Legal Reserves

by James Rosenberg

  Jack slapped the front of Jeri’s desk in frustration.

  Mike chirped at Jack, “Sorry Jack, sometimes when you handle people wrong and try to push them around, there are consequences.”

  Enraged by the developments in chambers, Jack jumped to his feet and faced Mike. “Fuck you, Mike,” he spat out.

  Mike remained calm in his chair. “That’s it Jack. Go ahead and get pissed when things don’t go your way. You can’t intimidate me like you tried with Megan.”

  Jeri, surprised by the sudden outburst in her chambers, deftly moved around to the front of her desk and got in between Jack and Mike. “Stop it, you two. What’s going on here?”

  Breathing heavily, Jack sat back into his chair. Mike stared straight ahead avoiding eye contact with anybody.

  “Go ahead Jack, tell Jeri what happened at her wedding,” Mike said, as Jeri returned to her chair. Jack sat staring off distractedly, refusing to respond. Jeri directly asked him what had happened, but Jack didn’t budge.

  Instead, Mike began to talk. “The night we got to your wedding, Jack talked to me about settling this case. Although he made a healthy offer, my client wanted to have her day in court. He got pissed off when I told him the case wasn’t going to settle. Jack waited for Megan outside of the bathroom. He threatened her and was inappropriately aggressive with her.”

  “Jack, is this true?” Jeri asked.

  “Of course not,” Jack said. “He’s talking nonsense.”

  Jeri shook her head in exasperation. “Jack, this is serious if what Mike is saying is true. I am thinking about whether I have to report this to the disciplinary board. Let’s see how the rest of the trial proceeds and I will decide what I need to do.”

  “Do whatever you think you have to do, Your Honor,” Jack sneered. “My focus is on winning this case and making Mike regret the day they didn’t accept the money.”

  “I am so disappointed with both of you. I thought your friendship would be more important than winning a case. Get out of here and we will finish this trial tomorrow.”

  Chapter 57

  September 11, 2018, 7:15 p.m.

  Trial Day 2

  “I’M GOING TO punch that asshole in the face when I get the chance. He was so smug and lied right to Jeri’s face. Locked eyes with her and lied about everything...” Mike’s voice trailed off when he realized he was yelling.

  Megan ran her fingers through Mike’s hair. “You have to forget about Jack,” she said. “You have to think about your closing. We’ve been here for hours and you aren’t finished yet. You are so distracted by what he did, he’s winning because you can’t get anything done. I’m worried about you. I’m worried about the trial. I’m worried for Mrs. Gebbert. You need to focus on finishing the trial so I don’t have to worry so much.”

  “What he did is so wrong and you are able to forget about it?” Mike asked.

  “For now, we both have to forget about it.”

  “This just adds to the list of what I have to forget. My dad showed up for the trial today. He sat in the back and said nothing, but I knew he was there. I’m waiting for him to yell out, ‘nice question asshole, you just blew the case for your client.’“

  “I’m glad to hear he behaved. Is he going to hear your closing?”

  “He said he’s coming tomorrow. But with him I never know what to believe. I wouldn’t be surprised if he doesn’t show up and I don’t see him for ten years.”

  “Good. Then I’m going to get a chance to meet him. I took a day off from work tomorrow.”

  “Oh great,” Mike replied, unable to hide his ambivalence.

  “I wanted to see the end of your trial, so I finagled time off. I have to keep an eye on you to make sure you don’t do anything stupid. I’m going to sit in the courtroom to make sure your closing is brilliant and nothing Jack does has any effect on you. I don’t want to see you end up in jail.”

  “I don’t think I’m going to come to blows with Jack, but it’s nice to know you’ll be there. That helps.”

  “Okay buddy, enough. Get up on your feet. You still have a lot of work to finish your closing.” Mike stood in front of Megan, ready to practice his argument once again. They were facing a long evening.

  Chapter 58

  September 12, 2018, 6:30 a.m.

  Trial Day 3

  THE EARLY MORNING was quiet when Ed Wagner and Jack walked up the concrete steps to the venerable courthouse building. The sun was just peeking over the roof of the building and the street in front was nearly devoid of traffic. They passed the statue of the city’s former mayor and entered through the revolving door.

  They had spent a long evening first meeting with their expert witnesses to get them prepared and then pulling together the materials they needed for Jack’s closing argument. Much of their evidence had already been presented through the questioning of the employees Mike had called on behalf of the plaintiff.

  Two hours later, the jury members arrived and were seated. At nine sharp, Jeri asked Jack to call the first witness for the defense. Manuel Cybeg, hired by Wendell’s to opine about the appropriateness of its shoplifting policy, confidently took the stand. Despite his large frame, Cybeg maneuvered gracefully into the witness box. He absent-mindedly polished his glasses and waited for Jack’s questions.

  Cybeg explained to the jury he had started in security twenty-three years before, when he worked as a store detective for a national grocery-store chain. He moved up at the grocery chain until he was head of their security department, creating security programs for the 275 stores the company had nationwide. When he turned forty he left the grocery company and began a consulting business where he advised companies on how to develop security programs and offered specific advice when a company was faced with a difficult security issue. The consulting business had grown markedly over the past five years, coinciding with an uptick in testifying for Fortune 500 companies that were being sued for false imprisonment and other security related issues.

