Trial Day 3
THE COURTROOM WAS buzzing with activity for the hour before closing arguments. Mike and Stan set up in the hallway to make sure Mike had everything he needed for his closing. Jack and Ed Wagner stayed at their counsel table with Jack finalizing his outline. Mike darted into the courtroom a few times to gather documents from his files. Jack walked into the hallway twice to stretch his legs. Although Mike and Jack walked past each other multiple times during that hour, neither glanced in the other’s direction and not a syllable passed between them.
When the jurors returned to the jury box, Jeri informed them the defendant would give its closing argument first. Jack approached the jury rail and took the same position as when he had given his opening. With no notes in his hands and his yellow pad left by the jury rail, Jack paused momentarily and then began. “Theft is a huge problem facing all retailers. The statistics are grim. Certain people come into Wendell’s department stores every day with the sole intent to steal−to walk out of the store without ever paying for anything. This hurts everyone and makes the prices of everything higher.
“Pennsylvania law is clear,” Jack continued. “It allows stores selling goods to the public to protect their merchandise and stop people they believe are shoplifting. In fact, store employees can stop a person mistakenly, and not be liable, if they have a reasonable suspicion shoplifting had occurred. This is exactly what happened here. The store detective had a reasonable suspicion Mrs. Gebbert stole the chocolate because he saw her break the cellophane and take the first piece out of the box.”
Jack locked eyes with one of the jurors. “It doesn’t matter if Mrs. Gebbert denies she was stealing. Everyone says once they are caught they were going to pay for the item. What makes what the store detective, Mr. Lombard, did okay is it reasonably appeared Mrs. Gebbert had stolen the chocolate.
“What else doesn’t matter? How much the stolen item cost. The piece of candy wasn’t a big-ticket item−the box cost twelve dollars. What matters is, it was stolen. The testimony is clear−stolen goods cost companies billions of dollars a year and ultimately you, the consumer, pay that cost.
“Once you have determined that what Mr. Lombard did was appropriate, you can discuss Wendell’s policy of how it deals with shoplifters. Wendell’s’ policy is designed first to get the shoplifter off the sales floor. This protects other customers who are innocently shopping and protects the shoplifter from public humiliation. This is completely reasonable.
“Taking the shoplifter to a private room again protects everyone by reducing the chances of the situation escalating, and the use of handcuffs is appropriate as it once again reduces the chances the shoplifter becomes violent when she realizes she has been caught. This policy was thoroughly thought out, tested, and has been extremely successful in reducing shoplifting at Wendell’s and has prevented shoplifting situations from becoming violent.”
Jack concluded his liability argument by saying, “Given the sound reasons behind Wendell’s’ policy, and the reasonable manner in which Mr. Lombard conducted his investigation, when you have to answer the first jury question, ‘Was Wendell’s department store negligent?’ the only appropriate answer is ‘no.’ And when you answer that Wendell’s was not negligent you can return to the courtroom and render your verdict in favor of Wendell’s.”
Jack wanted to sit down. He also wanted to see the jury unanimously nodding their heads, signaling their agreement with his client’s position. The jury, however, stared at him impassively. Sensing the jury’s impatience, Jack began a short argument that Mrs. Gebbert wasn’t actually hurt by this incident, while also reminding the jury he still believed his client had done nothing wrong.
“Mrs. Gebbert lied to her doctor, lied to our doctor, and lied to you,” he said, pointing at a female juror in the second row. “She didn’t want you to know she had treated before with a psychologist. Why did she lie? Because she had emotional problems before and she didn’t want you know that. She told her first psychologist she had issues with her husband. Clearly those issues weren’t resolved.
“Do you think Paul Gebbert only had one affair? No, men who cheat on their wives are usually serial cheaters. Martha Gebbert is clearly hurt by her husband’s actions, but she wants to blame the department store for her problems. The doctors told you she is in denial about her husband’s infidelities and her longstanding psychological issues.”
Jack finished his closing by trying to walk a tightrope. He argued his client hadn’t done anything wrong, but if the jury thought it had, they still shouldn’t award much because she hadn’t been hurt badly.
The final issue Jack had to deal with was the issue of punitive damages. He explained if they found the company liable they would have to decide if punishment for the company was warranted. He emphasized that if they wanted to award punitive damages, they would be called back into the courtroom to hear more evidence and would have to deliberate a second time. He argued they should cheer Wendell’s for trying to stop shoplifters aggressively and punishment was the last thing his client deserved.
“Stopping crime is not always pretty. Shoplifters walk in and out of every Wendell’s stores every day. Wendell’s spends huge amounts training its security guards to try and stop this wave of shoplifters. These people guard the innocent shoppers and protect them against criminals, attempting to keep violence off our sales floors. Wendell’s tests its policies to make sure that they work and that innocent people’s rights are protected. Everything Wendell’s did was reasonable and we ask you to find in favor of Wendell’s when you return from your deliberations.” Jack took one more look at the jury, turned, and headed back to his counsel table.
Standing and adjusting his tie, Mike felt the same gnawing in the pit of his stomach as before the trial began. He said a silent prayer he would be able to keep his lunch down until he finished his closing.
