Legal Reserves

by James Rosenberg

  “Interesting. Well, did you ever stop anyone improperly?”

  “I don’t believe so.”

  “Has any person other than Mrs. Gebbert brought a lawsuit against the company claiming you detained them improperly?”

  “No, this is the first time I ever testified.” Lombard smiled at the jury wanting to appear earnest.

  “Good. Let’s now talk about why you stopped Mrs. Gebbert.”

  “Like I said, I saw her open the box of chocolates and take a piece of candy. The box of candy costs twelve dollars and once opened the store can’t sell it. It may not sound like much, but all the stealing adds up. So many people try to steal things in so many different ways. They are getting quite creative these days. We’re just trying to keep up with them.”

  “Did you follow your training when you stopped Mrs. Gebbert?”

  “Absolutely. You saw the materials they hand out. I did exactly what I was supposed to do. She took something and she admitted to taking it. It was that simple.”

  Jack sat, indicating he had no further questions. Mike was about to stand to follow up on some of the answers the security guard gave when Stan placed a hand on his arm. He glanced at Stan who subtly shook his head.

  “No more questions for this witness.”

  Jeri scanned the courtroom and said, “I think we have given the jurors a lot of testimony in a short period of time. Let’s break and then we can hear from our next witness.”

  Chapter 53

  September 11, 2018, 11:00 a.m.

  Trial Day 2

  WILLIAM RUTLEDGE, AN executive for the department store chain, held his head erect, projecting confidence as he took the stand. An experienced security guard for two national retail chains who moved into management fifteen years earlier, Rutledge looked directly at the jurors, never flinching, waiting for Mike’s questions.

  It was evident from the beginning of his testimony that Rutledge, wearing a Brooks Brothers suit that did little to mask his history of tailing suspects on the street, was not going to allow Mike to put words into his mouth. In response to Mike’s second question, “Are you the Director of Loss Prevention for Wendell’s department stores?” he stated, “No, my correct title is the Vice-President of Loss Prevention and Shrink for Wendell’s, Inc.” Mike knew his questions had to be precise or Rutledge would throw his words back in his face.

  “Mr. Rutledge, you drafted your company’s shoplifting policy, didn’t you?” Mike asked.

  “Yes, I did. I spent a lot of time formulating our procedures to make sure they were comprehensive and appropriate.”

  “You lived and worked in Texas at the time you wrote the policy?”

  “Yes, that is where the company has the most stores and also the most problems with shoplifters. I checked with our attorneys to make sure the policy complied with the law.”

  “Is that really accurate, Mr. Rutledge? You asked for an opinion from your Texas attorneys, but you never made sure the policy complied with the laws of other states.”

  “Our lawyers reviewed the procedures and told me they were fine and legal in Texas. The laws in other states with respect to how to treat shoplifters are almost the same as Texas.”

  “Sir, did you ever obtain a lawyer’s opinion that your shoplifting policy would be legal in Pennsylvania?”

  “Not exactly. Like I said, our Texas lawyers said it should be okay.”

  “And you, Mr. Rutledge, are not a lawyer, so you can’t say your policy would be legal in Pennsylvania.”

  “I’m not a lawyer, but I am comfortable our policy complies with all applicable laws and regulaiions.”

  “Your policy compels your security guards to chain suspected shoplifters to a table.”

  “Yes, to make sure nobody gets hurt.”

  “But you don’t instruct your guards to involve the police.”

  “No, under the law we don’t have to. Our security personnel are all trained on how to deal with shoplifters. Nobody has ever sued us anywhere before.” Rutledge waved his hand as though sweeping away Mrs. Gebbert’s lawsuit.

  Stan handed Mike a stack of papers and Mike moved back to the lectern. “Mr. Rutledge, let’s move to a different area of questioning. Your company makes money whenever one of your security guards stops a shoplifter, doesn’t it?”

  “We are saving money by stopping people from taking items they didn’t pay for.”

  “Not quite what I am asking,” Mike said, frowning at Rutledge’s response. “You make money because you try to extract a civil fine every time someone signs one of these confession forms.” Mike waived a stack of papers over his head.

  “Each state allows us to collect a civil penalty in addition to the retail cost of an item when someone steals something.”

  “You collect three hundred dollars in civil penalties each time a person signs this form. You write it on the form, the person ‘will pay to the company three hundred dollars in a civil penalty or additional fines and penalties will be levied,’ don’t you?”

  “Yes, the fines are so the courts don’t have to get involved with petty theft and acts as a deterrent so people won’t steal again.”

  Turning to the screen, Mike pointed to a spreadsheet displayed and asked, “In the four hundred fifty stores you operate nationwide your security guards stopped on average a hundred and fifty people per store last year for shoplifting, correct?”

  “Yes, I believe you are correct.”

  “For those stops, you extracted a three hundred dollar civil penalty each time, didn’t you?”

  “Not for all of them, but the vast majority.”

  “Multiplying the stores by the stops per store, means your company stopped sixty-seven thousand five hundred people for shoplifting last year.”