  During his brief cross-examination of Cybeg on his expert qualifications, Mike established that Cybeg’s credentials and experience were comparable to that of the plaintiff’s expert, Kenneth Fishbeck.

  Cybeg’s substantive testimony was brief, as Cybeg offered his opinion that the company’s shoplifting policy was reasonable and consistent with other industry companies. Cybeg reiterated Wendell’s talking points that crime was rampant and that Pennsylvania law allowed companies to detain suspected shoppers as long as their suspicion was reasonable, even if the person didn’t actually steal anything. Cybeg concluded that Wendell’s policy was acceptable under Pennsylvania law.

  Mike’s cross-examination of Cybeg was also swift. He established that Cybeg could not identify one other company having a policy nearly as aggressive as Wendell’s. When asked to name another company which allowed handcuffing, Cybeg offered, “I am not aware of any other company.” Mike finished by getting Cybeg to agree that having a video camera in the detention room would have helped to determine exactly what had occurred there and how long Mrs. Gebbert had been handcuffed.

  Once Cybeg left the courtroom, after his thirty minutes of questioning, Ed Wagner leaned over to Jack and whispered, “There’s five thousand dollars our client just spent on a witness that the jury has already forgotten. At least his testimony cancelled out the testimony of the plaintiff’s expert.”

  Chapter 59

  September 12, 2018, 10:30 a.m.

  Trial Day 3

  JACK ANNOUNCED THAT the defendant’s last witness would be Dr. Bernard Lawson. Dr. Lawson met none of the jurors’ expectations of how an expert witness was supposed to look: young, short, and dressed casually with black chest hair sticking out of the top of his sweater. Lawson smiled at the jurors as if they were old friends. The doctor had none of the dignified intellectual aura that marked the other expert witnesses. Rather, he was overly muscular, indicating t
ime spent in the gym rather than studying medical treatises.

  Listing his qualifications and accomplishments as a medical doctor and as an evaluator of psychiatric illness like he was reading the wine list at an upscale restaurant, Lawson reveled in having a captive audience. Dr. Lawson went into exquisite detail about the papers he had published, the hospitals on which he was on staff, the courts in which he had previously testified, and the number of companies for which he had already consulted. When asked if he had any questions for Lawson on his credentials, Mike passed, not wanting to belabor the point, and also recognizing Lawson’s resume was more impressive than Martha Gebbert’s psychologist.

  On his direct examination, Lawson didn’t bother with the question/answer format, but rather gave a narrative recitation of how he came to his opinion Mrs. Gebbert was not suffering from any type of cognitive or psychological problem associated with her detention by Wendell’s. Holding Dr. Rathman’s office records like they were covered with toxic waste, Lawson testified Mrs. Gebbert had no identifiable problem caused by her detention at the store and no need for any treatment resulting from the conduct of the employees at the store. He went on to opine that Mrs. Gebbert was lonely and needed to talk to Dr. Rathman for human interaction.

  When asked if Mrs. Gebbert ever had prior treatment with a psychologist, Lawson took evident glee in stating, “Not only did she have treatment in the past, she went to great lengths not to tell me about it when I asked if she had ever been treated before.”

  Jack followed up to ask Lawson about the significance of the prior treatment. Lawson spoke at length as to the significance of the treatment. “In fact,” he said, “she complained about how her husband wasn’t paying attention to her. It’s clear they were having marital problems for a long time and this created significant cognitive issues that required additional treatment, which she apparently never got.”

  Dr. Lawson used a single line in the medical record to conclude that Paul Gebbert’s marital infidelities likely began long before the detention, and was due to Martha Gebbert’s longstanding inability to have a close relationship with men.

  Stacey and Tanner Gebbert sat behind Mike listening to Lawson’s diatribe, not fully comprehending the meaning, but certainly appreciating that Lawson was demeaning their mother to a room full of strangers. Unable to sit still while Lawson spoke directly to the jury, Tanner Gebbert stood, pointed at the witness and said, “You don’t know my mom. You’re paid to say bad things about her.”

  Jeri banged her gavel on her desk, instructing Mike to control Tanner. Stan stood and turned toward Tanner, putting one hand on his shoulder. He whispered something in his ear causing the boy to smile, placated. Tanner sat back in his chair and nodded at Lawson as if instructing him to continue his testimony.

  To conclude his direct examination of the doctor, Jack asked him what conclusions he had drawn from examining Mrs. Gebbert and reviewing her records. Jack stood back while Lawson talked directly to the jurors. “I believe Mrs. Gebbert has longstanding psychological issues which have recently begun to manifest themselves. Given her family history of mental illness, her apparent unhappy home life as evidenced by her husband’s infidelities, and her dissatisfaction with the general state of her life, her current mental health has been compromised.

  “Based upon my review of her psychological records, my examination of her and the testing I had her undertake, I could not find any connection between what happened at the department store and her current psychological problems.”

  Jack paused after Dr. Lawson had offered his opinion, noticing the jury still was looking intently at the doctor. He indicated the doctor was available for cross-examination.