Mike walked closer to the jurors and with his eyes alert said, “Let’s make this as simple as possible−Wendell’s department store’s policy of chaining a person to a table with no chance of release until the person confesses to a crime−which may never have occurred−is abhorrent and in complete disregard of the laws of Pennsylvania.”
The jurors engaged as Mike walked them through his argument that nowhere in civilized society would we tolerate locking people to a table with no hope of release. Mike argued any confession received under those circumstances was absolutely suspect and the jurors had to question the motives of a company endorsing such tactics.
“Think about the millions of dollars this company has made by chaining people to their tables, out of sight and helpless. The store takes away their phones so they can’t communicate with anyone and the store never gets the police involved so they can do whatever they want in that room. The policy is wrong and how they utilize the policy is wrong. Only you can stop them from doing this to other people.”
Mike turned his attention to the evidence of what Martha did that day. “If you believe what the store is trying to tell you, the worst Martha ever did was take a piece of chocolate. Everyone agrees the box of chocolate was sitting unattended on the counter with the lid off. If the store thought the candy was for sale, shouldn’t they have taken it off the counter and put it away so nobody made the same mistake? Don’t you also think it is possible the store left the candy on the counter on purpose trying to bait people like Martha into taking a piece so they could arrest them and accuse them of stealing? This is their plan. Once they take people downstairs, they can handcuff them to coerce them into admitting to stealing so they can make money off them”
Speaking directly to the jurors, Mike calmly argued the company never had a legitimate basis to have stopped Martha in the first place. As Mike continued his argument, Stan displayed the images from that day on the screen so the jurors could view the available footage. Once again Mike suggested the evidence supported Martha’s claim she believed she was only taking a sample
of chocolate and the company never could prove Martha broke the cellophane on the box of chocolates because the videotape didn’t support this contention.
Mike attempted to get the jurors to imagine they were being taken downstairs to the detention room. “Picture someone accused of stealing being led down the steps, not knowing why they were being taken far away from the sales floor. This might happen to anyone, because Wendell’s doesn’t care if you have stolen anything. They realize you will admit to stealing because if you don’t, you will be stuck in handcuffs.”
Shifting the discussion to Martha’s injuries, Mike wanted to take a shot at Jack before discussing them in depth. “Counsel for Wendell’s,” Mike said while gesturing dismissively in Jack’s direction, “suggests Martha’s injuries aren’t real and even if they are real, Wendell’s didn’t cause them. The evidence supports neither argument.”
Sensing the jury’s empathy for Martha’s problems, Mike suggested if the jury were to believe Wendell’s position on mental illness, then nobody could ever prove they had a mental illness because nothing would ever show up on an x-ray. “If you think Mrs. Gebbert is making this up or in any way faking, go back to the jury room and come back in five minutes with a verdict for Wendell’s. She is not faking. Look at her. Look at Tanner and Stacey. They are the real victims here. They have essentially lost their mother.”
Mike moved on to the issue of Paul Gebbert’s infidelity. “Mr. Rogers and the Wendell’s witnesses have suggested Paul Gebbert was unfaithful to his wife before this incident. They presented absolutely no proof of this. They hope he had been unfaithful before so they don’t have to accept responsibility for the consequences their illegal policy has caused.
“Apparently Martha had been to a psychologist before this. Come on. It was five years before and she saw the guy five times. There was no diagnosis then. Now she has agoraphobia and post-traumatic stress syndrome. And as Dr. Rathman told you, these came directly from how the department store treated her and nothing else.
“According to everyone in the family, this was a nice, normal, well-adjusted family before this incident and everything started to go bad after Martha returned from Wendell’s the day she was chained to the table. All of them have testified Paul became unfaithful after this event and because of this event. It is a sad reality Wendell’s wants to hide from.”
After 30 minutes of discussing the events of that day and analyzing the effects it had on the entire Gebbert family, Mike moved onto his last and perhaps most crucial area−whether Wendell’s should be liable for punitive damages. Mike understood the standard was high and juries were usually loath to award extra damages to a plaintiff just to punish an offender, but also understood certain cases warrant these penalty damages. The jury had to buy into his entire argument to this point to stand any chance for punitive damages.
“Wendell’s needs to learn locking people to a table until they confess is abhorrent. They don’t think anything is wrong with their policies and will continue to teach its security guards to take people to a separate room and force them to sign a confession by not letting them out of handcuffs. This is repugnant. Tell them to call the police. Tell them to stop following people looking for a reason to detain them. Tell them that trying to profit from a ritualized program of forced confessions must stop.”
Mike paused, holding the gaze of one juror before continuing. “You can send them this message by saying loudly and clearly, they should be punished. You can stop this insanity by telling the company they must pay punitive damages.”
Mike finished his closing by walking the jurors through their verdict slip as Stan projected a copy of it onto the screen. He suggested the jury find Wendell’s negligent and that they find Wendell’s negligence caused Mrs. Gebbert’s injuries. He recommended they award an appropriate amount to compensate Mrs. Gebbert for her injuries and that they decide punitive damages are appropriate and be willing to hear additional evidence to allow them to decide to what extent they would punish Wendell’s.
