Unclean Hands, page 23
He then turned to Emily's claims that she lost significant money for jobs Jerry would hold in the future.
"Mr. Hawkins didn't work a real job for years. He received little training to get any job, let alone a high paying one in the future. Yet Mrs. Hawkins claims Jerry was well on his way to making lots of money, so you should pay her all the money Jerry might ever earn in the future. Unfortunately, the evidence is Jerry didn't have a lot of motivation and couldn't hold a job for any significant period. Her suggestion he was on the verge of high paying employment reeks of an attempt to garner sympathy from you when the evidence would lead you to award only a nominal amount for whatever work he might fall into in the future. It's your decision, but the evidence doesn't support what she is trying to sell to you.
“Ladies and gentlemen, Emily Hawkins suffered a significant loss and nothing I say to you can change that. The issue before you is, who bears responsibility for his death? I say that when you steal, you must be ready to suffer the consequences. When you get caught and try to fight your way out, you must accept the consequences. Here they were significant and cost Mr. Hawkins his life. He created the chain of events, and he exacerbated the situation every step along the way. As a result, his death is his responsibility. Review the evidence without undue sympathy. If you do, you will return a verdict in favor of the defendants."
With his closing complete, Crotec nodded and returned to his seat. Rick placed the folder with the materials for his closing in his hand, ready to argue to the jury why everything Crotec just said was garbage.
Chapter Sixty-Three
Standing before the jury, despite wearing a newly dry-cleaned suit and pressed shirt, Rick felt naked. The jurors stared at him, but he only sensed Emily's eyes boring in on him. She sat behind Arnie, yet he felt her need for vindication to prove her husband's death was not in vain. Her testimony was her only real input at trial. She relied on Rick and Arnie to argue her case and to convince the jury Jerry didn't deserve his tragic fate. Rick still believed in her, but the nagging doubts about the strength of her case which interrupted his sleep every night during trial, returned right as he was about to make her last appeal.
He gave his head an almost imperceptible shake to rid it of any negative thoughts and focused on the young woman juror in the back row who, demographically at least, aligned most closely with Emily.
“Here's what is not in dispute: Jerry Hawkins is dead, and the only reason he's dead is because B & D failed to train its employees how to detain a suspected shoplifter, even though they knew that a situation like this, where they tried to stop a scared and threatened individual, could and would escalate into a brawl. They knew if they gave untrained employees the responsibility to act like police officers, they needed to be trained on how to deal with any type of foreseeable situation to make sure they didn't kill anyone.
“Despite this knowledge, they never trained their employees, they ignored the risk, and they killed Jerry.
"Want to know something else that's not in dispute?" Rick asked before offering his answer. "This was all predictable. Every one of their witnesses came in here and told you about how bad shoplifting is. They made it seem like half the people in their stores came there to steal. The experts told you when people are stopped for shoplifting, the risk of them trying to escape is high. So it is completely expected that if someone steals, and their employees attempt to detain them without adequate training, someone will get hurt."
Rick moved a few steps to the other side of the jury box.
“Let's stop right there, because there is no reason to accept that the store employees needed to detain Jerry. They possessed enough information they could have gotten the police involved without physically detaining him. How? There was video of him–which is a decent start to identifying him. Moreover, Mr. Askew was in position to take down his vehicle information while in the parking lot. The video also captured his car and would have likely included his license. If Askew took down his information and went to the police, they could have dealt with it–because that's what they are trained to do–and Jerry would still be alive today.
"So rather than letting the police be the ones who deal with shoplifters, the company decides it wants its managers to be right in the middle of the action and make split-second decisions on capturing those they suspect of shoplifting. But even knowing those situations will often lead to violence, they provided no training on how to properly detain a suspected shoplifter, if the person resists being detained.
"The only policy they shared even tangentially related to this likely situation is the pet expression of their Loss Prevention Director, 'When they are out the door, chase no more.' Unfortunately, this policy was barely transmitted to any of the managers and if it was, they sure had no idea what it meant. Morgan Askew wasn't aware he shouldn't chase shoplifters in the parking lot. Bottom line, when Jerry Hawkins left the store, by both practicality and by policy, Morgan Askew should've dropped his pursuit and called the police to go find him.
"Instead, Mr. Askew let his emotions dictate his conduct. Whatever his training was, it didn't kick in and had no effect on his actions while chasing Jerry. He was uncontrolled running after Jerry, calling for help from a lot attendant and then demanding help from customers in the parking lot to pin Jerry to the ground." Rick scoffed and threw his hand forward. "What could go wrong under those circumstances?"
He locked eyes with a juror. "What could go wrong is exactly what went wrong. An accused shoplifter didn't want to stop when Morgan Askew demanded him to stop. Not much of a surprise. He's not a police officer and doesn't wear a uniform which would suggest he has any authority. So Jerry didn't want to stop when Askew demanded and then left the store. Had Askew followed the mandate of, 'If he’s out the door, chase no more,' once again Jerry would still be alive–arrested by the police, probably an hour later.