  Mike leapt to his feet to begin his questioning. “Doctor, based on your testimony that Mrs. Gebbert has ‘current psychological problems,’ you would agree she presently has psychological issues, don’t you?”

  “Yes, the testing I undertook indicates she suffers from agoraphobia and fears to go outside.”

  “This is legitimate, isn’t it? She’s not faking?”

  “No, I believe it is real.”

  “She didn’t have any symptoms before the events at the department store, did she?”

  “That’s unclear. She had this prior treatment and she hid it from Dr. Rathman. I would think she still needed treatment for the issues she had then. So, I see a link between her problems now and her prior issues.”

  “Doctor, that was five years ago.”

  “True.”

  “And she only had five visits with a psychologist.”

  “I know. My review of those records suggests that her issues were not resolved and likely continued to worsen because she didn’t get further treatment. Plus, since she never told Dr. Rathman about these problems, he never could provide her effective treatment.”

  “Her entire family said she led a normal life and functioned without issue up to the time she went to Wendell’s that day.”

  “I’m sure they did. Families often have no idea how badly another person in the family may suffer. Mrs. Gebbert clearly was good at hiding things. Nobody in her family knew anything about this prior treatment. I think what happened at the department store may have brought out her problems, but they were coming out at some point.”

  “She led a normal life before.”

  “Perhaps.”

  “And she hasn’t led a normal life since.”

  “That is correct.”

  “Doctor, she has no symptoms before this event and begins to have symptoms afterwards. Isn’t this post-traumatic stress syndrome like Dr. Rathman described?

  “No, I disagree with your conclusion. Post-traumatic stress disorder occurs after a major trauma. We find it often in people returning from war or people who have been involved in a major accident with serious bodily injury, but this type of trigger was not present here.”

  “She was locked in a room and thought she was never going to be released. Isn’t this sufficiently traumatic under the definition of post-traumatic stress disorder?”

  “No, like I said, this is not the type of stressor that triggers PTSD. I do not think it is a proper diagnosis.”

  “Doctor, you are being paid today to testify, aren’t you?”

  “Yes, I am.”

  “Neither myself, Mrs. Gebbert, nor anyone associated with Mrs. Gebbert is paying you today, are we?”

  “No, you aren’t paying me.”

  “Doctor Lawson, you and I have never met before today, have we?”

  “No, we haven’t.”

  “You only met Mrs. Gebbert once before this, when you examined her, which took only forty-five minutes.”

  “Correct.”

  “You are being paid by Wendell’s to testify today, correct?”

  “Yes, they are paying for my services.”

  “You have met with Mr. Rogers, the attorney for Wendell’s, many times to prepare your testimony?”

  “I have met with him to discuss my testimony, yes.”

  “He reviewed your expert report before you signed it, didn’t he?”

  “I wrote my report, but he reviewed it before I finalized it.”

  “This is not the first time you have testified for Wendell’s department store?”

  “No, I have testified for Wendell’s three times in the past three years.”

  “You have made nearly fifty thousand dollars testifying for Wendell’s in the past three years.”

  “Yes, that is accurate.”

  “And you have made another one hundred and fifty thousand dollars testifying for other stores as a hired witness.”

  “Yes, I have offered my expert services to other stores when they have retained me.”

  Mike paused and took a sip of water to slow down his questioning, then returned to the spot directly in front of Dr. Lawson. “Dr. Lawson, isn’t it possible your
conclusions are shaded by the fact you are a hired gun, retained to offer opinions to help Wendell’s, because they have paid you a lot of money in the past and you want them to hire you again when they are sued by someone else who is locked in a basement against their will?”

  Jack jumped to his feet. “Objection! Your Honor, that is outrageous and I move to strike.”

  Jeri didn’t hesitate before ruling, “The objection is sustained. The question is struck. Mr. Reigert, please ask a less objectionable question.”

  Mike was ready with his revised question. “Doctor, could the fact Wendell’s is paying you to testify today shade your testimony?”

  Lawson gripped the sides of the witness box and took a deep breath. He replied, “No counselor. My conclusions are drawn from my years of experience and my review of Mrs. Gebbert’s records with her own psychologist. She clearly had underlying issues that were brought to the fore. The event at the store was not sufficient to have triggered them and like I have said, I believe her prior knowledge of her husband’s unfaithfulness would have led to the need for psychological treatment.”

  Resisting every urge to argue with the doctor and rehash how he had arrived at his opinions, Mike stated he was through with his questioning.

  Jack breathed a sigh of relief and informed the court the defendant had no further witnesses, resting its case. Jeri turned to the jury and said, “You have heard all of the evidence in this case. You will next hear closing arguments from first Mr. Rogers on behalf of Wendell’s department store. Mr. Reigert will then give his closing argument for Mrs. Gebbert. After that I will instruct you what the law is that will apply to your deliberations and then the case will be yours to decide. Let’s take an hour recess so you can eat and so the lawyers can ready their closing arguments.”

  The jurors nodded, indicating they understood. An air of excitement permeated the courtroom as the jurors whispered among themselves.

  Chapter 60

  September 12, 2018, 1:00 p.m.