  “Sounds about right. A lot of people steal from our stores.”

  “If each one paid their three-hundred-dollar civil penalty, your company received approximately twenty and a quarter million dollars in these fines.”

  “I guess you are correct.”

  “Sir, your company accused each of these people of shoplifting and one of your employees handcuffed each one to a table and told them they would be released only if they signed your company’s confession form.”

  “Yes, consistent with our policy.”

  “And no video exists of how your security guards treated any of these people to coerce them into signing these forms because you don’t videotape what happens in those rooms in your stores’ basements.”

  “Objection!” Jack was now on his feet. “What happened in those other situations is not relevant here.”

  Jeri grimaced from her bench. “A little late to be making that objection now. The horse is already out of the barn. The objection is overruled. Mr. Rutledge will answer the question.”

  Rutledge shifted in the witness stand. “We don’t have any video cameras in any of our detention rooms.”

  “So, stopping people and accusing them of stealing is a profit center for your company?”

  Jack jumped to his feet and yelled, “Objection!”

  “Overruled.”

  Although knowing he didn’t have to repeat his question, Mike elected to ask the same question slightly differently. “Mr. Rutledge, your company made twenty million dollars accusing people of stealing from your company last year, didn’t it?”

  “We caught people red-handed. They confessed to it. They pay a penalty. It’s fairly simple.”

  As Rutledge was giving his explanation, Mike returned to his seat. Quiet enveloped the courtroom for a moment as the 20-million-dollar figure screamed from the screen. Stan slowly rose and turned off the projector while Mike announced he had no further questions.

  Jack stood to question his witness, asking him to justify his company’s policy in his own words. Seeing a friendly face, Rutledge relaxed and turned to the ju
ry to explain. “Theft is a horrible problem in this country. Lots of people go into stores and take merchandise without paying. Some offer a justification by saying it’s a victimless crime. I disagree. Stealing adds to the cost of everything.

  “We have studied reports indicating theft adds twenty percent to the cost of all products. Violence in our stores and outside of the stores increases because of this. So, theft from a company’s point of view is not a victimless crime.

  “Secondly, people who steal will lie to cover it up. We train our security guards how to approach suspected shoplifters and minimize the chances the interaction will escalate. When you accuse people of stealing, their response is often to resort to violence.

  “This is why we instruct our guards to detain any suspect only after being positive that theft has occurred and then to take them off of the sales floor. This, we found, reduces the chances of an interaction escalating into violence, but also protects our real customers who are innocently shopping. Even with all of the precautions and training sometimes people still become violent. This is why we use handcuffs. When a person is in handcuffs, the chances of violence are reduced to almost zero.”

  “Why does the company charge a civil penalty?”

  “For many reasons. The law allows us to include a civil penalty. The collection of the civil penalty offsets some of the costs we incur to detect and prevent theft. The penalty also deters some people from committing crimes in our stores again. I realize the numbers we went over sound like a lot, but we maintain an excellent record at preventing people from stealing and compared to other companies in our industry we do a top-notch job at informing people we will prosecute theft. I think our system has worked extremely well and has reduced crime, making our stores much safer for the shopping public.”

  Jack and Rutledge stopped talking and looked at the jury.

  Seeing Jack conclude his questioning, Mike stood and asked, “Sir, where in your policy does it say how long one of your guards should allow someone to be handcuffed to a table?”

  “It doesn’t specifically address that. What our procedures allow is our security guards the freedom to process the paperwork without having to worry about the thief becoming violent.”

  Mike paused, knowing Rutledge hadn’t answered his question and continued. “Mr. Rutledge, if Mrs. Gebbert never signed the confession form, she would still be chained to the table, wouldn’t she?”

  Rutledge squirmed, unsure how to respond. “I doubt it.”

  Shaking his head like dealing with a petulant six-year-old, Mike dismissed Rutledge from the witness stand.

  Chapter 54

  September 11, 2018, 1:30 p.m.

  Trial Day 2

  AFTER LUNCH, STANDING before the jury, Mike called his security expert as his next witness. Ken Fishbeck worked in security for 25 years before opening a consulting business that assisted all types of companies wanting to fix security related problems. At times, lawyers also retained him to act as an expert witness to discuss the successes or failures of a particular company’s security program or how one of its employees handled a security issue in litigation.

  Stan had previously retained Fishbeck in a case involving a shooting at a bar. In that case, Fishbeck testified how the bar failed to hire adequate security given the extent of crime in the area of the bar. Although Stan lost the case, Fishbeck did his job competently and Stan suggested that Mike hire him to dissect Wendell’s shoplifting policies.

  Fishbeck took his seat without any sign of arrogance or nervousness. His charcoal grey sports coat and tie belied a toughness forged from years of dealing with society’s dregs. Mike quickly led Fishbeck through his professional accomplishments and briefly touched on the types of cases on which he usually consulted. The jury listened intently, drawn into Fishbeck’s world of investigation and interrogation, as Fishbeck described his career in a clipped northeastern intonation.

