The Ultimate Resolution

by Dave Sullivan

  Finally Everett Whittemore addressed the Court. "Your Honor, . . ."

  Judge Hawthorne's court reporter gave him a sudden inquiring look.

  "Just a minute, Mr. Whittemore," the judge said, and to the court reporter he said, "Yes, we will be on the record. Are you ready? All right. Mr. Whittemore, excuse us, you may proceed."

  "Thank you, your Honor. Obviously, we consider the testimony of the last witness to be absolutely false. What actions or promises on the part of Plaintiff's counsel or his associates occurred to suborn this type of perjury we cannot imagine . . ."

  Jake rose slowly from his chair staring directly at Whittemore.

  " . . . but under the circumstances and the fact that Mr. Phillip Marquard is apparently at this moment under arrest for a murder that happened twenty years ago, we feel that Mr. Marquard should have the advice of a criminal trial lawyer before saying anything further. Because of these possible criminal proceedings, the merit of which we expressly and emphatically deny, we have no cross examination of this witness and Mr. Marquard would have to plead Fifth Amendment protection were he asked any additional questions."

  "Mr. Whittemore, I recognize that Mr. Marquard is apparently in the custody of police authorities at the moment," said Judge Hawthorne, "but would you like him to remain at counsel table with you as we close this case?"

  "We would, your Honor, thank you."

  Turning to Detective Green and Officer Wilkins, Judge Hawthorne asked, "Is that okay with you gentlemen if we can wrap this case up shortly without any further breaks or adjournments?"

  The two policemen nodded.

  "All right. Bailiff, after you have brought the jury back in, please assume a position at the courtroom door and do not permit anyone to enter or leave without my permission."

  The jury was brought into the courtroom. The jurors returned to their seats. Some stared at Phillip Marquard, some at Vincent Straker, who was still on the witness stand.

  Judge Hawthorne began, "Do I understand that the defense has no questions of this witness?"

  "That is correct, your Honor," said Everett Whittemore.

  "Mr. Straker, you may step down."

  Vincent Straker walked slowly in front of the jury, his hands held together in front of him. Jack Green and Officer Wilkins met him at the rail and escorted him to a seat in the audience.

  "Okay," said the judge, "does that conclude the evidence?"

  "No your Honor," said Jake. "Plaintiff has one more brief rebuttal witness."

  Judge Hawthorne was not prepared for this development. Obviously neither were the defense lawyers. Whittemore and Hamilton were getting out of their chairs preparing to speak.

  Jake went ahead. "Plaintiff calls Detective Jack Green of the St. Louis Police Department, St. Louis, Missouri."

  "Your Honor, please!" pleaded Everett Whittemore.

  "Counsel approach the bench," said Judge Hawthorne.

  Everett Whittemore, Edward Hamilton, Jake and Professor Charles Stanton joined Judge Hawthorne in close, whispered debate at the bench.

  "Your Honor, this is going way too far!" argued Whittemore.

  "What are you going to ask him, Jake?" asked the judge.

  "I'm going to ask him what Marquard did after we called Straker to testify. I intend to prove that he tried to escape after he saw the witness and before the witness testified."

  "We object, your Honor!" said Whittemore and Hamilton together.

  "Overruled! I have made special arrangements so the Defendant can have its principal representative at counsel table for the remainder of the trial which, in sense conceals the fact of his attempted flight so I will let him testify, but be quick about it, Jake."

  "Yes sir."

  The lawyers returned to the counsel tables and Jack Green took the witness stand. He testified that he was outside the courtroom, as they expected Marquard might try to leave. Since he did not think Marquard had seen him, he took the chance of following Marquard onto the elevator. Marquard gave no reaction to Green's presence. Green described Marquard's nervous demeanor on the elevator, his hurried departure and his effort to leave the building before he was apprehended. The jurors were spellbound.

  "No further questions. Thank you, Detective," finished Jake.

  "Anything, Mr. Whittemore?" asked the judge.

  "No questions, your Honor."

  Anything further, Mr. Kingsley?"

  "No, Judge Hawthorne, that concludes Plaintiff's rebuttal evidence."