"Morgan Askew wanted to be in charge, so didn't do anything to get the police involved."
Rick glared at Askew in the second row of seating. Askew turned his head away.
"No, he followed him into the parking lot, into the area with lots of traffic, customers and potential danger. Yet, Askew couldn't catch up to him. If he realized the danger to everyone he would have stopped and Jerry would still be alive.
"Instead, he yelled to Byron Hucklesbee, to do the work of the police and to stop him. Byron received no training in stopping shoplifters, even less than the minimal training Askew received. Hucklesbee, a physically intimidating young man, stepped in Jerry's path. The least surprising thing that happens is Jerry gets scared and hits Hucklesbee.
"You've seen the video enough. You know what happens. Askew gets mad and tackles Jerry, who is now cornered prey, fighting for his life. Ultimately, four people pin him to the ground.
“This is where B & D's lack of training becomes even more significant. Nobody at the store ever received training on how to detain a non-compliant person. They also didn't train anyone as to what the typical physiological response someone might undergo if they are strangled. That almost sounds funny, but if it's expected someone accused of shoplifting might not willingly accept the authority of a twenty-something assistant store manager and it is likely the physicality of the situation will escalate, then it is likely someone like Jerry will end up struggling on the ground and store personnel will resort to sitting on him to prevent him from moving."
Rick stopped to take a sip of water and then turned back to the jurors.
"Anything is foreseeable in these situations and that is why B & D needed to train it employees, because by allowing them to engage with shoplifters and failing to train them properly, people could get hurt. There is one, final way how the company could have prevented Jerry from dying. You heard Dr. Creft tell you about how a person reacts when they are being strangled. They struggle for air and their body convulses. This is typical.
“Unfortunately, Mr. Askew and three other people climbed on top of Jerry denying him air. He couldn't breathe, so he struggled mightily to get oxygen into his lungs. Morgan Askew mistook his efforts to satisfy this basic human need for an attempt to escape and hurt them. If Askew at any point received training that a person being strangled would convulse and it would feel like they are trying to escape, he might've told his posse to get off of him, instead of clamping down even harder–denying him the breath he so desperately needed.
"Had B & D trained its employees properly or had B & D allowed the police to do its job, Jerry would be alive, and we wouldn't be here. But they didn't. They decided they were the best people to enforce the law, and they didn't need anyone's help. Jerry's death proves how wrong they were and proves their culpability for his death. So when you get a chance to discuss what happened to Jerry, I am confident you will find B & D is at fault and Emily Hawkins is entitled to compensation as a result.
"So what's the appropriate compensation for Emily?"
Rick stopped, wanting the jury to take a moment to catch its breath and to ponder numbers large enough to adequately make up for the losses she suffered.
"Let's go through some areas of damages Emily would be entitled to receive if you find B & D wrongfully caused Jerry death.
Rick took a few minutes to discuss Jerry's conscious pain and suffering and how revolting and difficult it would be to struggle for breath while nearly a thousand pounds clamps down making it impossible to do what we all do naturally thousands of times each day. He went through the bills Emily incurred as a result of Jerry's death and then spoke of Emily's loss of companionship by having her husband taken away from her.
"They were a young couple who spent most of every day together discussing the dreams of having babies, and growing old. They relied on each other, providing comfort, support and care whenever needed. Now, Emily is alone, without the one person who could help her overcome this horrific loss, every morning waking up alone, with no one to talk to, figuring out a way just to make it to the end of the day."
Rick painted a picture of a young, vibrant couple looking eagerly to the future and able to lean into each other in difficult times. He informed them under Pennsylvania law he couldn't suggest a dollar number that would compensate her for this loss, but told them to put their heads together and use their collective judgment to figure out what amount of money would be appropriate to compensate Emily for this tragic loss.
"I know trying to put a dollar figure on a person's life is crass. Emily would have little interest in asking you to determine the value of Jerry's life, if only you could bring Jerry back."
He paused. "You can’t–and you can't order B & D to go back in time and do better so Jerry won't die. He's dead. The only thing Emily can ask you to do is to award money and it's your responsibility to work together and do that.”
Rick turned the jury's attention to Emily's last element of damages, Jerry's lost earnings, and explained how Emily was entitled to any earnings Jerry would have earned in the future and how it was their job to determine what those earnings would be.
"No, he hadn't worked much right before he died, but you heard Emily. They had plans to start a family and the plan included Jerry getting a solid job and supporting the family at least while the kids were young. She told you what type of jobs he wanted. It might take a little time, but the types of jobs he sought would pay him over one hundred thousand dollars per year once he got his feet on the ground. He would work at least thirty years.
“Once you do the math, you’ll find Jerry and Emily lost a lot of future earnings because of what the store did."
