case.” Ed Wagner inconspicuously patted Jack on the back, recognizing Jack had saved one of the defendant’s four peremptory challenges by forcing the court to dismiss the woman.

  The remaining potential jurors were questioned individually. After three hours, the exercise was complete, and Jeri informed the lawyers they could begin striking witnesses. She excused the jurors for a fifteen-minute recess, but told them to return to the courtroom on time so the lawyers could complete their strikes and the trial could proceed on schedule.

  The attorneys for each side began to compare notes. Mike and Stan were in agreement about their first three peremptory strikes: the first, the president of his own startup company; the second, a woman who had worked for a major corporation her entire adult life; and the third, a youthful security guard with a remarkable resemblance to the Wendell’s store detective who detained Mrs. Gebbert. For their fourth strike, Mike and Stan were going to see who the defendant struck and reevaluate before making their decision.

  When Jack turned to Ed to compare thoughts, he recognized Ed had taken no notes beyond indicating Jack should strike based upon the initial eye contact game he played before jury voir dire began. Jack’s face reddened, but he said nothing. Hearing from two unemployed steelworkers and a woman who clearly identified with Mrs. Gebbert, Jack mentally allocated three of his strikes.

  “I think you need to strike jurors eight and twelve,” Wagner said with certainty.

  “But both are executives with corporations. They are just what we are looking for.”

  “I didn’t like the way they acted when you questioned them. I can sense these things.”

  “I don’t know, Ed. I didn’t get that sense. I think we should keep them.”

  “Hey, you’re in charge, but it’s your ass on the line.”

  After exactly fifteen minutes, Jeri returned to the bench and ordered the parties to begin striking the jurors. Mike took the official court document drew a line through the name of the president of the startup company and handed the form across the table to Jack without acknowledging him. Jack took the paper and immediately scratched a mark through the first steelworker’s name, and returned the form to Mike.

  Mike inspected the paper, noticing the name struck by the defense counsel. He turned to his uncle and whispered, “He got rid of one of the two African Americans on the panel. I think we should challenge his strike as race based.”

  Stan shook his head, saying “No, don’t. He’s clearly a juror they don’t want and they will easily come up with a non-discriminatory reason for their decision. Let it be.”

  Mike deferred to his uncle’s experience. He made his second strike and returned the form to the other side.

  Mike watched the jurors absorbed in the ping pong of passing the sheet back and forth. He knew the jurors were all guessing what each side was looking for and which of the panel the lawyers were considering striking. Mike wanted to explain to them that each side was getting rid of outliers, leaving generally the least unacceptable people to serve on the jury.

  Jack held the paper to exercise his last strike. Jack had ignored Wagner’s first three suggested strikes. Wagner glared at Jack, who quickly struck a teacher who acted a little too empathetic. Wagner smacked his hand on the wooden counsel table, the thud echoing off the high ceilings of the courtroom.

  Jack passed the sheet with the juror strikes to the tipstaff, who relayed it to Jeri. Jeri reviewed the sheet and dismissed the eight individuals scratched out on the form, thanking them for their service. Kathy directed the remaining twelve to the jury box. The people sitting in the box shifted in their seats, acclimating to their new environment. They eased when Jeri called for a recess and informed them the parties would give their opening statements once everyone returned from grabbing a quick bite.

  Chapter 47

  September 10, 2018, 11:00 a.m.

  Trial Day 1

  MIKE HUNG HIS head over the cracked porcelain toilet waiting for his stomach to empty. Once his insides settled, he returned to the courtroom, arriving right before the jurors filed into the jury box. Stan understood the churning inside of Mike, having done the pre-opening bathroom upchuck routine many times himself. He handed Mike a mint to suck on.

  Jeri took her seat on the bench and called the court to order. She gave the jurors preliminary instructions on how the trial would proceed. She explained that the plaintiff presented evidence first and each of their witnesses could be cross-examined by the defendant. The plaintiff had the burden of proof, she informed them, on the matters she needed to prove. The judge would instruct them what the law was that governed the case, but they decided factual disputes and would ultimately render a verdict based on the facts as they determined them. Jeri finally introduced her court reporter and tipstaff and explained if there was any trouble she could summon the sheriff who would be in the courtroom within minutes.

  Upon completion of her preliminary instructions, Jeri asked Mike if he was ready to give his opening statement, which Jeri informed those in the courtroom was simply the lawyer telling the jury the evidence he expected to present. Mike stood and walked toward the jurors leaving all of his notes and papers at counsel table

  Taking a moment to collect himself and to make eye contact with the jurors, Mike began authoritatively. “Ladies and gentlemen of the jury, on a beautiful April day two years ago, Marth
a Gebbert went into a Wendell’s department store a happy, contented woman and left broken, battered, and shamed.

  “This all happened not because of anything improper Mrs. Gebbert did. What was wrong were the policies of Wendell’s that empowered untrained, unsupervised, and incompetent security guards to harass and mentally destroy innocent victims like Mrs. Gebbert. And they do this by handcuffing people like Mrs. Gebbert to a table so they can’t to escape.

  “Why do they do this? For one reason: plain and simple, to make money. Let me state that again−Wendell’s department store developed a policy where it takes innocent people to the basement of its stores, handcuffs them to a table, and won’t release them until they sign a form stating they committed some theoretical crime. Once they admit to a crime, Wendell’s uses the admission to force these people to pay a civil penalty of hundreds and sometimes thousands of dollars.

  “Martha Gebbert was one victim of Wendell’s’ policy, but she suffered from more than just a fine. After being locked to a table for over two hours, Martha relented and said she had stolen a piece of candy, which was when the security guard finally let her leave.

  “Except when Martha left the store, she wasn’t the same person she was when she came to shop. Because of Wendell’s’ policy, Martha ended up with post-traumatic stress disorder and what is known as agoraphobia. After this event Martha tried to continue her life, but she couldn’t. Soon, she was unable to leave her house. Instead it got worse, until her husband Paul convinced her she needed help.

  “She went to a psychologist, a doctor named Byron Rathman. Dr. Rathman, who has been licensed to treat patients with mental conditions for twenty-five years is going to tell you he has treated Mrs. Gebbert for well over one year and she now suffers from agoraphobia−fear of being outside, and has developed other mental issues which prevent her from engaging with her family or friends the way she used to.

  “You may be thinking is this a significant injury? You can’t see it on an x-ray. Physically she appears fine. This might be true, but as Dr. Rathman will tell you, this incident with Wendell’s has caused injuries as devastating as if she were hit in the head with a baseball bat. Her husband will come in here and tell you how their family’s lives all changed because Martha sits in her room all day−too scared to go outside.