  "Surrebuttal?" Judge Hawthorne looked to Defendant's counsel table.

  "No your Honor," said Everett Whittemore maintaining a surprisingly confident appearance under the circumstances.

  Judge Hawthorne turned to the jury. "Ladies and Gentlemen, for certain reasons, we are going to get this case submitted to you without any further delays. I know it is very late in the day, but counsel are ready to give you their final arguments now. I have previously reviewed the jury instructions with counsel, so they are ready. That being true, we will begin with the final argument on behalf of Defendant, then Plaintiff's final argument, then I will instruct you, and then you will retire to the jury room for your deliberations. As you know, there are bathroom facilities attached to the jury room. The bailiff will provide dinner after you begin your deliberations and coffee or soft drinks will always be available. I have asked counsel to be brief in their arguments under the circumstances." He turned to Defendant's counsel table. "Mr. Whittemore, are you ready?"

  "Yes, your Honor."

  "You may proceed." Judge Eugene Hawthorne leaned back in his high-backed chair and smiled at the jury.

  Everett Whittemore arranged his notes on the podium and looked up at the jurors. "Ladies and Gentlemen of the jury", he began. He kept his argument short according to the time constraints imposed by Judge Hawthorne. Arguing only the salient facts, he touched on the points important to the defense. Time and again he referred to the misuse of the tractor by Plaintiff and those for whom he was working. Finally he reached the testimony of Vincent Straker. Whittemore attacked the witness' credibility and the surprise with which the testimony was introduced. He asked the jury to use its common sense and ignore the unsubstantiated testimony of a convicted murderer now incarcerated in a state prison. In closing, Whittemore thanked the jury for their attention throughout the trial and asked that they exercise their common sense by bringing in a verdict for the Defendant, a leader in the farm equipment industry who had contributed greatly to the agriculture of our country for many years.

  Wow, thought Jake, He could sell me the High Bridge in Duluth, or even the Aerial Lift Bridge . . . and I'd think about it!

  "Mr. Kingsley?"

  "Ready, your Honor."

  "You may proceed."

  Jake also shortened his summation as requested by the judge. He stressed the lack of appropriate instructions and warnings regarding the operation coupled with the industry's clear, longtime knowledge of the propensity for such tractors to roll over from front to rear when the large rear traction wheels got stuck or were prevented from turning. He held up copies of the Agricultural Engineering Journal articles, patents and Safety Sheets. The state of the art at the time of the design and manufacture of this tractor had a solution, he told the jury, showing them articles with pictures of the early ROPS designs.

  Citing the expert witness testimony on damages, loss of earnings and future medical expenses, and considering the unimaginable pain and suffering, Jake asked the jury to award $2,750,000 as compensatory damages.

  Next, Jake turned to the subject of punitive damages.

  "Ladies and gentlemen," he said, "the subject of punishment of the Defendant in this case is entirely up to you. In accordance with the law as Judge Hawthorne will give it to you, you may award an amount of punitive damages which you think will punish the Defendant for what it has done here. I remind you of the evidence that Cherokee Tractor & Implement Company had annual profits last year of over thirty million dollars. That's profits. That's after p
aying all of its expenses and employees, including Mr. Ellington and Mr. Marquard there." He nodded toward the defense counsel table. "Imagine what it would take to punish a child who had an allowance of thirty dollars a month, or thirty dollars a week. Imagine what it would take to punish an adult who made thirty thousand dollars a year. Then think about what it takes to punish a corporation who profits thirty million dollars a year."

  Jake stepped to the clerk's table where the exhibits were piled. He held up the Robert England report. "Remember that the industry knew of the risk that injured Bobby Pallmeyer . . . and so did Cherokee, " he waved the report in the air and looked over toward Phillip Marquard. "In considering your punitive damages award in this case consider what Cherokee didn't do about this report . . . and," he dropped his voice, "what they finally did do about it. You must send companies like this a clear message of what you, the jury, think about that conduct. Thank you." He returned to his seat. Stanton gave him an approving nod.

  "Ladies and Gentlemen, I will now give my instructions in the law and how you are to handle your deliberations. The bailiff will provide you a written copy of these instructions to take to the jury room."