“Mrs. Gebbert and I are confident you have taken your oaths as jurors seriously and will evaluate the evidence fairly and return a verdict compensating Mrs. Gebbert for all she has endured as a result of Wendell’s department stores’ illegal policies.”
Flushed with relief from completing his role in this trial, Mike sat back in his chair to listen to Jeri tell the jury the law that applied to their deliberations.
Chapter 61
September 12, 2018, 2:30 p.m.
Trial Day 3
JERI WAITED UNTIL all of the jurors settled and each was looking at her. She then began her recitation of the law and instructions on how they were to conduct their deliberations. Mike had sat through a few jury instructions previously and Stan and he had discussed his belief that the charge usually did not have much of an effect on what a jury was going to do. Lawyers argue for hours over the precise language of what the judge will read to the jury, but jurors focus on the overall concept of the charge rather than parsing words. The language in the jury charge was important primarily because the appellate courts might order a new trial if the language was not absolutely correct, but jurors ordinarily did not worry about such arcane details.
Mike understood that jurors want to do what they think is right. They want to follow the law, but often if they believe the right decision is contrary to the law as the judge instructs them, they will follow their gut, and not the court’s instructions. Most jurors knew what they wanted to do and the instructions the judge gave had little bearing on their final verdict.
Both sides in this dispute agreed on the applicable law. The requested jury charge submitted by each side asked the judge to charge the jury that a shop owner had the right to stop a suspected shoplifter and detain the shoplifter to determine the identity of the shoplifter, recover any stolen property, and to institute criminal proceedings, so long as the detention was done in a reasonable manner and for a reasonable duration.
The statute did not provide a specific length of time to determine if the detention was for a reasonable duration and provided little guidance to define when a detention was performed in “in a reasonable manner.” That meant, Mike believed, the jury would follow its own thinking to determine if Wendell’s had a reasonable suspicion to have stopped Mrs. Gebbert and whether its detention was reasonable.
When Jeri completed reading her instructions to the jury, she ordered them to the jury room to begin their deliberations. The jurors rose and solemnly strode from their seats and disappeared underneath the red light bulb that would illuminate when they had completed their deliberations.
Once the jury was safely squirreled away in the jury room, Jeri stood and informally asked the lawyers and parties to remain near the courtroom in case the jury came back with a quick verdict. She indicated if no verdict were forthcoming within an hour they were free to leave the courthouse and her staff would call them when a verdict was reached.
Mike and Stan occupied two seats outside of Jeri’s courtroom. Mike fretted, not liking what Jeri had said because he thought Jeri presumed a quick verdict was imminent. A quick verdict, he believed, would likely be a verdict in favor of Wendell’s.
Stan placed a hand on Mike’s knee and without looking at him, said: “Don’t try to read into anything. None of us knows what the jury is going to do. But let’s hope they are out for a while−that likely would be much better for us.”
As the two sat in silence, Mike’s dad exited the courtroom and walked a few steps towards them. He waited until Stan motioned for him to join them.
“Charles,” Stan said, “it’s good to see you. I saw you in the back of the courtroom.” The two men shook hands.
Charles looked at Mike, a glimmer in his eye. “Mike, thank you so much for letting me watch. It was amazing.”
“Thanks, Dad,” Mike said.
“Also, I met Megan while I was sitting in there. Seems like a really nice woman
. She told me that she is sitting in the courtroom sending good thoughts to the jury.”
Mike smiled.
Charles continued. “I have a lot I want to say, but I know now is not the time, but Mike I wanted to tell you how impressed I was by everything you did in there.” He pointed towards the courtroom. “I never have told you this enough before, but I was so proud watching you in there. You are a real lawyer.”
Mike and his dad gazed at each other. Mike put a hand on his dad’s arm. Charles spoke first. “I need to leave. I think I would be a basket-case if I had to wait for the verdict. Please let me know what happens.”
Charles gave Mike a pat on the shoulder and started to walk down the hall. “I will, Dad. I will,” Mike called down the hall.
After Charles left, Stan and Mike sat in the uncomfortable wooden seats trying to kill time, but found nothing to talk about to distract them from thinking about the jury deliberations. There was little left for them to do other than focus on what was happening in the jury room.
Forty-five minutes of painful, stilted conversation and awkward silences had passed since Stan and Mike had relocated to the corridor. It was then that Jack and Ed Wagner eased out of the courtroom, heading toward the bathroom. None of the attorneys had said a word to their opposition since the jury began its deliberations and nobody wanted to offer good wishes to the other side, as was the usual custom after a jury begins to deliberate.
Jack and Ed were about to walk past Stan and Mike without saying a word when Kathy, the tipstaff, peeked out of the courtroom. “Gentlemen, we have a verdict,” she announced.
Mike felt the blood drain out of his face and then he felt his uncle’s hand on his back. He faintly heard Stan say, “You never know, Mikey.”
Mike had no time to process his emotions when Jack turned back to the courtroom and faced Mike, a huge smile on his face. “Oh well, buddy, that didn’t take too long. Guess we’re going to be able to catch the early flight tonight. Maybe you should have convinced your client to take our money.”
Legal Reserves Page 24
