Legal Reserves

by James Rosenberg

  “What happened after you ate the sample of chocolate?”

  Martha gazed up nervously. “I finished the piece of chocolate and wanted to find a register to pay for the towels I had. Before I did anything, I was stopped by the store security person.”

  “What did he do?”

  “He said he was a security guard and had been watching me on video and asked me if I would come with him. I didn’t understand what he meant. I actually thought I had won some prize. He again asked me to come with him.”

  “Did he tell you why?”

  “Yes, he told me because he said that I stole the chocolate. I was shocked. You can see it on the video. I told him that it was a sample and if I was wrong about that, I would pay for the chocolates.”

  “How did he respond?”

  “He laughed and said, ‘That’s what everyone says after they are caught stealing.’“

  “What did you do?”

  “He told me I had to go with him so I followed. He took me downstairs and put me in a small room. He took my arm and put a handcuff on it. He attached the handcuffs to a rail on the table. I was horrified. He took my name and address and began to fill out some forms. He took my purse and my cell phone.”

  “Did he give you any instructions?”

  “He put this form in front of me and said that if I signed it, I would be released from the handcuffs. I read the form and said I wouldn’t sign it because I hadn’t stolen anything. He left the form in front of me and told me to sign it. He then left the room.”

  “What did you do?”

  “I sat in the room for a while. I wasn’t going to sign that form. At first, he came back about every twenty minutes. He would come in the room and see if I signed the paper. When he saw I hadn’t signed the form, he would just say, “You can leave once you sign the paper. This happened a few times and then he started to wait longer before he came back.”

  “What did you do?”

  “I got nervous and scared. I thought I wasn’t going to be able to get out. I wanted to call my husband, but he wouldn’t give me back my cellphone. So, when I thought that he wasn’t coming back I started screaming. I think I got a little hysterical.”

  “Did this change anything?”

  “Not really.” Martha’s cadence was slowing down and the judge instructed her to keep her voice audible. “The next time he came back, I asked to speak to a manager or anybody else who would listen. He just said, ‘I’m in charge here. You can only speak with me.’“

  “How long were you in the room?”

  “It was over two hours. He came back into the room probably five times and started to get mad because I hadn’t signed the form. He wouldn’t let me speak to anybody else and he wouldn’t let me out of the handcuffs.” Martha twisted the edge of a handkerchief she had pulled out of a pants pocket and was staring past Mike as he tried to keep her focused.

  “What did it feel like when you were locked in the room?”

  “I’m not sure I can explain. I was in prison, but I hadn’t done anything wrong. There wasn’t any trial, but they put me in jail anyway. They treated me like a dog and I was begging for that kid to release me. I was crying, but he wouldn’t let me out. The room felt like it kept getting smaller. The last time he came in the room, I would have done anything for him to let me out of those handcuffs.”

  “Martha, after being chained in that room for over two hours, how did you finally get out?”

  “I realized I wasn’t going to be able to leave until I signed the form. I told him so many times I hadn’t stolen anything. He just wouldn’t listen. Finally, I got so mad I told him I would sign the form just to be able to leave. Once I signed it, he took the handcuffs off me and said I could leave. I tried to grab the form back from him, but he was too quick. He just opened the door and told me to leave. It was so humiliating.”

  Mike paused his questioning and looked at the jurors. He knew his case was sunk if they suspected that Martha had stolen the candy but he had no idea what ideas were bouncing around in their heads.

  Mindful of Stan’s advice to keep their presentation narrow and tailored, Mike took Martha through her injuries expediently. By this time the jury had already listened to her psychologist and had seen the effect the incident had on her kids, so Mike was wary of beating the damages horse until it died. Martha had limited ability to articulate her problems and any attempt to draw out her testimony would be futile.

  Instead, Mike asked Martha a few questions about what her life was like presently. Martha told the jury that mainly she liked to read books in a quiet corner of her home. This contrasted sharply with the picture her husband and kids had painted of Martha from before the incident of a vibrant, caring woman who would do anything for her family.

  Mike indicated he had no more questions.

  At no point during her direct examination did Martha lose her composure, but her ability to keep it together during cross-examination remained in question. Jack stood and shuffled some papers. He didn’t look up for nearly thirty seconds before addressing Martha.

  “Mrs. Gebbert,” Jack began, “on the day in question, you had picked up a few items.”

  “Yes.”

  Mike cringed, realizing Martha was about to ignore his instruction to explain all of her answers and not just say ‘yes’ to the questions Jack asked.

  “Let’s look at the video. You were walking through the store, aren’t you?”

  “Yes.”

  “You pick up some items and then begin walking through the store. You walk through five different departments and past five cash registers without paying for those items that you are carrying, don’t you?”

  “I wasn’t counting,” Martha replied. “I was trying to decide if I should buy more things.”

  “My point is Mrs. Gebbert, if somebody was watching you and saw you carrying all those items, and you walk by all of those registers, it might appear like you were never going to pay for those items.”