  Judge Hawthorne read his instructions, almost all of which were standard "JIG" instructions from the Minnesota Jury Instruction Guide (JIG). When he was done, he turned to counsel. "Counsel, are there any additions or objections we haven't already discussed in chambers?"

  "No, your Honor"

  "Plaintiff has none, your Honor," said Jake.

  "Well then, Ladies and Gentlemen, the case is finally ready for you. But first I must inform the alternates of their identity as they are done now and will not participate in deliberations. They are the last two called. That would be Mr. St. George and Mr. Micken. Thank you, Gentlemen, your participation has been most helpful to us and provided insurance that we would have been able to complete the case if someone got sick or had some injury. Please get your belongings from the jury room now before we send the rest of the jury there to deliberate. Thanks."

  George Micken and James St. George left the jury box while the others remained seated. Momentarily, Micken and St. George returned and left the courtroom.

  "All right, Ladies and Gentlemen," said the judge, "Oh! Excuse me! Ladies and Mr. Bennett," he smiled, "you will now retire to the jury room to begin your deliberations. Madame Clerk, please swear in the bailiff.

  After receiving the standard oath, the bailiff took charge of the jury, escorting them to the jury room.

  "Before we adjourn this court," said Judge Hawthorne, "I want to make sure the arrangements regarding Mr. Marquard are proper. Officer Wilkins, you are the only one involved that is part of a law enforcement body with which the Court has a relationship. Are you taking charge of his arrest, and are you satisfied that his rights are being properly protected?"

  "Yes sir," answered Wilkins. "We will take him from here to the Minneapolis Police Department and further arrangements will be made from there."

  "Thank you, and what about Mr. Straker?" asked the judge.

  Detective Jack Green stepped forward. "Judge, Mr. Straker is in my custody in cooperation with South Dakota authorities. We will be taking further statements from him here in Minneapolis and then returning him to Sioux Falls."

  "Thank you. Then I think we're finished here until the jury comes back. Court is adjourned." Judge Hawthorne rose from his chair and left through the exit to his chambers.

  Jake rose and walked toward defense table extending his hand. Whittemore ignored him. Ed Hamilton shook Jake's hand, but nothing was said.

  PART EIGHT: THE RESOLUTION

  EPILOGUE

  At its peak at mid-day, the August sun shone brightly on the blue waters and green forests of the Apostle Islands. The ketch Resolution beat into the westerly wind off Cat Island. Bert and Sandy Hanson, Charles Stanton and a member of the Chequamegon Band of Lake Superior Chippewa named Pete Cadotte were the crew. Jake was at the helm.

  The big ketch heeled over to port, close-hauled on starboard tack. The port rail dipped near the waves as Resolution drove through the water at nine and one-half knots.

  Jake began a turn to the south around Ironwood Island.

  "Ready to ease!" he commanded. "We'll fall off here to a broad reach past Manitou towards the north side of Stockton." He pointed. "There"

  "Ready," came a response.

  "Ready." Another.

  "Ready."

  Jake started the turn. "Ease the main!" he called.

  As Resolution turned south, Pete Cadotte loosened the mainsheet from the jam cleat and let the line out a little at a time. The big mainsail moved in slight jerks toward the port side of the boat.

  "That's good!" Jake yelled. "Bert and Charles, you ease the Jenny and mizzen to trim. Watch their trim, Sandy!"

  "I'll keep an eye on 'em," called Sandy Hanson from the foredeck.

  Resolution straightened, the angle of heel lessening considerably as she fell off the wind.

  Jake announced from the helm, "Okay, it looks good. Relax. I'll sail to trim for a while."

  Lines were cleated and the crew settled into the cockpit seats. Sandy Hanson came aft to the cockpit and disappeared down below. Pete sat up on the deck, above the cabin hatchway.

  "Well, are you guys going to give me the rest of the story?" he asked.

  "Pete wants the complete post-mortem, Jake," said Charles.