He walked them through the calculations and the figure two and a half million dollars appeared on the screen.
"This is a reasonable estimate of what Jerry could've earned over his career and is fair compensation to Emily for Jerry's wage loss."
The jurors were fidgeting.
"You've been in your seats for a while. But obviously this is important. This is Emily's only time to be compensated for her losses. When this trial is over, you go back to your lives. She goes back to being alone. This is the only chance she will ever have to let people evaluate the conduct of the people at B & D. You heard the evidence and the sad truth is those people. . . ."
Rick turned and pointed to the B & D employees seated to his right.
". . . killed Jerry. They sat on him without remorse, smothering his life because no one taught them better."
He turned to his client.
"Emily sits in this courtroom alone and you are the only ones who can right this wrong. We thank you for your time and attention."
The courtroom stayed silent as Rick walked back to his seat.
Chapter Sixty-Four
Markum enjoyed having every eyeball on him. He was the judge, and he sat higher than everyone else for a reason. The back and forth of litigation held his interest, but the winner of this, or any other, trial was not terribly important to him. More so, he fastidiously wanted to avoid any potential error which could give the appellate court a reason to reverse the jury's determination and force a new trial. He had no interest in hearing the same arguments, ruling on the same objections, or listening to the same witnesses again.
The jury charge was the most likely target on appeal. Juries needed to hear a proper recitation of the law. Subtle nuances in language could offer a toehold for an appeal, and he remained hell-bent to make sure neither side could leverage his instructions on appeal if they received an adverse verdict.
In this case, both sides agreed on the statute that governed the conduct of B & D's employees when they sought to stop a shoplifter. The Pennsylvania Retail Theft Act had been in existence for decades and provided shop owners with undeniable rights to detain suspected shoplifters. The gray area in the law was that the detention must be "for a reasonable time and in a reasonable manner."
He would provide the jury with certain guidelines of what “reasonable” meant under the law, but they were essentially platitudes. This jury would make its own determination of whether they condoned B & D’s conduct.
The charge took a little more than twenty minutes for Markum to read to the jurors.
He prided himself on his ability to modify arcane standard jury instructions by substituting normal English for the more stilted legalese to provide the jury a concise, understandable statement of the rights and responsibilities of the parties. The jurors appeared to listen, but Markum knew they would bring their own interpretations of his instructions into their deliberations.
He told them if they needed to rehear any of his instructions again while they deliberated, he would bring them back and reread the relevant portion of the charge. If past was prologue, this would be the only time they heard his instructions.
Markum believed the jury charge ordinarily didn't affect the jurors' thinking much. In this case, he was convinced they would bring their own sense of right and wrong into their discussions, especially because in their determination of whether the store was culpable, their primary decision was whether the detention was reasonable.
There would likely be disagreement, and as he always did, he told the jurors, "Listen to the other jurors and hear their arguments. Consider them, but you do not need to accept them. This is a civil trial seeking monetary damages. Unlike a criminal case where a jury’s verdict must be unanimous, here, once ten out of twelve of you agree on any issue, you have reached your verdict on that issue. You will mark it on the verdict slip."
The judge turned to the questions the jury needed to answer to complete its deliberations.
"The first question you will answer is: 'Were the defendants negligent in causing the death of Jerry Hawkins?'
“If you answer no, you will enter a verdict in favor of the defendants on the verdict slip. If you answer yes, you will next determine whether Jerry Hawkins' negligence also was a factor in his death."
Markum explained to the jurors the concept of comparative fault and how they would have to assess the relative culpability between the defendants and Jerry Hawkins.
"If you get to that point, you will answer the third question, 'What monetary damages do you award to plaintiff, Emily Hawkins?' There is only one line for the damages. If you award damages, you will add all the damages you award to plaintiff in a lump sum and enter it on the verdict slip."
Markum shuffled his papers and returned his attention to the jurors. "Your deliberations are a matter of significant importance to the parties. Please respect their interests and respect the feelings and thoughts of your fellow jurors. Once you reach a verdict, please inform my tipstaff. We will bring the parties back into the courtroom to read your verdict."
The only sound in the courtroom was the soft footsteps of the tipstaff as she moved to the edge of the jury box and signaled for the members to follow her. In single file, without uttering a word, they walked out the back door of the courtroom.
Once the jurors cleared the room, the lawyers stood and faced each other. Rick took a step towards Crotec and extended his hand. "Seb, you tried a strong case."
Crotec held Rick’s gaze. "You both did an excellent job."
Spencer and Arnie clasped hands and offered token expressions of luck.
Arnie and Rick returned to their table to gather their papers.
"Damn, they tried a solid case," Arnie said, "but I still think they're assholes."
Rick nodded.
Emily Hawkins sat quietly in the seat behind them and a slight smile crossed her face when Rick approached. "What do you think?" she asked.
"I truly don't know. The jury understands what happened. It's all a matter of assessing blame."