  “I don’t know what someone would think. He stopped me before I got to pay for them.”

  “You then went up to the candy counter and took a piece of candy.”

  “I did.”

  “You had no intent of paying for that box of candy, did you?”

  “Of course not. They were samples.”

  “You took the first piece out of the box,” Jack continued.

  “I believe I did.”

  “So nobody else before you thought they were samples.”

  “I don’t know what other people were thinking and I don’t know how long the box had been on the counter.”

  “The security guard asked if you had stolen the chocolate.”

  “He did.”

  “You never denied stealing the chocolates, did you? In fact, you offered to pay for them.”

  “Yes.”

  Mike chastised himself for not objecting to the previous question, because it was actually two questions. Martha had answered the second part of the question, but her answer made it sound like she hadn’t denied stealing the chocolates, which she had told Mike many times she had. Mike offered a little prayer Martha would stop answering “yes” to the questions and start explaining her answers.

  “In fact, you didn’t say they were samples when he first stopped you, you actually offered to pay for them.”

  “Yes, I did.”

  “Mrs. Gebbert,” Jack continued, “when Mr. Lombard asked you to go downstairs, you followed compliantly, didn’t you?”

  “I guess I did. I didn’t think I had a choice.”

  “Ultimately, you signed a form admitting you had stolen property.”

  Although Martha had signed the form, Mike hoped she did not simply answer “yes” to the question.

  With both of her hands tightly gripping her purse, Martha’s gaze darted between Jack and Mike.


  The courtroom was silent and the jurors all looked at Martha. She lifted her head and looked past the jurors, finding her daughter Stacey and Stephanie looking at her sympathetically.

  She returned her attention to Jack and said, “Mr. Rogers, you and I both understand why I signed that form. Not because I stole anything−because I didn’t. The candy was sitting open on the counter for anybody to take some and so I took some. I signed the form because your guard chained me to a table like a dog for two hours. I begged him to let me out. I screamed and I cried, but nobody listened. Mr. Lombard didn’t care. He said the only way I was getting out of the handcuffs was if I signed the form. So I signed it. Not because I stole anything, but because I wanted to leave and see my family.”

  Martha exhaled deeply and leaned back in the hard wooden seat. She patiently waited for her next question.

  Jack felt his face flush. He stared back at Martha, unable to question further. He started to ask another question, but couldn’t formulate one. He returned to counsel table and took a sip of water.

  Mike smiled at Martha, realizing that Jack had lost his rhythm and was unsure how to proceed. One good answer had thrown Jack off of his game. Mike looked down at his yellow pad so Martha would direct her attention to Jack.

  Jack returned to his position in front of the witness, shrugged, and adjusted his jacket. “Mrs. Gebbert,” he began, “when was the first time you were treated by any doctor for your injuries?”

  “Well, I haven’t seen a doctor, I have only seen the psychologist.”

  “That wasn’t my question, but you make a solid point. You haven’t seen any medical doctor for your injuries, have you?”

  “No, only the psychologist.”

  “When was the first time you treated with the psychologist?”

  “About eight months after this incident, right after we first met with our attorney”

  “Eight months?” Jack echoed. “You didn’t get any type of treatment for your problems for eight months after this occurred and you have never seen a medical doctor for your problems?”

  “Yes.”

  “And your attorney suggested it?”

  “No, he didn’t suggest it. My husband suggested I see someone right after we met with him.”

  “So we are clear, you don’t visit with any doctor for your problems for months after this incident. You call Mr. Reigert...” Jack pointed at Mike as if he were on trial. “You meet with him and then the next day you make an appointment with the psychologist.”

  “I think that is accurate.”

  “Didn’t you go to the psychologist because Mr. Reigert thought it would help your case?”

  “No, he thought it would help me.”

  “So the idea to see a psychologist came from Mr. Reigert.”

  “I’m not sure, I guess so.” Martha glanced around the courtroom confused.

  Jack moved closer to the witness. “Nobody ever said you should go to a medical doctor, did they?”

  “No.”

  “So, you have never had any x-rays or MRIs or any other kind of medical test, have you?”

  “No.”

  “So, nothing is wrong with you medically?”

  “No, nothing.”

  “You haven’t taken any medication for any of your problems, have you?”

  “No.”

  “What do you do to try to improve?”

  “I talk to Dr. Rathman every week. He helps me.”

  “Other than talking to Dr. Rathman, is there anything else you do to get better?”

  “No, he’s the one who is helping me.”

  Jack followed up with one last question. “Mrs. Gebbert, if all you do is talk to your psychologist once a week, isn’t it true nothing is really wrong with you?”

  Martha’s throat tightened and her head spun. She looked at the jurors and then the people sitting in the back of the courtroom, but could not concentrate on anything in particular. She saw her two children and finally responded, “Mr. Rogers, you don’t understand, do you? I have been so hurt by what your department store has done to me. I can’t explain why, but I can’t leave my house. My kids are growing up and I am missing it. My husband now is sleeping with someone else. I cry myself to sleep every night and hope when I wake up I can walk outside and enjoy the sunshine. But every day is the same and every day I sit in my room too scared to do anything. So, Mr. Rogers, I have been hurt real bad and I am so tired.”