  Peter sat on the deck of Resolution, listening to his friends relate the story of the Pallmeyer case. He was an lifelong friend of Jake and Bert Hanson. He and Jake had grown up together in the Apostles. Like Jake and Stanton, he was a lawyer. Instead of private practice, he had put in twenty years in the U. S. Army, most of it in the Judge Advocate General Corps, from which he had only recently returned.

  Charles Stanton was speaking. "After Bert got hurt, we really began to wonder what we'd got ourselves into. Of course, these two bulldogs got their hackles up and charged ahead without regard for life or limb." He nodded towards Jake and Bert.

  "You were mad too," said Bert.

  "Well sure, I was not happy. But Pete, you should have heard him," nodding to Bert. "'Nobody pushes me around like that.'" Stanton tried to imitate Bert's gravelly voice. "And Jake: 'Let's nail the bastards.' "

  "Charles, you think their objective became clouded?" Pete smiled at the other two.

  "Hell no," said Stanton. "Their objective became clearer and more focused and their intensity increased like crazy."

  "Yeah," Bert Hanson grinned. "Charles had to practically hold us back."

  They went on with the detail of their story. Pete listened with interest. Sandy Hanson appeared in the hatchway with cans of cold beer for everyone. She took a seat next to Bert in the cockpit.

  Jake said, "So, the judge held off on any discussion of criminal charges until the jury went to deliberate, so the civil trial wouldn't be prejudiced, but he made sure Marquard was properly guarded, although inconspicuously so, until the evidence was closed and the jury went out."

  "After the jury went out," Bert Hanson joined in, "Judge Hawthorne released Marquard to the custody of Jack Green and the Minneapolis Police Department. Marquard eventually found his way back to St. Louis where he's facing first degree murder charges."

  "He certainly deserves it," said Sandy Hanson.

  "You damn right," growled Bert. "Jack Green was mighty pleased with our case and how it helped him get Marquard."

  "How long was the jury out?" asked Pete.

  "Less than six hours," answered Charles Stanton, "which, in Minnesota, means they had to be unanimous."

  "Well they didn't get it until about 7:00 p.m.," said Jake, "with all our fooling around. They came back at almost Midnight."

  "I read about the verdict," said Pete. "Those are some pretty big numbers."

  "I'd say," said Charles, "$2.75 million compensatory and $48 million punitive. They gave Jake what he asked for as compensatory and eighteen months profit of the company as punitives. It's a hel
l of a verdict."

  "A hell of a verdict," repeated Bert Hanson.

  Jake said, "I think the credit goes to Bert. I thought Charles and I had a pretty good case worked up, but it was the England report Bert found and then Vincent Straker that put the jury in a state of mind to give that kind of a verdict." He raised his beer can in Bert Hanson's direction.

  "Hear, hear!" said Charles. "But I think some credit goes to trial counsel as well." He raised his beer can toward Jake.

  "Congratulations to all of you," said Sandy Hanson, shaking an empty beer can. "I'll get more beer."

  "So it looks like you've got it pretty well made, all of you," smiled Pete. "Charles is retired on a pension in relative luxury, Bert is retired on a pension, plus a business that practically runs itself, . . ."

  "Hey, Sandy and I work hard at the boatyard," Bert Hanson interrupted, feigning a hurt look. Sandy looked up through the hatchway nodding agreement.

  "And I would hardly call my circumstances 'luxurious', just comfortable," retorted the professor.

  "And you, Jake," Pete continued, "this little piece of fiberglass, teak and stainless steel speaks for itself." He rolled his head and eyes at Resolution's deck, fittings and rigging.

  Jake looked at him. "Certainly we are comfortable. The Pallmeyer case is on appeal, but it will certainly result in a substantial recovery for our client no matter what happens. Of course, if the whole thing is affirmed, as I think it should be, there will be a large recovery and a large fee. Considering we are where we most want to be, doing what we most want to do, we do have it pretty well made. The important thing is that Sarah Pallmeyer and Bobby will have the money to give Bobby the best care he can get and make it possible for Sarah to be able to care for him."

  "Nothing can undo what happened, that's for sure," said Charles, "but this verdict may give them some comfort and ease the pain a little."

  "She and Bobby would have been a lot worse off if you hadn't helped," said Bert. "that's what I was looking for when I asked you to help her."