  Mike turned his questioning to the law that governed how retail establishments dealt with shoplifting. Fishbeck took the jury through Pennsylvania’s Retail Theft Act, explaining that the statute gave store owners the right to stop and detain suspected shoplifters, but only if they had a reasonable suspicion that a criminal act was being committed. Fishbeck also conceded that a retailer still could enjoy the protections afforded by the statute even if the suspected shoplifter turned out not to have done anything wrong, so long as the person detaining the suspected shoplifter had a reasonable suspicion to stop the person.

  When asked to discuss Wendell’s policy of handcuffing suspects, Fishbeck became animated and opined to the jury that such a policy was beyond the bounds of the law and was not found in any other shoplifting policy that he had ever reviewed. “Being chained to a table to make someone sign a confession form calls into question every confession that Wendell’s has ever gotten.”

  Another failure of the shoplifting policy that Fishbeck cited was the lack of a camera in the detention room. “If I wasn’t doing anything wrong in that room, I certainly would want videotape to back me up. On the other hand, if I wanted my security guards to do something that was improper, I would make sure there wasn’t any evidence.”

  Mike finally asked about Wendell’s policy of extracting fines from suspected shoplifters. Fishbeck conceded that under the statute, store owners didn’t have to call the police and were authorized to seek civil penalties, but also believed that Wendell’s plan was profit driven and the stores stopped people for shoplifting in an attempt to coerce the penalties so that Wendell’s profits would increase.

  Jack did not want to press Fishbeck much on cross-examination, knowing his own expert would refute Fishbeck’s conclusions. Jack knew he wouldn’t be able to dissuade the expert from his conclusions so he would use his questions to highlight the conclusions that Wendell’s own expert would present to the jury.

  Jack started his questioning by emphasizing statistics evidencing the unrelenting growth of theft and then had Fishbeck agree that retailers were easy targets given the array of merchandise, the number of customers in their stores, and the immense areas security guards had to watch.

  Fishbeck again conceded that retailers had been given the right to stop and detain suspected shoplifters and that the use of signed confession forms was standard in the retail industry. Jack never challenged Fishbeck’s conclusions, but by the time the witness walked off the stand Jack was confident he had blunted the significance of his testimony.

  Mike held his head high when he turned to the jury and announced, “Plaintiff has one last witness to call.”

  Chapter 55

  September 11, 2018, 3:15 p.m.

  Trial Day 2

  THE JURORS QUICKLY took their seats after a break, ready for the final witness for the plaintiff. When they were seated, Mike motioned to Stan who was standing at the entry doors to the courtroom. Stan poked his head outside, signaled, and then returned to his seat next to Mike. The jury waited as the courtroom was cloaked in silence.

  Moments later, the doors drew outward and a group of three women entered. Stephanie Regalski and Stacey Gebbert gently held a woman between them by the arm−the person whom the jury had been waiting to see.

  Martha had put on a light blue dress that morning and waited for Stephanie to call and tell her when to leave for the courthouse. A friend drove her to town and dropped her in front of the building. Martha sat in a small, secluded room in the rear of the courthouse with Stephanie, sipping water and waiting for her turn to testify.

  When they reached the last row of seats for the spectators in the courtroom, Stephanie and Stacey let go of Martha and sat. Martha looked back at them before beginning her walk to the witness box. The two-inch boxed heels she wore made a slight shuffling sound as she passed the jurors.

  She took the two steps into the witness box and Kathy, the judge’s tipstaff, swore her in. “Do you swear to tell the whole truth and nothing but the truth, so hel
p you god?” Kathy asked.

  “I do.” Martha sat, her eyes cast down at the weathered hands in her lap and the wedding ring on her finger. Martha clutched her purse and forced herself to exhale. Finally, She looked up.

  With a slight quiver in her voice, Martha told the jury her name and where she lived. Other than Mike’s questions and Martha’s answers there was no sound in the courtroom as the jury strained to hear her answers.

  Martha struggled, but got through the preliminary questions without major issue and explained how she had been married to Paul for nineteen years and how they had raised Tanner and Stacey. She painted a picture of a reasonably happy family with well-adjusted children.

  Mike wanted to have Martha describe the incident before any meltdown occurred, so he moved quickly into questioning her about that day. She explained that she often shopped at Wendell’s because of the varied selection and reasonable prices. She went to the store to hunt for some towels and had picked out a few things that she was considering buying. She aimlessly browsed, not really sure where she was going next.

  “I wasn’t in a hurry. I didn’t have anywhere to go,” Martha explained in response to Mike’s question, “and I saw a counter with all sorts of candy and chocolates. I love chocolate.” She smiled and looked down. “I walked towards the counter with all the pretty chocolate. I saw a box of chocolates on the counter. I assumed they were samples, so I took one and ate it. It was really tasty.”

  “Martha, was the box of chocolates open?”

  “Of course. The lid was off and sitting next to the box. Nothing was covering the chocolates.” Mike again played the video of Martha taking the chocolate. The lid clearly was lying next to the box.

  “Were any other chocolates missing from the box?”

  “I don’t think so,” Martha admitted. “I think I took the first piece.”