  Jack’s shoulders slumped. He looked at his outline, but he had no further questions. He returned to his seat.

  Stan leaned over to Mike and whispered, “That’s what happens when you ask one too many questions.”

  Martha now was sitting up straight in the witness box and looking directly at Jack. Mike drew out the moment before dismissing Martha as a witness.

  “Mr. Reigert, any more witnesses?” Jeri asked from the judge’s bench.

  “No, Your Honor,” Mike announced. “The plaintiff rests.”

  Jeri nodded and turned to address the jury. “The plaintiff has rested her case. Now the defendant will put on its witnesses. I understand the defendant believes its case will proceed quickly. I have to meet with the attorneys to discuss the law I will give to you. It appears we can finish testimony tomorrow morning. The attorneys will then give you their closing statements and the case will be yours for deliberation in the afternoon. You are dismissed for today. Counsel, I will meet with you in chambers.”

  Chapter 56

  September 11, 2018, 4:30 p.m.

  Trial Day 2

  JERI SAT BEHIND her desk waiting for the lawyers to enter her chambers after gathering their materials and making the necessary arrangements with their clients. Seeing Jack and Mike enter, she was pleased they would be spending time together even if it was to go over her charge to the jury. When the court reporter stuck her head in to see if Jeri wanted their discussions on the record, Jeri waved her away and told her they would memorialize their discussions in the morning before the jury arrived.

  Jeri directed her two friends to the curved hard leather seats facing her desk. She smiled, but received nothing back from either of them. “Let’s go over my points for charge.” She handed them a copy of the instructions she intended to read to the jury once closing arguments were complete. “Take a few minutes to read them. I incorporated both of your requested instructions. I don’t think there is a lot of room for disagreement. I took most of this from the Pennsylvania Statute on Retail Theft and it will inform the jury what standard applies to store owners dealing with theft. We can discuss any objections you have to the charge after you review it.”

  Not a word was spoken for the next twenty minutes while Mike and Jack digested the fifteen typed pages. Jeri busied herself with papers on her desk, bothered that her two friends did nothing to acknowledge each other.

  When both attorneys had completed their review of the proposed jury charge, they waited for Jeri to indicate she was ready for discussion. Finally, she said, “Do either of you have any issues with the proposed jury charge?”

  “No, Judge, I mean Jeri,” Mike stammered, unable to change gears now that nobody else was watching. “I’m not finding anything objectionable with the charge.

  “Good,” Jeri replied with a hopeful lilt in her voice. “How about you Jack? Any objections on behalf of the defendant?”

  Jack looked up with his face flushed and a drop of perspiration above his lip. He spoke slowly. “For the most part, I don’t have any problems with the instructions. I don’t have any issue with how you are going to tell the jury about a store’s right to detain possible shoplifters and how they don’t necessarily have to be right, they only need a reasonable basis for stopping someone. I also don’t have any problem with the compensable damages you include if the plaintiff prevails on liability. But you have in here an instruction for punitive damages i
ndicating the jury, if they find the department store liable, may also punish the store and award punitive damages. There is no basis for punitive damages.”

  Jeri nodded to Mike, requesting him to respond.

  “This case is clearly one where a jury could award punitive damages,” he began. “Wendell’s has a policy instructing its security guards to handcuff people to a table to extract confessions. This is in violation of Pennsylvania’s law, which only allows for shoplifting detentions for a reasonable time and in a reasonable manner. This policy is so over the line the jury would be within its rights to punish the company for putting people through this ordeal.”

  Jeri looked to Jack to counter.

  “Wendell’s has a policy which its lawyers have reviewed. It is perhaps aggressive, but entirely within the bounds of the law. The Wendell’s executive explained the basis for the policy. Handcuffing is done to protect our security guards from violence. The policy is not negligent, let alone so over the line a jury could punish the company for trying to protect its assets.”

  After pondering the arguments, Jeri responded: “I understand the reasons Wendell’s says it developed the policies and the potential public policy reasons for allowing them to have this policy. On the other hand, it is possible this jury will find the policy is so over the line and inconsistent with the mandates of the Act to warrant the imposition of punitive damages. I think the jury needs to weigh in on these issues.”

  Hearing Jeri’s ruling, Jack threw up his hands, sending his copy of the jury charge airborne before landing scattered on the floor. “Damn-it Jeri, you can’t let punitive damages go to the jury. You’re wrong. This messes with my entire case.”

  “Jack, there’s enough to let the jury decide. Here’s what’s going to happen. The jury will decide first if the company is liable. If the jury finds liability, the jury will decide compensatory damages and will also decide if punitive damages are warranted. If it decides punitives are appropriate, they will hear further evidence regarding the net worth of the company so it can decide the amount of punitive damages to award.”